WARNING
The President of the panel hearing this appeal directs that the following should be attached to the file:
An order restricting publication in this proceeding under ss. 486(1), (2), or (3) of the Criminal Code shall continue. These sections of the Criminal Code provide:
- (1) Any proceedings against an accused shall be held in open court, but the presiding judge or justice may order the exclusion of all or any members of the public from the court room for all or part of the proceedings if the judge or justice is of the opinion that such an order is in the interest of public morals, the maintenance of order or the proper administration of justice or is necessary to prevent injury to international relations or national defence or national security.
(2) For the purpose of subsection (1), the “proper administration of justice” includes ensuring that.
(a) the interests of the witnesses under the age of eighteen years are safeguarded in all proceedings; and
(b) justice system participants who are involved in the proceedings are protected.
(3) If an accused is charged with an offence under section 151, 152, 153, 153.1, 155 or 159, subsection 160(2) or (3) or section 163.1, 171, 172, 172.1, 173, 212, 271, 272 or 273 and the prosecutor or the accused applies for an order under subsection (1), the judge or justice shall, if no such order is made, state, reference to the circumstances of the case, the reason for not making an order. R.S., c. C-34, s. 442; 174-75-76, c. 93, s. 44; 1980-81-82-83, c. 110, s. 74, c. 125, s. 25; R.S.C. 1985, c. 19 (3rd Supp.), s. 14; c. 23 (4th Supp.), s. 1; 1992, c. 21, s. 9; 1993, c. 45, s. 7; 1997, c. 16, s. 6; 1999, c. 25, s. 2; 2001, c. 32, s. 29; 2001, c. 41, s. 16, 34 and 133(13), (14); 2002, c. 13, s. 20; 2005, c. 32, s. 15; 2005, c. 43, ss. 4 and 8(3)(a).
COURT OF APPEAL FOR ONTARIO
Weiler, MacPherson and Armstrong JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
S.P.
Appellant
Paul Calarco, for the appellant
Deborah Krick, for the respondent
Heard: October 5, 2010
On appeal from the sentence imposed by Justice Casimir N. Herold of the Superior Court of Justice dated February 22, 2008, with reasons reported at [2008] O.J. No. 711.
A. INTRODUCTION
1The appellant was convicted by Herold J. of the Superior Court of Justice of attempted murder and break and enter and commission of an indictable offence contrary to sections 348(1)(b) and 239(1)(b) of the Criminal Code. Following a lengthy hearing, Herold J. designated the appellant a dangerous offender and imposed an indeterminate sentence in the penitentiary. The appellant appeals his sentence.
2The central issue on the appeal concerns the use of statements made by the appellant during a pre-trial assessment to determine whether he should be designated a dangerous offender. The appellant submits that these statements, made as part of an assessment to determine whether he was fit to stand trial and whether he might be not criminally responsible by reason of mental disorder, are protected statements, the use of which is greatly restricted.
B. FACTS
(1) The parties and events
3In 2003, the appellant, then residing in England, began a relationship with one of the complainants, T.D., over the internet. In July of 2004, T.D. and her husband separated and she moved with their two children. Shortly after the separation, the appellant made arrangements to visit T.D. He arrived on July 26, 2004 and stayed with her until mid-September. He returned in mid-October, remaining for another two weeks. After this visit, T.D. ended the relationship and began a new relationship with N.W., who also lived in England. She told the appellant of her new relationship. The appellant made arrangements to return to Canada in December of 2004. He asked T.D. to pick him up at the airport on his arrival, but she refused.
4On December 14, N.W. came to visit T.D. in Canada. The appellant arrived in Toronto on December 24. He called T.D. on the day of his arrival and asked where she was and what she was doing. She believed that he was calling from England. The appellant rented a car at the Pearson International Airport in Toronto and drove to T.D.’s house. He “broke in” using the keys he had made on a previous visit. Using his cell phone, he then called her, told her that he was in England and would be arriving in Canada on December 28, and again asked if she could pick him up.
