INTRODUCTION AND BRIEF DESCRIPTION
This section requires the prosecutor to consider making an application for dangerous offender status if the offender has been previously convicted and sentenced to at least two years of imprisonment for designated offences.
SECTION WORDING
752.01 If the prosecutor is of the opinion that an offence for which an offender is convicted is a serious personal injury offence that is a designated offence and that the offender was convicted previously at least twice of a designated offence and was sentenced to at least two years of imprisonment for each of those convictions, the prosecutor shall advise the court, as soon as feasible after the finding of guilt and in any event before sentence is imposed, whether the prosecutor intends to make an application under subsection 752.1(1).
EXPLANATION
Section 752.01 of the Criminal Code of Canada outlines the requirements for a prosecutor to make an application for a dangerous offender designation. This designation is reserved for offenders who have a history of committing serious personal injury offences and who pose a significant threat to society. To be eligible for a dangerous offender designation, the offender must have been convicted previously at least twice of a designated offence and received a minimum sentence of two years for each of those convictions. A designated offence is a criminal offence that is considered to be a serious personal injury offence, such as murder, sexual assault, or aggravated assault. If the prosecutor believes that an offender meets these criteria, they must inform the court before the offender is sentenced. The prosecutor will then make an application for a dangerous offender designation under subsection 752.1(1) of the Criminal Code of Canada. This designation allows the court to impose an indeterminate sentence of imprisonment on the offender. The purpose of the dangerous offender designation is to protect society from individuals who have a high likelihood of committing serious crimes in the future. It is used as a last resort after other sentencing options, such as a determinate sentence or conditional release, have been exhausted. The criteria for a dangerous offender designation are stringent, and this designation is reserved for only the most serious and persistent offenders.
COMMENTARY
Section 752.01 of the Criminal Code of Canada is a provision that outlines the circumstances under which a prosecutor may make an application for a dangerous offender designation for an offender who has been convicted of a serious personal injury offence and has a history of previous convictions for designated offences. The purpose of the dangerous offender designation is to provide an enhanced form of sentencing for offenders who have a high risk of committing future violent offences. The designation allows for an indefinite term of imprisonment, with the possibility of parole after a minimum of seven years. Under Section 752.01, if an offender is convicted of a serious personal injury offence that is also a designated offence, and has been previously convicted of at least two designated offences and sentenced to at least two years of imprisonment for each conviction, the prosecutor is required to inform the court whether they intend to make an application for a dangerous offender designation. This provision recognizes the need for enhanced sentencing for offenders who have a history of violent criminal behaviour and have shown no willingness to rehabilitate. By requiring prosecutors to consider dangerous offender designations for repeat offenders, the provision serves to protect the public from the risk of further harm caused by these individuals. However, it is important to note that the designation of a dangerous offender is a serious matter, and should only be used in cases where it is necessary to protect the public from future harm. Designating an offender as a dangerous offender not only carries the possibility of an indefinite prison sentence, but also has serious implications for the offender's rights, including their ability to apply for parole. As such, prosecutors should exercise caution when considering whether to make an application for a dangerous offender designation, taking into account all of the relevant factors, including the nature and severity of the current offence, the offender's criminal history, and any evidence of rehabilitation. Overall, Section 752.01 serves as an important tool for prosecutors to protect the public from violent offenders who have a demonstrated history of criminal conduct. However, prosecutors must exercise their discretion carefully to ensure that the designation of a dangerous offender is only used in cases where it is necessary and appropriate.
STRATEGY
Section 752.01 of the Criminal Code of Canada is a provision that imposes mandatory obligations on the prosecutor to notify the court if they believe that an offender was convicted of a designated offence twice before and was sentenced to two years or more in jail. This notification is made to inform the court that the prosecutor may seek a dangerous offender designation against the offender under section 752.1 of the Code. The appointment of a dangerous offender designation means that the offender is an ongoing threat to society and should be kept in custody indefinitely. However, before the Crown can apply for a dangerous offender designation, serious consideration must be given. In fact, this provision incorporates an important strategic balance between the prosecutor's interest in protecting the public and the offender's interest in fairness and justice. To apply the designation, the prosecutor must satisfy the court that the offender's past convictions for designated offences are relevant to the current offense, and that the offender's behavior and the nature of the offenses demonstrate a pattern of conduct. In addition, the prosecutor must show that the offender has a high likelihood of committing a violent or sexual offense in the future. One of the significant strategic considerations for the prosecutor is to determine, based on all available information, whether an offender meets the criteria for dangerous offender designation. For instance, through reviewing the offender's criminal history, the prosecutor can assess how frequently the offender has committed designated offenses and the severity of those offenses. As such, a pattern of violent or sexual behavior can emerge, which indicates that the offender is a high risk to reoffend. Another strategic consideration for the prosecutor is to ensure that the offender's past convictions meet the statutory definition of designated offenses. This includes a host of violent offenses, such as murder, manslaughter, aggravated assault, sexual assault, and kidnapping, among others. The prosecutor must ensure that a charge satisfies the elements of the offense to qualify as a designated offense. Once the prosecutor has decided to apply for the dangerous offender designation, they must gather evidence to show that the offender is an ongoing danger to society. This means marshaling a wide range of evidence, from police reports to offender assessments to expert testimony. It also means anticipating and defending against potential challenges to the Crown's evidence by defense counsel. Importantly, the prosecutor must demonstrate that other sentencing options besides dangerous offender designation are inadequate. Another strategic consideration to keep in mind is that the court has discretion when applying a dangerous offender designation. For instance, the court may decide to make a long-term offender order instead, which admits an offender's danger to society but allows for a sentence of up to ten years' imprisonment, followed by supervision. Alternatively, the court may decide that the severity of the offense does not warrant a dangerous offender designation, in which case standard sentencing rules apply. In conclusion, a prosecutor contemplating a dangerous offender designation is faced with several strategic considerations. These considerations include reviewing an offender's criminal history, ensuring that past convictions meet the statutory definitions of designated offenses, gathering evidence to satisfy the statutory criteria, anticipating defense challenges, and showing that other sentencing options are not appropriate. Given the high stakes involved, a successful prosecution under this provision requires careful planning and execution.