ONTARIO COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
MARK SMILEY
Before Justice Paul F. Monahan
Heard on August 13 to 16, 2018 and November 30, 2018
Written Reasons for Judgment on a Dangerous Offender Application
released on January 24, 2019
Amended Written Reasons for Judgment with corrections for typographical errors released on February 7, 2019
C. Nadler and C. Hackett counsel for the Crown
N. Gregson counsel for Mark Smiley
INTRODUCTION
1Mr. Smiley pled guilty before me on October 18, 2017 to two counts of robbery which offences took place in December 2016 contrary to s. 344 of the Criminal Code (the “December 2016 offences”). Certain facts were admitted and formed part of the record. I will review some of those facts below. Prior to Mr. Smiley entering his pleas on October 18, 2017, the Crown put Mr. Smiley on notice that they intended to bring a dangerous offender application once his pleas were entered.
2Subsequent to the pleas and the findings of guilt, I made an order under s. 752.1 of the Code, on consent, for an assessment of Mr. Smiley.
3The Crown did launch a dangerous offender application. I heard the evidence in the dangerous offender application on August 13 to 16, 2018. Among other documents, a thirteen volume set of documents was marked as exhibits on consent at the outset of the hearing. There were three witnesses for the Crown and no evidence called by the defence. The Crown witnesses were Dr. Philip Klassen, a psychiatrist who interviewed Mr. Smiley in furtherance of the s. 752.1 order; Ms. Angela Beechor-Beekhoo from the Correctional Services of Canada (“CSC”); and Karen Thompson of the Parole Board of Canada.
POSITIONS OF THE PARTIES
4It is the Crown’s position that Mr. Smiley should be designated a dangerous offender pursuant to s. 753 (1)(a)(i) or s. 753(1)(a)(ii).
5As concerns s. 753(1)(a)(i), it is the Crown’s position that the pattern of repetitive behaviour showing a failure to restrain his behaviour and likelihood of causing injury or severe psychological damage is evidenced through Mr. Smiley’s criminal history that includes reoffending after treatment and while under supervision.
6As concerns s. 753(1)(a)(ii), it is the Crown’s position that a pattern of persistent aggressive behaviour showing indifference is met through Mr. Smiley’s repeated commission of serious robberies of vulnerable people.
7It is the Crown’s position that after designating Mr. Smiley a dangerous offender the Court should impose an indeterminate sentence pursuant to s. 753 (4) and s. 753 (4.1). In the alternative, after designating Mr. Smiley a dangerous offender, the Crown submits that the Court should impose a 12 year sentence followed by a 10 year long-term supervision order (sometimes referred to as an “LTSO”). In making the submission for a 12 year sentence, the Crown points to authority from the Court of Appeal that a sentencing judge imposing a fixed term sentence on a dangerous offender may impose a sentence that exceeds the appropriate range that would apply in a non-dangerous offender context: R. v. Spilman, 2018 ONCA 551, [2018] O.J. 3297 (C.A.) at paras. 32-38. The Crown did not specifically request in its written submissions that I find Mr. Smiley to be a long-term offender if the Court were to dismiss the dangerous offender application but in its oral submissions the Crown did submit that such an order was open to the Court pursuant to the provisions of s. 753(5).
8It is the defence’s position that the dangerous offender application should be dismissed as the requirements of designating Mr. Smiley dangerous offender have not been met. The same is true of the question of whether or not court should impose an LTSO with the defence’s position that it should not because the requirements of s. 753.1 have not been met.
THE EVIDENCE
9I have had regard to the whole of the evidence in coming to the conclusions set out in these reasons. I will give only an overview of some of the key evidence.
The December 2016 offences
10Mr. Smiley committed the two robberies contrary to s. 344 of the Code on December 26 and 28, 2016. Certain facts were admitted and formed part of the record. A number of video clips relating to both robberies were admitted into evidence and played for the Court.
11The first robbery occurred on December 26, 2016 at about 4:30 pm and involved Mr. Smiley posing as customer at a tea shop called “T by Daniel”. There were two people working there at the time. Mr. Smiley pulled out a sock or a glove which one of the victims and another witness said “had something inside which could have been a weapon”. Another witness said it looked like a sharp object shaped like a gun but it could have been a pen. Mr. Smiley told them to “give me all your money”. Mr. Smiley came around the counter and took $170 from the cash register. He also demanded the victims’ phones. He received two phones and a tablet. He also took a tip box. The total value of cash and property stolen was $670. He told the victims to lie on the ground and they did. Neither victim of this robbery has given a victim impact statement in connection with this robbery.
12The second robbery occurred on December 28, 2016 at about 8:30 pm, when Mr. Smiley went into a “Mr. Sub” sandwich shop where there was a store clerk working by herself. Mr. Smiley took out something wrapped in blue cloth which the victim thought was a knife. He jumped over the counter. He grabbed her and pulled her sideways and pushed her back and she fell down. A metal chip display case fell on her as she tried to evade Mr. Smiley and she was on the floor. The clerk was clearly panicked and frightened as is apparent from the video. He said “open the till”. She told him she could not stand up because she had just had knee surgery. She told him to help her stand. He eventually helped her up but prior to this he was physically forceful with her as she lay on the floor. Ultimately, she opened the till. He took all the money which was about $400. He then said “I’m not hurting you, just come with me”. He made her go to the back of the store and opened the cooler door. He made her lie down on her stomach in the cooler and he tied her up with the scarf that he had with him. He left her there. When she heard him leave, she was able to untie herself and call her boss who called the police. The victim gave a victim impact statement in which she states that she is no longer comfortable going out and is scared to work at night. She also reported being scared easily and wakes up screaming in the middle of the night when her husband accidentally touches her in her sleep.
