BACK PREVIOUS SECTION NEXT SECTION

DANGEROUS OFFENDERS AND
LONG-TERM OFFENDERS

752.1. (1) Application for remand for assessment - Where an offender is convicted of a serious personal injury offence or an offence referred to in paragraph 753.1(2)(a) and, before sentence is imposed on the offender, on application by the prosecution, the court is of the opinion that there are reasonable grounds to believe that the offender might be found to be a dangerous offender under section 753 or a long-term offender under section 753.1, the court may, by order in writing, remand the offender, for a period not exceeding sixty days, to the custody of the person that the court directs and who can perform an assessment, or can have an assessment performed by experts. The assessment is to be used as evidence in an application under section 753 or 753.1.
     (2) Report - The person to whom the offender is remanded shall file a report of the assessment with the court not later than fifteen days after the end of the assessment period and make copies of it available to the prosecutor and counsel for the offender.
1997, c. 17, s. 4.
 
753. (1) Application for finding that an offender is a dangerous offender - The court may, on application made under this Part following the filing of an assessment report under subsection 752.1(2), 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.
     (2) Time for making application - An application under subsection (1) must be made before sentence is imposed on the offender unless
 (a) before the imposition of sentence, the prosecution 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 prosecution at the time of the imposition of sentence became available in the interim.
     (3) Application for remand for assessment after imposition of sentence - 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.
     (4) If offender found to be dangerous offender - If the court finds an offender to be a dangerous offender, it shall impose a sentence of detention in a penitentiary for an indeterminate period.
     (4.1) If application made after sentencing - If the application was made after the offender begins to serve the sentence in a case to which paragraphs (2)(a) and (b) apply, the sentence of detention in a penitentiary for an indeterminate period referred to in subsection (4) replaces the sentence that was imposed for the offence for which the offender was convicted.
     (5) If offender not found to be dangerous offender - 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.
     (6) Victim evidence - Any evidence given during the hearing of an application made under subsection (1) by a victim of an offence for which the offender was convicted is deemed also to have been given during any hearing under paragraph (5)(a) held with respect to the offender.
R.S., 1985, c. C-46, s. 753; 1997, c. 17, s. 4.
 
Judicial Consideration -
 
R v Lyons - [1987] SCR 309, 37 CCC (3d) 1, 44 DLR (4th) 193.
  - Upheld on appeal to the Supreme Court of Canada
 
R v Lyons - Unreported, January 30, 1984, No. 8713 (NS Co Ct)
  - On an application to declare the accused a dangerous offender pursuant to these sections the defence moved to quash the indictment on grounds that the sections were constitutionally invalid as contravening ss7, 9, and 12 of the Charter. The Court held that insofar as s7 of the Charter is concerned, that society had the right to segregate people who are proved to be unresponsive to the criminal law and to be so highly dangerous that there is a likelihood that they will cause physical or psychological harm to people in the future and therefore s7 could not be invoked. With respect to the application of s9 (arbitrary detention) the Court held that this had not been established and that s688 has inbuilt precautions requiring the consent of the highest office of the Crown or his lawful deputy and was therefore not arbitrary in the sense of unreasonable, capricious, unjustifiable or applied purely by chance. With respect to s12 (cruel and unusual treatment or punishment) the court held that preventative detention came within the broad ambit of the word "treatment" but that such a sentence was not cruel and unusual.
 
Re Mitchell and The Queen - (1983), 42 OR (2d) 481 (HC)
  - On an application for a writ of habeas corpus ad subjiciendum with certiorari in aid or relief pursuant to s24(1) of the Charter, the applicant, who had formally been declared to be a habitual criminal under the appropriate now repealed provisions of the Code, successfully argued that his continued detention after the repeal of the legislation defining his status amounted to cruel and unusual treatment or punishment contrary to s12 of the Charter. However, in order to do so the Court held that he bore the onus of establishing on the balance of probabilities that he was not a "dangerous offender" within the meaning of this section and on the facts of that case, the applicant was found to have met that onus as well as the other criteria required to establish a violation of s12 of the Charter.
 
