Requirements for a Dangerous Offender Designation

From Criminal Law Notebook

General Principles

Under s. 753, the Court may make an order declaring an accused a "Dangerous Offender" requiring the accused to serve an indeterminate sentence as opposed to a determinate sentence to an index offence.

There are two stages of analysis in a dangerous offender application. There is the "designation stage" followed by the "penalty stage".[1]

Purpose

The purpose of the dangerous offender order is to protect the public. It was designed “to carefully define a very small group of offenders whose personal characteristics and particular circumstances militate strenuously in favour of preventative incarceration”[2]

Constitutionality

Section 753(1) that authorizes the declaration of a dangerous offender does not violate s. 7 of the Charter.[3]

Burden

The Crown has the burden to establish each statutory requirement of dangerousness on a standard of beyond a reasonable doubt.[4]

  1. ↑ R v Boutilier, 2016 BCCA 235 (CanLII), per Smith J, at para 3
  2. ↑ R v Johnson, 2003 SCC 46 (CanLII), per Iacobucci and Arbour JJ, at para 19
  3. ↑ Boutilier, supra
  4. ↑ Boutilier, supra, at para 3
    R v Wormell, 2005 BCCA 328 (CanLII), per Southin JA
    R v Pike, 2010 BCCA 401 (CanLII), per Levine JA

Requirements for a Dangerous Offender Order

The court may declare an offender a “dangerous offender” where:
  1. the offender is convicted of a serious personal injury offender and constitutes an ongoing threat on the basis of:
    1. a “repetitive behavior” showing a failure of restraint and “likelihood” of causing injury or worse
    2. a “pattern of persistent aggressive behaviour” that shows “a substantial degree of indifference” to the “reasonably foreseeable consequences” of his behaviour; or
    3. in the “brutal nature” of the offence, the offender is not likely to be inhibited by the normal standards of behavioral constraints” or
  2. the offence is a serous personal injury offence and “has shown a failure to control his or her sexual impulses and a likelihood of causing injury”.
s. 753
Application for finding that an offender is a dangerous offender

753 (1) On application made under this Part [Pt. XXIV – Dangerous Offenders and Long-Term Offenders (ss. 752 to 761)] after an assessment report is filed under subsection 752.1(2) [application for remand for assessment – reporting], the court shall find the offender to be a dangerous offender if it is satisfied

(a) that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (a) of the definition of that expression in section 752 [dangerous Offenders and Long-term Offenders – definitions] and the offender constitutes a threat to the life, safety or physical or mental well-being of other persons on the basis of evidence establishing
(i) a pattern of repetitive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a failure to restrain his or her behaviour and a likelihood of causing death or injury to other persons, or inflicting severe psychological damage on other persons, through failure in the future to restrain his or her behaviour,
(ii) a pattern of persistent aggressive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a substantial degree of indifference on the part of the offender respecting the reasonably foreseeable consequences to other persons of his or her behaviour, or
(iii) any behaviour by the offender, associated with the offence for which he or she has been convicted, that is of such a brutal nature as to compel the conclusion that the offender’s behaviour in the future is unlikely to be inhibited by normal standards of behavioural restraint; or
(b) that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (b) of the definition of that expression in section 752 [dangerous Offenders and Long-term Offenders – definitions] and the offender, by his or her conduct in any sexual matter including that involved in the commission of the offence for which he or she has been convicted, has shown a failure to control his or her sexual impulses and a likelihood of causing injury, pain or other evil to other persons through failure in the future to control his or her sexual impulses.

[omitted (1.1), (2), (3), (4), (4.1), (4.2) and (5)]
(6) [Repealed, 2008, c. 6, s. 42]
R.S., 1985, c. C-46, s. 753; 1997, c. 17, s. 4; 2008, c. 6, s. 42.

– CCC

Note up: 753(1)

There are two ways to establish the criteria. The difference depends on which type of serious personal injury (SPI) offence has been established by the index offence. The first is of a more general nature of unlawfulness while the second targets sexual behaviour.