5At 11:15 p.m., N.W. and T.D. returned home and went to bed. The appellant then re-entered the house and went into the bedroom carrying a hammer. He attacked N.W. with the hammer, hitting him several times on the head. He also hit T.D. on the head with the hammer. N.W. managed to wrestle the hammer away from the appellant, who ran into the kitchen, found a knife and attempted to cut N.W.’s throat, managing instead to cut his nose and cheek. N.W. struggled with the appellant and was cut again. N.W. and T.D. eventually managed to escape and ran towards a neighbour’s house. The appellant returned to his rented car and drove after the couple until he saw people exiting a neighbour’s house, at which point he turned and left the area.
6N.W. and T.D. were treated for their injuries at a hospital. The appellant’s car was later found at T.D.’s grandmother’s home, but he could not be located. A warrant was issued for his arrest and a DVERS (Domestic Violence Emergency Response System) alarm, connected directly to the local police service, was installed at T.D.’s home.
7On January 30, 2005, the appellant arrived at T.D.’s house and was let in by her seven year-old son. The appellant attacked T.D. with a butcher knife. She activated the panic alarm, then fell to the floor. The appellant left the home and T.D.’s son called 9-1-1.
8T.D. suffered approximately 30 stab and slash wounds and had to be transferred from the local hospital to the Hamilton General Hospital in critical condition. She required extensive surgery. Upon her admission to hospital, it was also determined that she was pregnant. The fetus was determined to be “non-viable”, though it was unclear if this was a result of her injuries. Her son also suffered injuries in the attack and had to be treated for cuts to his hands.
9The police located a black bag left by the appellant at the home of T.D.. The bag contained a hatchet, a roll of duct tape, a cell phone and identification, including the appellant’s British passport. The appellant was arrested on February 1, 2005 (the day after the attack) when he required medical attention at a restaurant. The butcher knife was found hidden in the restaurant the following day.
10The appellant was originally charged with nine counts relating to these incidents. Before trial, he made an application for an assessment of both fitness to stand trial and criminal responsibility. The trial judge granted the defence application and the matter was adjourned to allow the assessment to be completed. In a report dated December 19, 2006, Dr. Robert L. Dickey concluded that the appellant was fit to stand trial and that he would not qualify as not criminally responsible due to mental disorder.
11Once it was determined that the appellant was fit to stand trial, he pled guilty to one count of break and enter and commission of an indictable offence and one count of attempted murder. The remaining counts were withdrawn. The Crown then applied for a finding that the appellant was a dangerous offender under s. 753(1) of the Criminal Code.
12Following the guilty plea, Crown counsel indicated to the court that she had contacted Dr. Dickey to complete an assessment under s. 752.1 of the Criminal Code to assist in determining whether the appellant was a dangerous or long-term offender. Crown counsel stated that as Dr. Dickey had already received some of the relevant material as part of the earlier fitness to stand trial and NCR assessment, his continued involvement might expedite the s. 752.1 assessment.
13Defence counsel stated on the record:
I have clear instructions from Mr. S.P. to consent to the assessment, and I do agree with my friend, I think it would be useful to have the same doctor, Dr. Dickey, continue the matter since he has familiarity with the case.
14Dr. Dickey met with the appellant on two occasions for approximately 10 minutes for the purpose of conducting the s. 752.1 assessment. Both times the appellant declined to participate in the assessment.
(2) The sentencing judge’s reasons
15The sentencing judge identified the issue before him as whether the appellant was a dangerous offender under s. 753 of the Criminal Code, a long-term offender under s. 753.1 of the Criminal Code, or a normal offender who should be sentenced in the usual course.
16Justice Herold began by noting that the appellant had refused to cooperate in several of the efforts made to assess him psychologically and compile a pre-sentence report. He then outlined the appellant’s British criminal record and reviewed the facts of the offences with respect to which he was being sentenced. The sentencing judge noted that the appellant would be deported should he ever be released from a Canadian correctional facility, but rejected the argument that this rendered the protection of the public an irrelevant consideration, finding instead that this simply expanded the “public” whose protection must be considered.