Galbraith v Warden of Mountain Institution - (1989) 66 CR (3d) 244 (BCSC)
  - In a habeas corpus application to determine if the continued detention of a person found to be a dangerous offender constitutes cruel and unusual punishment, the court held that it did not. Mr. Justice Cowan stated that the decisions in R v Lyons (1987) 37 CCC (3d) 1 (SCC) and R v Milne (1987) 38 CCC (3d) 502 (SCC), mean that Re Mitchell and R (1983) 35 CR (3d) 225 (Ont HC), is no longer good law and that an indeterminate sentence is not subject to review by a court to determine if the continued detention violates s12 of the Charter.
      Mr. Justice Cowan held that the review of prisoners under indeterminate sentences: "...is clearly within the ambit of the parole board, and the only judicial review available would be of the parole board hearing itself" (p248-9).
 
Steele and Belisle v Warden of Mountain Institution - (1989) 72 CR (3d) 58 (BCSC)
  - Steele and Belisle both applied for relief in the nature of habeas corpus with certiorari in aid, on the basis that their continued imprisonment under sentences of preventive detention constitute cruel and unusual punishment.
      In 1953 Steele was sentenced to 5 years for attempted rape. The court took into consideration two other admitted incidents of sexual misconduct and a conviction of contributing to juvenile delinquency, before finding him to be a criminal sexual psychopath and imposing a further sentence of indeterminate imprisonment.
      In 1966 Belisle was declared to be a dangerous sexual offender. He had been convicted of 5 counts of gross indecency in the past. In lieu of a 5-year sentence for 2 counts of buggery and 2 counts of gross indecency, he was sentenced to preventive detention.
      The theshold issue posed by the application was whether the continued imprisonment of the petitioners was subject to review by habeas corpus or s24 of the Charter. Mr. Justice Paris noted that the petitioners were not challenging the constitutionality of the legislation they were sentenced under, but rather they were seeking "to demonstrate that at this time their continuing imprisonment pursuant to those sentences constitutes cruel and unusual punishment in violation of s12 of the Charter of Rights" (p16).
      The court reviewed R v Lyons (1987) 61 CR (3d) 1 (SCC); R v Milne (1987) 61 CR (3d) 55 (SCC); Re Mitchell and The Queen (1983) 6 CCC (3d) 193 (ant HC); and Galbraith v Warden of Mountain Institution (1989) 66 CR (3d) 244 (BCSC). In Galbraith, Mr. Justice Cowan held that Milne implicitly overruled Mitchell, meaning in effect that a person serving an indeterminate sentence could not have the continuing detention reviewed by a court to determine if it violates the Charter.
      However, Mr. Justice Paris also referred to the Supreme Court of Canada's decision in R v Gamble [1988] 2 SCR 595, which was decided after Galbraith, and pointed out that in Gamble "the majority held that a review under the Charter of a continuing detention was permissible notwithstanding the Milne case" (p19).
      Paris, J held that (p20):
 
  ...curial review of an ongoing imprisonment is available to determine whether, even though lawfully imposed initially, it has become a violation of the Charter of Rights. It seems to me that the procedural mechanism for doing so would be, as has been done in this case, the direct invocation of section 24 of the Charter and an application for an order in the nature of habeas corpus (Dumas v LeClerc Institute (1986) 2 SCR 459 at p464).
 
