Procedure in a LTO/DO Designation Hearing

From Criminal Law Notebook

General Principles

A dangerous offender designation is available under s. 753 while a long term offender designation is available under s. 753.1.

The DO scheme has two steps. First, the court must determine if the offender must be a designated DO under s. 753(1). Second, the judge must determine what the appropriate sentence is under s. 753(4) and (4.1).[1]

Jurisdiction

A judge of a provincial court or a superior court judge may issue a LTO or DO order.[2]

  1. ↑ R v Runions, 2023 ABCA 29 (CanLII) (working hyperlinks pending), at para 9 ("The statutory scheme governing dangerous offender sentencing has two steps. First, the offender must be designated as a dangerous offender under s 753(1) of the Criminal Code. Second, the sentencing judge must determine the appropriate sentence under ss 753(4) and (4.1):")
    R v Zoe, 2020 NWTCA 1 (CanLII) (working hyperlinks pending)Template:TheCourtNWTCA, at para 20
  2. ↑ See s. 752 defining "court" as a "court by which an offender in relation to whom an application under this Part is made was convicted, or a superior court of criminal jurisdiction;"

Hearing

Timing of DO Application

753
[omitted (1) and (1.1)]

Time for making application

(2) An application under subsection (1) [application for finding that an offender is a dangerous offender] must be made before sentence is imposed on the offender unless

(a) before the imposition of sentence, the prosecutor gives notice to the offender of a possible intention to make an application under section 752.1 [application for remand for assessment] and an application under subsection (1) [application for finding that an offender is a dangerous offender] not later than six months after that imposition; and
(b) at the time of the application under subsection (1) [application for finding that an offender is a dangerous offender] that is not later than six months after the imposition of sentence, it is shown that relevant evidence that was not reasonably available to the prosecutor at the time of the imposition of sentence became available in the interim.

[omitted (3), (4), (4.1), (4.2), (5) and (6)]
R.S., 1985, c. C-46, s. 753; 1997, c. 17, s. 4; 2008, c. 6, s. 42.
[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 753(2)

Application

Hearing of application

754 (1) With the exception of an application for remand for assessment, the court may not hear an application made under this Part unless

(a) the Attorney General of the province in which the offender was tried has, either before or after the making of the application, consented to the application;
(b) at least seven days notice has been given to the offender by the prosecutor, following the making of the application, outlining the basis on which it is intended to found the application; and
(c) a copy of the notice has been filed with the clerk of the court or the provincial court judge, as the case may be.
By court alone

(2) An application under this Part [Pt. XXIV – Dangerous Offenders and Long-Term Offenders (ss. 752 to 761)] shall be heard and determined by the court without a jury.

When proof unnecessary

(3) For the purposes of an application under this Part [Pt. XXIV – Dangerous Offenders and Long-Term Offenders (ss. 752 to 761)], where an offender admits any allegations contained in the notice referred to in paragraph (1)(b) [hearing of application – ], no proof of those allegations is required.

Proof of consent

(4) The production of a document purporting to contain any nomination or consent that may be made or given by the Attorney General under this Part [Pt. XXIV – Dangerous Offenders and Long-Term Offenders (ss. 752 to 761)] and purporting to be signed by the Attorney General is, in the absence of any evidence to the contrary, proof of that nomination or consent without proof of the signature or the official character of the person appearing to have signed the document.
R.S., 1985, c. C-46, s. 754; R.S., 1985, c. 27 (1st Supp.), s. 203; 2008, c. 6, s. 48.
[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 754(1), (2), (3), and (4)

Evidence in Hearing

Expert Evidence

Before any findings can be made under s. 753(1)(a)(i) or (ii), the Court must consider and weigh expert opinion evidence relating to risk of re-offence along with all other evidence adduced.[1]

Victim Evidence
Victim evidence

753.02 Any evidence given during the hearing of an application made under subsection 753(1) [application for finding that an offender is a dangerous offender] by a victim of an offence for which the offender was convicted is deemed also to have been given during any hearing held with respect to the offender under paragraph 753(5)(a) [if offender not found to be dangerous offender – make long-term offender order] or subsection 753.01(5) [sentence of indeterminate detention] or (6) [new long-term supervision].

2008, c. 6, s. 43.
[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 753.02

Proof of Criminal Records

The crown may rely on court records to prove the circumstances surrounding the prior offences as long as they are from a "reliable and trustworthy" source.[2]

Use of evidence excluded at trial
Evidence that was excluded under section 24(2) of the charter due to a constitutional violation cannot then be used at a subsequent dangerous offender hearing.[3]

Character Evidence
Evidence of character

757 Without prejudice to the right of the offender to tender evidence as to their character and repute, if the court thinks fit, evidence of character and repute may be admitted

(a) on the question of whether the offender is or is not a dangerous offender or a long-term offender; and
(b) in connection with a sentence to be imposed or an order to be made under this Part [Pt. XXIV – Dangerous Offenders and Long-Term Offenders (ss. 752 to 761)].

R.S., 1985, c. C-46, s. 757; 1997, c. 17, s. 5; 2008, c. 6, s. 50.
[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 757

  1. ↑ R v Montgrand, 2017 SKCA 49 (CanLII), 352 CCC (3d) 485, per Caldwell JA, at para 15
  2. ↑ R v Ziegler, 2012 BCCA 353 (CanLII), 327 BCAC 53, per Neilson JA , at para 73
  3. ↑ R v Ricciardi, 2018 ONSC 445 (CanLII), per Di Luca J

Presence of the Accused at the Hearing

Presence of accused at hearing of application

758 (1) The offender shall be present at the hearing of the application under this Part [Pt. XXIV – Dangerous Offenders and Long-Term Offenders (ss. 752 to 761)] and if at the time the application is to be heard

(a) he is confined in a prison, the court may order, in writing, the person having the custody of the accused to bring him before the court; or
(b) he is not confined in a prison, the court shall issue a summons or a warrant to compel the accused to attend before the court and the provisions of Part XVI [Pt. XVI – Compelling Appearance of an Accused Before a Justice and Interim Release (ss. 493 to 529.5)] relating to summons and warrant are applicable with such modifications as the circumstances require.
Exception

(2) Notwithstanding subsection (1) [presence of accused at hearing of application], the court may

(a) cause the offender to be removed and to be kept out of court, where he misconducts himself by interrupting the proceedings so that to continue the proceedings in his presence would not be feasible; or
(b) permit the offender to be out of court during the whole or any part of the hearing on such conditions as the court considers proper.

R.S., c. C-34, s. 693; 1976-77, c. 53, s. 14.
[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 758(1) and (2)

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