Michael J. Brundrett

The appellant challenged the constitutionality of Criminal Code dangerous offender provisions, arguing overbreadth under s. 7 and gross disproportionality under s. 12 of the Charter.

The majority held s. 753(1) permits considering future treatment prospects at designation and that s. 753(4.1) does not create an unconstitutional presumption of indeterminate detention.

The Court dismissed the appeal and upheld both provisions as constitutional, with a partial dissent that would have struck down s. 753(4.1) and ordered a new sentencing hearing.

The Court held that probation orders attached to a sentence of imprisonment not exceeding two years are not invalidated by prior or subsequent sentences imposed on other occasions.

It interpreted section 731(1)(b) as referring to the term imposed at the sentencing hearing in question, while confirming that probation cannot accompany sentences imposed at one sitting that produce continuous custody over two years.

The appeals were dismissed and the impugned probation orders remained valid.

On a criminal appeal from a conviction for dangerous driving causing death, the Court addressed the fault element required beyond proof of objectively dangerous driving.

The Court held that actus reus alone cannot ground an inference of the marked-departure mens rea and that triers must conduct a meaningful inquiry into whether a reasonable person would have foreseen and avoided the risk.

It found legal error where the trial reasons effectively inferred marked departure from dangerous driving and from the absence of an exculpatory explanation.

The Court further held the appellate proviso was unavailable because the evidentiary record did not make conviction inevitable.

The conviction was set aside and an acquittal entered.