Court of Appeal for Ontario
Date: March 20, 2017 Docket: C61790
Justices: Hoy A.C.J.O., Doherty and Miller JJ.A.
Between
Her Majesty the Queen Appellant
and
Allan Alexander Hess Respondent
Counsel
For the Appellant: Lisa Joyal and Jennifer Crawford
For the Respondent: Erin Dann
Heard: February 8, 2017
On Appeal
On appeal from the decision of Justice H.S. Arrell of the Superior Court of Justice, dated January 28, 2016, dismissing the Crown's dangerous offender application.
Reasons for Decision
[1] Introduction
1The Crown appeals the sentencing judge's denial of its application to designate the respondent Allan Hess as a "dangerous offender" pursuant to s. 753(1)(a) of the Criminal Code.
2For the following reasons, I would dismiss the appeal.
Background
The Offender and the Predicate Offence
3The respondent, an Aboriginal person, grew up in a dysfunctional family. Both biological parents were alcoholics. Both parents physically abused him, and his father sexually abused him. He started using alcohol at age seven, by age 11 he was contemplating suicide, and at age 12 he started using drugs.
4He received his first custodial sentence in the same year. Between then and the time he committed the predicate offence in 2008 at the age of 21, he amassed a lengthy criminal record, including for violent offences, and spent all but 12 months in youth and adult correctional facilities.
5While in custody in 2005, after being subjected to a racial slur, the respondent attacked a jail guard, causing three puncture wounds to his neck. He pled guilty to aggravated assault. Stong J. dismissed the Crown's ensuing application for a dangerous offender designation and sentenced the respondent to a time-served sentence of 18 months, followed by 3 years' probation.
6The predicate offence occurred in 2008, shortly after the respondent was released from custody in relation to the 2005 assault. He had spent more than 21 of the 31 months preceding his release in segregation. He was released with virtually no supports in place. Thirty-six days after his release, he stabbed his uncle in the neck during a whiskey-fuelled celebration. His uncle reported that the respondent was "growling" at him before the stabbing, and that the respondent "didn't come out normal" after his long period "in the hole". The respondent was immediately remorseful.
The Issue Before the Sentencing Judge
7At the time of the respondent's predicate offence in 2008, if a sentencing judge found an offender to be a dangerous offender, he or she was required to impose a sentence of detention in a penitentiary for an indeterminate period. However, a sentencing judge had discretion to instead designate an individual a long-term offender, if the individual also satisfied the three criteria under s. 753.1(1) of the Criminal Code. Under s. 753.1(3), long-term offenders are sentenced to a definite term of imprisonment followed by a long-term community supervision order of a maximum of ten years in accordance with the Corrections and Conditional Release Act ("CCRA").
8The sentencing judge agreed with the parties that the respondent met the statutory criteria for the dangerous offender designation. As the Supreme Court noted in R. v. Johnson, 2003 SCC 46, [2003] 2 S.C.R. 357, almost every offender who satisfies the dangerous offender criteria will satisfy the first two criteria in s. 753.1(1). The analysis typically turns – and in this case turned – on whether the third criterion in the long-term offender provision is satisfied.
9At the time of the respondent's predicate offence, that criterion was "is there a reasonable possibility of eventual control of the risk in the community?"
10In R. v. Johnson, the Supreme Court directed that if an individual satisfies the criteria to be designated a long-term offender, the sentencing judge should find the individual to be a long-term offender, and not a dangerous offender. At para. 32, Iacobucci and Arbour JJ., for the court, wrote: "[if] the public threat can be reduced to an acceptable level through either a determinate period of detention or a determinate period of detention followed by a long-term supervision order, a sentencing judge cannot properly declare an offender dangerous and sentence him or her to an indeterminate period of detention."
11As the sentencing judge observed, the "real issue" before him was whether there was a reasonable possibility of eventual control within the community of the respondent's risk of reoffending and causing harm to others. If so, he correctly observed, he should find the respondent to be long-term offender and not a dangerous offender.
The Evidence Before the Sentencing Judge on the "Real Issue"
12In September 2011, the respondent was transferred to the St Lawrence Valley Correctional and Treatment Centre ("SVCTC") – a psychiatric hospital within a correctional setting – because of the severity of his symptoms. He had made suicide attempts. Initially, he was experiencing symptoms of acute psychosis and was in seclusion. He was diagnosed with schizophrenia, major depression and post-traumatic stress disorder.
