Requirements for a Long Term Offender Designation: Difference between revisions
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[[Fr:Exigences_pour_une_désignation_de_délinquant_à_contrôler]] | |||
{{Currency2|January|2016}} | |||
{{LevelZero}}{{HeaderLTODO}} | {{LevelZero}}{{HeaderLTODO}} | ||
==General Principles== | ==General Principles== | ||
A long term offender order subjects an offender to supervision by Corrections Canada for a period of up to 10 years. | A long term offender order subjects an offender to supervision by Corrections Canada for a period of up to 10 years. | ||
The purpose of the long term offender order is to “protect society from the threat that the offender currently poses -- and to do so without resort to the blunt instrument of indeterminate detention”.<ref> | The purpose of the long term offender order is to “protect society from the threat that the offender currently poses -- and to do so without resort to the blunt instrument of indeterminate detention”.<ref> | ||
{{CanLIIRP|Johnson|51pl|2003 SCC 46 (CanLII)|[2003] 2 SCR 357}}{{perSCC|Iacobucci and Arbour JJ}}{{atL|51pl|32}}<br> | |||
</ref> | </ref> | ||
It further intends to reintegrate the accused into the community.<ref> | It further intends to reintegrate the accused into the community.<ref> | ||
{{CanLIIRP|Matte|fs2rh|2012 ONCA 504 (CanLII)|111 OR (3d) 791}}{{perONCA-H|Watt JA}}{{atL|fs2rh|35}}: ("i. protecting the public from the risk of re-offence; and ii. rehabilitating the LTO and reintegrating him or her into the community.")<br> | |||
{{CanLIIRP|Ipeelee|fqq00|2012 SCC 13 (CanLII)|[2012] 1 SCR 433}}{{perSCC|LeBel J}}{{atL|fqq00|48}}<br> | |||
</ref> | </ref> | ||
It is incorrect to conclude that the sentencing factors for a breach of an LTO is "protection of the public". It is not necessary that "significant sentences must be imposed even for the slightest breaches" of LTO.<ref> | It is incorrect to conclude that the sentencing factors for a breach of an LTO is "protection of the public". It is not necessary that "significant sentences must be imposed even for the slightest breaches" of LTO.<ref> | ||
{{ibid1|Ipeelee}} | {{ibid1|Ipeelee}}{{atsL|fqq00|48| to 49}}<br> | ||
</ref> | </ref> | ||
Severity of an LTO breach depends on factors including:<ref> | Severity of an LTO breach depends on factors including:<ref> | ||
{{supra1|Matte}} | {{supra1|Matte}}{{atL|fs2rh|37}}<br> | ||
{{supra1|Ipeelee}} | {{supra1|Ipeelee}}{{atsL|fqq00|52 and 55}} | ||
</ref> | </ref> | ||
# the circumstances of the breach; | # the circumstances of the breach; | ||
| Line 25: | Line 27: | ||
{{Reflist|2}} | {{Reflist|2}} | ||
===Requirements of a LTO=== | ===Requirements of a LTO=== | ||
{{ | {{quotation2| | ||
; Application for finding that an offender is a long-term offender | |||
753.1 (1) Application for finding that an offender is a long-term offender - The court may, on application made under this Part following the filing of an assessment report under subsection 752.1(2), find an offender to be a long-term offender if it is satisfied that | 753.1 (1) The court may, on application made under this Part following the filing of an assessment report under subsection 752.1(2), find an offender to be a long-term offender if it is satisfied that | ||
:(a) it would be appropriate to impose a sentence of imprisonment of two years or more for the offence for which the offender has been convicted; | |||
:(b) there is a substantial risk that the offender will reoffend; and | |||
:(c) there is a reasonable possibility of eventual control of the risk in the community. | |||
; Substantial risk | |||
(2) The court shall be satisfied that there is a substantial risk that the offender will reoffend if | |||
:(a) the offender has been convicted of an offence under section 151 (sexual interference), 152 (invitation to sexual touching) or 153 (sexual exploitation), subsection 163.1(2) (making child pornography), 163.1(3) (distribution, etc., of child pornography), 163.1(4) (possession of child pornography) or 163.1(4.1) (accessing child pornography), section 170 (parent or guardian procuring sexual activity), 171 (householder permitting sexual activity), 171.1 (making sexually explicit material available to child), 172.1 (luring a child) or 172.2 (agreement or arrangement — sexual offence against child), subsection 173(2) (exposure) or section 271 (sexual assault), 272 (sexual assault with a weapon) 273 (aggravated sexual assault) or 279.011 (trafficking — person under 18 years) or subsection 279.02(2) (material benefit — trafficking of person under 18 years), 279.03(2) (withholding or destroying documents — trafficking of person under 18 years), 286.1(2) (obtaining sexual services for consideration from person under 18 years), 286.2(2) (material benefit from sexual services provided by person under 18 years) or 286.3(2) (procuring — person under 18 years), or has engaged in serious conduct of a sexual nature in the commission of another offence of which the offender has been convicted; and | |||
:(b) the offender | |||