17Turning then to the evidence before him, the sentencing judge first reviewed the appellant’s extensive British criminal history, identifying several incidents in which he had abused, threatened and broken into the homes of current and former romantic partners and others whom he felt had wronged him. The sentencing judge then outlined the findings of Dr. Dickey, the psychiatrist assigned to assess the appellant. Dr. Dickey noted that the appellant expressed considerable hostility towards the complainant and rejected her version of the facts. Dr. Dickey concluded that the appellant is a psychopath, scoring 34.1-36.7 out of 40 on the “Psychopathy Check List – Revised”, where an average male would score a four or five and an average male inmate a 23. In addition, the Violence Risk Assessment Guide, also administered by Dr. Dickey, indicated a 64% chance that the appellant would reoffend. Because of the appellant’s refusal to cooperate, these tests were administered using evidence collected when the appellant was assessed for fitness to stand trial, though Dr. Dickey testified that this would not have affected their accuracy.
18Dr. Dickey also identified the appellant as highly likely to reoffend independently of these tests, based on his own expertise and experience. He testified that there is no cure for the appellant’s disorder and that he did not believe it could be altered by psychological treatment. He noted that the index offences were some of the most violent he had assessed in his career. Dr. Dickey expressed doubt that the appellant could be managed in the community, noting his inability to accurately report his own behaviour and the likelihood that he would fight with and manipulate the probation or parole officer assigned to him. Based on this evidence, and the fact that the appellant would be deported to England upon his release from custody and could therefore not be supervised in the community, the sentencing judge concluded that a long-term offender designation was not appropriate.
19Turning then to the dangerous offender designation, the sentencing judge first stated his conclusion that the offences committed by the appellant would qualify him for dangerous offender status. He found that, given his history of violence, there is a substantial likelihood that the appellant would cause death and serious bodily harm to others if given the opportunity, and that he is indifferent with respect to these consequences and unlikely to be inhibited by normal standards of behavioural restraint. Based on these conclusions, the sentencing judge determined that a dangerous offender designation was “the only one that properly suits him” and sentenced the appellant to an indeterminate sentence, along with a DNA order and a lifetime weapons prohibition.
C. ISSUES
20The appellant raises two issues on the appeal:
(1) Did the sentencing judge err by relying in his sentencing reasons on statements made by the appellant as part of his pre-trial fitness assessment?
(2) Was the sentencing judge improperly influenced by a misapprehension of international prisoner transfer law?
D. ANALYSIS
(1) The use of the appellant’s pre-trial statements
21In his s. 752.1 report and in his testimony at the sentence hearing, Dr. Dickey referred to information he had received from the appellant at the earlier fitness and NCR assessment stage. The appellant submits that this violates s. 672.21 of the Criminal Code which provides in part:
672.21(1) In this section, “protected statement” means a statement made by the accused during the course and for the purposes of an assessment or treatment directed by a disposition, to the person specified in the assessment order or the disposition, or to anyone acting under that person’s direction.
(2) No protected statement or reference to a protected statement made by an accused is admissible in evidence, without the consent of the accused, in any proceeding before a court, tribunal, body or person with jurisdiction to compel the production of evidence.
22The appellant submits that statements made as part of a fitness or NCR assessment are protected from use by s. 672.21, except in very limited circumstances set out in s. 672.21(3), none of which are present in this case. Accordingly, he argues that Dr. Dickey’s use of these statements to assess the appropriateness of a dangerous offender designation was improper. In support of this submission, the appellant relies on the dissenting opinion of Lamer C.J.C. in R. v. Jones, [1994] 2. S.C.R. 229.
23Jones was a case decided under a previous legislative regime dealing with dangerous offenders. However, I accept that the analysis in and principles from Jones are relevant in interpreting the new regime.
24In Jones, the accused had been examined, on a court-ordered remand, by two psychiatrists and a psychologist to determine whether he was fit to stand trial. He was not told that the results of the examinations might be used to determine whether he was a dangerous offender. The Crown later brought a dangerous offender application and sought to rely on the evidence of the psychiatrists and the psychologist. A majority of the Supreme Court of Canada held that the evidence was properly admitted and that the accused’s Charter rights had not been infringed. In reaching this conclusion, the majority made two points that are directly relevant to this appeal.
