R. v. Bedard, 2009 ONCA 678
COURT OF APPEAL FOR ONTARIO
Laskin, Blair and Watt JJ.A.
BETWEEN:
Her Majesty the Queen
Respondent
And
Emmanuel Bedard
Appellant
Dirk Derstine and Mariya Yakusheva, for the appellant
James K. Stewart, for the respondent
Heard: March 2, 2009
On appeal from the dangerous offender finding made at Peterborough, Ontario, by Justice H. R. McLean of the Superior Court of Justice, and from the indeterminate sentence imposed by Justice McLean on April 6, 2005.
1A dual status offender is an offender who is, at the same time, subject to a sentence of imprisonment for one offence and to a custodial disposition under s. 672.54(c) of the Criminal Code after a finding of not criminally responsible on account of mental disorder (NCRMD) for another offence.
2Emmanuel Bedard is a dual status offender.
3In mid-1996, a youth court judge found Emmanuel Bedard not criminally responsible on account of mental disorder in connection with a series of offences against the person all of which were prosecuted summarily. In 1996, and in every year since, the Ontario Review Board has decided that Bedard should be confined at the Oak Ridge Division of the Mental Health Centre at Penetanguishene. Oak Ridge is this province’s only maximum security psychiatric facility.
4Emmanuel Bedard assaulted another patient at Oak Ridge, a sex offender who had been remanded for assessment at the hospital. The attack was premeditated, the injuries to the victim, significant. Bedard was convicted of assault causing bodily harm and sentenced to a term of imprisonment to be served at Millbrook, a provincial reformatory.
5At Millbrook, Bedard, with the help of others, attacked another convicted sex offender. This time, the victim died. A jury found Bedard guilty of manslaughter. Dangerous offender proceedings followed a long and winding road to their conclusion on April 6, 2005, nearly three years after the underlying conviction had been recorded. The trial judge found Emmanuel Bedard to be a dangerous offender and sentenced him to detention in a penitentiary for an indeterminate period. And so it was that Emmanuel Bedard became, at once, a dangerous and dual status offender.
6Mr. Bedard says that the dangerous offender proceedings taken against him were procedurally and substantively flawed. He should either have a new hearing or be sentenced to a term of imprisonment that is fit for the predicate offence of manslaughter.
7For the reasons that follow, I would dismiss the appeal and affirm both the dangerous offender finding and the sentence imposed.
THE FACTS AND PROCEDURAL HISTORY
An Overview
8The grounds of appeal advanced on the appellant’s behalf betray the need for any detailed account of the circumstances that underpin the predicate offence of manslaughter, or for an elaborate reprise of the evidence adduced on the dangerous offender hearing. What is more to the point here is a rehearsal of the protracted and tortuous procedural path the proceedings have followed from the underlying conviction to final determination. But first, some background.
The Mental Disorder Finding
9The appellant is the second of a sibline of three born to mentally-disordered parents. He began life in a dysfunctional family. At age 2, he was apprehended by child welfare authorities because he failed to thrive. By age 5, he had become a Crown ward. Before he reached age 12, Bedard had been shunted around among three dozen foster homes.
10The appellant required a highly-structured environment and close supervision. Yet, even then, assaults on some and threats to others continued. Finally, while in a highly-structured program that included medication, the appellant became embroiled in further assaults and threats. The prosecutor proceeded summarily on several charges. The appellant was found NCRMD on June 7, 1996. The underlying mental disorder was said to be paranoid schizophrenia.
The Disposition by the Ontario Review Board
11The appellant’s disposition hearing was conducted before the Ontario Review Board shortly after the NCRMD finding. It was common ground that the appellant could only function in a highly-structured setting, like the forensic unit of a psychiatric hospital. He was a long-term threat, especially to female staff, in any hospital. He required maximum security. And the only maximum security facility in the province for male NCRMD detainees was and remains the Oak Ridge Division of the Mental Health Centre at Penetanguishene.
12The Ontario Review Board ordered the appellant’s detention at Oak Ridge. He became one of, if not the youngest of detainees at the hospital. On every subsequent review, the Board has confirmed the appellant’s detention at Oak Ridge.
The Offences at Oak Ridge
13The appellant’s assaultive behaviour persisted at Oak Ridge. He sucker-punched a staff member, breaking his nose. He took the lead in a pre-concerted attack on a convicted sex offender who had been remanded to Oak Ridge for assessment. The victim suffered serious injuries.
14In late November, 1999, the appellant was transferred from Oak Ridge to Millbrook Correctional Centre to serve a 12 month sentence for assault causing bodily harm arising out of one of the attacks at Oak Ridge. The imposition of the sentence of imprisonment made the appellant a dual status offender.
The Predicate Offence
15Within a few months of his arrival at Millbrook, the appellant again led a pre-concerted attack on a fellow inmate, another convicted sex offender. The inmate died from the beating the appellant inflicted with a melamine cup “loaded” with wet, wadded toilet tissue.
Trial Proceedings
16On May 29, 2002, a jury found the appellant guilty of manslaughter in the beating death of his fellow Millbrook inmate.
The Notice of Intention
17Immediately after the return of the jury’s verdict, the prosecutor indicated that he was “seeking an opportunity to make an application” to have the appellant declared a dangerous offender. The prosecutor acknowledged the need to prepare and serve the relevant notices, to have the appellant assessed, and to obtain the consent of the Attorney General to the application.
18The trial judge adjourned the proceedings to June 28, 2002, to permit the prosecutor to take the necessary procedural steps.
