Consequences of a Dangerous Offender Designation: Difference between revisions
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[[Fr:Conséquences_d%27une_désignation_de_délinquant_dangereux]] | |||
{{Currency2|January|2020}} | |||
{{HeaderLTODO}} | {{HeaderLTODO}} | ||
==General Principles== | |||
{{seealso|Long-Term and Dangerous Offender Designation|Requirements for a Dangerous Offender Designation}} | |||
There are two phases to a dangerous offender hearing. First, there is a "designation phase" governed by s. 743(1). Second, there is a "penalty phase" governed by s. 743(4) and (4.1).<Ref> | |||
{{CanLIIR|Straub|jlwgk|2022 ONCA 47 (CanLII)}}{{perONCA-H|Watt JA}}{{atL|jlwgk|52}}<Br> | |||
</ref> | |||
Upon conducting a hearing under s. 752 a court may find that the offender is a "dangerous offender". Once such a finding is made the court then has the obligation to determine what is the proper consequence as provided under section 752.1 (4). The court must do one of the following: | Upon conducting a hearing under s. 752 a court may find that the offender is a "dangerous offender". Once such a finding is made the court then has the obligation to determine what is the proper consequence as provided under section 752.1 (4). The court must do one of the following: | ||
* impose a sentence of detention in a penitentiary for an indeterminate period; | * impose a sentence of detention in a penitentiary for an indeterminate period; | ||
* 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 order that the offender be subject to long-term supervision for a period that does not exceed 10 years; or | * 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 order that the offender be subject to long-term supervision for a period that does not exceed 10 years; or | ||
* impose a sentence for the offence for which the offender has been convicted. | * impose a sentence for the offence for which the offender has been convicted. | ||
{{Reflist|2}} | |||
==Findings on A Dangerous Offender Hearing== | ==Findings on A Dangerous Offender Hearing== | ||
{{ | {{quotation2| | ||
753<br>. | 753<br> | ||
{{removed|(1), (1.1), (2) and (3)}} | |||
; Sentence for dangerous offender | ; Sentence for dangerous offender | ||
(4) If the court finds an offender to be a dangerous offender, it shall | (4) If the court finds an offender to be a dangerous offender, it shall | ||
| Line 34: | Line 42: | ||
{{LegHistory00s|2008, c. 6}}, s. 42. | {{LegHistory00s|2008, c. 6}}, s. 42. | ||
{{Annotation}} | {{Annotation}} | ||
| | |{{CCCSec2|753}} | ||
|{{NoteUp|753|4|4.1|4.2|5}} | |||
}} | }} | ||
Section 753(4) is an exhaustive list of available penalties once an offender is designated "dangerous."<Ref> | |||
{{CanLIIRP|Straub|jlwgk|2022 ONCA 47 (CanLII)|411 CCC (3d) 119}}{{perONCA-H|Watt JA}}{{atL|jlwgk|57}}<Br> | |||
</ref> | |||
For a dangerous offender sentencing, protection of public as a sentencing objective is "enhanced."<REf> | |||
{{ibid1|Straub}}{{AtL|jlwgk|59}}<Br> | |||
{{CanLIIRP|Pelly|jf3fj|2021 SKCA 50 (CanLII)|403 CCC (3d) 127}}{{perSKCA|Tholl JA}}{{atL|jf3fj|28}}<Br> | |||
</reF> | |||
; "Reasonable Expectation" | |||
A "reasonable expectation" is equivalent to a "likelihood", a "belief that something would happen", or a "confident belief, for good and sufficient reasons."<ref> | |||
{{supra1|Straub}}{{atL|jlwgk|62}}<br> | |||
{{supra1|Pelly}}{{atL|jf3fj|35}}<Br> | |||
{{CanLIIRP|DJS|ggqbx|2015 BCCA 111 (CanLII)|120 WCB (2d) 321 }}{{perBCCA|Newbury JA}}{{AtL|ggqbx|30}}<Br> | |||
{{CanLIIRP|Sanderson|hs7mr|2018 MBCA 63 (CanLII)}}{{perMBCA|Steel JA}}{{AtL|hs7mr|20}}<Br> | |||
Awasis at para 73<Br> | |||
</ref> | |||
It is ''not'' the more stringent standard of "reasonable possibility."<ref> | |||
{{supra1|Straub}}{{atL|jlwgk|62}}<br> | |||
{{CanLIIRP|Groves|j524x|2020 ONCA 86 (CanLII)|[2020] OJ No 458}}{{TheCourtONCA}}{{AtL|j524x|15}}<br> | |||
</ref> | |||
{{reflist|2}} | |||
==Findings on a Long Term Offender Hearing== | ==Findings on a Long Term Offender Hearing== | ||
{{ | {{quotation2| | ||
753.1<br> | 753.1<br> | ||
{{removed|(1) and (2)}} | |||
; Sentence for long-term offender | ; Sentence for long-term offender | ||
(3) If the court finds an offender to be a long-term offender, it shall | (3) If the court finds an offender to be a long-term offender, it shall | ||
| Line 62: | Line 96: | ||
{{LegHistory10s|2014, c. 25}}, s. 30. | {{LegHistory10s|2014, c. 25}}, s. 30. | ||
{{Annotation}} | {{Annotation}} | ||
