Type of document: Prosecution Directive
Effective date: November 14, 2017

Protection of the public is the paramount consideration in dealing with potential dangerous and long-term offenders. The protection of the public requires Prosecutors to assess offenders who pose an ongoing risk to the safety of the public. While making this assessment, Prosecutors should determine whether an application is warranted for a court order declaring the offender to be a dangerous or long-term offender.

The consent of the Attorney General is required to initiate a dangerous or long-term offender application. It is for the Attorney General to determine whether an application will be made and whether it will be for a dangerous offender or a long-term offender designation. The Attorney General cannot be bound by any discussions or positions taken by Prosecutors.

After being declared a dangerous offender by a court, the offender shall receive an indeterminate prison sentence unless the court finds that a less severe measure will adequately protect the public. An offender who is declared a long-term offender shall be sentenced to an appropriate term of imprisonment and upon release be subject to a long-term supervision order for a period less than 10 years.

Each region has a designated Prosecutor known as Crown Counsel High-Risk Offender (CC-HRO), who has specialized expertise to assist in the prosecution of dangerous and long-term offenders and breaches of long-term supervision orders. Once a file is screened, and the possibility of a dangerous or long-term offender application is being considered, the Prosecutor must inform the CC-HRO of the case.

Resolution discussions

Where a case has been identified as a potential dangerous or long-term offender application, the Prosecutor must not negotiate a guilty plea in exchange for agreeing to forego a dangerous or long-term offender application without first consulting with the CC-HRO and her Crown Attorney.

It would rarely be appropriate for the Prosecutor to recommend a long-term offender designation, followed by a supervision order, for an offender who meets the statutory dangerous offender criteria because of the dramatically different consequences.

Any plea negotiations involving a dangerous or long-term offender application are subject to the Attorney General’s approval as the Attorney General’s consent is required to initiate the application. The Prosecutor must not purport to bind the Attorney General regarding the type of designation that may be sought in any plea negotiations.

Any recommendation of the Prosecutor must be amenable to reassessment following the results of the psychiatric assessment. The Prosecutor retains the discretion to amend her recommendation as new information comes to light.

Psychiatric assessment

A psychiatric assessment is required in order to bring a dangerous or long-term offender application. The Prosecutor must consult with the CC-HRO and must obtain the approval of her Crown Attorney or designate prior to seeking an order from the court directing a psychiatric assessment.

The Prosecutor must ensure that a full assessment is requested and must not agree to restrict the scope of the assessment to either a dangerous offender or long term offender designation. The Prosecutor must be mindful that the psychiatric assessment is not determinative of the legal issues that the Court must decide. The Prosecutor must still determine whether the evidence satisfies the legal requirement that the offender’s risk can reasonably be controlled in the community.

Attorney General consent

Upon receipt of the assessment, if the Prosecutor in consultation with the CC-HRO determines that a dangerous or long-term offender application is warranted, the Prosecutor must obtain the Attorney General’s consent to initiate proceedings. The Prosecutor must have the approval of her Crown Attorney or designate and the Assistant Deputy Attorney General - Criminal Law Division prior to commencing the process to seek the Attorney General’s consent.

The position taken by the Prosecutor will depend on the evidence and the demands of the interests of justice in each particular case. The Attorney General’s authority to initiate a dangerous or long-term offender application and direction to seek a particular type of designation does not detract from the Prosecutor’s obligation to make decisions based on the evidence, the facts of the case and the applicable law. If the evidence before the court, psychiatric or otherwise, is different than what was anticipated such that it does not support the original position, the Prosecutor should exercise her discretion appropriately. The Prosecutor must notify the Assistant Deputy Attorney General - Criminal Law Division of any significant change in the application.

Reference should be made to the Attorney General Consent and Delegation Directive.