  The merits of Steele's application were that he had served a sentence of 35 years for offences committed as an 18 year old while he was drunk. The court felt that based on the cruel and unusual punishment test set out in R v Smith (1987) 58 CR (3d) 1933 (SCC), incarceration for 35 years when compared to the circumstances of the offence and the 5 year definite sentence imposed "would prima facie seem to have the quality of gross disproportionality" (p21).
      Having found a prima facie case of "gross proportionality", the second step of the analysis was to determine if the applicant presents: "so clear a risk and so serious a danger that such a lengthy and continuing indetermine sentence would be perceived as reasonable by reasonable people" (p21).
      In considering the second step the court extensively reviewed psychiatric and psychological reports of Steele, as well as his institutional record. Based on that information the court stated that it did not believe Steele is a "hardcore sexual deviate or that he has a deep rooted sexual deviancy" (p64). Notwithstanding that his first offences were committed against children, Paris J concluded that Steele was not a paedophile and stated: "That is central to my decision. If I thought he were a true paedophile my decision would be different" (p64).
      Though the National Parole Board had reviewed Steele's case on numerous occasions, and denied him parole, Mr. Justice Paris stated that he was not reviewing how the Parole Board had performed its duties, but rather whether Steele's sentence was one that (p68):
 
  ...is so inordinately long for the offences committed and in relation to the level of risk that the inmate poses to the community, that it has the Quality of gross disproportionality and is, therefore, cruel and unusual.
 
  The sentence being contrary to s12 of the Charter the court next considered whether it should impose conditions of release upon Steele, but decided against it as the only means of enforcing the conditions would be to cite for contempt of court. Mr. Justice Paris did not consider this type of ongoing monitoring to be an appropriate function of the court.
      In Belisle's case, though Paris J felt Belisle was the more sympathetic figure, the court denied the application.
      At the time of his application Belisle was 63 years old and had served over 23 years in prison. The court found him to be an "untreatable compulsive homosexual paedophile" who was mentally handicapped and could not be treated by psychological or psychotherapeutic means. Belisle was introduced to homosexual activities when as a youth he was placed in a church-run orphanage and was sexually abused by adults in charge of the orphanage.
      Mr. Justice Paris was not prepared to release Belisle into a sheltered and controlled environment where drugs would be used to reduce his sex drive. The court was not satisfied as to the efficacy of such a drug program and concluded that:
 
  In his present condition Belisle still poses a great risk of causing serious harm to young boys if released. Perhaps it is possible that a program to control his behaviour if he is freed can be worked out by the Parole Board. In my view, that is best left in their hands. Given the existence of that risk his continued detention, sad as it is, is not cruel and unusual punishment (p74).
 
Steele v Warden of Mountain Institution - (1990) 54 CCC (3d) 334, 76 CR (3c) 307 (BCCA)
  - The BC Court of Appeal approved of the analysis adopted by the chambers judge Mr. Justice Paris. The court agreed that notwithstanding the validity of a sentence of preventive detention when it is imposed, it is open to the courts to consider a challenge to the continuing detention of an applicant on the grounds that it violates his rights under s12 of the Charter. The fact that the National Parole Board reviewed the applicant's case did not constitute a true alternative remedy to cause the courts to declined to exercise jurisdiction where it is alleged that a Charter right is being infringed.
      The court further agreed that the sentence imposed upon Steele was grossly disproportionate and accepted the chambers judge's conclusion that it was unlikely that Steele would be involved in offences which would warrant his continued indefinite incarceration. However, the Court of Appeal ruled that Steele should not have been released unconditionally. Persons subject to an indeterminate sentence who have served many years in prison should be subject to supervision by persons experienced in parole. Such supervision can only be provided through release by the National Parole Board and the court said that in view of the appellant's age and length of imprisonment, it would render his Charter right meaningless to make him go back to the Parole Board.
      The court was not satisfied that Steele's release should be unconditional and varied Paris J's order so that the Crown would be entitled to apply to court, ex parte if necessary, for an order that he be returned to custody should his con- duct after release represent a danger of such serious harm to warrant his return to incarceration. The court also concluded that though it would be desirable for Steele to consult with a psychiatrist, the court could not make that a condition of release.
      There was no appeal from the companion case to Steele's, that of Belisle v Warden of Mountain Institution (1989) 72 CR (3d) 58 (BCSC), where the application for release was dismissed.
 
