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Criminal - Sentencing - Dangerous Offender (5). R. v. Starnaman [includes SOR]
In R. v. Starnaman (Ont CA, 2026) the Ontario Court of Appeal dismissed a criminal appeal, this brought against "the imposition of a dangerous offender designation" in the context of convictions for "sexual assault and sexual interference involving a 10-year-old girl contrary to ss. 151 and 271 of the Criminal Code".
Here the court considers the 'dangerous offender' sentencing regime, and the applicable appellate SOR:THE TEST FOR DANGEROUS OFFENDER DESIGNATION AND INDETERMINATE SENTENCE
[11] Section 753(1)(a)(ii) of the Criminal Code provides that an offender “shall” be found to be a dangerous offender if he commits a “serious personal injury offence” and the Crown proves beyond a reasonable doubt that the offender exhibits a “pattern of persistent aggressive behaviour”, of which the offence for which he was convicted forms a part, and which shows a substantial degree of indifference respecting the reasonably foreseeable consequences of his behaviour.
[12] A sentencing judge must be satisfied on the evidence, that the offender poses a high likelihood of harmful recidivism and intractable conduct before designating him a dangerous offender. The designation involves both a retrospective and prospective assessment of continuing risk: R. v. Boutilier, 2017 SCC 64, [2017] 2 S.C.R. 936, at paras. 27, 37 and 43. Treatability informs the assessment of the threat posed by the offender: Boutilier, at para. 45.
[13] Under s. 753(4.1) of the Criminal Code, once the offender is found to be a dangerous offender, an indeterminate sentence is imposed unless the sentencing judge is satisfied that a lesser measure will adequately protect the public: R. v. Straub, 2022 ONCA 47, 160 O.R. (3d) 721, at paras. 62-71. The sentencing judge must conduct a “thorough inquiry” into the possibility of control in the community before imposing an indeterminate sentence: Boutilier, at para. 68. Treatability assists to determine the ability to manage the recognized threat posed by the offender: Boutilier, at para. 45.
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STANDARD OF REVIEW
[17] Pursuant to s. 759(1) of the Criminal Code, a person designated as a dangerous offender can appeal the designation or sentence on any ground of law, fact or mixed fact and law. Appellate review is “concerned with legal errors and whether the dangerous offender designation was reasonable”: R. v. Sawyer, 2015 ONCA 602, 127 O.R. (3d) 686, at para. 26 and R. v. Sipos, 2014 SCC 47, [2014] 2 S.C.R. 423, at para. 23.
[18] Errors of law are reviewed on a correctness standard and errors of fact are reviewed on a reasonableness standard: R. v. Ahmed, 2023 ONCA 676, at para. 99.
[19] While the sentencing judge’s determinations of credibility and the appropriate sentence are entitled to deference, appellate review in dangerous offender cases is “somewhat more robust” than “regular” sentence appeals: Boutilier, at paras. 81 and 88; Sipos, at paras. 23-27; Sawyer at paras. 26-29; and R. v. Hunter, 2015 ABCA 276, 26 Alta. L.R. (6th) 348, at para. 5.
[20] The same standard of review applicable to an appeal of a dangerous offender designation applies to a review of an indeterminate sentence. This court will review the imposition of an indeterminate sentence for legal error and reasonableness but should defer to the factual and credibility findings of the trier of fact: Sawyer, at paras. 26-29; and R. v. Jackman, 2024 ONCA 150, at para. 21.
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[38] The Supreme Court in Boutilier [SS: R. v. Boutilier (SCC, 2017)] held at paras. 44-46, that future treatment prospects must be considered in deciding whether to impose a dangerous offender designation.
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[48] Section 753(4.1) of the Criminal Code requires the court to impose an indeterminate sentence on a dangerous offender in the following circumstances:The court shall impose a sentence of detention in a penitentiary for an indeterminate period unless it is satisfied by the evidence adduced during the hearing of the application that there is a reasonable expectation that a lesser measure under paragraph (4)(b) or (c) will adequately protect the public against the commission by the offender of murder or a serious personal injury offence. [Emphasis added.] [49] The appellant submits that the sentencing judge misapprehended evidence concerning his history of compliance and the likelihood that he will take Lupron, as well as its effect on managing his risk in the community.