The Notice of June 13, 2002
19In a notice of application dated June 13, 2002, the prosecutor sought an order to have the appellant assessed under s. 752.1(1) of the Criminal Code. The notice described the material relied upon in support of the application, including the appellant’s criminal record and the circumstances upon which each conviction was based, the details of several outstanding charges involving institutional misconduct, and the contents of a report of December 15, 1998, describing the appellant’s background and institutional behaviour over several years.
20By its terms, the notice referred to the language used in ss. 753(1)(a)(i) and (ii) of the Criminal Code in support of the claim that the appellant might be found to be a dangerous or long-term offender.
The Consent of June 26, 2002
21On June 26, 2002, the Director of Crown Operations for the Central East Region signed a consent “on behalf of the Attorney General”. The recitals included in the consent referred to an application for assessment under s. 752.1(1) of the Criminal Code, as well as “the consent of the Attorney General of Ontario as required by s. 754(1)(a) of the Criminal Code of Canada ”. The text of the consent refers to “consent to the application to remand Emmanuel Bedard … for assessment pursuant to s. 752.1(1) of the Criminal Code of Canada”.
The Remand for Assessment on June 28, 2002
22On the return date of the application, June 28, 2002, the trial judge remanded the appellant to the Mental Health Centre at Penetanguishene for a period not exceeding 60 days to begin on July 11, 2002. The assessment was to be completed by Dr. Derek Pallandi or his designate.
23The appellant’s conduct at the Mental Health Centre caused the premature conclusion of the assessment period. On July 17, 2002, the appellant was returned to custody at Millbrook Correctional Centre.
24Dr. Pallandi completed his assessment report on October 4, 2002.
The Dangerous Offender Hearing
25The dangerous offender hearing began on May 12, 2003, nearly one year after the jury had found the appellant guilty of manslaughter. The appellant did not object to the commencement of the proceedings, or suggest that all relevant disclosure had not been made in a timely way. In particular, the appellant did not suggest that proceedings were barred because the Attorney General had not consented to the application, either before or after it had been made.
26The prosecutor concluded his case on the dangerous offender application on May 21, 2003. The appellant neither gave nor adduced any evidence. The hearing was adjourned to permit the parties to prepare their submissions.
The Request to Re-Open
27Shortly before the hearing was scheduled to reconvene for submissions on June 19, 2003, the prosecutor gave disclosure to the appellant about an incident at Millbrook on June 10, 2003. The prosecutor also indicated that he wanted to re-open his case and adduce evidence of the appellant’s conduct during the recently disclosed incident in support of the application to have the appellant declared a dangerous offender.
28On June 21, 2003, the prosecutor’s application to re-open the dangerous offender application to permit the introduction of the further evidence was dismissed.
The Complaint About Lack of Consent
29The appellant’s counsel began his submissions on the merits of the dangerous offender application on July 24, 2003. Then, for the first time, counsel for the appellant (not Mr. Derstine) argued that there was no application before the judge to have the appellant declared a dangerous offender.
30The prosecutor responded that the earlier application included both the assessment and dangerous offender hearing. The prosecutor offered to file a separate application to have the appellant declared a dangerous offender, if the judge required it. The issue was not resolved by the trial judge.
31Several adjournments followed the conclusion of the submissions of counsel. The parties awaited release of the judgment of the Supreme Court of Canada in R. v. Johnson, 2003 SCC 46, [2003] 2 S.C.R. 357.
The Place of Remand
32In November and December, 2003, the applicant, then an inmate of Central East Correctional Centre after the closing of Millbrook Correctional Centre, sought an order remanding him to the Mental Health Centre at Penetanguishene. The application was based on the reasons of the Ontario Review Board, released on September 22, 2003.
33On November 14, 2003, the trial judge remanded the appellant to the Mental Health Centre to await the conclusion of the dangerous offender application. An attempt by the prosecutor to review this order failed.
The Further Evidence
34On October 4, 2004, the prosecutor called Dr. Lisa Ramshaw, a forensic psychiatrist involved in the appellant’s treatment at Oak Ridge. She testified about the use of clozapine for the appellant’s treatment, but her evidence did stray into an assessment of the appellant’s dangerousness.
The Further Submissions
35The day after Dr. Ramshaw completed her evidence, counsel made submissions on the substance of the dangerous offender application, as well as on various procedural infirmities and their effect on the validity of the proceedings. The sentencing judge required written submissions on compliance with the provisions of s. 754 about notice and the consent of the Attorney General.
The Consent of the Attorney General
36Prior to resumption of proceedings, a senior official with the Ministry of the Attorney General invited [then] counsel for the appellant to make submissions and provide materials to the Attorney General in connection with the prosecutor’s request for the Attorney General’s consent to an application to have the appellant declared a dangerous offender.
37On January 13, 2005, the [then] Attorney General signed a consent to “proceedings being instituted” to have the appellant declared a dangerous offender. Submissions followed about the validity of the consent and the regularity of the proceedings already conducted.
THE DECISION OF THE TRIAL JUDGE
38On April 6, 2005, nearly three years after the jury had found the appellant guilty of the predicate offence, the trial judge found the appellant to be a dangerous offender and sentenced him to detention in a penitentiary or an indeterminate period.
39The trial judge concluded that the procedural requirements of s. 754(1) of the Criminal Code had been met. Despite its “abysmal” drafting, the document signed by the Director of Crown Operations on June 26, 2002, constituted, at once, a valid consent on the part of the Attorney General and an application to have the appellant declared a dangerous offender. The later consent of the Attorney General regularized the proceedings in a timely way since the Attorney General’s consent could be given at any time before the application had been judicially determined.
