View source for Requirements for a Dangerous Offender Designation

{{Currency2|January|2021}}
{{LevelZero}}{{HeaderLTODO}}
==General Principles==
{{seealso|Consequences of a Dangerous Offender Designation}}
Part XXIV of the Code governs the procedures for designating a person as a "dangerous offender."<ref>
{{CanLIIR|Straub|jlwgk|2022 ONCA 47 (CanLII)}}{{perONCA-H|Watt JA}}{{atL|jlwgk|52}}
</ref>

Under s. 753, the Court may make an order declaring an accused a "dangerous offender" requiring the accused to serve an indeterminate sentence as opposed to a determinate sentence to an index offence.

There are two stages to the process of determining whether a person is a dangerous offender. First there is the "designation phase", governed by s. 753(1), which sets out the statutory preconditions to declare someone a dangerous offender. Second, there is the "penalty phase", governed by s. 753(4) and (4.1), which determines the sentencing options for the court.<ref>
{{ibid1|Straub}}{{atL|jlwgk|52}}<br>
{{CanLIIRP|Boutilier|hpg4c|2017 SCC 64 (CanLII)|[2017] 2 SCR 936}}{{perSCC|Côté J}}{{atsL|hpg4c|13| to 15}}<br>
{{CanLIIRP|Boutilier|grx23|2016 BCCA 235 (CanLII)|336 CCC (3d) 293}}{{perBCCA|Smith J}}{{atL|grx23|3}} appealed to SCC<br>
</ref>

; Purpose
The purpose of the dangerous offender order is to protect the public. It was designed “to carefully define a very small group of offenders whose personal characteristics and particular circumstances militate strenuously in favour of preventative incarceration”<ref>
{{CanLIIRP|Johnson|51pl|2003 SCC 46 (CanLII)|[2003] 2 SCR 357}}{{perSCC|Iacobucci and Arbour JJ}}{{atL|51pl|19}}</ref>

; Constitutionality
Section 753(1) that authorizes the declaration of a dangerous offender does not violate s. 7 of the Charter.<ref>
{{supra1|Boutilier}}<br>
</ref>

; Burden
The Crown has the burden to establish each statutory requirement of dangerousness on a standard of beyond a reasonable doubt.<ref>
{{supra1|Boutilier}}{{atL|grx23|3}}<Br>
{{CanLIIRP|Wormell|1l02b|2005 BCCA 328 (CanLII)|198 CCC (3d) 252}}{{perBCCA|Southin JA}}<br>
{{CanLIIRP|Pike|2ck9w|2010 BCCA 401 (CanLII)|260 CCC (3d) 68}}{{perBCCA|Levine JA}}<br>
</ref>

; Relationship with Sentencing Provisions
The dangerous offender proceeding are a form of sentencing proceeding and require the judge to apply the same objectives, pricnepsl and guidelines in Part XXIII.<REf>
Straub at para 59
</ref>

{{Reflist|2}}

==Requirements for a Dangerous Offender Designation==

{{Quote box
|width = 35em
|bgcolor = #c6dbf7
|align = right
|quote = 
The court ''may'' declare an offender a “dangerous offender” where:
# the offender is convicted of a serious personal injury offender and constitutes an ongoing threat on the basis of:
## a “repetitive behavior” showing a failure of restraint and “likelihood” of causing injury or worse 
## a “pattern of persistent aggressive behaviour” that shows “a substantial degree of indifference” to the “reasonably foreseeable consequences” of his behaviour; or
## in the “brutal nature” of the offence, the offender is not likely to be inhibited by the normal standards of behavioral constraints” or 
# the offence is a serous personal injury offence and “has shown a failure to control his or her sexual impulses and a likelihood of causing injury”.
|source = s. 753
}}

Section 753(1) sets out the requirements before an offender can be designated a "dangerous offender".