[50] I disagree.
[51] After designating the appellant a dangerous offender, the sentencing judge considered the offender’s management in the community in accordance with s. 753(4.1) of the Criminal Code. The sentencing judge correctly instructed himself that an indeterminate sentence should only be imposed if there is no reasonable expectation that anything less than an indeterminate sentence would adequately protect the public. Then he considered whether in this case, there was a reasonable expectation that a lesser measure than an indeterminate sentence would adequately protect the public: Straub, at paras 62-71.
[52] The sentencing judge acknowledged that there were extended periods where the appellant complied with treatment and medication during which he committed no offences. However, those periods were interrupted by the appellant’s inability or unwillingness to maintain his treatment. The sentencing judge concluded that the appellant’s behaviour when viewed in its totality, demonstrated that “he has refused treatment, failed to take advantage of treatment, refused medication, or unilaterally discontinued pharmacological treatment on numerous occasions.”
[53] Furthermore, the sentencing judge found as a fact that “[o]nly the coercive power inherent in parole could possibly keep [the appellant] motivated to take Lupron or follow similar restrictions”. The evidence before the sentencing judge included the challenge of protecting the public by requiring an offender to take certain medication through an LTSO.
[54] This court has acknowledged the challenge on several occasions: R. v. Sowell, 2023 ONCA 398, at para. 18; R. v. Veysey, 2016 ONCA 97, at para. 14; Sawyer, at paras. 46-49.
[55] The decision to prescribe Lupron is ultimately one to be made by the treating physician. Even if the medication were prescribed to the appellant, failing to take it would not necessarily result in a breach of the LTSO. The appellant would not be found in breach of such a condition under s. 753.3(1) of the Criminal Code if he has a “reasonable excuse” for refusing to take the prescribed medication.
[56] The sentencing judge turned his mind to lesser sentencing options but found they were insufficient to adequately protect the public.
[57] I see no legal error in the sentencing judge’s analysis and his weighing of the evidence is entitled to deference. He engaged carefully with the psychiatric evidence, and evidence of the appellant’s long pattern of sexual assaults on minors including the index offences, his repeated failure to restrain his behaviour, and the likelihood of causing injury or severe psychological damage. . R. v. Erstikaitis [indeterminate sentence]
In R. v. Erstikaitis (Ont CA, 2025) the Ontario Court of Appeal dismissed a defendant's criminal sentencing appeal, here from "an indeterminate sentence imposed following convictions for assault with a weapon, assault causing bodily harm, and carrying a concealed weapon" where they had been in past subject to long term supervision orders (LTSOs) and were "also designated a dangerous offender":[5] The appellant was sentenced to an indeterminate sentence pursuant to s. 753.01(5) of the Criminal Code, R.S.C., 1985, c. C-46, which provides as follows:If the application is for a sentence of detention in a penitentiary for an indeterminate period, the court shall impose that sentence unless it is satisfied by the evidence adduced during the hearing of the application that there is a reasonable expectation that a sentence for the offence for which the offender has been convicted — with or without a new period of long-term supervision — will adequately protect the public against the commission by the offender of murder or a serious personal injury offence. [6] The meaning of the provision is clear. An indeterminate sentence must be imposed unless the sentencing judge is satisfied that there is a reasonable expectation that a determinate sentence, with or without a long-term supervision order, will adequately protect the public from the commission of murder or a serious personal injury offence by the appellant.
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[13] The sentencing judge was required to impose an indeterminate sentence unless there was a reasonable expectation that a determinate sentence would adequately protect the public against the commission of murder or a serious personal injury offence. His finding that there was no such reasonable expectation is amply supported by the record and is entitled to deference: R v. J.E., 2025 ONCA 409, at para. 11. There is no basis for this court to interfere. . R. v. J.C. (2)
In R. v. J.C. (Ont CA, 2025) the Ontario Court of Appeal allowed an appeal from a criminal dangerous offender designation, substituting a long-term supervision order (LTSO):[4] This is an appeal against the dangerous offender designation. The appellant submits that the trial judge failed to comply with R. v. Boutilier, 2017 SCC 64, [2017] 2 S.C.R. 936, provided insufficient reasons for decision, and erred in assessing his prior criminal record.