40The trial judge also concluded that the original Notice of Application, dated June 13, 2002, which sought an assessment order, adequately outlined the basis on which the application to have the appellant declared a dangerous offender was founded, thus satisfying s. 754(1)(b). The appellant had earlier been notified of the prosecutor’s intention in open court immediately after the guilty verdict was returned.
41The trial judge concluded that the appellant was a dangerous offender within the definition contained in s. 753(1)(a)(i) of the Criminal Code and expressed no doubt that the finding could equally have been made under s. 753(1)(a)(ii). The evidence persuaded the trial judge that there was no reasonable possibility of eventual control of the risk the appellant posed to others in the community. He declined to exercise his residual discretion not to declare the appellant a dangerous offender, despite proof of the conditions precedent, on the basis that the Review Board retained jurisdiction over the appellant as an NCRMD detainee and dual status offender.
THE GROUNDS OF APPEAL
42In oral argument, Mr. Derstine did not pursue any complaints about the trial judge’s assessment of the evidence adduced at the dangerous offender hearing, but advanced two arguments having to do with the validity of the dangerous offender proceedings and the exercise of the sentencing judge’s residual discretion in light of the continuing authority of the Ontario Review Board and the appellant’s position as a dual status offender.
ANALYSIS
The First Ground: The Procedural Errors
The Positions of the Parties
43Mr. Derstine advances two complaints about procedural flaws in the initiation and conduct of the dangerous offender proceedings. In neither case does he suggest that what was done caused the appellant any prejudice.
44The first complaint relates to notice. The prosecutor was required to give notice of an application to have the appellant declared a dangerous offender, as well as to provide notice of the basis upon which the application would be founded. These requirements are conditions precedent to the validity of the application. Despite oral notice of the prosecutor’s intention to apply to have the appellant declared a dangerous offender, Mr. Derstine says the trial judge failed to consider the need for strict compliance with the notice requirements, which are conditions precedent to the validity of the hearing.
45The appellant focuses next on the consent of the Attorney General required by s. 754(1)(a) of the Criminal Code. Mr. Derstine says that the incidental reference to the consent of the Attorney General in the recitals of the document signed by the Director of Crown Operations does not meet the requirements of s. 754(1)(a). The content of this document makes it plain that it relates to the application for assessment under s. 752.1, not the application to have the appellant declared a dangerous offender. That the proceedings continued on the assumption by all concerned that consent had been provided is of no moment since a valid consent to the application is a condition precedent to a valid hearing.
46According to Mr. Derstine, the second consent provided by the Attorney General was too little, too late, emerging only after the evidentiary part of the hearing had passed into history and counsel had made their submissions. Further, even if a consent can be retrospective, the terms of the consent here, which referred to “proceedings being instituted”, speak to the future not to the past.
47Mr. Derstine says that to construe the verb “hear” or its past tense (or participle) “heard”, as if it were “determine” or “determined” is plainly wrong. Although the consent of the Attorney General may be given “before or after the making of the application”, it is a condition precedent to, thus must be given prior to the hearing of the application. Failure to comply with a condition precedent to the conduct of a hearing renders the hearing, as well as the decision made at its conclusion, a nullity.
48For the respondent, Mr. Stewart characterizes the issues as twofold:
Was the original consent valid?
Was the later consent timely?
49The first consent, Mr. Stewart begins, was given on behalf of the Attorney General by the Director of Crown Operations. The document refers to “the consent of the Attorney General of Ontario as required by s. 754(1)(a) of the Criminal Code of Canada.” The consent to which s. 754(1)(a) refers is the consent to the making of an application under Part XXIV, in this case, an application to have the appellant declared a dangerous offender. This consent was given before the hearing of the application – eleven months before any evidence was introduced. Everyone appears to have accepted it as valid and proceeded accordingly. The trial judge’s conclusion about the validity of this consent is unassailable.
50Turning to the second consent, Mr. Stewart characterizes it as curative by nature, something provided out of an abundance of caution. The purpose of the consent requirement is to ensure that, prior to any determination of a convicted person’s status as a dangerous or long-term offender, the Attorney General has made an informed decision that the circumstances warrant pursuit of such a designation. As long as the Attorney General’s consent precedes a decision on the merits, the proceedings are regular. Such an interpretation provides a fair, large and liberal construction of the requirements of s. 754(1)(a) and best ensures the attainment of its objects. Substantial compliance is sufficient, especially as here where there is no scent, let alone substance of prejudice.
The Governing Principles
51Proceedings under Part XXIV involve several steps that begin with an offender’s conviction of a “serious personal injury offence” as defined in s. 752 of the Criminal Code as it then read. As a general rule, applications to have an offender declared a dangerous offender must be made before sentence is imposed for the underlying serious personal injury offence, although the Criminal Code does permit applications to be made within six months after the imposition of sentence for the predicate offence in limited circumstances.
52Once the prosecutor has given notice of his or her intention to seek a dangerous offender finding, the next procedural step involves an assessment of the offender, followed by the completion and filing of an assessment report with the convicting or other court. It is for the prosecutor to initiate the assessment process by an application under s. 752.1(1) of the Criminal Code. An order for assessment is not for the asking: it may only be ordered where the judge is satisfied that there are reasonable grounds to believe that the offender might be found to be a dangerous or long-term offender under Part XXIV. The enabling provision does not require that the application for an assessment be in written or any prescribed form, or that it be accompanied by the consent of any other authority, for example, of the Attorney General.