{{quotation2|
; Application for finding that an offender is a dangerous offender
753 (1) On application made under this Part {{AnnSec|Part XXIV}} after an assessment report is filed under subsection 752.1(2) {{AnnSec7|752.1(2)}}, the court shall find the offender to be a dangerous offender if it is satisfied
:(a) that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (a) of the definition of that expression in section 752 {{AnnSec7|752}} and the offender constitutes a threat to the life, safety or physical or mental well-being of other persons on the basis of evidence establishing
::(i) a pattern of repetitive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a failure to restrain his or her behaviour and a likelihood of causing death or injury to other persons, or inflicting severe psychological damage on other persons, through failure in the future to restrain his or her behaviour,
::(ii) a pattern of persistent aggressive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a substantial degree of indifference on the part of the offender respecting the reasonably foreseeable consequences to other persons of his or her behaviour, or
::(iii) any behaviour by the offender, associated with the offence for which he or she has been convicted, 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; or
:(b) that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (b) of the definition of that expression in section 752 {{AnnSec7|752}} and the offender, by his or her conduct in any sexual matter including that involved in the commission of the offence for which he or she has been convicted, has shown a failure to control his or her sexual impulses and a likelihood of causing injury, pain or other evil to other persons through failure in the future to control his or her sexual impulses.
{{removed|(1.1), (2), (3), (4), (4.1), (4.2) and (5)}}
(6) [Repealed, 2008, c. 6, s. 42]<br>
R.S., {{LegHistory80s|1985, c. C-46}}, s. 753; 
{{LegHistory90s|1997, c. 17}}, s. 4; 
{{LegHistory00s|2008, c. 6}}, s. 42.
|{{CCCSec2|753}}
|{{NoteUp|753|1}}
}}

There are two ways to establish the criteria. The difference depends on which type of serious personal injury (SPI) offence has been established by the index offence. The first is of a more general nature of unlawfulness while the second targets sexual behaviour.

Section 753 does not preclude the sentencing judge from considering evidence relating to the prospects of future treatment when considering a dangerous offender designation.<ref>
{{CanLIIRP|Boutilier|hpg4c|2017 SCC 64 (CanLII)|[2017] 2 SCR 936}}{{perSCC|Cote J}}{{atsL|grx23|21| to 23}}
</ref>

; Burden
The burden is upon the crown to establish the necessary elements under s. 753(1)(a)(i) and (ii) or 753(1)(b) of a DO designation beyond a reasonable doubt. The burden must be proven beyond a reasonable doubt that the accused. The burden never switches to the accused.<ref> 
{{CanLIIRP|Carlton|fp6c0|1981 ABCA 220 (CanLII)|[1981] 69 CCC (2d) 1 (ABCA)}}{{perABCA|McGillivray JA}} (6:1)</ref>

{{reflist|2}}
===Dangerous Offender: General Violence===
<!--
; Designation Based on Ongoing Risk of Violence (s. 753(1)(a))
Under the first branch of s. 753(1)(a) the Crown must prove that:
# the index offence is a serious personal injury offence as found in s. 752(a), namely an indictable offence with a maximum penalty of 10 years or more<ref>see [[List of Hybrid Offences]] and [[List of Straight Indictable Offences]]</ref> that "use[d] or attempted use of violence against another person, or ...conduct endangering or likely to endanger the life or safety... or inflicting or likely to inflict severe psychological damage."<ref>
See [[Serious Personal Injury Offences]]<br></ref>
# the offender constitutes a "threat to the life, safety or physical or mental well-being of other persons";
# the basis for the threat is either:
## there was a "pattern of repetitive behaviour" that shows a "failure to retain [their] behaviour" ''and'' there is a "likelihood of causing death or injury... or inflicting severe psychological damage on other persons" on account of the lack of restraint (s. 753(1)(a)(i))
##there was a "pattern of persistent aggressive behaviour" that shows a "substantial degree of indifference" to "reasonably foreseeable consequences ... of [their] behaviour" (s. 753(1)(a)(ii))
## "any behaviour ... that is of such a brutal nature as to compel the conclusion that [their] behaviour in the future is unlikely to be inhibited by normal standards of behavioural restraint" (s. 753(1)(a)(iii))
-->

An SPI offence under s. 752(a) requires either some form of violence or risk of harm (see Serious Personal Injury Offences below for details). This type of SPI offence engages s. 753(1)(a), which requires that the "offender [constitute] a threat to the life, safety or physical or mental well-being of other persons" by reason of a "repetitive", "persistent", or "brutal" behaviour.