| | |{{CCCSec2|753.1}} | ||
|{{NoteUp|753.1|3|3.1|6}} | |||
}} | }} | ||
{{ | {{quotation2| | ||
; Long-term supervision | ; Long-term supervision | ||
753.2 (1) Subject to subsection (2) {{AnnSec7|753.2(2)}}, an offender who is subject to long-term supervision shall be supervised in the community in accordance with the Corrections and Conditional Release Act when the offender has finished serving | 753.2 (1) Subject to subsection (2) {{AnnSec7|753.2(2)}}, an offender who is subject to long-term supervision shall be supervised in the community in accordance with the Corrections and Conditional Release Act when the offender has finished serving | ||
| Line 74: | Line 109: | ||
(2) A sentence imposed on an offender referred to in subsection (1) {{AnnSec7|753.2(1)}}, other than a sentence that requires imprisonment, is to be served concurrently with the long-term supervision. | (2) A sentence imposed on an offender referred to in subsection (1) {{AnnSec7|753.2(1)}}, other than a sentence that requires imprisonment, is to be served concurrently with the long-term supervision. | ||
<br> | <br> | ||
{{removed|(3) and (4)}} | |||
{{LegHistory90s|1997, c. 17}}, s. 4; | {{LegHistory90s|1997, c. 17}}, s. 4; | ||
{{LegHistory00s|2008, c. 6}}, s. 45; | {{LegHistory00s|2008, c. 6}}, s. 45; | ||
{{LegHistory10s|2012, c. 1}}, ss. 147, 160. | {{LegHistory10s|2012, c. 1}}, ss. 147, 160. | ||
{{Annotation}} | {{Annotation}} | ||
| | |{{CCCSec2|753.2}} | ||
|{{NoteUp|753.2|1|2}} | |||
}} | }} | ||
==Parole Under a Dangerous Offender Order== | ==Parole Under a Dangerous Offender Order== | ||
{{ | {{quotation2| | ||
; Review for parole | ; Review for parole | ||
761 (1) Subject to subsection (2) {{AnnSec7|761(2)}}, where a person is in custody under a sentence of detention in a penitentiary for an indeterminate period, the Parole Board of Canada shall, as soon as possible after the expiration of seven years from the day on which that person was taken into custody and not later than every two years after the previous review, review the condition, history and circumstances of that person for the purpose of determining whether he or she should be granted parole under Part II of the Corrections and Conditional Release Act and, if so, on what conditions. | 761 (1) Subject to subsection (2) {{AnnSec7|761(2)}}, where a person is in custody under a sentence of detention in a penitentiary for an indeterminate period, the Parole Board of Canada shall, as soon as possible after the expiration of seven years from the day on which that person was taken into custody and not later than every two years after the previous review, review the condition, history and circumstances of that person for the purpose of determining whether he or she should be granted parole under Part II of the Corrections and Conditional Release Act and, if so, on what conditions. | ||
| Line 92: | Line 128: | ||
R.S., {{LegHistory80s|1985, c. C-46}}, s. 761; {{LegHistory90s|1992, c. 20}}, s. 215; {{LegHistory90s|1997, c. 17}}, s. 8; {{LegHistory10s|2012, c. 1}}, s. 160. | R.S., {{LegHistory80s|1985, c. C-46}}, s. 761; {{LegHistory90s|1992, c. 20}}, s. 215; {{LegHistory90s|1997, c. 17}}, s. 8; {{LegHistory10s|2012, c. 1}}, s. 160. | ||
| | |{{CCCSec2|761}} | ||
|{{NoteUp|761|1|2}} | |||
}} | }} | ||
| Line 98: | Line 135: | ||
==Materials Forwarded to Correctional Service of Canada== | ==Materials Forwarded to Correctional Service of Canada== | ||
{{ | {{quotation2| | ||
; Disclosure to Correctional Service of Canada | ; Disclosure to Correctional Service of Canada | ||
760 Where a court finds an offender to be a dangerous offender or a long-term offender, the court shall order that a copy of all reports and testimony given by psychiatrists, psychologists, criminologists and other experts and any observations of the court with respect to the reasons for the finding, together with a transcript of the trial of the offender, be forwarded to the Correctional Service of Canada for information.<br> | 760 Where a court finds an offender to be a dangerous offender or a long-term offender, the court shall order that a copy of all reports and testimony given by psychiatrists, psychologists, criminologists and other experts and any observations of the court with respect to the reasons for the finding, together with a transcript of the trial of the offender, be forwarded to the Correctional Service of Canada for information.<br> | ||
| Line 104: | Line 141: | ||