Steele v Warden of Mountain Institution - (1991) 60 CCC (3d) 1 (SCC)
  - Steele had been detained in an institution for almost 37 years following his conviction at age 18 on a charge of attempted rape. Following his conviction he was declared a "criminal sexual psychopath" and was sentenced to five years in prison for the attempted rape and to an indeterminate period of detention thereafter. The Judge emphasized his desire that Steele receive proper treatment for his sexually deviant behaviour.
      Although there were no penitentiary facilities available to treat the respondent's condition, he initially responded well to his incarceration. Although various attempts at supervised parole were made, they ended because of some infraction, usually stemming from substance abuse or breach of discipline. Over the years, the respondent was the victim of a vicious circle in which he had little hope for release unless he could receive psychiatric treatment yet could not receive the psychiatric treatment he needed for release because it was not provided by the institution in which he was incarcerated. When, after some 20 years of imprisonment, the facilities for treatment did become available he was twice denied admission because his condition had deteriorated to the point where it was felt he would not benefit from the program. Even though the great majority of the psychiatric reports throughout the respondent's incarceration had recommended some form of release, those that did not described the respondent as "institutionalized". The Parole Board repeatedly denied parole finding that he was a risk to society.
      The respondent's sentence to an indeterminate term as a dangerous sexual offender did not in itself contavene s12 of the Charter and that sentence is valid. It is only by careful consideration and application of the criteria set forth in s16(1)(a) of the Parole Act that the indeterminate sentence can be made to fit the circumstances of the individual offender. Doing this will ensure that the dangerous offender sentencing provisions do not violate s12 of the Charter. It was clear on the face of the record that the Parole Board had misapplied or disregarded these criteria over a period of years with the result that the offender remained incarcerated far beyond the time he should have been properly paroled. In these circumstances, the Board's decision to keep the offender incarcerated violates s12 of the Charter.
      The Court dismissed the Crown's appeal from the judgment of the British Columbia Court of Appeal and confirmed that, as there was no way in which Mr. Steele's conduct could be regulated through the normal parole process, it was in the interests of public safety to maintain the conditions imposed by the Court of Appeal.
 
Practice Note: The continuing detention of a dangerous offender sentenced pursuant to a constitutionally valid provision of the Criminal Code will only violate s12 of the Charter when the National Parole Board errs in the execution of its duties in tailoring that indeterminate sentence to the circumstances of the offender by applying the criteria set out in s16 of the Parole Act. An application challenging that decision should be made by means of judicial review of the National Parole Board decision to the Federal Court Trial Division rather than by means of an application for habeas corpus to the provincial superior court. [Steele's release on the basis of an application for habeas corpus was confirmed in "these highly unusual circumstances".]
 
    See Dumas v Director of LeClerc Institution of Laval et al (1987) 30 CCC (3d) 129 (SCC) which sets out the appropriate circumstances in which habeas corpus can or should be used (see annotations at pp410 and 420).
 
