Consequences of a Long Term Offender Designation: Difference between revisions
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The dominant consideration when determining the length of the order is the "protection of society" | The dominant consideration when determining the length of the order is the "protection of society."<ref> | ||
{{CanLIIRT|Millie|jptvj|2022 SKQB 139 (CanLII)}}{{atL|jptvj|53}}<Br> | {{CanLIIRT|Millie|jptvj|2022 SKQB 139 (CanLII)}}{{atL|jptvj|53}}<Br> | ||
{{CanLIIRT|Key|28lw3|2010 SKQB 95 (CanLII)|351 Sask R 211}}<br> | {{CanLIIRT|Key|28lw3|2010 SKQB 95 (CanLII)|351 Sask R 211}}<br> | ||
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; "Danger to the Community" | ; "Danger to the Community" | ||
The meaning of "danger to the community" should be considered in reference to 1) the risk of re-offence and 2) the gravity of the damage in the event of re-offence.<ref> | The meaning of "danger to the community" should be considered in reference to 1) the risk of re-offence and 2) the gravity of the damage in the event of re-offence.<ref> | ||
{{CanLIIRP|Knoblauch|524n|2000 SCC 58 (CanLII)|[2000] 2 SCR 780}}{{perSCC|Arbour J}} | {{CanLIIRP|Knoblauch|524n|2000 SCC 58 (CanLII)|[2000] 2 SCR 780}}{{perSCC-H|Arbour J}} | ||
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Latest revision as of 14:27, 14 July 2024
| This page was last substantively updated or reviewed January 2023. (Rev. # 95442) |
Consequence of LTO Finding
The imposition of an LTO is part of the sentencing process and so incorporates the purposes and principles of sentencing found in s. 718 to 718.2.[1]
Section 753.1 states that:
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.
[omitted (3.1), (4) and (5), and (6)]
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.
An LTO is a form of conditional release "reserved for an offender who is one step from being sentenced to an indeterminate period of imprisonment."[2]
Under s. 752, instances of the phrase "long-term supervision" refers to "long-term supervision ordered under subsection 753(4), 753.01(5) or (6) or 753.1(3) or subparagraph 759(3)(a)(i)"
- 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, s. 147.
[annotation(s) added]
- "Long-term supervision"
- Definitions
752 In this Part [Pt. XXIV – Dangerous Offenders and Long-Term Offenders (ss. 752 to 761)],
...
'"long-term supervision" means long-term supervision ordered under subsection 753(4) [sentence for dangerous offender], 753.01(5) [sentence of indeterminate detention] or (6) [new long-term supervision] or 753.1(3) [authority to make a long-term offender order – order] or subparagraph 759(3)(a)(i) [disposition of appeal – DO, LTO or normal disposition]; (surveillance de longue durée)
...
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; 2018, c. 21, s. 25.
[annotation(s) added]
- ↑
R v KRS, 2004 SKCA 127 (CanLII) (working hyperlinks pending) at para 65
- ↑ R v Payne, 2001 CanLII 28422 (ON SC) (working hyperlinks pending), per Hill J, at para 125
Order
- Exception to long-term supervision — life sentence
755 (1) The court shall not order that an offender be subject to long-term supervision if they have been sentenced to life imprisonment.
[omitted (2)]
R.S., 1985, c. C-46, s. 755; 1997, c. 17, s. 5; 2008, c. 6, s. 49.
Duration
- Exception to long-term supervision — life sentence
755 [omitted (1)]
- Maximum length of long-term supervision
(2) The periods of long-term supervision to which an offender is subject at any particular time must not total more than 10 years.
R.S., 1985, c. C-46, s. 755; 1997, c. 17, s. 5; 2008, c. 6, s. 49.
The dominant consideration when determining the length of the order is the "protection of society."[1]
The judge should assess:[2]
- the risk of re-offending
- the effectiveness of any possible treatment programs.
- "length and level of supervision necessary to provide the required support "
- structure upon release from imprisonment.
There should also be consideration of the severe consequences of a breach including reincarceration for the unexpired balance of the term.[3]
- ↑
R v Millie, 2022 SKQB 139 (CanLII) (working hyperlinks pending), at para 53
R v Key, 2010 SKQB 95 (CanLII) (working hyperlinks pending)
R v Payne, 2001 CanLII 28422 (ON SC) (working hyperlinks pending), per Hill J, at para 126 ("The protection of society is the dominant consideration in determining the term or duration of the order.")
- ↑
R v KRS, 2004 SKCA 127 (CanLII) (working hyperlinks pending) at para 65 ("The fixing of the length of this order requires an assessment of the risk of re‑offending and an assessment of the effectiveness of any possible treatment programs ")
R v Blair, 2002 BCCA 205 (CanLII) (working hyperlinks pending)
R v Millie, 2022 SKQB 139 (CanLII) (working hyperlinks pending), at para 53 - ↑ KRS, supra at para 65 ("In finding an appropriate length for the supervision order, one must also have regard for the severity of this type of order. Any breach of more than a trifling nature can result in incarceration for the unexpired balance of the term. ")
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.
Application to Reduce Duration of LTO
753.2
[omitted (1) and (2)]
- Application for reduction in period of long-term supervision
(3) An offender who is required to be supervised, a member of the National Parole Board or, on approval of that Board, the offender’s parole supervisor, as defined in subsection 99(1) of the Corrections and Conditional Release Act, may apply to a superior court of criminal jurisdiction for an order reducing the period of long-term supervision or terminating it on the ground that the offender no longer presents a substantial risk of reoffending and thereby being a danger to the community. The onus of proving that ground is on the applicant.
- Notice to Attorney General
(4) The applicant must give notice of an application under subsection (3) [application for reduction in period of long-term offender] to the Attorney General at the time the application is made.
1997, c. 17, s. 4; 2008, c. 6, s. 45; 2012, c. 1, s. 147.
[annotation(s) added]
In addition, s. 753.4(2) permits a judge sentencing the offender for a new offence while on an LTO order to reduce the length of the order.
- "Danger to the Community"
The meaning of "danger to the community" should be considered in reference to 1) the risk of re-offence and 2) the gravity of the damage in the event of re-offence.[1]
- ↑ R v Knoblauch, 2000 SCC 58 (CanLII), [2000] 2 SCR 780, per Arbour J
Breach of Long Term Offender 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.
- Where accused may be tried and punished
(2) An accused who is charged with an offence under subsection (1) [breach of long-term supervision order] may be tried and punished by any court having jurisdiction to try that offence in the place where the offence is alleged to have been committed or in the place where the accused is found, is arrested or is in custody, but if the place where the accused is found, is arrested or is in custody is outside the province in which the offence is alleged to have been committed, no proceedings in respect of that offence shall be instituted in that place without the consent of the Attorney General of that province.
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.
- Reduction in term of long-term supervision
(2) A court that imposes a sentence of imprisonment under subsection (1) [long-term supervision suspended while serving new sentences] may order a reduction in the length of the period of the offender’s long-term supervision.
1997, c. 17, s. 4; 2008, c. 6, s. 47.