Police mull changes to sex offender policy

By Tamsin McMahon
Local News - Saturday, December 04, 2004 @ 07:00

Kingston Police are considering changing the criteria they use to decide whether to publicly release information about violent criminals living in the community.

The move is in preparation for a rise in the number of long-term offenders released from prison.

“I think we should have a policy on how we do that,” said Det. Gerry Doherty, who’s in charge of reviewing high-risk offenders in the community.

“To date, we just do it on a case-by-case basis.”

Historically, police haven’t handed out much information on offenders who settle in the city.

They’ve issued just three public alerts – including one in August about Philip Foremsky, a 22-year-old sex offender convicted of a spate of campus attacks on women at a Toronto university.

Under current police policy, Doherty looks at each case individually. He talks with the offender and conducts a roundtable discussion at the department to decide what sort of danger the offender presents to community.

The final decision on whether to release an offender’s name and picture lies with Police Chief Bill Closs.

If an offender is willing to work with police, to undergo treatment and to abide by the conditions of his release, chances are citizens will never hear about him.

That was until last month, when Corrections Canada decided to place two long-term sexual offenders in a Kingston halfway house.

Scott Morley Whalen, 36, and David Todd Fox, 41, were destined for Portsmouth Community Correctional Centre in November.

Both have a history of sex crimes and were declared long-term offenders by the courts.

The federal government created the designation in 1997 to deal with high-risk criminals who would have either been released at the end of their sentences without any supervision or forced to stay behind bars indefinitely.

The order means courts can compel offenders to be supervised in the community for up to 10 years after they are released from prison.

Corrections diverted Whalen to a Toronto halfway house at the last minute. He never lived at the Portsmouth halfway house.

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Fox, who’s mentally challenged, lasted two weeks before he was sent back the Regional Treatment Centre at Kingston Penitentiary after staff at the halfway house said his behaviour was deteriorating.

Both Fox’s lawyer and the halfway house’s parole supervisor had warned that the centre on Portsmouth Avenue was not equipped to handle Fox’s many physical and psychiatric needs.

It was partly Doherty’s lengthy discussion with David Fox that led him to recommend police keep Fox’s release in Kingston under wraps.

Fox, who has the mentality of a six-year-old, told police he didn’t want to go back to prison.

“If I would have thought he would just walk out and arbitrarily reoffend there would be no doubt in my mind that we would have released his picture,” Doherty said.

“Maybe next time around the criteria will be changed and we’ll say we’re just going to release it anyway, whether [Corrections] likes it, or whether the people like it. So people can have a dozen pictures on their fridge in the morning.”

Kingston Police have since been in contact with police in Hamilton, Toronto and Kitchener to see what criteria they use to release information.

Doherty expected Kingston Police would soon come up with its own set of criteria.

Any criminal who meets a number of requirements, such as committing a violent sexual offence, would automatically have his picture publicly released.

It would mean police would likely release more warnings. The alerts would fulfil the police duty to keep the public informed, but they are no guarantee of community safety, Doherty warned.

People are already starting to forget about the alert police issued in August on Philip Foremsky, he said.

There are about 100 registered sex offenders living in the area who check in with Kingston Police at least once a year. Just as many don’t report to police because they were convicted before legislation was enacted in 2000 to create a sex offender registry.

Releasing information on offenders “makes it easier on a guy like me, easier on the parents,” Doherty said. “Maybe to a point. But it comes back to the point that we should be parenting our children anyway to the fact that we’re living in a community where there are lots of people who get out of prison.

“We know there are a lot of people who get out who have committed sex offences. So I hope we’re educating our children to be cautious of that and not just looking for one guy or two people, when there could be a half-dozen or dozen who live within 10 blocks anyway.”

As many as 1,000 people are expected to be designated long-term offenders in Canada over the next two years.

The National Parole Board has seen a rise in the number of long-term offenders coming before the board in Ontario, from one in 2000 to 12 this year.

“It’s increasing markedly in terms of cases where supervision is required,” said regional manager John Wilson.

The long-term supervision orders present a potential legal nightmare for the board, he said.

A judge decides whether someone is a long-term offender and how long he will be supervised after finishing his sentence.

The parole board is able only to impose conditions, such as forcing offenders to live in a halfway house or mental health facility, and restricting when they can leave their residence.

The point of a long-term supervision order is to give offenders a chance to live in the community, but under close watch.

By ordering an offender to live in a halfway house – in David Fox’s case he was under house arrest in the Portsmouth Centre – the parole board is essentially forcing an offender back into custody even when he has finished his sentence, Wilson said.

Courts might soon be asked to consider whether the parole board’s decision constituted an illegal infringement on the offender’s right to live in the community, Wilson said.

A ruling in favour of an offender could mean the board would no longer be allowed to impose residency conditions on long-term offenders, or could do it only for a short time.

While he doesn’t expect David Fox would challenge the parole board decision, Wilson said the board could face a legal challenge in the future.

“Right now, we know we are treading dangerous waters, put it that way,” he said. “It is just a matter of time before some inmate tests us on that.”