Serious Personal Injury Offences: Difference between revisions
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{{Currency2|November|2023}} | |||
{{LevelZero}}{{HeaderLTODO}} | {{LevelZero}}{{HeaderLTODO}} | ||
==General Principles== | ==General Principles== | ||
A Dangerous Offender or Long-Term Offender Application can only be made in relation to a conviction for a "serious personal injury offence" (SPIO) under s. 752{{CCC}}. | |||
A Dangerous Offender or Long-Term Offender Application can only be made in relation to a conviction for a "serious personal injury offence" (SPIO) under s. 752. | |||
Prior to the legislative amendments to the Code in August 2012, offences otherwise eligible for a conditional | Prior to the legislative amendments to the Code in August 2012, offences otherwise eligible for a conditional sentence were deemed ineligible if they were serious personal injury offences. | ||
{{ | The definition of "serious personal injury offence" under s. 752 reads as follows: | ||
{{quotation2| | |||
"serious personal injury offence" means | 752 In this Part {{AnnSec|Part XXIV}},<br> | ||
{{ellipsis}} | |||
'''"serious personal injury offence"''' means | |||
:(a) an indictable offence, other than high treason, treason, first degree murder or second degree murder, involving | :(a) an indictable offence, other than high treason, treason, first degree murder or second degree murder, involving | ||
::(i) the use or attempted use of violence against another person, or | ::(i) the use or attempted use of violence against another person, or | ||
::(ii) conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage on another person, | ::(ii) conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage on another person, | ||
:and for which the offender may be sentenced to imprisonment for ten years or more, or | :and for which the offender may be sentenced to imprisonment for ten years or more, or | ||
:(b) an offence or attempt to commit an offence mentioned in section 271 (sexual assault), 272 (sexual assault with a weapon, threats to a third party or causing bodily harm) or 273 (aggravated sexual assault). | :(b) an offence or attempt to commit an offence mentioned in section 271 ([[Sexual Assault (Offence)|sexual assault]]), 272 ([[Sexual Assault with a Weapon or Causing Bodily Harm (Offence)|sexual assault with a weapon, threats to a third party or causing bodily harm]]) or 273 ([[Aggravated Sexual Assault (Offence)|aggravated sexual assault]]). | ||
<br> | <br> | ||
R.S., 1985, c. C-46, s. 752; 2008, c. 6, ss. 40, 61; 2010, c. 3, s. 8; 2012, c. 1, s. 35; 2014, c. 25, s. 29. | R.S., {{LegHistory80s|1985, c. C-46}}, s. 752; | ||
{{LegHistory00s|2008, c. 6}}, ss. 40, 61; | |||
{{LegHistory10s|2010, c. 3}}, s. 8; | |||
{{LegHistory10s|2012, c. 1}}, s. 35; | |||
{{LegHistory10s|2014, c. 25}}, s. 29. | |||
| | |{{CCCSec2|752}} | ||
|{{NoteUp|752}} | |||
}} | }} | ||
In determining whether an offence is a SPIO, the court does not need to be "limited to considering only those contextual factors that relate to the conduct" of the accused.<ref> | Except those offences enumerated in subsection (b), "any particular offence is not invariably a serious personal injury offence"{{cleanup}}.<ref> | ||
{{CanLIIRP|Goulet|fmfnb|2011 ABCA 230 (CanLII)|277 CCC (3d) 557}}{{perABCA|Slatter JA}}{{AtL|fmfnb|9}} ("The Crown concedes that any particular offence is not invariably a “serious personal injury offence”. There are some offences (for example, aggravated assault) which will likely always be serious personal injury offences. There are, however, offences which might sometimes be serious personal injury offences, and sometimes not, depending on the particular facts underlying the conviction.") | |||
</ref> | |||
; Contextual Application | |||