The criteria require:<ref>
{{supra1|Boutilier}}{{atL|grx23|10}}<br>
{{CanLIIRP|Pike|2ck9w|2010 BCCA 401 (CanLII)|260 CCC (3d) 68}}{{perBCCA|Levine JA}}{{atL|2ck9w|90}}<br>
</ref>
# pattern "repetitive dangerous behaviour";
# of which the predicate offence(s) form a part;
# that shows a failure to restrain the offender's behaviour in the past;  and
# "in such a way as to provide a basis to predict the likelihood of the same behaviour occurring in the future".

{{reflist|2}}

===Dangerous Offender: Sexual Violence===

; Designation Based on Ongoing Risk of Sexual Violence (s. 753(1)(b))
Under the second branch found in s. 753(1)(b), the Crown must prove that:
# the offence is a serious personal injury offence as found in s. 752(b), namely an offence under s. 271 ([[Sexual Assault (Offence)]]), 272 ([[Sexual Assault Causing Bodily Harm (Offence)]] and [[Sexual Assault with a Weapon (Offence)]]), or 273 ([[Aggravated Sexual Assault (Offence)]])
# the offender "has shown a failure to control his or her sexual impulses and a likelihood of causing injury, pain or other evil ... through failure in the future to control his or her sexual impulses."(s. 753(1)(b))

An SPI offence under s. 752(b) requires the index offence be a type of sexual assault, sexual assault with a weapon, threats to a third party or causing bodily harm, or aggravated sexual assault. (see Serious Personal Injury Offences below for details). This type of SPI offence engages s. 753(1)(b), which requires that the offender "has shown a failure to control his or her sexual impulses and a likelihood of causing injury, pain or other evil to other persons through failure in the future to control his or her sexual impulses".

Before considering whether the offender is a Dangerous Offender, the Court must consider whether the accused is an LTO.<ref>
see {{CanLIIRP|Johnson|51pl|2003 SCC 46 (CanLII)|[2003] 2 SCR 357}}{{perSCC|Iacobucci and Arbour JJ}}</ref>

It is only where an LTO is not an appropriate disposition, in light of sentencing principles of s. 718, that the court may consider a DO.

The requirement of "any sexual manner" is not limited to the predicate offence and can include any prior past sexual acts that demonstrate present risks.<Ref>
{{CanLIIRP|Currie|1fr27|1997 CanLII 347 (SCC)|[1997] 2 SCR 260}}{{perSCC|Lamer CJ}} (9:0){{atL|1fr27|2}}
</ref>

There is no need for the judge to focus on the objective seriousness of the predicate offence.<Ref>
{{ibid1|Currie}}{{atL|1fr27|17}}
</ref>

; Standard of Proof
The Court must be satisfied of the requirements beyond a reasonable doubt.<ref>
{{ibid1|Currie}}{{atL|1fr27|11}}
</ref>

; Standard of Review
The finding of dangerousness is a finding of fact. As long as it is reasonable it should not be "lightly overturned."<Ref>
{{ibid1|Currie}}{{atL|1fr27|17}}
</ref>

