Remand Assessment for LTO/DO Applications: Difference between revisions
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==General Principles== | ==General Principles== | ||
The starting point for determining if an offender can be designated an LTO or DO is to have the offender psychologically assessed. | The starting point for determining if an offender can be designated an Long-Term Offender (LTO) or Dangerous Offender (DO) is to have the offender psychologically assessed under s. 752.1. | ||
The general requirements for a remand assessment order is that the index offence is a "serious personal injury offence" within the meaning of s. 753.1 or an offence listed in 753.1(2)(a) and there must be "reasonable grounds to believe" that the offender "might be found" to be a DO or LTO. | |||
A remand assessment will generally require notice and a hearing before an order can be made. | |||
==Notice== | ==Notice== | ||
| Line 9: | Line 13: | ||
The Crown must notify the sentencing judge of its intention to request an assessment under s. 752.1(1). | The Crown must notify the sentencing judge of its intention to request an assessment under s. 752.1(1). | ||
{{ | {{quotation2| | ||
; Prosecutor’s duty to advise court | |||
752.01 If the prosecutor is of the opinion that an offence for which an offender is convicted is a serious personal injury offence that is a designated offence and that the offender was convicted previously at least twice of a designated offence and was sentenced to at least two years of imprisonment for each of those convictions, the prosecutor shall advise the court, as soon as feasible after the finding of guilt and in any event before sentence is imposed, whether the prosecutor intends to make an application under subsection 752.1(1). | 752.01 If the prosecutor is of the opinion that an offence for which an offender is convicted is a serious personal injury offence that is a designated offence and that the offender was convicted previously at least twice of a designated offence and was sentenced to at least two years of imprisonment for each of those convictions, the prosecutor shall advise the court, as soon as feasible after the finding of guilt and in any event before sentence is imposed, whether the prosecutor intends to make an application under subsection 752.1(1) {{AnnSec7|752.1(1)}}. | ||
<br> | <br> | ||
2008, c. 6, s. 41. | {{LegHistory00s|2008, c. 6}}, s. 41. | ||
| | {{Annotation}} | ||
|{{CCCSec2|752.01}} | |||
|{{NoteUp|752.01}} | |||
}} | }} | ||
| Line 24: | Line 30: | ||
This section does not impose further requirements upon the Crown before it can request an assessment under s. 752.1. Where the criteria have ''not'' been met, such as presence of the prior convictions, the Crown may still seek the assessment.<ref> | This section does not impose further requirements upon the Crown before it can request an assessment under s. 752.1. Where the criteria have ''not'' been met, such as presence of the prior convictions, the Crown may still seek the assessment.<ref> | ||
{{CanLIIRP|Keepness|28vlb|2010 SKQB 118 (CanLII)|351 Sask R 284}}{{perSKQB|Dawson J}}{{atsL|28vlb|15|, 16}}, appealed on other grounds at 2010 SKCA 69<br> | |||
{{CanLIIRx|Hopley|fsnwq|2012 BCSC 1329 (CanLII)}}{{perBCSC|Holmes J}}{{atL|fsnwq|124}}<br> | |||
</ref> | </ref> | ||
| Line 33: | Line 39: | ||
Once the accused is convicted of either (1) a serious personal injury offence; or (2) an offence under s. 753.(2)(a), the Crown may apply for an assessment order under s. 752.1(1) as long as it is before the sentence is passed. | Once the accused is convicted of either (1) a serious personal injury offence; or (2) an offence under s. 753.(2)(a), the Crown may apply for an assessment order under s. 752.1(1) as long as it is before the sentence is passed. | ||
{{ | {{quotation2| | ||
; Application for remand for assessment | ; Application for remand for assessment | ||
752.1 (1) On application by the prosecutor, if the court is of the opinion that there are reasonable grounds to believe that an offender who is convicted of a serious personal injury offence or an offence referred to in paragraph 753.1(2)(a) might be found to be a dangerous offender under section 753 or a long-term offender under section 753.1, the court shall, by order in writing, before sentence is imposed, remand the offender, for a period not exceeding 60 days, to the custody of a person designated by the court who can perform an assessment or have an assessment performed by experts for use as evidence in an application under section 753 or 753.1. | 752.1 (1) On application by the prosecutor, if the court is of the opinion that there are reasonable grounds to believe that an offender who is convicted of a serious personal injury offence or an offence referred to in paragraph 753.1(2)(a) {{AnnSec7|753.1(2)(a)}} might be found to be a dangerous offender under section 753 {{AnnSec7|753}} or a long-term offender under section 753.1 {{AnnSec7|753.1}}, the court shall, by order in writing, before sentence is imposed, remand the offender, for a period not exceeding 60 days, to the custody of a person designated by the court who can perform an assessment or have an assessment performed by experts for use as evidence in an application under section 753 {{AnnSec7|753}} or 753.1 {{AnnSec7|753.1}}. | ||
