Court of Appeal for Ontario

Date: June 15, 2018

Docket: C59188

Judges: Rouleau, Watt and Brown JJ.A.

Between

Her Majesty the Queen Respondent

and

Derek Norman Spilman Appellant

Counsel

Derek Norman Spilman, acting in person

Amy Ohler, appearing as duty counsel

Lorna Bolton, for the respondent

Heard

January 9, 2018

Appeal

On appeal from the sentence imposed on July 22, 2014 by Justice André L. Guay of the Ontario Court of Justice, with reasons reported at 2014 ONCJ 373.

Reasons for Decision

Watt J.A.:

Introduction

[1] Not all dangerous offenders are sentenced to detention in a penitentiary for an indeterminate period.

[2] Derek Norman Spilman is a dangerous offender. A judge concluded that there was a reasonable expectation that a measure lesser than an indeterminate sentence would adequately protect the public against violent recidivism by Spilman. And so the judge sentenced Spilman ("the appellant") to imprisonment for 10 years[1] and ordered that he be subject to long-term supervision for a further period of 10 years.

[3] The appellant says that the custodial portion of his sentence – 10 years less credit for pre-disposition custody – is unfit and should be reduced. These reasons explain why I disagree and would dismiss the appeal.[2]

The Background Facts

The Predicate Offence

[4] To locate the claim of error in its proper setting, some brief background about the predicate offence, as well as the basis for the dangerous offender finding and the sentence imposed is necessary.

[5] The appellant was tried by a judge of the Ontario Court of Justice on an information containing a single serious personal injury offence – assault causing bodily harm – and three counts of breaching a recognizance entered into under s. 810.2 of the Criminal Code.

[6] The offences all arise out of the same circumstances. An evening of drinking with the complainant. More drinking at a bar. Altercations between the appellant and others at the bar. A severe beating of the appellant by two other men. Then a return to the complainant's home. There the appellant, an invited guest, beat and kicked his host, leaving her with cuts, bruises and nerve damage to the right side of her face.

The Dangerous Offender Proceedings

[7] The Crown obtained the consent necessary to institute dangerous offender proceedings. The hearing judge received extensive written materials as well as the reports and testimony of two experienced forensic psychiatrists. Both doctors concluded that the appellant satisfied the statutory criteria for designation as a dangerous offender. However, they differed about whether there was a reasonable expectation that a sentence other than imprisonment in a penitentiary for an indeterminate period would adequately protect the public against the appellant's violent recidivism.

The Dangerous Offender Finding

[8] The hearing judge was satisfied beyond a reasonable doubt that the appellant met the requirements of each subparagraph in s. 753(1)(a) of the Criminal Code for designation as a dangerous offender. The judge concluded:

A review of the evidence, including Derek Spilman's criminal record and the various reports submitted with respect to that record, clearly establishes a pattern of repetitive behaviour, which includes the offence for which he is being sentenced, which shows a failure to restrain his behaviour and the likelihood that this behaviour will in the future cause death or injury to other persons or inflict on them severe psychological damage.

In Derek Spilman's case, that behaviour involves repeated acts of physical violence and aggression committed against others since he was 15 years of age. Common to many of these assaults is the emotional and apparent psychological consternation of the victims resulting from the unrestrained nature of Derek Spilman's attacks on them.

I find that Derek Spilman's behaviour, commencing at the age of 15, and ending with his assault on C.F., constitutes a pattern of persistent, aggressive behaviour which shows a substantial degree of indifference on his part to the reasonably foreseeable consequences to other persons of that behaviour.

I also find that Derek Spilman's behaviour during the course of the offence committed by him against C.F. was of such a brutal nature as to compel the conclusion that his future behaviour would unlikely be inhibited by normal standards of behavioural restraint.

The Submissions on Sentence

[9] Crown counsel at the dangerous offender hearing (not Crown counsel on appeal) sought a sentence of detention in a penitentiary for an indeterminate period. He emphasized that an indeterminate sentence was the presumptive sentence for dangerous offenders. He advocated that the evidence of Dr. Pearce, whom he had called as a witness for the Crown, should be preferred over that of Dr. McMaster who was called as a defence witness on the issue of the adequacy of any lesser sentence to protect the public against future violent recidivism by the appellant. In the alternative, the Crown sought a determinate sentence of 3-4 years followed by long-term supervision order, though Crown counsel noted the custodial term "might … [be] even longer based on the evidence you've heard."

