R. v. Wong, 2016 ONSC 2984

CITATION: R. v. Wong, 2016 ONSC 2984 COURT FILE NO.: CR-12-40000111 DATE: 2016-08-15

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Respondent

– and –

NICHOLAS WONG Applicant

COUNSEL: T. Vogel and P. Garcia, for the Respondent C.A. Morrow, for the Applicant

HEARD: April 12 and 13, 2016

BEFORE: McWatt J.

REASONS FOR DECISION

RE: DEFENCE APPLICATION CHALLENGING THE CONSTITUTIONALITY OF THE DANGEROUS OFFENDER PROVISIONS AT SECTIONS 753(1) AND S. 753.01 OF THE CRIMINAL CODE OF CANADA

INTRODUCTION

[1] Nicholas Wong seeks an order from this court declaring that ss. 753(1) and 753.01 impermissibly curtail judicial discretion at sentencing and are overbroad, resulting in a violation of his s.7 Charter rights.

[2] The Applicant suggests that the combined effect of these provisions is unconstitutional and they should be struck down pursuant to s. 52 of the Constitution Act, 1982 as they cannot be saved by s.1 of the Charter. Mr. Wong does not propose an alternative remedy short of declaring the two sections unconstitutional.

THE HISTORY OF THIS CASE

(i) The Predicate Offence and the Prior Criminal History

[3] On February 23rd, 2012, the Applicant was convicted by a jury of two counts of attempted murder with a firearm and two counts of discharging a firearm with intent to wound. He was also found guilty of failing to comply with a weapons prohibition for previous firearm related convictions.

[4] These predicate offences began when the complainant, Mr. Duy Tran, arranged to sell two pounds of marihuana to Mr. Wong. The two men met while in custody. They agreed to do drug business together once released. The marihuana Mr. Tran was selling to the Applicant was worth approximately $6,200. At approximately 4:30 p.m. on April 10, 2010, Mr. Wong met with Mr. Tran in the parking lot of an apartment complex in Toronto. Mr. Wong entered Mr. Tran’s vehicle where Mr. Tran’s friend, Mr. Park, was also seated. Shortly after their meeting for the purpose of the transaction, Mr. Wong grabbed one of the two bags of marihuana inside the vehicle. He then stepped out of the vehicle and fired a gun directly at Mr. Tran and Mr. Park. At the same time, two of Mr. Wong’s co-conspirators emerged from somewhere in or around the apartment complex and began shooting at the two victims as well. At least fourteen shots were fired from three different guns. Mr. Tran was shot in the leg. A bullet has remained lodged in his groin permanently, as its removal was deemed a medical risk. Mr. Park escaped without being wounded.

[5] The Applicant was arrested on July 21, 2010 and has been in custody ever since. He is 29 years old (born June 23, 1986) and has a criminal record which includes both young offender and adult entries. Including the predicate offence, he has 22 criminal convictions since 2003. These offences include crimes of aggression, breaches of court orders, obstruction of police, drug possession, drug trafficking and multiple firearm related crimes.

(ii) The Dangerous Offender Proceedings

[6] A Notice of Application for an Assessment pursuant to s.752.1 of the Criminal Code was served and filed by the Crown on May 28th, 2012. On August 9th, 2013, I ruled that there were grounds for an assessment and an in-custody assessment was post-dated for October 14th, 2013. Dr. Scott Woodside of the Center for Addictions and Mental Health conducted the assessment. He produced a report dated January 13th, 2014. On March 20th, 2014, the Crown received the Consent of the Attorney General pursuant to section 754 of the Code to have the Applicant designated a Dangerous Offender within the meaning of s. 753. The application commenced on May 11th, 2015 and continued intermittently over many months. As well as hearing from Dr. Woodside, for the Crown, I also heard from various Correctional Services Canada, Children’s Aid Society, Probation Services, police and social service employees about Mr. Wong’s past behavior in the institutional setting. In addition, I heard defense evidence from Mr. Wong’s expert on prospects for Mr. Wong’s treatability and chances at rehabilitation. The Applicant also called his cousin and his girlfriend about his plan of release and his prospects of being managed effectively in the community. He also called his prison program manager, from the jail in which he is presently housed, to show his progress in completing his high school education while in custody.

[7] The matter was set for the filing of written materials and final submissions commencing April 12th, 2016. On January 26th, 2016, the Applicant served the Crown with a Notice of Application to declare s.753(1), s.753(4), s.753(4.1) and s.753.01 unconstitutional because they infringe the Applicant’s rights under ss. 7 and 12 of the Canadian Charter of Rights and Freedoms and a declaration that these sections of the Criminal Code are of no force or effect.

[8] An Amended Notice of Application was served on March 14, 2016, removing the s. 12 infringement as a ground for the application and removing the challenge to declare ss. 753 (4) and 753(4.1) unconstitutional.

THE ISSUES AND THE POSITIONS OF THE PARTIES

The Issues

[9] The legal questions to be answered on the application are as follows:

1. Does s. 753(1) of the Criminal Code violate s. 7 of the Charter of Rights and Freedoms?

2. Does s.753.01 of the Criminal Code violate s. 7 of the Charter of Rights and Freedoms?

3. Does the combined effect of ss.753 (1) and 753.01 violate s. 7 of the Charter of Rights and Freedoms?

4. If so, is the infringement a reasonable limit prescribed by law that can be demonstrably justified in a free and democratic society under s.1 of the Canadian Charter of Rights and Freedoms?

5. If the infringement is not justified by s.1 of the Canadian Charter of Rights and Freedoms, can ss.753 (1) and s.753.01 be remedied or must they be of no force or effect pursuant to s.52 of The Constitution Act, 1982?

Issues Not in Dispute

[10] The Crown takes no issue with the argument that the Applicant has standing to challenge the impugned sections. The Crown further agrees that any law that implicates the offender’s liberty interest must comply with fundamental fairness and, if overbroad, may violate s. 7 of the Charter. The Crown agrees that courts no longer have discretion whether to designate an offender as dangerous if the criteria under s.753 (1) are met and also agrees that the dangerous offender provisions do engage the liberty interests of the offender.

Position of the Parties

(i) The Applicant

[11] The Applicant alleges that section 753(1) precludes the sentencing judge from considering an offender’s treatment\management prospects prior to designation. This change in the dangerous offender provisions since 2008 affects the finding of “dangerousness” in that it is no longer connected to the actual dangerousness of the offender at the time of the hearing, but, instead, to his past. Without the consideration of the offender’s prospects for change, current information about the offender is excluded and dangerousness is overestimated. This breach occurs as a result of the court being directed that it “shall” find the offender to be a dangerous offender pursuant to section 753(1). In the absence of treatment considerations, section 753(1) no longer provides a reliable basis upon which to assess future risk or its management.

[12] Section 753.01 presumes dangerousness and an indeterminate sentence. The Crown is not required to prove again at any time in the designated dangerous offender’s lifetime, that he is dangerous. The section expands the circumstances in which that offender may face an indeterminate sentence if later convicted of another offence.

[13] The combined effect of ss. 753 (1) and 753.01 violate s. 7 of the Charter by impermissibly curtailing judicial discretion at sentencing. It is further submitted that the impugned sections are overbroad and unfairly deprive the liberty of an offender in that the offender is effectively required to rebut a presumption of an indeterminate sentence.

[14] In the case of his challenge to s. 753(1), the applicant relies on the case of R. v. Boutilier, 2014 BCSC 2187. That case has been followed by R. v. Tremblay, [2015] BCJ No. 2673 and, in Ontario, by R. v. Magda, unreported, ONCJ, Epstein J. dated February 5, 2016.

[15] On June 2, 2016, the British Columbia Court of Appeal reversed the Boutilier trial judge’s finding that s. 753(1) was unconstitutional (2016 BCCA 235). Submissions had already been completed on this matter before those reasons were released.

(ii) The Crown

[16] The Crown maintains that there is no breach of s.7 of the Charter, nor do the Applicant’s submissions conform to the jurisprudence interpreting the Dangerous Offender provisions in Part XXIV of the Criminal Code. The Crown maintains that ss.753 (1) and 753.01 provide the framework for the exercise of a judge’s ultimate discretion in sentencing, thereby ensuring that the public protection objective of a Part XXIV is achieved. This is done while also ensuring that the sentence does not exceed what is necessary to achieve that goal. Sections 753(1) and 753.01 are not constitutionally overbroad and are proportionate to sentencing principles. Therefore, they do not infringe s.7 of the Charter.

[17] In the alternative, if an infringement is made out, the provisions are a reasonable and justifiable limit pursuant to s. 1 of the Charter.