13For the first time in the respondent's troubled life, he began to receive consistent, comprehensive psychiatric care.
14The respondent's treatment involved both medication and individual and group therapy. His treating psychiatrist, Dr. Watson, saw very significant improvements. The respondent developed significant insight into his mental illness and his need for medication, crucial factors in predicting compliance with future treatment. Dr. Watson had no reason to believe he would not be compliant with medication. Further, Dr. Watson testified the respondent appreciates he needs to stay away from peers and family who drink and knows that drinking and drugs will make his mental illness worse. He was eager to undergo treatment.
15Dr. Watson testified that, in the treatment team's opinion, the respondent could be successfully and safely transitioned into the community. Dr. Watson proposed a plan involving graduated supervised release from the hospital.
16Dr. Watson explained that once the respondent was sentenced, he would have access to a social worker who would focus on setting up a comprehensive discharge plan.
17She suggested that the respondent could be released to a forensic hospital where privileges would gradually be increased. From hospital, he could be transitioned to a mental health boarding home. She recommended the involvement of an Assertive Community Treatment Team (an "ACT") – an outpatient team that meets with patients in the community to assist with keeping appointments, getting medication, engaging in activities and providing support and assistance with life skills. Finally, she recommended the imposition of a community treatment order ("CTO") – an order issued by a physician and agreed to by a patient requiring the patient to take medication. The respondent indicated that he was agreeable to such an order and to a graduated transition to the community.
18The opinion of Dr. Watson was contrary to that of the forensic psychiatrists who had interviewed the respondent. In their opinions, the respondent could not be safely managed in the community under a long-term supervision order. One of them, Dr. Rootenberg, had concluded that the respondent suffered from an anti-social personality disorder rather than schizophrenia. Dr. Rootenberg completed his assessment report prior to the respondent's transfer to and treatment at SVCTC.
19Another forensic psychiatrist, Dr. McMaster, assessed the respondent seven months into his stay at SVCTC. He also diagnosed the respondent with anti-social personality disorder. However, he noted he could not be "absolutely certain" the respondent did not instead have schizophrenia, in part because "it is difficult to sort out his self-report of psychotic-like symptoms". Dr. McMaster also noted the respondent's "upward trajectory" since starting treatment at SVCTC.
The Sentencing Judge's Decision
20The sentencing judge reviewed the relevant facts, including the respondent's violent history.
21The sentencing judge preferred the evidence of Dr. Watson, whose team had worked with the respondent daily for nearly four years, to that of the forensic psychiatrists who had only seen the respondent in formal interview settings on a few occasions, and before any meaningful treatment had been provided to him. He found that her evidence on the issue of treatability and management in the community was more accurate, comprehensive and probative than the forensic psychiatric evidence.
22The sentencing judge specifically noted that protection of the public must be paramount in his analysis.
23He found that there was clear, undisputed evidence that the treatment the respondent had been receiving was working. The progression of improvement in the respondent was evidence of his treatability. He concluded the release plan proposed by Dr. Watson "has a very high degree of probability that it will be successful and will protect the public."
24On January 28, 2016, the sentencing judge found the respondent to be a long-term offender and imposed a total jail term of two years less one day on the predicate offence of aggravated assault. The sentencing judge gave the respondent seven years' and ten months' credit for pre-sentence custody (March 2008 to January 2016) for an effective sentence of nine years and ten months. The respondent was also placed on a five-year Long Term Supervision Order commencing upon his release after serving the two years less one day term of imprisonment. In total, the sentence imposed provided for seven years of incarceration/supervision of the respondent from the date of sentence.
25The sentencing judge was satisfied that the sentence he imposed properly reflected the Gladue principles that he was required to consider.
Issues
26The Crown does not dispute that deference is accorded to a sentencing judge on issues of fact-finding, including on the question of whether there is a reasonable possibility of eventual control of an offender in the community: R. v. Ramgadoo, 2012 ONCA 921, 300 O.A.C. 149, at para. 42; R. v. R.M., 2007 ONCA 872, 231 O.A.C. 198, at para. 53.
27However, it argues that the sentencing judge's fact-finding process was tainted by several errors of law. I would characterize some of the alleged errors as arguments that there was an absence of evidence supporting the sentencing judge's finding that there is a reasonable possibility of eventual control of the respondent in the community. The balance consist of what the Crown says are fatal flaws in the proposed release plan. Below, I address the Crown's arguments under these two rubrics.