[10] Counsel for the appellant at the hearing (not duty counsel) sought a sentence of time served, and, in the alternative, a three month fixed-term sentence of imprisonment followed by long-term supervision. He urged the hearing judge to prefer the expert opinion of Dr. McMaster who concluded that such a blended sentence would adequately protect the public against future violent recidivism by the appellant.

The Reasons for Sentence

[11] In his reasons for sentence, the hearing judge preferred the testimony of Dr. McMaster to that of Dr. Pearce.

[12] The hearing judge observed that both risk and risk management were contextual. Risk management depended upon treatment during the custodial portion of the sentence and supervision thereafter. He noted the expert evidence suggested a significant decrease in the risk of violent recidivism beginning at age 45. He concluded that simply because the appellant's condition would require careful monitoring and supervision over a period of 10-15 years was not a reason to conclude that the eventual supervision of the appellant in the community was not an appropriate legal response.

[13] The hearing judge considered that the appellant was more likely to receive and benefit from more services if sentenced to a lengthy term of imprisonment followed by long-term supervision than he would if he were to receive an indeterminate sentence. The failure of the appellant to benefit from prior programs was, the judge concluded, attributable to the length of earlier sentences not the inefficacy of the programs themselves.

[14] The hearing judge also considered that the appellant's conduct in pre-disposition custody supported the conclusion that he was capable of controlling his violent impulses and nature, if motivated to do so. That said, the hearing judge was not satisfied that a sentence of imprisonment for a fixed-term alone, without community supervision, would adequately protect the public.

[15] In the end, the hearing judge settled on the blended sentence option of s. 753(4)(b) as the appropriate disposition. He explained:

While the process of change has begun with Derek Spilman, the time remaining under appropriate sentence for his offence, the assault causing bodily harm of C.F., after credit is given for pre-sentence custody, would be insufficient to allow him satisfactorily to deal with his violence and substance abuse issues. And, in fact, the – what both psychiatrists have concluded about his substantial risk to commit that serious violent offence within the next 7 or 8 years. I also believe, on the basis of the evidence which I heard, that there is a reasonable expectation that the lesser sentence measure provided under s. 753(4)(b) of the Code will protect the public against the commission by the offender of murder or a serious personal injury offence.

In light of the evidence adduced at this hearing, it would be appropriate then to impose on Derek Spilman, for the offence of assault causing bodily harm on C.F., a sentence of 10 years of custody, together with a long term supervision order of 10 years. Bearing in mind s. 719(3.1) of the Code, and the fact that the offence of assault causing bodily harm on C.F. was committed while Derek Spilman was bound by a recognizance made pursuant to s. 810.2 of the Code, I allow Derek Spilman a credit for time served in pre-sentence custody calculated on a one for one day basis.

The Grounds of Appeal

[16] The appellant challenges the fitness of the custodial portion of the blended sentence imposed upon him. He says that the hearing judge failed to properly apply the principles of sentencing of Part XXIII of the Criminal Code in determining the length of the custodial portion of the sentence. The quantum of the custody component of the blended sentence was not, as it should have been, in accordance with the principle of proportionality, but was determined by the judge's assessment of how long the appellant should be in custody to complete correctional programs such as anger management prior to his release into the community under long-term supervision.

[17] As an additional submission, the appellant says that the hearing judge erred in his calculation of the credit the appellant should receive for pre-disposition custody.

The Fitness of the Sentence

[18] The appellant begins with a reminder that, at bottom, Part XXIV of the Criminal Code is concerned with sentencing. And as a sentencing provision, as the authorities make clear, the principles of sentencing in Part XXIII, especially ss. 718-718.2, apply to dangerous offender proceedings. Among those principles is the fundamental principle of proportionality in s. 718.1.

[19] The application of the principles in Part XXIII, especially the fundamental principle of proportionality, even according primary emphasis to denunciation, deterrence and separation of a dangerous offender from society to ensure its protection, cannot sustain imposition of the custodial component of the blended sentence imposed here. Quite simply, imposition of the maximum sentence in the circumstances of this case is disproportionate to the gravity of the offence and the degree of responsibility of the appellant as the offender who committed it. Concern for the appellant's rehabilitation does not justify a departure from the fundamental principles of sentencing.

[20] The respondent counters with a submission that no intervention with the sentence imposed at trial is warranted.