Section 753 does not preclude the sentencing judge from considering evidence relating to the prospects of future treatment when considering a dangerous offender designation.[1]

Burden

The burden is upon the crown to establish the necessary elements under s. 753(1)(a)(i) and (ii) or 753(1)(b) of a DO designation beyond a reasonable doubt. The burden must be proven beyond a reasonable doubt that the accused. The burden never switches to the accused.[2]

  1. ↑ R v Boutilier, 2017 SCC 64 (CanLII), per Cote J, at paras 21 to 23
  2. ↑ R v Carlton, 1981 ABCA 220 (CanLII), , [1981] 69 CCC (2d) 1 (ABCA), per McGillivray JA (6:1)

Dangerous Offender: General Violence

An SPI offence under s. 752(a) requires either some form of violence or risk of harm (see Serious Personal Injury Offences below for details). This type of SPI offence engages s. 753(1)(a), which requires that the "offender [constitute] a threat to the life, safety or physical or mental well-being of other persons" by reason of a "repetitive", "persistent", or "brutal" behaviour.

The criteria require:[1]

  1. pattern "repetitive dangerous behaviour";
  2. of which the predicate offence(s) form a part;
  3. that shows a failure to restrain the offender's behaviour in the past; and
  4. "in such a way as to provide a basis to predict the likelihood of the same behaviour occurring in the future".
  1. ↑ Boutilier, supra, at para 10
    R v Pike, 2010 BCCA 401 (CanLII), per Levine JA, at para 90

Dangerous Offender: Sexual Violence

Designation Based on Ongoing Risk of Sexual Violence (s. 753(1)(b))

Under the second branch found in s. 753(1)(b), the Crown must prove that:

  1. the offence is a serious personal injury offence as found in s. 752(b), namely an offence under s. 271 (Sexual Assault (Offence)), 272 (Sexual Assault Causing Bodily Harm (Offence) and Sexual Assault with a Weapon (Offence)), or 273 (Aggravated Sexual Assault (Offence))
  2. the offender "has shown a failure to control his or her sexual impulses and a likelihood of causing injury, pain or other evil ... through failure in the future to control his or her sexual impulses."(s. 753(1)(b))

An SPI offence under s. 752(b) requires the index offence be a type of sexual assault, sexual assault with a weapon, threats to a third party or causing bodily harm, or aggravated sexual assault. (see Serious Personal Injury Offences below for details). This type of SPI offence engages s. 753(1)(b), which requires that the offender "has shown a failure to control his or her sexual impulses and a likelihood of causing injury, pain or other evil to other persons through failure in the future to control his or her sexual impulses".

Before considering whether the offender is a Dangerous Offender, the Court must consider whether the accused is an LTO.[1]

It is only where an LTO is not an appropriate disposition, in light of sentencing principles of s. 718, that the court may consider a DO.

The requirement of "any sexual manner" is not limited to the predicate offence and can include any prior past sexual acts that demonstrate present risks.[2]

There is no need for the judge to focus on the objective seriousness of the predicate offence.[3]

Standard of Proof

The Court must be satisfied of the requirements beyond a reasonable doubt.[4]

Standard of Review

The finding of dangerousness is a finding of fact. As long as it is reasonable it should not be "lightly overturned".[5]

  1. ↑ see R v Johnson, 2003 SCC 46 (CanLII), per Iacobucci and Arbour JJ
  2. ↑ R v Currie, 1997 CanLII 347 (SCC), , [1997] 2 SCR 260 (CanLII), per Lamer CJ (9:0), at para 2
  3. ↑ Currie, ibid., at para 17
  4. ↑ Currie, ibid., at para 11
  5. ↑ Currie, ibid., at para 17

Dangerous Offender Shortcut

753
[omitted (1)]

Presumption

(1.1) If the court is satisfied that the offence for which the offender is convicted is a primary designated offence for which it would be appropriate to impose a sentence of imprisonment of two years or more and that the offender was convicted previously at least twice of a primary designated offence and was sentenced to at least two years of imprisonment for each of those convictions, the conditions in paragraph (1)(a) [dangerous offender application – serious personal injury plus criteria of threats] or (b) [dangerous offender application – serious personal injury plus sexual impulses], as the case may be, are presumed to have been met unless the contrary is proved on a balance of probabilities.
[omitted (1.1), (2), (3) and (4)]