EVOLUTION OF THE LEGISLATION

[18] The purpose of the Dangerous Offender legislation has always been the protection of the public from offenders who have committed serious sexual or violent offences (except murder) and continue to pose a threat to society.

Background

[19] The legislative scheme commenced with recommendations made in 1938 by the Archambault Commission, a Royal Commission established to investigate the penal system of Canada. It recommended that legislation be enacted to identify a residual class of criminal with “incurable criminal tendencies” and to “provide for their indeterminate detention in a special prison”. [R. v. Lyons, 1987 25 (SCC) at paras. 12-13].

[20] As a result of the recommendations of the Commission, the Criminal Code Amendment Act, S.C. 1947, c. 55, s. 18 was adopted in Canada. It defined a “habitual offender” as a person who had been convicted of three criminal offences. Other amendments in 1948 provided for the sentencing in the same manner of “criminal sexual psychopaths” (Lyons, at para. 14).

[21] These offenders could be imprisoned indefinitely. The provisions were criticized, however, for applying to non-dangerous offenders (e.g. property offenders) as well and for requiring recidivism as an eligibility condition. As a consequence, the Criminal Law Amendment Act of 1977 was passed and the Dangerous Offender regime, as is reflected in our current legislation, was born (Lyons, at paras.15 and 16).

CRIMINAL LAW AMENDMENT ACT OF 1977

[22] Section 688 of the 1977 Act set out the following [and I quote it only to illustrate that the wording has changed little from 1977 to the present s. 753(1)]:

688 Where, upon an application made under this Part following the conviction of a person for an offence but before the offender is sentenced therefor, it is established to the satisfaction of the court …

(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 687 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 has been convicted forms a part, showing a failure to restrain his behaviour and a likelihood of his causing death or injury to other persons, or inflicting severe psychological damage upon other persons, through failure in the future to restrain his behaviour,

(ii) a pattern of persistent aggressive behaviour by the offender, of which the offence for which he has been convicted forms a part, showing a substantial degree of indifference on the part of the offender as to the reasonably foreseeable consequences to other persons of his behaviour, or

(iii) any behaviour by the offender, associated with the offence for which he has been convicted, that is of such a brutal nature as to compel the conclusion that his 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 687 and the offender, by his conduct in any sexual matter including that involved in the commission of the offence for which he has been convicted, has shown a failure to control his sexual impulses and a likelihood of his causing injury, pain or other evil to other persons through failure in the future to control his sexual impulses,

[23] Section 687 defined a Serious Personal Injury Offence as:

687. . . .

(a) an indictable offence (other than high treason, treason, first degree murder or second degree murder) involving

(i) the use or attempted use of violence against another person, or

(ii) conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage upon another person.

and for which the offender may be sentenced to imprisonment for ten years or more, or

(b) an offence or attempt to commit an offence mentioned in section 246.1 (sexual assault), 246.2 (sexual assault with a weapon, threats to a third party or causing bodily harm) or 246.3 (aggravated sexual assault).

[24] In this regime, a sentencing judge had the discretion to find the offender to be a dangerous offender and thereupon impose a sentence of detention in the penitentiary for an indeterminate period, in lieu of any other sentence that might be imposed for the offence for which the offender has been convicted. The provisions required the filing of psychological, psychiatric and criminological evidence as well as character evidence to support any findings to be made. At least two psychiatrists’ evidence was obligatory and the sentencing judge was empowered to remand the offender for observation for purposes of sentencing (Lyons, paras. 16 and 19).

[25] A number of safeguards were set in place due to the serious implications for the accused. The consent of the provincial Attorney General was required along with notice of the application to the accused and a right of the accused to choose his own psychiatrist or have one chosen for him if he failed to choose his own. Along with other safeguards, a sentence review was mandatory after 3 years from the date of its imposition and every two years thereafter (Lyons, para. 20).

[26] Discretion was had at both designation and penalty phases of the sentencing process. The court had the discretion not to designate the offender as dangerous or to impose an indeterminate sentence, even in circumstances where all of the criteria were met (Lyons, para. 43).

[27] The Supreme Court of Canada dealt with the constitutionality of these provisions (Part XXI of the Criminal Code, R.S.C. 1970, c. C-34) in a challenge to them pursuant to ss. 7, 9, 11 and/or 12 of the Charter in Lyons and upheld the legislation under each of the sections challenged.

[28] In particular, and directly relevant to the issue before me, the court rejected the claim that Part XXI offended s. 7 of the Charter by depriving an accused of liberty by permitting an individual to be sentenced for crimes he or she has not committed or for crimes for which he or she has already been punished. At paragraphs 27, 33 and 36, the court explained:

27. It is thus important to recognize the precise nature of the penological objectives embodied in Part XXI. It is clear that the indeterminate detention is intended to serve both punitive and preventive purposes. Both are legitimate aims of the criminal sanction. Indeed, when society incarcerates a robber for, say, ten years, it is clear that its goal is both to punish the person and prevent the recurrence of such conduct during that period. Preventive detention in the context of Part XXI, however, simply represents a judgment that the relative importance of the objectives of rehabilitation, deterrence and retribution are greatly attenuated in the circumstances of the individual case, and that of prevention, correspondingly increased. Part XXI merely enables the court to accommodate its sentence to the common sense reality that the present condition of the offender is such that he or she is not inhibited by normal standards of behavioural restraint so that future violent acts can quite confidently be expected of that person. In such circumstances it would be folly not to tailor the sentence accordingly.

28. Finally, the legislation of other jurisdictions reveals the general acceptance of preventive detention as a means of dealing with dangerous offenders. In their comprehensive review of protective sentencing of dangerous offenders in the United Kingdom, Floud and Young, Dangerousness and Criminal Justice (London 1981), note that “the laws of most, if not all, western countries make provision for sentencing of offenders against whom the public requires special protection”. For example, they observe, Denmark provides for protective custody of dangerous offenders who commit or attempt to commit homicide, robbery, rape and other serious offences. Similarly, the Swedish Penal Code of 1965 provides that “internment may be imposed if the crime … is punishable by imprisonment for two years or longer and in view of the defendant’s criminality, mental condition, conduct and other circumstances, a long-lasting deprivation of liberty, without duration fixed in advance, is deemed necessary to prevent further serious criminality on his part” (at p. 103). Norval Morris, in “The Habitual Criminal” (1967), 13 McGill L.J. 534, also observes that a number of countries have enacted legislation to deal with incorrigible or habitual offenders, and notes, at p. 536, that generally three elements are included in the definition of the group targeted for such punishment –criminal qualities inherent or latent in the mental constitution, a settled practice in crime, and a public danger.

29. From what I have said already, I do not think that it could seriously be argued that the penological objectives embodied in Part XXI themselves violated s. 7 of the Charter….

[29] In coming to the conclusion that Part XXI did not violate the appellant’s s. 7 Charter rights, the majority of the court agreed that the dangerous offender sentence did not authorize a sentence for crimes for which an accused is not being tried and the sentence of indeterminate detention is “in lieu of any other sentence that might be imposed for the offence for which the offender has been convicted” (para. 24). The guilty individual was being sentenced for the “serious personal injury offence” for which he was convicted, albeit in a different way from what would ordinarily be done. He was not punished for what he might do as the sentence flowed from the actual commission of a specific offence.

[30] La Forest J., for the majority, explained at paragraph 26:

26. Nor do I find it objectionable that the offender’s designation as dangerous or the subsequent indeterminate sentence is based, in part, on a conclusion that the past violent, anti-social behavior of the offender will likely continue in the future. Such considerations play a role in a very significant number of sentences. I accordingly agree with the respondent’s submission that it cannot be considered a violation of fundamental justice for Parliament to identify those offenders who, in the interests of protecting the public, ought to be sentenced according to considerations which are not entirely reactive or based on a “just de-serts” rationale. The imposition of a sentence which “is partly punitive but is mainly imposed for the protection of the public” [(Re Moore and the Queen (1984), 1984 2132 (ON SC), 10 C.C.C. (3d) 306 (Ont. H.C.)] seems to me to accord with the fundamental purpose of the criminal law generally, and of sentencing in particular, namely, the protection of society. In a rational system of sentencing, the respective importance of prevention, deterrence, retribution and rehabilitation will vary according to the nature of the crime and circumstances of the offender. No one would suggest that any of these functional considerations should be excluded from the legitimate purview of legislative or judicial decisions regarding sentencing.

[31] In Lyons, the Court described the type of offender to be caught by the legislation as one whose “pattern of conduct is substantially or pathologically intractable.” (Lyons, at para. 43).

