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.

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.

Consequence of LTO Finding
s. 753.1 states that :

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
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
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
Later in s. 752:

This is similar but different from DNA primary designated offences

Digests

 * Canadian Criminal Sentencing/Cases/LTO and DO Applications