53After an assessment report has been filed with the sentencing court, an application may be made under s. 753(1) to have the offender found to be a dangerous offender. The section does not expressly require that the application be in writing, nor does it prescribe a specific form for it.
54Section 754(1) of the Criminal Code provides for the hearing and determination of the dangerous offender application. The section, as it applies to the proceedings here, is in these terms:
754.(1) Where an application under this Part has been made, the court shall hear and determine the application except that no such application shall be heard unless
(a) the Attorney General of the province in which the offender was tried has, either before or after the making of the application, consented to the application;
(b) at least seven days notice has been given to the offender by the prosecutor, following the making of the application, outlining the basis on which it is intended to found the application; and
(c) a copy of the notice has been filed with the clerk of the court or the provincial court judge, as the case may be.
55In express terms, the former s. 754(1) that governs here required accomplishment of three things before a dangerous offender hearing could be held:
i. the consent of the Attorney General of the Province to the application;
ii. notice to the offender outlining the basis of the application; and
iii. filing of the notice with the court conducting the hearing.
56Neither s. 754, nor any other provision in Part XXIV, requires that the consent of the Attorney General be in a prescribed form. The usual practice is that the consent of the Attorney General is in writing, its validity established under s. 754(4). Under s. 2 of the Criminal Code, the term “Attorney General” includes his or her lawful deputy. The consent of the Attorney General may be provided either before or after the application to have the offender declared a dangerous offender has been made, but must precede the hearing of the application.
57Under former s. 754(1)(b), after the application has been made to declare him or her a dangerous offender, the offender is entitled to at least seven days notice outlining the basis on which the prosecutor founds the application. To ensure compliance with this requirement, as well as to ensure the adequacy of what is provided, s. 754(1)(c) requires that this notice be filed with the court hearing the application.
58Part XXIV says nothing about the form of the application to have a person convicted of a serious personal injury offence declared a dangerous offender. The application is often made in writing and outlines the basis upon which the proceedings are being taken, thus satisfying the substantive requirements of former s. 754(1)(b). It is sufficient, however, that notice of the application under Part XXIV is given in open court in the presence of the offender: R. v. Currie (1984), 12 C.C.C. (3d) 28 (Ont. C.A.), at p. 40.
59The notice required by former s. 754(1)(b), which outlines the basis upon which the dangerous offender application is founded, must be in writing: R. v. Corbiere, [1995] O.J. No. 938 (C.A.), at para. 8. This notice, for which there is no statutory or prescribed form, is a condition precedent to the conduct of a dangerous offender hearing: Corbiere, at para. 6. This notice, which ss. 754(1)(b) and 754(1)(c) describe, should not be confused with the prosecutor’s disclosure obligations for which it is not a surrogate. The notice need only outline the basis of the application, not recite a complete catalogue of the prosecutor’s proof: Corbiere, at para. 8.
60In determining whether the requirements of s. 754(1)(b) have been met, it is essential to consider the cumulative effect of the documents provided in the context of the evidentiary disclosure provided to the offender by the prosecutor: Corbiere, at para. 9; R. v. Pike, [2002] N.J. No. 193 (C.A.), at para. 3.
61The effect of s. 754(1) of the Criminal Code is to make the consent of the Attorney General and notice to the prospective dangerous offender conditions precedent to the hearing of a dangerous offender application: Corbiere, at para. 6. Compliance with these statutory requirements is vital to the validity of the dangerous offender hearing. The consent of the Attorney General may be given either before or after the application to have the convicted person declared a dangerous offender, but, as s. 754(1) makes clear, the consent must precede the actual hearing.
62A hearing is a proceeding of some degree of formality with defined issues of fact or law to be tried and determined. It may, but does not always involve testimony or other forms of evidence from witnesses or others with knowledge of relevant matters, submissions from the parties and a decision or determination by the decision-maker. Discrete phases or aspects of a hearing often have specific and different rules governing conduct of them, but a hearing has a beginning and it has an end. And words like “no such application shall be heard”, in reference to a requirement that certain things be done, are likely to refer to the beginning of a hearing, not some intermediate or final stage or step in the hearing process.
The Principles Applied
63The complaint about inadequacies in the notice provided to the appellant has two aspects. The first relates to notice of the application to have the appellant declared a dangerous offender. The second has to do with the requirement of former s. 754(1)(b) that the appellant receive at least seven days notice outlining the basis on which the application is founded.
64The appellant was first notified of the prosecutor’s intention to have him declared a dangerous offender immediately after the jury had returned its guilty verdict at the trial of the predicate offence. The notice was provided by the prosecutor in open court in the presence of the appellant and his counsel.
65The Notice of Application, dated June 13, 2002 confirmed the prosecutor’s oral notice provided on the return of the jury’s verdict. By this later notice, the prosecutor sought an order of assessment under s. 752.1(1) of the Criminal Code. This notice described the basis upon which the prosecutor advanced the reasonably-grounded belief that the appellant might be found to be a dangerous offender, and included reference to the substance of ss. 753(1)(a)(i) and (ii) as the basis upon which a dangerous offender finding would be sought.
66The consent of the Director of Crown Operations, on behalf of the Attorney General, dated June 26, 2002, refers to s. 754(1)(a) of the Criminal Code, the statutory provision that insists on the Attorney General’s consent to the dangerous offender proceedings.