Mr. Smiley’s Criminal History
13Mr. Smiley was born August 21, 1976. He is currently 42 years old. Mr. Smiley’s criminal record was filed as part of the record in this case. Mr. Smiley has seven offences on his youth record. Apart from the two December 2016 offences, Mr. Smiley has 12 offences on his adult record. On the dangerous offender application, apart from the December 2016 offences, the Crown relies primarily upon the following offences committed by Mr. Smiley as supporting the Crown’s application to have Mr. Smiley declared a dangerous offender. In describing these offences I have relied upon the descriptions of these offences as set out in the Crown’s written argument and on the records available concerning these offences:
(a) In December 1992 when Mr. Smiley was 16 years old, he was convicted of robbing a taxi driver. He was also convicted of pointing a firearm. During the commission of the offence he placed the muzzle of a pellet gun to the head of the victim driver. He was sentenced to 9.5 weeks (time served) and two months of secure custody;
(b) In January 1993, Mr. Smiley was convicted of robbery. He was 16 years old at the time. The offence involved Mr. Smiley and a number of youths robbing a victim of his “Walkman” at a mall. Mr. Smiley received a sentence of four months secure custody and two months open custody and 18 months of probation;
(c) In February 1995, when Mr. Smiley was 18 years old, he robbed a convenience store with an accomplice. The accomplice had a firearm (a scoped rifle). Mr. Smiley said to the victim “don’t push any buttons or I’ll kill you”. $400 was stolen. In June 1995, Justice Ready sentenced him to three years in custody. This was his first significant adult sentence;
(d) In January 1999, when Mr. Smiley was 22 years of age, he robbed a jewelry store of approximately $200,000 worth of jewelry and cash. During the robbery he grabbed the sole customer in the store and threatened to hurt her and he dragged her over the counter and ran after her. He pulled the phone from the wall and forced the sole customer and employee in the store to lie on the ground. He said he had a gun and threatened to kill them if they did not comply. A small replica pistol fell out of his pocket and he pulled out a large six-inch style hunting knife. Both victims reported bruising cuts as well as considerable anxiety and stress from the incident. They reported feeling terrified by the incident and had difficulty eating and sleeping after it occurred. In March 1999, Justice Hawke sentenced him to 6.5 years in jail (5.5 years on the robbery and 1 year consecutive on the use of an imitation firearm); and
(e) In August 1998, when Mr. Smiley was 22, Mr. Smiley and an accomplice robbed a pharmacy. The accomplice had a firearm or an imitation firearm which was pointed at the temple of one of the victim. After a trial in April 2000, a jury found Mr. Smiley guilty and Justice Rivard of the Superior Court sentenced him to 5 years consecutive to the sentence imposed by Justice Hawke.
14The result of the sentences of Justices Ready, Hawke and Rivard described above is that Mr. Smiley spent most of the period between 1995 and 2010 in the federal penitentiary system. He incurred a number of parole violations and his statutory releases were revoked a number of times particularly for the use of THC and cocaine. His warrant expiry date was August 9, 2010. Between 2010 and 2016, Mr. Smiley did commit some more minor offences (mischief, theft under and breach of recognizance). I will discuss these offences when I analyze the dangerous offender application below.
Ms. Angela Beechor-Beekho
15Ms. Beechor-Beekhoo is an employee of CSC. She gave testimony for the purpose of providing the court with a description of, among other things, the role of parole officers, the parole decision-making process and the process of making recommendations to the Parole Board of Canada. She explained how federal offenders are treated by CSC including for release purposes. She also explained how dangerous offenders and persons subject to long-term supervision orders are treated within the federal corrections system.
Ms. Karen Thomson
16Ms. Thomson provided a description of the functions of the Parole Board of Canada, the parole application and release process and other features of parole administration where a sentence of two years or more is imposed by a court. She also explained how dangerous offenders and those subject to long-term offender orders are governed within the federal corrections system.
Dr. Philip Klassen
17Of the three witnesses who gave oral testimony, only Dr. Klassen met with Mr. Smiley. He did so twice for a total interview time of approximately 4.5 hours.
18Dr. Klassen prepared a 29 page report dated April 30, 2018. He was qualified as an expert witness to give evidence in the field of forensic psychiatry and to give an opinion on risk assessment and risk management. In addition to his written report, Dr. Klassen gave oral evidence on August 13 and 16, 2018. He also interviewed Ms. Donna Eldridge midway through his oral testimony and provided a further report focusing on his interview with Ms. Eldridge which report is dated August 15, 2018. Ms. Eldridge had been in an intimate relationship with Mr. Smiley for some period of time prior to his most recent incarceration for the December 2016 offences.
19Dr. Klassen has been a psychiatrist since 1992. He has prepared reports and/or testified as an expert witness in almost 200 dangerous offender and long-term offender applications. He was an excellent witness. While he testified as part of the case for the Crown, he favoured neither the Crown nor the defence. He came to assist the court.
20As indicated above, Mr. Smiley is 42 years of age. Of his 24 adult years, approximately 16 of them have been spent in custody. Dr. Klassen, as indicated above, interviewed Mr. Smiley for 4.5 hours.
21Dr. Klassen reviewed the following categories of documents with respect to Mr. Smiley: information with respect to his charges and convictions; the Children’s Aid Society files; the Ministry of Children and Youth Services, the Ministry of Community Safety and Correctional Services files and the CSC files.
22Dr. Klassen diagnosed Mr. Smiley as having antisocial personality disorder. It was also Dr. Klassen’s testimony that approximately 80% of all persons in custody have this type of disorder. Dr. Klassen noted that Mr. Smiley was reactive and untrusting; that he was of “solidly average intelligence” but had not done well in school; that he does not appear to have significant difficulties with addictions but his defiance has led to the repeated suspension and revocation of parole.
23Dr. Klassen also made comments to the effect that Mr. Smiley was “treatment resistant” and that supervision and management of him would be a “real challenge”. He did say that as he ages there is increasing support for the “reasonable possibility of eventual control of the risk in the community”.
24Dr. Klassen noted that he had taken the Cognitive Skills course offered by CSC on six prior occasions and the Anger and Emotions management course on three occasions. While Dr. Klassen noted that he had “completed” these courses he said that Mr. Smiley had had “negative reports” and that Mr. Smiley’s treatment history was “not terribly encouraging”. He further noted however, that Mr. Smiley has said that he would like to take further counselling. Further, Dr. Klassen noted that Mr. Smiley had not been offered counselling since 2004 and that “well, maybe then it’s time to offer it again … it’s been 14 years since the last time he had this treatment”. He further noted that even if a person doesn’t get better in treatment it is an effective way of tracking their mental health status prior to release.
25Dr. Klassen employed a number of risk assessment tools in order to make an assessment of Mr. Smiley’s risk of violent recidivism. In particular, he assessed Mr. Smiley on the Psychopathy Checklist-revised (“PCL-R”) which Dr. Klassen said it was the “gold standard for measurement of psychopathy”; on the Violence Risk Appraisal Guide (“VRAG”); and on the Historical Clinic Risk (“HCR-20”).
26Dr. Klassen noted that there is no structured or actuarial instrument specifically designed to predict the likelihood of recidivism with respect to armed robbery. Nevertheless, Dr. Klassen is of the view that the VRAG and HCR-20 have utility in this respect.
27On the PCL-R, Dr. Klassen scored him as a 28 out of it possible 40 points. He said this placed Mr. Smiley on the 76th percentile. He described this as a “moderately high score”. He said individuals with scores in this range might be expected to present with difficulties in terms of supervision and treatment responsiveness.
28As concerns the VRAG, Dr. Klassen scored Mr. Smiley as a 12. This placed Mr. Smiley on the 79th percentile. He said similarly scoring individuals recidivated violently and a rate of approximately 58% over 10 years. He noted that because this data was older and that base rates of recidivism had declined that the VRAG score was “an over estimate of risk”.
