COVER

THE GREATEST FEAR

OTTAWA PLANS TO EXTEND PRISON STAYS FOR SEX OFFENDERS, BUT CRITICS WORRY ABOUT VIGILANTISM

TOM FENNELL March 1 1993
COVER

THE GREATEST FEAR

OTTAWA PLANS TO EXTEND PRISON STAYS FOR SEX OFFENDERS, BUT CRITICS WORRY ABOUT VIGILANTISM

TOM FENNELL March 1 1993

THE GREATEST FEAR

COVER

OTTAWA PLANS TO EXTEND PRISON STAYS FOR SEX OFFENDERS, BUT CRITICS WORRY ABOUT VIGILANTISM

Robert Leech knew that he was dangerous to women. On Dec. 18, 1972, the 20-year-old was sentenced to life in prison for kidnapping, raping and sodomizing a Calgary woman at gunpoint. Three times over the next 20 years he turned down parole opportunities so that he could continue treatment for the control of his sexual urges. Finally, in September, psychiatrists and parole officials agreed that Leech’s sadistic nature had been curbed, and they allowed him to transfer out of prison to a Regina halfway house. But those involved in Leech’s release had erred fatally. On Dec. 21, police found the battered, lifeless body of Jewel Judith Gambler, a 28-year-old Regina prostitute, on an ice-covered street. And last month, in a Regina courtroom where he was sentenced to another life term for that murder, Leech delivered a brief statement that many Canadians would heartily endorse. “I’ve had enough,” the 40-year-old criminal pleaded. “Even if they offered me a release, I wouldn’t take it.” Now, across Canada, momentum is building to have more sexual offenders jailed for longer periods—in the case of the most violent, until they die.

During meetings of the House of Commons justice committee last week, MPs from all three major parties agreed that the federal Corrections and Conditional Release Act, which governs the terms of sentences and paroles, must be changed to give courts more power to ensure that sex offenders spend more of their sentences in prison, rather than on parole. Under the Criminal Code, judges can classify people as “dangerous offenders” and send them to prison indefinitely if they have displayed a pattern of repeated violent behavior. But Crown attorneys rarely seek that designation because it is difficult to prove. For his part, Solicitor General Douglas Lewis told Maclean’s that he expects to introduce tough new measures in Parliament by July to ensure that violent sex offenders stay in prison longer. Said Lewis: “I think the public is increasingly concerned about public safety.”

Murder: And the issue of how to deal with potential and convicted sexual offenders gained even more attention last week when police said they would charge a married accountant in St. Catharines, Ont., with two counts of first-degree murder in the 1991 rape and dismemberment killing of Leslie Mahaffy, 14, of nearby Burlington, and the 1992 sex slaying of Kristen French, 15, of St. Catharines. Paul Bernardo, 28, also faces 43 counts of sexual assault in a string of crimes in the Toronto area between 1983 and 1990 (page 22).

The widespread outrage at the current parole system has arisen

partly as a result of such crimes as the 1988 murder of 11-year-old Christopher Stephenson of Brampton, Ont., at the hands of convicted child rapist Joseph Fredericks, who had been released from prison under mandatory supervision only three months previously (page 24). On Jan. 22, a coroner’s jury that spent five months examining the case recommended sweeping legal changes that would ensure that some habitual sex offenders spend the rest of their lives behind bars. At the same time, increasing numbers of citizens’ and victims’ rights groups are lobbying for stricter sentencing and release conditions. One organization, Voices For Children’s Rights, regularly organizes demonstrations in Kingston, Ont., whenever a violent sexual offender is about to be released from the federal penitentiary in that city. “Some of these sexual predators are not being treated in prison,” said Virginia Foster, the group’s president. “If they are labelled high-risk, the community should be told.” That is precisely what law-enforcement officials in a growing number of cities across Canada have vowed to do. Last week, police in Durham Region, east of Toronto, released a photograph of David Paul Pascoe, a convicted pedophile who was charged with sexual assault and abduction involving two young boys in late 1992 and early 1993 while on probation. Durham regional police chief Trevor McCagherty said that he took the action to protect the community in the event that Pascoe succeeded in

obtaining bail. But on Thursday, as a dozen members of Foster’s group protested outside an Oshawa courthouse, a judge denied Pascoe’s bid to be freed on bail.