[5] For the reasons that follow, I would allow the appeal in part by setting aside the order designating the appellant a dangerous offender, substitute a designation as a long-term offender, and uphold the trial judge’s imposition of a determinate sentence followed by a 10-year LTSO.
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(1) Did the trial judge fail to consider intractability at the Designation Stage, as mandated by Boutilier?
[14] Boutilier establishes that before designating a dangerous offender, a sentencing judge must be satisfied that the offender poses a high likelihood of harmful recidivism and that his or her conduct is “intractable”. The court defined intractable conduct as “behaviour that the offender is unable to surmount”: Boutilier, at para. 27. This requires the sentencing judge to conduct a prospective assessment of dangerousness, so that only offenders who pose a future risk are designated as dangerous and face the possibility of being sentenced to indeterminate detention.
[15] The court in Boutilier further clarified that the prospective assessment of dangerousness necessarily involves the consideration of future treatment prospects: at para. 43. 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”: Boutilier, at para. 45.
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[37] Although I would set aside the appellant’s designation as a dangerous offender, I have not found any reviewable error in the trial judge’s findings that his offending conduct satisfied the patterns of behaviour described in ss. 753(1)(a)(i) and (ii) of the Criminal Code.
[38] The issue that arises is the appropriate sentencing disposition in light of these findings. Since the parties did not directly address this issue in their initial written or oral submissions, we invited them to provide written submissions following the hearing.
[39] In those submissions, both parties accept that in these circumstances, it would be appropriate to designate the appellant as a long-term offender, and impose a determinate sentence followed by the 10-year LTSO. In fact, this was the disposition sought by defence counsel at first instance, while the Crown at that time agreed that a determinate sentence followed by a 10-year LTSO was an available and appropriate disposition if a dangerous offender designation was not made.
[40] The appropriateness of this disposition is reinforced by the fact that although the trial judge designated the appellant as a dangerous offender, he sentenced the appellant to a determinate sentence followed by the 10-year LTSO.
[41] I would therefore set aside the appellant’s designation as a dangerous offender, substitute a designation as a long-term offender, and uphold the determinate sentence followed by a 10-year LTSO, as imposed by the trial judge. . R. v. J.C. (1)
In R. v. J.C. (Ont CA, 2025) the Ontario Court of Appeal allowed a criminal appeal, here from "guilty pleas to one count of robbery and one count of failure to comply with probation" where the defendant was designated a dangerous offender:(b) Relevant Legislation Related to Dangerous Offender Proceedings
[28] There is also no dispute about the relevant legislation and the tests that the sentencing judge had to apply at the end of the dangerous offender hearing. Briefly, the designation stage is governed by s. 753(1) of the Criminal Code, which provides four routes to designation. The penalty phase is governed by ss. 753(4) and (4.1), which provide for three options: i) an indeterminate period of imprisonment; ii) a composite sentence consisting of a determinate period of imprisonment and an LTSO; and iii) a determinate sentence for the offence(s) for which the offender was convicted. The sentencing judge shall impose an indeterminate period of imprisonment unless the sentencing judge is satisfied that there is a reasonable expectation that one of the other two options will adequately protect the public against the commission by the offender of murder or a serious personal injury offence. . R. v. Carter
In R. v. Carter (Ont CA, 2024) the Ontario Court of Appeal dismissed a criminal dangerous offender appeal:[30] Finally, the sentencing judge properly assessed the appellant’s treatability in the context of all of his circumstances and in accordance with the principles of sentencing. Counsel for the appellant underlined several background factors to explain why past treatment attempts were unsuccessful. This submission echoes the argument made by the defence at first instance, with respect to factors supporting the appellant’s reduced moral blameworthiness. While events during the appellant’s childhood were indeed shocking and unfortunate, and resulted in large part from influences over which he had no control, the sentencing judge