What Happens in a Dangerous Offender Application?

If you or someone in your family has been told the Crown may bring a dangerous offender application, you are likely hearing the term for the first time and trying to understand what it means. The short version is this: after a finding of guilt for certain serious offences, the Crown can ask the court to go beyond an ordinary sentence and impose detention in a penitentiary with no fixed end date. It is one of the most consequential proceedings in Canadian criminal law, and it follows its own set of rules.

This article walks through the process step by step — from the first signal that the Crown is considering an application, through the assessment and the hearing, to the possible outcomes and what life looks like afterward. For a more detailed look at the legal tests and how we defend these cases, see our dangerous offender and long-term offender applications page.

What Is a Dangerous Offender Application?

A dangerous offender application is a special sentencing proceeding under Part XXIV of the Criminal Code (sections 752 to 761). It is not a new charge, and it does not reopen the question of guilt. It happens after a person has been found guilty and before (in almost all cases) they are sentenced.

The Crown’s position in these applications is that the person poses a serious, continuing risk to others and that an ordinary sentence would not adequately protect the public. If the Crown succeeds, the court can impose one of three sentences — the most serious being detention in a penitentiary for an indeterminate period.

A closely related proceeding is the long-term offender application. It uses the same assessment process but leads to a fixed sentence followed by up to ten years of supervision in the community. We explain that route in detail in Long-Term Offender Designations and Supervision Orders Explained.

Which offences can lead to an application?

The application must be based on a conviction for a serious personal injury offence. In general terms, that includes:

• an indictable offence (other than treason or murder) punishable by ten years or more that involves violence or attempted violence, or conduct that endangers someone’s life or safety or inflicts severe psychological damage; and
• several listed sexual offences, including sexual assault, sexual assault with a weapon or causing bodily harm, aggravated sexual assault, and sexual interference.

Many applications follow convictions for sexual assault or serious assault offences, particularly where the person has a history of similar convictions.

Step 1: The Crown Signals Its Intention

The process usually begins after a guilty plea or a finding of guilt at trial. In certain cases the Code requires the prosecutor to tell the court, as soon as feasible after the finding of guilt and before sentence, whether it intends to seek an assessment. That duty applies where the offence is a serious personal injury offence and the person has at least two prior convictions for designated offences, each with a sentence of two years or more — or where the offence was against an intimate partner or family member and the person has at least two prior convictions for designated or serious personal injury offences against such a person.

That early warning matters: decisions made at this stage, including how the client approaches the assessment, can shape the rest of the case.

Step 2: The Assessment

The Crown’s first formal step is to ask the court to order an assessment. If the judge is satisfied there are reasonable grounds to believe the person might be found to be a dangerous offender or long-term offender, the judge must order the person remanded for assessment.

How long does it take?

• The remand for assessment can last up to 60 days.
• The assessor must file a report within 30 days after the assessment period ends.
• On the Crown’s application, the judge can extend the filing deadline by up to 30 more days.

The assessment is usually conducted by a forensic psychiatrist or psychologist. It typically involves interviews, psychological testing, a review of the person’s criminal and institutional history, and the use of actuarial risk-assessment tools. The finished report is shared with both the Crown and defence counsel.

Should you participate?

This is one of the most important early decisions, and it has no single answer. Participation can give the assessor a fuller and more accurate picture, including evidence of insight, treatment progress, and supports. It also creates a record that may be used at the hearing. The right approach depends on the individual, the file, and the likely content of the report. That decision should be made with defence counsel, before the first interview.

Step 3: Consent, Notice, and Getting to the Hearing

Once the assessment report is filed, the Crown must satisfy several requirements before the court can hear the application itself:

• the Attorney General of the province must consent to the application;
• the person must receive at least seven days’ notice from the prosecutor outlining the basis of the application; and
• a copy of that notice must be filed with the court.

The application is heard by a judge alone — there is no jury — and the person must generally be present.

As a rule, the application must be made before sentence is imposed. There is a narrow exception: if the Crown gave notice before sentencing of a possible application, it can apply within six months after sentence, but only if relevant evidence that was not reasonably available at the time of sentencing has since come to light.

Step 4: The Hearing

A dangerous offender hearing can take days or weeks. The Crown typically calls the court-appointed assessor and may introduce police reports, prior court records, victim evidence, and correctional records going back many years. The defence can cross-examine, call its own evidence, and present evidence of the person’s character, background, and treatment history.

What does the Crown have to prove?

