Law360 Canada (May 27, 2026, 11:23 AM EDT) --

John L. Hill

The recent decision of the Ontario Court of Appeal in R. v. Haggerty, 2026 ONCA 360 provides important guidelines for Crown and defence counsel about to undertake a dangerous offender prosecution.

The Ontario Court of Appeal has reaffirmed the stringent threshold for sentencing offenders already designated as dangerous offenders under the Criminal Code. In a significant ruling involving repeat domestic-violence offender Brian Scott Haggerty, the court held that a sentencing judge erred by imposing a fixed penitentiary term and a long-term supervision order rather than an indeterminate sentence. The court emphasized that speculative treatment and supervision plans cannot displace the statutory presumption of indefinite detention.

The decision stemmed from Haggerty’s latest convictions for violent offences. At the time, he was already subject to a 10-year long-term supervision order (LTSO) following a dangerous offender designation in 2019. He had previously been designated a dangerous offender due to repeated incidents of serious domestic violence against intimate partners. After his release from custody, he entered another relationship and quickly resumed threatening, controlling and violent conduct, making the complainant his sixth known victim.

Haggerty was subsequently convicted of extortion, assault, assault with a weapon, unlawful confinement, criminal harassment, uttering threats and breach of his LTSO. The Crown sought an indeterminate sentence under s. 753.01 of the Criminal Code. However, the sentencing judge imposed a nine-year penitentiary term, followed by a further 10-year LTSO.

The Court of Appeal unanimously concluded that this sentence could not stand.

Central to the appeal was the interpretation and application of s. 753.01(5) of the Criminal Code. Once an offender has been designated dangerous, the legislation creates a strong presumption in favour of indeterminate detention. The court “shall” impose an indeterminate sentence unless it is satisfied that there is a “reasonable expectation” that a finite sentence, with or without further supervision, will adequately protect the public from future murder or serious personal injury offences.

The appellate court emphasized that the “reasonable expectation” standard is demanding. Citing R. v. Straub, 2022 ONCA 47, the panel noted that the standard requires more than a mere possibility of success. It requires a likelihood, or a “confident belief, for good and sufficient reasons,” that the offender’s future risk can be adequately managed.

The evidentiary foundation before the sentencing judge fell well short of that mark.

The sentencing judge relied heavily on the evidence of Dr. Jonathan Gray, a forensic psychiatrist who has testified in numerous dangerous-offender and long-term-offender cases across Ontario. Gray had also assessed Haggerty during the original dangerous-offender proceedings in 2019. He criticized Correctional Service Canada (CSC) for failing to provide domestic-violence-specific programming and for inadequately monitoring the offender’s intimate relationships after release. In his view, Haggerty’s reoffending did not necessarily demonstrate that his risk was unmanageable, but rather that appropriate treatment and supervision had never truly been attempted.

That evidence appears to have persuaded the sentencing judge that Haggerty remained essentially the same untreated offender as at the time of the original designation. The judge reasoned that with appropriate programming and intensive supervision focused specifically on domestic relationships, public safety could be maintained without resorting to indeterminate incarceration.

The Court of Appeal, however, found that this reasoning was fundamentally speculative.

Importantly, Gray himself acknowledged that the prospect of managing Hagerty’s risk was “guarded at best.” Even with treatment and supervision, the psychiatrist suggested that the best outcome might be rapid intervention following relatively minor violence or threats. He also expressly conceded that it was unclear whether successful completion of intensive programming would reduce the offender’s risk at all.

The appellate court emphasized several fatal evidentiary gaps. There was no evidence that the treatment programs Gray envisioned would be made available to Haggerty within CSC. Nor was there evidence that he would meaningfully engage with such programming. Similarly, there was no evidence that CSC had the resources, specialized personnel or operational capacity to implement the unusually intensive supervision regime contemplated by the sentencing judge.

The court also questioned the practicality of the proposed monitoring measures for future intimate partners. There was no evidence that CSC could routinely supervise romantic relationships as proposed, nor that future partners would consent to ongoing meetings or monitoring arrangements.

In essence, the sentencing judge’s conclusions rested on hoped-for institutional responses rather than on demonstrated realities.

The Court of Appeal held that, although the sentencing judge correctly identified the governing legal principles, he failed to apply them properly. His reasons did not provide a sufficient evidentiary basis to rebut the statutory presumption favouring indeterminate detention. Put differently, there was no evidentiary foundation for a “reasonable expectation” that a determinate sentence and further LTSO would adequately protect the public from future serious violence.

The decision is notable for its insistence on concrete evidence rather than aspirational correctional planning. The court drew a sharp distinction between theoretical possibilities of rehabilitation and demonstrable mechanisms that can reduce risk to an acceptable level. In dangerous offender proceedings, optimism about future treatment cannot substitute for evidence that such treatment exists, will be delivered and is likely to succeed.

At the same time, the Court of Appeal stopped short of directly imposing an indeterminate sentence itself. Instead, it ordered a new sentencing hearing before a different judge pursuant to s. 759(3)(a)(ii) of the Criminal Code. The panel acknowledged that, on a fuller evidentiary record, it might still be possible to establish that a finite sentence coupled with intensive supervision could adequately protect the public. However, the existing record was insufficient to support that conclusion.

This judgment, therefore, serves as an important reminder of the evidentiary burden on offenders seeking to avoid indeterminate detention following a dangerous offender designation. Courts may consider treatment potential and community supervision, but only when those safeguards are supported by concrete evidence and realistic implementation plans.

For Crown counsel, the case underscores the ongoing strength of the dangerous offender regime’s protective purpose. For defence counsel, it illustrates the need to compile a detailed evidentiary record on institutional programming, supervisory resources and measurable treatment prospects when arguing that a fixed sentence can safely replace indeterminate detention.

More broadly, the case also exposes ongoing tensions within Canada’s dangerous offender framework: the balance between rehabilitation and incapacitation, and the practical limits of correctional programming in managing offenders with chronic intimate partner violence.

John L. Hill practised and taught prison law until his retirement. He holds a JD from Queen’s and an LLM in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books) and The Rest of the (True Crime) Story (AOS Publishing). His most recent book, Acts of Darkness, (Durvile & UpRoute) has been shortlisted as one of five nominees for the Crime Writers of Canada’s Brass Knuckles Award for Best Nonfiction Crime Book. Contact him at johnlornehill@hotmail.com.

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