Dangerous Offender & Long-Term Offender Applications

When the Crown Asks for More Than a Sentence

Most sentencing hearings ask one question: what is a fit sentence for this offence and this person? A dangerous offender application asks something different. The Crown is asking the court to find that the person poses such a serious and continuing risk to others that ordinary sentencing is not enough, and that the court should impose detention in a penitentiary for an indeterminate period or, at a minimum, years of supervision in the community after the jail sentence ends.

These applications are governed by Part XXIV of the Criminal Code (sections 752 to 761). They arise only after a finding of guilt, and they turn less on the facts of the offence than on the offender’s history, treatment prospects, and whether risk can realistically be managed in the community.

At Mor Fisher LLP, we act for offenders facing dangerous offender and long-term offender applications across Ontario. Our partner Jeffrey Fisher has acted for the defence in numerous dangerous offender proceedings.

How an Application Begins

The predicate offence

The starting point is a conviction for a serious personal injury offence, as defined in s. 752. In general terms, that means either:

• an indictable offence (other than treason or murder) punishable by ten years or more that involves the use or attempted use of violence, or conduct endangering someone’s life or safety or inflicting severe psychological damage; or
• one of several listed sexual offences, including sexual assault (s. 271), sexual assault with a weapon or causing bodily harm (s. 272), aggravated sexual assault (s. 273), and sexual interference (s. 151).

Section 752 also defines primary designated offences — including the major sexual offences, attempted murder, assault with a weapon or causing bodily harm, aggravated assault, and kidnapping. These matter because of the presumption discussed below.

The Crown’s duty to advise the court

Under s. 752.01, the prosecutor must tell the court, before sentence, whether it intends to seek an assessment where the offender has a qualifying history of prior serious convictions — including repeated offences against an intimate partner or family member.

The assessment order (s. 752.1)

The Crown’s first formal step is an application to remand the offender for assessment. If the court finds reasonable grounds to believe the offender might be found to be a dangerous offender or long-term offender, it must order the offender remanded for up to 60 days to a person designated by the court who will conduct or arrange the assessment. The report must be filed within 30 days after the assessment period ends, and the court may extend that deadline by up to 30 more days on the prosecutor’s application.

Consent and notice (s. 754)

After the assessment, the court cannot hear the application itself unless the Attorney General of the province has consented, the offender has received at least seven days’ notice outlining the basis for the application, and a copy of that notice has been filed with the court. The hearing is decided by a judge alone — there is no jury.

The application generally must be brought before sentence is imposed. The Code allows a narrow exception: if the Crown gave notice before sentencing of a possible application, it may apply within six months after sentence, but only where relevant evidence that was not reasonably available at sentencing has since come to light (s. 753(2)).

The Dangerous Offender Test

Under s. 753(1), the court must find the offender to be a dangerous offender if the Crown establishes that the predicate offence is a serious personal injury offence and the offender is a threat to the life, safety, or well-being of others, based on evidence of:

• a pattern of repetitive behaviour, including the predicate offence, showing a failure to restrain that behaviour and a likelihood of causing death, injury, or severe psychological damage in the future;
• a pattern of persistent aggressive behaviour showing substantial indifference to the reasonably foreseeable consequences for others;
• conduct in the offence so brutal that the offender’s future behaviour is unlikely to be inhibited by normal standards of restraint; or
• for sexual offences, conduct in sexual matters showing a failure to control sexual impulses and a likelihood of causing injury, pain, or other evil to others in the future.

The presumption in s. 753(1.1)

Where the current offence is a primary designated offence warranting two years or more, and the offender has at least two prior primary designated offence convictions each resulting in a sentence of two years or more, the designation criteria are presumed to be met unless the offender proves otherwise on a balance of probabilities.

R. v. Boutilier: risk is assessed looking forward

In R. v. Boutilier, 2017 SCC 64, the Supreme Court of Canada held that the Crown must prove beyond a reasonable doubt that the offender represents a threat, and that the designation requires a prospective assessment: the judge must be satisfied that the offender poses a high likelihood of harmful recidivism and that the conduct is intractable — behaviour the offender is unable to surmount. The Court held that treatment prospects must be considered at the designation stage, not saved for the penalty stage. At designation, treatability informs whether the offender is a threat at all; at the penalty stage, it helps determine what sentence is needed to manage that threat.