Three weeks earlier, police in Peterborough, Ont., released a picture of Daniel Cody Morgan, 46, a convicted pedophile who was about to be released. As a result, Morgan decided to serve the remaining three months of his sentence in Kingston Penitentiary. And in Ottawa, Police Chief Thomas Flanagan says that his force may soon begin to publicize the names and photographs of rapists and pedophiles who are freed in that area. Addressing the concern about the rights of freed prisoners, Flanagan said, “We would rather be sued by a pedophile than the parents of a dead child.” Added Peterborough Police Chief Kevin McAlpine: “The issue of the offender’s rights, versus society’s right to be protected, is swinging back to the community.”

Leading psychiatrists and criminal trial lawyers, however, say that the new get-tough attitude amounts to vigilantism. Brian Greenspan, a Toronto criminal lawyer and chairman of the Canadian Council of Criminal Defence Lawyers’ Association, said that public opinion is driving politicians to abandon the goal of rehabilitation in favor of retribution. “It’s like medieval times,” said Greenspan. “They want to brand the letter P [for prisoner] into their foreheads. Punishment is now front and centre.” Ontario Attorney General Marion Boyd also joined the debate last week on the side of about-to-be released prisoners. Boyd said that the province may act to stop police from identifying offenders who have fulfilled their sentences but are viewed by police as potential risks to the public. “If we just continue to punish people again and again,” she said, “we make it very difficult to re-assimilate into the community.”

Similarly, some experts voice concern about the federal government’s plan to tighten the rules that affect the release of sexual offenders. Howard Barbaree, director of the Sexual Behavior Clinic at Warkworth Institution near Kingston, says that if the new law is too sweeping, it will keep some offenders in prison unjustly—possibly for decades. Said Barbaree: “When the political mood heats up, the legislation could be used more frequently than intended.”

Safety: Balancing the constitutional rights of dangerous offenders against the rights of society has confounded the Canadian justice system for decades. Still, on at least three occasions over the past decade, coroners’ juries have recommended stripping sexual offenders of their rights and locking them up for the rest of their lives. The jury in the Stephenson case, for one, made 71 recommendations designed to increase public safety. Said jury foreman Daniel Nixon: “It’s time for the pendulum to start swinging the other way.”

The Stephenson jury urged the National Parole Board and Correctional Services Canada, the branch of the solicitor general’s department that oversees the country’s 58 federal prisons, to adopt new mandates that put the protection of society ahead of the need to uphold the rights of violent offenders. To accomplish that goal, the jury recommended that the federal government adopt legislation similar to a sexual predator law that has been in use in Washington state since 1990. That law allows authorities to keep offenders in prison longer and to

monitor them after their release (page 21).

Although Lewis stops short of promising a wholesale adoption of the Washington law, he says that he is examining ways to include some of the Stephenson jury’s recommendations. “I believe there is a gap in the system,” said Lewis. “There are some offenders who cannot be treated.” The minister added that Canadians want increased protection, even if it means that more violent offenders die in jail. Said Lewis: “I’m trying to correct an imbalance.”

The five Conservatives, two Liberals and one New Democrat on the justice committee, however, may push Lewis to go further than he intends. While most of the debate so far has swirled around men who rape and kill, the justice committee wants Ottawa to expand its definition of violence. In a recommendation sent to Lewis on Feb. 10, the committee wrote that men who fondle children, but do not physically harm them, should be categorized as violent sexual offenders and liable for harsher sentences and much more restricted release conditions.

Thomas Wappel, one of the Liberal MPs on the committee, pressed to have the category for violence expanded, arguing that abused children often suffer serious psychological harm.

Said Lewis: “I think they are on the right track. It seems to me that fondling a child may cause serious harm.”

Expanding the definition of violent offenders to include those who cause psychological harm would have grave implications for criminals such as Wray Budreo. A 48-year-old convicted sex offender, Budreo has a history of molesting children stretching back over 30 years. The National Parole Board announced late last year that it planned to release Budreo in Toronto. Noting that Budreo had never physically harmed a child—his convictions were limited to improper fondling—the board agreed to let him out of prison after he had served two-thirds of his current six-year sentence.

The board reversed its decision in December after a public outcry; as a result, he will remain in jail until his sentence expires on Nov. 20, 1994.

Public concern about violence has already led Ottawa to tighten the rules governing how and when criminals are released from prison. Under the Corrections and Conditional Release Act, which came into effect on Nov. 1, a judge can order a violent offender to serve at least half of his sentence before seeking parole. Before, offenders had to serve a minimum of one-third of their sentences before being eligible for parole. The new law also added sexual offences against children to the category of crimes for which offenders can be ordered to serve their entire sentences without parole. Previously, only repeat violent offenders could be ordered to serve out their entire sentences.

