Her Majesty the Queen v. Hall [Indexed as: R. v. Hall]

70 O.R. (3d) 257

[2004] O.J. No. 1679

Docket No. C38361

Court of Appeal for Ontario

Doherty, MacPherson and Simmons JJ.A.

April 15, 2004

Criminal law -- Dangerous offenders -- Accused convicted of sexual assault and other offences -- Trial judge dismissing dangerous offender application -- Trial judge erring in law by requiring that circumstances surrounding sexual assault pass high seriousness threshold before they could support dangerous offender application -- Trial judge also erring in interpreting long-term offender provisions of Code as applicable only where circumstances surrounding offence giving rise to application were so serious as to approach worst offender/worst offence category -- If offence merits sentence of two years or more, it is sufficiently serious to trigger further inquiry into risk posed by offender and possibility of controlling that risk within community -- Criminal Code, R.S.C. 1985, c. C-46, ss. 753, 753.1.

Criminal law -- Long-term offenders -- Trial judge erring by holding that predicate offences (including possession of sexual assault, invitation to sexual touching and 34 counts relating to child pornography) were not sufficiently serious to meet threshold for consideration as basis for dangerous or long-term offender designation -- Offences need not come within worst offences/worst offender category before use of preventative detention provisions may be appropriate -- Offences merited punishment of more than two years and were serious enough to trigger inquiry into risk offender posed and possibility of controlling that risk in community -- Sentence imposed need not be two years or more in order for long-term offender designation to be available so long as sentence imposed together with credit for pre-trial custody is two years' imprisonment or more -- Trial judge found substantial risk that accused would offend again and reasonable possibility that risk could be controlled in community -- Given trial judge's factual findings and undisputed psychiatric evidence appropriate for appellate court to designate accused long-term offender -- Sentence varied to time served (four years, ten months) followed by eight years' supervision in community -- Criminal Code, R.S.C. 1985, c. C-46, s. 753.1(3)(a).

The accused pleaded guilty to 43 charges, including sexual assault, sexual interference, inviting sexual touching, and 34 counts relating to the possession, distribution or importation of child pornography. The offences occurred between 1989, when the accused was 13 years old, and 1999, when he was arrested. The Crown brought a dangerous offender application. The trial judge dismissed that application and, in light of the accused's pre-trial custody of almost 30 months, declined to impose a further jail term and placed the accused on probation for three years. The Crown appealed.

Held, the appeal should be allowed.

The trial judge erred by requiring that the circumstances surrounding the predicate offences relied on to support the dangerous offender application pass a high seriousness threshold before they could support a dangerous offender application. Once the Crown has shown that the offender was convicted of a "serious personal injury offence" as defined in the Code (a process that does not involve [page258] any inquiry into the nature or circumstances of that offence), the inquiry turns to the dangerousness of the offender and the likelihood of the commission of further offences having any of the effects described in s. 753(b) of the Criminal Code. This second inquiry looks to the offender's conduct in any sexual matter including that involved in the commission of the offence. At this stage, the circumstances surrounding the conviction for the predicate offence become relevant, as does the offender's past behaviour. The accused was convicted of sexual assault. Under s. 753(1)(b) of the Code, sexual assault is a "serious personal injury offence". There is no requirement that the facts surrounding the sexual assault clear any seriousness threshold. The trial judge erred in law by effectively holding that some sexual assaults were not sufficiently serious to engage s. 753(1)(b). Rather than fixing on the seriousness of the circumstances surrounding the offence which triggered the application, the trial judge should have focused on whether the totality of the accused's conduct in sexual matters showed a failure to control his sexual impulses and a likelihood of causing injury, pain or other evil to other persons.

The trial judge also interpreted the long-term offender provisions of the Code as applicable only where the circumstances surrounding the offence giving rise to the application were so serious as to approach the worst offender/ worst offence category. This limitation is not found in s. 753.1 of the Code. The seriousness of the offences giving rise to the application is addressed in s. 753.1(1)(a). If the offence or offences for which the offender was convicted merit a sentence of two years or more, they are sufficiently serious to trigger the further inquiry into the risk posed by the offender and the possibility of controlling that risk within the community.

The trial judge made two important findings of fact which were not tainted by his erroneous interpretation of the legislation. First, he found that there was a risk that the accused would commit further sexual offences. He did not attempt to quantify the risk. The psychiatric evidence and the accused's long history of sexual offences against children left no doubt that he posed a risk of reoffending. Even if that risk were to manifest itself in the less egregious forms of sexual misconduct against children, that conduct would likely cause "injury, pain or other evil" to the victims and would constitute one of the offences set out in s. 753.1(2)(a). Consequently, it would meet the statutory requirements for a finding that there was a substantial risk that the accused would reoffend. Second, the trial judge found that there was at least a reasonable possibility that the accused's risk of reoffending could be controlled within the community. A long- term offender designation was the appropriate result.