AUGUST 1, 1997 AMENDMENTS TO THE CRIMINAL CODE

[32] Other than adding the words “she” and “her” [recognition that females might also be dangerous], to the designation criteria in s. 753 (the previous s. 688), the legislation remained the same in the 1997 amendments.

[33] Section 761(1) changed the first parole hearing date to seven years from the day the offender was taken into custody from the previous 3 year date after imposition of sentence.

[34] The introduction of the long-term offender provisions marked the most notable amendment to the legislation and added the following to the dangerous offender scheme:

Section 753.1(1) 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 substantial risk that the offender will reoffend; and

(c) there is a reasonable possibility of eventual control of the risk in the community.

(2) 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 behavior, 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.

[35] Pursuant to s. 753.1(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 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”, S.C. 92.c. 20 (as amended by S.C. 1997, c. 17).

[36] The 1997 amendments did not change the court’s discretion at the designation stage of the hearing to determine whether it could find the offender fit the criteria of dangerousness in s. 753(1), but made it mandatory that if the offender was found to be dangerous, then pursuant to s. 753(4), the court “shall” impose a sentence of detention in the penitentiary for an indeterminate period.

[37] The Supreme Court once more reviewed the legislation in a constitutional challenge in R. v. Johnson, [2003] SCC 46, where at the accused’s sentencing hearing, the judge had not considered the availability of the long-term offender provisions added in 1997 because the offence for which the accused was convicted was committed prior to the 1997 amendments. The two issues on the appeal were whether the provisions were applicable to predicate offences committed before 1997 and whether the sentencing judge was obliged to consider the long-term offender provisions prior to declaring an offender dangerous and, necessarily, imposing an indeterminate sentence.

[38] The court ruled that the sentencing judge could consider the pre-1997 amendment offence in the context of the newer legislation. The decision also created a one-step determination for finding dangerousness by requiring the judge to consider the long-term offender provisions prior to declaring an offender dangerous and necessarily imposing an indeterminate sentence. At paragraph 20, the court set out that:

An interpretation of the dangerous offender provisions that would require a judge to declare an offender dangerous and sentence him or her to an indeterminate period of detention in each instance in which the statutory criteria for a dangerous designation have been satisfied would introduce and unnecessary rigidity into the process and overshoot the public protection purpose of the dangerous offender regime.

[39] In discussing the sentencing judge’s discretion during designation of an offender at paragraph 15 16, and 18, the court said the following:

15. Section 753(1) provides that “[t]he court may, on application made under this Part following the filing of an assessment report under subsection 752(2), find the offender to be a dangerous offender” if it is satisfied that the statutory criteria set out in paras. (a) or (b) are met. The Crown submits that the word “may” in s. 753(1) does not create a true discretion, but rather grants a power that is contingent only upon proof of the statutory conditions. On this view, the word “may” in the phrase “[t]he court may … find the offender to be a dangerous offender” should be treated as imperative; a sentencing judge who finds that the dangerous offender criteria are met must make a dangerous offender designation. For the following reasons, it is our opinion that this submission must fail.

16. The language of s. 753(1) indicates that a sentencing judge retains a discretion whether to declare an offender dangerous who meets the criteria for that designation. As mentioned above, s. 753(1) provides that the court may find an offender to be a dangerous offender if it is satisfied that the statutory criteria set out in paras. (a) or (b) are met. On its face, the word “may” denotes a discretion, while the word “shall” is commonly used to denote an obligation: see for example R. v. Potvin, 1989 130 (SCC), [1989] 1 S.C.R. 525, pat p. 549. Indeed, s. 11 of the Interpretation Act, R.S.C. 1985, c. I-21, requires “shall” to be construed as imperative and “may” to be construed as permissive. If Parliament had intended that an offender must be designated dangerous if each of the statutory criteria have been satisfied, one would have expected Parliament to have used the word “shall” rather than “may”.

17. In this case, there is no indication of a duty to find an offender dangerous once the statutory criteria have been met. As we will elaborate, neither the purpose of the dangerous offenders’ regime, nor the principles of sentencing, nor the principles of statutory interpretation suggest that a sentencing judge must designate an offender dangerous if the statutory criteria in s. 753(a) or (b) have been met. On the contrary, each of these factors indicates that a sentencing judge retains the discretion not to declare an offender dangerous even if the statutory criteria are met. This is particularly true now that it is clear that offenders declared dangerous must be given an indeterminate sentence.

[40] Rosenberg, J.A., in the case of R. v. Szostak, 2014 ONCA 15, at paragraph 45 has suggested that the availability of the new long-term offender penalty removed intractability as a necessary element of the dangerous offender definition because under the 1997 scheme, a person could be eligible for a long-term offender disposition notwithstanding he or she met both definitions of dangerous offender and long-term offender.

TACKLING VIOLENT CRIME ACT, 2008

[41] The designation criteria for a dangerous offender have remained the same since 1977. However, s. 753(1) now sets out that:

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 the criteria under 753(1)(a) or (b) are satisfied.

[42] If the court is satisfied the offender is a dangerous offender, it shall :

a) impose a sentence of detention in the penitentiary for and indeterminate period;

b) impose a sentence for the offence for which the offender has been convicted – which must be a minimum punishment 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.

[43] The new section 753(4.1) sets out that:

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.

[44] And the legislation maintained the long-term offender regime in s. 753(5) by providing the following:

(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

(c) The court may impose sentence for the offence for which the offender has been convicted.

[45] The new section 753.01 sets out the following:

753.01 If an offender who is found to be a dangerous offender is later convicted of a serious personal injury offence or an offence under subsection 753.3(1), on application by the prosecutor, the court shall, by order in writing, before sentence is imposed, remand the offender, for a period not exceeding 60 days, to the custody of a person designated by the court who can perform an assessment or have an assessment performed by experts for use as evidence in an application under subsection (4).

ANALYSIS

Section 753(1) Constitutional Challenge

[46] It is my opinion that the 2008 amendments to the dangerous offender legislation, in fact, have created a more logical sentencing regime. If an offender meets the criteria for dangerousness, then he or she is labelled such. There is still a discretion left to the judge by the work “if”, which allows weighing of evidence tendered by the parties, for a determination of whether the Crown has proven the criteria beyond a reasonable doubt. If dangerousness is not proved, then the long-term supervision sentence is also available at s. 753(5) or a conventional sentence may be imposed.

[47] If dangerousness is proved, there is no automatic indeterminate sentence imposed, which the Supreme Court in Johnson denounced as too rigid and as overshooting the purpose of public protection. Section 753(4) allows for an indeterminate sentence, a minimum sentence of two years and a long-term supervision order not exceeding 10 years or a conventional sentence.

[48] Section 753(4.1) requires that in indeterminate sentence shall be imposed unless the court is satisfied by the evidence adduced during the hearing that there is a reasonable expectation that a lesser measure under (4)(b) or (c) will adequately protect the public against the commission by the offender of murder or a serious personal injury offence.

[49] The Applicant’s constitutional challenge is grounded, in part, in the Ontario Court of Appeal case of R. v. Szostak, supra, in which Rosenberg J.A. reviewed the 1977 and 1997 legislative schemes when dealing with the 2008 legislation. The case was a Crown appeal from the sentencing judge’s decision not to designate the offender dangerous, but to impose a conventional sentence. There was no constitutional challenge to the legislation before the appeal court.

[50] Rosenberg J.A. granted the appeal, set aside the conventional sentence, designated the respondent a dangerous offender and imposed a total sentence of five years imprisonment followed by a ten-year supervision order.

[51] His Honour made these comments at paragraph 36 of the judgment:

36. To understand the issues in this appeal, it is necessary to briefly consider the 1977 and 1997 legislative schemes. As I will show, there has been an important shift in the way in which the legislation works. The trial judge’s discretion has narrowed in one sense, the judge no longer having discretion not to find a person a dangerous offender who fits the definition. But the discretion has been broadened in that the judge has wider sentencing options for a person who does come within the dangerous offender definition. In my view, these changes have an impact on the interpretation of the dangerous offender definition. In particular, it is my view that the possibility of successful treatment is of limited application in determining whether the person is a dangerous offender. The possibility of successful treatment is significant in choosing the appropriate disposition.

[52] At paragraph 62, His Honour also commented: “As I have said, the present legislation does not require intractability as a necessary element for a finding of dangerous offender. Intractability will be an important consideration for the sentencing judge in deciding what disposition to impose under s. 753(4) and (4.1)”.