[21] According to the respondent, the deference due to sentencing decisions under Part XXIII continues in connection with sentencing decisions under Part XXIV. In particular, in the selection of sentencing dispositions under s. 753(4). No less stringent standard of review than that mandated by R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089 applies when the sentence under review is that imposed in dangerous offender proceedings.

[22] The respondent accepts that the provisions of Part XXIII, in particular ss. 718-718.2, apply to sentencing dangerous offenders under Part XXIV. But these principles cannot be transported without regard to the context of Part XXIV. After all, a dangerous offender designation has been made, not simply a conviction recorded for the predicate offence. The purpose of the sentence is to ensure the public is adequately protected against the likelihood of violent recidivism by one with an established record of violence. And that is very different from the purpose of sentencing under Part XXIII.

[23] In this case, the respondent says, the custodial sentence imposed was supported by expert evidence accepted by the hearing judge, which suggested that the appellant required a lengthy sentence to ensure his completion of rehabilitative programs prior to supervision in the community. To do otherwise would put the safety of the community at risk during the period of long-term supervision. In any event, the respondent argues, the selection of a 10 year sentence enured to the benefit of the appellant. After all, the only other sentencing alternative was a sentence of detention in a penitentiary for an indeterminate period.

The Governing Principles

[24] Dangerous offender proceedings are sentencing proceedings. But unlike other sentencing proceedings, dangerous offender proceedings entail a two-stage process.

[25] To begin, the designation stage. This involves and requires a determination of whether the evidence adduced on the hearing satisfies the requirements of s. 753(1) of the Criminal Code for the offender to be designated a dangerous offender: R. v. Boutilier, 2017 SCC 64, [2017] 2 S.C.R. 936, at para. 14.

[26] To obtain a designation of dangerousness resulting from the offender's violent behaviour, the Crown must prove beyond a reasonable doubt that:

i. the offence of which the offender has been convicted – the predicate offence – is a "serious personal injury offence" as defined in s. 752; and

ii. the offender must represent a threat to the life, safety or physical or mental well-being of other persons on the basis of evidence establishing a violent pattern of conduct within ss. 753(1)(a) or (b).

See, Boutilier, at paras. 17-18.

[27] The appellant devoted little time to contesting his designation as a dangerous offender.[3] I see no reason to disturb that finding.

[28] The second stage of the dangerous offender regime – the penalty stage – has to do with the sentencing of those found to be dangerous offenders. As in all sentencing proceedings, it is incumbent on the hearing judge to apply the principles and mandatory guidelines put in place by ss. 718-718.2 of Part XXIII of the Criminal Code: Boutilier, at paras. 53, 61 and 63. Parliament has decided that, for individuals designated as dangerous offenders, protection of the public is an enhanced sentencing objective. However, it does not follow from the mere enhanced place of protection of the public that this objective forecloses all others in the sentencing decision. It remains necessary to evaluate all the circumstances: Boutilier, at para. 56.

[29] Section 753(4) lists three sentencing dispositions available to the hearing judge for those found to be dangerous offenders:

i. detention in a penitentiary for an indeterminate period;

ii. a sentence of imprisonment of at least two years for the predicate offence followed by a period of long-term supervision of not more than 10 years; or

iii. a sentence for the predicate offence.

[30] Section 753(4.1) provides guidance on how hearing judges can properly exercise their discretion, in accordance with the applicable objectives and principles of sentencing, to impose the appropriate sentence to manage the established threat that the offender poses to society. The provision requires the judge to examine the evidence adduced at the hearing to determine whether there is a reasonable expectation that a lesser measure – a conventional fixed-term sentence or a fixed-term sentence of at least two years followed by a long-term supervision order – will adequately protect the public against the risk that the offender will commit murder or a serious personal injury offence. The hearing judge must first exhaust the less coercive sentencing options to address this risk of recidivism before imposing a sentence of indeterminate detention in a penitentiary: Boutilier, at para. 69.

[31] The arguments advanced by duty counsel require consideration of two further issues of principle, which I would paraphrase as whether, in determining the length of the custodial portion of a composite sentence imposed under s. 753(4)(b), a hearing judge:

i. is restricted to the range of sentence that would be appropriate for the offender upon conviction of the predicate offence, but in the absence of any dangerous offender proceedings; and

ii. may consider the time reasonably necessary for the offender to complete available rehabilitative programs in the penitentiary.