::(i) has shown a pattern of repetitive behaviour, of which the offence for which he or she has been convicted forms a part, that shows a likelihood of the offender’s causing death or injury to other persons or inflicting severe psychological damage on other persons, or | |||
::(ii) by conduct in any sexual matter including that involved in the commission of the offence for which the offender has been convicted, has shown a likelihood of causing injury, pain or other evil to other persons in the future through similar offences. | |||
Marginal note:Sentence for long-term offender | |||
(3) If the court finds an offender to be a long-term offender, it shall | |||
:(a) impose a sentence for the offence for which the offender has been convicted, which must be a minimum punishment of imprisonment for a term of two years; and | |||
:(b) order that the offender be subject to long-term supervision for a period that does not exceed 10 years. | |||
Marginal note:Exception — if application made after sentencing | |||
(3.1) The court may not impose a sentence under paragraph (3)(a) and the sentence that was imposed for the offence for which the offender was convicted stands despite the offender’s being found to be a long-term offender, if the application was one that | |||
(a) was made after the offender begins to serve the sentence in a case to which paragraphs 753(2)(a) and (b) apply; and | |||
(b) was treated as an application under this section further to the court deciding to do so under paragraph 753(5)(a). | |||
(4) and (5) [Repealed, 2008, c. 6, s. 44] | |||
Marginal note:If offender not found to be long-term offender | |||
(6) If the court does not find an offender to be a long-term offender, the court shall impose sentence for the offence for which the offender has been convicted. | |||
1997, c. 17, s. 42002, c. 13, s. 762008, c. 6, s. 442012, c. 1, s. 362014, c. 25, s. 30 | |||
Previous Version | |||
---- | |||
; Application for finding that an offender is a long-term offender | |||
753.1 (1) Application for finding that an offender is a long-term offender - The court may, on application made under this Part following the filing of an assessment report under subsection 752.1(2) {{AnnSec7|752.1(2)}}, find an offender to be a long-term offender if it is satisfied that | |||
:(a) it would be appropriate to impose a sentence of imprisonment of two years or more for the offence for which the offender has been convicted; | :(a) it would be appropriate to impose a sentence of imprisonment of two years or more for the offence for which the offender has been convicted; | ||
:(b) there is a substantial risk that the offender will reoffend; and | :(b) there is a substantial risk that the offender will reoffend; and | ||
:(c) there is a reasonable possibility of eventual control of the risk in the community. | :(c) there is a reasonable possibility of eventual control of the risk in the community. | ||
; Substantial risk | |||
(2) The court shall be satisfied that there is a substantial risk that the offender will reoffend if | (2) The court shall be satisfied that there is a substantial risk that the offender will reoffend if | ||
:(a) the offender has been convicted of an offence under section 151 (sexual interference), 152 (invitation to sexual touching) or 153 (sexual exploitation), subsection 163.1(2) (making child pornography), 163.1(3) (distribution, etc., of child pornography), 163.1(4) (possession of child pornography) or 163.1(4.1) (accessing child pornography), section 170 (parent or guardian procuring sexual activity), 171 (householder permitting sexual activity), 171.1 (making sexually explicit material available to child), 172.1 (luring a child) or 172.2 (agreement or arrangement — sexual offence against child), subsection 173(2) (exposure) or section 271 (sexual assault), 272 (sexual assault with a weapon) 273 (aggravated sexual assault) or 279.011 (trafficking — person under 18 years) or subsection 279.02(2) (material benefit — trafficking of person under 18 years), 279.03(2) (withholding or destroying documents — trafficking of person under 18 years), 286.1(2) (obtaining sexual services for consideration from person under 18 years), 286.2(2) (material benefit from sexual services provided by person under 18 years) or 286.3(2) (procuring — person under 18 years), or has engaged in serious conduct of a sexual nature in the commission of another offence of which the offender has been convicted; and | :(a) the offender has been convicted of an offence under section 151 ([[Sexual Interference (Offence)|sexual interference]]), 152 ([[Invitation to Sexual Touching (Offence)|invitation to sexual touching]]) or 153 ([[Sexual Exploitation (Offence)|sexual exploitation]]), subsection 163.1(2) ([[Child Pornography (Offence)|making child pornography]]), 163.1(3) ([[Child Pornography (Offence)|distribution, etc., of child pornography]]), 163.1(4) ([[Child Pornography (Offence)|possession of child pornography]]) or 163.1(4.1) ([[Child Pornography (Offence)|accessing child pornography]]), section 170 ([[Parent or Guardian Procuring Sexual Activity (Offence)|parent or guardian procuring sexual activity]]), 171 ([[Householder Permitting Sexual Activity (Offence)|householder permitting sexual activity]]), 171.1 ([[Making Sexually Explicit Materials Available to Child (Offence)|making sexually explicit material available to child]]), 172.1 ([[Child Luring (Offence)|luring a child]]) or 172.2 (agreement or arrangement — sexual offence against child), subsection 173(2) ([[Indecent Act (Offence)|exposure]]) or section 271 ([[Sexual Assault (Offence)|sexual assault]]), 272 (sexual assault with a weapon) 273 ([[Aggravated Sexual Assault (Offence)|aggravated sexual assault]]) or 279.011 (trafficking — person under 18 years) or subsection 279.02(2) (material benefit — trafficking of person under 18 years), 279.03(2) (withholding or destroying documents — trafficking of person under 18 years), 286.1(2) (obtaining sexual services for consideration from person under 18 years), 286.2(2) (material benefit from sexual services provided by person under 18 years) or 286.3(2) (procuring — person under 18 years), or has engaged in serious conduct of a sexual nature in the commission of another offence of which the offender has been convicted; and | ||
:(b) the offender | :(b) the offender | ||
::(i) has shown a pattern of repetitive behaviour, of which the offence for which he or she has been convicted forms a part, that shows a likelihood of the offender’s causing death or injury to other persons or inflicting severe psychological damage on other persons, or | ::(i) has shown a pattern of repetitive behaviour, of which the offence for which he or she has been convicted forms a part, that shows a likelihood of the offender’s causing death or injury to other persons or inflicting severe psychological damage on other persons, or | ||
::(ii) by conduct in any sexual matter including that involved in the commission of the offence for which the offender has been convicted, has shown a likelihood of causing injury, pain or other evil to other persons in the future through similar offences. | ::(ii) by conduct in any sexual matter including that involved in the commission of the offence for which the offender has been convicted, has shown a likelihood of causing injury, pain or other evil to other persons in the future through similar offences. | ||
; Sentence for long-term offender | |||
(3) | (3) If the court finds an offender to be a long-term offender, it shall | ||
:(a) | :(a) impose a sentence for the offence for which the offender has been convicted, which must be a minimum punishment of imprisonment for a term of two years; and | ||
:(b) | :(b) order that the offender be subject to long-term supervision for a period that does not exceed 10 years. | ||
; Exception — if application made after sentencing | |||
(3.1) The court may not impose a sentence under paragraph (3)(a) and the sentence that was imposed for the offence for which the offender was convicted stands despite the offender’s being found to be a long-term offender, if the application was one that | (3.1) The court may not impose a sentence under paragraph (3)(a) {{AnnSec7|753.1(3)(a)}} and the sentence that was imposed for the offence for which the offender was convicted stands despite the offender’s being found to be a long-term offender, if the application was one that | ||
:(a) was made after the offender begins to serve the sentence in a case to which paragraphs 753(2)(a) and (b) apply; and | :(a) was made after the offender begins to serve the sentence in a case to which paragraphs 753(2)(a) {{AnnSec7|753(2)(a)}} and (b) {{AnnSec7|753(2)(b)}} apply; and | ||
:(b) was treated as an application under this section further to the court deciding to do so under paragraph 753(5)(a). | :(b) was treated as an application under this section further to the court deciding to do so under paragraph 753(5)(a) {{AnnSec7|753(5)(a)}}. | ||
(4) and (5) [Repealed, 2008, c. 6, s. 44] | (4) and (5) [Repealed, {{LegHistory00s|2008, c. 6}}, s. 44] | ||
<br> | <br> | ||
; If offender not found to be long-term offender | |||
(6) If the court does not find an offender to be a long-term offender, the court shall impose sentence for the offence for which the offender has been convicted. | (6) If the court does not find an offender to be a long-term offender, the court shall impose sentence for the offence for which the offender has been convicted. | ||
<br> | <br> | ||
1997, c. 17, s. 4; 2002, c. 13, s. 76; 2008, c. 6, s. 44; 2012, c. 1, s. 36; 2014, c. 25, s. 30. | {{LegHistory90s|1997, c. 17}}, s. 4; | ||
| | {{LegHistory00s|2002, c. 13}}, s. 76; | ||
{{LegHistory00s|2008, c. 6}}, s. 44; | |||
{{LegHistory10s|2012, c. 1}}, s. 36; | |||
{{LegHistory10s|2014, c. 25}}, s. 30. | |||
{{Annotation}} | |||
|{{CCCSec2|753.1}} | |||
|{{NoteUp|753.1|1|2|3|3.1|6}} | |||
}} | }} | ||
Latest revision as of 07:03, 23 July 2024
| This page was last substantively updated or reviewed January 2016. (Rev. # 95637) |
General Principles
A long term offender order subjects an offender to supervision by Corrections Canada for a period of up to 10 years.