{{Reflist|2}}

===Dangerous Offender Shortcut===

{{quotation2|
753<br>
{{removed|(1)}}
; Presumption
(1.1) If the court is satisfied that the offence for which the offender is convicted is a primary designated offence for which it would be appropriate to impose a sentence of imprisonment of two years or more and that the offender was convicted previously at least twice of a primary designated offence and was sentenced to at least two years of imprisonment for each of those convictions, the conditions in paragraph (1)(a) {{AnnSec7|753(1)(a)}} or (b) {{AnnSec7|753(1)(b)}}, as the case may be, are presumed to have been met unless the contrary is proved on a balance of probabilities.
<br>
{{removed|(1.1), (2), (3) and (4)}}
; Sentence of indeterminate detention
(4.1) The court shall impose a sentence of detention in a penitentiary for an indeterminate period unless it is satisfied by the evidence adduced during the hearing of the application that there is a reasonable expectation that a lesser measure under paragraph (4)(b) {{AnnSec7|753(4)(b)}} or (c) {{AnnSec7|753(4)(c)}} will adequately protect the public against the commission by the offender of murder or a serious personal injury offence.
<Br>
{{removed|(4.2) and (5)}}
(6) [Repealed, 2008, c. 6, s. 42]<br>
R.S., {{LegHistory80s|1985, c. C-46}}, s. 753; 
{{LegHistory90s|1997, c. 17}}, s. 4; 
{{LegHistory00s|2008, c. 6}}, s. 42.
{{Annotation}}
|{{CCCSec2|753}}
|{{NoteUp|753|1.1|4.1}}
}}

Section 753(4.1) create a presumption for an indeterminate sentence unless there is a "reasonable expectation" that an LTO or determinate sentence "will adequately protect the public against the commission by the offender of murder or a serious personal injury offence."<ref>
{{supra1|Boutilier}}{{atL|grx23|11}}<br>
</ref>

The judge has the discretion to refuse to impose an indeterminate sentence where there is a "reasonable expectation" that a determinate sentence "would adequately protect the public, would seem to have potentially increased the number of offenders captured by the regime, it has not changed the nature or characteristics of the group of offenders targeted as dangerous."<ref>
{{supra1|Boutilier}}{{atL|grx23|27}}<br>
</ref>

{{reflist|2}}

===Intractable Condition===
The judge must consider intractability at the designation stage.<Ref>
{{CanLIIRx|Smithen-Davis|jbvd0|2020 ONCA 759 (CanLII)}}{{perONCA-H|Watt JA}}
</ref>

The Crown must prove that the offender's condition is substantially or pathologically intractable.<ref>
{{CanLIIRP|Pedden|1jvv5|2005 BCCA 121 (CanLII)|194 CCC (3d) 476}}{{perBCCA|Newbury JA}}</ref>

; Considerations
In determining intractability, the courts have considered the following:<ref> 
{{CanLIIRP|Ominayak|1wvfx|2007 ABQB 442 (CanLII)|75 WCB (2d) 217}}{{perABQB|Topolniski J}}</ref>
#deeply ingrained personality disorders that are resistant to change;
#a lack of available and appropriate treatment facilities;
#a poor outlook for improvement, even where facilities exist;
#an inability to estimate or predict a timeframe for improvement;
#some, but very little hope for treatment some time in the future; and
#treatment that will be long and difficult because an offender has more than one disorder and a limited capacity to learn.

The court must be satisfied that the treatment can be accomplished within a certain time-frame within an LTO order for one to be available.<ref>
{{CanLIIRP|Higginbottom|1fc0j|2001 CanLII 3989 (ON CA)|156 CCC (3d) 178}}{{perONCA|Charron JA}}</ref>

{{Reflist|2}}

===Reasonable Possibility of Controlling Risk in the Community===
The judge must determine whether there is a "reasonable possibility of eventual control of the risk in the community, having regard to the whole of the evidence before it."<ref>
{{CanLIIRP|Wormell|1l02b|2005 BCCA 328 (CanLII)|198 CCC (3d) 252}}{{perBCCA|Southin JA}}{{atL|1l02b|61}}<br>
</ref>

A "reasonable possibility" should not mean "absolute certainty."<ref>
{{CanLIIRP|Little|1s8wc|2007 ONCA 548 (CanLII)|87 OR (3d) 683}}{{perONCA|Cronk JA}}{{atL|1s8wc|39}}, leave to appeal ref’d [2008] SCCA No 39<br>
</ref>

"Reasonable possibility" requires not only that there is a "possibility" of future treatment. If there is a possibility, but it is "unlikely that such treatment or control can be effected within the parameters of the appropriate fixed sentence and supervisory conditions in the community", then an LTO is not appropriate.<ref>
{{CanLIIRP|BAP|1jvv5|2005 BCCA 121 (CanLII)|208 BCAC 303}}{{perBCCA|Newbury JA}} (2:1) leave to appeal ref’d [2005] SCCA No 445 {{atL|1jvv5|30}}
</ref>