67In various provisions, for example, in former ss. 753(1) and 754(1), Part XXIV makes reference to an “application made under this Part” and “an application under this Part has been made”. No form is prescribed. Nothing requires that the application be in writing. The only references to timing have to do with when the application is to be made or heard in relation to certain other events. To the extent that notice of the application is statutorily required it was provided here.
68The requirements of s. 754(1)(b) were also met here. Timely notice was given. The application of June 13, 2002, albeit filed in support of a request for an assessment, outlined the factual basis for the claim that the appellant might be found to be a dangerous offender and articulated the substance of ss. 753(1)(a)(i) and (ii) upon which the application was based. Although the prosecutor’s disclosure obligations cannot serve as a substitute or surrogate for the notice and outline required by s. 754(1)(b), the sentencing judge is required to consider the cumulative effect of the documents given to the offender in the context of the evidentiary disclosure provided by the prosecutor: Corbiere, at para. 9. In combination, the notice and disclosure apprised the appellant of the basis of the prosecutor’s application.
69The appellant also claims that the dangerous offender proceedings were a nullity because the consent of the Attorney General to the application to have the appellant declared a dangerous offender did not comply with [then] s. 754(1)(a) of the Criminal Code. This consent is a condition precedent to the authority to conduct a hearing and must be given in advance of the hearing itself. The initial consent was not a consent to the application to have the applicant declared a dangerous offender, only to have him assessed for the purposes of a potential application. And the second consent did not precede the hearing, only the decision, thus was untimely.
70Despite the murky drafting and muddled assembly of the remarkably uncomplicated foundation documents of which these proceedings were rife, I am not prepared to conclude that the essential consent was lacking.
71The applicable provisions of [then] s. 754(1)(a) made it clear that the consent of the Attorney General to the application to declare an offender a dangerous offender is a condition precedent to the hearing of the application. Without the consent, the hearing of the application is statutorily barred. It logically follows that in the time sequence of the steps that follow conviction of an offender of a serious personal injury offence, the consent of the Attorney General to the application must precede the hearing of the application, although it may follow the application itself.
72In this case, the “Consent of the Director of Crown Operations on Behalf of the Attorney General” recited the consent of the Attorney General of Ontario “as required by s. 754(1)(a) of the Criminal Code of Canada”. Doubtless, the reference to the consent of the Attorney General to the application to have the appellant declared a dangerous offender was more oblique than it should have been. That said, consent to the application was provided by a lawful deputy of the Attorney General and preceded the hearing of the application as s. 754(1)(a) required. The superfluous consent of the Attorney General to an assessment of the appellant under s. 752.1(1) does not render the consent to the application ineffectual.
73The sentencing judge also found the later delivered consent of the Attorney General sufficient for the purposes of s. 754(1)(a) of the Criminal Code. While it may not be necessary to come to a firm conclusion on this subject, I do not agree with the sentencing judge’s conclusion in relation to the second consent.
74Section 754 uses the verbs “hear” and “determine” in both their present and past tense in connection with dangerous offender applications. It is a reasonable inference that Parliament did not use different words to refer to the same thing. Parliament said, in mandatory terms, that an application to declare a person convicted of a serious personal injury offence a dangerous offender shall not be heard without the Attorney General’s consent. The effect of the sentencing judge’s decision on this issue is to substitute the word “determined” in former s. 754(1) for the word “heard”, the term actually used in the section.
75A hearing often consists of several parts, for example, the introduction of evidence, submissions and decision. A determination or decision is an integral part of a hearing, often the final or penultimate step. Anything required to be done before the hearing will necessarily be accomplished prior to the determination, but something that requires doing before the determination of a hearing will not necessarily precede the hearing since it may occur after other steps have been taken in the hearing itself.
76To require the consent of the Attorney General to an application to declare a convicted person a dangerous offender to precede the formal hearing of the application sits comfortably with the express words of former s. 754(1)(a) applicable here (“no such application shall be heard unless ...”) and one of the underlying purposes of the consent requirement – to ensure that the often protracted formal hearings of Part XXIV, with their significant penal consequences for the convicted offender, only proceed in cases considered appropriate by the chief law officer of the Crown.
77In this case, the requirements of the governing s. 754(1)(a) were met by the consent signed by the Director of Crown operations on June 26, 2002, about 11 months before the formal hearing of the application began. The consent of the [then] Attorney General to the institution of dangerous offender proceedings, given out of an abundance of caution on January 13, 2005, and filed during final submissions was superfluous and not consistent with what were then the mandatory requirements of s. 754(1)(a).
78The validity of the consent of the Director of Crown Operations puts paid to the appellant’s complaint that the proceedings to declare the appellant a dangerous offender were fatally flawed by the absence of the required consent. I would not give effect to this ground of appeal.
The Second Ground: The Exercise of Judicial Discretion
Introduction
79As we saw earlier, when a person who is subject to a custodial disposition under s. 672.54(c) as a consequence of an NCRMD finding becomes subject to a sentence of imprisonment for another offence, that person becomes a dual status offender as defined in s. 672.1(1) of the Criminal Code. It is the concurrent existence of these two placements, not the underlying findings, that create the dual status offender.
80In this case, it is not the designation of the appellant as a dangerous offender that makes him a dual status offender. He would be equally a dual status offender if he were sentenced to a term of imprisonment for the underlying offence of manslaughter, or declared a long-term offender and sentenced to a term of imprisonment as part of the disposition.
