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Criminal - Sentencing - Dangerous Offender (6). R. v. A.B.
In R. v. A.B. (Ont CA, 2026) the Ontario Court of Appeal dismissed a defendant's criminal appeal, here brought against convictions for "several offences arising from human trafficking and assault of his intimate partner".
The court considered a sentencing 'dangerous offender designation' [under CCC s.753], here focussing on the elements of 'intractability' and 'treatability':NO ERROR IN FINDING INTRACTABILITY
[44] Dangerous offender proceedings are governed by s. 753 of the Code and have two stages: the designation stage and the penalty stage. Since the decision of the Supreme Court of Canada in Boutilier, it is settled that, at the designation stage, once the other criteria in s. 753(1) of the Code are met, the Crown must prove beyond a reasonable doubt that the offender’s conduct is intractable. This means that the offender is “unable to surmount” his violent behaviour: Boutilier, at para. 27. This, in turn, involves an assessment of prospective risk, considering “all retrospective and prospective evidence relating to the continuing nature of this risk”: Boutilier, at para. 43.
[45] In this case, the sentencing judge set out a comprehensive analysis of the evidence that was before her on the dangerous offender hearing, including Dr. Ramshaw’s evidence. She applied the correct legal principles, and the legal definition of what it means for violent behaviour to be “intractable”.
[46] The concept of intractability applies at both stages of the dangerous offender hearing, though it operates differently at each stage. As it was explained in Boutilier at para. 31:As I will discuss below, the purposes of prospective evidence at the designation and sentencing stages are different. The designation stage is concerned with assessing the future threat posed by an offender. The penalty stage is concerned with imposing the appropriate sentence to manage the established threat. Though evidence may establish that an offender is unable to surmount his or her violent conduct, the sentencing judge must, at the penalty stage, turn his or her mind to whether the risk arising from the offender’s behaviour can be adequately managed outside of an indeterminate sentence. [47] Similarly, treatability is relevant at both stages, as explained in Boutilier, at para. 45:The same prospective evidence of treatability plays a different role at the different stages of the judge’s decision-making process. At the designation stage, treatability informs the decision on the threat posed by an offender, whereas at the penalty stage, it helps determine the appropriate sentence to manage this threat. Thus, offenders will not be designated as dangerous if their treatment prospects are so compelling that the sentencing judge cannot conclude beyond a reasonable doubt that they present a high likelihood of harmful recidivism or that their violent pattern is intractable. However, even where the treatment prospects are not compelling enough to affect the judge’s conclusion on dangerousness, they will still be relevant in choosing the sentence required to adequately protect the public. [Citations omitted.] [48] The sentencing judge properly applied this framework. At the designation stage, she concluded:I find that [the appellant] poses a substantial danger to the safety of the public. His personality disorders are such that they cannot be treated. At best, they can be managed. However, the record shows that the possibility of his being managed is based on certain contingencies which will be further elaborated upon in fashioning an appropriate sentence.
It has been established beyond a reasonable doubt that there is a high likelihood of harmful recidivism and that [the appellant’s] violent conduct is deep seated and not amenable to treatment. He will be designated a dangerous offender. [49] The sentencing judge was entitled to accept all, part or none of Dr. Ramshaw’s opinion. Intractability is a legal, rather than a psychiatric conclusion. While Dr. Ramshaw opined that the appellant’s behaviour could potentially be managed in the community, this required that the appellant meaningfully engage in structured treatment on a sustained basis. Other evidence cast doubt on the likelihood of that happening, including the appellant’s criminal antecedents, his “long-standing pattern of violent recidivism in … intimate relationships”, his substance abuse disorder, his prior resistance to, and failure to complete treatment, his scores on psychometric tests indicating a significant risk of recidivism, and his psychopathic traits. The totality of these factors led the sentencing judge to conclude that the appellant posed a “substantial danger to the safety of the public”, and that the requirement of intractability, along with the other legal requirements for a finding of dangerousness, had been met.
[50] In short, the sentencing judge considered Dr. Ramshaw’s evidence, but found that it did not detract from the other compelling indicia of intractability applicable at the designation stage. This finding was reasonable and does not call for appellate intervention. . R. v. A.B.
In R. v. A.B. (Ont CA, 2026) the Ontario Court of Appeal dismissed a defendant's criminal appeal, here brought against convictions for "several offences arising from human trafficking and assault of his intimate partner".
Here the court considered the appellate SOR for dangerous offender issues:STANDARD OF REVIEW
[43] Where the appeal is from a dangerous offender designation, the standard of review is “somewhat more robust” than in “regular” sentencing appeals, yet it is not a hearing de novo: R. v. Boutilier, 2017 SCC 64, [2017] 2 S.C.R. 936, at para. 81; R. v. Sipos, 2014 SCC 47, [2014] 2 S.C.R. 423, at para. 26. Absent a material error of law, a dangerous offender designation is a question of fact, and the role of the appellate court is to determine whether the designation was reasonable: Boutilier, at para. 85. In sum, errors of law are reviewed on a correctness standard, and errors of fact are reviewed on a reasonableness standard: Boutilier, at para. 81; R. v. Ahmed, 2023 ONCA 676, 168 O.R. (3d) 522, at para. 99.
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