DATE: 200520128

DOCKET: C37746

COURT OF APPEAL FOR ONTARIO

BORINS, FELDMAN and CRONK JJ.A.

B E T W E E N :

HER MAJESTY THE QUEEN

Sharon E. Lavine

for the appellant

Respondent

• and -

DOUGLAS CLARE ARCHER

Roger Pinnock

for the respondent

Appellant

Heard: December 15, 2004

On appeal from the sentence imposed by Justice Gordon P. Killeen of the Superior Court of Justice, sitting without a jury, on September 1, 1999.

BORINS J.A.:

I

[1] Following a trial by a judge without a jury, the appellant was convicted of 17 charges including three charges of wilfully damaging property, 10 charges of intentionally damaging property by fire, two charges of setting fire to occupied homes, one charge of harassment and one charge of possession of incendiary material. All charges arose out of a failed relationship between the appellant and a woman. The intended victims of the offences were the woman, members of her family, the family of her former husband and her former employer. As the trial judge described it, the appellant conducted a “campaign of terror” in which he engaged in a variety of tactics intended to threaten, intimidate and terrorize the woman for the purpose of forcing her to abandon her relationship with another man.

[2] The appellant was sentenced to 8½ years imprisonment in addition to the equivalent of three years credited for pre‑sentence custody. Pursuant to s. 743.6(1) of the Criminal Code, he was required to serve half of his sentence before being eligible for parole. In addition, under s. 753.1(1) he was declared to be a long‑term offender and under s. 754.1(3)(b) he was ordered to be subject to supervision in the community for a period of eight years. The appellant appeals the finding that he is a long‑term offender and seeks leave to appeal his sentence of 8½ years for the predicate offences. For the reasons that follow, I would dismiss both appeals.

II

[3] Following his conviction for the predicate offences, pursuant to s. 752.1(1) the appellant was remanded for an assessment to be used as evidence on the Crown’s s. 753.1 application that he be declared a long‑term offender. The assessment was performed by Dr. Komer, who prepared a report as required by s. 752.1(2). Under s. 753.1, the three criteria that must be established on a long‑term offender application are: (i) it must be appropriate to impose a sentence of two or more years in respect of the predicate offence; (ii) there must be a substantial risk that the offender will reoffend; and (iii) there must be a reasonable possibility of eventual control of the risk in the community.

[4] In his report concerning the appellant, Dr. Komer gave this opinion:

He constitutes a threat to the life, safety or physical or mental well‑being of others, has failed to restrain his behaviour and demonstrated a likelihood of causing death or injury to others or inflicting severe psychological damage on others, through failure to restrain his behaviour. He is, in my opinion, at high risk for having further conflicts with the criminal justice system which may involve serious injury towards others.

Dr. Komer repeated this opinion in his testimony at the long‑term offender hearing, stating that there was a substantial risk that the appellant would reoffend.

[5] The trial judge accepted and relied on Dr. Komer’s opinion, noting that the doctor “was firmly of the view that the accused presented a substantial risk for recidivism” and that he had recommended that the appellant be placed under a community supervision order for the maximum period of 10 years “to ensure the controlling of the risks of recidivism”. The trial judge concluded that “there is a grave risk, well beyond any substantial risk, that this offender would re‑offend thereby justifying a long‑term offender order.” He added:

To me, his conduct, taken in its broad context, past and present leads irresistibly to the conclusion that he has shown a pattern of repetitive behaviour that points to the strong likelihood of his committing further offences, which would cause death, injury or severe psychological damage to other persons unless restrained under a long‑term offender order.

[6] The trial judge’s reference to the appellant’s “pattern of repetitive behaviour” was based on the appellant’s extensive criminal record. At the time of the hearing, the appellant was 46 years old. In the previous 30 years he had been convicted of over 40 offences, in addition to the 17 predicate offences. The convictions included charges of breaking and entering, theft, numerous serious driving offences, and armed robbery for which he had been sentenced to seven years in the penitentiary. He had spent about 20 years of his adult life in various correctional facilities. His record also included one breach of parole and three violations of mandatory supervision.

[7] Dr. Komer’s opinion was based on four interviews with the appellant and information provided by the local crown attorney. Included in that information were a videotape and a transcript of a police interview of the appellant. During the course of the appellant’s trial, the videotape and the transcript were excluded on the ground that the means employed by the police to obtain the interview were in breach of the appellant’s s. 10(b) Charter rights: R. v. Archer, [1998] O.J. No. 5550.

