INTRODUCTION AND BRIEF DESCRIPTION
This section outlines the conditions for which a court must determine if an offender convicted of certain sexual offenses presents a substantial risk of reoffending.
SECTION WORDING
753.1(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 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 procuring 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), 212(2) (living on the avails of prostitution of person under eighteen), 212(2.1) (aggravated offence in relation to living on the avails of prostitution of a person under the age of eighteen years) or 212(4) (offence — prostitution of person under eighteen) or section 271 (sexual assault), 272 (sexual assault with a weapon) or 273 (aggravated sexual assault), or has engaged in serious conduct of a sexual nature in the commission of another offence of which the offender has been convicted; and (b) the offender (i) has shown a pattern of repetitive behaviour, of which the offence for which he or she has been convicted forms a part, that shows a likelihood of the offender’s causing death or injury to other persons or inflicting severe psychological damage on other persons, or (ii) by conduct in any sexual matter including that involved in the commission of the offence for which the offender has been convicted, has shown a likelihood of causing injury, pain or other evil to other persons in the future through similar offences.
EXPLANATION
Section 753.1(2) of the Criminal Code of Canada outlines the conditions under which a court may order a dangerous offender designation for an individual convicted of certain sexual offenses or serious acts of sexual violence. In order for the court to impose this designation, they must be satisfied that there is a substantial risk that the offender will reoffend. This substantial risk assessment is based on two factors: the nature of the original offense and the offender's pattern of behavior. The first factor pertains to the type of offense committed by the offender, which must fall into one of the specified categories outlined in the section. This includes sexual interference, sexual exploitation, making and distributing child pornography, luring a child and prostitution involving minors. The section also applies to serious acts of sexual violence, such as sexual assault, sexual assault with a weapon, and aggravated sexual assault. If the offender committed an offense in one of these categories, the court will consider the risk of reoffending to be high. The second factor relates to the offender's pattern of behavior. The court needs to establish that the offender has displayed a repetitive behavior pattern, which shows a likelihood of causing severe psychological damage, death, or injury through their actions. This behavior pattern can be demonstrated either through the offender's prior offenses or by their conduct involving sexual activity. If the court determines that there is substantial evidence of both factors, they may designate the offender as a "dangerous offender," which is the highest level of punishment available under Canadian law. This designation can result in an indefinite prison sentence, even beyond the offender's original sentence, and they can only be released if the National Parole Board considers it safe to do so. The dangerous offender label is an extreme measure used only in cases where the offender poses a significant risk to society, especially to potential victims of sexual violence. So, it can be considered as the ultimate form of punishment for the serious sex offenders in Canada.
COMMENTARY
Section 753.1(2) of the Criminal Code of Canada is a provision that outlines the criteria for the court to impose a dangerous offender designation on an offender. The court shall be satisfied that there is a substantial risk that the offender will reoffend if they have been convicted of certain sexual offences or engaged in serious conduct of a sexual nature in the commission of another offence of which the offender has been convicted. The provision aims to protect society from individuals who pose a significant risk of causing death or injury to other persons, inflicting severe psychological damage on other persons, or causing injury, pain, or other evil to other persons in the future through similar offences. The provision applies to specific sexual offences such as sexual interference, sexual exploitation, making child pornography, luring a child, and sexual assault. These offences are serious and have a significant impact on the victims. The provision recognizes that individuals who have engaged in these offences pose a significant risk of reoffending and causing harm to other persons. It is essential to protect the public from such offenders by imposing a dangerous offender designation on them. The provision requires the court to be satisfied that there is a substantial risk that the offender will reoffend. This means that the court must consider the evidence before it and determine whether the offender poses a significant risk of reoffending. The evidence may include the offender's criminal record, psychological reports, and other relevant information. The provision also requires the court to consider whether the offender has shown a pattern of repetitive behavior that shows a likelihood of causing death or injury to other persons or inflicting severe psychological damage on other persons. This means that the court must consider the offender's behavior and determine whether their behavior shows a pattern of repetition that poses a significant risk of causing harm to other persons. The provision also requires the court to consider whether the offender, by conduct in any sexual matter, has shown a likelihood of causing injury, pain, or other evil to other persons in the future through similar offences. This means that the court must consider the offender's conduct and determine whether their conduct shows a likelihood of causing harm to other persons. This provision recognizes that an offender's conduct in any sexual matter may be an indicator of their potential to cause harm to other persons. In conclusion, Section 753.1(2) of the Criminal Code of Canada is a provision that aims to protect society from individuals who pose a significant risk of causing death or injury to other persons, inflicting severe psychological damage on other persons, or causing injury, pain, or other evil to other persons in the future through similar offences. The provision applies to specific sexual offences and requires the court to consider the offender's criminal record, psychological reports, and other relevant information to determine whether the offender poses a significant risk of reoffending. The provision plays an essential role in protecting the public from dangerous offenders.
STRATEGY
Section 753.1(2) of the Criminal Code of Canada provides for the designation of an offender as a dangerous offender if the court is satisfied that there is a substantial risk that the offender will reoffend. This is a serious finding as it can result in an indeterminate sentence of imprisonment in order to protect the public from the offender. Strategic considerations when dealing with this section of the Criminal Code of Canada are complex and require careful analysis of the evidence presented by the Crown and the defence. The Crown has the burden of proving, beyond a reasonable doubt, that the offender meets the criteria set out in section 753.1(2). The defence has the burden of presenting evidence to challenge the Crown's case and to persuade the court that the offender should not be designated as a dangerous offender. One strategic consideration for the defence is to challenge the Crown's evidence. This can be done by presenting expert testimony on issues such as risk assessment, psychology, and mental health. For example, a defence expert may present evidence that the offender's behaviour was due to a specific mental illness or other factors that make it unlikely that the offender will reoffend. This evidence can be used to persuade the court that the criteria for designation as a dangerous offender have not been met. Another strategy for the defence is to present evidence of the offender's positive accomplishments, including successful education, employment, and treatment programs. This can show the court that the offender has made efforts to change and is unlikely to reoffend. This evidence can be combined with a plan for community supervision and support to persuade the court that the offender can be safely released. Alternatively, the Crown may present evidence of the offender's past criminal conduct to show that the offender poses a serious risk to the public. Strategically, they may argue that the offender is a repeat offender with a history of sexual violence. The Crown may also use evidence of the offender's criminal history to show that the offender is unlikely to change his or her behaviour and will continue to pose a risk to the public. Another strategic consideration for the Crown is connecting the offender's crimes to harmful societal issues. For instance, if the offender's crime was sex trafficking, the Crown could argue that the offender's continued presence in society promoted harmful stigmas about vulnerable women. The Crown may also argue that an indeterminate sentence is necessary to show justice for the victims and to provide a deterrence against other potential offenders. In conclusion, a dangerous offender designation is a serious and complex finding that requires careful analysis and consideration of the evidence. It is important for both the Crown and the defence to appreciate the strategic considerations of the opponent's arguments and evidence to achieve successful outcomes for their clients. Some strategies that could be employed include expert testimony, evidence of positive accomplishments and treatment programs, community supervision and support, past criminal conduct, societal issues, and victim impact statements.