753. (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.
If the Crown attempts to have someone found to be a Dangerous Offender but the judge determines that the offender in question does not meet the criteria for a Dangerous Offender, the judge may treat the Dangerous Offender application as a Long-Term Offender application and find the offender to be a Long-Term
offender. Note however, that while a Dangerous Offender application can be changed to a Long-Term Offender application, a Long-Term Offender application can not be changed to a Dangerous Offender application.
If neither a finding of Dangerous Offender nor Long-Term offender are appropriate, the convicted offender will receive a normal determinate sentence for their crime (a fixed number of years).
1:M Responsibilities of the Court
Disclosure to Correctional Service of Canada Section 760 C.C.C.
Where the 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 (CSC).
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1:N Role of Police
This section is not intended to be a guide for police officers but rather an overview for other members of the justice community of some of the tasks
generally undertaken by the police on a Dangerous Offender Application. Policies, procedures and protocols differ from jurisdiction to jurisdiction and hence this review will restrict itself to general themes. In some jurisdictions the Crowns themselves take a more active role in gathering information than in other jurisdictions.
The primary role of the police officer in the pursuit of a Dangerous Offender application is to gather the evidence necessary to establish a pattern of dangerous behaviour. This differs from a regular police investigation as the officer is not trying to prove guilt but is attempting to analyze or reanalyze patterns of behaviour and relate them to the Dangerous Offender criteria. The only way to establish this pattern is to gather and review all information from the past and put it on a
timeline.
Generally, the decision to pursue a Dangerous Offender application will be made by the Crown either before trial or shortly after a guilty verdict, but before the sentencing phase. It is also possible to pursue a Dangerous Offender
application up to six months after a sentence has been imposed should relevant evidence come to light that would not have reasonably been available to the prosecution at the time of the imposition of sentence. See Section 1:H, Time for making an application.
The criteria for a finding that someone is a Dangerous Offender are clearly outlined in section 753. (1) (a) and (b) of the Code. There are four specific criteria (see Section 1:J, Criteria) that have specific reference to the offender’s behaviour.
Sub-section (i) states “a pattern of repetitive behaviour”, sub-section (ii) states “a pattern of persistent aggressive behaviour”, sub-section (iii) states that the offender’s behaviour would be of such a brutal nature that “the offender’s behaviour in the future is unlikely to be inhibited by normal standards of behavioural restraint” and finally section (b) states that the offender’s “conduct in any sexual matter … has shown a failure to control his or her sexual impulses”.
Hence, the investigative goal for the police officer is to gather and collate historical information so that a clearly defined pattern of dangerous behaviour can be demonstrated in court. The officer will review the physical and behavioural evidence looking for patterns of repetitive behaviour, especially if there appears to
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be a pattern of escalating violence. The officer will compare and contrast degrees or levels of gratuitous violence and indifference towards the victim by reviewing victim impact statements and the offender’s comments to family and friends. This involves a lot of time, re-interviewing to get historical information and talking to a large number of people who knew or had dealings with the offender. The
investigating officer would generally contact the offender’s friends, family, and acquaintances. The officer would also interview past and present spouses,
girlfriends/boyfriends, and employers. Generally, the officer would also want to interview the offender’s physician, and any other health/mental health practitioners that the offender has been involved with, such as, psychologists, psychiatrists, social workers, and counselors. The officer will also want to check if there are Children’s Aid Society records, school records, mental health records,
psychological or psychiatric counseling records, or evidence of involvement with other agencies such as the Addiction Research Foundation. The officer will generally have to proceed either by way of a summons or a search warrant to obtain access to these types of information.
The officer will assemble the following types of paper-based records:
• past criminal records and arrest reports
• information from the Correctional Service of Canada (see Section 1:Q, Role of the Correctional Service of Canada)
• information from the provincial correctional system (Note: Look in the
Provincial/Territorial files even if the offender has never done any “provincial”
time as there may be pre-sentence reports, or pre-disposition reports if this offender was seen as a Young Offender.)
• all past trial transcripts in which this offender was involved
• employment performance reports and employment termination reports
• written medical records
• school records
The officer may have to obtain search warrants to gather some of this information and subpoena records and other witnesses. This will often involve re-interviewing people involved with past cases. This is because details of past cases, which were not salient or relevant to past cases, could be key indicators of
behavioural patterns when added to the long-term view of this offender. To maintain forward momentum on a DO application one officer should be assigned to lead the Dangerous Offender process. Lack of a lead investigator will result in diffusion of responsibility that can slow and impede evidence discovery and data
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collation. It is not uncommon for an officer to be involved almost full-time for 6 months to properly prepare a Dangerous Offender application.