28As I will explain, I am not persuaded the sentencing judge's fact-finding process was tainted by legal error. In my view, his finding that there is a reasonable possibility of eventual control in the community is reasonable and is entitled to deference.
1. Absence of Evidence to Support the Finding of a Reasonable Possibility of Eventual Control Within the Community
The Crown's Position
29The Crown argues there was no admissible evidence supporting the sentencing judge's conclusion there was a reasonable possibility of eventual control of the risk that the respondent poses to the community.
30It says that Dr. Watson is not a forensic psychiatrist and was not qualified to opine on the respondent's risk or whether he could ever be safely released back into the community. It also says her opinion was based on the unproven underlying assumption that schizophrenia was the reason for the respondent's past offending in the community.
31The Crown submits a sentencing judge may only resort to the long-term offender regime where there is evidence that is more than an expression of hope that the offender could be meaningfully treated within a definite period of time. It submits this requirement is necessary to achieve the goal of protection of the public under the dangerous offender and long-term offender provisions, relying on several decisions of this court: R. v. McCallum, 2005 CanLII 8674 (ON CA), 196 O.A.C. 101, 201 C.C.C. (3d) 541, at paras. 47-49; R. v. Higginbottom, 2001 CanLII 3989 (ON CA), 150 O.A.C. 79, 156 C.C.C. (3d) 178, para. 24-27; R. v. Solano, 2014 ONCA 185, 309 C.C.C. (3d) 386, para. 15. It argues Dr. Watson's opinion that the respondent could be safely transitioned into the community is nothing more than an expression of hope and, moreover, that she was required to, but did not, say when the respondent would be ready to be released into the community without supervision.
Analysis
32I reject these arguments.
33The sentencing judge properly instructed himself that any decision that a lesser measure than an indeterminate sentence can control the offender must be based on evidence introduced during the course of the hearing.
34Dr. Watson was qualified as an expert in the diagnosis and treatment of psychiatric disorders. She provided a clinical prognosis for reintegration into the community. There was no challenge to her expertise in this area. The sentencing judge recognized that Dr. Watson was not a forensic psychiatrist, and Dr. Watson admitted in her testimony she could not provide an opinion on the risk of recidivism based on an actuarial risk assessment. The sentencing judge was nevertheless entitled to accept Dr. Watson's evidence and to prefer it to the evidence of the forensic psychiatrists.
35Dr. Watson's evidence was that once the respondent's illness had been appropriately identified and treated, the respondent stopped engaging in violent and threatening behaviour. The respondent's aggression was not previously controlled, even in custody. Further, the respondent's brother was diagnosed with schizophrenia at age 17. There is an adequate foundation for the assumption underlying her opinion and the sentencing judge's conclusion that the respondent's untreated psychosis was a significant factor underlying the respondent's past conduct.
36And Dr. Watson's evidence was far more than "an expression of hope" that the respondent could be meaningfully treated within a definite period of time.
37There was concrete evidence of treatability over the nearly four years the respondent was at the SVCTC. There was very significant improvement in the respondent's condition. Staff described him "as a different person than he was at the time of admission." As the sentencing judge found, "the progression of improvement in [the respondent] is evidence of his treatability."
38Further, Dr. Watson opined that the respondent would be ready to begin the proposed process of gradual release into the community in a year's time. After she explained that St Lawrence would need approximately a year to put a graduated release plan in place, the following exchange took place:
Q: You've indicated that the facility is about a year's time to put everything all in place. Is [the respondent], are you able to give the court an opinion, is [the respondent] ready to start the process of a gradual release into the community such that you don't anticipate any violent outbursts, any violent acting out on members of the community?
A: It's our, it's our opinion that, that he certainly is ready to begin the process…
39The evidence in this case is very different from that in the cases that the Crown relies on.
40McCallum most clearly articulates the principle that the Crown relies on. At para. 47, Feldman J.A., citing Higginbottom and an earlier decision, R. v. Poutsoungas, 1989 CanLII 7104 (ON CA), 49 C.C.C. (3d) 388, wrote that there must be evidence of treatability that is more than an expression of hope and that indicates that the specific offender can be treated within a definite period of time.