In determining whether an offence is a SPIO, the court does not need to be "limited to considering only those contextual factors that relate to the conduct" of the accused.<ref> | |||
{{CanLIIRP|Goulet|fmfnb|2011 ABCA 230 (CanLII)|277 CCC (3d) 557}}{{perABCA|Slatter JA}}{{atL|fmfnb|14}}<br> | |||
</ref> | |||
It is a case-by-case assessment.<ref> | |||
{{CanLIIRP|Steele|gdw0v|2014 SCC 61 (CanLII)|[2014] 3 SCR 138}}{{perSCC|Wagner J}} | |||
</ref> | |||
The judge can look at the surrounding circumstances to determine if there has been an endangerment of another person under s. 752.<ref> | |||
{{CanLIIRx|Ali|2f1cf|2010 ABPC 393 (CanLII)}}{{perABPC|Wheatley J}}{{atsL|2f1cf|13| to 17}}</ref> | |||
SPIO is not restricted to offences against the person and can include any offences meeting the definition.<ref> | SPIO is not restricted to offences against the person and can include any offences meeting the definition.<ref> | ||
{{CanLIIRP|Morgan|1k02k|2005 CanLII 7254 (ON CA)|195 CCC (3d) 408}}{{perONCA|MacFarland JA}} | |||
</ref> | </ref> | ||
Sexual assault | ; Example Offences – Sexual Offences | ||
Sexual assault can be a SPIO under both 752(a) and (b).<ref> | |||
{{CanLIIRP|MBH|1gw8x|2004 CanLII 14199 (ON CA)|186 CCC (3d) 62}}{{perONCA-H|Doherty JA}}<br> | |||
{{CanLIIRP|JY|1mb30|1996 CanLII 4916 (SK CA)|104 CCC (3d) 512}}{{perSKCA|Sherstobitoff JA}}<br> | |||
</ref> | |||
Making and possessing child pornography have been considered too.<Ref> | |||
{{CanLIIR|Snowden|k16kl|2023 ONCA 768 (CanLII)}}{{perONCA|Trotter JA}}{{AtL|k16kl|45}} | |||
</ref> | </ref> | ||
Robberies have frequently been found to a serious personal injury offence. | ; Example Offences – Robbery | ||
Robberies have frequently been found to a serious personal injury offence.<ref> | |||
e.g. {{CanLIIRP|Griffin|fnwsk|2011 NSCA 103 (CanLII)|279 CCC (3d) 464}}{{perNSCA|Bryson JA}} | |||
{{CanLIIRP|Lebar|28wdc|2010 ONCA 220 (CanLII)|[2010] OJ No 1133}}{{perONCA|Epstein JA}}<br> | |||
cf. {{CanLIIRP|Hendsbee|264cl|2009 NSPC 50 (CanLII)|85 WCB (2d) 168}}{{perNSPC|Tufts J}}<br> | |||
{{CanLIIRx|Sutherland|28vkk|2010 ONCJ 103 (CanLII)}}{{perONCJ|Lipson J}} <br> | |||
</ref> | |||
Not every threat made while brandishing a weapon involves violence, particularly where there is no immediate apparent danger.<ref> | Not every threat made while brandishing a weapon involves violence, particularly where there is no immediate apparent danger.<ref> | ||
Ponticorvo | {{CanLIIRP|Ponticorvo|22xkz|2009 ABCA 117 (CanLII)|246 CCC (3d) 48}}{{TheCourtABCA}}</ref> | ||
Where there is a threat of any sort the question of it amounting to violence is a question of fact.<ref> | ; Appellate Standard of Review | ||
Where there is a threat of any sort the question of it amounting to violence is a question of fact.<ref> | |||
{{CanLIIRP|Lebar|28wdc|2010 ONCA 220 (CanLII)|252 CCC (3d) 411}}{{perONCA|Epstein JA}}{{atL|28wdc|50}}</ref> | |||
Robberies involving utterances or brandishing of objects have been a mixed result.<ref> | |||
{{CanLIIRx|Przybyla|fs4dd|2012 ABPC 183 (CanLII)}}{{perABPC|Barley J}} - no violence upon saying "give me money or I'll stab [a non-existent person]" | |||
{{CanLIIRP|Pearson|fr1pc|2012 ABQB 240 (CanLII)|538 AR 236}}{{perABQB|Michalyshyn J}} - no violence by holding out a pocketknife and asking for money and then leaving when none was provided | |||
</ref> | </ref> | ||
| Line 47: | Line 82: | ||
The use or attempted use of violence does not necessarily require overt violence. | The use or attempted use of violence does not necessarily require overt violence. | ||
Several cases have stated that a robbery wherein a weapon such as a knife is displayed amounts to an act of violence.<ref> | Several cases have stated that a robbery wherein a weapon such as a knife is displayed amounts to an act of violence.<ref> | ||
{{CanLIIRP|Lebar|28wdc|2010 ONCA 220 (CanLII)|252 CCC (3d) 411}}{{perONCA|Epstien JA}}<br> | |||
