Criminal Code of Canada - section 752.1(1) - Application for remand for assessment

section 752.1(1)

INTRODUCTION AND BRIEF DESCRIPTION

This section allows for an offender convicted of a serious personal injury offence to be remanded for assessment to determine if they may be found to be a dangerous offender or a long-term offender.

SECTION WORDING

752.1(1) On application by the prosecutor, if the court is of the opinion that there are reasonable grounds to believe that an offender who is convicted of a serious personal injury offence or an offence referred to in paragraph 753.1(2)(a) might be found to be a dangerous offender under section 753 or a long-term offender under section 753.1, the court shall, by order in writing, before sentence is imposed, remand the offender, for a period not exceeding 60 days, to the custody of a person designated by the court who can perform an assessment or have an assessment performed by experts for use as evidence in an application under section 753 or 753.1.

EXPLANATION

Section 752.1(1) of the Criminal Code of Canada provides for the remand of an offender to custody for a maximum period of 60 days before sentencing, if the prosecutor believes that the offender may be found to be a dangerous offender or a long-term offender. This is done to allow for an assessment of the offender to be carried out by experts, which will then be used as evidence in an application under Section 753 or 753.1. A dangerous offender designation can be made where an offender is assessed to have a high likelihood of causing serious harm to others in the future. Such offenders may be subject to an indeterminate sentence, where their release is only granted if the parole board determines that they no longer pose a threat to society. A long-term offender designation, on the other hand, can be made where an offender is assessed to have a lower likelihood of causing serious harm in the future but is still considered a risk to reoffend. Such offenders may be subject to a supervision order for up to 10 years after their release from custody. The purpose of Section 752.1(1) is to ensure that a thorough assessment of the offender can be carried out before a sentence is imposed, in order to properly determine the risk they pose to society and the appropriate sentence to impose. This is an important safeguard to ensure public safety and prevent future harm.

COMMENTARY

Section 752.1(1) of the Criminal Code of Canada allows prosecutors to make an application to remand an offender convicted of a serious personal injury offence or an offence referred to in paragraph 753.1(2)(a) for assessment to determine if the offender is a dangerous offender or a long-term offender. This provision is an important tool for the criminal justice system in Canada to ensure that dangerous offenders are dealt with appropriately and to protect society from the risks such offenders pose. Serious personal injury offences are some of the most depraved and harmful forms of criminal behaviour. The harm caused by these offences is not only physical but also emotional and psychological. The victims of these crimes often suffer from long-lasting trauma, making their rehabilitation and recovery difficult and complex. It is therefore important that the criminal justice system takes a proactive approach to identifying and dealing with offenders who may pose a risk to society. Section 752.1(1) allows prosecutors to apply to have the offender remanded for assessment, to determine if they meet the criteria for being designated a dangerous or long-term offender. This is an important step in the criminal justice process, as it provides an opportunity to assess the risk posed by an offender and ensures that appropriate measures are taken to manage that risk. The assessment process is thorough and involves expert evaluation of the offender's behaviour, risk factors and potential for rehabilitation. The use of experts in this process ensures that the assessment is unbiased and based on objective evidence, rather than on subjective assumptions or opinions. If an offender is found to be a dangerous or long-term offender, the court can impose sentence accordingly. This may include an indeterminate sentence, which means that the offender will remain in custody until they are deemed to no longer pose a risk to society. This is an important measure to protect the public from harm and also provides an opportunity for the offender to receive appropriate treatment and rehabilitation. It is important to note that the application of this provision must be done within the bounds of the law. The principle of proportionality and the rights of the offender must also be respected. The assessment process must be fair and unbiased, and the offender must be given an opportunity to participate in the process. In conclusion, section 752.1(1) of the Criminal Code of Canada is an important provision in the criminal justice system. It allows prosecutors to apply for an offender to be remanded for assessment to determine if they are a dangerous or long-term offender. This provision provides a necessary tool to ensure the safety of the public and to address serious personal injury offences and other offences that may pose a risk to society. However, it is important that the application of this provision is done with the respect to the rights of the offender and within the bounds of the law.

STRATEGY

Section 752.1(1) of the Criminal Code of Canada is a crucial provision that empowers prosecutors to apply to the court for an offender to be remanded for assessment to determine whether they meet the criteria for being declared a dangerous offender or a long-term offender. As a result, lawyers must be strategic in their approach when dealing with this section of the Criminal Code of Canada. In this essay, we will discuss some strategic considerations and possible strategies that lawyers can employ when dealing with Section 752.1(1). One of the primary strategic considerations when dealing with Section 752.1(1) is the timing of the application. Prosecutors have the power to make an application for assessment before the accused is sentenced. Therefore, it is crucial for defense lawyers to anticipate the possibility of such an application and be ready to respond. Defense lawyers must also be aware that if an application is granted, the sentencing will be delayed, and the accused will remain in custody during the assessment period, which can last up to 60 days. Another important strategic consideration is the strength of the evidence against the accused. If the prosecution has a strong case against their client, then it may be challenging to prevent an application for assessment. Therefore, a lawyer must weigh the strength of the evidence against their client against the potential benefits of contesting the application. The strategic advantage of accepting the assessment might help to avoid a more severe sentence or achieve a more favorable outcome, such as being declared a long-term offender instead of a dangerous offender. It is also important to remember that the assessment process is comprehensive and complex. The assessors may need access to the accused's medical records, psychological reports, and other sensitive personal information. Therefore, defense lawyers should be prepared to address issues relating to privacy, confidentiality, and the protection of their client's rights during this process. Moreover, lawyers should be aware of the subjective nature of the assessment process. The judge will consider the evidence presented by the prosecutor and assessors to determine whether the accused meets the criteria for being declared a dangerous offender or a long-term offender. Therefore, lawyers must ensure the fairness and impartiality of the assessment process by selecting an expert who is competent, independent, and objective. Finally, it is essential for defense lawyers to anticipate the consequences of the outcome of the application. If an accused is found to be a dangerous offender or a long-term offender, the consequences will be severe, and it may have lifelong consequences. Therefore, lawyers must be prepared to mount vigorous defenses if they believe that their client has been misdiagnosed, misunderstood, or unfairly assessed. In conclusion, Section 752.1(1) of the Criminal Code of Canada is a crucial provision that empowers prosecutors to request an assessment to determine whether an offender is a dangerous offender or a long-term offender. Lawyers must be strategic and proactive when dealing with this section to protect their clients' rights and interests. As discussed above, some of the key strategic considerations when dealing with this section include timing, strength of the evidence, access to personal information, the objective nature of the assessment process, and anticipating the consequences of the outcome. Lawyers should also be prepared to advocate vigorously if they believe that their client has been assessed unfairly or unjustly.