The Possible Outcomes

If the offender is designated a dangerous offender, s. 753(4) gives the court three options:

1. Detention in a penitentiary for an indeterminate period;
2. A 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.

Section 753(4.1) directs the court to impose the indeterminate sentence unless it is satisfied that there is a reasonable expectation that a lesser measure will adequately protect the public against murder or a serious personal injury offence. In Boutilier, the Supreme Court explained that this provision does not impose an onus on the offender or a mandatory sanction. The ordinary sentencing principles in ss. 718 to 718.2 still apply, and the judge must impose the least intrusive sentence required to protect the public. The Court also confirmed that moral culpability, mitigating factors, and the principles developed for Indigenous offenders are part of that analysis.

Earlier, in R. v. Lyons, [1987] 2 SCR 309, the Supreme Court upheld the former dangerous offender provisions against Charter challenges, holding that indeterminate detention for this narrow group of offenders is not cruel and unusual punishment.

The long-term offender route (s. 753.1)

A court may instead find the offender to be a long-term offender if it would be appropriate to impose a sentence of two years or more, there is a substantial risk of reoffending, and there is a reasonable possibility of eventual control of the risk in the community. A long-term offender receives a sentence of at least two years followed by long-term supervision of no more than ten years. If the court declines to designate the offender a dangerous offender, it may treat the application as a long-term offender application (s. 753(5)).

Parole review for indeterminate sentences

Under s. 761, 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 at least every two years after that.

Breach of a long-term supervision order

Failing or refusing to comply with long-term supervision without reasonable excuse is a separate offence under s. 753.3, punishable by up to ten years on indictment or on summary conviction.

Our Defence Strategy

1. Challenging the assessment

The court-ordered assessment is often the centrepiece of the Crown’s case. We scrutinize the assessor’s methodology, the actuarial risk tools used, the accuracy of the historical information fed into them, and whether the conclusions follow. Risk scores are only as reliable as the file behind them.

2. Independent psychiatric and psychological evidence

We retain independent psychiatrists and psychologists to assess the client, review the Crown’s report, and give evidence where it helps. A defence assessment can speak directly to the issues Boutilier makes central: whether the behaviour is truly intractable and whether treatment can make a difference.

3. Treatability and a real community plan

A long-term supervision order is only a realistic alternative if there is a credible plan behind it. We gather evidence about treatment programs, relapse-prevention work, medication, residential options, family and community supports, and how the correctional system would supervise the client. Section 757 also preserves the offender’s right to call evidence of character and repute.

4. Arguing for a long-term offender or determinate outcome

Even where a designation is likely, the sentencing question remains open. We build the evidentiary record for a determinate sentence with long-term supervision, or an ordinary sentence, as the least intrusive measure that adequately protects the public.

5. Disclosure of institutional records

These hearings often rely on decades of police, probation, and Correctional Service of Canada records. We pursue full disclosure and test their accuracy. Institutional files can contain errors and unproven allegations — and also evidence of progress in programming.

6. Gladue and Indigenous offenders

For Indigenous clients, we prepare Gladue information addressing systemic and background factors, and the availability of culturally appropriate programming and community supports. These considerations are relevant both to the offender’s moral culpability and to whether a lesser sentence can manage risk.

7. Appeals

Under s. 759, an offender found to be a dangerous offender or long-term offender may appeal on any ground of law, fact, or mixed law and fact. The Attorney General may appeal on a question of law. Our appeals practice includes these cases.

Collateral Consequences

Beyond the sentence itself, the reports, testimony, and the court’s reasons are forwarded to the Correctional Service of Canada (s. 760), where they shape security classification, programming, and future parole decisions for years. A designation also follows the person into any future prosecution: a later conviction for a serious personal injury offence can trigger a new assessment and application under s. 753.01.

Related Resources

• What Happens in a Dangerous Offender Application? — a plain-language walk-through for accused persons and families
• Long-Term Offender Designations and Supervision Orders Explained — how LTSOs work and how the LTO route is argued
• Sexual Assault Defence — many applications follow convictions for sexual offences
• Murder & Manslaughter Defence — serious violent offences where risk assessment often arises
• Assault Defence — aggravated assault and assault causing bodily harm are primary designated offences
• Criminal Appeals — appealing a designation or sentence under s. 759

If the Crown has signalled a dangerous offender or long-term offender application, the defence work should begin before the assessment does. Call Mor Fisher LLP at 705-721-6642 or contact us for a confidential consultation.