{{CanLIIRP|Griffin|fnwsk|2011 NSCA 103 (CanLII)|279 CCC (3d) 464}}{{perNSCA|Bryson JA}}<br> | |||
cf. {{CanLIIRP|Simpson|fpqkw|2012 SKPC 18 (CanLII)|389 Sask R 157}}{{perSKPC|Tomkins J}}<br> | |||
</ref> | </ref> | ||
The meaning of "violence" in this context covers a "very expansive range of dangerous behaviour" | The meaning of "violence" in this context covers a "very expansive range of dangerous behaviour."<ref> | ||
{{supra1|Lebar}}{{atL|28wdc|49}}</ref> | |||
{{Reflist|2}} | {{Reflist|2}} | ||
| Line 58: | Line 94: | ||
=="conduct endangering...life or safety"== | =="conduct endangering...life or safety"== | ||
This can cover the offence of leaving the scene of an accident under s. 252(3.1)<ref> | This can cover the offence of leaving the scene of an accident under s. 320.16 [was s. 252(3.1)].<ref> | ||
{{CanLIIRP|Goulet|fmfnb|2011 ABCA 230 (CanLII)|277 CCC (3d) 557}}{{perABCA|Slatter JA}}<br> | |||
{{CanLIIRx|Ali|2f1cf|2010 ABPC 393 (CanLII)}}{{perABPC|Wheatley J}}<br> | |||
cf. {{CanLIIRx|Bruce|fpq11|2012 ABPC 8 (CanLII)}}{{perABPC|Fradsham J}} <br> | |||
</ref> | </ref> | ||
The two branches of "endanger or likely to endanger" should be read as one test.< | The two branches of "endanger or likely to endanger" should be read as one test.<ref> | ||
{{supra1|Goulet}} ("The distinction between “endangerment” and “likely endangerment” is at one level only conceptual, and these two parts of the definition are best read together as one test.") | |||
</ref> | </ref> | ||
{{Reflist|2}} | {{Reflist|2}} | ||
| Line 73: | Line 110: | ||
SPI offences do not have to be offences against persons. They may also be lesser offences that involve conduct that inflicts or likely inflicts severe psychological damage. This can include offences involving sending threatening letters to the victim to dissuade them from giving evidence. | SPI offences do not have to be offences against persons. They may also be lesser offences that involve conduct that inflicts or likely inflicts severe psychological damage. This can include offences involving sending threatening letters to the victim to dissuade them from giving evidence. | ||
<ref> | <ref> | ||
{{CanLIIRP|Morgan|1k02k|2005 CanLII 7254 (ON CA)|195 CCC (3d) 408}}{{perONCA|MacFarland JA}} - leave to appeal refused - obstructing justice charge by sending a letter, found as SPIO<br> | |||
{{CanLIIR-N|SM|, [2005] OJ No 1041}} threatening letter was SPIO<br> | |||
</ref> | </ref> | ||
A party to an offence of violence, such as someone who counsels robbery with violence, can be found to have committed a serious personal injury offence.< | A party to an offence of violence, such as someone who counsels robbery with violence, can be found to have committed a serious personal injury offence.<ref> | ||
{{CanLIIRP|Keepness|28vlb|2010 SKQB 118 (CanLII)|351 Sask R 284}}{{perSKQB|Dawson J}}</ref> | |||
It is not necessary to adduce expert evidence about the risk of severe psychological damage. The judge may determine it on an objective consideration of the evidence.<ref> | It is not necessary to adduce expert evidence about the risk of severe psychological damage. The judge may determine it on an objective consideration of the evidence.<ref> | ||
{{CanLIIRP|Walker|1fbgw|2000 CanLII 16974 (ON CA)|[2000] OJ No 4091}}{{TheCourtONCA}}{{atL|1fbgw|7}}<br> | |||
{{CanLIIRP|McGraw|1fshr|1991 CanLII 29 (SCC)|[1991] 3 SCR 72}}{{perSCC|Cory J}}<br> | |||
</ref> | </ref> | ||
{{Reflist|2}} | {{Reflist|2}} | ||
Latest revision as of 11:55, 29 September 2024
| This page was last substantively updated or reviewed November 2023. (Rev. # 96541) |
General Principles
A Dangerous Offender or Long-Term Offender Application can only be made in relation to a conviction for a "serious personal injury offence" (SPIO) under s. 752 of the Criminal Code.