The investigating officer will strive to create a strong working relationship with the Crown. Generally, this relationship will grow during the early stages of the investigation through frequent, sometimes daily, telephone contacts, e-mails, and faxes between the investigating officer and the Crown. As the investigation continues and the officer builds the case binder and the timeline, the number of face-to-face meetings will increase as the DO hearing approaches. In addition, the investigating officer should generally be present when the Crown interviews
potential witnesses. The officer should take notes and attempt to develop a rapport with the witnesses. Potential witnesses should be made to feel comfortable telling the officer details that they may not be inclined to discuss, as these details may well be unpleasant memories for the witness. The officer will have to be mindful that recounting their story may be painful for witnesses/victims and that there is a potential for re-victimization in the legal process. The officer may want to
consider whether victims assistance personnel or other support services should be engaged to help the witness/victim deal with the issues that the investigation will revisit.
As the DO hearing approaches the officer and the Crown will meet with all witnesses, including parole and probation officers, correctional officers, nurses, and social workers. The officer and the Crown may need to meet with these
“professional” witnesses several times before the Dangerous Offender hearing. All
“civilian” witnesses should review their testimony before the DO hearing; the officer will generally be present and assist the Crown through this process. These reviews are important as the time delay from commission of the offence, through trial, and now on to the DO hearing/sentencing stage may be measured in years rather than months. This is especially true for witnesses that the Crown is going to call to give historical reports of the offender from memory, memories that may well reach back as far as the offender’s childhood. The officer will also generally want to call witnesses the day before the DO hearing and remind them of their appearance.
In short, there is a lot of footwork to be done to prepare a Dangerous Offender application and it is the job of the officer to “beat the bushes” for the Crown. The secrets to success, however, are relatively simple: a) collect all the evidence, persistently and comprehensively, b) organize the information in some form so that it is readily assessable and understandable, and c) create a timeline,
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put the events in some chronological order that shows the dangerous behavioural patterns of the offender.
1:O Role of the Cro wn Attorney
This section is intended to give those outside the legal profession a view of the Crown’s role in the preparation of a Dangerous Offender or Long-Term
Offender application. Policies and procedures may differ from jurisdiction to jurisdiction.
The Crown, to properly prosecute each case, requires timely and accurate information from many parts of the Canadian criminal justice system. First, the Crown requires enough information to determine whether it is in the public interest to pursue a Dangerous Offender or a Long-Term Offender designation. Secondly, should the Crown decide to proceed, the Crown requires sufficient information to support the application. By developing an understanding of the role of the Crown and the types of information needed to pursue these applications, other
professionals in the criminal justice system can facilitate the DO and Long-Term Supervision Order (LTSO) process by providing useful information when and where it is needed. The decision to pursue a Dangerous Offender or Long-Term Offender application is at the discretion of the Crown Attorney in each Province or Territory.
The Crown Attorney will review the case and determine if the severity or brutality of the case warrants proceeding with a Dangerous Offender or a Long-Term Offender application. Section 754 of the Criminal Code instructs the Crown to gain consent for the Dangerous Offender application from the Attorney General of the province in which the offender is tried, or if in the Territories from the Attorney General of Canada. With respect to the Yukon, Northwest, and Nunavut Territories there is no involvement of the Territorial Attorney General in criminal matters. In pursuing a Dangerous Offender application or a Long-Term Offender application section 752.1 of the Criminal Code (Application for Remand for Assessment) should be construed as an “application” and therefore subject to the requirement under section 754 of the Criminal Code that the appropriate Attorney General consent to the assessment. The offender must be given at least seven (7) days notice that a Dangerous Offender or a Long-Term Offender application will be pursued. This notification must outline the basis on which the Crown intends to base the application, and the Crown has to assure that notice has been filed with the clerk of the court or the magistrate.
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Consideration of whether a Dangerous Offender or Long-Term Offender application is appropriate generally begins when the Crown Attorney first reviews the charges. Cases that may meet the criteria (see Section 1:J, Criteria for a
review) will generally be flagged in some way such that the case will not proceed to a regular sentencing hearing until a review has been completed and a decision made as to whether an application will be initiated.
Some of the factors that a Crown might wish to consider are listed below:
• Protection of the public is the paramount concern. This has been affirmed by the Supreme Court of Canada in R. v. Carleton [1983] 2 S.C.R. 58.
• The offender must have been convicted of a Serious Personal Injury Offence (SPIO). This means either an offence of sexual assault, sexual assault with a weapon, or aggravated sexual assault as described in section 752 (b), or any offence which is punishable by ten years or more and falls within the definition set out in section 752(a). For a list of SPIO’s please see Section 5, Appendix B.
• The offender must appear to fall within one or more of the statutory definitions of Dangerous Offender or Long-Term Offender.
• While the vast majority of DO applications involve a sexual offence, non-sexual violent offences where the offence is a “serious personal injury offence”
also should be considered.
• Whether a treatment program is available to address the offender’s needs and whether there are indications that the offender is willing or unwilling to undergo treatment.
