What is a Dangerous Offender Application?

•  In Canada people convicted of violent criminal offences may be designated as Dangerous Offenders.
• People who are designated as Dangerous Offenders are subject to a longer, or indefinite, term of detention.
• The rational for this practice is that their detention is preventative and exists in order to protect the public.
• People designated as Dangerous Offenders typically have been found guilty of multiple counts of violent offences, that would not necessarily keep them incarcerated according to typical sentencing principles and legislation, such as the Correctional and Conditional Release Act.
• Under subsection 761(1) of the Criminal Code once an individual is found to be a Dangerous Offender, the Parole Board of Canada is required to review their case after seven years, to see if the designation is still necessary.
• Parole may be granted in some circumstances to Dangerous Offenders.
• Dangerous Offenders would remain under supervision indefinitely, even if paroled.
• After the initial review, the Parole Board must conduct subsequent reviews every two years to assess the necessity of the Dangerous Offender status.
• Once deemed a Dangerous Offender it is unlikely, that upon review, an individual would be able overturn this status.

How many people have been deemed dangerous offenders in Canada?

• According to Corrections Canada on average 24 Dangerous Offenders are admitted to the Canadian prison system each year.

Is the dangerous offender designation a violation of human rights?

• While the Dangerous Offender application has been found constitutional by the courts, it has been criticized as it punishes individuals for what he or she might do rather than what they have done.
• It is seen as violation of human rights as it imposes a  lengthy  sentences, even life sentences, for offences that according to sentencing principles would not be subject to such long sentences.
• However supporters of the Dangerous Offender designation argue that the punishment flows from the actual commission of a specific offence.

 Is it easy to be found to be a dangerous offender?

• Legislation passed in 2008  made it easier for Crown prosecutors to obtain Dangerous Offender designations.
• The amendments allowed that an offender, once found guilty of a third conviction of a violent or sexual offence, must prove that he or she does not qualify as a Dangerous Offender.
• This reversed the onus, as the onus was now on the defence to prove that the individual convicted of three dangerous offences is not a Dangerous Offender, rather than on the Crown having to prove that the individual qualifies as a Dangerous Offender.
• This being true, it is still possible for the defence to successfully argue against a Dangerous Offender application and prove that the individual does not meet the criteria.

 Canadian Criminal Code: Dangerous Offenders

• Section 753 of the Criminal Code Pertains to Dangerous Offender Applications and explains the circumstances in which a convicted individual would be deemed a dangerous offender:

 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.

Marginal note: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.

Marginal note:Time for making application

(2) An application under subsection (1) must be made before sentence is imposed on the offender unless

(a) before the imposition of sentence, the prosecutor gives notice to the offender of a possible intention to make an application under section 752.1 and an application under subsection (1) not later than six months after that imposition; and

(b) at the time of the application under subsection (1) that is not later than six months after the imposition of sentence, it is shown that relevant evidence that was not reasonably available to the prosecutor at the time of the imposition of sentence became available in the interim.

Marginal note:Application for remand for assessment after imposition of sentence

(3) Notwithstanding subsection 752.1(1), an application under that subsection may be made after the imposition of sentence or after an offender begins to serve the sentence in a case to which paragraphs (2)(a) and (b) apply.

Marginal note: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.

Marginal note: 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) or (c) will adequately protect the public against the commission by the offender of murder or a serious personal injury offence.

Marginal note: 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) and (b) apply, a sentence imposed under paragraph (4)(a), 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.

Marginal note: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 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.