753.1 (1) Application for finding that an offender is a long-term offender - The court may, on application made under this Part following the filing of an assessment report under subsection 752.1(2), find an offender to be a long-term offender if it is satisfied that
 (a) it would be appropriate to impose a sentence of imprisonment of two years or more for the offence for which the offender has been convicted;
 (b) there is a reasonable possibility of eventual control of the risk in the community.
 (c) there is a reasonable possibility of eventual control of the risk in the community.
     (2) Substantial risk - The court shall be satisfied that there is a substantial risk that the offender will reoffend if
 (a) the offender has been convicted of an offence under section 151 (sexual interference), 152 (invitation to sexual touching) or 153 (sexual exploitation), subsection 173(2) (exposure) or section 271 (sexual assault), 272 (sexual assault with a weapon) or 273 (aggravated sexual assault), or has engaged in serious conduct of a sexual nature in the commission of another offence of which the offender has been convicted; and
 (b) the offender
 (i) has shown a pattern of repetitive behaviour, of which the offence for which he or she has been convicted forms a part, that shows a likelihood of the offender's causing death or injury to other persons or inflicting severe psychological damage on other persons, or
 (ii) by conduct in any sexual matter including that involved in the commission of the offence for which the offender has been convicted, has shown a likelihood of causing injury, pain or other evil to other persons in the future through similar offences.
     (3) If offender found to be long-term offender - Subject to subsections (3.1), (4) and (5), 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 sentence must be a minimum punishment of imprisonment for a term of two years; and
 (b) order the offender to be supervised in the community, for a period not exceeding ten years, in accordance with section 753.2 and the Corrections and Conditional Release Act.
     (3.1) Exception -- if application made after sentencing - The court may not impose a sentence under paragraph (3)(a) 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) and (b) apply; and
 (b) was treated as an application under this section further to the court deciding to do so under paragraph 753(5)(a).
     (4) Exception -- life sentence - The court shall not make an order under paragraph (3)(b) if the offender has been sentenced to life imprisonment.
     (5) Exception to length of supervision where new declaration - If the offender commits another offence while required to be supervised by an order made under paragraph (3)(b), and is thereby found to be a long-term offender, the periods of supervision to which the offender is subject at any particular time must not total more than ten years.
     (6) If offender not found to be long-term offender - 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.
 
753.2 (1) Long-term supervision - Subject to subsection (2), an offender who is required to be supervised by an order made under paragraph 753.1(3)(b) shall be supervised 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).
     (2) Non-carceral sentences - A sentence imposed on an offender referred to in subsection (1), other than a sentence that requires imprisonment of the offender, is to be served concurrently with the long-term supervision ordered under paragraph 753.1(3)(b).
     (3) Application for reduction in period of long-term supervision - An offender who is required to be supervised, a member of the National Parole Board, or, on approval of that Board, the parole supervisor, as that expression is defined in subsection 134.2(2) of the Corrections and Conditional Release Act, of the offender, may apply to a superior court of criminal jurisdiction for an order reducing the period of long-term supervision or terminating it on the ground that the offender no longer presents a substantial risk of reoffending and thereby being a danger to the community. The onus of proving that ground is on the applicant.
     (4) Notice to Attorney General - The applicant must give notice of an application under subsection (3) to the Attorney General at the time the application is made.
1997, c. 17, s. 4.
 
753.3 (1) Breach of order of long-term supervision - An offender who is required to be supervised by an order made under paragraph 753.1(3)(b) and who, without reasonable excuse, fails or refuses to comply with that order is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.
     (2) Where accused may be tried and punished - An accused who is charged with an offence under subsection (1) may be tried and punished by any court having jurisdiction to try that offence in the place where the offence is alleged to have been committed or in the place where the accused is found, is arrested or is in custody, but if the place where the accused is found, is arrested or is in custody is outside the province in which the offence is alleged to have been committed, no proceedings in respect of that offence shall be instituted in that place without the consent of the Attorney General of that province.
1997, c. 17, s. 4.
 
753.4 (1) Where new offence - Where an offender who is required to be supervised by an order made under paragraph 753.1(3)(b) 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.
     (2) Reduction in term of long-term supervision - A court that imposes a sentence of imprisonment under subsection (1) may order a reduction in the length of the period of the offender's long-term supervision.
1997, c. 17, s. 4.
 
