In Canada, individuals convicted of violent criminal offences may be designated as Dangerous Offenders. Designation as a Dangerous Offender can result in a longer, or in some cases, indefinite term of detention. The rationale behind this practice is that the detention of such individuals is preventive and therefore, aids in public safety. Dangerous Offenders typically include those found guilty of multiple counts of violent offences that might not warrant extended incarceration under typical sentencing principles and legislation such as the Correctional and Conditional Release Act.
According to data from Corrections Canada, an average of 24 Dangerous Offenders are admitted to the Canadian prison system each year.
As per subsection 761(1) of the Criminal Code, the case of a person designated as a Dangerous Offender must be reviewed by the Parole Board of Canada after seven years to determine if the designation is still necessary. In select circumstances, parole may be granted to Dangerous Offenders, but they would continue to be under supervision indefinitely, even if paroled. Subsequent reviews must be carried out by the Parole Board at two-year intervals to evaluate the necessity of maintaining the Dangerous Offender status. It is worth noting that, once someone is deemed a Dangerous Offender, it's improbable that an individual can overturn this status upon review.
Is the Dangerous Offender Designation a Violation of Human Rights?
While the Dangerous Offender application has been upheld as constitutional by the courts, it has garnered criticism. Critics argue that it punishes individuals for actions they might commit in the future rather than the ones they have already committed. It is viewed as a violation of human rights as it imposes lengthy, and even life sentences, for crimes that wouldn't typically warrant such long sentences according to sentencing principles. However, supporters of the Dangerous Offender designation counter this by asserting that the punishment originates from the actual commission of a specific offence.
Is It Easy to Be Found to Be a Dangerous Offender?
Following the passage of legislation in 2008, it became easier for Crown prosecutors to make Dangerous Offender designations. The amendments reversed the burden of proof so that an individual found guilty of a third conviction of a violent or sexual offence must now prove that they do not meet the criteria for a Dangerous Offender. The onus is now on the defence to prove that the individual convicted of three dangerous offences does not qualify as a Dangerous Offender, instead of it being on the Crown to prove that the individual does qualify. Nonetheless, it remains possible for the defence to successfully dispute a Dangerous Offender application and show that the individual does not fulfil the criteria.
Application for Finding That an Offender Is a Dangerous Offender
The section 753(1) of the Criminal Code pertains to the application procedure for determining if an offender is a dangerous offender. After an assessment report is filed under subsection 752.1(2), the court will find an offender to be a dangerous offender if it is satisfied. This satisfaction stems from whether the offence resulted in a serious personal injury described in paragraph (a) of the definition of the same in section 752, and if the offender poses a threat to the life, physical or mental well-being of other persons.
The court's decision is based on evidence showcasing a pattern of repetitive or persistently aggressive behaviour by the offender, or any brutal behaviour associated with the offence. The conviction forms a part of this pattern. If the offender is convicted of a primary designated offence and that offender was previously convicted at least twice of a primary designated offence with sentencing involving imprisonment for at least two years, the conditions in paragraph (1)(a) or (b) are presumed to have been met unless proved otherwise.
The application must be made before the sentence is imposed unless it is shown that relevant evidence was not reasonably available to the prosecutor at the time of the imposition of sentence. If the court finds an offender to be a dangerous offender, a detention sentence in a penitentiary for an indefinite period is imposed, unless it is satisfied by evidence introduced during the application hearing that a lesser measure would adequately protect the public against potential offences by the offender. If the court does not find an offender to be a dangerous offender, the court may treat the application as an application to find the offender to be a long-term offender or simply impose a sentence for the offence for which the offender was convicted.
If the court agrees that the offence for which the offender is convicted is a primary designated offence that merits an imprisonment sentence of two years or more, and the offender has been convicted previously at least twice of a primary designated offence with each conviction involving at least two years of imprisonment, the court presumes the conditions in paragraph (1)(a) or (b) as appropriate, to have been met unless contrary evidence proves otherwise on a balance of probabilities.
Time for Making Application
An application under subsection (1) must be made before a sentence is imposed on the offender. However, there are exceptions in the scenarios where, before sentence imposition, the prosecutor, indicating potential intention, notifies the offender of a possible application under section 752.1. Additionally, during an application that is made not later than six months after sentence imposition, it has to be proved that relevant evidence, which was not reasonably available to the prosecutor at sentence imposition time, became available subsequently.
Application for Remand for Assessment After Imposition of Sentence
Notwithstanding subsection 752.1(1), an application under that subsection can be made post-sentence imposition or after an offender begins to serve the sentence under conditions applied to paragraphs (2)(a) and (b).
Sentence for Dangerous Offender
If the court declares an offender to be dangerous, it has several options. These include imposing a sentence of detention in a penitentiary for an indefinite period; imposing a sentence for the offence the offender has been convicted of, which is a minimum punishment of imprisonment for two years; or ordering that the offender be under long-term supervision for a period not exceeding 10 years. Alternatively, the court may simply impose a sentence for the offence for which the offender was convicted.
Sentence of Indeterminate Detention
The court is obligated to impose a sentence of detention in a penitentiary for an indeterminate period unless it is convinced by the evidence presented 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 from the offender committing murder or a serious personal injury offence.
If Application Made After Sentencing
If the Dangerous Offender application is made after the offender begins to serve their sentence, the sentence imposed under paragraph (4)(a), or a sentence imposed and an order made under paragraph 4(b), replaces the initial sentence that was set for the offence the individual was convicted of.
If Offender Not Found to Be Dangerous Offender
In cases where the court does not designate an offender as dangerous, there are two possibilities. The court can treat the application as an application to classify the offender as a long-term offender. In this case, section 753.1 would apply, and the court would either find the offender to be a long-term offender or hold another hearing for that purpose. Alternatively, the court can impose a sentence for the offence the offender was convicted of.
Legal Review By:
Criminal Defence Lawyer (B.A., L.L.B.)
Jonathan Pyzer, B.A., L.L.B, distinguished McGill University and University of Western Ontario alumnus, is a dedicated criminal defence lawyer throughout Ontario. Co-founder of Kostman & Pyzer, Barristers, he focuses on defending individual rights.