<br> | <br> | ||
; Report | ; Report | ||
| Line 43: | Line 49: | ||
(3) On application by the prosecutor, the court may extend the period within which the report must be filed by a maximum of 30 days if the court is satisfied that there are reasonable grounds to do so. | (3) On application by the prosecutor, the court may extend the period within which the report must be filed by a maximum of 30 days if the court is satisfied that there are reasonable grounds to do so. | ||
<br> | <br> | ||
1997, c. 17, s. 4; 2008, c. 6, s. 41. | {{LegHistory90s|1997, c. 17}}, s. 4; | ||
| | {{LegHistory00s|2008, c. 6}}, s. 41. | ||
{{Annotation}} | |||
|{{CCCSec2|752.1}} | |||
|{{NoteUp|752.1|1|2|3}} | |||
}} | }} | ||
| Line 50: | Line 59: | ||
It is not necessary that there be consent of the Attorney General for the assessment to be ordered.<ref> | It is not necessary that there be consent of the Attorney General for the assessment to be ordered.<ref> | ||
{{CanLIIRP|Haug|1vxrn|2008 SKCA 23 (CanLII)|229 CCC (3d) 132}}{{perSKCA|Smith JA}}{{atsL|1vxrn|60| to 61}} | |||
</ref> | </ref> | ||
===Serious Personal Injury Offence or Enumerated Offence=== | |||
See [[Serious Personal Injury Offences]] | |||
==="Reasonable Possibility" Test=== | |||
The test for "reasonable possibility" is a "low hurdle."<ref> | |||
R v Marriott, 2022 NSSC 121 (CanLII) at para 4<br> | |||
</ref> | |||
Some suggest that there must a a "real possibility" based on a "credibility-based probability."<Ref> | |||
ibid at para 4 | |||
</ref> | |||
{{Reflist|2}} | {{Reflist|2}} | ||
| Line 58: | Line 77: | ||
Generally, an assessment must be made before sentencing. However, when dealing with a DO application the assessment may still be sought under s. 753(3): | Generally, an assessment must be made before sentencing. However, when dealing with a DO application the assessment may still be sought under s. 753(3): | ||
{{ | {{quotation2| | ||
753<br> | 753<br> | ||
. | {{removed|(1), (1.1) and (2)}} | ||
; Application for remand for assessment after imposition of sentence | |||
(3) Notwithstanding subsection 752.1(1), an application under that subsection may be made after the imposition of sentence or after an offender begins to serve the sentence in a case to which paragraphs (2)(a) and (b) apply. | (3) Notwithstanding subsection 752.1(1) {{AnnSec7|752.1(1)}}, an application under that subsection may be made after the imposition of sentence or after an offender begins to serve the sentence in a case to which paragraphs (2)(a) {{AnnSec7|753(2)(a)}} and (b) {{AnnSec7|753(2)(b)}} apply. | ||
<br>.. | <br> | ||
R.S., 1985, c. C-46, s. 753; 1997, c. 17, s. 4; 2008, c. 6, s. 42. | {{removed|(4), (4.1), (4.2), (5) and (6)}} | ||
| | 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|3}} | |||
}} | }} | ||
==Evidence== | |||
{{seealso|Sentencing Evidence}} | |||
The rule of evidence concerning sentencing found in s. 723(5) apply to this part of the dangerous offender.<Ref> | |||
R v RMP, 2019 ONSC 2235 (CanLII) at para 7 | |||
</ref> | |||
Generally, assessment reports may be admissible as hearsay.<ref> | |||
ibid at para 7 | |||
</ref> | |||
Police reports should be considered with caution due to their "frailties." When relying on them for findings of dangerousness, the court may want to look for "support and confirmation" in other parts of the record.<Ref> | |||
{{CanLIIRT|William||2018 ONCA 347 (CanLII)}}{{atL||55}} | |||
</ref> | |||
{{Reflist|2}} | |||
==Post-Designation Convictions== | ==Post-Designation Convictions== | ||
Where an offender who has been designated a DO is convicted of a SPIO offence or an offence under s. 753.1(1), the court shall order a remand assessment on request of the Crown. | Where an offender who has been designated a DO is convicted of a SPIO offence or an offence under s. 753.1(1), the court shall order a remand assessment on request of the Crown. | ||
{{ | {{quotation2| | ||
; Application for remand for assessment — later conviction | |||