754. (1) Hearing of application - Where an application under this Part has been made, the court shall hear and determine the application except that no such application shall be heard unless
 (a) the Attorney General of the province in which the offender was tried has, either before or after the making of the application, consented to the application;
 (b) at least seven days notice has been given to the offender by the prosecutor, following the making of the application, outlining the basis on which it is intended to found the application; and
 (c) a copy of the notice has been filed with the clerk of the court or the provincial court judge, as the case may be.
     (2) By court alone - An application under this Part shall be heard and determined by the court without a jury.
     (3) When proof unnecessary - For the purposes of an application under this Part, where an offender admits any allegations contained in the notice referred to in paragraph (1)(b), no proof of those allegations is required.
     (4) Proof of consent - The production of a document purporting to contain any nomination or consent that may be made or given by the Attorney General under this Part and purporting to be signed by the Attorney General is, in the absence of any evidence to the contrary, proof of that nomination or consent without proof of the signature or the official character of the person appearing to have signed the document.
R.S., 1985, c. C-46, s. 754; R.S., 1985, c. 27 (1st Supp.), s. 203.
 
755. [Repealed, 1997, c. 17, s. 5]
 
756. [Repealed, 1997, c. 17, s. 5]
 
757. Evidence of character - Without prejudice to the right of the offender to tender evidence as to his or her character and repute, evidence of character and repute may, if the court thinks fit, be admitted on the question of whether the offender is or is not a dangerous offender or a long-term offender.
R.S., 1985, c. C-46, s. 757; 1997, c. 17, s. 5.
 
758. (1) Presence of accused at hearing of application - The offender shall be present at the hearing of the application under this Part and if at the time the application is to be heard
 (a) he is confined in a prison, the court may order, in writing, the person having the custody of the accused to bring him before the court; or
 (b) he is not confined in a prison, the court shall issue a summons or a warrant to compel the accused to attend before the court and the provisions of Part XVI relating to summons and warrant are applicable with such modifications as the circumstances require.
     (2) Exception - Notwithstanding subsection (1), the court may
 (a) cause the offender to be removed and to be kept out of court, where he misconducts himself by interrupting the proceedings so that to continue the proceedings in his presence would not be feasible; or
 (b) permit the offender to be out of court during the whole or any part of the hearing on such conditions as the court considers proper.
R.S., c. C-34, s. 693; 1976-77, c. 53, s. 14.
 