[8] Dr. Komer testified that although the appellant had acknowledged that he had ended his relationship with the woman that was the cause of the predicate offences, he was reluctant to discuss the relationship and the circumstances surrounding his offences with the doctor. He indicated that information about them was in the materials that the doctor had been given. As a result, Dr. Komer testified that he was limited in his ability to understand the appellant’s motivation and his relationship with the woman. However, Dr. Komer also said that the appellant’s videotaped statement to the police reflected persistence and perseverance in trying to get his message across and that the appellant was prepared to go to quite significant lengths with quite negative consequences to get a message across to somebody. In cross‑examining Dr. Komer, the appellant’s counsel also referred to the excluded statement to develop the appellant’s contention that since he had ended the relationship with the woman, there was no substantial risk that he would reoffend.

[9] As I read the transcript of the long‑term offender proceeding, there were three issues: (i) whether the Crown had established that the appellant was a long‑term offender; and, if so, (ii) the sentence to be imposed for the predicate offences; and (iii) the duration of the community supervision order. Of the three criteria that the Crown was required to establish to obtain a long‑term offender order under s. 753.1, the appellant conceded the first and third criteria, taking the position that the only issue was whether the Crown had established that there was a substantial risk that the appellant would reoffend.

[10] As part of the evidence in support of its case that there was a substantial risk of reoffending, the Crown sought to introduce the videotaped statement that had been ruled inadmissible at the trial of the predicate offences. A lengthy discussion on the admissibility of the statement ensued between counsel and the trial judge in which it appears that the trial judge did not exclude the statement, although he did not articulate a ruling. Although the trial judge accepted Dr. Komer’s opinion that was based on materials that included the statement, there is no suggestion in the trial judge’s reasons that he placed any reliance on the excluded statement in concluding that the appellant should be ordered a long‑term offender.

III

[11] In appealing the long‑term offender order, the appellant relies on two grounds. First, as the appellant’s statement to the police had been ruled inadmissible at his trial on the predicate offences, it was also inadmissible for the purpose of sentencing. Therefore, it should not have been given to Dr. Komer for the purpose of his assessment. As Dr. Komer made reference to the statement in his written report and in his testimony, the trial judge was required to give diminished weight to Dr. Komer’s opinion. Second, the evidence did not support the finding that there was a substantial risk that the appellant would reoffend.

[12] With respect to the first ground, there is no question that dangerous offender and long‑term offender proceedings form part of the sentencing process: R. v. Johnson, 2003 SCC 46, [2003] 2 S.C.R. 357. As the sentencing process is part of the trial, where a statement has been ruled inadmissible at trial, its contents cannot be relied upon at the sentencing hearing: R. v. Craig (2003), 2003 12866 (ON CA), 177 C.C.C. (3d) 321, at para. 30 (Ont. C.A.). It follows that the statement should not have formed part of the materials provided for Dr. Komer’s consideration while conducting his assessment of the appellant. That said, the statement constituted a very small part of the materials considered by Dr. Komer in reaching his opinion that there was a substantial risk that the appellant would reoffend. Indeed, it is unclear from Dr. Komer’s testimony whether he placed any reliance on the statement in forming his opinion.

[13] Assuming, however, that he did, given the nature and quality of the other materials considered by Dr. Komer, his reliance on the statement could not reasonably have tipped the scales in favour of his opinion that the appellant would reoffend. When Dr. Komer’s report and his testimony are read together, there can be no meaningful suggestion that, but for having read the statement, his opinion would have been different. As well, Dr. Komer’s reference to this one piece of inadmissible evidence could not reasonably have affected the weight given to his opinion by the trial judge. The trial judge made no reference to the statement in his reasons on the long‑term offender application.

[14] In my view, if what occurred constituted an error of law, it was so trivial or immaterial as to have had no effect on the trial judge’s finding that the appellant was a long‑term offender. In other words, this is a case in which it can be said that there is no reasonable possibility that the trial judge would have reached a different result had Dr. Komer not considered the inadmissible statement and referred to it in his report and in his testimony.

[15] The consideration of the statement by Dr. Komer and the trial judge did not result in any substantial wrong or miscarriage of justice within the meaning of the proviso in s. 686(1)(b)(iii). During argument, both counsel and the court were of the view that the proviso likely did not apply to appeals under s. 759 from dangerous and long‑term offender proceedings. However, subsequent to the hearing of the appeal, counsel for the appellant informed the court, on the authority of Johnson, supra, at paras. 48‑50, that it would be appropriate to dismiss the appeal on grounds analogous to s. 686(1)(b)(iii) were the court inclined to do so. I agree with counsel and thank her for drawing this passage from Johnson to the court’s attention. Although Johnson was an appeal from the result of a dangerous offender proceeding, there is no principled reason why it should not apply to long‑term offender proceedings.