29HCR-20 is a 20 item instrument. Mr. Smiley’s scores ranged from 29 to 33, depending on release conditions. There are no percentile scores available for this testing instrument. Dr. Klassen said that at the low end of this range, based on available outcome data, Mr. Smiley’s risk of violent recidivism is likely just slightly higher than that offered by the VRAG.
30Dr. Klassen concluded that Mr. Smiley’s “risk of some form of violent recidivism hovers around 50% over 10 years”. He stated further that “I am not able to make an unequivocal finding of a probability of violent recidivism”. His oral testimony expanded upon and explained his “hovers around 50%” conclusion when he said that Mr. Smiley’s risk of future violent recidivism was between 40% and 60% in the next 10 years. He explained that he used these numbers to settle on his “hovers around 50%” opinion.
LAW
31For ease of reference, I have set out all of s. 753 and 753.1 of the Code in an appendix forming part of these reasons.
Dangerous Offenders
32The most recent and leading case from the Supreme Court of Canada on the subject of dangerous offenders is R. v. Boutilier, 2017 SCC 64, [2017] 2 S.C.R. 936. In that case, the defendant had pled guilty to six criminal charges arising out of the robbery of a pharmacy. The Crown brought a dangerous offender application. The defendant took the position that s. 753 (1) of the Code was overbroad and violated s. 7 of the Charter. The defendant took the position that s. 753 (1) precluded the court from considering the offender’s future treatment prospects. The defendant also took the position that s. 753 (4.1) of the Code was overbroad and violated s. 7 of the Charter and imposed a “grossly disproportionate” punishment contrary to s. 12 of the Charter.
33A majority of the Court (8:1) dismissed the defendant’s Charter application. The Court held that an offender could not be designated dangerous unless the judge had concluded that he or she was a future threat. The future risk assessment always had to consider future treatment options.
34The legislative framework for a dangerous offender application contemplates a two stage process: a designation stage and a penalty stage. In the first stage, the designation stage, the Crown must prove beyond a reasonable doubt that the offence for which the offender has been convicted is a “serious personal injury offence” under s. 752 and the offender must constitute a threat to the life, safety or physical or mental well-being of other persons on the basis of evidence satisfying the requirements of s. 753 (1) (a)(i),(ii) or (iii); or that their failure to control their sexual impulses means that they are likely to cause injury, pain or other evil to other persons under s. 753(1)(b). If the statutory criteria under s. 753 (1)(a) or 753(1)(b) have been met then the Court must designate the defendant a dangerous offender. At the penalty stage, the judge, following s. 753 (4.1), must impose an indeterminate sentence unless “there is a reasonable expectation that a lesser measure under s. 753 (4) (b) or (c) will adequately protect the public against the commission by the offender of murder or a serious personal injury offence”: see Boutilier paras. 17-20; R. v. Steele, 2014 SCC 61, [2014] 3 S.C.R. 138 at para. 28; and R. v. Spilman, 2018 ONCA 551, [2018] O.J. 3297 (C.A.) at para. 26.
35The majority in Boutilier, relying on the Supreme Court’s judgment in R. v. Lyons, 1987 CanLII 25 (SCC), [1987] 2 S.C.R. 309, reaffirmed that s.753(1) requires that the offender: (1) be convicted for and has to be sentenced for a “serious personal injury offence”; (2) the predicate offence must be part of a “broader pattern of violence”; (3) “there is a high likelihood of harmful recidivism”; and (4) “the violent conduct is intractable”. The criteria referring to a “high likelihood of harmful recidivism” and that the “conduct is intractable” contemplate a prospective assessment of dangerousness. “Intractable” means “behaviour that the offender is unable to surmount”; see Boutilier paras. 26-27.
36While there has been some question as to whether or not the Crown needed to prove the likelihood of future violent offences beyond a reasonable doubt or only on a balance of probabilities (see Ruby et al., Sentencing (9th edition-2017) at para. 17.28), the Supreme Court in Boutilier makes it clear that the Crown must prove beyond a reasonable doubt “a high likelihood of harmful recidivism and the intractability of the violent pattern of conduct” (see Boutilier para. 46).
37Subsections 753 (4) and (4.1) represent a codification of the Supreme Court’s decision in R. v. Johnson, 2003 SCC 46, [2003] 2 S.C.R. 357. The first subsection lists the alternatives available to the sentencing judge and the second subsection codifies the exercise of the sentencing judge’s discretion required by Johnson. In order to properly exercise his or her discretion under s. 753 (4) the sentencing judge must impose the “least intrusive sentence” required to achieve the primary purpose of the scheme: see Boutilier at para. 60. The Supreme Court stated further in Boutilier that s. 753 (4.1) “does not impose an onus, rebuttable presumption, or mandatory sanctioning. Nor does it prevent a sentencing judge from considering sentencing objectives and principles. Every sentence must be imposed after an individualized assessment of all of the relevant factors and circumstances”: Boutilier at para. 71. “The sentencing judge is under an obligation to conduct a thorough inquiry that considers all of the evidence presented during the hearing in order to decide the fittest sentence for the offender. Indeed, under S. 753 (4), a long-term offender sentence remains available for dangerous offenders who can be controlled in the community in a manner that adequately protects the public from murder or a serious personal injury offence”: Boutilier at para. 76.
38The pattern of repetitive behaviour under s. 753(1)(a)(i) requires “enough of the same elements of unrestrained dangerous conduct to be able to predict that the offender will likely offend in the same way in the future… [h]owever, the offences need not be the same in every detail, that would unduly restrain the application of the section”: R. v. Hogg, 2011 ONCA 840 at para. 40; see also R. v. Brissard, 2017 ONCA 891 at para. 57. Similarity can be found in the types of offences but also in the degree of violence or aggression: see R. v. Szostak, 2014 ONCA 15 at para. 63.
39As concerns s. 753(1)(a)(ii), the persistence required involves behaviour that is enduring, continuous, obstinately persevering, interminable or sustained. As concerns “indifference” this refers to notions of disregard, lack of sympathy or empathy, callousness and coldness, lack of concern or sensitivity: see for example R. v. Williams, 2018 ONSC 2030 at para. 252 (per Hill J.).