[32] As I will explain, I am satisfied that in determining the length of the fixed-term custodial component of a composite sentence under s. 753(4)(b), the hearing judge is not restricted to imposing a term of imprisonment that would be appropriate on conviction of the predicate offence but in the absence of a dangerous offender designation. The hearing judge must take into account the statutory limits of the offence for which sentence is being imposed, the paramount purpose of public protection under Part XXIV, and other applicable sentencing principles under ss. 718-718.2. This analysis may justify fixed term sentences lengthier than those appropriate outside the dangerous offender context. I reach this conclusion for six reasons.

[33] First, Parliament has determined that protection of the public is an enhanced sentencing objective for that class of offenders who have been designated as dangerous in light of their previous, current and likely future conduct. Emphasis on the public safety component is consistent with the fact that public protection is the general purpose of Part XXIV of the Criminal Code: Boutilier, at para. 56; R. v. Steele, 2014 SCC 61, [2014] 3 S.C.R. 138, at para. 27. This enhanced objective of public safety distinguishes proceedings under Part XXIV from those under Part XXIII and is of sufficient cogency to warrant sentencing dispositions beyond those ordinarily available for the predicate offence: see ss. 753(4)(a) and (b).

[34] Second, a related point. The context provided by s. 753(4)(a) – the provision permitting sentences of indeterminate detention – makes it clear that hearing judges have an increased flexibility under the dangerous offender regime to construct a sentence that emphasizes protection of the public, but is not concordant with the sentencing options available upon conviction of the predicate offence. A sentence of indeterminate detention represents a determination that the relative importance of the sentencing objectives of rehabilitation, deterrence and retribution are greatly attenuated in the case at hand and the objective of prevention correspondingly increased: R. v. Lyons, [1987] 2 S.C.R. 309, at p. 329. We learn from Boutilier that a sentence of indeterminate detention is not an exception to the principles of sentencing. To the contrary, such a sentence is one mandated by their proper application: Boutilier, at para. 55. If a proper application of sentencing principles in the dangerous offender setting under s. 753(4) can justify a sentence of indeterminate detention – a sentencing disposition not available in the traditional sentencing context – it would seem logically to follow that those same principles can also justify less onerous fixed-term sentences that extend beyond what would be appropriate outside the dangerous offender setting.

[35] Third, nothing in the plain language of s. 753(4)(b), or for that matter of s. 753(4)(c), indicates that the provisions do not share the general purpose of Part XXIV sentences. The plain language of s. 753(4)(c) – "impose a sentence for the offence for which the offender has been convicted" – requires nothing more than adherence to sentencing options provided for the predicate offence – any minimum and the maximum term of imprisonment.[4] That wording does not preclude hearing judges from placing enhanced focus on public safety when imposing a sentence.

[36] Fourth, the requirement that the custodial component of a composite sentence under s. 753(4)(b) "must be a minimum punishment of imprisonment for a term of two years" signals a departure from the traditional sentencing principles of Part XXIII.

[37] Fifth, conviction of a predicate "serious personal injury offence" is an essential pre-condition to designation of the offender as a dangerous offender, but it is not, as it is in conventional sentencing proceedings, the offence for which the offender is being sentenced. The appellant is being sentenced not only as a person who committed the predicate offence, but because he is a dangerous offender, albeit a person who committed the predicate offence among other things. The different focal points of the sentencing proceedings puts paid to the claim that the length of the custodial term in a composite sentence in dangerous offender proceedings should mirror that in stand-alone proceedings for the predicate offence. To do so would be to render the dangerous offender finding redundant.

[38] Finally, the available sentencing options under ss. 753(4)(b) and (c) should be interpreted broadly and generously. After all, they represent the only available alternatives to ensure the protection of the public from dangerous offenders other than the most extreme form of preventive sentence that our law permits – detention in a penitentiary for an indeterminate period: Boutilier, at para. 3. To interpret the provisions of s. 753(4)(b) in this way, that is to say, by imposition of a custodial term within the sentencing options available for the predicate offence but beyond the range appropriate in the absence of a dangerous offender designation, permits the hearing judge to impose the least intrusive sentence required to achieve the primary purpose of Part XXIV, yet reserves indeterminate sentences for those for whom no other measure will adequately protect the public: Boutilier, at para. 60.

[39] I turn next to the question of whether the hearing judge may consider the time reasonably necessary for the dangerous offender to complete available rehabilitative programs in determining the length of the custodial component of the composite sentence under s. 753(4)(b). For reasons that I will develop, I am satisfied that a hearing judge is entitled to take into account access to rehabilitative programming in a penitentiary in deciding upon the length of the custodial component of a composite sentence under s. 753(4)(b).

