DATE: 20020110 DOCKET: C36964

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Applicant/Appellant) v. DALE GREGORY OSWALD (Respondent)

BEFORE:

MCMURTRY C.J.O., ROSENBERG AND MACPHERSON JJ.A.

COUNSEL:

Sandra Kingston

for the appellant

Laurence Cohen

for the respondent

HEARD:

December 19, 2001

On appeal from the sentence imposed by Justice David Fairgrieve dated August 23, 2001.

ENDORSEMENT

[1] This is a Crown appeal from a 30 day conditional sentence imposed by Fairgrieve J. on the respondent following his plea of guilty to two charges of breach of probation. On June 14, 2001, a short time after he had been released from prison for breach of several court orders, the respondent became involved in conversation with two boys aged nine and eleven years. The respondent said that he preferred young boys and liked to have them put their penises in his mouth. The boys became scared and went home. The respondent did not touch the boys. The following day, one of the boy’s parents saw the respondent in the same area and he was arrested. At the time, the respondent was on probation. The order included a term that the respondent not contact or communicate with a young person under the age of 16 years.

[2] The sentence hearing before the trial judge extended over five days. The trial judge heard from the Chief Psychologist at Millbrook Correctional Centre, where the respondent had recently served a sentence of imprisonment, from the respondent’s probation officer, and from the respondent’s mother. The parties filed a number of reports, including the respondent’s extensive file from Millbrook. The trial judge also had the benefit of extensive submissions from counsel for the Crown and the respondent. It is apparent from his reasons that the trial judge had studied the written material and gave careful consideration to the oral submissions.

[3] This was a highly unusual and very difficult case. The respondent is not only a paedophile, but suffers a major mental illness and is of borderline normal intelligence. He is reluctant to take medication to treat his mental illness and to curb his sexual drive. His low intelligence makes some types of therapy problematic. Although he recognizes the need to obey court orders, he is unwilling or unable to comply. There are few community supports for him. He has little, if any, family support. In the brief periods when the respondent is not in prison he lives in a shelter for homeless men. His probation officer had made referrals to a treatment centre that might be able to cope with the respondent’s multiple problems but the respondent was unwilling or unable to follow up.

[4] At trial, Crown counsel, not Ms. Kingston, sought a sentence of two years imprisonment and three years probation. Defence counsel, not Mr. Cohen, sought a sentence of six to twelve months’ imprisonment and suggested that it be a conditional sentence. At the time of the sentencing, the respondent was subject to a three year probation order imposed in July 2000 to follow an 11 month prison sentence. The respondent had spent two months and nine days in pre-sentence custody.

[5] Having heard extensive evidence and reviewed a wealth of written material, the trial judge concluded that there was some reason for optimism. The respondent had recently voluntarily been taking his anti-psychotic medicine and his sex-drive reducing medication. He had a good relationship with his probation officer, who was prepared to devote the extra time that this offender required.

[6] We do not agree with Crown counsel that the trial judge misapprehended the seriousness of the offences. We agree with the trial judge that the sentence proposed by Crown counsel at trial would have offended the proportionality principle. See R. v. Legere (1995), 95 C.C.C. (3d) 555 (Ont. C.A.) at 566-67. As Arbour J. said in R. v. Knoblauch (2000), 2000 SCC 58, 149 C.C.C. (3d) 1 (S.C.C.) at 13: “There is no mechanism in criminal law to remove dangerous people from society merely in anticipation of the harm that they may cause. The limit of the reach of the criminal sanction is to address what offenders have done.”

[7] The Crown argues that the respondent was simply ineligible for a conditional sentence because the evidence showed that he was a risk to the community and that the trial judge so found. The trial judge recognized that the respondent’s multiple psychiatric and other problems made him a risk to re-offend. The point of the 30 day sentence was to first take into account the pre-sentence custody and respond in a measured and proportional way to the conduct underlying the offences. The point of making the sentence conditional was to provide a mechanism to ensure that the respondent found a residence, established contact with his probation officer and resumed the taking of his medication that was interrupted by the arrest. Section 742.1 of the Criminal Code does not exclude dangerous offenders from the conditional sentence regime. Rather, as pointed out in Knoblauch at p. 16 and R. v. Proulx (2000), 2000 SCC 5, 140 C.C.C. (3d) 449 (S.C.C.) at para. 68, the focus of the analysis is on the risk posed by the offender while serving his sentence in the community. There was some basis for the trial judge taking the view that within the short period of the conditional sentence, the respondent would not re-offend.

[8] In the circumstances, we are not prepared to interfere with the trial judge’s somewhat unusual disposition. The trial judge was struggling with a very difficult case. Many other types of dispositions including prison and probation had been tried and had failed to protect the community. While it would probably have been more appropriate for the trial judge to have imposed a sentence of immediate imprisonment in the range suggested by defence counsel, we cannot say that the trial judge made any error in principle or that the sentence was manifestly inadequate. Given the extensive record placed before the trial judge, this was very much a case where this court should accord deference to the trial judge. As Lamer C.J.C. said in R. v. M. (C.A.) (1996), 105 C.C.C. (3d) 327 at 374-75:

The determination of a just and appropriate sentence is a delicate art which attempts to balance carefully the societal goals of sentencing against the moral blameworthiness of the offender and the circumstances of the offence, while at all times taking into account the needs and current conditions of and in the community. The discretion of a sentencing judge should thus not be interfered with lightly. [Emphasis added.]

[9] Accordingly, while leave to appeal sentence is granted, the appeal is dismissed.

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

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

(signed) "J. C. MacPherson J.A."