[53] At paragraph 54, Justice Rosenberg also said the following:

Further, while I agree that the legislation must be interpreted in the spirit of Lyons and bearing in mind the sentencing principles and objectives in ss. 718, 718.1 and 718.2, it is apparent that Parliament intended a broader group of offenders be declared dangerous offenders than was envisaged in Lyons, where the court spoke of "a very small group of offenders". While the legislation is still narrowly targeted to a small group of offenders, that Parliament intended to broaden the group of persons to be labelled as dangerous offenders is apparent from the legislative reversal of the principle in Johnson referred to earlier that no sentencing objective is advanced by declaring an offender dangerous and imposing a determinate sentence. I point out that there has been no constitutional challenge to the 2008 regime in this case.

[54] Those comments have been repeated in the B.C. Supreme Court case of R. v. Boutilier, which the Applicant relies on for his constitutional challenge to s. 753(1). In the decision, Voith J. finds at paras. 37 and 38 that:

Although the language of the criteria in s. 753(1) has throughout remained constant, there is one significant difference in the existing content of those criteria following the 2008 amendments. That difference relates to the role that the future treatment prospects of an offender play in the assessment of dangerousness under s. 753(1) …

The concern is not that the designation stage, as it is presently constructed, bears no relationship to the objective of the legislation. The concern, to the extent one exists, is that the designation stage may capture some offenders who are not, in fact, truly dangerous, but who are, instead, unwell and who, with treatment, pose a limited risk to the public. This concern is one of overbreadth – a concern that “the law goes too far and interferes with some conduct that bears no connection to its objectives”; Bedford at para 101.

[55] In Boutilier, both Crown and Defence agreed that the words “limited application” in Szostak (para. 36) would mean that future successful treatment prospects of an offender are not considered at the designation stage of the current scheme. Instead, it is only to be considered at the penalty stage.

[56] Voith, J. concluded that the re-introduction (from the 1997 scheme as outlined in Johnson as a one question approach to designation and penalty) of a “two-stage” approach to designation and penalty in the present regime may be designating some offenders as dangerous “for the sake of designating offenders dangerous” as commented on in Johnson. This, he concludes, would lead to overbroad designations (para. 54).

[57] The combined effect of the 2008 changes means that an offender who satisfied the critera for dangerousness under s. 753(1) must be declared dangerous and cannot instead be declared a long-term offender. The offender will be given an indeterminate sentence unless the sentencing judge has a reasonable expectation that a lesser measure will adequately protect the public. Ultimately, this is likely to increase the number of indeterminate sentences imposed.

[58] I agree with Justice Voith that, for the first time (since the 2008 Criminal Code amendments), the sentencing judge is required to designate an offender as dangerous if the various conditions in s. 753(1) are met. I also agree with him that “this, without more” does not give rise to constitutional concern.

[59] I respectfully disagree, however, with his conclusion that the s. 753(1) criteria do not reflect the objectives of Part XXIV for a full range of offenders who the Crown may seek to have designated as dangerous, therefore making the legislation overbroad.

[60] The Crown in Mr. Wong’s matter does not agree, as the Crown did in Boutillier, that future treatment prospects of an offender are not considered in determining whether Mr. Wong should be designated a dangerous offender. I agree.

[61] I find that future treatment prospects are to be considered throughout the dangerous offender sentencing process. It seems that their effect on the determination of designation is “limited”. I will not embark on an estimate of how much these factors are considered during designation as opposed to the penalty phase as it may vary from offender to offender.

[62] And, I do find that the two-stage consideration which seems apparent in the current legislation, takes no discretion away from the sentencing judge, but actually adds more discretion at the penalty phase by allowing for more alternatives for penalty once the dangerousness criteria have been met – while ensuring that public protection is the objective of the legislation by properly labelling offenders who are dangerous as dangerous.

[63] The issue, then, is whether the present dangerous offender scheme is labelling offenders dangerous “for the sake of designating them dangerous” and including persons not properly dangerous in the process thereby making the law overbroad?

THE LAW

Section 7 of the Charter

[64] The Applicant bears the onus of establishing a violation of s.7 on a balance of probabilities. He must establish a deprivation of life, liberty or security of the person and show that the deprivation does not accord with the principles of fundamental justice. The analysis proceeds in two stages. The first requires a determination of whether there has been a deprivation to life, liberty and/or security of the person. If there has, the second stage requires determining whether that deprivation was in accordance with the principles of fundamental justice (R. v. D.B., 2008 SCC 25, [2008] 2 S.C.R. 3).

[65] The Respondent has acknowledged that the Applicant’s liberty interest is engaged by the threat of imprisonment. The analysis now moves to the second stage: the question of whether aspects of the dangerous offender regime do not accord with principles of fundamental justice.

[66] In R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433 at para. 36, the Supreme Court of Canada noted specifically that:

The Criminal Code goes on to list a number of principles to guide sentencing judges. The fundamental principle of sentencing is that the sentence must be proportionate to both the gravity of the offence and the degree of responsibility of the offender. As this Court has previously indicated, this principle was not borne out of the 1996 amendments to the Code but, instead, has long been a central tenet of the sentencing process….It also has a constitutional dimension, in that s. 12 of the Canadian Charter of Rights and Freedoms forbids the imposition of a grossly disproportionate sentence that would outrage society's standards of decency. In a similar vein, proportionality in sentencing could aptly be described as a principle of fundamental justice under s. 7 of the Charter.

[67] Once a principle of fundamental justice has been identified, the Applicant must then establish a violation of that principle before a breach of s.7 of the Charter can be shown. It is not enough to simply assert that the impugned law or state conduct was “unfair” or worked to the prejudice of the accused. The Charter does not guarantee the most favourable procedures imaginable. Nor is an accused entitled to procedures that only take his interests into account. When assessing whether a deprivation runs afoul of fundamental justice, one must ask: what does the principle of fundamental justice require in the specific context and does the impugned law or state action actually impair its application? (Lyons, at para. 85; R. v. Harrer, 1995 70 (SCC), [1995] 3 S.C.R. 562 at para. 14; R. v. Darrach, 2000 SCC 46, [2000] 2 S.C.R. 443 at para. 24).

[68] In the context of penal sanctions, the principles of fundamental justice are concerned not only with the interest of the person who claims his liberty has been limited, but with the protection of society. Fundamental justice requires that a fair balance be struck between these interests, both substantively and procedurally. (Cunningham v. Canada, 1993 139 (SCC), [1993] 2 S.C.R. 143 at para. 17).

[69] And with respect to sentencing provisions. specifically, both Lyons and R. v. Jones, 1994 85 (SCC), [1994] 2 S.C.R 229 hold that the protections afforded under ss. 7-14 of the Charter are more circumscribed post-conviction than at trial. As the majority noted in Jones, at paragraph 119:

[Sections] 7 to 14 protection has a more limited scope when applied to the sentencing process. Once guilt has been established, our fundamental principles of justice dictate a focus on the most appropriate sentence for the guilty party. To assume that s.7 post-trial protection should be identical to pre-trial and trial protection, ignores a rather critical intervening fact: the accused has been found guilty of a crime. Having so found, the court places greater emphasis on the interests of society in developing a sentence that is appropriate to the guilty party.

Overbreadth

[70] The Supreme Court of Canada in R. v. Heywood, 1994 34 (SCC) at page 23 said the following about overbreadth of legislation:

Overbreadth analysis looks at the means chosen by the state in relation to its purpose. In considering whether a legislative provision is overbroad, a court must ask the question: are those means necessary to achieve the state objective? If the state, in pursuing a legitimate objective, uses means which are broader than is necessary to accomplish that objective, the principles of fundamental justice will be violated because the individual’s rights will have been limited for no reason. The effect of overbreadth is that in some applications the law is arbitrary or disproportionate.

[71] That a law must not be overbroad is a recognized principle of fundamental justice (R. v. Moriarity, 2015 SCC 55 at para. 24; Canada (Attorney General) v. Bedford, 2013 SCC at paras. 94 -103R. R. v. Appulonappa, 2015 SCC 59 at para. 26).

[72] Overbreadth, for the purpose of s. 7 of the Charter, occurs where the state, in pursuing a legitimate objective, uses means that are broader than necessary to accomplish the objective (Appulonappa, at para. 26).