[40] No one gainsays the relevance of evidence about a dangerous offender's prospects for treatment to the determination of the sentencing disposition required to adequately protect the public against the prospect of future violent recidivism: Boutilier, at para. 45. It is also well settled that outside the dangerous offender environment, sentencing judges are disentitled to determine the length of a sentence of imprisonment solely by reference to the period of time necessary to complete essential or recommended rehabilitative programs: see, for example, R. v. M.B., 36 C.C.C. (3d) 573 (Ont. C.A.), at pp. 574-575; R. v. Legere, 22 O.R. (3d) 89 (C.A.), at p. 101.

[41] Implicit if not explicit in the appellant's complaint is that to take cognizance of the time needed for rehabilitative treatment or programs in a penitentiary in fixing the length of the custodial component of composite sentence results in the unwarranted extension of the appropriate range of sentence, and does not accord the fundamental principle of the proportionality its proper due.

[42] As it seems to me, this argument assumes that the range of sentence appropriate for the predicate offence outside the dangerous offender regime provides the benchmark against which to measure sentences imposed under ss. 753(4)(b) or (c) within Part XXIV. But, as we have already seen, these are not comparable regimes. The submission fails to give effect to the indelible fact that the offender has been designated a dangerous offender and to the enhanced sentencing objective of protection of the public which is the focus of Part XXIV. Rather than comparing the sentence imposed to the "appropriate" sentence outside the dangerous offender context, the relevant question should be whether the hearing judge has reasonably "assess[ed] the relative importance of the sentencing objectives in [a] particular case": Boutilier, at para. 55.

[43] Second, accounting for a dangerous offender's access to rehabilitative programs within the federal correctional system is consistent with the primary purpose of the dangerous offender sentencing provisions in Part XXIV: protection of the public. Facilitating access to treatment or other rehabilitative programs factors into the hearing judge's decision about whether there is a reasonable expectation that a sentence other than detention in a penitentiary for an indeterminate period will adequately protect society from the risk of future violent recidivism.

[44] This point is well made in R. v. Hopley, 2015 BCCA 499, 380 B.C.A.C. 160. The appellant was found to be a long-term offender. The hearing judge imposed a composite sentence under s. 753.1(3). Hopley appealed his sentence on the basis that he had not been given adequate credit for the time he had spent in pre-disposition custody. Central to the decision of the hearing judge was the need for Hopley to have access to rehabilitative programs in the penitentiary before the long-term supervision order began. The British Columbia Court of Appeal dismissed the appeal and made the following observations:

Sentences under Part XXIV of the Code are structurally different and have a different focus than those under Part XXIII of the Code. Sentences under Part XXIII draw upon the principles and purposes of sentencing in ss. 718, 718.1 and 718.2 to determine the scope of the "circumstances" in s. 719(3.1) that would justify enhanced credit. The principles and objectives of sentencing set out in ss. 718, 718.1 and 718.2 must also be considered in determining if a long-term offender order should be imposed (see R. v. Johnson, 2003 SCC 46 at para. 28 for a discussion in the dangerous offender context), however, the principal focus of sentences under Part XXIV is on the protection of the public. With respect to a long-term offender order, the protection of the public is sought to be achieved by reducing the offender's risk through programming and treatment while serving the determinate sentence in order to facilitate the offender's supervised reintegration into the community. [Emphasis added.]

The ultimate sentence, including the effective sentence and its adjustment for pre-sentence custody at the lower rate, carefully balanced all the relevant considerations of Mr. Hopley's antecedents, his ongoing sentencing needs, and the paramount objective of the protection of the public from Mr. Hopley's high risk to reoffend against children. The judge found that it was unlikely Mr. Hopley's substantial risk to reoffend would be sufficiently reduced to a level that could be managed in the community without a lengthy period of incarceration, during which it was hoped that he would successfully complete the high intensity Sex Offender Program or alternatively have his risk to reoffend reduced through the aging process.

The overarching objective of the protection of the public, through the formulation of a determinate period of imprisonment adjusted for credit for pre-sentence custody at the lower rate in order to facilitate the offender's supervised reintegration into the community, distinguishes this case from R. v. Gazeley, 2006 BCCA 240, 210 C.C.C. (3d) 218. In this case, the judge's discretionary application of the lower credit rate for the qualitative rationale, and impliedly for the quantitative rationale, was justified through a principled analysis that focused on the objective of the public's protection.