81This ground of appeal claims error in the failure of the sentencing judge to take into account the authority of the Ontario Review Board over the appellant as a mental disorder detainee, in deciding whether to exercise his discretion not to declare the appellant a dangerous offender despite satisfaction of the statutory requirements of sections 753(1)(a)(i) and (ii) of the Criminal Code.
The Decision of the Sentencing Judge
82The sentencing judge concluded that the evidence adduced established that the appellant was a dangerous offender within the definition in s. 753(1)(a)(i) and equally within s. 753(1)(a)(ii), although it was not necessary for him to make the latter finding.
83The sentencing judge, following the mandate of R. v. Johnson, 2003 SCC 46, [2003] 2 S.C.R. 357, turned next to consider whether there was a reasonable possibility of eventual control of the risk the appellant posed in the community, thus permitting a long-term rather than a dangerous offender designation. The sentencing judge rejected this prospect, principally on the basis of the expert psychiatric opinions of Dr. Pallandi and Dr. Ramshaw.
84The sentencing judge recognized that he had a residual discretion not to find the appellant a dangerous offender despite satisfaction of the criteria. He began his discussion of this issue in these terms:
The court must, therefore, look under The Queen v. Johnson to the last criterion, and that is the residual discretion, notwithstanding a finding can be made, that the court indeed has some discretion left and must consider the Criminal Code guidelines for sentencing under Part XXIII. Considering the matter as a whole, it seems that there is no less intrusive alternative available when we consider Mr. Bedard’s background and the nature of the offences. There is no reason why this discretion should be exercised to deny the Crown’s request.
85The sentencing judge next turned to the relevance of the appellant’s position as a dual status offender and the effect of the authority of the Ontario Review Board under Part XX.I of the Criminal Code on the exercise of the sentencing judge’s discretion. He concluded in this way:
Indeed, as to this last issue of final discretion, it has been argued by Mr. Miller that, because Mr. Bedard is already a dual status offender under the control of the Ontario Review Board, that he will not likely be released without psychiatric or other intervention, and that therefore there is an alternative that the court must consider.
However, the court is not satisfied that this is a proper matter to consider in the sense that its discretion should be exercised in allowing the Review Board to determine the ultimate determination. Upon these facts, Mr. Bedard has been found competent to stand trial and no motion or evidence has been brought before the court that he is not able to deal with this matter. Mr. Bedard, indeed, has had input from time to time as to where he should be incarcerated. The issue for the court now is whether the risk to the community under the provisions of s. 753(1) can be dealt with or managed. The court must deal with this and cannot abrogate its role to the Review Board. Having made the findings that the court deems appropriate, it can see no alternative to making a finding and it is not satisfied that leaving the eventual release to the Review Board would be appropriate in these circumstances. This is particularly so when the court has reached its conclusion with regard to Mr. Bedard’s future controllability.
The court is satisfied beyond a reasonable doubt that the dangerous offender application has been made out. Indeed, there is nothing that would indicate that, having been made out, why in the court’s final discretion an indeterminate sentence should not be imposed.
The Positions of the Parties on Appeal
86For the appellant, Mr. Derstine contends that the sentencing judge should have exercised his discretion not to declare the appellant a dangerous offender despite satisfaction of the standard in s. 753(1)(a)(i) because the public can be protected against the appellant in another way. The Ontario Review Board, a tribunal steeped in experience with dangerous persons and rich in expertise, has authority over the appellant as a mental disorder detainee. The appellant has been, currently is and for the foreseeable future is likely to remain in custody in the maximum security Oak Ridge Division of the Mental Health Centre Penetanguishene. Release or lessened restrictions will only occur if the Board is satisfied that the appellant is not a significant threat to the safety of the public.
87Mr. Derstine says that the sentencing judge erred in rejecting as irrelevant to the exercise of his residual discretion the concurrent authority of the Ontario Review Board over the appellant, the effect of which is to ensure the appellant’s custody and the community’s protection until it becomes safe to release him. To consider the Board’s concurrent jurisdiction as a factor in deciding whether to exercise his residual discretion is not an abrogation of jurisdiction to the Board.
88For the respondent, Mr. Stewart approaches the issue somewhat differently. The sentence imposed here, according to s. 672.67(1) of the Criminal Code, takes precedence over the earlier NCRMD finding and custodial disposition. The sentencing judge was keenly aware of the residual discretion reposed in him not to declare the appellant a dangerous offender despite satisfaction of the statutory requirements. He considered the issues of treatability and manageability and correctly concluded that treatability was, at best, an expression of hope.
89Mr. Stewart takes the position that even if the sentencing judge was wrong to reject as irrelevant to the exercise of his discretion the interplay of the jurisdiction of the Review Board, the result of its consideration would have left the decision made as the only viable conclusion in the circumstances.
The Governing Principles: The Statutory Discretion under Part XXIV
90Since the serious personal injury offence of which the appellant was convicted occurred before July 2, 2008, the authority to declare him a dangerous offender resided in the former s. 753(1) of the Criminal Code. In its operative part, the subsection provided that the sentencing court “may … find the offender to be a dangerous offender” if satisfied that the statutory requirements have been met.
91The use of the permissive “may” reposes a discretion in the sentencing judge: Interpretation Act, R.S.C. 1985, Chap. I-21, as amended, s. 11. Thus, the sentencing judge retains a discretion whether to declare an offender dangerous who meets the criteria required for that designation: Johnson, at para. 16. Nothing in the section indicates a duty to find an offender dangerous once the statutory criteria have been met: Johnson, para. 18. This interpretation of former s. 753(1) finds support in the purpose of the dangerous offender regime, the principles of sentencing, and the principles of statutory interpretation: Johnson, at para. 18.