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.
[omitted (4.2) and (5)]
(6) [Repealed, 2008, c. 6, s. 42]
R.S., 1985, c. C-46, s. 753; 1997, c. 17, s. 4; 2008, c. 6, s. 42.
[annotation(s) added]

– CCC

Note up: 753(1.1) and (4.1)

Section 753(4.1) create a presumption for an indeterminate sentence unless there is a "reasonable expectation" that an LTO or determinate sentence "will adequately protect the public against the commission by the offender of murder or a serious personal injury offence".[1]

The judge has the discretion to refuse to impose an indeterminate sentence where there is a "reasonable expectation" that a determinate sentence "would adequately protect the public, would seem to have potentially increased the number of offenders captured by the regime, it has not changed the nature or characteristics of the group of offenders targeted as dangerous".[2]

  1. ↑ Boutilier, supra, at para 11
  2. ↑ Boutilier, supra, at para 27

Intractable Condition

The Crown must prove that the offender's condition is substantially or pathologically intractable.[1]

In determining intractability, the courts have considered the following:[2]

  1. deeply ingrained personality disorders that are resistant to change;
  2. a lack of available and appropriate treatment facilities;
  3. a poor outlook for improvement, even where facilities exist;
  4. an inability to estimate or predict a timeframe for improvement;
  5. some, but very little hope for treatment some time in the future; and
  6. treatment that will be long and difficult because an offender has more than one disorder and a limited capacity to learn.

The court must be satisfied that the treatment can be accomplished within a certain time-frame within an LTO order for one to be available.[3]

  1. ↑ R v PBA, 2005 BCCA 121 (CanLII), per Newbury JA
  2. ↑ R v Ominayak, 2007 ABQB 442 (CanLII), per Topolniski J
  3. ↑ R v Higginbottom, 2001 CanLII 3989 (ONCA), per Charron JA

Reasonable Possibility of Controlling Risk in the Community

The judge must determine whether there is a "reasonable possibility of eventual control of the risk in the community, having regard to the whole of the evidence before it".[1]

A "reasonable possibility" should not mean "absolute certainty".[2]

"Reasonable possibility" requires not only that there is a "possibility" of future treatment. If there is a possibility, but it is "unlikely that such treatment or control can be effected within the parameters of the appropriate fixed sentence and supervisory conditions in the community", then an LTO is not appropriate.[3]

The finding of a remote possibility does not bar a dangerous offender order.[4]

It is not necessary that the sentencing judge finds "absolute intractability" resulting in the offender never being treatable in his lifetime.[5]

There is no need for the Crown to show uncontrollability of the offender.[6]

A "reasonable possibility" of controlling the risk must have an air of reality to it and cannot simply be a mere hope.[7]

The crown does not need to refute the possibility that there is a reasonable possibility that the risk to the community will eventually be controlled. [8]

In considering the risk to the community, the court may consider past failed attempts at rehabilitation.[9]

If the level of supervision is so great as to amount to custody the offender is not likely a candidate for a LTO.[10]

"Acceptable Level"

Should an offender be found to meet the definition of "dangerous offender" under s. 753(1), the sentencing judge must be satisfied that a long-term offender order would not be "sufficient to reduce this threat to an acceptable level"[11]

This determination is not on a standard of balance of probabilities or beyond a reasonable doubt.[12]

Determination of an "acceptable level" requires consideration of all factors that can reduce risk to public.[13]

Factors include "treatability". This factor does not require that the offender will be "cured" by the treatment or that rehabilitation "might be assured".[14] The factor requires proof that the "nature and severity" of the risk can be "sufficiently contained in a non-custodial setting in the community so as to protect the public".[15]

There is no expectation that risk be "eradicated" but only must be contained or managed.[16]