R.S., {{LegHistory80s|1985, c. C-46}}, s. 760; | R.S., {{LegHistory80s|1985, c. C-46}}, s. 760; | ||
{{LegHistory90s|1997, c. 17}}, s. 7. | {{LegHistory90s|1997, c. 17}}, s. 7. | ||
| | |{{CCCSec2|760}} | ||
|{{NoteUp|760}} | |||
}} | }} | ||
==Breach of LTO Order== | ==Breach of LTO Order== | ||
{{ | {{quotation2| | ||
; Breach of long-term supervision | ; Breach of long-term supervision | ||
753.3 (1) An offender who, without reasonable excuse, fails or refuses to comply with long-term supervision is guilty of | 753.3 (1) An offender who, without reasonable excuse, fails or refuses to comply with long-term supervision is guilty of | ||
:(a) an indictable offence and liable to imprisonment for a term of not more than 10 years; or | :(a) an indictable offence and liable to imprisonment for a term of not more than 10 years; or | ||
:(b) an offence punishable on summary conviction. | :(b) an offence punishable on summary conviction. | ||
{{removed|(2)}} | |||
{{LegHistory90s|1997, c. 17}}, s. 4; | {{LegHistory90s|1997, c. 17}}, s. 4; | ||
{{LegHistory00s|2008, c. 6}}, s. 46; | {{LegHistory00s|2008, c. 6}}, s. 46; | ||
{{LegHistory10s|2019, c. 25}}, s. 307. | {{LegHistory10s|2019, c. 25}}, s. 307. | ||
| | |{{CCCSec2|753.3}} | ||
|{{NoteUp|753.3|1}} | |||
}} | }} | ||
{{ | {{quotation2| | ||
; New offence | ; New offence | ||
753.4 (1) If an offender who is subject to long-term supervision commits one or more offences under this or any other Act and a court imposes a sentence of imprisonment for the offence or offences, the long-term supervision is interrupted until the offender has finished serving all the sentences, unless the court orders its termination. | 753.4 (1) If an offender who is subject to long-term supervision commits one or more offences under this or any other Act and a court imposes a sentence of imprisonment for the offence or offences, the long-term supervision is interrupted until the offender has finished serving all the sentences, unless the court orders its termination. | ||
<br> | <br> | ||
{{removed|(2)}} | |||
{{LegHistory90s|1997, c. 17}}, s. 4; {{LegHistory00s|2008, c. 6}}, s. 47. | {{LegHistory90s|1997, c. 17}}, s. 4; {{LegHistory00s|2008, c. 6}}, s. 47. | ||
| | |{{CCCSec2|753.4}} | ||
|{{NoteUp|753.4|1}} | |||
}} | }} | ||
Latest revision as of 07:04, 23 July 2024
| This page was last substantively updated or reviewed January 2020. (Rev. # 95672) |
General Principles
There are two phases to a dangerous offender hearing. First, there is a "designation phase" governed by s. 743(1). Second, there is a "penalty phase" governed by s. 743(4) and (4.1).[1]
Upon conducting a hearing under s. 752 a court may find that the offender is a "dangerous offender". Once such a finding is made the court then has the obligation to determine what is the proper consequence as provided under section 752.1 (4). The court must do one of the following:
- impose a sentence of detention in a penitentiary for an indeterminate period;
- 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 order that the offender be subject to long-term supervision for a period that does not exceed 10 years; or
- impose a sentence for the offence for which the offender has been convicted.
- ↑
R v Straub, 2022 ONCA 47 (CanLII), per Watt JA, at para 52
Findings on A Dangerous Offender Hearing
753
[omitted (1), (1.1), (2) and (3)]
- Sentence for dangerous offender
(4) If the court finds an offender to be a dangerous offender, it shall
- (a) impose a sentence of detention in a penitentiary for an indeterminate period;
- (b) 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 order that the offender be subject to long-term supervision for a period that does not exceed 10 years; or
- (c) impose a sentence for the offence for which the offender has been convicted.
- 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) [sentence for dangerous offender – long-term offender order] or (c) [sentence for dangerous offender – sentenced for index offence] will adequately protect the public against the commission by the offender of murder or a serious personal injury offence.
- If application made after sentencing
(4.2) If the application is made after the 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, a sentence imposed under paragraph (4)(a) [sentence for dangerous offender – indeterminate sentence], or a sentence imposed and an order made under paragraph 4(b), replaces the sentence that was imposed for the offence for which the offender was convicted.
