DATE: 20001103

DOCKET: C27888

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent)

v. WAYNE ROBERT WALKER (Appellant)

BEFORE: McMURTRY C.J.O., CHARRON and MacPHERSON JJ.A.

COUNSEL: Gregory Lafontaine,

for the appellant

C. Jane Arnup,

for the respondent

HEARD: October 30, 2000

On appeal from his conviction by Justice W. T. Stayshyn, sitting alone, on January 24, 1996 and from the sentence imposed on March 27, 1997

E N D O R S E M E N T

[1] The appellant was convicted of abduction contrary to s. 281 of the Criminal Code following which he was declared a dangerous offender and sentenced to an indeterminate period of incarceration. He appeals against the conviction, the finding of dangerous offender and the sentence.

Appeal against conviction

[2] The appeal against conviction raises two grounds. The first ground relates to the necessary mens rea for the offence of abduction and the second to the actus reus.

[3] The appellant submits that the trial judge erred in finding that he had the requisite intent under s. 281. He submits that the trial judge applied the wrong test and that the evidence did not support his finding on the question of intent. We do not agree. It is clear from his reasons that the trial judge instructed himself in accordance with the correct principles of law as set out in R. v. Chartrand (1994), 1994 53 (SCC), 31 C.R. (4th) 1 (S.C.C.). Further, there was ample evidence upon which the trial judge could conclude that the appellant enticed the young girl with the intent to deprive her mother of the possession of her child within the meaning of s. 281.

[4] With respect to the actus reus of the offence, the appellant argues that the full offence was not made out because the appellant had not yet succeeded in bringing the child to a location where he would have had control over the possession of the child. He therefore submits that he could only be found guilty of an attempt to commit the offence of abduction. We see no merit to this argument. Once the appellant enticed the child away from the possession of her mother, the offence was complete.

Appeal against the finding of dangerous offender

[5] The appellant submits that the trial judge erred in dismissing his application for a stay of the dangerous offender proceedings on the ground that they constituted an abuse of process. We see no merit to this ground of appeal. The trial judge was correct in dismissing the appellant’s application for a stay for the reasons that he gave. We would not give effect to this ground of appeal.

The sentence appeal

[6] With respect to the sentence appeal, we do not think that the trial judge erred in his determination that the appellant is a dangerous offender.

[7] The appellant submits that the evidence did not support the trial judge’s finding that the offence in this case was a “serious personal injury offence” within the meaning of s. 752(a)(ii) because, from an objective standpoint, the conduct in question was not “likely to inflict severe psychological damage upon another person”. We do not agree. The trial judge reviewed the evidence extensively and concluded that the predicate offence involved “conduct likely to and which in fact did cause severe psychological damage” to the parents of the child. In our view, the record amply supports this finding.

[8] Moreover, the sheer volume of actual and attempted sexual incidents with young girls over a long period of years coupled with the strong medical evidence that it is doubtful that the appellant could be treated effectively so as to remove the risk to other young girls amply supported the trial judge’s conclusion that the appellant came within the statutory definition of dangerous offender.

[9] Nor can we find fault with the trial judge’s decision to impose an indeterminate, as opposed to a determinate, sentence on the appellant. On the record before him, there was almost nothing to support a conclusion that the appellant would not pose a serious danger to young girls if released into the community at a fixed date.

[10] Finally, because the record so amply demonstrated that the appellant would continue to pose a serious risk to the community if released at a fixed date, we do not agree with the appellant’s alternative submission to the effect that this court should apply the new long-term offender regime to the appellant at this juncture. This regime came into effect after the sentencing in this case. Even if this court has the jurisdiction to consider the retroactive application of this alternative disposition (a matter on which we do not express an opinion), we are not persuaded that this would be an appropriate case in which to make such a disposition. The safety of the community supports today, as it did when the trial judge considered the matter, the designation of the appellant as a dangerous offender and the continuation of his indeterminate sentence. It should be recalled that an indeterminate sentence is not a perpetual sentence. If the appellant receives proper treatment, a supervised release in the future is a possibility.

[11] The appeal from conviction is dismissed. Leave to appeal sentence is granted and the appeal from sentence is dismissed.

(signed) “R. McMurtry C.J.O.”

(signed) “Louise Charron J.A.”

(signed) “J. C. MacPherson J.A.”