Requirements for a Long Term Offender Designation: Difference between revisions

Revision as of 17:48, 20 January 2019

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), 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), 280 CCC (3d) 265, per LeBel J, at para 48
↑ Ipeelee, ibid., at paras 48 to 49
↑ Matte, supra, at para 37
Ipeelee, supra at paras 52 and 55

Requirements of a LTO

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

(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 offender found to be long-term offender - Subject to subsection 3.1, (4) and (5), 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 sentence must be a minimum punishment of imprisonment for a term of two years; and

(b) order the offender to be supervised in the community, for a period not exceeding 10 years, in accordance with section 753.2 and the Corrections and Conditional Release Act.

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]
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.

– CCC

[1] R v Johnson, 2003 SCC 46 (CanLII), [2003] 2 SCR 357, per Iacobucci and Arbour JJ, at para 32

[2] R v Matte, 2012 ONCA 504 (CanLII), 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), 280 CCC (3d) 265, per LeBel J, at para 48

[3] Ipeelee, ibid., at paras 48 to 49

[4] Matte, supra, at para 37
Ipeelee, supra at paras 52 and 55

[1]

[2]

[3]

[4]

@@ Line 32: / Line 32: @@
 :(c) there is a reasonable possibility of eventual control of the risk in the community.
-'''Substantial risk'''<br>
+; 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