40While the language of s. 753(1) does not expressly refer to the degree of likelihood of future recidivism required to be declared a dangerous offender, throughout the judgment in Boutilier, the Supreme Court makes it clear that in order to be declared a dangerous offender under any of the provisions of s. 753(1)(a)(i), (ii) or (iii) or under s. 753(1)(b), the Crown must prove beyond a reasonable doubt that there is a “high likelihood” or a “very high likelihood” of harmful recidivism: Boutilier at para. 26 and 65. The Supreme Court in Boutilier also reaffirmed the language from R. v. Lyons, 1987 CanLII 25 (SCC), [1987] 2 S.C.R. 309 where Justice La Forest for the majority of the Court said that “it must be established that the pattern of conduct is very likely to continue” (emphasis added). Finally, the Court in Boutilier also stated at para. 46 as follows:
In sum, a finding of dangerousness has always required that the Crown demonstrate, beyond a reasonable doubt, a high likelihood of harmful recidivism and the intractability of the violent pattern of conduct. A prospective assessment of dangerousness ensures that only offenders who pose a tremendous future risk are designated as dangerous and face the possibility of being sentenced to an indeterminate detention (emphasis added)
41Justice Molloy in R. v. R.M., [2005] O.J. 4977 at para. 70 affirmed (2007) 2007 ONCA 872, 228 C.C.C. (3d) 148 (Ont. C.A.), summarized the role of psychiatric evidence in a dangerous offender application as follows:
[i]n determining the likelihood of risk of reoffence and the possibility of controlling that risk in the community, it is relevant for the judge to take into account the expert opinion evidence of psychiatrists: R. v. Lyons at paras. 97-100. That is not to say that the trial judge is bound to accept the opinion of one psychiatrist or the other, but rather that the expert evidence is relevant to the judge's inquiry, with determinations as to the weight and reliability of that evidence left to the judge: R. v. Currie, 1997 CanLII 347 (SCC), [1997] 2 S.C.R. 260.
Long-Term Offender
42The court hearing a dangerous offender application may find that an offender is not a dangerous offender and may treat the application as one to have the offender found to be a long-term offender pursuant to the provisions of s. 753.1 (see s. 753(5)).
43The long-term offender provisions were not introduced until 1997. They followed the recommendations of a federal/provincial/territorial task force which indicated that a “lacuna existed in the law whereby serious offenders were denied the support of extended community supervision except through the parole process”: R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433 at para. 43.
44Like an indeterminate sentence imposed pursuant to the dangerous offender provisions, an LTSO order is an exceptional order and is “reserved for those individuals who will pose an ongoing threat to the public and accordingly merit enhanced sentences on preventative grounds”: R. v. Steele, 2014 SCC 61, [2014] 3 S.C.R. 138 at para. 1.
45An LTSO is a form of a conditional release which has two specific objectives: (1) protecting the public from the risk of re-offence, and (2) rehabilitating the offender and reintegrating him or her into the community: Ipeelee at para. 48.
46Section 753.1 provides, in part, that a long-term offender designation may be made where the court is satisfied that (a) it would be appropriate to impose a sentence of imprisonment of two years or more for the offence for which the offender has been convicted; (b) there is a substantial risk that the offender will reoffend; and (c) there is a reasonable possibility of eventual control of the risk in the community.
47If the Court finds an offender to be a long-term offender then the court shall impose a sentence for the offence for which the offender has been convicted which must be a minimum punishment of imprisonment for a term of two years; and order that the offender be subject an LTSO for a period that does not exceed ten years.
48In my view, “the substantial risk that the offender will reoffend” referred to in s. 753.1(1)(b) requires a substantial risk of violent reoffending to justify a long-term offender designation: R. v. Piapot (2017), 2017 SKCA 69, 355 C.C.C. (3d) 239 (Sask. C.A.). See also R. v. Ryan, [2017] O.J. 2091 (CA), a long-term offender case, where the Ontario Court of Appeal said at para. 10 that “we are satisfied that he meets the requirements of presenting a substantial risk to reoffend even if that requirement is viewed as “a high threshold” involving a substantial risk of causing serious harm to individuals”. I note that in Ryan, Dr. Klassen testified that the offender was at a “moderately high risk to reoffend” and that “absent significant intervention the [offender] presents a probability of violent re-offence”. He further opined in that case that the offender presents a “substantial risk to the community”. I will return to the issue of a “substantial risk to reoffend” in the analysis section below concerning the long-term offender issue.
ANALYSIS
The Dangerous Offender Application
49There is no doubt that the December 2016 offences meet the definition of a “serious personal injury offence”. Indeed, this was at least implicitly acknowledged by the defence when I made the assessment order under s. 752.1 which order was made on consent. Proof that an offence is a “serious personal injury offence” is not a particularly high bar to meet. It requires only proof of the use or attempted use of violence against another person in connection with an indictable offence for which the offender may be sentenced to imprisonment for 10 years or more. The December 2016 robbery offences in this case meet that definition.
50Dangerous offender applications are, in part, about predicting the likelihood of future violent recidivism. The Crown does not have to prove to a certainty that there will be violent recidivism. However, the Crown needs to prove beyond a reasonable doubt that there is a high or very high likelihood of such violent recidivism.
51As I have already stated in my review of the evidence, Dr. Klassen opined in his report and in his evidence that Mr. Smiley’s “risk of violent recidivism hovers around 50%”. He said further that “I am not able to make an unequivocal finding of probability of violent recidivism”. His oral testimony expanded upon and explained his “hovers around 50%” conclusion when he said that Mr. Smiley’s risk of future violent recidivism was between 40% and 60% in the next 10 years. He explained that he used these numbers (between 40% and 60%) to settle on his “hovers around 50%” opinion.
52For a number of reasons, I am of the view that the opinion of Dr. Klassen in this case, considered in the context of the evidence as a whole, makes the Crown’s application to have Mr. Smiley declared to be a dangerous offender a non-starter. The Crown seeks to rely upon the opinion of Dr. Klassen, characterizing his opinion concerning Mr. Smiley’s future chances of violent recidivism as being “considerable”. On the other hand, the Crown argues that the Court is not bound by the opinion of Dr. Klassen and that the Court can and should look at Mr. Smiley’s record and the evidence as a whole and conclude that the test of a high likelihood or very high likelihood of future recidivism has been met. The Crown argues that Dr. Klassen has underestimated the risk posed by Mr. Smiley and that the “hovers around 50% risk” is a “relatively conservative estimate”. The Crown submits that the Court should adopt the approach that the “the best predicator of future behaviour is past behaviour” (see the Crown’s written argument at paras. 75-76).
53I agree with the Crown that I am not bound to accept the opinion of Dr. Klassen. However, it is open to the Court to accept his evidence and to consider it in the context of the evidence as a whole. I do accept Dr. Klassen’s assessment of the risk of violent recidivism on the part of Mr. Smiley to be reasonable when I consider it in the context of the evidence as a whole. I disagree that he has underestimated the risk or that his estimate is “conservative”. Dr. Klassen is a highly experienced psychiatrist with expertise in the dangerous offender and long-term offender area. As I have already indicated, he testified that he has prepared almost 200 reports in dangerous offender/long-term offender cases. The case law is replete with his opinions in various cases. I found his approach to his work and his testimony in this case to be highly professional and reasonable. Notwithstanding that he was a witness for the Crown, he understood that his obligations were to assist the Court in a consideration of the matters before the Court.