[16] I note, in particular, the adoption by the Supreme Court in Johnson of the following passage from the reasons for judgment of Prowse J.A. in R. v. Mitchell (2002), 2002 BCCA 48, 161 C.C.C. (3d) 508 at para. 63 (B.C.C.A.):

[I]t would defy common sense to presume that Parliament intended to preclude the court of appeal from dismissing an appeal where a sentencing judge makes a trivial or immaterial error in the course of dangerous or long‑term offender proceedings. While the court of appeal is given the power to order a new hearing, it is not bound to do so simply because the appellant is able to point to an error on the part of the sentencing judge. Rather, the court must assess the nature and effect of the error to determine whether it justifies the substitution of a different sentence, a new hearing or dismissal of the appeal.

[17] However, in para. 49 of Johnson the Supreme Court stated that “if a court of appeal has the power to dismiss an appeal against a declaration that an offender is dangerous on the basis that the error of law has resulted in no substantial wrong or miscarriage of justice, that power may be exercised in only the rarest of circumstances”, such as circumstances where there is no reasonable possibility that the result would have been any different had the error of law not been made. For the reasons outlined above, the error identified in this appeal does not justify a different result or a new hearing. Consequently, I would reject the first ground of appeal.

[18] As for the second ground, in my view the evidence fully supports the trial judge’s finding that the appellant is a long‑term offender. I would not interfere with this finding.

IV

[19] Turning to the appeal from sentence, the appellant submits that while his sentence of 8½ years incarceration may have been within an acceptable range on its own, it is excessive and demonstrably unfit when followed by a period of eight years of community supervision, resulting in a total period of 16½ years of custody and community supervision preceded by 18 months pre‑sentence custody. Accordingly, he submits that there should be a reduction in his sentence for the predicate offences. The respondent’s position is that the sentence imposed for the predicate offences was fit and does not reflect any error in principle. However, on the long‑term offender hearing, counsel did not directly address whether the combined effect of the custodial sentence followed by community supervision produced, in effect, a “sentence” that is excessive. Nor did the trial judge consider this possibility in his reasons.

[20] As pointed out in Johnson, supra, at para. 23 et seq., in regard to dangerous offenders, as dangerous offender proceedings form part of the sentencing process, they are to be guided by the fundamental purpose and principles of sentencing in ss. 718 to 718.2 of the Criminal Code, together with the primary purpose of the dangerous and long‑term offender regime in Part XXIV of the Criminal Code. The purpose of this regime is the protection of the public. In my view, the same can be said in respect to a long‑term offender who, under s. 753.1(3), must be sentenced to at least two years in jail followed by community supervision of up to 10 years.

[21] Although it may be argued that a mandatory community supervision order made under s. 753.1(3) is not a sentence, in my view, as a matter of principle, the principles of sentencing in ss. 718 to 718.2 should apply when measuring the combined effect of a mandatory custodial sentence and mandatory community supervision order. This would include the fundamental principle of proportionality in s. 718.1. As I have indicated, this was not raised before the trial judge. In raising the argument in this court, the appellant asks that his custodial sentence be reduced, rather than the length of his community supervision.

[22] I would not interfere with the trial judge’s disposition. I agree with counsel for both parties that in sentencing the appellant to 8½ years in the penitentiary for the predicate offences, the trial judge imposed a fit sentence. Assuming that the principle of proportionality applies to s. 753.1(3), I find nothing inappropriate about the eight year period of community supervision in addition to this sentence. It is necessary to recognize that the custodial sentence for the predicate offences and the community supervision order each serve a discrete purpose. Therefore, in considering the appropriateness of the length of the appellant’s community supervision, it must be considered in the context of the purpose of the dangerous and long‑term offender regime, which is to protect the public. To effect this purpose, Parliament has provided for the supervision of the long‑term offender when he or she has returned to the community having served the sentence for the predicate offence for a period that the court, in its discretion, finds that the circumstances require. The trial judge gave careful thought to the appellant’s history and other factors, and concluded that the protection of the public required that the appellant be supervised for eight years on his return to the community. In my view, in reaching this conclusion the trial judge committed no error in law or in principle. In the circumstances of this case, as each serves a discrete purpose, I do not find the combined effect of the custodial sentence and the community supervision order to be excessive.

V

[23] Accordingly, I would dismiss the appeal from the long‑term offender order. I would grant leave to appeal sentence and dismiss the appeal.

RELEASED: January 28, 2005 (“SB”)

“S. Borins J.A.”

“I agree K. Feldman J.A.”

“I agree E. A. Cronk J.A.”