[73] The first step in the overbreadth inquiry is to determine the objective, ends or purpose of the impugned law. The second step is to determine whether the law deprives individuals of life, liberty or security of the person in cases that do not further that objective. (R. v. Appulonappa, supra at para. 27). Of critical importance is correctly identifying and articulating both legislative purpose and effects given overbreadth is made out only where there is a disconnect between the two (R. v. Moriarity, at para. 24).

i) Legislative Objective of s.753(1) and Part XXIV of the Criminal Code

[74] The 2008 amendments have not altered the objective of Part XXIV. The Supreme Court has recently affirmed in R v. Steele 2014 SCC 61, [2014] 3 S.C.R. 138 at para. 29, “[t]he primary rationale for both indeterminate detention and long-term supervision under Part XXIV is public protection”.

[75] In Steele, the Court traced the evolution of Part XXIV of the Code under the heading “General Purpose of Dangerous and Long-term Offender Provisions”. It explained the relationship between the long-term supervision and dangerous offender provisions, emphasizing how they are complementary parts of a single legislative framework for addressing one type of offender, namely those offenders who pose identified and serious future risks of harm to citizens. The critical difference between the dangerous and long-term offender is found not in the designation, but rather in how the sanction meted out by the sentencing court is responsive and tailored to the future risk that a particular offender presents. This involves balancing the preventive objective with the liberty interest of the offender, recognizing that the former is accorded greater importance (Steele, at paras. 28-31).

[76] If the offender's risk of future criminality (dangerousness) can be reasonably predicted to be eventually controllable in the community, a sentence combining punitive and preventive objectives will not require an indeterminate sentence of incarceration, but can be achieved through a determinate sentence combined with a long-term supervision order, or even a determinate sentence alone. The distinction between the dangerous offender who is sentenced to an indeterminate term of imprisonment and one who receives some lesser sentence is that the different sentences are imposed based on the court's assessment of the evidence concerning the likelihood of eventual control of risk of serious harm in the community.

[77] The objective of Part XXIV of the Criminal Code is the protection of the public from those select dangerous criminals who have committed a pattern of particular offences and whose conduct and attributes pose a likelihood of harm to the public.

ii) Section 753(1): It is not Overbroad

[78] The Applicant asserts that the current provisions significantly reduce the sentencing judge’s discretion to impose a dangerous offender designation and an indeterminate sentence. This violates the overbreadth principle in sentencing which is a recognized principle of fundamental justice. The only jurisprudence cited to support this proposition is the decision of Voith, J. in the British Columbia Superior Court decision of R. v. Boutilier. He does not refer, in his argument, to the criteria found in the case of R. v. D.B., and the test to be applied. No substantive argument is advanced by the Applicant explaining how the regime violates the principle of proportionality (particularly in light of the fact that multiple sentencing options remain open to the sentencing judge).

[79] The Applicant’s argument appears to be the proposition that “…without the capacity for the court to consider ‘intractability” or treatment prospects at the designation stage, an important filtering process (and safeguard) is lost….” It is overbroad given the state has used means which are broader than necessary to achieve its needs. There is no further argument advanced to support this proposition.

[80] In fact, the provisions operate as part of a comprehensive and carefully calibrated legislative scheme to identify dangerous offenders who pose serious risks of future harm to citizens. While the dangerous offender scheme has evolved since R. v. Lyons, it continues to fulfill the same objective of public protection with the added recognition that some risks posed by some dangerous criminals can be managed by special sentences involving long-term and intensive supervision outside of a custodial setting. This legislative formula strikes a balance between the two important principles at play; protection of the public and the liberty interests of an offender. Judicial discretion plays an important role in this balance and it remains ever-present and determinative of the ultimate result. As Allbright J. wrote in R. v. Toulejour, 2016 SKQB 84 at paras. 131 to 135 and146 (unreported):

I am of the view that the sentencing regime under the amended s. 753( 1) strikes a workable balance that considers the likelihood of violent reoffence [sic], the probable effect of treatment, the degree of dangerousness the offender presents , and the harm he or she may cause. The sentencing regime continues to provide offenders with procedural and substantive protections under s. 753(4.1). If there is a reasonable expectation that a lesser measure will adequately protect the public, an indeterminate period of incarceration will not be imposed.

While the stage of the sentencing process which admits of the exercise of judicial discretion has been altered from the designation stage to the stage of imposition of actual sentence, there nonetheless remains the constant that the Court retains the discretion as to whether an indeterminate sentence should be imposed or, alternatively, a determinate sentence. Section 753(4) provides this spectrum of possible or discretionary sentences depending upon the unique circumstances of the offender being sentenced.

The 2008 amendments, in my respectful view, have not materially altered the statutory criteria for "dangerousness ". A dangerous offender under the current scheme may receive a determinate sentence or a long-term supervision order if the Court is satisfied that the risk posed by an offender can be managed without an indeterminate sentence being imposed. I do not perceive this to represent an overbroad characteristic.

Under the amended legislation, a court is required to consider whether an offender meets the definition of "dangerous" and, if so, whether the offender constitutes a "dangerous offender". The regime requires the Crown to prove beyond a reasonable doubt that at the time of sentencing the offender has been convicted of a serious personal injury offence. Secondly, the Crown, in a similar fashion, must prove that the offender is a threat to life, safety or physical or mental well-being of other persons on the basis of any of the following:

• a pattern of repetitive behaviour (s. 753( I)(a)(i));

• persistent aggressive behaviour (s. 753(l)(a)(ii));

• brutal behaviour (s. 753(l )(a)(iii)); or

• sexual misconduct (s. 753( l )(b)).

I am also of the view that the current Part XXIV applies to exactly the same group of offenders as it did in Lyons. The only material change to the provisions is the inability to discretionarily exempt individual offenders from s. 753 who, despite meeting the criteria in s. 753(1), could have their risk to the public satisfactorily reduced by a long-term offender sentence. This Johnson-era safety valve to protect "marginal" offenders from indefinite detention has been moved to s. 753(4.1)….

The relevant legislative changes do, indeed, change the stage at which the focus on the Court's discretion comes into play; however, the existence of that discretion at a critical point in the process remains. The sentencing judge retains the discretion as to imposing the appropriate sentence upon an offender who falls under the ambit of s. 753(1).

[81] I agree. And after Toulejour was released, the B.C.C.A. overturned the trial judge’s findings of unconstitutionality of s. 753(1) in Boutilier.

[82] The court found that s. 753(1) creates a threshold test for a Part XXIV disposition. Standing alone, it has no effect on the liberty interest of the offender. At its highest, the section has an indirect effect on the offender’s liberty interests by triggering the presumptive disposition of an indeterminate sentence under s. 753 (4.1) [para. 53].

[83] The B.C.C.A. also outlined procedural protections for an offender subject to the legislation as including the consent of the Attorney General; the Crown must prove the s. 753 (1) criteria beyond a reasonable doubt; there is a right of appeal pursuant to s. 759(1) of the Code; and s. 761 of the Code provides for a review of disposition within seven years from the time the offender has been taken into custody and, thereafter, every two years (para. 54).

[84] With respect to considerations about threatability and the offender’s risk of harm at the designation stage, the Boutillier appeal court found, that although considered through the s. 752.1 assessment, these factors have limited applicability. However, the factors do play some role in the designation phase as, if an offender’s prognosis of future risk is positive, “the Crown is unlikely to succeed in establishing this criterion beyond a reasonable doubt and the designation will not be made” (para. 62].

[85] The court confirmed that the legislation works as a scheme, which cannot be analyzed by its individual parts in an examination of whether it is overbroad. The examination of the offender’s future treatment prospects for his elevated risk of harm at the designation stage would not ensure the protection of the public because the ability to manage the offender’s risk of harm can only be accomplished at the sentencing stage of the hearing where a proposed treatment plan can be implemented and monitored through a custodial treatment program in a determinate, indeterminate or long-term supervision sentence (para. 63).

[86] The dangerousness classification itself is a threshold or gateway to sentencing options under ss. 753(4) and 753(4.1). It is the means by which the offender’s risk of future harm is identified. It is only the sentence which actually impacts the offender’s liberty interests. And the sentencing options must be guided by all of the principles of sentencing (para. 64).

[87] The court also found that there was no evidence that the legislation captured offenders who may not be dangerous. The target group under s. 753(1), in fact, has remained the same. At paragraph 70, the court found:

In sum, in my view consideration of an offender’s future treatability for his identified risk of harm to ….. at the sentencing stage does not capture offenders who may not be dangerous. The target group under s. 753(1) remains the same, the criteria to establish dangerousness remains the same, and there is a rational connection between the purpose and the effect of the provision. Section 753(1) has no direct effect on the ofender’s liberty interest, which is only engaged at the sentencing stage. Section 753(4) provides sentencing options for the management of the offender’s risk of future harm. The presumptive disposition mandated by s. 754(4.1) is rebuttable if there is evidence of a “reasonable expectation” that a lesser measure “will adequately protect the public”. In this manner the purpose and effect of the scheme as a whole are aligned and rationally connected.

