Conséquences d'une désignation de délinquant dangereux
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Principes généraux
There are two phases to a dangerous offender hearing. First, there is a "designation phase" governed by s. 743(1). Second, there is a "penalty phase" governed by s. 743(4) and (4.1).[1]
Upon conducting a hearing under s. 752 a court may find that the offender is a "dangerous offender". Once such a finding is made the court then has the obligation to determine what is the proper consequence as provided under section 752.1 (4). The court must do one of the following:
- impose a sentence of detention in a penitentiary for an indeterminate period;
- 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 order that the offender be subject to long-term supervision for a period that does not exceed 10 years; or
- impose a sentence for the offence for which the offender has been convicted.
- ↑
R c Straub, 2022 ONCA 47 (CanLII), par Watt JA, au para 52
Findings on A Dangerous Offender Hearing
753
[omis (1), (1.1), (2) and (3)]
- Sentence for dangerous offender
(4) If the court finds an offender to be a dangerous offender, it shall
- (a) impose a sentence of detention in a penitentiary for an indeterminate period;
- (b) 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 order that the offender be subject to long-term supervision for a period that does not exceed 10 years; or
- (c) impose a sentence for the offence for which the offender has been convicted.
- 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) [peine pour délinquant dangereux – ordonnance de délinquant à contrôler] or (c) [peine pour délinquant dangereux – condamné pour l'infraction répertoriée] will adequately protect the public against the commission by the offender of murder or a serious personal injury offence.
- If application made after sentencing
(4.2) If the application is made after the offender begins to serve the sentence in a case to which paragraphs (2)(a) [moment de la demande – avis avant la détermination de la peine, demande dans les 6 mois] and (b) [moment de la demande – avis après la détermination de la peine, nouveaux renseignements] apply, a sentence imposed under paragraph (4)(a) [peine pour délinquant dangereux – peine indéterminée], or a sentence imposed and an order made under paragraph 4(b), replaces the sentence that was imposed for the offence for which the offender was convicted.
- If offender not found to be dangerous offender
(5) If the court does not find an offender to be a dangerous offender,
- (a) the court may treat the application as an application to find the offender to be a long-term offender, section 753.1 [pouvoir de rendre une ordonnance de délinquant à contrôler] applies to the application and the court may either find that the offender is a long-term offender or hold another hearing for that purpose; or
- (b) the court may impose sentence for the offence for which the offender has been convicted.
R.S., 1985, c. C-46, s. 753; 1997, c. 17, s. 4; 2008, c. 6, s. 42.
[annotation(s) ajoutée(s)]
Section 753(4) is an exhaustive list of available penalties once an offender is designated "dangerous."[1]
For a dangerous offender sentencing, protection of public as a sentencing objective is "enhanced."[2]
- "Reasonable Expectation"
A "reasonable expectation" is equivalent to a "likelihood", a "belief that something would happen", or a "confident belief, for good and sufficient reasons."[3] It is not the more stringent standard of "reasonable possibility."[4]
- ↑
R c Straub, 2022 ONCA 47 (CanLII), 411 CCC (3d) 119, par Watt JA, au para 57
- ↑
, ibid., au para 59
R c Pelly, 2021 SKCA 50 (CanLII), 403 CCC (3d) 127, par Tholl JA, au para 28
- ↑
Straub, supra, au para 62
Pelly, supra, au para 35
R c DJS, 2015 BCCA 111 (CanLII), 120 WCB (2d) 321, par Newbury JA, au para 30
R c Sanderson, 2018 MBCA 63 (CanLII), par Steel JA, au para 20
Awasis at para 73
- ↑
Straub, supra, au para 62
R c Groves, 2020 ONCA 86 (CanLII), [2020] OJ No 458, par curiam, au para 15
Findings on a Long Term Offender Hearing
753.1
[omis (1) and (2)]
- 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.
- Exception — if application made after sentencing
(3.1) The court may not impose a sentence under paragraph (3)(a) [pouvoir de rendre une ordonnance de délinquant à contrôler – imposer une peine de 2 ans ou plus] 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) [moment de la demande – avis avant la détermination de la peine, demande dans les 6 mois] and (b) [moment de la demande – avis après la détermination de la peine, nouveaux renseignements] apply; and
- (b) was treated as an application under this section further to the court deciding to do so under paragraph 753(5)(a) [si le délinquant n'est pas jugé dangereux – rendre une ordonnance de délinquant à contrôler].
(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.
[annotation(s) ajoutée(s)]
- Long-term supervision
753.2 (1) Subject to subsection (2) [ordonnance de délinquant à contrôler – peine purgée simultanément], an offender who is subject to long-term supervision shall be supervised in the community in accordance with the Corrections and Conditional Release Act when the offender has finished serving
- (a) the sentence for the offence for which the offender has been convicted; and
- (b) all other sentences for offences for which the offender is convicted and for which sentence of a term of imprisonment is imposed on the offender, either before or after the conviction for the offence referred to in paragraph (a).
- Sentence served concurrently with supervision
(2) A sentence imposed on an offender referred to in subsection (1) [ordonnance de délinquant à contrôler – début après une autre peine], other than a sentence that requires imprisonment, is to be served concurrently with the long-term supervision.
[omis (3) and (4)]
1997, c. 17, s. 4; 2008, c. 6, s. 45; 2012, c. 1, ss. 147, 160.
[annotation(s) ajoutée(s)]
Parole Under a Dangerous Offender Order
- Review for parole
761 (1) Subject to subsection (2) [délinquants désignés délinquants dangereux avant octobre 1977], where a person is in custody under a sentence of detention in a penitentiary for an indeterminate period, the Parole Board of Canada shall, as soon as possible after the expiration of seven years from the day on which that person was taken into custody and not later than every two years after the previous review, review the condition, history and circumstances of that person for the purpose of determining whether he or she should be granted parole under Part II of the Corrections and Conditional Release Act and, if so, on what conditions.
- Idem
(2) Where a person is in custody under a sentence of detention in a penitentiary for an indeterminate period that was imposed before October 15, 1977, the Parole Board of Canada shall, at least once in every year, review the condition, history and circumstances of that person for the purpose of determining whether he should be granted parole under Part II of the Corrections and Conditional Release Act and, if so, on what conditions.
R.S., 1985, c. C-46, s. 761; 1992, c. 20, s. 215; 1997, c. 17, s. 8; 2012, c. 1, s. 160.
Materials Forwarded to Correctional Service of Canada
- Disclosure to Correctional Service of Canada
760 Where a court finds an offender to be a dangerous offender or a long-term offender, the court shall order that a copy of all reports and testimony given by psychiatrists, psychologists, criminologists and other experts and any observations of the court with respect to the reasons for the finding, together with a transcript of the trial of the offender, be forwarded to the Correctional Service of Canada for information.
R.S., 1985, c. C-46, s. 760; 1997, c. 17, s. 7.
Breach of LTO Order
- Breach of long-term supervision
753.3 (1) An offender who, without reasonable excuse, fails or refuses to comply with long-term supervision is guilty of
- (a) an indictable offence and liable to imprisonment for a term of not more than 10 years; or
- (b) an offence punishable on summary conviction.
[omis (2)]
1997, c. 17, s. 4; 2008, c. 6, s. 46; 2019, c. 25, s. 307.
- New offence
753.4 (1) If an offender who is subject to long-term supervision commits one or more offences under this or any other Act and a court imposes a sentence of imprisonment for the offence or offences, the long-term supervision is interrupted until the offender has finished serving all the sentences, unless the court orders its termination.
[omis (2)]
1997, c. 17, s. 4; 2008, c. 6, s. 47.