Appellate Review of an LTO or DO Designation: Difference between revisions
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==Appellate Review== | ==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" | 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."<ref> | ||
{{CanLIIRx|Allan|gj42g|2015 BCCA 229 (CanLII)}}{{perBCCA|Savage JA}}{{atL|gj42g|3}}<br> | |||
{{CanLIIRP|Currie|1fr27|1997 CanLII 347 (SCC)|[1997] 2 SCR 260}}{{perSCC|Lamer CJ}}{{atL|1fr27|33}}<br> | |||
</ref> | </ref> | ||
A dangerous offender designation is reviewable on a standard of reasonableness.< | A dangerous offender designation is reviewable on a standard of reasonableness.<ref> | ||
{{CanLIIRP|Boutilier|grx23|2016 BCCA 235 (CanLII)|336 CCC (3d) 293}}{{perBCCA|D Smith JA}}{{atL|grx23|86}}<br> | |||
{{supra1|Currie}}{{atL|1fr27|33}}<br> | |||
</ref>It is also reviewable on correctness for errors of law.<ref> | </ref>It is also reviewable on correctness for errors of law.<ref> | ||
{{CanLIIRP|Bragg|gmcvq|2015 BCCA 498 (CanLII)|332 CCC (3d) 145}}{{perBCCA|MacKenzie JA}}{{atsL|gmcvq|19| to 22}}<br> | |||
{{CanLIIRP|Sawyer|gl0zh|2015 ONCA 602 (CanLII)|328 CCC (3d) 523}}{{perONCA|Tulloch JA}}{{atsL|gl0zh|26| to 29}}<br> | |||
</ref> | </ref> | ||
The appellate court cannot have a "fresh look" at the designation and deference must be paid to the sentencing judge's findings.< | The appellate court cannot have a "fresh look" at the designation and deference must be paid to the sentencing judge's findings.<ref> | ||
Allan | {{supra1|Allan}}{{atL|gj42g|3}}<br> | ||
</ref> | </ref> | ||
| Line 22: | Line 23: | ||
==Appeal of Finding of Dangerousness== | ==Appeal of Finding of Dangerousness== | ||
A finding of "dangerousness" is a finding of fact.<ref> | A finding of "dangerousness" is a finding of fact.<ref> | ||
{{CanLIIRP|Lyons|1ftlw|1987 CanLII 25 (SCC)|[1987] 2 SCR 309}}{{perSCC|La Forest J}}{{atp|364}}<br> | |||
Boutilier | {{CanLIIRP|Boutilier|grx23|2016 BCCA 235 (CanLII)|336 CCC (3d) 293}}{{perBCCA|D Smith JA}}{{atL|grx23|86}}<br> | ||
</ref> | </ref> | ||
{{ | {{quotation2| | ||
; 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 on any ground of law or fact or mixed law and fact. | 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 {{AnnSec|Part XXIV}} on any ground of law or fact or mixed law and fact. | ||
(1.1) [Repealed, 2008, c. 6, s. 51] | |||
(1.1) [Repealed, {{LegHistory00s|2008, c. 6}}, s. 51] | |||
<br> | <br> | ||
; Appeal — Attorney General | |||
(2) The Attorney General may appeal to the court of appeal from a decision made under this Part on any ground of law. | (2) The Attorney General may appeal to the court of appeal from a decision made under this Part {{AnnSec|Part XXIV}} on any ground of law. | ||
<br> | <br> | ||
; Disposition of appeal | |||
(3) The court of appeal may | (3) The court of appeal may | ||
:(a) allow the appeal and | :(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, or | ::(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 {{AnnSec|Part XXIV}}, or | ||
::(ii) order a new hearing, with any directions that the court considers appropriate; or | ::(ii) order a new hearing, with any directions that the court considers appropriate; or | ||
:(b) dismiss the appeal. | :(b) dismiss the appeal. | ||
(3.1) and (3.2) [Repealed, 2008, c. 6, s. 51] | (3.1) and (3.2) [Repealed, {{LegHistory00s|2008, c. 6}}, s. 51] | ||
<br> | <br> | ||
; 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) A decision of the court of appeal has the same force and effect as if it were a decision of the trial court. | ||
<br> | <br> | ||
(4.1) to (5) [Repealed, 2008, c. 6, s. 51] | (4.1) to (5) [Repealed, {{LegHistory00s|2008, c. 6}}, s. 51] | ||
<br> | <br> | ||
; Commencement of sentence | |||
(6) Notwithstanding subsection 719(1), 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. | (6) Notwithstanding subsection 719(1) {{AnnSec7|719(1)}}, 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. | ||
<br> | <br> | ||
; Part XXI applies re appeals | |||
(7) The provisions of Part XXI with respect to procedure on appeals apply, with such modifications as the circumstances require, to appeals under this section. | (7) The provisions of Part XXI {{AnnSec|Part XXI}} with respect to procedure on appeals apply, with such modifications as the circumstances require, to appeals under this section. | ||
<br> | <br> | ||
R.S., 1985, c. C-46, s. 759; 1995, c. 22, s. 10; 1997, c. 17, s. 6; 2008, c. 6, s. 51. | |||
| | R.S., {{LegHistory80s|1985, c. C-46}}, s. 759; | ||
{{LegHistory90s|1995, c. 22}}, s. 10; | |||
{{LegHistory90s|1997, c. 17}}, s. 6; | |||
{{LegHistory00s|2008, c. 6}}, s. 51. | |||
{{Annotation}} | |||
|{{CCCSec2|759}} | |||
|{{NoteUp|759|1|2|3|4|6|7}} | |||
}} | }} | ||
{{reflist|2}} | {{reflist|2}} | ||
Latest revision as of 12:08, 13 May 2024
| This page was last substantively updated or reviewed January 2017. (Rev. # 92370) |
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]
- ↑
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
- ↑
R v Boutilier, 2016 BCCA 235 (CanLII), 336 CCC (3d) 293, per D Smith JA, at para 86
Currie, supra, at para 33
- ↑
R v Bragg, 2015 BCCA 498 (CanLII), 332 CCC (3d) 145, per MacKenzie JA, at paras 19 to 22
R v Sawyer, 2015 ONCA 602 (CanLII), 328 CCC (3d) 523, per Tulloch JA, at paras 26 to 29
- ↑
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 (ss. 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 (ss. 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 (ss. 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 (ss. 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]
- ↑
R v Lyons, 1987 CanLII 25 (SCC), [1987] 2 SCR 309, per La Forest J, at p. 364
R v Boutilier, 2016 BCCA 235 (CanLII), 336 CCC (3d) 293, per D Smith JA, at para 86