[88] The potential future consequences of designation as dangerous offender under s. 753(1) cannot be said to impact the liberty interest of the offender in such a way as to show a disconnect between the object of the legislation and its means.

SECTION 753.01

[89] The Applicant argues that s.753.01 is overbroad because it “expands the circumstances in which the offender may face an indeterminate sentence beyond what s.753(1) contemplates and contrary to its direction.” He provides no appropriate, contextual support for his argument.

[90] The Applicant’s also refers to Justice Voith’s comments in the trial decision of Boutlier regarding s.753.01. However, the trial judge expressly stated he would not address the constitutionality of s.753.01 on a stand-alone basis given the Applicant’s failure to provide proper notice. The B.C.C.A. decision, therefore, did not deal with the constitutionality of the section.

[91] The Applicant asserts there is a lack of procedural requirements inherent in s.753.01. He asserts that s.753.01 presumes dangerousness and an indeterminate sentence; that the Crown is permitted to pursue an indeterminate sentence on the strength of a dated opinion of risk/dangerousness; that the Crown can claw back an offender for a breach of a curfew; that a new SPIO can be completely unrelated to pattern and contrary to the criteria of s.753(1); and that, s.753.01 is far removed from the purposes of Part XXIV.

[92] I find that section 753.01 envisions a carefully prescribed and focused hearing. While it is true that the Crown relying on this section does not need to apply for a 752.1 assessment, a new assessment will still be obtained. Section 753.01 is a short-cut to the penalty phase of a dangerous offender hearing given that the Crown has already proven beyond a reasonable doubt a pattern of offending that met the criteria in s.753(1) that the offender is dangerous.

[93] The administrative reality of this section involves a series of procedural protections that ensure the offender’s liberty will be curtailed only to the extent necessary to fulfill relevant and appropriate sentencing objectives relating to the offence and any risk that he may pose to the public. These protections include the following:

(i) The offender benefitted from the presumption of innocence and was entitled to a trial in relation to the new alleged serious personal injury offence or breach;

(ii) upon conviction, the circumstances of the offence and the offender are reviewed by Crown counsel in light of its policy concerning dangerous offenders. The policy does not require an application for a remand for assessment pursuant to s. 753.01(1); the policy contemplates a review of the circumstances prior to any such application being made;

(iii) the trial Crown then must review the circumstances of the offence and the offender with their regional High Risk Offender—Crown Counsel. They must have the approval of their Regional Crown Attorney;

(iv) if and only if the Crown asks for an assessment, the Court must grant it;

(v) upon receipt of the updated psychiatric report, the trial Crown reviews the contents of the report with their Regional High-Risk Offender Crown Counsel and their Regional Crown before a decision is made whether to apply for an indeterminate sentence or a further sentence with a long- term supervision order;

(vi) the Crown seeks the Attorney General’s consent;

(vii) if A.G. consent is received, the Crown makes an application for an indeterminate sentence unless a lesser sentence will control the risk. Sections 753.01(5) and (6) grant the sentencing court the same discretion as found in s. 753(4.1) (Appendix 2).

[94] As well, section 759(1) of the Code provides the offender with a right of appeal in relation to any sentence imposed.

[95] In R. v. Obey, [2015] S.J. No. 345 (P.C.) at paras. 49 to 50, the court responded to the argument that a designation under s.753(1) would potentially expose an offender to the risk of the consequences in s.753.01, and that risk would last in perpetuity. The court concluded that before there is any impact on the liberty interest of an offender, the following must take place:

1. A judge must designate an offender a dangerous offender;

2. A judge does not designate him an indeterminate dangerous offender;

3. The offender commits another serious personal injury offence or a breach of his long-term offender order; and

4. The Crown brings an Application under s.753.01 rather than asking for an ordinary sentence.

[96] Even if the above preconditions were met, the same test pursuant to s.753(4.1) applies before a judge can impose an indeterminate sentence.

[97] If the Applicant’s argument “that the Crown can claw back an offender” for even a minor offence were valid, there should have seen a sharp increase in the number of incarcerated dangerous offender. Instead, the percentage of incarcerated dangerous offenders has remained relatively stable since the amendments to Part XXIV from 2008 to 2014, with only a minor increase.

Year

Active Dangerous Offenders

% of Federal Population

2008

394

2.8

2009

415

3.0

2010

441

3.0

2011

458

3.0

2012

486

3.0

2013

538

3.5

2014

573

3.6

[98] This statistical analysis of the number of federal inmates who are designated dangerous offenders and currently in federal penitentiaries reveals that since 2008, the number of federal inmates who are designated dangerous offenders has only increased by 0.8 % [(Public Safety Canada, Annual Report (excerpts from 2008 to 2014 – Crown’s Appendix D to Factum in Response to Constitutional Challenge)].

[99] The Applicant has relied, in this argument, on the hypothetical proposed by the trial judge in Boutilier to find that section 753(1) was unconstitutional.

[100] Without repeating the hypothetical, it is of note that the B.C.C.A. found that the trial judge provided no reported cases in which the hypothetical circumstances might have provided a starting point for determining if it was a reasonably foreseeable scenario. This was an error. The appeal court affirmed the principle that “Laws should not be set aside on the basis of mere speculation” (para. 69).

[101] As with subsequent criminal offences, the nature and extent of a breach and its connection to the dangerousness designation will determine the extent to which the designation will factor into any disposition. In addition, the procedures outlined in the legislation and the provincial policy surrounding the dangerous offender process will ensure a fair and proportionate response by the justice system to any breach of a long-term supervision order. Not all breaches are the same. A simple breach of curfew or failure to report will not hold the same concern for public safety as, for example, a serial rapist caught walking at night with a “rape kit”, complete with duct tape and a ski mask, in violation of the conditions of their supervision order.

[102] Future consequences of designation as a dangerous offender under s.753(1) cannot be said to impact the liberty interest of the offender pursuant to s.753.01 in such a way as to show a disconnect between the object of the legislation and its means.

CONCLUSION

[103] For these reasons, I find that sections 753(1) and 753.01 do not violate Mr. Wong’s s. 7 Charter rights.

[104] The Application is dismissed.

McWatt J.

Released: August 15, 2016

APPENDIX 1

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

o (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

o (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.

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.

Time for making application

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

o (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

o (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.

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.

Sentence for dangerous offender

(4) If the court finds an offender to be a dangerous offender, it shall

o (a) impose a sentence of detention in a penitentiary for an indeterminate period;

o (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

o (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) or (c) 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) 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.

If offender not found to be dangerous offender

(5) If the court does not find an offender to be a dangerous offender,

o (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

o (b) the court may impose sentence for the offence for which the offender has been convicted.

(6) [Repealed, 2008, c. 6, s. 42]

Application for remand for assessment — later conviction

753.01 (1) If an offender who is found to be a dangerous offender is later convicted of a serious personal injury offence or an offence under subsection 753.3(1), on application by the prosecutor, the court shall, by order in writing, before sentence is imposed, remand the offender, for a period not exceeding 60 days, to the custody of a person designated by the court who can perform an assessment or have an assessment performed by experts for use as evidence in an application under subsection (4).

Report

(2) The person to whom the offender is remanded shall file a report of the assessment with the court not later than 30 days after the end of the assessment period and make copies of it available to the prosecutor and counsel for the offender.

Extension of time

(3) On application by the prosecutor, the court may extend the period within which the report must be filed by a maximum of 30 days if the court is satisfied that there are reasonable grounds to do so.

Application for new sentence or order

(4) After the report is filed, the prosecutor may apply for a sentence of detention in a penitentiary for an indeterminate period, or for an order that the offender be subject to a new period of long-term supervision in addition to any other sentence that may be imposed for the offence.

Sentence of indeterminate detention

(5) If the application is for a sentence of detention in a penitentiary for an indeterminate period, the court shall impose that sentence unless it is satisfied by the evidence adduced during the hearing of the application that there is a reasonable expectation that a sentence for the offence for which the offender has been convicted — with or without a new period of long-term supervision — will adequately protect the public against the commission by the offender of murder or a serious personal injury offence.

New long-term supervision

(6) If the application is for a new period of long-term supervision, the court shall order that the offender be subject to a new period of long-term supervision in addition to a sentence for the offence for which they have been convicted unless it is satisfied by the evidence adduced during the hearing of the application that there is a reasonable expectation that the sentence alone will adequately protect the public against the commission by the offender of murder or a serious personal injury offence.