54In its written argument before the court, the Crown noted that Dr. Klassen’s said that Mr. Smiley’s VRAG assessment score of 12 means that 58% of people with that score violently reoffend over 10 years. The Crown then says that Dr. Klassen opined that Mr. Smiley’s risk of recidivism will probably be higher in the first few years, medium in the middle of those 10 years and lower at the end of the next 10 year period. The suggestion by the Crown here is that Dr. Klassen was opining that Mr. Smiley’s chance of violent recidivism was higher than 58% (see para. 21 of the Crown’s written argument). In my view, that was not his evidence. Indeed, Dr. Klassen said that the 58% associated with Mr. Smiley’s VRAG score needed to be lowered by 10 to 15%. It is not precisely clear to me whether he meant this as a strict deduction off of the 58% (taking it to between 43 and 48%) or whether he meant that 58% number needed itself to be reduced by 10 to 15% (lowering it to 49.3 to 52.2). It doesn’t matter because I agree with Dr. Klassen’s view that I should not be overly persuaded by the “crispness of a number”. Further, regardless of how one does the calculation concerning the VRAG, Dr. Klassen clearly opined that Mr. Smiley’s risk of violent recidivism was between 40 and 60% over the next 10 years. He did say that the risk was higher at the front end and then would become lower over the course of 10 years. He was not saying that the risk was higher than 60%. He held to the view that the risk was between 40 to 60%.
55Further and importantly, Dr. Klassen said in his report that “I am not able to make an unequivocal finding of a probability of violent recidivism”. While he did not expressly explain this statement in his oral testimony I understand this statement, in the context of his evidence as a whole, to be a statement by Dr. Klassen that he could not say that Mr. Smiley’s risk of violent recidivism was more likely than not. In other words he could not say that the risk of violent recidivism was more than a 50% chance or that it was a high or a very high likelihood. I appreciate that on one occasion during his oral testimony Dr. Klassen did say that Mr. Smiley was “probably” at a “moderately high risk” to recidivate violently if he was released “tomorrow”. However, I attach limited weight to this observation given that Dr. Klassen knew that Mr. Smiley would not be released “tomorrow” nor do I find the use of the word “probably” to be particularly firm. Moreover, a fair statement of Dr. Klassen’s testimony was that he was not opining that Mr. Smiley’s risk of violently reoffending was a high likelihood or a very high likelihood.
56I consider that Dr. Klassen’s opinion makes it clear that the Crown has not proved beyond a reasonable doubt that there is a high or very high likelihood of violent recidivism in the case of Mr. Smiley. In my view, considering all of the evidence including Dr. Klassen’s opinion and Mr. Smiley’s criminal history, I consider that the view expressed by Dr. Klassen that Mr. Smiley (or a person like him) has a 40 to 60% chance of violent recidivism to be a fair and reasonable assessment. Considering the evidence as a whole, it is my view that the Crown has not proved beyond a reasonable doubt that there is a high or very high likelihood of violent recidivism by Mr. Smiley in the next 10 years. I say that for the following further reasons:
(a) The 40 to 60% assessment is rooted in accepted psychiatric and risk assessment approaches. Dr. Klassen is an experienced expert witness and he has followed the traditional psychiatric approach for making risk assessments about the future prospects of violent recidivism. In particular, he has employed the VRAG, the PCL-R and HCR-20 tests. I recognize, as does Dr. Klassen, that these tests are subjective and have their limitations. Nevertheless, as Dr. Klassen put it in his testimony “I think I would flesh that out to slightly to say that while the VRAG and the HCR are imperfect in relation to a robbery offence, they are acceptable and people with similar scores to Mr. Smiley recidivated at rates around 50 percent, between 40 and 60 percent, I think is where we sort of landed”;
(b) I note that in R. v. Brissard, 2017 ONCA 891, a pre-Boutilier decision, the Crown brought a dangerous offender application which Ontario Superior Court Justice Bruce Fitzpatrick dismissed, finding the offender to be a long-term offender. In dismissing the dangerous offender application, Justice Fitzpatrick relied in part of Dr. Klassen’s opinion in that case that there was a less than 50% likelihood of violent recidivism. The Court of Appeal dismissed the Crown’s appeal against the failure of the Superior Court Judge to declare the offender a dangerous offender with the Court of Appeal stating that “the Crown failed to prove the requisite "likelihood" element of the dangerous offender test beyond a reasonable doubt. Mr. Brissard cannot be declared a dangerous offender absent such proof”: see Brissard at paras. 69-77. Accordingly, while the facts and circumstances of the Brissard case are different than the bar, the Court of Appeal in that case accepted the proposition that the likelihood component of a dangerous offender application is not met when the likelihood of violent recidivism is found to be less than a 50% chance. In the case at bar, where the assessment which I have accepted straddles the 50% point and covers a wide range from 40 to 60%, common sense says that it cannot possibly be said that the high or very likelihood test of violent recidivism has been met. I say that recognizing not just the opinion of Dr. Klassen but also the circumstances as a whole including the criminal history of Mr. Smiley;
(c) In I have said, I have not ignored Mr. Smiley’s criminal record and his history in coming to the conclusion that I have in this case. Indeed, it is my assessment and a consideration of that record and history and the evidence as a whole, that leads me to the conclusion that the Crown has not established that there is a high or very high likelihood of violent recidivism by Mr. Smiley. Notwithstanding that Mr. Smiley was diagnosed by Dr. Klassen to have antisocial personality disorder; to be “treatment resistant”; that his supervision and management in the community is likely to pose a “real challenge”; that Mr. Smiley had the childhood that “nobody should have” as Dr. Klassen put it; that by 2010 he had spent the vast majority of his adult life in prison (approximately 14 of his 16 years as an adult) and that he had only a grade 10 education with no work skills, there are some modestly encouraging signs when one looks at the whole of the evidence. In particular, notwithstanding all the challenges surrounding Mr. Smiley as of his release from prison in 2010, he managed to live in the community for 6 years (2010 to 2016) without getting himself into the kind of serious legal trouble he had in the past. In February 2013, he did commit mischief by breaking the window of the front door at the property of his former domestic partner three weeks after they separated. He said to her at the time that he needed food and money and that he had nothing after she had thrown him out. He received a suspended sentence and was put on probation for a year. The evidence indicates that he then completed 12 months of reporting to a probation officer as he was obligated to do. The probation requirement that he do counselling was satisfied through one on one discussions with his probation officer. His probation officer noted that “client’s reporting was generally consistent, although he is quite transient and is currently living at Wilkinson Road shelter. He incurred no further charges during supervision and has no outstanding charges to this writer’s