The purpose of the long term offender order is to “protect society from the threat that the offender currently poses -- and to do so without resort to the blunt instrument of indeterminate detention”.[1] It further intends to reintegrate the accused into the community.[2]
It is incorrect to conclude that the sentencing factors for a breach of an LTO is "protection of the public". It is not necessary that "significant sentences must be imposed even for the slightest breaches" of LTO.[3]
Severity of an LTO breach depends on factors including:[4]
- the circumstances of the breach;
- the nature of the condition breached; and
- the relationship between the condition breached and the management of offender’s risk of re-offence.
- ↑
R v Johnson, 2003 SCC 46 (CanLII), [2003] 2 SCR 357, per Iacobucci and Arbour JJ, at para 32
- ↑
R v Matte, 2012 ONCA 504 (CanLII), 111 OR (3d) 791, per Watt JA, at para 35: ("i. protecting the public from the risk of re-offence; and ii. rehabilitating the LTO and reintegrating him or her into the community.")
R v Ipeelee, 2012 SCC 13 (CanLII), [2012] 1 SCR 433, per LeBel J, at para 48
- ↑
Ipeelee, ibid., at paras 48 to 49
- ↑
Matte, supra, at para 37
Ipeelee, supra, at and 55 paras 52 and 55{{{3}}}
Requirements of a LTO
- Application for finding that an offender is a long-term offender
753.1 (1) The court may, on application made under this Part following the filing of an assessment report under subsection 752.1(2), find an offender to be a long-term offender if it is satisfied that
- (a) it would be appropriate to impose a sentence of imprisonment of two years or more for the offence for which the offender has been convicted;
- (b) there is a substantial risk that the offender will reoffend; and
- (c) there is a reasonable possibility of eventual control of the risk in the community.
- Substantial risk
(2) The court shall be satisfied that there is a substantial risk that the offender will reoffend if
- (a) the offender has been convicted of an offence under section 151 (sexual interference), 152 (invitation to sexual touching) or 153 (sexual exploitation), subsection 163.1(2) (making child pornography), 163.1(3) (distribution, etc., of child pornography), 163.1(4) (possession of child pornography) or 163.1(4.1) (accessing child pornography), section 170 (parent or guardian procuring sexual activity), 171 (householder permitting sexual activity), 171.1 (making sexually explicit material available to child), 172.1 (luring a child) or 172.2 (agreement or arrangement — sexual offence against child), subsection 173(2) (exposure) or section 271 (sexual assault), 272 (sexual assault with a weapon) 273 (aggravated sexual assault) or 279.011 (trafficking — person under 18 years) or subsection 279.02(2) (material benefit — trafficking of person under 18 years), 279.03(2) (withholding or destroying documents — trafficking of person under 18 years), 286.1(2) (obtaining sexual services for consideration from person under 18 years), 286.2(2) (material benefit from sexual services provided by person under 18 years) or 286.3(2) (procuring — person under 18 years), or has engaged in serious conduct of a sexual nature in the commission of another offence of which the offender has been convicted; and
- (b) the offender
- (i) has shown a pattern of repetitive behaviour, of which the offence for which he or she has been convicted forms a part, that shows a likelihood of the offender’s causing death or injury to other persons or inflicting severe psychological damage on other persons, or
- (ii) by conduct in any sexual matter including that involved in the commission of the offence for which the offender has been convicted, has shown a likelihood of causing injury, pain or other evil to other persons in the future through similar offences.
Marginal note:Sentence for long-term offender
(3) If the court finds an offender to be a long-term offender, it shall
- (a) impose a sentence for the offence for which the offender has been convicted, which must be a minimum punishment of imprisonment for a term of two years; and
- (b) order that the offender be subject to long-term supervision for a period that does not exceed 10 years.
