Tackling Violent Crime Act makes no material difference in dangerous offender finding

R. v. Lewis, 2012 ONCA 78 deals with an appeal from a finding the accused was a dangerous offender. In so finding the Court held that, at least here, the difference between the law before and after the Tackling Violent Crime Act came into force in 2008 is unimportant:


(2)      Application of the post-July 2008 amendments

[3]              The sentencing judge applied the law that was in effect at the time the appellant committed the predicate offence. In July 2008, the Tackling Violent Crime Act came into effect.  As the title of the Act might suggest, these amendments were intended to streamline the dangerous offender process and make proof of dangerous offender status easier, especially for an offender like this appellant who had two prior convictions for primary designated offences. The amendments also removed the discretion not to find a person a dangerous offender if the offender met the criteria set out in s. 753 of the Criminal Code. However, the amendments also gave the judge the discretion to impose a long term supervision order on a dangerous offender, instead of the indeterminate sentence. Under either scheme, the route to the long term supervision order is similar.  Under the old regime a long-term offender order could be made if there was a reasonable possibility of eventual control of the risk in the community. The new regime speaks of a reasonable expectation that a lesser measure (i.e. a long term supervision order following a determinate sentence) will adequately protect the public against the commission by the offender of murder or a serious personal injury offence.

[4]              In the appellant's circumstances there is no meaningful practical distinction between the two regimes. The risk under either regime for this appellant is of committing a serious personal inquiry offence. Given the expert evidence the test of "reasonable expectation" and "reasonable possibility" were both met, assuming they contemplate different levels of risk; an issue we need not decide in this case.