41In McCallum, the sentencing judge relied on comments that the offender had "shown some progress and demonstrated the ability to benefit from treatment" to conclude that there was a reasonable possibility of eventual control in the community of the risk that the offender would re-offend. But the sentencing judge did not assess those positive comments in light of subsequent negative comments, the diagnosis of sexual sadism, and the three violent sexual offences the respondent committed after those comments were made. Feldman J.A. characterized the evidence before the sentencing judge as no more than a hope that the offender would either be amenable to treatment or that, if amenable, he would be treatable within a definite period of time.
42In Higginbottom, the offender was a pedophile who denied that he had a problem. This court held the sentencing judge erred in relying on general evidence that it is was "premature" to label the offender untreatable because it is possible to eventually rehabilitate sexual offenders who deny they have a problem. The only evidence specific to that particular offender was from a physician who testified there was no realistic possibility of treatment in the community. This court concluded the trial judge erred in exercising his discretion to impose a determinate sentence in the absence of any evidence specific to the offender that he could be rehabilitated within a fixed period of time.
43In Poutsoungas, the evidence was that if the accused was able to appreciate and accept his personal responsibility for his crimes, was genuinely remorseful, was able to come to grips with his addiction to alcohol and drugs, and received proper treatment, there could be positive results that could lead to his rehabilitation. This court concluded that the sentencing judge's reasoning was dependent on so many contingencies "as to be little more than an expression of hope" that the respondent might or could be rehabilitated.
44Finally, in Solano, an offender diagnosed as a psychopath with anti-social personality disorder and substance dependence, together with possible schizophrenia, appealed his designation as a dangerous offender. In designating the offender as a dangerous offender, the sentencing judge noted the offender's historical lack of response to anti-psychotic medications, his past refusals to continue prescribed or recommended treatment, and his proven repeated unsuccessful attempts at reintegration in the community. This court held that the sentencing judge did not err in dismissing the evidence of two psychiatric nurses that the offender's risk could be managed to an acceptable level if he participated in community based programs offered by Correction Services Canada as no more than an expression of hope, and dismissing the evidence of the offender's psychiatrist about the possibility of treatment with a new anti-psychotic drug as speculative.
45In this case, unlike all of the above cases, there was concrete evidence of meaningful treatment.
2. The Release Plan
The Crown's Position
46The Crown argues the sentencing judge erred in law in three respects in accepting the release plan proposed by Dr. Watson as a basis for concluding there was a reasonable possibility of eventual control of the respondent within the community.
47First, citing R. v. G.L., 2007 ONCA 548, 87 O.R. (3d) 683, at paras. 58–70, R. v. M.J.O., 2008 ONCA 361, 90 O.R. (3d) 241, at paras. 136-137, R. v. D.V.B., 2010 ONCA 291, 100 O.R. (3d) 736, leave to appeal dismissed, [2011] S.C.C.A. No. 207, and R. v. Trevor, 2010 BCCA 331, 257 C.C.C. (3d) 72, the Crown submits that if the restrictive provisions necessary to control an offender's risk of re-offending and protect public safety essentially replicate "jail-like" conditions in the community, an indeterminate sentence is required. The Crown argues that the release plan proposed by Dr. Watson – including release to a forensic hospital where privileges would gradually be increased – replicates "jail-like" conditions. Therefore, it argues, the sentencing judge erred in law in imposing a determinate sentence, followed by an LTSO.
48Second, it says that the proposed plan improperly relies on the provisions of the Mental Health Act, and not correctional services, to control the respondent's risk to public safety.
49Third, and again relying on G.L. and Trevor, it says that a sentencing judge must be satisfied that the resources necessary to supervise the offender in the community will be available and that there was no evidence that the resources required to implement the proposed plan will be available.
50I reject these arguments. Below, I address them in turn.
Jail-like Conditions
51I do not agree that Dr. Watson recommended "jail-like" conditions. Dr. Watson testified that a forensic hospital could be the first stop on a graduated release plan and that if it were, privileges would be gradually increased over the course of the respondent's stay at the hospital. She described this as a "transitional placement" to assist the respondent "in gaining the skills needed to live in the community". Then, when appropriate, he could be discharged to a mental health group home or rented accommodation. While Dr. Watson's evidence was that the respondent would initially need extensive support, the objective of her proposed release plan was to enable him to function in a non-jail like environment.