759. (1) Appeal -- dangerous offender - An offender who is found to be a dangerous offender under this Part may appeal to the court of appeal against that finding on any ground of law or fact or mixed law and fact.
     (1.1) Appeal -- long-term offender - An offender who is found to be a long-term offender under this Part may appeal to the court of appeal against that finding or against the length of the period of long-term supervision ordered, on any ground of law or fact or mixed law and fact.
     (2) Appeal by Attorney General - The Attorney General may appeal to the court of appeal against the dismissal of an application for an order under this Part, or against the length of the period of long-term supervision of a long-term offender, on any ground of law.
     (3) Disposition of appeal -- dangerous offender - On an appeal against a finding that an offender is a dangerous offender, the court of appeal may
 (a) allow the appeal and
 (i) find that the offender is not a dangerous offender, find that the offender is a long-term offender, impose a minimum sentence of imprisonment for two years, for the offence for which the offender has been convicted, and order the offender to be supervised in the community, for a period that does not, subject to subsection 753.1(5), exceed ten years, in accordance with section 753.2 and the Corrections and Conditional Release Act,
 (ii) find that the offender is not a dangerous offender and impose sentence for the offence for which the offender has been convicted, or
 (iii) order a new hearing; or
 (b) dismiss the appeal.
     (3.1) Disposition of appeal -- long-term offender - On an appeal against a finding that an offender is a long-term offender, the court of appeal may
 (a) allow the appeal and
 (i) find that the offender is not a long-term offender and quash the order for long-term supervision, or
 (ii) order a new hearing; or
 (b) dismiss the appeal.
     (3.2) Disposition of appeal -- long-term offender - On an appeal by a long-term offender against the length of a period of long-term supervision of the long-term offender, the court of appeal may
 (a) allow the appeal and change the length of the period; or
 (b) dismiss the appeal.
     (4) Disposition of appeal by Attorney General - On an appeal against the dismissal of an application for an order that an offender is a dangerous offender under this Part, the court of appeal may
 (a) allow the appeal and
 (i) find that the offender is a dangerous offender,
 (ii) find that the offender is not a dangerous offender, find that the offender is a long-term offender, impose a minimum sentence of imprisonment for two years, for the offence for which the offender has been convicted, and order the offender to be supervised in the community, for a period that does not, subject to subsection 753.1(5), exceed ten years, in accordance with section 753.2 and the Corrections and Conditional Release Act, or
 (iii) order a new hearing; or
 (b) dismiss the appeal.
     (4.1) Disposition of appeal by Attorney General- On an appeal by the Attorney General against the length of a period of long-term supervision of a long-term offender, the court of appeal may
 (a) allow the appeal and change the length of the period; or
 (b) dismiss the appeal.
     (4.2) Disposition of appeal by Attorney General - On an appeal against the dismissal of an application for a finding that an offender is a long-term offender under this Part, the court of appeal may
 (a) allow the appeal and
 (i) find that the offender is a long-term offender, impose a minimum sentence of imprisonment for two years, for the offence for which the offender has been convicted, and order the offender to be supervised in the community, for a period that does not, subject to subsection 753.1(5), exceed ten years, in accordance with section 753.2 and the Corrections and Conditional Release Act, or
 (ii) order a new hearing; or
 (b) dismiss the appeal.
     (5) Effect of judgment - A judgment of the court of appeal finding that an offender is or is not a dangerous offender or a long-term offender, or changing the length of the period of long-term supervision ordered, has the same force and effect as if it were a finding by or judgment of the trial court.
     (6) Commencement of sentence - Notwithstanding subsection 719(1), a sentence imposed on an offender by the court of appeal pursuant to this section shall be deemed to have commenced when the offender was sentenced by the court by which he was convicted.
     (7) Part XXI applies re appeals - The provisions of Part XXI with respect to procedure on appeals apply, with such modifications as the circumstances require, to appeals under this section.
R.S., 1985, c. C-46, s. 759; 1995, c. 22, s. 10; 1997, c. 17, s. 6.
 
760. Disclosure to Correctional Service of Canada - 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.
 
761. (1) Review for parole - Subject to subsection (2), where a person is in custody under a sentence of detention in a penitentiary for an indeterminate period, the National Parole Board 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.
     (2) Idem - 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 National Parole Board 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.
 
Judicial Consideration -
 
R v Johnson - Unreported, April 30, 1991, No.20327C, Matsqui (BC Prov Ct)
  - Section 761 of the Criminal code provides for a parole review for dangerous offenders. Subsection (1) mandates that the review will take place forthwith after the expiration of three years from the day when the person was taken into custody and not later than every two years thereafter. Subsection (2) provides that persons under a sentence of detention that was imposed prior to October 15th, 1977 shall be reviewed at least once a year. The Provincial Court judge found that this was discrimination under s15 of the Charter. He granted a remedy under s24(1) of the Charter stating that s761 (1) of the Criminal Code IS of no force and effect and that the words "that was imposed before October 15th, 1977", in s761 (2) have no force or effect. In other words, everybody who is detained for an indeterminate period should receive a yearly review by the Parole Board.
      The court held that it was patent that the applicant would not receive equal benefit of the law contrary to s15 of the Charter. It also held that persons sentenced to indeterminate detention were indeed members of a "discrete and insular minority" of the kind referred to by Wilson, J on behalf of the majority of the Supreme Court of Canada in Andrews (Andrews v Law Society of British Columbia, per Mcintyre, J (1989) 56 DLR 1 at p15) as well as in her judgment on behalf of the unanimous court in R v Turpin (1989) 48 CCC (3d) 8 at pp34-36. The court also referred to Lyons v The Queen (1987) 37 CCC (3d) especially at pp29-31 for a complete review of the dangerous offender legislation and the Charter in relation to it except a consideration of s15.
TOP