When relying upon community supervision, the availability of resources to implement the supervision "cannot be uncertain". Otherwise, it would be too "speculative", "preventing any reliable assurance that the unreasonable risks to public safety can be avoided".[17]

Treatment

It will be inappropriate to make an LTO order should the treatment conditions necessary to control the offender end up replicating jail terms.[18]

  1. ↑ R v Wormell, 2005 BCCA 328 (CanLII), per Southin JA, at para 61
  2. ↑ R v Little, 2007 ONCA 548 (CanLII), 87 O.R. (3d) 683, per Cronk JA, at para 39, leave to appeal ref’d [2008] SCCA No 39
  3. ↑ R v BAP, 2005 BCCA 121 (CanLII), 208 BCAC 303, per Newbury JA (2:1) leave to appeal ref’d [2005] SCCA No 445 , at para 30
  4. ↑ R v Dagenais, 2003 ABCA 376, per Wittmann JA, at para 91
  5. ↑ BAP, supra, at para 26
  6. ↑ R v Kopas, 2012 ONCA 16 (CanLII), per curiam
  7. ↑ R v DWAP, 2006 BCSC 1288 (CanLII), per D Smith J
  8. ↑ R v Moosomin, 2008 SKCA 169 (CanLII), per curiam, at para 40
  9. ↑ R v Otto, 2006 SKCA 52 (CanLII), per Gerwing JA, at para 22
  10. ↑ R v LG, 2007 ONCA 548 (CanLII), per Cronk JA, at para 62
  11. ↑ R v Johnson, 2003 SCC 46 (CanLII), per Iacobucci and Arbour JJ, at para 29
    R v Wormell, 2005 BCCA 328 (CanLII), per Southin JA
  12. ↑ Wormell, ibid., at paras 32 to 33
  13. ↑ R v Allan, 2009 BCSC 1245 (CanLII), per MacKenzie J, at para 245, upheld 2015 BCCA 229 (CanLII), per Savage JA
    GL, supra
  14. ↑ GL, supra, at para 42
    Allan (BCSC), supra, at para 245, upheld 2015 BCCA 229 (CanLII), per Savage JA
  15. ↑ Allan, supra (BCSC), at para 245
    GL, supra, at para 42
  16. ↑ Allen (BCSC), supra, at para 245
  17. ↑ GL, supra, at para 59
  18. ↑ GL, supra

"Pattern of Repetitive Behaviour"

Section 753(a)(i) requires that the applicant prove:[1]

  1. A pattern of repetitive behaviour;
  2. The predicate offence must form part of that pattern;
  3. That pattern must show a failure by the offender to restrain his or her behaviour in the past; and
  4. That pattern must show a likelihood of death, injury or severe psychological damage to other persons through failure to restrain his or her behaviour in the future.

Repetition does not require that the offences be "remarkably similar".[2] Where the most recent offence does not involve sexual penetration while the other do, does not create a break in a pattern.[3]

  1. ↑ R v Neve, 1999 ABCA 206 (CanLII), per curiam, at para 107
  2. ↑ R v Dorfer, 2013 BCCA 223 (CanLII), per Kirkpatrick JA, at para 40
  3. ↑ Dorfer, ibid., at para 26

"Pattern of Persistent Behaviour"

Section 753(a)(ii) requires that there be a "pattern of persistent behaviour" that shows a substantial degree of indifference respecting the foreseeable consequences of the offender's behaviour.

Persistent can have the same meaning as "enduring" or "constantly repeated".[1]

To determine if there is a pattern of repetitive behaviour, the court should consider the nature of the similarity of the predicate office. This includes considering "similarities in terms of the kind of offences" and where the offences are not "similar in kind", but "in results" upon the victims (ie. degree of violence).[2]

Where the offender commits a variety of crimes with no patterns, they can still be a "pattern of persistent behaviour". There "is no requirement that the past criminal actions all be of the same or similar form, order or arrangement; though if this has occurred, it may well suffice."[3]

Two or more incidents can amount to a "pattern".[4] However, they should have "remarkable similarity".[5]

A "pattern of persistent behaviour" is made out where there is all of the following:[6]