See, Hopley, at paras. 59, 63 and 64. In connection with the use of a reduced rate of credit for pre-disposition custody to achieve this purpose, see also R. v. Cote, 2015 SKCA 52, 457 Sask. R. 237, at paras. 78-81; and R. v. D.(E.E.), 2007 SKCA 99, 304 Sask. R. 192, at para. 74.

[45] Third, imposition of a fixed-term custodial sentence that accounts for access to rehabilitative programs in a penitentiary at the front end of a composite sentence under s. 753(4)(b) may also allow a hearing judge to avoid imposition of an unnecessary sentence of indeterminate detention with its profoundly devastating impact on the dangerous offender: Lyons, at p. 339.

[46] To illustrate, take the facts of R. v. Walters, 2013 ONSC 6551.

[47] Walters was convicted of criminal harassment and designated a dangerous offender. His counsel sought a four to six month sentence in a reformatory in addition to three years of pre-disposition custody, prior to commencement of a ten year long-term supervision order. But expert evidence indicated that Walters required access to high intensity sexual assault programs only available in the penitentiary absent which he was at risk to reoffend.

[48] The hearing judge imposed a two year penitentiary sentence followed by a ten year long-term supervision order. She refused to "compare the sentence to be imposed in the case with one that should be imposed in a 'non-dangerous' offender case": Walters, at para. 59. The hearing judge accepted the evidence that Walters required access to programming only available in the penitentiary and tailored the sentence accordingly.

[49] On appeal, this court upheld the hearing judge's decision in brief reasons which, in their relevant part, are:

We are satisfied that the trial judge properly approached her task of sentencing the appellant, after he had been found a dangerous offender, in a manner that emphasized the least intrusive sentence required to achieve the primary purpose of the statutory scheme: R. v. Boutilier, 2017 SCC 64, [2017] 2 S.C.R. 936, at para. 60. In particular, the trial judge had regard to the need for the appellant to be in a penitentiary setting in order to access necessary "high intensity sexual assault programs". The trial judge determined this to be necessary treatment to address the significant threat posed by the appellant to the community. [Emphasis added.]

See, R. v. Walters, 2018 ONCA 391, at para. 13. This court reached a similar conclusion in R. v. McCauley, 187 O.A.C. 139, at paras. 3-5. See also, R. v. Edwards, 2008 ONCA 414, 237 O.A.C. 40, at paras. 18-22; R. v. Wilton, 2016 SKCA 131, at paras. 53-54.

[50] Had the hearing judge in Walters been prohibited from fashioning a sentence responsive to Walters' need for treatment in the penitentiary, she may well have been forced to impose a sentence of indeterminate detention under s. 753(4)(a). The unfairness to Walters would have been manifest. He would have faced, at a minimum, a seven year term of imprisonment before being entitled to a parole hearing under s. 761(1) of the Criminal Code, even though no evidence at the hearing suggested that a sentence of that length was necessary to safeguard the public. This outcome would have contradicted the Supreme Court's clear guidance in Boutilier, at para. 65, and in R. v. Johnson, 2003 SCC 46, [2003] 2 S.C.R. 357, at para. 44, that courts should impose "an indeterminate period of detention, if, and only if, an indeterminate sentence is the least restrictive means by which to reduce the public threat posed by the offender to an acceptable level."

[51] For these reasons, I am satisfied that when imposing a sentence under ss. 753(4)(b) or (c), a hearing judge may impose a fixed-term sentence that exceeds the appropriate range in the non-dangerous offender context, to ensure the offender has access to treatment programs in a penitentiary. The length of the sentence imposed, however, should be subject to three constraints.

[52] First, the punishment provisions for the predicate offence. Any custodial sentence imposed as a component of a composite sentence under ss. 753(4)(b) or as a standalone disposition under s. 753(4)(c), cannot exceed the maximum term of imprisonment for the predicate offence.

[53] Second, the sentencing objectives, principles and factors in ss. 718-718.2. While factors such as the degree of responsibility of the offender and the gravity of the offence play a lesser role in determining a sentence under Part XXIV, these considerations cannot be entirely ignored. Even where their significance is attenuated, they prevent the imposition of lengthy fixed-term sentences that are entirely disconnected from the circumstances of the offence giving rise to the sentencing proceedings.