The finding of a remote possibility does not bar a dangerous offender order.<ref>
{{CanLIIRP|Dagenais|1g4bv|2003 ABCA 376 (CanLII)|181 CCC (3d) 332}}{{perABCA|Wittmann JA}}{{atL|1f4bv|91}}<br>
</ref>

It is not necessary that the sentencing judge finds "absolute intractability" resulting in the offender never being treatable in his lifetime.<ref>
{{supra1|BAP}}{{atL|1jvv5|26}}<br>
</ref>

There is no need for the Crown to show uncontrollability of the offender.<ref>
{{CanLIIRx|Kopas|fpl4t|2012 ONCA 16 (CanLII)}}{{TheCourtONCA}}</ref>

A "reasonable possibility" of  controlling the risk must have an air of reality to it and cannot simply be a mere hope.<ref> 
{{CanLIIRP|DWAP|1p6c1|2006 BCSC 1288 (CanLII)|70 WCB (2d) 624}}{{perBCSC|D Smith J}}</ref>

The crown does not need to refute the possibility that there is a reasonable possibility that the risk to the community will eventually be controlled. <ref>
{{CanLIIRP|Moosomin|220h3|2008 SKCA 169 (CanLII)|239 CCC (3d) 362}}{{TheCourtSKCA}}{{atL|220h3|40}}</ref>

In considering the risk to the community, the court may consider past failed attempts at rehabilitation.<ref> 
{{CanLIIRP|Otto|1nfh7|2006 SKCA 52 (CanLII)|70 WCB (2d) 4}}{{perSKCA|Gerwing JA}}{{atL|1nfh7|22}}</ref>

If the level of supervision is so great as to amount to custody the offender is not likely a candidate for a LTO.<ref>
{{CanLIIRP|LG|1s8wc|2007 ONCA 548 (CanLII)|225 CCC (3d) 20}}{{perONCA|Cronk JA}}{{atL|1s8wc|62}}</ref>

; "Acceptable Level"
Should an offender be found to meet the definition of "dangerous offender" under s. 753(1), the sentencing judge must be satisfied that a long-term offender order would not be "sufficient to reduce this threat to an acceptable level"<ref>
{{CanLIIRP|Johnson|51pl|2003 SCC 46 (CanLII)|[2003] 2 SCR 357}}{{perSCC|Iacobucci and Arbour JJ}}{{atL|51pl|29}}<br>
{{CanLIIRP|Wormell|1l02b|2005 BCCA 328 (CanLII)|198 CCC (3d) 252}}{{perBCCA|Southin JA}}<br>
</ref>

This determination is not on a standard of balance of probabilities or beyond a reasonable doubt.<ref>
{{ibid1|Wormell}}{{atsL|1l02b|32| to 33}}
</ref>

Determination of an "acceptable level" requires consideration of all factors that can reduce risk to public.<ref>
{{CanLIIRx|Allan|25ln0|2009 BCSC 1245 (CanLII)}}{{perBCSC|MacKenzie J}}{{atL|25ln0|245}}, upheld {{CanLII|gj42g|2015 BCCA 229 (CanLII)}}{{perBCCA|Savage JA}}<br>
{{supra1|GL}}<br>
</ref>

Factors include "treatability". This factor does not require that the offender will be "cured" by the treatment or that rehabilitation "might be assured."<ref>
{{supra1|GL}}{{atL|1s8wc|42}}<br>
{{supra1|Allan (BCSC)}}{{atL|25ln0|245}}, upheld {{CanLII|gj42g|2015 BCCA 229 (CanLII)}}{{perBCCA|Savage JA}}<br>
</ref>
The factor requires proof that the "nature and severity" of the risk can be "sufficiently contained in a non-custodial setting in the community so as to protect the public."<ref>
{{supra1|Allan}} (BCSC){{atL|25ln0|245}}<Br>
{{supra1|GL}}{{atL|1s8wc|42}}<br>
</ref>