Prior to the legislative amendments to the Code in August 2012, offences otherwise eligible for a conditional sentence were deemed ineligible if they were serious personal injury offences.
The definition of "serious personal injury offence" under s. 752 reads as follows:
752 In this Part [Pt. XXIV – Dangerous Offenders and Long-Term Offenders (ss. 752 to 761)],
...
"serious personal injury offence" means
- (a) an indictable offence, other than high treason, treason, first degree murder or second degree murder, involving
- (i) the use or attempted use of violence against another person, or
- (ii) conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage on another person,
- and for which the offender may be sentenced to imprisonment for ten years or more, or
- (b) an offence or attempt to commit an offence mentioned in section 271 (sexual assault), 272 (sexual assault with a weapon, threats to a third party or causing bodily harm) or 273 (aggravated sexual assault).
R.S., 1985, c. C-46, s. 752; 2008, c. 6, ss. 40, 61; 2010, c. 3, s. 8; 2012, c. 1, s. 35; 2014, c. 25, s. 29.
Except those offences enumerated in subsection (b), "any particular offence is not invariably a serious personal injury offence"(cleaned up).[1]
- Contextual Application
In determining whether an offence is a SPIO, the court does not need to be "limited to considering only those contextual factors that relate to the conduct" of the accused.[2] It is a case-by-case assessment.[3]
The judge can look at the surrounding circumstances to determine if there has been an endangerment of another person under s. 752.[4]
SPIO is not restricted to offences against the person and can include any offences meeting the definition.[5]
- Example Offences – Sexual Offences
Sexual assault can be a SPIO under both 752(a) and (b).[6] Making and possessing child pornography have been considered too.[7]
- Example Offences – Robbery
Robberies have frequently been found to a serious personal injury offence.[8]
Not every threat made while brandishing a weapon involves violence, particularly where there is no immediate apparent danger.[9]
- Appellate Standard of Review
Where there is a threat of any sort the question of it amounting to violence is a question of fact.[10] Robberies involving utterances or brandishing of objects have been a mixed result.[11]
- ↑ R v Goulet, 2011 ABCA 230 (CanLII), 277 CCC (3d) 557, per Slatter JA, at para 9 ("The Crown concedes that any particular offence is not invariably a “serious personal injury offence”. There are some offences (for example, aggravated assault) which will likely always be serious personal injury offences. There are, however, offences which might sometimes be serious personal injury offences, and sometimes not, depending on the particular facts underlying the conviction.")
