Canadian Criminal Sentencing/Long-term and Dangerous Offender Designation

Introduction

Part XXIV of the Code, between s. 752 and 761, creates a regime to designate certain offenders as either "long-term offenders" (LTO) or "dangerous offenders" (DO). These offenders will be subject to either a long-term offender supervision order, in the case of an LTO, or a order of indeterminate detention, in the case of the DO.

A judge of a provincial court or a superior court judge may issue a LTO or DO order.

Assessment for LTO/DO

The starting point for determining if an offender can be designated an LTO or DO is to have the offender psychologically assessed.

Notice

Prosecutor’s duty to advise court
752.01 If the prosecutor is of the opinion that an offence for which an offender is convicted is a serious personal injury offence that is a designated offence and that the offender was convicted previously at least twice of a designated offence and was sentenced to at least two years of imprisonment for each of those convictions, the prosecutor shall advise the court, as soon as feasible after the finding of guilt and in any event before sentence is imposed, whether the prosecutor intends to make an application under subsection 752.1(1).
2008, c. 6, s. 41.

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Application

Application for remand for assessment
752.1 (1) On application by the prosecutor, if the court is of the opinion that there are reasonable grounds to believe that an offender who is convicted of a serious personal injury offence or an offence referred to in paragraph 753.1(2)(a) might be found to be a dangerous offender under section 753 or a long-term offender under section 753.1, the court shall, by order in writing, before sentence is imposed, remand the offender, for a period not exceeding 60 days, to the custody of a person designated by the court who can perform an assessment or have an assessment performed by experts for use as evidence in an application under section 753 or 753.1.
Report
(2) The person to whom the offender is remanded shall file a report of the assessment with the court not later than 30 days after the end of the assessment period and make copies of it available to the prosecutor and counsel for the offender.
Extension of time
(3) On application by the prosecutor, the court may extend the period within which the report must be filed by a maximum of 30 days if the court is satisfied that there are reasonable grounds to do so.
1997, c. 17, s. 4; 2008, c. 6, s. 41.

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Long Term Offender (LTO)

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”. It further intends to reintegrate the accused into the community.

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.

Severity of an LTO breach depends on factors including:

1. the circumstances of the breach;
2. the nature of the condition breached; and
3. the relationship between the condition breached and the management of offender’s risk of re-offence.

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), 212(2) (living on the avails of prostitution of person under eighteen), 212(2.1) (aggravated offence in relation to living on the avails of prostitution of a person under the age of eighteen years) or 212(4) (offence — prostitution of person under eighteen) or section 271 (sexual assault), 272 (sexual assault with a weapon) or 273 (aggravated sexual assault), 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.

...
(6)  If offender not found to be long-term offender - 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.

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Consequence of LTO Finding

s. 753.1 states that :

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.

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Under s. 752, insteances 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)"

Dangerous Offender (DO)

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 determinitae sentence to an index offence.

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”

Requirements of a DO

Application for finding that an offender is a dangerous offender
753. (1) On application made under this Part after an assessment report is filed under subsection 752.1(2), 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 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 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.

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) or (b), as the case may be, are presumed to have been met unless the contrary is proved on a balance of probabilities.
...
R.S., 1985, c. C-46, s. 753; 1997, c. 17, s. 4; 2008, c. 6, s. 42.

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There are two ways to establish a 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.

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.

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".

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.

Before considering whether the offender is a Dangerous Offender, the Court must consider whether the accused is a Long Term Offfender (LTO).

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.

Intractable condition

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

In determining intractability, the courts have considered the following:

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.

Reasonable possibility of controlling risk in the community

There is no need for the Crown to show uncontrollability of the offender

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

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.

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

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

"Pattern of Persistent Behaviour"

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

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).

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."

"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. 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."

Serious Personal Injury Offences

s. 752
...
“serious personal injury offence” means

(a) an indictable offence, other than high treason, treason, first degree murder or second degree murder, involving

(i) the use or attempted use of violence against another person, or

(ii) conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage on another person,

and for which the offender may be sentenced to imprisonment for ten years or more, or

(b) an offence or attempt to commit an offence mentioned in section 271 (sexual assault), 272 (sexual assault with a weapon, threats to a third party or causing bodily harm) or 273 (aggravated sexual assault).

R.S., 1985, c. C-46, s. 752; 2008, c. 6, ss. 40, 61; 2010, c. 3, s. 8; 2012, c. 1, s. 35.

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In determining whether an offence is a SPIO, the court does not need to be "limited to considering only those contextual factors that relate to the conduct" of the accused. The judge can look at the surrounding circumstances to determine if there has been an endangerment of another person under s. 752.

Robberies have frequently been found to a serious personal injury offence.

Not every threat made while brandishing a weapon involves violence, particularly where there is no immediate apparent danger.

Where there is a threat of any sort the question of it amounting to violence is a question of fact. Robberies involving utterances or brandishing of objects have been a mixed result.

"use or attempted use of violence"

The use or attempted use of violence does not necessarily require overt violence. Several cases have stated that a robbery wherein a weapon such as a knife is displayed amounts to an act of violence.

The meaning of "violence" in this context covers a "very expansive range of dangerous behaviour".

