section 753.1(1)

INTRODUCTION AND BRIEF DESCRIPTION

This section allows the court to declare an offender as a long-term offender if they meet certain criteria regarding the seriousness of their offense, risk of reoffending, and potential for rehabilitation in the community.

SECTION WORDING

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.

EXPLANATION

Section 753.1(1) of the Criminal Code of Canada provides for the possibility of designating an offender as a long-term offender. This significant designation is intended for cases where there is a strong likelihood of the offender reoffending upon completion of their sentence, putting public safety at risk. For an offender to be designated a long-term offender, certain criteria must be satisfied. Firstly, the court must be convinced that the offence for which the offender has been convicted is serious enough to warrant a sentence of two or more years imprisonment. Secondly, there must be compelling evidence that the offender poses a substantial risk of reoffending. Finally, there must be a reasonable possibility that this risk can be controlled in the community, through interventions or supervision. If the court is satisfied that all three criteria are met, it may make a long-term offender designation. The implication of this designation is that the offender will receive a more significant sentence than they would otherwise have, and will be subject to community supervision for a longer period than usual. The purpose of this designation is to provide the offender with additional support and management upon release, with the goal of reducing the risk of reoffending and improving community safety. Overall, Section 753.1(1) illustrates the seriousness with which the Canadian legal system takes public safety, particularly in cases where offenders are at a high risk of reoffending. By providing additional support and oversight, this section may help prevent further harm to communities and individuals.

COMMENTARY

Section 753.1(1) of the Criminal Code of Canada outlines the conditions under which a court may find an offender to be a long-term offender. A long-term offender designation is a legal process that can be applied to individuals who have been convicted of a serious offence, who have been identified as having a high risk of reoffending, and who require a lengthy period of supervision in the community. This designation allows for a more intensive and specialized form of community supervision that can help reduce the risk of future harm to society. The first condition that must be satisfied for an individual to be designated as a long-term offender is that 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. This requires the court to assess the seriousness of the offence and the level of harm caused to the victim(s) and society as a whole. If the court concludes that the offence warrants a lengthy term of imprisonment, it may consider whether the offender meets the other conditions for a long-term offender designation. The second condition is that there is a substantial risk that the offender will reoffend. This requires an assessment of the individual's risk factors, such as their criminal history, substance abuse, or mental health issues that may make them more likely to commit future offences. The court may rely on expert assessments and reports to help determine the level of risk that the individual poses to society. The third condition is that there is a reasonable possibility of eventual control of the risk in the community. This requires the court to consider whether there are appropriate community resources available to help manage the individual's behaviour, such as counseling, substance abuse treatment, or other forms of support. The court may also consider the individual's willingness and ability to comply with community supervision and treatment programs. If the court is satisfied that all of these conditions have been met, it may decide to designate the individual as a long-term offender. This designation allows for a period of community supervision that can last up to 10 years, during which the individual may be required to abide by specific conditions, such as a curfew, stay away orders, or mandatory participation in treatment programs. Failure to comply with these conditions can result in the individual being returned to custody. The long-term offender designation is an important tool that can be used to help protect society from individuals who pose a high risk of reoffending. It provides a framework for specialized and intensive forms of community supervision that can help reduce the likelihood of future harm. While there may be concerns about the potential for the designation to be misused or abused, the rigorous criteria that must be met before an individual can be designated as a long-term offender provide some safeguards against this risk. Overall, the long-term offender designation represents an important aspect of Canada's criminal justice system that helps balance the need for public safety with the principles of fairness and rehabilitation.

STRATEGY

Section 753.1(1) is a significant provision in the Criminal Code of Canada, as it allows the court to declare an offender as a long-term offender (LTO). This provision enables the court to impose a greater degree of supervision and control over an offender following their release. As such, there are various strategic considerations that the Crown and defence counsel should take into account when dealing with this section of the Criminal Code. One critical strategic consideration is the scope of the definition of "long-term offender." Under the Criminal Code, a long-term offender is defined as someone who has been designated as such by the court, and who has served both a custodial sentence of at least two years and a supervision order of at least ten years. This means that even if an offender meets the criteria for being declared as an LTO, the court must still consider whether a ten-year supervision order is justified. Therefore, counsel must be mindful of the implications of the offender's long-term designation regarding the length of the supervision order that the court may impose. Additionally, defence counsel may wish to challenge the offender's assessment report under subsection 752.1(2) to prevent the court from finding the offender to be a long-term offender. This is because the assessment report is a critical piece of evidence in establishing whether an LTO designation is warranted. If the report is not favorable to the offender, they may want to retain an expert to carry out their own assessment report to contest the findings in the prosecution's report. Another strategic consideration for the defence is negotiating a plea bargain. If counsel believes that the offender's chance of being declared an LTO is high based on the facts of the case, they may wish to negotiate a plea bargain that includes a ten-year supervision order rather than risking the court imposing a more severe order after a contested trial. In this case, the plea bargain may allow the offender to reduce the risk of being designated as an LTO, which would carry additional restrictions and obligations. The Crown also has strategic considerations to be mindful of when dealing with LTO designations. For instance, the Crown may consider the appearance of being tough on crime and may want to pursue the imposition of an LTO designation aggressively. Alternatively, they may decide that the circumstances of the case do not warrant an LTO designation and not pursue it. In conclusion, there are several strategic considerations to take into account when dealing with Section 753.1(1) of the Criminal Code of Canada. These considerations include the scope of the LTO definition, assessment reports, plea bargains, and prosecutorial discretion. Defence and Crown counsel must carefully consider the evidence and the legal principles when deciding whether to pursue an LTO designation for an offender. Ultimately, the goal should be to balance the pursuit of justice with the protection of the offender's rights and liberties.