COURT OF APPEAL FOR ONTARIO
LASKIN, GILLESE JJ.A. and WHALEN J. (ad hoc)
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
and
JAMES PETER SIPOS
Applicant (Appellant)
Michael Dineen for the appellant
M. David Lepofsky for the respondent
Heard: April 8, 2008
An application for an order to reopen the sentence imposed by Justice Thomas Lofchik, of the Superior Court of Justice, on March 6, 1998.
1James Sipos applies to reopen his sentence appeal.
2In 1996 Mr. Sipos was convicted of twelve offences –sexual and physical assaults against a former girlfriend and two former wives. In March 1998, Lofchik J. declared Mr. Sipos a dangerous offender and imposed an indeterminate sentence. Mr. Sipos appealed his convictions. He also appealed the dangerous offender designation, but only if he were successful on his conviction appeal. However, his conviction appeal was dismissed by this court in May 2001.
3Mr. Sipos now asks to have his sentence appeal reopened and considered on its merits. Based on the Supreme Court of Canada’s decision in R. v. Johnson (2003), 2003 SCC 46, 177 C.C.C. (3d) 97 (S.C.C.), released after he was sentenced, Mr. Sipos submits that the sentencing judge erred in law by declaring him a dangerous offender without first considering the long-term offender provisions of the Criminal Code. His application raises two questions: first, does this court have jurisdiction to reopen Mr. Sipos’s appeal? and second, if it does, is it in the interests of justice that we do so? I would answer “yes” to both questions.
(1) Does this court have jurisdiction of this court to reopen Mr. Sipos’s sentence appeal?
4The controlling principle is that this court has inherent jurisdiction to reopen an appeal that has not been heard and decided on its merits. See R. v. H.(E.F.), R. v. Rhingo (1997), 1997 CanLII 418 (ON CA), 115 C.C.C. (3d) 89 at 101 (Ont. C.A.). Thus, the narrow question on this application is whether Mr. Sipos’s sentence appeal was heard and disposed of on its merits. The Crown contends that it was because Mr. Sipos’s sentence appeal was before this court in 2001, and it was open to him at that time to advance any ground he wished to challenge his dangerous offender designation. I do not accept the Crown’s contention.
5In 2001, Mr. Sipos did not argue the merits of his sentence appeal. He did not allege that the sentencing judge had made an error in principle or of law, or imposed an unfit sentence. Instead, he put his sentence appeal before the court simply as a vehicle to obtain relief should his conviction appeal succeed. Equally, this court did not address or dispose of the merits of Mr. Sipos’s sentence appeal. Simmons J.A., writing for the court, simply noted at para. 4: “[Mr. Sipos] also appeals from the dangerous offender designation, but only in the event of a successful appeal against conviction.” Because the panel dismissed the appeal against conviction, Simmons J.A. did not otherwise deal with the sentence appeal. The formal order of the court did not refer expressly to the sentence appeal. Therefore, under the principle in Rhingo, this court has jurisdiction to reopen Mr. Sipos’s sentence appeal.
(2) Is it in the interests of justice to reopen Mr. Sipos’s sentence appeal?
6Where a court has jurisdiction to reopen an appeal, it retains discretion whether to do so in a given case. A court should exercise its discretion to reopen where to do so is in the interests of justice. In my view, it is in the interests of justice to reopen Mr. Sipos’s sentence appeal for at least three reasons.
7First, Mr. Sipos has a strong appeal. The Johnson error – failing to consider the long-term offender provisions before declaring an accused a dangerous offender – is a serious error, rarely subject to the curative proviso in s. 759(3)(b) of the Criminal Code. In Johnson itself, Iacobucci and Arbour JJ., writing for the court, said at para. 50:
Where the error of law consists of the sentencing judge’s failure to consider the availability of the long-term offender provisions, it is only in the rarest of circumstances, if any, that there will be no reasonable possibility that the sentencing judge would have imposed a different sentence but for the error.
Thus, only in “the rarest of circumstances” should a court apply the curative proviso. This means that Mr. Sipos is likely entitled to a new sentencing hearing.
8Second, there exists at least a possibility that a new sentencing hearing would produce a different result. Mr. Sipos now appears willing to participate in treatment programs and psychiatric assessments for his underlying disorders. Although the fresh evidence suggests that Mr. Sipos’s risk to reoffend remains high, Dr. McMaster, who provided a psychiatric opinion for this appeal, cannot rule out managing that risk in the community. Should this court order a new hearing, both parties will be entitled to lead further evidence about whether Mr. Sipos’s risk of re-offending can now be controlled in the community.
9Third, it would be unjust to deny Mr. Sipos an opportunity to appeal his sentence on the merits. He has been in prison for the last 20 years. The sentence he is now serving is one of the most serious deprivations of liberty our criminal justice system imposes. Obtaining parole is unlikely. Mr. Sipos should be given the opportunity to challenge his sentence, which was tainted by an error of law.
10For these reasons, I would allow the application. To the extent that the order of this court dismissed Mr. Sipos’s sentence appeal, I would set aside that order. I would grant leave to appeal sentence and order the sentence appeal to be listed for hearing.
Signed: “John Laskin J.A.”
“I agree E.E. Gillese J.A.”
“I agree W. L. Whalen J.
RELEASED: “JL” April 29, 2008