Background
Brian Scott Haggerty was designated a Dangerous Offender (DO) in 2019 following a pattern of serious domestic violence against multiple female intimate partners. He was sentenced to a determinate penitentiary term followed by a 10-year long-term supervision order (LTSO). Shortly after his release and while subject to that LTSO, he entered into a new relationship and quickly resumed his abusive conduct, making the woman his sixth victim.
Haggerty was convicted of extortion, assault, assault with a weapon, unlawful confinement, criminal harassment, breach of an LTSO, and uttering threats. At the sentencing hearing, the Crown applied under s. 753.01 of the Criminal Code for an indeterminate period of detention — the default disposition for a DO facing a new serious personal injury offence. The sentencing judge rejected that application and instead imposed a 9-year determinate sentence with a further 10-year LTSO.
The sentencing judge relied heavily on the expert evidence of Dr. Gray, who had also assessed Haggerty in the original 2019 DO proceeding. Dr. Gray attributed the reoffending to Correctional Service Canada’s (CSC) failure to provide appropriate domestic-violence treatment and to inadequate supervision of Haggerty’s romantic relationships. He argued that because the recommended treatment had never been delivered, the new offences did not demonstrate that Haggerty’s risk was unmanageable — only that it had not yet been properly addressed.
The Court’s Holding
The Court of Appeal (Huscroft, Thorburn, and Dawe JJ.A.) allowed the Crown’s appeal, finding that the sentencing judge had identified the correct legal standard under s. 753.01(5) of the Criminal Code but failed to apply it. Under that provision, a court must impose an indeterminate sentence unless it is satisfied that there is a reasonable expectation — not merely a reasonable possibility — that a determinate sentence will adequately protect the public from murder or a serious personal injury offence. The court reiterated the standard from R. v. Straub, 2022 ONCA 47, requiring a likelihood or confident belief, for good and sufficient reasons, that public safety would be met.
The court held that the evidentiary record could not support the displacement of the presumption in favour of indeterminate detention. There was no assurance that the specific treatment Dr. Gray considered necessary would actually be made available to Haggerty, or that Haggerty would be willing to engage with it. Dr. Gray himself conceded that even successful completion of intensive programs might not reduce Haggerty’s risk. Similarly, there was no evidence that the specialised post-release supervision the sentencing judge envisioned — including regular contact with Haggerty’s future partners — was available or that CSC had the resources to provide it.
The court declined to substitute its own sentence on the existing record, noting that a 9-year term plus a 10-year LTSO might theoretically satisfy s. 753.01(5) on a proper evidentiary foundation, but that the record before it was insufficient to make that determination. The matter was remitted for a new sentencing hearing before a different judge of the Ontario Court of Justice pursuant to s. 759(3)(a)(ii) of the Criminal Code.
Key Takeaways
- Under s. 753.01(5) of the Criminal Code, the default for a Dangerous Offender is an indeterminate sentence; a determinate sentence is only available where the court is satisfied there is a reasonable expectation — amounting to a likelihood, not merely a possibility — that public safety will be adequately protected.
- Institutional failures by CSC (e.g., failure to provide recommended treatment or supervision) do not automatically provide the evidentiary basis needed to rebut the presumption of indeterminate detention; the record must affirmatively establish that appropriate treatment and supervision will in fact be available.
- Expert evidence that risk “might” be managed under hypothetically better conditions, without any assurance those conditions will materialise, is insufficient to displace the statutory presumption favouring indeterminate detention.
- Where the record is inadequate to make the required finding, the appellate court’s proper remedy is to remit the matter for a new hearing rather than impose a sentence itself.
Why It Matters
This decision reinforces that the Dangerous Offender regime’s presumption of indeterminate detention carries real weight. Sentencing judges cannot displace it on the basis of speculative or aspirational treatment plans whose delivery depends entirely on a third party — here, CSC — that has made no commitments and has already failed to follow through once. Defence strategies that attribute reoffending to systemic failures by correctional authorities, while potentially relevant, must be accompanied by concrete and reliable evidence that the same failures will not recur.
For Crown prosecutors, the case confirms that an indeterminate sentence should be sought, and will be upheld, where the evidentiary record does not affirmatively establish the conditions necessary for safe community management of a high-risk domestic violence offender. For the broader legal community, Haggerty is a useful reminder that the Straub “reasonable expectation” standard is a demanding one — and that a court’s optimism about what correctional programming could achieve is not a substitute for evidence of what it actually will.