753.01 (1) If an offender who is found to be a dangerous offender is later convicted of a serious personal injury offence or an offence under subsection 753.3(1), on application by the prosecutor, the court shall, by order in writing, before sentence is imposed, remand the offender, for a period not exceeding 60 days, to the custody of a person designated by the court who can perform an assessment or have an assessment performed by experts for use as evidence in an application under subsection (4). | 753.01 (1) If an offender who is found to be a dangerous offender is later convicted of a serious personal injury offence or an offence under subsection 753.3(1) {{AnnSec7|753.3(1)}}, on application by the prosecutor, the court shall, by order in writing, before sentence is imposed, remand the offender, for a period not exceeding 60 days, to the custody of a person designated by the court who can perform an assessment or have an assessment performed by experts for use as evidence in an application under subsection (4) {{AnnSec7|753.01(4)}}. | ||
<br> | <br> | ||
; Report | ; Report | ||
| Line 81: | Line 121: | ||
(3) On application by the prosecutor, the court may extend the period within which the report must be filed by a maximum of 30 days if the court is satisfied that there are reasonable grounds to do so. | (3) On application by the prosecutor, the court may extend the period within which the report must be filed by a maximum of 30 days if the court is satisfied that there are reasonable grounds to do so. | ||
<br> | <br> | ||
; Application for new sentence or order | |||
(4) After the report is filed, the prosecutor may apply for a sentence of detention in a penitentiary for an indeterminate period, or for an order that the offender be subject to a new period of long-term supervision in addition to any other sentence that may be imposed for the offence. | (4) After the report is filed, the prosecutor may apply for a sentence of detention in a penitentiary for an indeterminate period, or for an order that the offender be subject to a new period of long-term supervision in addition to any other sentence that may be imposed for the offence. | ||
<br> | <br> | ||
; Sentence of indeterminate detention | |||
(5) If the application is for a sentence of detention in a penitentiary for an indeterminate period, the court shall impose that sentence unless it is satisfied by the evidence adduced during the hearing of the application that there is a reasonable expectation that a sentence for the offence for which the offender has been convicted — with or without a new period of long-term supervision — will adequately protect the public against the commission by the offender of murder or a serious personal injury offence. | (5) If the application is for a sentence of detention in a penitentiary for an indeterminate period, the court shall impose that sentence unless it is satisfied by the evidence adduced during the hearing of the application that there is a reasonable expectation that a sentence for the offence for which the offender has been convicted — with or without a new period of long-term supervision — will adequately protect the public against the commission by the offender of murder or a serious personal injury offence. | ||
<br> | <br> | ||
; New long-term supervision | |||
(6) If the application is for a new period of long-term supervision, the court shall order that the offender be subject to a new period of long-term supervision in addition to a sentence for the offence for which they have been convicted unless it is satisfied by the evidence adduced during the hearing of the application that there is a reasonable expectation that the sentence alone will adequately protect the public against the commission by the offender of murder or a serious personal injury offence. | (6) If the application is for a new period of long-term supervision, the court shall order that the offender be subject to a new period of long-term supervision in addition to a sentence for the offence for which they have been convicted unless it is satisfied by the evidence adduced during the hearing of the application that there is a reasonable expectation that the sentence alone will adequately protect the public against the commission by the offender of murder or a serious personal injury offence. | ||
<br> | <br> | ||
2008, c. 6, s. 43. | {{LegHistory00s|2008, c. 6}}, s. 43. | ||
| | {{Annotation}} | ||
|{{CCCSec2|753.1}} | |||
|{{NoteUp|753.1|1|2|3|4|5|6}} | |||
}} | }} | ||
==See Also== | ==See Also== | ||
* [[Pre-Sentence Reports#Offender Psychiatric Assessment Reports]] | * [[Pre-Sentence Reports#Offender Psychiatric Assessment Reports]] | ||
Latest revision as of 14:59, 6 January 2024
General Principles
The starting point for determining if an offender can be designated an Long-Term Offender (LTO) or Dangerous Offender (DO) is to have the offender psychologically assessed under s. 752.1.
