Rapist’s case a win for public safety

Hey there, time traveller!
This article was published 13/06/2023 (877 days ago), so information in it may no longer be current.

Sometimes the justice system gets it right. The case of convicted rapist Jason Hikoalok, who was deemed a dangerous offender in court Monday and handed an indeterminate sentence, is a case in point.

Hikoalok, 43, a repeat offender who has refused treatment and rehabilitative programming after raping a 19-year-old woman in her Wolseley home in 2017, could spend the rest of his life behind bars. The question is: why doesn’t the justice system get it right more often when it comes to protecting the public from dangerous, violent offenders such as Hikoalok, who refuse to take steps to turn their lives around?

Hikoalok has a long history of criminal behaviour. He was released from prison in 2006 after serving an eight-year sentence for sexually assaulting a four-year-old girl and a five-year-old girl. He was rearrested for parole violations.

Hikoalok has spent most of his adult life behind bars and refuses to take responsibility for his actions. He has had numerous opportunities to undergo sexual offender treatment and other programming to confront the childhood trauma that contributed to his life of crime, but he has refused.

Instead, he raped a young woman in 2017. He continues to reject rehabilitative assistance to help him deal with his deep-seated psychological dysfunction and has resigned himself to be a serious threat to society.

The prosecution branch rightly sought dangerous offender status for Hikoalok to protect further potential victims, a designation Court of King’s Bench Justice Vic Toews accepted this week.

“As the Crown points out, while it is impossible to prove that Mr. Hikoalok will reoffend, the evidence establishes beyond a reasonable doubt that there is a likelihood that Mr. Hikoalok will cause death or injury to others through failure to restrain his behaviour in the future,” wrote Toews in a 45-page report.

So, why isn’t this designation, which has been on the books since 1977 and has undergone several changes, not used more often for the most violent dangerous offenders?

Part of it is resources. Assembling the evidence to apply for dangerous offender status requires an enormous amount of work by police and prosecutors. It is up to the Crown to seek the designation and to prove beyond a reasonable doubt that the offender meets the criteria set out in the criminal code. The bar is fairly high, but it is not insurmountable.

To be deemed a dangerous offender, the person must be convicted of a “serious personal injury offence,” as listed in the criminal code, and constitute “a threat to the life, safety or physical or mental well-being of other persons.”

The criteria may include “persistent aggressive behaviour by the offender” who shows “a substantial degree of indifference” to their victims.

The person does not have to be a repeat offender to meet the criteria. The designation could be based on a single conviction “that is of such a brutal nature as to compel the conclusion that the offender’s behaviour in the future is unlikely to be inhibited by normal standards of behavioural restraint.”

Basically the court has to agree that keeping the offender locked up for life (unless the person can demonstrate to a parole board at a later date why they should be released) is the only reasonable way to keep society safe.

It is an extreme option that only applies to a small minority of offenders. But it is available to prosecutors and the courts and has been upheld as constitutional by the Supreme Court of Canada. The top court has ruled multiple times that an indeterminate sentence for dangerous offender status does not violate the Charter of Rights and Freedoms.

Part of the reason for that is those designated as dangerous offenders have a way out if they choose to avail themselves of treatment and rehabilitative programming. Only a small minority have succeeded, but conditional release for dangerous offenders is possible.

Also, courts have discretion on whether to impose an indeterminate sentence or something less onerous, such as intense supervision in the community.

That discretion was expanded in 2008 (by a federal Conservative government) which allows the court to impose less restrictive measures if it is satisfied it will adequately protect the public. There is flexibility in the system.

“Since the 2008 amendments, indeterminate detention is no longer automatic for a dangerous offender,” the Supreme Court wrote in 2017. “Rather, this sentence is only one option among others available.”

Critics often complain the justice system is a revolving door for serious, repeat violent offenders. The reality is, there are tools available to keep the most dangerous offenders behind bars for life if necessary, or to better manage their risk in the community with intense supervision.

It’s up to police and the prosecutions branch to use those tools and take cases to court, and for governments to ensure they have the resources to do so.

tom.brodbeck@freepress.mb.ca