specifically addressed them. He recognized that the appellant had a very difficult and abusive childhood, that he was introduced to certain hard drugs by his mother and her friends, and that his offences were largely fueled by his addiction to crystal meth. The sentencing judge considered these circumstances with respect to the appellant’s moral blameworthiness, and reasonably concluded that the issue was the degree of the appellant’s dangerousness to the community. While all of the sentencing principles in ss. 718 to 718.2 of the Code, including moral culpability, are relevant to the dangerous offender process, Parliament has instructed courts to emphasize the protection of the public: R. v. Tynes, 2022 ONCA 866, 165 O.R. (3d) 321, at para. 104, leave to appeal refused, [2023] S.C.C.A. No. 471; Boutilier, at paras. 56, 63; see also R. v. Pelly, 2021 SKCA 50, 403 C.C.C. (3d) 127, at para. 28. . R. v. Carter
In R. v. Carter (Ont CA, 2024) the Ontario Court of Appeal dismissed a criminal dangerous offender appeal, here considering the applicable appellate SOR:[14] Under s. 759 of the Code, a person designated as a dangerous offender can appeal their designation or sentence on any ground of law, fact or mixed fact and law. The standard of review was summarized in R. v. Boutilier, 2017 SCC 64, [2017] 2 S.C.R. 936, at paras. 81 and 85, as follows:[A]ppellate review of a dangerous offender designation is somewhat more robust’ than regular appellant review of a sentence. Nonetheless, the appellant court must give some deference to the findings of fact of the sentencing judge. In sum, errors of law will be reviewed on a correctness standard, while errors of fact will be reviewed on a reasonableness standard.
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Absent any material error of law, a dangerous offender designation is a question of fact. The role of the appellate court is therefore to determine if the designation was reasonable. [citations omitted.] [15] This standard applies at both the designation and penalty phase: R. v. Jackman, 2024 ONCA 150, at para. 21; R. v. Sawyer, 2015 ONCA 602, 328 C.C.C. (3d) 523, at paras. 26-29. . R. v. McManus
In R. v. McManus (Ont CA, 2024) the Ontario Court of Appeal dismissed a criminal dangerous offender appeal:Dangerous Offender Designation
[8] To determine whether an offender is a dangerous offender under s. 753(1) of the Criminal Code, the Crown must demonstrate, beyond a reasonable doubt, “a high likelihood of harmful recidivism and the intractability of the violent pattern of conduct”: R. v. Boutilier, 2017 SCC 64, [2017] 2 S.C.R. 936, at para. 46. In Boutilier, the Supreme Court of Canada defined “intractable” conduct as “behaviour that the offender is unable to surmount”: at para. 27.
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[11] The dangerous offender criteria are laid out in s. 753(1) of the Criminal Code. The relevant portion of s. 753(1) provides: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 ... [12] The sentencing judge then determined that a dangerous offender designation was justified under either s. 753(1)(a)(i) or s. 753(1)(a)(ii). Although the sentencing judge only used the term “intractability” once, he was alive to the principles articulated in Boutilier. He made several findings to buttress his conclusion that the appellant was intractable with a high likelihood of harmful recidivism. Specifically, the sentencing judge pointed to the appellant’s inability to control his anger or impulsivity, his history of re-offending, his anti-social personality disorder, his poly-substance abuse disorder, and his substantial indifference to the consequences of his behaviour. The sentencing judge found that, as laid down in Boutilier, that the appellant demonstrated intractability.
[13] The sentencing judge imposed an indeterminate sentence because he was not satisfied that there was a reasonable expectation that a lesser measure would adequately protect the public under s. 753(4.1). In support of this conclusion, the sentencing judge recounted the appellant’s refusal to participate in treatment programs and his consistent pattern of reoffending. In considering and rejecting the prospect of a lesser determinate sentence, the sentencing judge stated:I have no confidence due to his pattern of criminality, his history of violence that his risk for future violence and committing a serious personal injury offence will be reduced to an acceptable level either confined to an institution or on release into the community… There is no reasonable prospect of him managing his impulsive violent behaviour within a determined period of time. [14] Consequently, the sentencing judge found that a determinate sentence would not mitigate the appellant’s risk to the public.