"conduct endangering...life or safety"

This can cover the offence of leaving the scene of an accident under s. 252(3.1)

"inflict severe psychological damage"

SPI offences do not have to be offences against persons. They may also be lesser offences that involve conduct that inflicts or likely inflicts severe psychological damage. This can include offences involving sending threatening letters to victim to dissuade them from giving evidence.

A party to an offence of violence, such as someone who counsels robbery with violence, can be found to have committed a serious personal injury offence.

It is not necessary to adduce expert evidence about the risk of severe psychological damage. The judge may determine it on an objective consideration of the evidence.

Designated Offences

752
...
“designated offence” means

(a) a primary designated offence,

(b) an offence under any of the following provisions:

(i) paragraph 81(1)(a) (using explosives),

(ii) paragraph 81(1)(b) (using explosives),

(iii) section 85 (using firearm or imitation firearm in commission of offence),

(iv) section 87 (pointing firearm),

(iv.1) section 98 (breaking and entering to steal firearm),

(iv.2) section 98.1 (robbery to steal firearm),

(v) section 153.1 (sexual exploitation of person with disability),

(vi) section 163.1 (child pornography),

(vii) section 170 (parent or guardian procuring sexual activity),

(viii) section 171 (householder permitting sexual activity by or in presence of child),

(ix) section 172.1 (luring child),

(ix.1) section 172.2 (agreement or arrangement — sexual offence against child),

(x) subsection 212(1) (procuring),

(x.1) subsection 212(2) (living on avails of prostitution of person under eighteen),

(xi) subsection 212(2.1) (aggravated offence in relation to living on avails of prostitution of person under 18),

(xii) subsection 212(4) (prostitution of person under 18),

(xiii) section 245 (administering noxious thing),

(xiv) section 266 (assault),

(xv) section 269 (unlawfully causing bodily harm),

(xvi) section 269.1 (torture),

(xvii) paragraph 270(1)(a) (assaulting peace officer),

(xviii) section 273.3 (removal of child from Canada),

(xix) subsection 279(2) (forcible confinement),

(xx) section 279.01 (trafficking in persons),

(xx.1) section 279.011 (trafficking of a person under the age of eighteen years),

(xxi) section 279.1 (hostage taking),

(xxii) section 280 (abduction of person under age of 16),

(xxiii) section 281 (abduction of person under age of 14),

(xxiv) section 344 (robbery), and

(xxv) section 348 (breaking and entering with intent, committing offence or breaking out),

(c) an offence under any of the following provisions of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as they read from time to time before January 1, 1988:

(i) subsection 146(2) (sexual intercourse with female between ages of 14 and 16),

(ii) section 148 (sexual intercourse with feeble-minded),

(iii) section 166 (parent or guardian procuring defilement), and

(iv) section 167 (householder permitting defilement), or

(d) an attempt or conspiracy to commit an offence referred to in paragraph (b) or (c);

...
R.S., 1985, c. C-46, s. 752; 2008, c. 6, ss. 40, 61; 2010, c. 3, s. 8; 2012, c. 1, s. 35.

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Later in s. 752:

“primary designated offence” means

(a) an offence under any of the following provisions:

(i) section 151 (sexual interference),

(ii) section 152 (invitation to sexual touching),

(iii) section 153 (sexual exploitation),

(iv) section 155 (incest),

(v) section 239 (attempt to commit murder),

(vi) section 244 (discharging firearm with intent),

(vii) section 267 (assault with weapon or causing bodily harm),

(viii) section 268 (aggravated assault),

(ix) section 271 (sexual assault),

(x) section 272 (sexual assault with weapon, threats to third party or causing bodily harm),

(xi) section 273 (aggravated sexual assault), and

(xii) subsection 279(1) (kidnapping),

(b) an offence under any of the following provisions of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as they read from time to time before January 4, 1983:

(i) section 144 (rape),

(ii) section 145 (attempt to commit rape),

(iii) section 149 (indecent assault on female),

(iv) section 156 (indecent assault on male),

(v) subsection 245(2) (assault causing bodily harm), and

(vi) subsection 246(1) (assault with intent) if the intent is to commit an offence referred to in any of subparagraphs (i) to (v) of this paragraph,

(c) an offence under any of the following provisions of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as enacted by section 19 of An Act to amend the Criminal Code in relation to sexual offences and other offences against the person and to amend certain other Acts in relation thereto or in consequence thereof, chapter 125 of the Statutes of Canada, 1980-81-82-83:

(i) section 246.1 (sexual assault),

(ii) section 246.2 (sexual assault with weapon, threats to third party or causing bodily harm), and

(iii) section 246.3 (aggravated sexual assault),

(d) an offence under any of the following provisions of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as they read from time to time before January 1, 1988:

(i) subsection 146(1) (sexual intercourse with female under age of 14), and

(ii) paragraph 153(1)(a) (sexual intercourse with step-daughter), or

(e) an attempt or conspiracy to commit an offence referred to in any of paragraphs (a) to (d);

...
R.S., 1985, c. C-46, s. 752; 2008, c. 6, ss. 40, 61; 2010, c. 3, s. 8; 2012, c. 1, s. 35.

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This is similar but different from DNA primary designated offences

Digests

• Canadian Criminal Sentencing/Cases/LTO and DO Applications