  1. repetitive behaviour;
  2. a failure in each case to restrain behaviour in each case;
  3. there has been an injury to other persons arising from that failure.
  1. ↑ R v Yanoshewski, 1996 CanLII 4916 (SK CA), (1996), 104 CCC (3d) 512, 141 Sask. R. 132 (C.A.), per Sherstobitoff JA, at p. 522 (CCC) ("The judge made no error in finding that the behaviour of the appellant was persistent in view of the fact that the period of time during which he committed the offences of which he was convicted extended from 1964 to 1992 without any significant periods during that time when no offences were being committed.")
  2. ↑ R v Neve, 1999 ABCA 206 (CanLII), per curiam, at para 111
  3. ↑ Neve, ibid., at para 111
  4. ↑ R v Langevin, (1984), 8 DLR (4th) 485, 11 CCC (3d) 336 (Ont. C.A.), 1984 CanLII 1914 (ON CA), per Lacourciere JA
  5. ↑ Neve, supra, at para 113
    Langevin, supra, at p. 498
  6. ↑ R v Dow, 1999 BCCA 177 (CanLII), per Lambert JA, at para 24

"Substantial Degree of Indifference"

When considering the criteria of "substantial degree of indifference" ,the court may look at the offender's actions in the offence as well as other offences.[1] The consideration should be upon whether "the offender has a conscious but uncaring awareness of causing harm to others and this has occurred over a period of long duration involving frequent acts and with significant consequences, this is sufficient to establish a substantial degree of indifference."[2]

  1. ↑ R v George, 1998 CanLII 5691 (BC CA), (1998), 126 CCC (3d) 384, [1998] BCJ No. 1505, per George JA at 394-95
  2. ↑ R v GNB, 2012 SKQB 397 (CanLII), per Acton J, at para 19

"Brutal Nature"

The actions do not need to amount "stark horror", but must amount to "conduct which is coarse, savage and cruel and which is capable of inflicting severe psychological damage".[1]

It includes offences that are "excessive, extreme, senseless, mean, vicious, merciless, ruthless, sadistic, unfeeling and violent."[2]

The presence of brutality varies with the crime, "the way in which [it was] committed, the effect(s) on the victim and the offender's attitude and mental state."[3]

The categories are not closed.[4]

It does not need to be raised to the point of "stark horror".[5]

  1. ↑ R v Langevin (1984), 8 DLR (4th) 485, 11 CCC (3d) 336 (Ont. C.A.), 1984 CanLII 1914 (ON CA), per Lacourciere JA
    R v Melanson, 2001 CanLII 24054 (ON CA), (2001), 152 CCC (3d) 375 (Ont. C.A.), per Carthy JA
    R v Dow, 1999 BCCA 177 (CanLII), per Lamert JA
  2. ↑ R v Paxton, 2013 ABQB 750 (CanLII), per Martin J, at para 311
    R v Campbell, [2004] OJ No 2151 (Ont Sup Ct J), 2004 CanLII 19316 (ON SC), per Hill J, at para 56
  3. ↑ Campbell, ibid., at para
  4. ↑ R v Ominayak, 2007 ABQB 442 (CanLII), per Topolniski J, at para 194
  5. ↑ Langevin, supra, at para 34

"Normal Standards of Behavioural Restraint"

Section 53(1)(a)(iii) requires that the offender be "unlikely to be inhibited by normal standards of behavioural restraint".

The Court must be satisfied that the offender's past conduct gives rise to a likelihood of future injury.[1] There is no need to prove that the offender will reoffend.[2]

This conclusion can be made by inference where it is "self-evident" from conduct that is "beyond the normal range of behaviour".[3]

  1. ↑ R v Carleton, 1981 ABCA 220 (CanLII), (1981), 32 AR 181, per McGillivary CJ (6:1) , at para 11
  2. ↑ R v Currie, 1997 CanLII 347 (CanLII), per Lamer CJ, at para 42
  3. ↑ R v Robinson, 2006 CanLII 33189 (ON CA), (2006), 212 CCC (3d) 439, per curiam, at para 55
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