25First, Gonthier J, speaking for the majority, drew clear distinctions between an accused and an offender and between culpability proceedings and sentencing proceedings. He said at pp. 279-80:
With the greatest of respect, I cannot agree with the characterization of Lamer C.J. that the results of the psychiatric observation are used to “incriminate” the accused at his dangerous offender proceedings. They are not. By the time the accused reaches the dangerous offender proceeding state, he has already been found culpable of the offence for which he was charged. He has, in effect, already been “criminated”, transformed from “accused” to “offender”. Section 753 proceedings are sentencing provisions and do not constitute a separate charge against the offender. A conclusion that the individual is a dangerous offender does not constitute a separate finding of culpability any more than any particular sentence generates a distinct culpability.
26The ‘protected statement’ provision in issue in this appeal, s. 672.21 of the Code, applies throughout to an “accused”, not an “offender”.
27More broadly, the terms “accused” and “offender” are distinct terms throughout the Criminal Code. Section 672.1(1) defines “accused” for the purposes of Part XX.1 Mental Disorder of the Criminal Code as “includes a defendant in summary conviction proceedings and an accused in respect of whom a verdict of not criminally responsible on account of mental disorder has been rendered”. On the other hand, s. 2 of the Criminal Code defines “offender” as “means a person who has been determined by a court to be guilty of an offence, whether on acceptance of a plea of guilty or on a finding of guilty”. Indeed, the Code consistently refers to a person after a conviction as an “offender”: see, for example, ss. 718, 718.1, 718.2, 672.67-672.71 and 696.1 of the Code.
28The second crucial point made by Gonthier J. in Jones relates to the importance of including all relevant information at the sentencing stage of the criminal process and the connection between that goal and the opposing interpretations of s. 672.21 of the Criminal Code. Gonthier J. stated, at pp. 289-90 and 292:
As with all sentencing, both the public interest in safety and the general sentencing interest of developing the most appropriate penalty for the particular offender dictate the greatest possible range of information on which to make an accurate evaluation of the danger posed by the offender.
In the case of dangerous offender proceedings, it is all the more important that the court be given access to the widest possible range of information in order to determine whether there is a serious risk to public safety.
To deny the court access to the earlier findings of the psychiatrists may hinder the effective determination of the true risk posed by the offender. While it is true that under s. 756 the court may remand the offender for observation for the purposes of gathering evidence on his dangerous offender status, the offender may attempt to hide elements of his character or, indeed, refuse to answer the psychiatrists’ questions. As a result, there is a real danger that evidence from the pre-trial psychiatric evaluation which is excluded may not surface in the post-trial phase. This creates the considerable risk that a dangerous offender will not be so labelled in spite of the fact that there was clear psychiatric evidence at the pre-trial stage that the offender was a serious danger to society. While such an exclusion may be acceptable while the guilt of the accused is in question, it cannot be justified after his guilt has been established. To exclude clear psychiatric evidence of the dangerousness of the accused would be to ask other young girls in society to bear the risk that this information might not emerge in the post-trial psychiatric evaluation. The release of Scott Jones while he continues to pose a clear threat to their security is not a risk that they should be forced to bear.
29It is interesting to observe that in the present appeal one of the dangers foreshadowed by Gonthier J. in this passage has actually arisen. After initiating a psychiatric assessment for fitness and NCR purposes, after participating fully in that process with Dr. Dickey, after agreeing that another psychiatric assessment at the sentencing stage was appropriate, and after agreeing, through counsel in open court, that Dr. Dickey should “continue the matter since he has familiarity with the case”, the appellant then refused to talk to Dr. Dickey. If this on-the-ground reality of the appellant’s late-blooming non-cooperation is coupled with the appellant’s legal position that any statements he made (including test results) during his fitness and NCR assessments are inadmissible at the dangerous offender hearing, the result is very troubling – a substantial dearth of relevant and valuable psychiatric evidence.