knowledge” (see volume 7 at tab 5). In 2015, he committed theft under by stealing a purse; then breaching a recognizance and committing mischief by kicking the window of a police car. He pled guilty to these offences in March 2016 and received a sentence of 30 days plus a non-reporting probation order for a year. He was on that non-reporting probation order when he committed the December 2016 offences. I understand of course that one cannot ignore, and I do not ignore, that Mr. Smiley ended just beyond that six year period with the two violent December 2016 offences and this is a serious concern. Nevertheless, the bottom line here is that he managed to go six years in the community without committing the kind of seriously violent offences he committed in the past, while living in a shelter for at least some of that time and with few, if any, community supports. When he was put on a reporting probation order, he complied and committed no further offences during that time. These facts lend some support for my view that it cannot be said that the Crown has established beyond a reasonable doubt that there is high or very high likelihood of violent recidivism by Mr. Smiley in the next ten years;
(d) Dr. Klassen is of the view that as Mr. Smiley ages his risk of violent recidivism decreases. He said that as a general proposition the prospect of violent recidivism is “quite close to low to zero or it’s a very low risk after age 50”. He said that at age 60, the risk is “really zero”. He said that this general proposition does not apply to child molesters which Mr. Smiley is not nor would it necessarily apply to serious drug addicts as I understand his evidence. While Mr. Smiley has used drugs in the past (and has told Dr. Klassen that he intends to use alcohol and marijuana in the future) and Dr. Klassen’s interview with Ms. Eldridge suggested that a desire to obtain money for drugs may have been one of the reasons behind the December 2016 offences, Dr. Klassen does not consider that Mr. Smiley has serious addiction issues. Dr. Klassen sees Mr. Smiley’s own history as supporting the general proposition that as he ages, Mr. Smiley’s prospects of committing violent offences decreases and I accept his views in this regard; and
(e) I accept the point made by Defence counsel (which Dr. Klassen also made) that the CSC Records support the proposition that as Mr. Smiley ages he is managing to be more compliant with the rules and expectations placed on him. In particular, the CSC records disclose that from 1996 to 2010 inclusive, Mr. Smiley has various incident reports in his record for everything from being in an unauthorized area of the prison to swearing at officers/guards and to having contraband in his cell. If one looks at that period of time (1996 to 2010), Mr. Smiley generally had at least five or six incidents per year and in some cases more (13 incidents in 2001). Those records need to be contrasted with his more recent incarceration. He has been incarcerated at Maplehurst for approximately two years (since late December 2016) with respect to the December 2016 offences and since that time he has had only two incidents, one in 2017 for being aggressive and disrespectful to an officer and the other in 2018 for punching a mirror.
57For the foregoing reasons, I conclude that the Crown has failed to establish beyond a reasonable doubt that Mr. Smiley has a high or very high likelihood of violent recidivism. In the circumstances, the dangerous offender application is dismissed.
The Long-Term Offender Issue
58As indicated above, the Court hearing a dangerous offender application may find that an offender is not a dangerous offender and may treat the application as one to have the offender found to be a long-term offender pursuant to the provisions of s. 753.1 (see s. 753(5)). While the Crown did not specifically seek a long-term offender order in its written submissions (other than as an alternative argument attaching to a dangerous offender declaration), the Crown did submit in oral submissions that such an order was open to the Court. It must follow that the Crown is taking the position that Mr. Smiley not only met the requirements for a dangerous offender designation, but that he also met the requirements for a long-term offender finding and I have approached this question on this basis pursuant to s. 753(5)(a).
59As outlined above, in order to declare a person a long-term offender there are three criteria that must be established: (a) it must be appropriate to impose a sentence of imprisonment of two or more years in respect of the offence before the Court; (b) there must be a substantial risk that the offender will reoffend; and (c) there must be a reasonable possibility of eventual control of the risk in the community. There is a discretion in the Court not to not to find someone to be a long-term offender even where these requirements are met.
60There is a debate in the case law and in the commentary by learned authors as to whether a long-term offender designation is even available for a non-sex offender such as Mr. Smiley. The British Columbia Court of Appeal in R. v. McLeod (1999), 1999 BCCA 347, 136 C.C.C. (3d) 492, the Saskatchewan Court of Appeal in R. v. Weasel, 2003 SKCA 131, [2003] S.J. 854, and the Nova Scotia Court of Appeal in R. v. McLean (2009), 2009 NSCA 1, 241 C.C.C. (3d) 538 have all expressly held that the long-term offender designation is available for non-sex offenders. Clayton Ruby and his learned co-authors of Sentencing (9th edition) at para. 17.85 and following argue that the long-term offender is not available for non-sex offenders.
61The Ontario Court of Appeal has upheld a long-term offender designation in at least two non-sex offender cases without having expressly addressed this issue: see R. v. Nash, [2002] O.J. 3394 and R v. Ryan, [2017] O.J. 2091.
62I find that the ratio and the decision of the Saskatchewan Court of Appeal in Weasel that s.753.1 is not limited to sex offenders persuasive. In particular, the point made in Weasel at paras. 6 and 7 that the language used in s. 753.1(2) that “the court shall be satisfied that there is a substantial risk that the offender will reoffend” would be unusual or unconventional language for Parliament to use in order to set out a complete definition of the meaning of “substantial risk that the offender will reoffend”.
63If one looks at the requirements of s. 753.1(1)(a), it is my view that it would be appropriate to sentence Mr. Smiley to two years or more in connection with the December 2016 offences. As concerns s. 753.1(1)(c), I consider that there is a reasonable possibility of the eventual control of his risk of reoffending in community. I say this based on my consideration of the record as a whole including Dr. Klassen’s views and the fact that Mr. Smiley went six years from 2010 to 2016 without committing a serious violent offence; the fact that he served a 12 month period of probation in 2013 without reoffending; the fact that the incidents of misconduct attributed to him during his incarceration fell off significantly in the last two years; and the fact that he is aging and will not likely be released anytime soon even if he was sentenced only on the December 2016 offences.
64The more difficult question on the long-term offender application is whether there is a “substantial risk” that Mr. Smiley will reoffend (s. 753.1(1)(b)). I repeat the point made in the law section above that the risk of reoffending must be a risk of reoffending violently. It is the Crown’s onus to establish this risk beyond a reasonable doubt.
65There is limited case law on the meaning “substantial risk to reoffend” within the meaning of s. 753.1. Further, the limited case law there is on this issue is conflicting.