Pressure: Despite the concern for public safety, some experts say that the attempt to caution residents of a community that a former sexual offender is in their midst may backfire. Barbaree, whose clinic treats sexual offenders with drugs and aversion therapy, said that only a small number of the 160 sexual offenders who have been released from the clinic have gone on to commit similar crimes. But the rate of repeat offences could increase if released convicts feel themselves the targets of intense public scrutiny and scorn, he said. Declared Barbaree: “It heightens the pressure they are under at a time when they should be building new lives for themselves.”

Still, the move to identify sexual offenders appears to be spreading. In January, RCMP officials told local politicians in White Rock, B.C., that a child molester, twice convicted of sexually molesting young boys, had moved into the community. The man, a former teacher, was sentenced to 30 months in 1987 for sexually assaulting his stepson. Earlier, he had admitted to dozens of incidents of child molestation. Amid a public outcry, White Rock Mayor Gordon Hogg asked provincial Attorney General Colin Gableman whether the man could be legally identified. The attorney general advised against the move, and noted that the judge

in the 1987 case had banned publication of his name to protect the victim’s identity.

Publishing the names of some sexual offenders also troubles Frederick Gibson, chairman of the National Parole Board in Ottawa. Gibson said that the 45 full-time members of the parole board, many of whom are political appointees, are aware of the new get-tough mood in the country and will likely take that into account in considering applications for release. But often, he said, it is preferable to let offenders serve part of their time under supervision in a halfway house, rather than spending the entire sentence behind bars and then abruptly re-

entering society to live wherever they choose. Gibson also says that police forces may yet regret the decision to name some previous sexual offenders. “God help them when they start down that road, and they don’t publish the name of the offender who then hurts someone,” he said.

In fact, the mere possibility that sexual offenders would be named may already have led to a suicide in Ottawa. Police in the capital have threatened to release the names of six offenders released into the area in the last four months. They included two rapists, a pedophile and three men convicted of violent crimes. One of the six, Ronald King, 36, who was jailed for attempted murder, unlawful confinement and three charges of assault in 1988 for trying to murder his estranged wife and stabbing a neighbor during a hostage-taking, hanged himself earlier this month. According to lawyer Ronald Guertin, who is acting for King’s family, there was a link between Flanagan’s statements and his client’s suicide. Guertin says that the family told the police that King feared being named. Said Guertin:

“The police attitude is, ‘So what if these guys kill themselves—society is better off without them.’ ”

At the same time, Greenspan says that he doubts that publishing the names of offenders increases public security. In the case of convicted pedophile Morgan, who decided to remain in prison after police issued a public warning that he was about to be released, Greenspan questioned whether he was even dangerous. He added that once Morgan serves his full sentence he can move anywhere he wants, including back to Peterborough. “He would return at his own choosing,” said Greenspan.

“And they would not know that he was there.”

Meanwhile, the debate over the treatment of sex offenders is taking on distinctly political overtones in the run-up to the next federal election, which must be held this year.

Preston Manning, leader of the Cal-

gary-based Reform Party of Canada, is providing much of the impetus for the debate. After waging a successful battle on the No side in the Oct. 26 constitutional referendum, Manning began to play down the importance of such causes as Senate reform, while emphasizing the need for stronger law-and-order measures. If his party takes power, Manning says, he would organize a national referendum on capital

punishment, which he says he supports in very limited circumstances. The Reform party has also promised to eliminate the automatic right to parole for criminals who serve parts of their sentences. By trying too hard to defend the rights of some dangerous criminals, Manning said, “You end up failing twice, instead of once.”

Laws: He added that Lewis’s vows to tighten Canada’s laws on sexual offenders may reflect the fact that the Reform party has made deep inroads into the minister’s central Ontario riding. But the solicitor general scoffed at Manning’s anticrime proposals. “Manning thinks that if you bring back the death penalty, you will have law and order everywhere,” Lewis said. “But if that was the case, the United States would not have the highest incarceration rate in the free world.” Still, Lewis acknowledged that the question of how to treat violent criminals and sexual offenders “will be an issue in the next election.”

The flurry of arrests, demonstrations and official reports about sex offenders in the past few weeks suggests that Lewis is right. According to a Maclean ’s/CTV poll in January, 71 per cent of adult Canadians living in cities of more than one million people say that they feel more threatened by crime now than

they did five years ago. The idea

that repeat sexual offenders should be detained indefinitely appears to strike many people as a reasonable trade-off. And few would likely argue with Robert Leech’s plea to spend the rest of his life in jail.

TOM FENNELL

GLEN ALLEN

HAL QUINN