Sentencing in criminal cases serves a variety of purposes, including deterrence, rehabilitation, denunciation and public protection. Purposes predominate depending on, for example, the nature and circumstances of the offence and the offender. The predominant purpose of the dangerous offender provisions of the Criminal Code is public protection. These provisions permit an extraordinary remedy - indeterminate detention - for an extraordinary class of criminals: "dangerous offenders."
Dangerous offenders are not mentally disordered (see Criminal Capacity). Neither are they common criminals, even recidivists, to whom the ordinary sentencing provisions of the Criminal Code apply. They belong to that small minority of offenders who are neither deterred nor reformed by ordinary punishment and who pose a serious risk to the mental or physical well-being of other members of society. The indeterminate sentence permits these offenders to be controlled until their dangerousness abates.
The dangerous offender provisions are set out in Part XXIV (sections 752-761) of the Criminal Code. These provisions were enacted in 1977, and replaced habitual criminal and criminal sexual psychopath legislation enacted in 1947-48.
Dangerous offender status is addressed in a hearing held after an offender is convicted of an offence. Before the ordinary sentencing proceedings commence, the prosecution must duly notify the offender that a dangerous offender application shall be made. The provincial attorney general (minister of justice) or deputy minister must consent to the application; generally, the application is also approved at intermediate prosecutorial levels before it is made. The application is heard by a judge without a jury.
The prosecution must establish two main matters beyond a reasonable doubt in the hearing. First, the conviction must have been for a "serious personal injury offence" - an offence with a maximum sentence of 10 years or more (but not including treason or murder offences) involving either a) the use or attempted use of violence against another, conduct endangering or likely to endanger another's life or safety, or conduct inflicting or likely to inflict severe psychological damage on another; or b) sexual assault, sexual assault with a weapon, with threats to a third party, or causing bodily harm, aggravated sexual assault, and attempts to commit such offences.
Second, the offender must be "dangerous." If the conviction offence involved non-sexual violence, the offender must constitute a threat to other persons' lives, safety or physical or mental well-being. The evidence must establish a) a pattern of repetitive behaviour, including the conviction offence, showing a lack of self-restraint and a likelihood that this would cause death, injury or psychological damage to others; b) a pattern of persistent aggressive behaviour, including the conviction offence, showing that the offender is substantially indifferent to the reasonably foreseeable effects of his conduct on others; or c) brutal behaviour associated with the conviction offence, demonstrating a likelihood that the offender's behaviour is unlikely to be restrained by normal inhibitions. If the conviction offence involved sexual violence, the evidence must establish that, by his conduct including the conviction offence, the offender has failed to control his sexual impulses and is likely to cause injury, pain or other evil to others through his lack of control.
The Criminal Code requires that at least two psychiatrists present evidence during the hearing, one for the prosecution, the other for the offender. While the ordinary rules of evidence generally apply in the hearing, evidence is admissible that would not be admissible at trial.
The judge must determine whether the prosecution has proved the conditions for finding the offender to be a dangerous offender. If the judge finds the offender to be dangerous, the judge has the discretion to impose the determinate sentence warranted by the conviction offence, or a sentence of indeterminate detention. This decision is based on evidence relating to the offender's potential cure and treatment. If the judge imposes an indeterminate sentence, the offender is entitled to a parole review within three years from the date the offender was taken into custody, and every two years thereafter, until release.
The indeterminate sentence may be appealed; the finding of dangerousness may, at least, be reviewed on appeal.
The dangerous offender provisions have been upheld under the Charter. Their heavy reliance on psychiatric predictions of dangerousness, however, has generated controversy in the psychiatric, psychological and legal communities respecting mental health professionals' ability to predict dangerousness and to make other legally defined judgements relevant to dangerous offender applications.