66In R. v. Johnson, [2008] O. J. 4209, Justice Dambrot of the Superior Court heard a long-term offender application. In that case, Justice Dambrot said “I am inclined to the view that even a risk of reoffending quantified at 35 or 40%, although not a likelihood, would amount to a substantial risk of reoffending”. He went on to designate the sex offender in that case a long-term offender.
67On the other hand, Justice Nordheimer in R. v. D.J.D., [2003] considered a long-term offender application where the risk assessment tools employed by the expert in that case suggested a probability of violent recidivism over the next ten years as being between 58 or 59% at the low end and 80 or 82% at the high end. Justice Nordheimer expressed concern, among other things, about the subjectivity associated with these tools and the wide range offered to the Court as an opinion. Justice Nordheimer dismissed the long-term offender application stating, in part, as follows:
"Substantial" is defined in the Oxford English Dictionary as "of considerable importance, size or worth." If the results of these tests had simply been that there was an 80 percent or 82 percent risk of re-offending (with a small margin of error), then one might have a fair degree of comfort that there existed a substantial risk of re-offending. If, on the other hand, the results of these tests was that there was a 58 percent or 59 percent risk of re-offending, one would be considerably less certain of that conclusion, given that those findings are barely over a 50/50 risk which I, for one, would not consider to be substantial. Rather than having one or the other of these results, however, I am effectively presented with both in the guise of a rather large range. (emphasis added).
68I note as well that in Brissard, supra, Justice Bruce Fitzpatrick dismissed a dangerous offender application but did impose a long-term offender supervision order where Dr. Klassen’s opinion in that case was that there was a less than 50% likelihood of violent recidivism. The long-term offender order was not an issue in the Court of Appeal. I place limited weight on the decision of Justice Fitzpatrick that Mr. Brissard was a long-term offender as his reasons on this issue do not appear to be publicly available and I have not reviewed them.
69I do note the point made above that in R. v. Ryan, [2017] O.J. 2091 (CA), a long-term offender case, the Ontario Court of Appeal said at para. 10 that “we are satisfied that he meets the requirements of presenting a substantial risk to reoffend even if that requirement is viewed as “a high threshold” involving a substantial risk of causing serious harm to individuals”. Dr. Klassen testified in that case that the offender was at a “moderately high risk to reoffend” and that “absent significant intervention the [offender] presents a probability of violent re-offence”. He further opined in that case that the offender presents a “substantial risk to the community”.
70I also note that in R v. M.S., [2002] O.J. 444 (C.J.), Justice Evans held that where the offender had a “better than even chance” of being able to restrain his behaviour in the future, he did not meet the requirement for either a dangerous offender designation or long-term offender order. In arriving at this decision, Justice Evans seems to have interpreted s. 753.1(2)(b)(i) or (ii) as importing a likelihood component into the substantial risk to reoffend determination.
71To the foregoing review of the law comes the more general point made by the Supreme Court of Canada in Boutilier at para. 75 that
“Undoubtedly the dangerous offender designation criteria are more onerous than the long-term offender criteria. In particular, under s. 753 (1), the sentencing judge must be satisfied that “the offender constitutes a threat to life, safety or physical or mental well-being of other persons”, whereas under s 753.1, the sentencing judge must merely be satisfied that “there is a substantial risk that the offender will reoffend”. As explained above, when read properly, s. 753(1) limits the availability of an indeterminate detention under s. 753(4) and (4.1) to a narrow group of offenders that are dangerous per se. It therefore cannot be said that both regimes target the same offenders.” (emphasis added)
In my view, the foregoing passage demonstrates that the Supreme Court is making it clear to trial courts that there is an important distinction between what is required for a dangerous offender designation and a long-term offender order. In my view, the meaning of substantial risk in the context of s.753.1 does not require a likelihood of reoffending either in the sex offender or the non-sex offender context although as the Court of Appeal in Ryan, supra said it is still a “high threshold”. Let me explain why.
72First, it makes sense that the risk of recidivism for an LTSO would be less than the risk required for a dangerous offender designation. The burden of an LTSO is far less than the implications of a dangerous offender designation.
73Second, I consider that a risk described as 40 to 60% meets the ordinary meaning of the word “substantial” which has been defined in the Oxford English Dictionary as being of “considerable importance, size or worth”. Justice Nordheimer noted this definition in the D.J.D. case while coming to a different conclusion than I have in this case.
74Third, while Mr. Smiley is not a sex offender, the use of the word “likelihood” in s. 753.1(2)(b)(i) and (ii) in the sex offender context is somewhat instructive in the non-sex offender context. In my view, the reference to “likelihood” in the sex offender context in s. 753.1(2)(b)(i) and (ii) does not mean that the risk of recidivism must be likely, merely that there is a substantial risk to reoffend and that if that risk materializes, the likelihood of harm will be as set out in s. 753.1(2)(b)(i) or (ii). The same must be true in the non-sex offender context, namely that substantial risk to reoffend requires a significant prospect of reoffending but something less than a likelihood and that the risk of reoffending relates to violent reoffending where serious harm can reasonably be anticipated to be caused if that risk materializes.
75Fourth, in my view, while the assessment of the risk of violent recidivism in the case of Mr. Smiley arrived at by Dr. Klassen, which I have accepted, namely the 40 to 60% risk over the next 10 years, does not meet the high or very high likelihood required for a dangerous offender designation, it does meet the requirement of a substantial risk of reoffending under s. 753.1. I say this relying on the opinion of Dr. Klassen and my consideration of the evidence as a whole and my consideration of the meaning of substantial risk to reoffend. Further and in particular, Mr. Smiley committed five robberies in the 1990’s including two as a youth. Four of those five robberies involved a firearm or an imitation firearm. As a result, he was imprisoned for most of the time between 1995 and 2010. He committed two further robberies in 2016 (i.e. the December 2016 offences). While the December 2016 offences were less violent than his earlier robberies, they did involve Mr. Smiley seeking to have his victims believe he had a weapon and he tied one of the victims up and left her in a walk-in cooler. Further, it can reasonably be said that if Mr. Smiley did recidivate violently, he is likely to cause serious harm to his victims.
76The fact that Mr. Smiley went six years without being charged with a violent robbery is positive and gives some reasonable basis for cautious and modest optimism that he will not commit similar offences again. However, considering the evidence as a whole including the fact that he is “treatment resistant”, has a limited education, has few work skills, and Dr. Klassen’s opinion that his supervision and management in the community is likely to pose a “real challenge”, there remains a substantial risk that he will reoffend in my view. In my view, the requirements for a long-term offender supervision order are met in this case and I will exercise my discretion to impose such an order in this case.