There is no expectation that risk be "eradicated" but only must be contained or managed.<ref>
{{supra1|Allen (BCSC)}}{{atL|25ln0|245}}<br></ref>

When relying upon community supervision, the availability of resources to implement the supervision "cannot be uncertain". Otherwise, it would be too "speculative", "preventing any reliable assurance that the unreasonable risks to public safety can be avoided."<ref>
{{supra1|GL}}{{atL|1s8wc|59}}<br>
</ref>

; Treatment
It will be inappropriate to make an LTO order should the treatment conditions necessary to control the offender end up replicating jail terms.<ref>
{{supra1|GL}}
</ref>
{{Reflist|2}}

==="Pattern of Repetitive Behaviour"===
Section 753(a)(i) requires that the applicant prove:<ref>
{{CanLIIRP|Neve|5s63|1999 ABCA 206 (CanLII)|137 CCC (3d) 97 }}{{TheCourtABCA}}{{atL|5s63|107}}</ref>
# A pattern of repetitive behaviour;
# The predicate offence must form part of that pattern;
# That pattern must show a failure by the offender to restrain his or her behaviour in the past; and
# That pattern must show a likelihood of death, injury or severe psychological damage to other persons through failure to restrain his or her behaviour in the future.

Repetition does not require that the offences be "remarkably similar."<ref>
{{CanLIIRP|Dorfer|fxc4w|2013 BCCA 223 (CanLII)|337 BCAC 309}}{{perBCCA|Kirkpatrick JA}}{{atL|fxc4w|40}}</ref> 
Where the most recent offence does not involve sexual penetration while the other do, does not create a break in a pattern.<ref>
{{ibid1|Dorfer}}{{atL|fxc4w|26}}
</ref>
{{reflist|2}}

==="Pattern of Persistent Behaviour"===
Section 753(a)(ii) requires that there be a "pattern of persistent behaviour" that shows a substantial degree of indifference respecting the foreseeable consequences of the offender's behaviour.

Persistent can have the same meaning as "enduring" or "constantly repeated."<ref>
{{CanLIIRP|Yanoshewski|1mb30|1996 CanLII 4916 (SK CA)|104 CCC (3d) 512, 141 Sask R 132 (CA)}}{{perSKCA|Sherstobitoff JA}}{{atp|522}} (CCC) ("The judge made no error in finding that the behaviour of the appellant was persistent in view of the fact that the period of time during which he committed the offences of which he was convicted extended from 1964 to 1992 without any significant periods during that time when no offences were being committed.")</ref>

To determine if there is a pattern of repetitive behaviour, the court should consider the nature of the similarity of the predicate office. This includes considering "similarities in terms of the kind of offences" and where the offences are not "similar in kind", but "in results" upon the victims (ie. degree of violence).<ref>
{{CanLIIRP|Neve|5s63|1999 ABCA 206 (CanLII)|137 CCC (3d) 97}}{{TheCourtABCA}}{{atL|5s63|111}}</ref>

Where the offender commits a variety of crimes with no patterns, they can still be a "pattern of persistent behaviour".  There "is no requirement that the past criminal actions all be of the same or similar form, order or arrangement; though if this has occurred, it may well suffice."<ref>
{{ibid1|Neve}}{{atL|5s63|111}}</ref>

Two or more incidents can amount to a "pattern."<ref>
{{CanLIIRP|Langevin|g1g8k|1984 CanLII 1914 (ON CA)| 8 DLR (4th) 485, 11 CCC (3d) 336}}{{perONCA|Lacourciere JA}}<br>
</ref> 
However, they should have "remarkable similarity."<ref>
{{supra1|Neve}}{{atL|5s63|113}}<br>
{{supra1|Langevin}}{{atp|498}}<br>
</ref>

A "pattern of persistent behaviour" is made out where there is all of the following:<ref>
{{CanLIIRP|Dow|54l7|1999 BCCA 177 (CanLII)|134 CCC (3d) 323}}{{perBCCA|Lambert JA}}{{atL|54l7|24}}<br>
</ref>
# repetitive behaviour;
# a failure in each case to restrain behaviour in each case;
# there has been an injury to other persons arising from that failure.