Victim evidence

753.02 Any evidence given during the hearing of an application made under subsection 753(1) by a victim of an offence for which the offender was convicted is deemed also to have been given during any hearing held with respect to the offender under paragraph 753(5)(a) or subsection 753.01(5) or (6).

Application for finding that an offender is a long-term offender

753.1 (1) 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-te1m offender ifit is satisfied that

o (a) it would be approp1iate to impose a sentence of imprisonment of two years or more for the offence for which the offender has been convicted;

o (b) there is a substantial risk that the offender will reoffend; and

o (c) there is a reasonable possibility of eventual control of the risk in the community.

Substantial risk

(2) The court shall be satisfied that there is a substantial risk that the offender will reoffend if

o (a) the offender has been convicted of an offence under section 151 (sexual interference), 152 (invitation to sexual touching) or 153 (sexual exploitation), subsection 163.1(2) (making child pornography), 163 .1 (3) ( distribution, etc., of child pornography), 163 .1 ( 4) (possession of child pornography) or 163.1(4.1) (accessing child pornography), section 170 (parent or guardian procming sexual activity), 171 (householder permitting sexual activity), 171.1 (making sexually explicit material available to child), 172.1 (luring a child) or 172.2 (agreement or arrangement - sexual offence against child), subsection 173(2) (exposure) or section 271 (sexual assault), 272 (sexual assault with a weapon) 273 (aggravated sexual assault) or 279.011 (trafficking - person under 18 years) or subsection 279.02(2) (material benefit - trafficking of person under 18 years), 279.03(2) (withholding or destroying documents-trafficking of person under 18 years), 286.1(2) (obtaining sexual services for consideration from person under 18 years), 286.2(2) (material benefit from sexual services provided by person under 18 years) or 286.3(2) (procuring - person under 18 years), or has engaged in serious conduct of a sexual nature in the commission of another offence of which the offender has been convicted; and

o (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 pati, 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.

Sentence for long-term offender

3. If the court finds an offender to be a long-term offender, it shall

o (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) 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

o (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) and (5) [Repealed, 2008, c. 6, s. 44]

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.

Long-term supervision

753.2 (1) Subject to subsection (2), an offender who is subject to long-tenn supervision shall be

supervised in the community in accordance with the Corrections and Conditional Release Act when the offender has finished serving

o (a) the sentence for the offence for which the offender has been convicted; and

o (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. A sentence imposed on an offender referred to in subsection (1 ), other than a sentence that requires imprisonment, is to be served concurrently with the long-term supervision.

Application for reduction in period of long-term supervision

(3) An offender who is required to be supervised, a member of the Parole Board of Canada or, on approval of that Board, the offender's parole supervisor, as defined in subsection 99(1) of the Corrections and Conditional Release Act, may apply to a superior court of criminal jurisdiction for an order reducing the period oflong-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.

Notice to Attorney General

(4) The applicant must give notice of an application under subsection (3) to the Attorney General at the time the application is made.

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 an indictable offence and liable to imprisonment for a term not exceeding 10 years.

Where accused may be tried and punished

(2) An accused who is charged with an offence under subsection (I) 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.

754 (1) With the exception of an application for remand for assessment, the court may not hear an application made under this Part unless

o (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;

o (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

o (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.

By court alone

(2) An application under this Part shall be heard and determined by the court without a jury.

When proof unnecessary

(3) 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.

Proof of consent

(4) 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.

APPENDIX 2

PRACTICE MEMORANDUM To Counsel, Criminal Law Division

Date: July 2, 2008

Subject: DANGEROUS, LONG-TERM AND HIGH-RISK OFFENDERS, ATTORNEY GENERAL CONSENTS, BREACHES OF LONG-TERM SUPERVISION ORDERS, SECTION 810 ORDERS, FLAGGING PROCEDURES.

Synopsis: The Ministry of the Attorney General is committed to the tracking, prosecution and management of high-risk offenders (including dangerous and long-term offenders). This memorandum sets out policies with respect to dealing with high-risk offenders.

This memorandum replaces PM [2005] No. 4, Dangerous Long-Term and High Risk Offenders – Flagging Procedures and PM [2005] No. 5, Dangerous and Long-Term Offenders: Plea Negotiations. Reference should also be made to the Crown Policy on dangerous, long-term, and high-risk offenders.

1. General Information

a. Definitions

Dangerous and long-term offenders are defined in the Criminal Code. A high-risk offender is a person who has been flagged on CPIC as someone who, in the opinion of a prosecution service, poses an ongoing serious threat to public safety. High-risk offenders include, but are not limited to, dangerous and long-term offenders.

b. Assistance for Dangerous and Long-Term Offender Proceedings

Each region has a designated Crown Counsel–High-Risk Offender (CC-HRO), who has specialized expertise to assist in the prosecution of dangerous and long-term offenders, and breaches of long-term supervision orders. The CC-HRO is a resource in this area of law, and will assist the trial Crown in preparing for the dangerous or long-term offender hearing, as necessary. Once a file is screened, and a dangerous or long-term offender application is being considered, Crown counsel must inform the CC-HRO in order to ensure that the CC-HRO can be of timely assistance in the case.

c. Obtaining a s. 752.1 or a s. 753.01 Assessment

Crown Counsel must consult with the CC-HRO, and must have the approval of the Crown Attorney or Deputy Crown Attorney, prior to seeking a s. 752.1 or s.

753.01 assessment1 . As set out in the Crown Policy, the personal consent of the Attorney General is required to initiate a dangerous or long-term offender application.

2. Resolution Discussions

Crown Counsel may embark on resolution discussions in cases where a dangerous or long-term offender application may be appropriate. Crown Counsel must not negotiate a guilty plea in exchange for agreeing to forego a dangerous or long-term offender application, without first consulting with the CC-HRO and the local Crown Attorney.

The Criminal Code requires a judge to declare a person a dangerous offender where that person meets the statutorily prescribed criteria. Following a declaration that an individual is a dangerous offender, the judge is then required to impose an indeterminate sentence, a fixed sentence followed by a supervision order, or simply a fixed sentence. If an individual is declared a dangerous offender, and is subject to a supervision order, the Crown can seek to have an indeterminate sentence imposed on that offender for any breach of the supervision order. In contrast, a long-term offender who breaches a supervision order can only be sentenced to a maximum of ten years. Because of these dramatically different consequences, it would rarely be appropriate for Crown counsel to agree to a long-term offender designation, followed by a supervision order, for an offender who meets the statutory dangerous offender criteria.

It is also critical to recall that any plea negotiations involving a dangerous or long-term offender application are subject to the Attorney General’s approval, as the Attorney General’s consent is required to initiate a dangerous or long-term offender application. Crown counsel must not purport to bind the Attorney General regarding the type of designation, or the length of the sentence following any such designation, in any plea negotiations.

In addition, consideration should be given to the following:

a. s. 752.1 Assessment

1 The Criminal Code of Canada no longer requires, that the Attorney General personally consent to the request for an assessment. This has now been delegated to the local Crown Attorney. The need for a formal notice of application to be filed on 7 days notice and given to the offender has also been removed.

Any agreement between Crown counsel and defence must be subject to review following the results of the s. 752.1 assessment. In particular:

• Crown counsel must retain the discretion to change his or her position depending on what is disclosed by the assessment report.

• Crown counsel must ensure that a full assessment is requested, and must not agree to restrict the scope of the assessment. The assessor should be free to consider whether an indeterminate sentence is appropriate from a psychiatric perspective.

• Crown counsel must be mindful that the assessment is a psychiatric one, and is not determinative of the legal issues that the Court must decide. Regardless of the assessor’s opinion from a psychiatric perspective, Crown counsel must still assess, from a legal perspective, whether there is evidence that the offender’s risk can reasonably be controlled in the community from a legal perspective.

b. Attorney General’s Consent

Prior to any tentative agreement, Crown counsel should advise defence counsel, in writing, that Crown counsel cannot bind the Attorney General’s decision to consent to a dangerous or long-term offender application, or to seek a particular kind of sentence following any such designation.

If the Attorney General directs a particular kind sentence be sought contrary to a proposed plea negotiation, Crown counsel with carriage of the matter should direct further questions regarding the Attorney General’s decision to the Deputy Director High-Risk Offenders at the Crown Law Office-Criminal (DD-HRO)2 .

