INTRODUCTION AND BRIEF DESCRIPTION
Section 753(1) of the Criminal Code of Canada outlines the conditions in which an offender can be declared a dangerous offender, based on their pattern of behaviour or failure to control sexual impulses.
SECTION WORDING
753(1) On application made under this Part after an assessment report is filed under subsection 752.1(2), the court shall find the offender to be a dangerous offender if it is satisfied (a) that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (a) of the definition of that expression in section 752 and the offender constitutes a threat to the life, safety or physical or mental well-being of other persons on the basis of evidence establishing (i) a pattern of repetitive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a failure to restrain his or her behaviour and a likelihood of causing death or injury to other persons, or inflicting severe psychological damage on other persons, through failure in the future to restrain his or her behaviour, (ii) a pattern of persistent aggressive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a substantial degree of indifference on the part of the offender respecting the reasonably foreseeable consequences to other persons of his or her behaviour, or (iii) any behaviour by the offender, associated with the offence for which he or she has been convicted, that is of such a brutal nature as to compel the conclusion that the offender’s behaviour in the future is unlikely to be inhibited by normal standards of behavioural restraint; or (b) that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (b) of the definition of that expression in section 752 and the offender, by his or her conduct in any sexual matter including that involved in the commission of the offence for which he or she has been convicted, has shown a failure to control his or her sexual impulses and a likelihood of causing injury, pain or other evil to other persons through failure in the future to control his or her sexual impulses.
EXPLANATION
Section 753(1) of the Criminal Code of Canada outlines the criteria for the court to determine whether an offender is considered dangerous. If an application is made under this section after an assessment report is filed, the court must be satisfied that the offender poses a threat to the life, safety, or physical and mental well-being of others based on specific evidence. The first category of offender is one who has been convicted of a serious personal injury offence, and who demonstrates a pattern of behaviour that includes a failure to restrain their actions and a likelihood of causing death, injury, or severe psychological damage to others in the future. Alternatively, the offender may exhibit a pattern of persistent aggressive behaviour or engage in any behaviour associated with the offence that is of such a brutal nature that it is unlikely to be inhibited by normal standards of behavioural restraint. The second category of offender has been convicted of a serious personal injury offence involving sexual conduct, and has shown a failure to control their sexual impulses, demonstrating a likelihood of causing injury, pain, or other harm to others in the future. If the court determines that an offender meets the criteria for being considered dangerous, they may be subject to an indeterminate sentence of imprisonment for public protection, which means they will remain in custody until such time as they no longer pose a risk to the public. This provision serves as a means of protecting the public from those who have demonstrated a pattern of behaviour that poses a serious threat to others.
COMMENTARY
Section 753(1) of the Criminal Code of Canada relates to the designation of dangerous offenders. The designation of a dangerous offender is a serious matter that can have significant consequences for the offender, including indefinite detention or community supervision. However, it is an important tool in protecting society from individuals who pose a significant risk of harm to others. Under this section, the court must first have an assessment report filed under subsection 752.1(2) before considering designation as a dangerous offender. This report helps the court to determine if the offender meets the criteria for designation. The criteria for designation are divided into two categories: (a) serious personal injury offences and (b) sexual offences. For serious personal injury offences, an offender may be designated dangerous if there is evidence of a pattern of repetitive or persistent aggressive behaviour that shows a failure to restrain their behaviour and a likelihood of causing death or injury to others, or inflicting severe psychological damage on others. Alternatively, an offender may be designated if their behaviour associated with the offence is of such a brutal nature that it suggests they are unlikely to be inhibited by normal standards of behavioural restraint. For sexual offences, an offender may be designated dangerous if they have shown a failure to control their sexual impulses and a likelihood of causing injury, pain, or other harm to others. The designation of an offender as dangerous is a serious decision that the court does not take lightly. The court must be satisfied that the offender poses a significant risk of harm to others before making such a designation. It is not a decision that is made solely based on the nature of the offence committed; rather, it is based on evidence of the offender's behaviour and the likelihood of that behaviour continuing in the future. While the designation of a dangerous offender may result in indefinite detention or community supervision, it is important to note that the goal of the designation is not to punish the offender but to protect society from their behaviour. The designation is intended to help rehabilitate the offender and reduce the risk they pose to others. In conclusion, Section 753(1) of the Criminal Code of Canada provides an important tool for protecting society from individuals who pose a significant risk of harm to others. The designations are not made lightly, and the court must be satisfied that the offender meets the criteria for designation before making such a decision. The goal of the designation is not to punish the offender but to protect society and help rehabilitate the offender.
STRATEGY
When dealing with section 753(1) of the Criminal Code of Canada, the stakes are high as the accused could be designated as a dangerous offender, which carries an indeterminate sentence. As such, strategic considerations must be carefully evaluated and approached with caution. One strategy that could be employed is to challenge the constitutionality of section 753(1). This could involve arguing that the section violates the Canadian Charter of Rights and Freedoms, such as the right against cruel and unusual punishment or the right to a fair trial. However, this approach requires extensive legal research and analysis, and the chance of success may be low. Another strategy is to challenge the assessment report that is filed under subsection 752.1(2) of the Criminal Code. This report is crucial in determining whether the accused should be designated as a dangerous offender. A defence lawyer could challenge the reliability of the report and argue that the assessment process was flawed in some way. This may involve hiring an expert witness to provide an alternative assessment report. A third strategy is to argue that the accused does not meet the criteria outlined in section 753(1) of the Criminal Code. For example, if the accused has only committed one offence and does not exhibit a pattern of repetitive or aggressive behaviour, it may be argued that they do not pose a significant risk to society. Similarly, if the accused has shown evidence of remorse or rehabilitation, this may be used to argue against them being designated as a dangerous offender. Finally, a strategy that could be employed is to negotiate a plea bargain. This could involve the accused agreeing to plead guilty to a less serious offence in exchange for not being designated as a dangerous offender. This approach may involve negotiating with the Crown prosecutor and requires careful consideration of the risks and benefits for the accused. In summary, when dealing with section 753(1) of the Criminal Code of Canada, strategic considerations must be carefully evaluated. Legal challenges to the constitutionality of the section or the assessment report, arguing against the criteria outlined in the section, and negotiating a plea bargain are all potential strategies that could be employed depending on the specific circumstances of the case.