Appellate Review of an LTO or DO Designation

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Appellate Review

An accused who is subject to a dangerous offender order may appeal under s. 759(1) on grounds of law, fact, or mixed fact and law. The appeal is different from a sentence appeal. The reviewing court looks at "legal errors and whether the dangerous offender designation was reasonable".[1]

A dangerous offender designation is reviewable on a standard of reasonableness.[2]It is also reviewable on correctness for errors of law.[3]

The appellate court cannot have a "fresh look" at the designation and deference must be paid to the sentencing judge's findings.[4]

  1. R v Allan, 2015 BCCA 229 (CanLII), per Savage JA, at para 3
    R v Currie, 1997 CanLII 347 (SCC), [1997] 2 SCR 260, per Lamer CJ, at para 33
  2. R v Boutilier, 2016 BCCA 235 (CanLII), per D Smith JA, at para 86
    Currie, supra, at para 33
  3. R v Bragg, 2015 BCCA 498 (CanLII), per MacKenzie JA, at paras 19 to 22
    R v Sawyer, 2015 ONCA 602 (CanLII), per Tulloch JA, at paras 26 to 29
  4. Allan, supra, at para 3

Appeal of Finding of Dangerousness

A finding of "dangerousness" is a finding of fact.[1]

Appeal — offender

759 (1) An offender who is found to be a dangerous offender or a long-term offender may appeal to the court of appeal from a decision made under this Part [Pt. XXIV – Dangerous Offenders and Long-Term Offenders (s. 752 to 761)] on any ground of law or fact or mixed law and fact.

(1.1) [Repealed, 2008, c. 6, s. 51]

Appeal — Attorney General

(2) The Attorney General may appeal to the court of appeal from a decision made under this Part [Pt. XXIV – Dangerous Offenders and Long-Term Offenders (s. 752 to 761)] on any ground of law.

Disposition of appeal

(3) The court of appeal may

(a) allow the appeal and
(i) find that an offender is or is not a dangerous offender or a long-term offender or impose a sentence that may be imposed or an order that may be made by the trial court under this Part [Pt. XXIV – Dangerous Offenders and Long-Term Offenders (s. 752 to 761)], or
(ii) order a new hearing, with any directions that the court considers appropriate; or
(b) dismiss the appeal.

(3.1) and (3.2) [Repealed, 2008, c. 6, s. 51]

Effect of decision

(4) A decision of the court of appeal has the same force and effect as if it were a decision of the trial court.
(4.1) to (5) [Repealed, 2008, c. 6, s. 51]

Commencement of sentence

(6) Notwithstanding subsection 719(1) [commencement of sentence], a sentence imposed on an offender by the court of appeal pursuant to this section shall be deemed to have commenced when the offender was sentenced by the court by which he was convicted.

Part XXI applies re appeals

(7) The provisions of Part XXI [Pt. XXI – Appeals – Indictable Offences (s. 673 to 696)] with respect to procedure on appeals apply, with such modifications as the circumstances require, to appeals under this section.

R.S., 1985, c. C-46, s. 759; 1995, c. 22, s. 10; 1997, c. 17, s. 6; 2008, c. 6, s. 51.
[annotation(s) added]

CCC


Note up: 759(1), (2), (3), (4), (6), and (7)

  1. R v Lyons, [1987] 2 SCR 309, 1987 CanLII 25 (SCC), per La Forest J, at p. 364
    R v Boutilier, 2016 BCCA 235 (CanLII), per D Smith JA, at para 86