• If the offence under immediate consideration can be considered a “brutal act”
unlikely to be restrained by normal standards of behavioural restraint, then no prior conduct needs to be considered. It is possible to be designated a
Dangerous Offender for a single crime. Most often, however, the Crown will argue multiple grounds for a Dangerous Offender designation and the
offender’s past history will usually provide important information.
Factors a Crown may consider in assessing for a pattern of behaviour include:
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• number and nature of past offences
• time span between offences (offences getting closer together?)
• pattern of violence or harm to victims
• circumstances surrounding the offences, e.g., was the offender allegedly involved in such behaviours as stalking?
• is there a history of past convictions for violent or sexual offences?
• is there a history of violent acts for which the offender has not been prosecuted? (Include violent acts committed by the offender while in custody.)
Where proof of past conduct is necessary, the Crown will generally consider how best this information can be obtained. Among others, the Crown will
generally take into consideration the following factors:
• the availability and willingness of victims and other witnesses to testify
• whether the impact of testifying would be so harmful to the past victims that their testimony is not in the public interest
• whether such factors as extreme age or terminal illness preclude the offender from serving an indeterminate sentence or a period of Long-Term supervision (in these cases the Crown retains the discretion not to refer the case)
• for the offence in question, what the likely determinate sentence would be, and whether it is more appropriate to pursue a determinate or an indeterminate sentence
Information sources that Crowns may consult:
• criminal records (Federal, Provincial, and Young Offender) (Note: Look in the Provincial/Territorial files even if the offender has never done any
“provincial” time as there may be pre-sentence reports, or pre-disposition reports if this offender was seen as a Young Offender)
• description of any outstanding charges
• all available psychiatric and psychological reports
• the offender’s correctional file(s) (Check federal and provincial, look at disciplinary records, drug use in the institution, threats or fights with
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other inmates or correctional officers, weapons used or found in cell searches, psychological and program reports.)
• other institutional records such as school, military, and Children’s Aid Society
• police reports
• victim impact statements and/or transcripts of the victim’s evidence
• trial transcripts or transcripts of the guilty plea
If the offender is youthful, with little or no formal record, the offender’s school records and Children’s Aid records become important - especially if the offender is unlikely to co-operate with the assessment process. These records may be the only source of information for the “experts” carrying out the behavioural assessment. For much of this information, absent the accused’s consent, the officer will have to obtain search warrants to gather this information or subpoena records and/or witnesses to court.
Preparing a submission for review by a Senior Crown Attorney
In preparing a Dangerous Offender or Long-Term Offender application for review by a Senior Crown Attorney, the Crown Attorney will generally prepare a package of information. Police and correctional officials can aid in the preparation of this package by providing information in a timely fashion. In smaller
jurisdictions this process may not be as formal and may take the form of a meeting or oral briefing. This package would generally include the following types of information:
• a summary of the history and circumstances of the conviction(s) before the court on which the application is based
• a summary of all relevant past conduct of the offender
• a summary of how the offender meets the definition of a Dangerous or Long-Term Offender
• an opinion as to the likely definite sentence the offender would receive for the offence(s) before the court
• copies of all victim impact statements
• a copy of the offender’s complete criminal record
• a summary description of any outstanding charges
• a copy of the information or the indictment
• other institutional records (school, military, Children’s Aid Society)
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A Senior Crown Attorney will generally review the information provided by the Crown and decide whether it is in the public interest to make an application to the court under section 752.1 for an order remanding the offender for assessment.
Depending upon jurisdiction there may also be a waiting list to have the offender seen for assessment. Possible delays of this nature should be taken into
consideration in case planning. In pursuing a Dangerous Offender application or a Long-Term Offender application, section 752.1 of the Criminal Code (Application for Remand for Assessment) should be construed as an “application” and therefore subject to the requirement under section 754 of the Criminal Code that the
appropriate Attorney General consent to the assessment. The application for a remand order should be made on the date of conviction or shortly thereafter and will require a request for an adjournment to prepare the application.
Information to be forwarded to the Expert Assessor
An information package is assembled and forwarded to the person charged with completing the dangerousness assessment. This package would generally include, but is not limited to:
• all Crown briefs
• a complete criminal history
• the contents of, or access arranged to, the offender’s correctional files (past and present, federal, provincial, and young offender)
• police reports
• all past general and specific psychological and psychiatric assessments
As a general rule the Crown will control the information going to the
assessor. This is so the Crown will know at all times what information did or did not factor into the assessment. This may be particularly significant where
differences of expert opinion are offered before the court. It should be noted that in some jurisdictions the Crown Attorney presents the proposed information package to the Court, seeking direction that the package is suitable before sending it to the court appointed expert. In some cases, in the face of defense objections to some of the materials being forwarded to the expert assessor, a hearing is held and
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a ruling sought as to whether certain aggravating circumstances described in the materials could be proven beyond a reasonable doubt.
When the assessment report ordered by the court has been received, a Senior
When the assessment report ordered by the court has been received, a Senior