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General Principles

To determine whether a lesser measure will adequately protect the public, there must be actual evidence before the sentencing judge that the dangerous offender can be safely released into the community. Mere hope, even a judicial assumption about the existence of community programs or other necessary resources, is inadequate to the task of addressing the reasonable expectation of protection of the public: R v Radcliffe, 2017 ONCA 176 at para 58; R v Hess, 2017 ONCA 220 at paras 29-45

On whether to impose an long term supervision order as a lesser alternative, click here

Fresh Evidence

Fresh evidence must be sufficiently cogent that it could reasonably be expected to have affected the result of the dangerous offender proceedings had it been adduced there along with the other evidence. An appellate court is not concerned with what the outcome might be were the proceedings held in the present - when the fresh evidence is adduced. For the most part, evidence of institutional progress since sentence, including participation in and completion of various programs, exerts no meaningful influence on the trial judge's sentencing determination: Radcliffe at para 59


Deference is accorded to a sentencing judge on issues of fact-finding, including on the question of whether there is a reasonable possibility of eventual control of an offender in the community: R v Hess, 2017 ONCA 220 at para 26

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