The general requirements for a remand assessment order is that the index offence is a "serious personal injury offence" within the meaning of s. 753.1 or an offence listed in 753.1(2)(a) and there must be "reasonable grounds to believe" that the offender "might be found" to be a DO or LTO.
A remand assessment will generally require notice and a hearing before an order can be made.
Notice
The Crown must notify the sentencing judge of its intention to request an assessment under s. 752.1(1).
- Prosecutor’s duty to advise court
752.01 If the prosecutor is of the opinion that an offence for which an offender is convicted is a serious personal injury offence that is a designated offence and that the offender was convicted previously at least twice of a designated offence and was sentenced to at least two years of imprisonment for each of those convictions, the prosecutor shall advise the court, as soon as feasible after the finding of guilt and in any event before sentence is imposed, whether the prosecutor intends to make an application under subsection 752.1(1) [application for remand for assessment].
2008, c. 6, s. 41.
[annotation(s) added]
This obligation is invoked where the prosecutor has the opinion that:
- the index offence is a serious personal injury offence;
- the index offence designated offence under s. 752;
- the accused has at least two previous convictions for designated offences under s. 752; and
- the prior sentences for the designated offences was at least 2 years incarceration.
This section does not impose further requirements upon the Crown before it can request an assessment under s. 752.1. Where the criteria have not been met, such as presence of the prior convictions, the Crown may still seek the assessment.[1]
- ↑
R v Keepness, 2010 SKQB 118 (CanLII), 351 Sask R 284, per Dawson J, at paras 15, 16, appealed on other grounds at 2010 SKCA 69
R v Hopley, 2012 BCSC 1329 (CanLII), per Holmes J, at para 124
Application
Once the accused is convicted of either (1) a serious personal injury offence; or (2) an offence under s. 753.(2)(a), the Crown may apply for an assessment order under s. 752.1(1) as long as it is before the sentence is passed.
- Application for remand for assessment
752.1 (1) On application by the prosecutor, if the court is of the opinion that there are reasonable grounds to believe that an offender who is convicted of a serious personal injury offence or an offence referred to in paragraph 753.1(2)(a) [authority to make a long-term offender order – enumerated offences] might be found to be a dangerous offender under section 753 [application for finding that an offender is a dangerous offender] or a long-term offender under section 753.1 [authority to make a long-term offender order], the court shall, by order in writing, before sentence is imposed, remand the offender, for a period not exceeding 60 days, to the custody of a person designated by the court who can perform an assessment or have an assessment performed by experts for use as evidence in an application under section 753 [application for finding that an offender is a dangerous offender] or 753.1 [authority to make a long-term offender order].
- Report
(2) The person to whom the offender is remanded shall file a report of the assessment with the court not later than 30 days after the end of the assessment period and make copies of it available to the prosecutor and counsel for the offender.
- Extension of time
(3) On application by the prosecutor, the court may extend the period within which the report must be filed by a maximum of 30 days if the court is satisfied that there are reasonable grounds to do so.