- If offender not found to be dangerous offender
(5) If the court does not find an offender to be a dangerous offender,
- (a) the court may treat the application as an application to find the offender to be a long-term offender, section 753.1 [authority to make a long-term offender order] applies to the application and the court may either find that the offender is a long-term offender or hold another hearing for that purpose; or
- (b) the court may impose sentence for the offence for which the offender has been convicted.
R.S., 1985, c. C-46, s. 753; 1997, c. 17, s. 4; 2008, c. 6, s. 42.
[annotation(s) added]
Section 753(4) is an exhaustive list of available penalties once an offender is designated "dangerous."[1]
For a dangerous offender sentencing, protection of public as a sentencing objective is "enhanced."[2]
- "Reasonable Expectation"
A "reasonable expectation" is equivalent to a "likelihood", a "belief that something would happen", or a "confident belief, for good and sufficient reasons."[3] It is not the more stringent standard of "reasonable possibility."[4]
- ↑
R v Straub, 2022 ONCA 47 (CanLII), 411 CCC (3d) 119, per Watt JA, at para 57
- ↑
Straub, ibid., at para 59
R v Pelly, 2021 SKCA 50 (CanLII), 403 CCC (3d) 127, per Tholl JA, at para 28
- ↑
Straub, supra, at para 62
Pelly, supra, at para 35
R v DJS, 2015 BCCA 111 (CanLII), 120 WCB (2d) 321, per Newbury JA, at para 30
R v Sanderson, 2018 MBCA 63 (CanLII), per Steel JA, at para 20
Awasis at para 73
- ↑
Straub, supra, at para 62
R v Groves, 2020 ONCA 86 (CanLII), [2020] OJ No 458, per curiam, at para 15
Findings on a Long Term Offender Hearing
753.1
[omitted (1) and (2)]
- 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]
- Long-term supervision
753.2 (1) Subject to subsection (2) [long-term offender order – sentence served concurrently], an offender who is subject to long-term supervision shall be supervised in the community in accordance with the Corrections and Conditional Release Act when the offender has finished serving
- (a) the sentence for the offence for which the offender has been convicted; and
- (b) all other sentences for offences for which the offender is convicted and for which sentence of a term of imprisonment is imposed on the offender, either before or after the conviction for the offence referred to in paragraph (a).
- Sentence served concurrently with supervision
(2) A sentence imposed on an offender referred to in subsection (1) [long-term offender order – commencement after other sentence], other than a sentence that requires imprisonment, is to be served concurrently with the long-term supervision.
[omitted (3) and (4)]
1997, c. 17, s. 4; 2008, c. 6, s. 45; 2012, c. 1, ss. 147, 160.
[annotation(s) added]
Parole Under a Dangerous Offender Order
- Review for parole
761 (1) Subject to subsection (2) [offenders designated dangerous offender prior to October 1977], where a person is in custody under a sentence of detention in a penitentiary for an indeterminate period, the Parole Board of Canada shall, as soon as possible after the expiration of seven years from the day on which that person was taken into custody and not later than every two years after the previous review, review the condition, history and circumstances of that person for the purpose of determining whether he or she should be granted parole under Part II of the Corrections and Conditional Release Act and, if so, on what conditions.
- Idem
(2) Where a person is in custody under a sentence of detention in a penitentiary for an indeterminate period that was imposed before October 15, 1977, the Parole Board of Canada shall, at least once in every year, review the condition, history and circumstances of that person for the purpose of determining whether he should be granted parole under Part II of the Corrections and Conditional Release Act and, if so, on what conditions.
R.S., 1985, c. C-46, s. 761; 1992, c. 20, s. 215; 1997, c. 17, s. 8; 2012, c. 1, s. 160.
Materials Forwarded to Correctional Service of Canada
- Disclosure to Correctional Service of Canada
760 Where a court finds an offender to be a dangerous offender or a long-term offender, the court shall order that a copy of all reports and testimony given by psychiatrists, psychologists, criminologists and other experts and any observations of the court with respect to the reasons for the finding, together with a transcript of the trial of the offender, be forwarded to the Correctional Service of Canada for information.
R.S., 1985, c. C-46, s. 760; 1997, c. 17, s. 7.
Breach of LTO Order
- Breach of long-term supervision
753.3 (1) An offender who, without reasonable excuse, fails or refuses to comply with long-term supervision is guilty of
- (a) an indictable offence and liable to imprisonment for a term of not more than 10 years; or
- (b) an offence punishable on summary conviction.
[omitted (2)]
1997, c. 17, s. 4; 2008, c. 6, s. 46; 2019, c. 25, s. 307.
- New offence
753.4 (1) If an offender who is subject to long-term supervision commits one or more offences under this or any other Act and a court imposes a sentence of imprisonment for the offence or offences, the long-term supervision is interrupted until the offender has finished serving all the sentences, unless the court orders its termination.
[omitted (2)]
1997, c. 17, s. 4; 2008, c. 6, s. 47.