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[17] We would not interfere with the sentencing judge’s assessment of the evidentiary record or his reasons, and dismiss the appeal. . R. v. Beaudin
In R. v. Beaudin (Ont CA, 2024) the Ontario Court of Appeal considered an appeal from an indeterminate dangerous offender sentence:[4] While the sentencing principles, such as the fundamental principle of proportionality, must be taken into account at dangerous offender proceedings, these types of hearings are not to be confused with conventional sentencing proceedings: R. v. Boutilier, 2017 SCC 64, [2017] 2 S.C.R. 936, at paras. 52-53. The paramount consideration is the protection of the public, which requires a “thorough inquiry” into the prospect of controlling the offender in the community: Boutilier, at para. 68, citing R. v. Johnson, 2003 SCC 46, [2003] 2 S.C.R. 357, at para. 50; Johnson, at para. 19.
[5] At a s. 753.01(5) hearing, much like a hearing under s. 753(4.1), the judge must consider less coercive sentencing options before imposing an indeterminate sentence: Boutilier, at para. 69. . R. v. A.M.
In R. v. A.M. (Ont CA, 2024) the Ontario Court of Appeal dismisses a dangerous offender sentencing appeal:THE LEGAL TEST
[7] Part XXIV of the Criminal Code establishes a scheme for the designation of certain offenders as “dangerous offenders”.
[8] Section 753(1) sets out the different statutory requirements to be met to designate an offender as a dangerous offender. Under s. 753(1), there are four different routes to a dangerous offender finding, each with its own criteria: R. v. Francis, 2023 ONCA 760, at para. 59.
[9] Section 753(1)(a)(i) provides that an offender can be found to be a dangerous offender if the offender has engaged in a pattern of repetitive behaviour. More specifically, s. 753(1)(a)(i) provides that the court must be 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. [Emphasis added.] [10] Designation as a dangerous offender under s. 753(1)(a)(iii) focuses on the brutality of the behaviour associated with the index offence. Section 753(1)(a)(iii) provides that an offender can be found to be a dangerous offender if the court 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
(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. [Emphasis added.] [11] Section 753(1)(b) considers whether an offender is able to control their sexual impulses. To be designated a dangerous offender under s. 753(1)(b), a court must be satisfied: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. [Emphasis added.][1] [12] Although the different routes to designation as a dangerous offender have different criteria, they each share four common elements: (i) the index offence is a serious personal injury offence, (ii) there is a broader pattern of violence of which the index offence forms a part, (iii) the behaviour is intractable, and (iv) there is a high likelihood of harmful recidivism: see R. v. Hanson, 2024 ONCA 369, at para. 84; R. v. Lyons, 1987 CanLII 25 (SCC), [1987] 2 S.C.R 309, at p. 338; see also R. v. Boutilier, 2017 SCC 64, [2017] 2 S.C.R. 936, at paras. 26, 33.
[13] Once an individual has been designated a dangerous offender, the sentencing judge should consider whether a determinate sentence or a determinate sentence followed by a LTSO would protect the public.
[14] After ruling out these less restrictive alternatives, the sentencing judge may impose an indeterminate sentence. An indeterminate sentence must be the least restrictive means by which to reduce the public threat posed by the offender to an acceptable level: Boutilier, at para. 65, citing R. v. Johnson, 2003 SCC 46, [2003] 2 S.C.R. 357. Otherwise, the sentence would “overshoot the public protection purpose of the dangerous offender regime”: Boutilier, at para. 64.
[15] An indeterminate sentence will be imposed unless there is a “reasonable expectation that a lesser measure” will adequately protect the public in the future from the offender committing another serious personal injury offence: Criminal Code, s. 753(4.1).
[16] As noted by the sentencing judge, the burden is on the Crown to establish beyond a reasonable doubt that the criteria for designation as a dangerous offender have been met and that an indeterminate sentence should be imposed: Boutilier, at paras. 26-27, 35-37.
[17] The purpose of the scheme is public protection: Boutilier, at para. 56; R. v. Steele, 2014 SCC 61, [2014] 3 SCR 138, at para. 27; and Johnson, at para. 29. Consistent with this purpose, the court seeks to identify offenders who are dangerous to prevent them from endangering the public in the future: see R. v. Knife, 2015 SKCA 82, 460 Sask. R. 287, at paras. 53-54, leave to appeal refused, [2015] S.C.C.A. No. 382.
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