The Attorney General’s consent to initiate a dangerous or long-term offender application, and direction to seek a particular kind of sentence, should not be seen as inconsistent with Crown counsel’s duties to make submissions based on the facts of the case, and the applicable law. If the evidence before the court, psychiatric or otherwise, changes or evolves from what was anticipated to the point where it does not support the imposition of an indeterminate sentence, Crown counsel should make the appropriate legal submissions3 . Crown counsel may wish to consult with the DD- HRO, should this issue arise.

3. Procedures Following the Dangerous or Long-Term Offender Hearing

a. S. 760 order

2 While a trial judge can convert a dismissed dangerous offender application into a long-term offender application, Crown counsel cannot convert the Attorney General’s consent to a dangerous offender application into one for long-term offender designation. (see R. v. McLeod, 1999 BCCA 347, [1999] B.C.J. No. 1264 (B.C.C.A.).

3 By analogy, the Attorney General’s consent to issue a direct indictment does not compel a Crown to insist on a conviction in the face of new evidence exonerating the accused.

At the conclusion of the hearing, if the offender has been declared a dangerous or long-term offender, Crown counsel must ask the trial judge to make the required order under s. 760 of the Criminal Code. This section requires 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, to be forwarded to the Correctional Service of Canada. A copy of the trial transcript should also be ordered and sent to the DD-HRO.

b. Notification of the result

Crown counsel must notify the CC-HRO and the DD-HRO of the result of the hearing. If the offender was placed on a supervision order, the DD-HRO will notify Correctional Services of Canada.

c. Closing the file

Crown counsel must forward the Crown brief to the CC-HRO at the conclusion of the hearing. The CC-HRO will then obtain a copy of court exhibits, and provide all of the materials to the DD-HRO. The DD-HRO will then ensure that the offender is properly flagged or, if already flagged, that his or her file is updated. The DD-HRO will also send a copy of core materials to the Correctional Services of Canada.

4. Breaches of Supervision Orders

If an offender has been charged with breaching his or her long-term supervision order, he or she will have been previously flagged as a high-risk offender. Crown counsel prosecuting the breach should contact the DD-HRO for a copy of the offender’s file, and should also contact their CC-HRO for assistance. At the conclusion of the prosecution, Crown counsel should update the DD-HRO regarding the outcome of the case, and should provide the requisite materials.

5. S. 810 Orders

a. S. 810.2 peace bonds

The Criminal Code requires the consent of the Attorney General to lay an information pursuant to s. 810.2. In Ontario, this consent has been delegated to the Assistant Deputy Attorney General (ADAG) of the Criminal Law Division. In order to obtain the consent of the ADAG, Crown counsel must first obtain the consent of the Crown Attorney. The Crown Attorney should send the request for ADAG consent to the DD-HRO with the supporting material, including the complete Warrant Expiry Package. Crown counsel must advise the DD-HRO of the outcome at the hearing, and must provide a copy of the order and related reasons for

judgement. The DD-HRO will ensure that the offender is properly flagged or, if already flagged, that the offender’s file is updated, and will notify the CC-HRO.

b. S. 810.1 peace bonds

At the completion of a successful s. 810.1 application, Crown counsel should arrange for the offender to be flagged or, if already flagged, should arrange for the offender’s file to be properly updated. The DD-HRO will notify the CC-HRO.

6. The National Flagging Program

The flagging program is a national initiative, although each province has slightly different criteria for flagging. Each province has a Provincial Coordinator. In Ontario, the Provincial Coordinator is the DD-HRO. The purpose of flagging is to ensure that Crown counsel have access to full background materials about those offenders who pose an ongoing serious threat to society. Such offenders will be flagged on CPIC as a high- risk offender.

Through the flagging program, Crown counsel can quickly access information for use in subsequent proceedings such as bail hearings, similar fact applications, and sentencing considerations including decisions about dangerous and long-term offender applications. The purpose in flagging an offender is not to presuppose that the offender should be the subject of a dangerous or long-term offender application, but to ensure that comprehensive information is available to Crown counsel who may be faced with the offender on a subsequent occasion.

If there is urgency associated with a particular request to flag an offender, for example where the material is required for a bail hearing, the DD-HRO should be informed of the urgency, so that the materials can be sent as quickly as possible.

a. The Criteria for Flagging

When a prosecution has concluded, Crown counsel should review the case to determine whether a flag should be requested. Counsel should request a flag in the following circumstances:

1. Where a review of the available information indicates that if the offender commits a further serious personal injury offence, or an offence set out in s.

753.1(2)(a) of the Criminal Code, there will be a reasonable prospect that he or she will be declared a dangerous or long-term offender pursuant to the Criminal Code.

2. Where the offender has been sentenced to life imprisonment, excluding sentences for murder.

3. Where Crown counsel believes that the candidate constitutes an ongoing serious threat to society.

b. Findings of “Not Criminally Responsible”, Acquittals, and Withdrawals

An individual found “Not Criminally Responsible” can be flagged. An individual who has been acquitted, or whose charges have been withdrawn, can be flagged, in some circumstances. In the case of an acquittal or withdrawal, flagging would not be based on the acquitted offence, but rather, upon previous offences, patterns of behaviour, or other indications of a future threat to public safety, including psychiatric opinions and risk assessments.

c. The Role of Crown Counsel

Crown counsel with carriage of the case should identify those individuals who meet the criteria for flagging. Both trial counsel and appellate counsel should consider flagging cases in which they are involved. Crown counsel must have the approval of the Crown Attorney or his or her delegate, or in the case of appellate counsel, the Director or the DD-HRO, to flag an individual.

When a CPIC inquiry reveals that an accused person has already been flagged, Crown counsel should request the package of material from the DD-HRO, and carefully assess the impact of that information on the current prosecution, including whether the accused might properly be the subject of a dangerous or long-term offender application.

Crown counsel who conducts a new prosecution involving a flagged offender should provide the DD-HRO with the outcome that new prosecution, along with the relevant material from the new offence.

Contact: Criminal Law Policy Branch

416-314-2955

Signed by: Paul Lindsay

Assistant Deputy Attorney General

Criminal Law Division

Practice Memoranda are not considered to be confidential and may be given to defence counsel or other interested persons, upon request.

MANDATORY LANGUAGE:

Once a file is screened, and a dangerous or long-term offender application is being considered, Crown counsel must inform the CC-HRO in order to ensure that the CC-HRO can be of timely assistance in the case.

Crown Counsel must consult with the CC-HRO, and must have the approval of the Crown Attorney or Deputy Crown Attorney, prior to seeking a s. 752.1 or s. 753.01 assessment. As set out in the Crown Policy, the personal consent of the Attorney General is required to initiate a dangerous or long-term offender application.

Crown Counsel must not negotiate a guilty plea in exchange for agreeing to forego a dangerous or long-term offender application, without first consulting with the CC- HRO and the local Crown Attorney.

Crown counsel must not purport to bind the Attorney General regarding the type of designation, or the length of the sentence following any such designation, in any plea negotiations.

Any agreement between Crown counsel and defence must be subject to review following the results of the s. 752.1 assessment.

Crown counsel must retain the discretion to change his or her position depending on what is disclosed by the assessment report.

Crown counsel must ensure that a full assessment is requested, and must not agree to restrict the scope of the assessment.

Crown counsel must be mindful that the assessment is a psychiatric one, and is not determinative of the legal issues that the Court must decide. Regardless of the assessor’s opinion from a psychiatric perspective, Crown counsel must still assess whether there is evidence that the offender’s risk can reasonably be controlled in the community from a legal perspective.

At the conclusion of the hearing, if the offender has been declared a dangerous or long-term offender, Crown counsel must ask the trial judge to make the required order under s. 760 of the Criminal Code.

Crown counsel must notify the CC-HRO and the DD-HRO of the result of the hearing.

Crown counsel must forward the Crown brief to the CC-HRO at the conclusion of the hearing. The CC-HRO will then obtain a copy of court exhibits, and provide all of the materials to the DD-HRO.

Crown counsel must advise the DD-HRO of the outcome at the hearing, and must provide a copy of the order and related reasons for judgement.

Crown counsel must have the approval of the Crown Attorney or his or her delegate, or in the case of appellate counsel, the Director or the DD-HRO, to flag an individual.

CITATION: R. v. Wong, 2016 ONSC 2984 COURT FILE NO.: CR-12-40000111 DATE: 2016-08-15

ONTARIO SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN Respondent

– and –

NICHOLAS WONG Applicant

reasons for decision

re: DEFENCE APPLICATION CHALLENGING THE CONSTITUTIONALITY OF THE DANGEROUS OFFENDER PROVISIONS AT SECTIONS 753(1) AND S. 753.01 OFTHE CRIMINAL CODE OF CANADA

McWatt J.

Released: August 15, 2016