52The type and extent of the supervision proposed in this case is very different from that found to be "jail-like" in G.L., M.J.O. and Trevor. In those cases, the offenders were not treatable and it was accepted that round-the-clock supervision would be required throughout the term of the long-term supervision order.
53In G.L., the sentencing judge sentenced the offender to a ten-year term of imprisonment for the predicate offence, to be followed by a ten-year supervision order. The offender was diagnosed as a psychopath and the evidence was that he was not amenable to treatment. The recommended conditions included almost twenty-four hour monitoring of the offender by officials expert in psychopathy, coupled with residency in a controlled environment, for ten years. The court concluded that the resources necessary to provide the community supervision envisaged were not available, but commented, at para. 61, that even if they were, the "overall form of supervision proposed comes close to replicating in the community the form of monitoring and supervision that the state provides in custodial settings." At para. 62, Cronk J.A. wrote that while conditions of supervision may be imposed under the CCRA, "I do not believe that that statute or the long-term offender regime is intended to virtually replicate jail-like conditions in the community for offenders released from custody."
54M.J.O. also involved a diagnosed and untreatable psychopath where the risk he posed to the community could only be reduced to an acceptable level with round-the-clock community supervision. The court applied G.L. and concluded that a long-term offender finding was not appropriate.
55In Trevor, an offender with limited intellectual and cognitive abilities had a history of sexual offences. He lacked the intelligence and skills needed to benefit from treatment aimed at helping him control his inappropriate sexual urges. As in G.L., the safe control of the offender's risk in the community was reliant on supervision, rather than treatment.
56The offender proposed that Community Living British Columbia ("CLBC"), a social-service agency that exists to deliver services on a voluntary basis to developmentally-disabled adults in British Columbia, could provide the "structure" required to manage his risk as a long-term offender. Citing G.L., Frankel J.A. held that one of the reasons that a long-term offender order was not appropriate was because "the control-mechanisms [the offender] seeks to have imposed on himself are tantamount to detention. In essence, he seeks to be imprisoned outside of a prison."
57The graduated release plan contemplated in this case stands in sharp contrast to the proposed conditions of supervision in G.L., M.J.O. and Trevor.
Inability of Correctional Services to Control the Respondent's Risk
58I turn next to the Crown's argument that, because the proposed plan employs "tools" under the Mental Health Act, correctional services will be unable to control the respondent's risk to public safety.
59While the proposed release plan relies in part on resources provided by the mental health care system, I am satisfied that the key components of the release plan are enforceable through the LTSO and fall within the control of the Parole Board and Correctional Services Canada ("CSC"). Further, in my view, the availability and suitability of treatment and programming beyond that which is directly offered by CSC are relevant to the issue of potential control of risk in the community.
60First, the key terms are under the Parole Board's control. The Parole Board has a broad power to craft and impose conditions for long-term supervision. It can establish conditions that it considers "reasonable and necessary in order to protect society and to facilitate the successful reintegration into society of the offender": Corrections and Conditional Release Act, S.C. 1992, c. 20, s. 134.1(2) ("CCRA"). The conditions imposed are subject to regular review and can be varied by the Parole Board.
61Under the CCRA, offenders may be ordered to reside at a specific place, including a psychiatric facility or community residential facility: s. 133(4.1). The Parole Board can limit the time that the offender spends in the community and require the respondent to meet with members of an ACT at specified intervals. Perhaps most importantly for this case, as this court held in Ramgadoo, at para. 58–59, the Parole Board can impose mental health treatment conditions in the LTSO.
62While the Board might not directly provide the services it orders the respondent to use, it has the power to ensure compliance. Under s. 135.1(1) of the CCRA, where the Parole Board is satisfied that it is necessary and reasonable to suspend an LTSO to protect the public or prevent a breach, it is empowered to authorize the apprehension and commitment of the offender to a mental health facility for up to 90 days. And if the offender breaches a condition in the LTSO, he may be detained and then prosecuted for the breach.
63Second, I see no error in the sentencing judge considering possible use of treatment and reintegration options not directly provided by CSC in assessing the possibility of controlling the respondent's risk. I agree that the Parole Board cannot forcibly medicate the respondent, nor impose a CTO upon him involuntarily. But Dr. Watson's assessment of how likely it was the respondent could be effectively managed and reintegrated through measures such as dispositions under the Mental Health Act was clearly relevant evidence regarding risk management.