Marginal note:Exception — if application made after sentencing
(3.1) The court may not impose a sentence under paragraph (3)(a) and the sentence that was imposed for the offence for which the offender was convicted stands despite the offender’s being found to be a long-term offender, if the application was one that
(a) was made after the offender begins to serve the sentence in a case to which paragraphs 753(2)(a) and (b) apply; and
(b) was treated as an application under this section further to the court deciding to do so under paragraph 753(5)(a).
(4) and (5) [Repealed, 2008, c. 6, s. 44]
Marginal note:If offender not found to be long-term offender
(6) If the court does not find an offender to be a long-term offender, the court shall impose sentence for the offence for which the offender has been convicted.
1997, c. 17, s. 42002, c. 13, s. 762008, c. 6, s. 442012, c. 1, s. 362014, c. 25, s. 30 Previous Version
- Application for finding that an offender is a long-term offender
753.1 (1) Application for finding that an offender is a long-term offender - The court may, on application made under this Part following the filing of an assessment report under subsection 752.1(2) [application for remand for assessment – reporting], find an offender to be a long-term offender if it is satisfied that
- (a) it would be appropriate to impose a sentence of imprisonment of two years or more for the offence for which the offender has been convicted;
- (b) there is a substantial risk that the offender will reoffend; and
- (c) there is a reasonable possibility of eventual control of the risk in the community.
- Substantial risk
(2) The court shall be satisfied that there is a substantial risk that the offender will reoffend if
- (a) the offender has been convicted of an offence under section 151 (sexual interference), 152 (invitation to sexual touching) or 153 (sexual exploitation), subsection 163.1(2) (making child pornography), 163.1(3) (distribution, etc., of child pornography), 163.1(4) (possession of child pornography) or 163.1(4.1) (accessing child pornography), section 170 (parent or guardian procuring sexual activity), 171 (householder permitting sexual activity), 171.1 (making sexually explicit material available to child), 172.1 (luring a child) or 172.2 (agreement or arrangement — sexual offence against child), subsection 173(2) (exposure) or section 271 (sexual assault), 272 (sexual assault with a weapon) 273 (aggravated sexual assault) or 279.011 (trafficking — person under 18 years) or subsection 279.02(2) (material benefit — trafficking of person under 18 years), 279.03(2) (withholding or destroying documents — trafficking of person under 18 years), 286.1(2) (obtaining sexual services for consideration from person under 18 years), 286.2(2) (material benefit from sexual services provided by person under 18 years) or 286.3(2) (procuring — person under 18 years), or has engaged in serious conduct of a sexual nature in the commission of another offence of which the offender has been convicted; and
- (b) the offender
- (i) has shown a pattern of repetitive behaviour, of which the offence for which he or she has been convicted forms a part, that shows a likelihood of the offender’s causing death or injury to other persons or inflicting severe psychological damage on other persons, or
- (ii) by conduct in any sexual matter including that involved in the commission of the offence for which the offender has been convicted, has shown a likelihood of causing injury, pain or other evil to other persons in the future through similar offences.
- Sentence for long-term offender
(3) If the court finds an offender to be a long-term offender, it shall
- (a) impose a sentence for the offence for which the offender has been convicted, which must be a minimum punishment of imprisonment for a term of two years; and
- (b) order that the offender be subject to long-term supervision for a period that does not exceed 10 years.
- Exception — if application made after sentencing
(3.1) The court may not impose a sentence under paragraph (3)(a) [authority to make a long-term offender order – impose sentence of 2 years or more] and the sentence that was imposed for the offence for which the offender was convicted stands despite the offender’s being found to be a long-term offender, if the application was one that
- (a) was made after the offender begins to serve the sentence in a case to which paragraphs 753(2)(a) [timing of application – notice before sentencing, application w/in 6 months] and (b) [timing of application – notice after sentencing, new information] apply; and
- (b) was treated as an application under this section further to the court deciding to do so under paragraph 753(5)(a) [if offender not found to be dangerous offender – make long-term offender order].
(4) and (5) [Repealed, 2008, c. 6, s. 44]
- If offender not found to be long-term offender
(6) If the court does not find an offender to be a long-term offender, the court shall impose sentence for the offence for which the offender has been convicted.
1997, c. 17, s. 4; 2002, c. 13, s. 76; 2008, c. 6, s. 44; 2012, c. 1, s. 36; 2014, c. 25, s. 30.
[annotation(s) added]