92It is an established principle that indeterminate detention under the dangerous offender regime is warranted only insofar as it actually serves the purpose of protecting the public: Johnson, at para. 20. Circumstances may exist in which a convicted offender meets the statutory criteria for a dangerous offender designation, but the goal of protecting the public can be assured without indeterminate detention: Johnson, at para. 20.
93Dangerous offender proceedings form part of the sentencing process. It follows that their interpretation is guided by the fundamental purpose and the principles of sentencing contained in ss. 718 to 718.2 of the Criminal Code: Johnson, at para. 23.
94Among the principles that guide a judge’s discretion whether to declare a convicted person a dangerous offender is the fundamental principle of proportionality and the principle of restraint. Together, these principles require a sentencing judge to consider the possibility that a less restrictive sanction would attain the same sentencing objectives that a more restrictive sanction seeks to achieve: Johnson, at para. 28.
95In dangerous offender proceedings such as this case, the controlling sentencing objective is protection of the public: Johnson, at para. 29; R. v. Hatchwell, [1976] 1 S.C.R. 39, at p. 43. The principles of sentencing mandate that a judge should impose an indeterminate sentence only in circumstances in which there are no less restrictive means by which to protect the public adequately from the threat of harm posed by the offender. Those less restrictive means include at least a definite sentence (for the underlying serious personal injury offence) or long-term offender designation: Johnson, at para. 29.
96In the usual case, the essential question for the sentencing judge becomes whether the sentencing sanctions available under the long-term offender provisions are sufficient to reduce the threat posed by the offender to an acceptable level, notwithstanding that the statutory criteria for designation as a dangerous offender have been satisfied: Johnson, at para. 29.
The Governing Principles: The Supervision of Mental Disorder Detainees
97Persons found NCRMD are entitled to a disposition hearing conducted by the trial court or Review Board. The factors that the court or Review Board must take into account and the range of dispositions available are described in s. 672.54 of the Criminal Code.
98At a disposition hearing, the critical question for the judge or Board is whether the mental disorder detainee is a “significant threat to the safety of the public”. The answer to this question is critical to the nature of the disposition that the judge or Board may make. Where the court or Board concludes that the mental disorder detainee is a significant threat to the safety of the public, two options are available: a discharge subject to conditions, or detention in custody in a hospital, subject to conditions: Winko v. British Columbia (Forensic Psychiatry Institute), [1999] 2 S.C.R. 625, at para. 62.
99Dispositions made at disposition hearings, whether by a court or Review Board, are subject to review. Yearly reviews are mandatory under s. 672.81 and discretionary reviews permissible under s. 672.82. The reviews are conducted by the Review Board, which may make any other disposition that the Board considers appropriate in the circumstances. The governing principles remain those of s. 672.54: Penetanguishene Mental Health Centre v. Ontario (Attorney General), 2004 SCC 20, [2004] 1 S.C.R. 498, at para. 45.
The Governing Principles: Dual Status Offenders
100Section 672.67 establishes the order of precedence between sentences of imprisonment under Part XXIII and custodial dispositions under Part XX.I in the case of dual status offenders. The order prevails pending any placement decision of the Review Board under s. 672.68 of the Criminal Code.
101Section 672.67 provides:
672.67(1) Where court imposes a sentence – Where a court imposes a sentence of imprisonment on an offender who is, or thereby becomes, a dual status offender, that sentence takes precedence over any prior custodial disposition, pending any placement decision by the Review Board.
(2) Custodial disposition by court – Where a court imposes a custodial disposition on an accused who is, or thereby becomes, a dual status offender, the disposition takes precedence over any prior sentence of imprisonment pending any placement decision by the Review Board.
The Governing Principles: Appeals Under Part XXIV
102Section 759.3(b) permits a court of appeal to dismiss an appeal from a sentence of detention in a penitentiary for an indeterminate period, but says nothing of the criteria the court is to consider or apply. The referential incorporation by s. 759(7) of “the provisions of Part XXI with respect to procedure on appeals” adds nothing since the sub-heading “Procedure on Appeals” in Part XXI does not include the dispositive authority of s. 686, which immediately follows the sub-heading, “Powers of the Court of Appeal”.
103Despite the absence of express incorporation of the curative proviso of s. 686(1)(b)(iii) in appeals under Part XXIV, it seems implicit in Johnson that an appeal may be dismissed under s. 759(3)(b) if an error in law has caused the appellant no substantial wrong or miscarriage of justice: Johnson, at para. 49. See also, R. v. Mitchell (2002), 2002 BCCA 48, 161 C.C.C. (3d) 508 (B.C. C.A.), at para. 63.
104As in other instances, the application of the curative proviso is limited to those circumstances in which there is no reasonable possibility that the verdict would have been any different had the error in law not been made: Johnson, at para. 49. See also, R. v. Bevan, [1993] 2 S.C.R. 599, at p. 617. A failure to consider the availability of the long-term offender provisions, for example, would only rarely be forgiven by the application of the proviso: Johnson, at para. 50.
The Principles Applied
105With the benefit of the decision in Johnson, the sentencing judge recognized that he retained a discretion whether to declare the appellant a dangerous offender despite being satisfied that the appellant met the criteria for that designation. The sentencing judge also appreciated that one factor he was obliged to consider in determining how to exercise this discretion was the possibility that the sanctions available under the long-term offender provisions of Part XXIV, a term of imprisonment followed by a community supervision, would be sufficient to achieve the objectives that the dangerous offender provisions seek to advance.