[54] Third, the length of sentence imposed must be responsive to evidence adduced at the hearing. The evidence about treatment programs should be specific, preferably indicating an approximate length or range of time within which the offender may be expected to complete the programming said to be necessary to protect the public. There must be a clear nexus between that programming and future public safety, sufficient to support a "reasonable expectation" that the overall sentence will "adequately protect the public against the commission by the offender of murder or a serious personal injury offence": s. 753(4.1). And the evidence must account for the offender's "amenability to treatment and the prospects for the success of treatment in reducing or containing the offender's risk of reoffending": R. v. Little, 2007 ONCA 548, 225 C.C.C. (3d) 20, at para. 40.

The Principles Applied

[55] For the brief reasons that follow, I would not interfere with the fixed-term custodial sentence imposed by the hearing judge. After credit for time spent in pre-disposition custody, the term of imprisonment in a penitentiary was for slightly less than 7 years.

[56] To begin, for the reasons expressed above, I do not accept the submission advanced by the appellant that the custodial term of a composite sentence authorized by s. 753(4)(b) should be equivalent or near equivalent in length to the sentence that would be appropriate for the predicate offence standing alone. Nor did the hearing judge err in principle by having regard for the appellant's need for rehabilitative programming in the penitentiary in determining the fixed term of imprisonment to impose.

[57] The hearing judge considered the available programs in the penitentiary to be necessary to address the significant threat the appellant posed to the community. Evidence was given about the availability of these programs and their suitability to address the root causes of the appellant's recidivism. And there was expert evidence about the period during which such programming would be required so as not to put at risk public safety during the period of long-term supervision. In the end, the hearing judge settled upon a composite sentence that he was satisfied would adequately protect the public against the appellant's future commission of murder or a serious personal injury offence. It was the less intrusive of the only viable sentencing options, the other being a sentence of detention in a penitentiary for an indeterminate period. I am not prepared to say that he erred in doing so.

Pre-Sentence Custody

[58] Duty counsel submits that the hearing judge erred by refusing to award the appellant enhanced credit for presentence custody. The hearing judge relied on s. 719(3.1) of the Criminal Code to justify awarding credit on a 1:1 basis. Following the appellant's hearing, s. 719(3.1) was declared unconstitutional by this court: R. v. Meads, 2018 ONCA 146.

[59] I would not give effect to this submission, for three reasons. First, in this case, the appellant's proven breaches of a s. 810.2 recognizance militate against an award of enhanced credit even absent the former prohibition in s. 719(3.1): R. v. Morris, 2013 ONCA 223, 282 C.R.R. (2d) 1, at para. 19; R. v. McBeath, 2014 BCCA 305, 314 C.C.C. (3d) 531, at para. 20. Second, the appellant was held until warrant expiry when serving his prior sentence and is unlikely to be a candidate for early release. In these circumstances, "[e]nhanced credit for presentence custody could not be justified on the basis of a lost opportunity to gain credits toward some form of early release": R. v. O. (M.), 2016 ONCA 236, 348 O.A.C. 216, at para. 31. Third, enhanced credit would unduly interfere with the length of custodial sentence deemed necessary by the trial judge to adequately protect the public from the risk of the appellant's recidivism: Hopley, at paras. 63-66; Cote, at para. 80; Walters (ONSC), at para. 59.

Conclusion

[60] In the result, I would dismiss the appeal.

Released: June 15, 2018

"David Watt J.A." "I agree. Paul Rouleau J.A." "I agree. David Brown J.A."

Footnotes

[1] The actual sentence imposed was 10 years less credit of 1118 days for time spent in pre-disposition custody. The net sentence is six years 343 days.

[2] The appellant's appeal from conviction was dismissed at the conclusion of oral argument.

[3] The appellant briefly raised two points potentially relevant to his designation as a dangerous offender. First, he complained that both psychiatric experts who testified at his hearing worked at the same office. I see no evidence that the independence and impartiality of either witness was thereby compromised. The appellant also argued that hearing judge failed to consider the possibility of a long-term offender designation. I disagree. The hearing judge extensively canvassed the case law interpreting the long-term offender provisions, and was clearly alive to the possibility of designating the appellant as a long-term offender. His reasons make clear that he did not view such an order as a viable option in this case.

[4] Compare, for example, the inclusion of the language "for which it would be appropriate to impose a sentence of imprisonment of two years of more" in ss. 753(1.1) and 753.1(1)(a) (emphasis added).