Canada’s dangerous offender law is reserved for Canada’s most violent criminals and sexual predators. It has its roots in the 1947 Habitual Offender Act which dealt solely with offenders with lengthy criminal records, and the 1948 Criminal Sexual Psychopath law.
In what may be a first, a perpetrator of domestic abuse has been declared a dangerous offender, permitting the court to sentence him to an indeterminate sentence. In R. v. Malakpour 2018 BCCA 254, after convictions for criminal harassment, assault with a weapon, assault causing bodily harm and kidnapping, all directed at his wife, Mr. Malakpour’s designation was upheld by the British Columbia Court of Appeal.
This decision is unusual for the nature of the offences and for the fact that Mr. Malakpour, unlike most offenders castigated as a “dangerous offender”, did not lead a criminal lifestyle or have a lengthy criminal record.
However, after their marriage in Iran and immigration to Canada, Mr. Malakpour’s wife became “westernized”, particularly compared to her husband who was a strict follower of Islam and Sharia law, and they ultimately divorced.
He took the view that he was still married to his wife under Sharia law despite their Canadian divorce in 2006.
His first offences occurred after his wife left the family home when he made thousands of abusive phone calls to his wife’s home and workplace, harassment that caused his wife’s employer to put in a second phone line to conduct business. The calls included death threats. He was sentenced to 30 months incarceration for conduct described as ““unremitting, exceptionally intrusive, and frightening” and not deterred by police intervention or court order.” R. v. Malakpour 2008 BCCA 326.
While on parole in 2009 further offences occurred, including his unlawful departure from BC to Montreal from which he made phone calls threatening his wife, her employer, and the judge who presided over this first case. After a psychiatric evaluation he was diagnosed with a personality disorder with narcissistic and anti-social traits, coupled with cultural factors, and sentenced to two years less a day and 3 years probation.
However, his dangerous offender classification resulted from criminal conduct in 2012 when he located his wife in her underground parking lot and demanded to know why she had left him and had another man in her life. He told her that everybody was laughing at him, and calling him a “pimp” in Farsi.
He held a pair of wire cutters to her throat, and told her, “don’t scream or I will cut your throat”. He punched her about 10 times, mostly in her face, using his fists and the wire cutters, causing significant bruising.
On September 11, 2012, Mr. Malakpour was found guilty of assault with a weapon, assault causing bodily harm, criminal harassment and kidnapping of his former wife, as well as uttering threats to her, to her male friend, and to the previous judge, and assaulting a police officer.
In order to designate Mr. Malakpour a dangerous offender, the sentencing judge had to find:
(1) the predicate offences were serious personal injury offences;
(2) Mr. Malakpour constituted a threat to the life, safety or physical or mental well-being of other persons;
(3) there was a pattern of repetitive behaviour, of which the predicate offences formed a part, showing a failure to restrain his behaviour;
(4) a likelihood of causing death, injury or severe psychological damage to other persons through failure in the future to restrain his behaviour.
The Court of Appeal upheld the designation, but granted the appeal with respect to his sentence, holding that the trial judge erred in ordering an indeterminate sentence. They found that the goal of public protection could be achieved by a sentence of 10.5 years less credit for time served, followed by a 10-year supervision order, with strict terms.
The trial judge captured the essence of Mr. Malakpour when he said:
“He denies the legitimacy of any Canadian court to control him and in particular to interfere with his control over his wife, whom he declares must obey him. He continuously expresses that his relationship is a private matter with his wife. It is not the business of the court, the Crown or the police. He will not obey court orders that purport to limit his contact with his ex-wife: instead he says it is his right to contact his “wife”. He denies that any of the previous convictions are legitimate and continues to dispute that he has committed any offences…”
Lawdiva aka Georgialee Lang