CONCLUSION
77The focus of both counsel’s respective submissions was on the question of whether Mr. Smiley was a dangerous offender or a long-term offender or neither. For example, no case law was referred to by either party on the appropriate length of sentence for the December 2016 offences if I determined that Mr. Smiley was not a dangerous offender. Now that I have determined that Mr. Smiley is not a dangerous offender but is long-term offender, I will give the parties an opportunity to make further brief submissions on the length of sentence I should impose for the December 2016 offences and the length of the LTSO and any other related submissions they may wish to make.
Released: January 24, 2019. Amended Reasons with corrections for typographical errors released February 7, 2019.
Signed: Justice Paul F. Monahan
Appendix
(S. 753 and 753.1)
753 (1) On application made under this Part after an assessment report is filed under subsection 752.1(2), the court shall find the offender to be a dangerous offender if it is satisfied
(a) that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (a) of the definition of that expression in section 752 and the offender constitutes a threat to the life, safety or physical or mental well-being of other persons on the basis of evidence establishing
(i) a pattern of repetitive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a failure to restrain his or her behaviour and a likelihood of causing death or injury to other persons, or inflicting severe psychological damage on other persons, through failure in the future to restrain his or her behaviour,
(ii) a pattern of persistent aggressive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a substantial degree of indifference on the part of the offender respecting the reasonably foreseeable consequences to other persons of his or her behaviour, or
(iii) any behaviour by the offender, associated with the offence for which he or she has been convicted, that is of such a brutal nature as to compel the conclusion that the offender’s behaviour in the future is unlikely to be inhibited by normal standards of behavioural restraint; or
(b) that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (b) of the definition of that expression in section 752 and the offender, by his or her conduct in any sexual matter including that involved in the commission of the offence for which he or she has been convicted, has shown a failure to control his or her sexual impulses and a likelihood of causing injury, pain or other evil to other persons through failure in the future to control his or her sexual impulses.
(1.1) If the court is satisfied that the offence for which the offender is convicted is a primary designated offence for which it would be appropriate to impose a sentence of imprisonment of two years or more and that the offender was convicted previously at least twice of a primary designated offence and was sentenced to at least two years of imprisonment for each of those convictions, the conditions in paragraph (1)(a) or (b), as the case may be, are presumed to have been met unless the contrary is proved on a balance of probabilities.
(2) An application under subsection (1) must be made before sentence is imposed on the offender unless
(a) before the imposition of sentence, the prosecutor gives notice to the offender of a possible intention to make an application under section 752.1 and an application under subsection (1) not later than six months after that imposition; and
(b) at the time of the application under subsection (1) that is not later than six months after the imposition of sentence, it is shown that relevant evidence that was not reasonably available to the prosecutor at the time of the imposition of sentence became available in the interim.
(3) Notwithstanding subsection 752.1(1), an application under that subsection may be made after the imposition of sentence or after an offender begins to serve the sentence in a case to which paragraphs (2)(a) and (b) apply.
(4) If the court finds an offender to be a dangerous offender, it shall
(a) impose a sentence of detention in a penitentiary for an indeterminate period;
(b) impose a sentence for the offence for which the offender has been convicted — which must be a minimum punishment of imprisonment for a term of two years — and order that the offender be subject to long-term supervision for a period that does not exceed 10 years; or
(c) impose a sentence for the offence for which the offender has been convicted.
(4.1) The court shall impose a sentence of detention in a penitentiary for an indeterminate period unless it is satisfied by the evidence adduced during the hearing of the application that there is a reasonable expectation that a lesser measure under paragraph (4)(b) or (c) will adequately protect the public against the commission by the offender of murder or a serious personal injury offence.
(4.2) If the application is made after the offender begins to serve the sentence in a case to which paragraphs (2)(a) and (b) apply, a sentence imposed under paragraph (4)(a), or a sentence imposed and an order made under paragraph 4(b), replaces the sentence that was imposed for the offence for which the offender was convicted.
(5) If the court does not find an offender to be a dangerous offender,
(a) the court may treat the application as an application to find the offender to be a long-term offender, section 753.1 applies to the application and the court may either find that the offender is a long-term offender or hold another hearing for that purpose; or
(b) the court may impose sentence for the offence for which the offender has been convicted.
753.1 (1) The court may, on application made under this Part following the filing of an assessment report under subsection 752.1(2), find an offender to be a long-term offender if it is satisfied that
(a) it would be appropriate to impose a sentence of imprisonment of two years or more for the offence for which the offender has been convicted;
(b) there is a substantial risk that the offender will reoffend; and
(c) there is a reasonable possibility of eventual control of the risk in the community.
(2) The court shall be satisfied that there is a substantial risk that the offender will reoffend if
(a) the offender has been convicted of an offence under section 151 (sexual interference), 152 (invitation to sexual touching) or 153 (sexual exploitation), subsection 163.1(2) (making child pornography), 163.1(3) (distribution, etc., of child pornography), 163.1(4) (possession of child pornography) or 163.1(4.1) (accessing child pornography), section 170 (parent or guardian procuring sexual activity), 171 (householder permitting sexual activity), 171.1 (making sexually explicit material available to child), 172.1 (luring a child) or 172.2 (agreement or arrangement — sexual offence against child), subsection 173(2) (exposure) or section 271 (sexual assault), 272 (sexual assault with a weapon) 273 (aggravated sexual assault) or 279.011 (trafficking — person under 18 years) or subsection 279.02(2) (material benefit — trafficking of person under 18 years), 279.03(2) (withholding or destroying documents — trafficking of person under 18 years), 286.1(2) (obtaining sexual services for consideration from person under 18 years), 286.2(2) (material benefit from sexual services provided by person under 18 years) or 286.3(2) (procuring — person under 18 years), or has engaged in serious conduct of a sexual nature in the commission of another offence of which the offender has been convicted; and
(b) the offender
(i) has shown a pattern of repetitive behaviour, of which the offence for which he or she has been convicted forms a part, that shows a likelihood of the offender’s causing death or injury to other persons or inflicting severe psychological damage on other persons, or
(ii) by conduct in any sexual matter including that involved in the commission of the offence for which the offender has been convicted, has shown a likelihood of causing injury, pain or other evil to other persons in the future through similar offences.
(3) If the court finds an offender to be a long-term offender, it shall
(a) impose a sentence for the offence for which the offender has been convicted, which must be a minimum punishment of imprisonment for a term of two years; and
(b) order that the offender be subject to long-term supervision for a period that does not exceed 10 years.
(3.1) The court may not impose a sentence under paragraph (3)(a) and the sentence that was imposed for the offence for which the offender was convicted stands despite the offender’s being found to be a long-term offender, if the application was one that
(a) was made after the offender begins to serve the sentence in a case to which paragraphs 753(2)(a) and (b) apply; and
(b) was treated as an application under this section further to the court deciding to do so under paragraph 753(5)(a).
(6) If the court does not find an offender to be a long-term offender, the court shall impose sentence for the offence for which the offender has been convicted.