30For these reasons, I would hold that the language and logic of Jones apply to the interpretation of s. 672.21 of the Criminal Code. I observe that the appellant merely notes that some of the relevant provisions have changed since Jones and therefore it is open to this court to adopt Lamer C.J.C.’s dissent in Jones. However, the appellant has not advanced any argument that the legislative changes post-Jones are material changes. For myself, I cannot see that they are. Accordingly, Jones governs this appeal. In the end, I agree with what Gonthier J. said at p. 297:
To exclude psychiatric evidence obtained in the pre-trial evaluation tending to show dangerousness would deny the court access to important evidence it can use to most accurately tailor the sentence while its admission can assist the court in reaching the most appropriate sentence having regard to the interests of both the offender and of society. [Emphasis in original.]
31There is a second, and different, reason I would decline to accept the appellant’s submission on the interpretation of s. 672.21 of the Criminal Code. Section 672.21(2) guards against use of a ‘protected statement’ in certain circumstances “without the consent of the accused”. In this case, the evidence is overwhelming – from start to finish, the appellant agreed to various psychiatric assessments and to the admissibility of evidence derived from the assessments at various court hearings.
32During the dangerous offender hearing, the appellant made no objection to the admissibility of the s. 752.1 assessment (Dr. Dickey’s assessment for the sentencing proceedings), nor to the viva voce evidence of Dr. Dickey. In the s. 752.1 assessment report, Dr. Dickey clearly indicated that he was relying on the prior fitness and NCR assessment, including interviews with the appellant. Yet the appellant did not object to the filing of the s. 752.1 assessment, the inclusion of the earlier fitness and NCR assessment, or the testimony of Dr. Dickey. Indeed, the appellant consented to the admission of the records of the Penetanguishene Mental Health Centre from the fitness and NCR assessment. Defence counsel stated that admissibility was “agreeable”; the question was the weight to be given to the records. These records contained the ‘protected statements’ the appellant now argues are inadmissible. Defence counsel also relied on some of these statements in arguing in favour of a long-term offender designation. As well, the defence position at the sentencing hearing was that Dr. Dickey’s opinion should be afforded less weight because the s. 752.1 assessment was incomplete without the appellant’s participation. The defence did not argue that Dr. Dickey’s opinion was inadmissible. Taking these circumstances together, I would hold that the appellant consented to the admission of his statements from the fitness and NCR assessment into the dangerous offender hearing.
(2) International prisoner transfer
33The appellant submits that the trial judge concluded that a long-term offender designation was not appropriate because the appellant faced the prospect of deportation to the United Kingdom upon his release from custody in Canada. The appellant states that it may have been possible, under existing legislation, for the appellant to have been transferred to the United Kingdom during his sentence with the consent of the Canadian and British authorities and that the United Kingdom does have long-term and dangerous offender legislation. The appellant submits that the sentencing judge’s rejection of long-term offender status was therefore based on a misunderstanding of British law and as such a new hearing should be ordered.
34I do not accept this submission. The sentencing judge did observe that if he designated the appellant a long-term offender, the appellant would be deported to the United Kingdom once his sentence was served, which would remove him from further supervision in Canada and the United Kingdom. However, this observation was far removed from the core of the trial judge’s reasoning. The sentencing judge went into considerable detail stressing the threat posed by the appellant and the inability of any authority to control that threat. Given these conclusions, it is illusory to suggest that the appellant could have been found to meet the third criterion for long-term offender status set out in s. 753.1(1)(c) of the Code: “there is a reasonable possibility of eventual control of the risk in the community.”
35The sentencing judge concluded his analysis in this fashion:
The overall impression with which I was left after hearing all of the evidence in this matter, reviewing the exhibits and hearing submissions, was that S.P. without any doubt whatsoever clearly falls squarely within the statutory definition and common law interpretation thereof of a Dangerous Offender and the designation is, with the greatest of respect, the only one which properly suits him.
I agree.
E. DISPOSITION
36I would dismiss the appeal.
RELEASED: OCT 22 2010 (“KMW”) “J. C. MacPherson J.A.”
“I agree. K. M. Weiler J.A.”
“I agree. Rob P. Armstrong J.A.”
