DATE: 20010625
DOCKET: C30313

COURT OF APPEAL FOR ONTARIO

McMURTRY C.J.O., CATZMAN and CHARRON JJ.A.

BETWEEN:

HER MAJESTY THE QUEEN
Respondent

• and -

ERIC ANDREW CLARK
Appellant

Counsel:
Marlys A. Edwardh and Breese Davies, for the appellant
Lisa Joyal, for the respondent

Heard: June 20, 2001
Released orally: June 20, 2001

On appeal from the finding of dangerous offender made by Justice C. Anderson on May 7, 1996

BY THE COURT:

[1] On May 7, 1996 the appellant pled guilty and was found guilty of twenty sexual offences before Anderson J. The charges related to twenty different complainants all of whom were young boys at the relevant time. After conviction, the appellant’s bail was revoked and he was remanded in custody. The Crown indicated that it intended to bring an application to have the appellant declared a dangerous offender and the matter was adjourned in order to allow Crown counsel to obtain the Attorney General’s consent.

[2] On September 5, 1996, a second information, marked “Duplicate Information”, was placed before the court alleging twenty sexual offences in relation to the same incidents alleged in the May 7 information. Crown counsel indicated that the new information was necessary because the earlier information charged the appellant with offences under the Criminal Code that were not enacted at the time. The new charges related to the same twenty complainants and covered precisely the same conduct as alleged in the earlier information.

[3] The appellant was arraigned on the new information and entered guilty pleas. By consent of counsel, the facts read into the record on May 7, 1996 were read into the record and the appellant was convicted on all counts. By inadvertence, the appellant’s guilty pleas on the earlier information were not struck, his convictions were not set aside, and the charges were not withdrawn.

[4] The dangerous offender hearing commenced on December 18, 1997 and proceeded intermittently over several months. On July 10, 1998, the appellant was found to be a dangerous offender and was sentenced to an indeterminate period of incarceration. Both informations before the court were marked accordingly. The appellant appeals from this finding and from the sentence.

[5] The first ground of appeal relates to the court’s jurisdiction to conduct a dangerous offender hearing on both informations at the same time. It is argued that this defect was fatal and that the finding and sentence should accordingly be quashed. In particular, the appellant submits that it is apparent from the judge’s reasons, which refer repeatedly and mistakenly to the “39 convictions”, that he was prejudiced by this error.

[6] We see no merit to the contention that the entire process was vitiated by this procedural irregularity. The trial judge had the jurisdiction to proceed with the dangerous offender application on the basis of the second information together with the consent of the Attorney General thereto. Further, on reading the trial judge’s reasons as a whole, we are not persuaded that his reference to the “39 convictions” was anything more than inadvertent error. It is clear that the trial judge proceeded on the basis of the allegations with respect to the twenty complainants.

[7] The parties agree that the record must be corrected to reflect the actual proceedings that transpired and an order will be made accordingly.

[8] Although the appellant suggests that the trial judge misapprehended the expert opinion evidence in certain respects, the next two grounds of appeal in essence relate to the reasonableness of the finding that the appellant is a dangerous offender. Despite counsel’s able argument, we are not persuaded that the conclusion reached by the trial judge was not reasonably supported by the evidence. It was open to him on the totality of the evidence to be satisfied beyond a reasonable doubt that there was a likelihood of the appellant causing injury, pain or other evil to other persons through failure in the future to control his sexual impulses.

[9] With respect to sentence, the trial judge declined to exercise the discretion which was then reposed in him under the Criminal Code to impose a determinate sentence. We see no error in the manner in which he considered this question and declined to exercise that discretion. The imposition of an indeterminate sentence was reasonably supported by the evidence.

[10] Consequently, the appeal is allowed with respect to the convictions noted on the first information, those convictions are set aside and the information is quashed. The appeal related to the dangerous offender application is dismissed.

RELEASED: June 25, 2001 "RRM"

(signed) "R. McMurtry C.J.O."

(signed) "M. A. Catzman J.A."

(signed) "Louise Charron J.A."