The judge must be satisfied that the offence is a serious personal injury offence and that the person is a threat to the life, safety, or well-being of others, based on evidence of one of the following:

• a pattern of repetitive behaviour showing a failure to restrain that behaviour and a likelihood of causing harm in the future;
• a pattern of persistent aggressive behaviour showing substantial indifference to the consequences for others;
• conduct in the offence so brutal that future behaviour is unlikely to be restrained by normal standards; or
• for sexual offences, a failure to control sexual impulses and a likelihood of causing harm in the future.

In R. v. Boutilier, 2017 SCC 64, the Supreme Court of Canada held that this finding must be proven beyond a reasonable doubt and requires a forward-looking assessment. The judge must be satisfied that the person poses a high likelihood of harmful reoffending and that the behaviour is intractable — something the person is unable to overcome. Critically, the Court held that the judge must consider treatment prospects at this stage. A person who can realistically be treated and managed may not meet the test at all.

The presumption for repeat offenders

In one situation the burden shifts. If the current offence is a primary designated offence (a list that includes the major sexual offences, attempted murder, aggravated assault, assault with a weapon or causing bodily harm, and kidnapping) warranting at least two years, and the person has at least two prior primary designated offence convictions that each resulted in a sentence of two years or more, the criteria are presumed to be met unless the person proves otherwise on a balance of probabilities.

Step 5: The Possible Outcomes

If the judge finds the person is not a dangerous offender, the court can treat the application as a long-term offender application or simply impose an ordinary sentence.

If the judge finds the person is a dangerous offender, there are three possible sentences:

1. Indeterminate detention in a penitentiary;
2. A fixed sentence of at least two years, followed by a long-term supervision order of up to ten years; or
3. An ordinary sentence for the offence.

The Code directs the judge to impose the indeterminate sentence unless satisfied that there is a reasonable expectation that one of the lesser options will adequately protect the public against murder or a serious personal injury offence. The Supreme Court in Boutilier explained that this does not create a presumption or put a burden on the offender. The judge must still apply the ordinary principles of sentencing and impose the least intrusive sentence needed to protect the public. The person’s moral culpability, mitigating factors, and — for Indigenous offenders — the Gladue principles are all part of that decision.

This is why the evidence about treatment, supervision, and community support is so important. Even where a designation is likely, the sentence remains a real question.

Step 6: Life After the Decision

If the sentence is indeterminate

An indeterminate sentence does not mean there is no possibility of release, but release is never automatic. The Parole Board of Canada must review the case as soon as possible after seven years from the day the person was taken into custody, and then at least every two years. At each review, the Board considers the person’s condition, history, and circumstances — including participation in programming, institutional behaviour, and release plans. If parole is granted, it comes with conditions and can be suspended or revoked.

The court’s reasons, the assessment reports, and the trial transcript are sent to the Correctional Service of Canada, where they inform security classification, programming, and the information the Parole Board will see.

If the sentence includes long-term supervision

A person who receives a fixed sentence plus a long-term supervision order serves the prison term first. Supervision in the community begins after all custodial sentences are finished. Conditions are set by the Parole Board of Canada, and breaching the order without reasonable excuse is a separate criminal offence punishable by up to ten years. Our guide to long-term supervision orders covers this in detail.

Appeals

A person found to be a dangerous offender or long-term offender can appeal to the Court of Appeal on any ground of law, fact, or mixed law and fact. The Crown can appeal on questions of law. For general background on the appeal process, see our article on criminal appeals in Ontario.

What This Means for You

If the Crown has raised the possibility of a dangerous offender application, a few points are worth keeping in mind:

• The assessment is not a formality. It is often the most important piece of evidence at the hearing, and decisions about it should be made with counsel.
• Records matter. Old police reports, institutional files, and program records will be scrutinized. Errors in them can be challenged, and evidence of progress can be put before the court.
• Treatment and supervision plans matter. The strongest answer to a dangerous offender application is often credible evidence that risk can be managed in the community.
• Family and community support can be evidence. People willing to help with housing, employment, and accountability can form part of a real plan.

How Mor Fisher Can Help

Our lawyers act for offenders facing dangerous offender and long-term offender applications across Ontario. On these files we review the Crown’s disclosure and institutional records, advise on the assessment, retain independent psychiatrists and psychologists where appropriate, challenge the methodology and conclusions of the Crown’s assessment, prepare Gladue information for Indigenous clients, and build detailed community risk-management plans to support a long-term offender or determinate outcome. Our partner Jeffrey Fisher has acted for the defence in numerous dangerous offender proceedings. You can read more about our approach on our dangerous offender applications page.

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Contact Mor Fisher LLP at 705-721-6642 or through our contact page. The work that most affects the outcome of a dangerous offender application — preparing for the assessment and building the record on treatment and supervision — happens early, so it helps to involve defence counsel as soon as the Crown signals its intention.