{{reflist|2}}

==="Substantial Degree of Indifference"===

When considering the criteria of "substantial degree of indifference" ,the court may look at the offender's actions in the offence as well as other offences.<ref>
{{CanLIIRP|George|1dxx4|1998 CanLII 5691 (BCCA)|126 CCC (3d) 384, [1998] BCJ No 1505}}{{perBCCA|George JA}} at 394-95
</ref>
The consideration should be upon whether "the offender has a conscious but uncaring awareness of causing harm to others and this has occurred over a period of long duration involving frequent acts and with significant consequences, this is sufficient to establish a substantial degree of indifference."<ref>
{{CanLIIRP|GNB|ft6ps|2012 SKQB 397 (CanLII)|406 Sask R 241}}{{perSKQB|Acton J}}{{atL|ft6ps|19}}</ref>

{{reflist|2}}

==="Brutal Nature"===
The actions do not need to amount "stark horror", but must amount to "conduct which is coarse, savage and cruel and which is capable of inflicting severe psychological damage."<ref>
{{CanLIIRP|Langevin|g1g8k|1984 CanLII 1914 (ON CA)| 8 DLR (4th) 485, 11 CCC (3d) 336}}{{perONCA|Lacourciere JA}}<br>
{{CanLIIRP|Melanson|1fbq8|2001 CanLII 24054 (ON CA)|152 CCC (3d) 375}}{{perONCA|Carthy JA}}<br>
{{CanLIIRP|Dow|54l7|1999 BCCA 177 (CanLII)|134 CCC (3d) 323}}{{perBCCA|Lamert JA}}<br>
</ref>

It includes offences that are "excessive, extreme, senseless, mean, vicious, merciless, ruthless, sadistic, unfeeling and violent."<ref>
{{CanLIIRP|Paxton|g2jtf|2013 ABQB 750 (CanLII)|111 WCB (2d) 835}}{{perABQB|Martin J}}{{atL|g2jtf|311}}<br>
{{CanLIIRP|Campbell|1h4wt|2004 CanLII 19316 (ONSC)|[2004] OJ No 2151 (Ont Sup Ct J)}}{{perONSC|Hill J}}{{atL|1h4wt|56}}<br>
</ref>

The presence of brutality varies with the crime, "the way in which [it was] committed, the effect(s) on the victim and the offender's attitude and mental state."<ref>
{{ibid1|Campbell}}{{atL|1h4wt||55}}<br>
</ref>

The categories are not closed.<ref>
{{CanLIIRP|Ominayak|1wvfx|2007 ABQB 442 (CanLII)|75 WCB (2d) 217}}{{perABQB|Topolniski J}}{{atL|1wvfx|194}}<br>
</ref>

It does not need to be raised to the point of "stark horror."<ref>
{{supra1|Langevin}}{{atL|g1g8k|34}}<br>
</ref>

{{reflist|2}}

==="Normal Standards of Behavioural Restraint"===

Section 53(1)(a)(iii) requires that the offender be "unlikely to be inhibited by normal standards of behavioural restraint".

The Court must be satisfied that the offender's past conduct gives rise to a likelihood of future injury.<ref>
{{CanLIIRP|Carleton|fp6c0|1981 ABCA 220 (CanLII)|32 AR 181}}{{perABCA|McGillivary CJ}} (6:1) {{atL|fp6c0|11}}
</ref>
There is no need to prove that the offender ''will'' reoffend.<ref>
{{CanLIIRP|Currie|1fr27|1997 CanLII 347 (SCC)|[1997] 2 SCR 260}}{{perSCC|Lamer CJ}}{{atL|1fr27|42}}<br>
</ref>

This conclusion can be made by inference where it is "self-evident" from conduct that is "beyond the normal range of behaviour."<ref>
{{CanLIIRP|Robinson|1pmf7|2006 CanLII 33189 (ON CA)|212 CCC (3d) 439}}{{TheCourt}}{{atL|1pmf|55}}
</ref>

{{reflist|2}}

==See Also==
* [[Consequences of a Dangerous Offender Designation]]