106The sentencing judge’s conclusion about the inadequacy of the long-term offender provisions to achieve the objectives that the dangerous offender provisions seek to advance was reasonable, firmly rooted in the evidence. For all practical purposes, the evidence on this issue was all one way. The appellant suffers from a severe antisocial personality disorder for which there is no known treatment, much less cure. He is a high risk to recidivate violently. The intensity of his violence and aggression has increased in the recent past. He can only function in a highly-structured surrounding and, even in such a setting, is likely to continue his aggressive and violent behaviour. The sentencing sanctions available under the long-term offender regime are demonstrably insufficient to reduce the threat to public safety posed by the appellant to an acceptable level.
107The sentencing judge also acknowledged that the discretion whether to declare the appellant a dangerous offender is regulated by the relevant principles of sentencing contained in Part XXIII of the Criminal Code and developed in the jurisprudence. He concluded, once again with ample sustenance from the evidence, that no less intrusive sentencing alternative was available after consideration of the appellant’s background and the nature of his offence. I would not interfere with his conclusion on this basis.
108It seems reasonable to conclude that, in most instances in which Part XXIV is invoked, the residual discretion to declare a convicted offender dangerous, despite satisfaction of the criteria for that designation, is to be exercised or not in the context of two less restrictive means by which to protect the public adequately from the threat of harm:
i. a definite sentence for the predicate offence; and
ii. a long-term offender designation and a sentence combining a term of imprisonment followed by a period of community supervision.
It was in this context that Johnson was decided.
109For some against whom dangerous offender proceedings are taken, such as this offender, the circumstances may also include the involvement of another statutory scheme that has, as one of its guiding principles, the need to protect the public from dangerous persons and the harm that such persons might cause: Winko, at para. 62. This other scheme, for which Part XX.1 of the Criminal Code provides, forms no part of the sentencing regime under Part XXIII of the Criminal Code and is not engaged by a finding of guilt or conviction of any offence. To the contrary, Part XX.1 becomes engaged only when a person charged with crime is found not criminally responsible for his or her conduct on account of mental disorder. And although a court will be involved in recording the special verdict of not criminally responsible on account of mental disorder, and perhaps in making the initial disposition, the ultimate determination of the manner in which the risk posed by mental disorder detainee will be managed rests with the provincial Review Board.
110The Criminal Code defines “dual status offender” in s. 672.1(1) and in s. 672.67, declares whether it is the term of imprisonment or custodial disposition that takes precedence pending any placement decision made by the Review Board. Neither Part XX.1 nor Part XXIV contains any provision that expressly, or by necessary implication, says anything about the influence of a custodial disposition under s. 672.54(c) or the supervisory authority exercised by the Review Board on the residual discretion that former s. 754(1) of the Criminal Code provided to sentencing judges.
111In one sense, it could fairly be said that what Part XX.1 dictates for the supervision of mental disorder detainees is irrelevant to the discretion not to declare a person a dangerous offender despite satisfaction of the essential criteria. Regardless of their common element of ensuring the protection of the public, each Part manages its own constituency uninfluenced by the other. Two solitudes. To ensure appropriate custody, the placement decision procedure of s. 672.68 is available. A scheme that manages persons who are not criminally responsible for their conduct should have nothing to say about whether a person, criminally responsible for his or her conduct and meeting the requirement for designation as a dangerous offender, should nonetheless not be so classified.
112Further, under s. 754(1), the essential question that the sentencing judge has to decide is whether the sentencing options available in connection with the specific predicate offence with which the judge is concerned are sufficient to reduce the threat to an acceptable level. Sentencing is a highly individualized, fact-specific exercise. While an offender’s history is relevant to the sentence to be imposed in an individual case, Part XX.1 supervision is not.
113On the other hand, the principles of sentencing dictate that an indeterminate sentence, the [now] inevitable result of a finding that the appellant is a dangerous offender, should only be imposed in circumstances in which less restrictive means do not exist by which to adequately protect the public from the risk of harm: Johnson, at para. 29. It should not matter whether those means are available within Part XXIV, the general sentencing provisions of Part XXIII, or, as here, under Part XX.I by the Review Board.
114It is not necessary to come to a firm conclusion on the influence, if any, of the prior mental disorder finding and ongoing supervisory authority of the Review Board on the exercise of residual discretion under former s. 754(1). For unless the prior NCRMD finding and ongoing supervisory authority of the Review Board mandates the exercise of discretion against a dangerous offender designation fully supported by the evidence, which I am not prepared to conclude, there is no reasonable possibility that the conclusion reached here would have been any different had the scheme of Part XX.1 been taken into account.
115The appellant is a very dangerous man. Violent. A recidivist. Violent recidivism next best to a sure thing. A severe antisocial personality disorder. No known treatment. No known cure. Requires a highly-structured setting and, even there, as the history plainly establishes, an unremitting management problem and repeated acts of violence. The designation “dangerous offender” fits, unfortunately all too well.
116I would not give effect to this ground of appeal.
CONCLUSION
117The appellant did not advance argument on his appeal against his conviction of manslaughter, the predicate offence. I would dismiss that appeal as abandoned. For the reasons given, I would also dismiss the appeal from the sentence of imprisonment for an indeterminate term imposed as a result of the dangerous offender finding.
RELEASED: September 24, 2009 “JL”
“David Watt J.A.”
“I agree John Laskin J.A.”
“I agree R.A. Blair J.A.”