COURT OF APPEAL FOR ONTARIO

DATE: 2004-03-08

DOCKET: C31770

RE: HER MAJESTY THE QUEEN (Respondent) – and – JAMES MICHAEL CALDWELL (Appellant)

BEFORE: FELDMAN, SHARPE JJ.A. and McCOMBS J. (ad hoc)

COUNSEL: Christopher Hicks For the appellant

Howard Leibovich For the respondent

HEARD: March 4, 2004

RELEASED ORALLY: March 4, 2004

On appeal from the order of Justice John Desotti of the Superior Court of Justice designating the appellant a dangerous offender, dated June 8, 1998.

E N D O R S E M E N T

[1] This is an appeal of the June 8, 1998 order of Justice Desotti designating the appellant a dangerous offender under part XXIV of the Criminal Code, and sentencing him to an indefinite period of imprisonment.

[2] The appellant had been convicted on December 1, 1996 of sexual assault upon a child. He had prior convictions involving sexual misconduct with children.

[3] The sole issue raised on this appeal is whether the sentencing judge erred in holding that the amendments to the Criminal Code which came into force on August 1, 1997, after the appellant’s conviction in 1996, but before his dangerous offender hearing in 1998, did not operate retrospectively.

[4] The sentencing judge held that the appellant was not entitled to consideration for the long-term offender designation because the legislation did not operate retrospectively. The Crown concedes that in light of the decision of the Supreme Court of Canada in R. v. Johnson (2003), 2003 SCC 46, 177 C.C.C. (3d) 97, the long-term offender legislation applies retrospectively to pre-August 1, 1997 offences.

[5] The appeal is allowed, the order of Desotti J. is set aside, and a new sentencing hearing is ordered pursuant to s. 759(3).

[6] We wish to add that we have been advised that the appellant is making progress in a treatment program at the Regional Treatment Center in Abbotsford, British Columbia. We agree with counsel that it is in the public interest that the appellant be permitted to complete that program and that the result of this appeal not interrupt his treatment.

[7] We understand that the treatment program will be completed on September 15, 2004. We agree with counsel that it would be appropriate that the new sentencing hearing be delayed until after that program has been completed.

Signed: “K. Feldman J.A.” “Robert J. Sharpe J.A.” “D. McCombs J. (ad hoc)”