1997, c. 17, s. 4; 2008, c. 6, s. 41.
[annotation(s) added]
Where the court has "reasonable grounds" to believe that the accused might be found to be a DO or LTO, it may remand the accused for up to 60 days to be assessed. A report must be filed no more than 30 days after the period of assessment.
It is not necessary that there be consent of the Attorney General for the assessment to be ordered.[1]
Serious Personal Injury Offence or Enumerated Offence
See Serious Personal Injury Offences
"Reasonable Possibility" Test
The test for "reasonable possibility" is a "low hurdle."[2] Some suggest that there must a a "real possibility" based on a "credibility-based probability."[3]
- ↑ R v Haug, 2008 SKCA 23 (CanLII), 229 CCC (3d) 132, per Smith JA, at paras 60 to 61
- ↑
R v Marriott, 2022 NSSC 121 (CanLII) at para 4
- ↑ ibid at para 4
Timing
Generally, an assessment must be made before sentencing. However, when dealing with a DO application the assessment may still be sought under s. 753(3):
753
[omitted (1), (1.1) and (2)]
- Application for remand for assessment after imposition of sentence
(3) Notwithstanding subsection 752.1(1) [application for remand for assessment], an application under that subsection may be made after the imposition of sentence or after an offender begins to serve the sentence in a case to which paragraphs (2)(a) [timing of application – notice before sentencing, application w/in 6 months] and (b) [timing of application – notice after sentencing, new information] apply.
[omitted (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]
Evidence
The rule of evidence concerning sentencing found in s. 723(5) apply to this part of the dangerous offender.[1]
Generally, assessment reports may be admissible as hearsay.[2]
Police reports should be considered with caution due to their "frailties." When relying on them for findings of dangerousness, the court may want to look for "support and confirmation" in other parts of the record.[3]
- ↑ R v RMP, 2019 ONSC 2235 (CanLII) at para 7
- ↑ ibid at para 7
- ↑ R v William, 2018 ONCA 347 (CanLII) (working hyperlinks pending), at para 55
Post-Designation Convictions
Where an offender who has been designated a DO is convicted of a SPIO offence or an offence under s. 753.1(1), the court shall order a remand assessment on request of the Crown.
- Application for remand for assessment — later conviction
753.01 (1) If an offender who is found to be a dangerous offender is later convicted of a serious personal injury offence or an offence under subsection 753.3(1) [breach of long-term supervision order], on application by the prosecutor, the court shall, by order in writing, before sentence is imposed, remand the offender, for a period not exceeding 60 days, to the custody of a person designated by the court who can perform an assessment or have an assessment performed by experts for use as evidence in an application under subsection (4) [application for new sentence or order].
- Report
(2) The person to whom the offender is remanded shall file a report of the assessment with the court not later than 30 days after the end of the assessment period and make copies of it available to the prosecutor and counsel for the offender.
- Extension of time
(3) On application by the prosecutor, the court may extend the period within which the report must be filed by a maximum of 30 days if the court is satisfied that there are reasonable grounds to do so.
- Application for new sentence or order
(4) After the report is filed, the prosecutor may apply for a sentence of detention in a penitentiary for an indeterminate period, or for an order that the offender be subject to a new period of long-term supervision in addition to any other sentence that may be imposed for the offence.
- Sentence of indeterminate detention
(5) If the application is for a sentence of detention in a penitentiary for an indeterminate period, the court shall impose that sentence unless it is satisfied by the evidence adduced during the hearing of the application that there is a reasonable expectation that a sentence for the offence for which the offender has been convicted — with or without a new period of long-term supervision — will adequately protect the public against the commission by the offender of murder or a serious personal injury offence.
- New long-term supervision
(6) If the application is for a new period of long-term supervision, the court shall order that the offender be subject to a new period of long-term supervision in addition to a sentence for the offence for which they have been convicted unless it is satisfied by the evidence adduced during the hearing of the application that there is a reasonable expectation that the sentence alone will adequately protect the public against the commission by the offender of murder or a serious personal injury offence.
2008, c. 6, s. 43.
[annotation(s) added]