- ↑
R v Goulet, 2011 ABCA 230 (CanLII), 277 CCC (3d) 557, per Slatter JA, at para 14
- ↑ R v Steele, 2014 SCC 61 (CanLII), [2014] 3 SCR 138, per Wagner J
- ↑ R v Ali, 2010 ABPC 393 (CanLII), per Wheatley J, at paras 13 to 17
- ↑ R v Morgan, 2005 CanLII 7254 (ON CA), 195 CCC (3d) 408, per MacFarland JA
- ↑
R v MBH, 2004 CanLII 14199 (ON CA), 186 CCC (3d) 62, per Doherty JA
R v JY, 1996 CanLII 4916 (SK CA), 104 CCC (3d) 512, per Sherstobitoff JA
- ↑ R v Snowden, 2023 ONCA 768 (CanLII), per Trotter JA, at para 45
- ↑
e.g. R v Griffin, 2011 NSCA 103 (CanLII), 279 CCC (3d) 464, per Bryson JA
R v Lebar, 2010 ONCA 220 (CanLII), [2010] OJ No 1133, per Epstein JA
cf. R v Hendsbee, 2009 NSPC 50 (CanLII), 85 WCB (2d) 168, per Tufts J
R v Sutherland, 2010 ONCJ 103 (CanLII), per Lipson J
- ↑ R v Ponticorvo, 2009 ABCA 117 (CanLII), 246 CCC (3d) 48, per curiam
- ↑ R v Lebar, 2010 ONCA 220 (CanLII), 252 CCC (3d) 411, per Epstein JA, at para 50
- ↑ R v Przybyla, 2012 ABPC 183 (CanLII), per Barley J - no violence upon saying "give me money or I'll stab [a non-existent person]" R v Pearson, 2012 ABQB 240 (CanLII), 538 AR 236, per Michalyshyn J - no violence by holding out a pocketknife and asking for money and then leaving when none was provided
"use or attempted use of violence"
The use or attempted use of violence does not necessarily require overt violence. Several cases have stated that a robbery wherein a weapon such as a knife is displayed amounts to an act of violence.[1]
The meaning of "violence" in this context covers a "very expansive range of dangerous behaviour."[2]
- ↑
R v Lebar, 2010 ONCA 220 (CanLII), 252 CCC (3d) 411, per Epstien JA
R v Griffin, 2011 NSCA 103 (CanLII), 279 CCC (3d) 464, per Bryson JA
cf. R v Simpson, 2012 SKPC 18 (CanLII), 389 Sask R 157, per Tomkins J
- ↑ Lebar, supra, at para 49
"conduct endangering...life or safety"
This can cover the offence of leaving the scene of an accident under s. 320.16 [was s. 252(3.1)].[1]
The two branches of "endanger or likely to endanger" should be read as one test.[2]
- ↑
R v Goulet, 2011 ABCA 230 (CanLII), 277 CCC (3d) 557, per Slatter JA
R v Ali, 2010 ABPC 393 (CanLII), per Wheatley J
cf. R v Bruce, 2012 ABPC 8 (CanLII), per Fradsham J
- ↑ Goulet, supra ("The distinction between “endangerment” and “likely endangerment” is at one level only conceptual, and these two parts of the definition are best read together as one test.")
"inflict severe psychological damage"
SPI offences do not have to be offences against persons. They may also be lesser offences that involve conduct that inflicts or likely inflicts severe psychological damage. This can include offences involving sending threatening letters to the victim to dissuade them from giving evidence. [1]
A party to an offence of violence, such as someone who counsels robbery with violence, can be found to have committed a serious personal injury offence.[2]
It is not necessary to adduce expert evidence about the risk of severe psychological damage. The judge may determine it on an objective consideration of the evidence.[3]
- ↑
R v Morgan, 2005 CanLII 7254 (ON CA), 195 CCC (3d) 408, per MacFarland JA - leave to appeal refused - obstructing justice charge by sending a letter, found as SPIO
R v SM, [2005] OJ No 1041(*no CanLII links) threatening letter was SPIO
- ↑ R v Keepness, 2010 SKQB 118 (CanLII), 351 Sask R 284, per Dawson J
- ↑
R v Walker, 2000 CanLII 16974 (ON CA), [2000] OJ No 4091, per curiam, at para 7
R v McGraw, 1991 CanLII 29 (SCC), [1991] 3 SCR 72, per Cory J