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".<ref> | 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> | ||
R v Allan, [http://canlii.ca/t/gj42g 2015 BCCA 229] (CanLII){{perBCCA|Savage JA}}, at para 3<br> | ''R v Allan'', [http://canlii.ca/t/gj42g 2015 BCCA 229] (CanLII){{perBCCA|Savage JA}}, at para 3<br> | ||
R v Currie, [http://canlii.ca/t/1fr27 1997 CanLII 347] (SCC), [1997] 2 SCR 260{{perSCC|Lamer CJ}} at para 33<br> | ''R v Currie'', [http://canlii.ca/t/1fr27 1997 CanLII 347] (SCC), [1997] 2 SCR 260{{perSCC|Lamer CJ}} at para 33<br> | ||
</ref> | </ref> | ||
A dangerous offender designation is reviewable on a standard of reasonableness.<Ref> | A dangerous offender designation is reviewable on a standard of reasonableness.<Ref> | ||
R v Boutilier, [http://canlii.ca/t/grx23 2016 BCCA 235] (CanLII){{perBCCA|D Smith JA}} at para 86<Br> | ''R v Boutilier'', [http://canlii.ca/t/grx23 2016 BCCA 235] (CanLII){{perBCCA|D Smith JA}} at para 86<Br> | ||
Currie{{supra}} at para 33<br> | Currie{{supra}} at para 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> | ||
R v Bragg, [http://canlii.ca/t/gmcvq 2015 BCCA 498] (CanLII){{perBCCA|MacKenzie JA}} at paras 19 to 22<Br> | ''R v Bragg'', [http://canlii.ca/t/gmcvq 2015 BCCA 498] (CanLII){{perBCCA|MacKenzie JA}} at paras 19 to 22<Br> | ||
R v Sawyer, [http://canlii.ca/t/gl0zh 2015 ONCA 602] (CanLII){{perONCA|Tulloch JA}} at paras 26 to 29<br> | ''R v Sawyer'', [http://canlii.ca/t/gl0zh 2015 ONCA 602] (CanLII){{perONCA|Tulloch JA}} at paras 26 to 29<br> | ||
</ref> | </ref> | ||
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==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> | ||
R v Lyons, [1987] 2 SCR 309, [http://canlii.ca/t/1ftlw 1987 CanLII 25] (SCC){{perSCC|La Forest J}} at p. 364<br> | ''R v Lyons'', [1987] 2 SCR 309, [http://canlii.ca/t/1ftlw 1987 CanLII 25] (SCC){{perSCC|La Forest J}} at p. 364<br> | ||
R v Boutilier, [http://canlii.ca/t/grx23 2016 BCCA 235] (CanLII){{perBCCA|D Smith JA}} at para 86<br> | ''R v Boutilier'', [http://canlii.ca/t/grx23 2016 BCCA 235] (CanLII){{perBCCA|D Smith JA}} at para 86<br> | ||
</ref> | </ref> | ||
Revision as of 20:35, 12 January 2019
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), per D Smith JA at para 86
Currie, supra at para 33
- ↑
R v Bragg, 2015 BCCA 498 (CanLII), per MacKenzie JA at paras 19 to 22
R v Sawyer, 2015 ONCA 602 (CanLII), 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 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 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, 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), 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 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.
– CCC
- ↑
R v Lyons, [1987] 2 SCR 309, 1987 CanLII 25 (SCC), per La Forest J at p. 364
R v Boutilier, 2016 BCCA 235 (CanLII), per D Smith JA at para 86