64And that evidence was especially probative in light of the evidence that the respondent was interested in and willing to carry on his medication and treatment regime once released into the community. Indeed, Dr. Watson's evidence was that the respondent was reluctant to reduce his anti-psychotic medication even where his treatment team suggested doing so. The sentencing judge was entitled to rely on this evidence to support his conclusion there was a reasonable possibility of eventual control of the respondent's risk in the community.
Evidence of Availability of the Necessary Resources in the Community
65This leaves the Crown's final argument: G.L. and Trevor require evidence of the availability in the community of the resources necessary to supervise the respondent and such evidence was not adduced.
66I do not find this submission persuasive. First, Dr. Watson's evidence did provide an evidentiary basis to conclude the necessary services were available in the community.
67Second, this case is very different from G.L. and Trevor. As noted above, the offender in G.L. was untreatable and the Crown adduced evidence that many of the requisite resources – including an expert in psychopathy to monitor the offender – were unavailable or unrealistic. Cronk J.A. wrote, at para. 59, that "where the determination that an offender's risk may be safely controlled in the community rests, as it did here, on adequate community supervision, rather than treatment, the availability of the resources necessary to implement such supervision effectively cannot be uncertain."
68In Trevor, there was evidence that CLBC did not have the mandate or capacity to supervise a high-risk offender such as Mr. Trevor, who required a secure residential facility with 24-hour monitoring. Citing para. 62 of G.L., Frankel J.A. wrote, at para. 35, that, "A judge can hardly be 'satisfied' that there is a reasonable possibility of controlling [the risk posed by a particular offender] in the absence of evidence that the means to do so are in fact available."
69The statements in G.L. and Trevor on which the Crown relies were made where (i) the control of the offender's risk in the community relied on twenty-four hour or almost twenty-four hour supervision, and not treatment, (ii) the resources required in the community were in some way "special" and not of a type generally provided by the applicable institution, and (iii) there was evidence that the required resources were unavailable or unrealistic.
70In this case, unlike in G.L. and Trevor, there is evidence that the respondent is treatable. The control of the respondent's risk does not rely solely on community supervision. The recommended resources within the community are within the mandate of the provincial mental health care system and available to persons diagnosed as needing them, subject to wait lists. And Dr. Watson's evidence was that there would be sufficient time between the imposition of sentence and the respondent's release on an LTSO to "conquer" the waiting lists and permit a plan such as that proposed to be in place on the respondent's release.
71For all of these reasons, in my view, the sentencing judge was entitled to consider the proposed release plan in concluding that there was a reasonable possibility of eventual control of the respondent in the community.
72A final note on this subject. After this appeal was argued, this court delivered its decision in R. v. Radcliffe, 2017 ONCA 176, [2017] O.J. No. 1060, another "dangerous offender" case. I am mindful of Watt J.A.'s comments, at para. 58 of Radcliffe, regarding the need for "[e]vidence of the existence and availability of community resources that will provide the essential level of extra-custodial supervision to adequately protect the public". Those comments were not essential to the court's holding in Radcliffe, and in any event the facts and issues in that case are markedly different from this one. I am satisfied that Radcliffe is consistent with these reasons.
Conclusion
73The sentencing judge's conclusion that there is a reasonable possibility of eventual control of the respondent's risk in the community is not tainted by legal error and is reasonable. I would dismiss the appeal.
Released
Released: March 20, 2017
Alexandra Hoy A.C.J.O.
"I agree Doherty J.A."
"I agree B.W. Miller J.A."
Footnotes
1Effective July 2008, Parliament amended the Criminal Code to remove judicial discretion in the context of a dangerous offender designation. Under the new regime, a sentencing judge is required to designate an offender as a dangerous offender wherever the criteria in s. 753(1) are met. However, the court is no longer required to impose an indeterminate sentence for all dangerous offenders. The court now has the option of sentencing a dangerous offender to a determinate sentence combined with a long-term supervision order, provided the judge is satisfied the sentence will adequately protect the public: ss. 753(4) and (4.1), see also R. v. Steele, 2014 SCC 61, [2014] 3 S.C.R. 138, at para. 31.
2Under the new regime, where the criteria for a dangerous offender designation are met, the court may only impose a determinate sentence and a long term supervision order instead of an indeterminate sentence where there is a "reasonable expectation" such a sentence will "adequately protect the public against the commission by the offender of murder or a serious personal injury offence": s. 753(4.1).