Section 11(i) of the Canadian Charter of Rights and Freedoms requires that where there is a change in penalty between the date of the commission of the offence and the imposition of sentence, the offender must receive the benefit of the lesser penalty. A long-term offender designation is a form of punishment for the purposes of s. 11(i) of the Charter. Consequently, the designation cannot be invoked where the convictions giving rise to that designation arose out of offences that occurred before August 1, 1997, unless in the circumstances the long-term offender designation is a lesser punishment than the punishment that the offender would have received prior to the enactment of the long-term offender provisions. If the offender would have been declared a dangerous offender but for the availability of the long-term offender provisions, those provisions provide for a lesser punishment and can be invoked in respect of offences that occurred before the enactment of the long-term offender legislation. The constitutional prohibition against the retroactive application of increased penalties did not stand in the way of a long-term offender designation in the circumstances of this case. While the sexual assault conviction relied on by the Crown for the purposes of [page259] the dangerous offender application may have occurred before August 1, 1997, the Crown did not have to rely on that conviction to trigger the potential application of the long-term offender provisions. Section 753.1(1)(a) directs that the long-term offender provisions are available only where a sentence of two years or more would be appropriate "for the offence for which the offender has been convicted". If a sentence totalling two years or more would have been appropriate for the offences the accused committed after August 1, 1997, the application of the long-term offender provisions to the accused did not amount to the retroactive application of the long-term offender legislation. Of the 43 charges to which the accused pleaded guilty, most occurred after August 1, 1997. These included seven counts of inviting sexual touching. Considering the totality of the accused's post-August 1, 1997 conduct, this conduct merited a sentence of at least two years.

The requirement that a long-term offender designation include a sentence of at least two years was not an impediment to the imposition of a long-term offender designation in this case despite the fact that, because of the accused's pre-trial custody of 30 months, it would not have been appropriate to impose a further period of imprisonment of more than two years. Pre-trial custody must be taken into account where a statute imposes a minimum penalty. If the sentence imposed by the trial judge, having regard to the credit that the trial judge gives for pre-trial custody, is the equivalent of a sentence of two years or more, the precondition is met.

Given the trial judge's findings of fact and the undisputed psychiatric evidence, the only reasonable finding is that the accused was a long-term offender. Accordingly, the sentence was varied to time served (which equated to a sentence of four years and ten months), and an order was made directing that the accused be supervised in the community for eight years.

APPEAL by the Crown from an order dismissing a dangerous offender application.

R. v. Currie, 1997 347 (SCC), [1997] 2 S.C.R. 260, 146 D.L.R. (4th) 688, 211 N.R. 321, 115 C.C.C. (3d) 205, 7 C.R. (5th) 74, revg (1995), 1995 1057 (ON CA), 26 O.R. (3d) 444, 103 C.C.C. (3d) 281 (C.A.); R. v. Johnson, [2003] 2 S.C.R. 357, 230 D.L.R. (4th) 296, 308 N.R. 333, [2004] 2 W.W.R. 393, 177 C.C.C. (3d) 97, 2003 SCC 46, 19 B.C.L.R. (4th) 243, 13 C.R. (6th) 205, [2003] S.C.J. No. 45; R. v. Wust, 2000 SCC 18, [2000] 1 S.C.R. 455, 184 D.L.R. (4th) 385, 252 N.R. 332, 143 C.C.C. (3d) 129, 32 C.R. (5th) 58 (sub nom. R. v. W. (L.W.)), apld Other cases referred to R. v. Dow (1999), 1999 BCCA 177, 134 C.C.C. (3d) 323, [1999] B.C.J. No. 569 (QL) (C.A.); R. v. Lyons, 1987 25 (SCC), [1987] 2 S.C.R. 309, 82 N.S.R. (2d) 271, 44 D.L.R. (4th) 193, 80 N.R. 161, 207 A.P.R. 271, 32 C.R.R. 41, 37 C.C.C. (3d) 1, 61 C.R. (3d) 1 (sub nom. Lyons v. R.); R. v. McDonald (1998), 1998 13327 (ON CA), 40 O.R. (3d) 641, 54 C.R.R. (2d) 189, 127 C.C.C. (3d) 57, 17 C.R. (5th) 1 (C.A.) Statutes referred to Canadian Charter of Rights and Freedoms, s, 11(i) Criminal Code, R.S.C. 1985, c. C-46, ss. 152, 161, 687, 719(3), 752, 753, 753.1, 753.2, 759 Criminal Law Amendment Act, 2001, S.C. 2002, c. 13, s. 76

Ian Bulmer, for appellant. Michael Bennett, for respondent. [page260]

The judgment of the court was delivered by

DOHERTY J.A.: --

I

[1] The respondent pleaded guilty to 43 charges, including one count of sexual assault, one count of sexual interference, seven counts of invitation to sexual touching, and 34 counts relating to the possession, distribution or importation of child pornography. The offences occurred between 1989 when the respondent was 13 years old and November 1999 when he was arrested by the police.

[2] The Crown brought a dangerous offender application. The trial judge dismissed that application. Having regard to the respondent's pre-sentence incarceration of almost 30 months, the trial judge declined to impose a further jail term. He placed the respondent on probation for three years on strict terms, imposed lifetime prohibitions under s. 161 of the Criminal Code, R.S.C. 1985, c. C-46 and made a DNA databank order against the respondent. [^1]

[3] The Crown appeals on a question of law alone pursuant to s. 759(2). The Crown submits that the trial judge erred in his interpretation of the dangerous offender provisions and that on a proper interpretation, the respondent should be found to be a dangerous offender and sentenced to detention in a penitentiary for an indeterminate period. Alternatively, the Crown argues that the trial judge should have concluded that the respondent was a long-term offender and imposed a sentence in accordance with s. 753.1(3) of the Criminal Code. In the further alternative, the Crown submits that if neither the dangerous offender nor the long-term offender designation is appropriate, the sentence imposed by the trial judge was inadequate and should be substantially increased. This relief is sought under s. 687 of the Criminal Code.

[4] I would allow the appeal. I agree with the Crown that the trial judge erred in law in his interpretation of the dangerous offender provisions. However, on the findings of fact made by the trial judge which are untainted by his legal error, the appropriate disposition is a finding that the respondent is a long-term offender. [page261]

II

The Offences

[5] The respondent came to the attention of the police in November 1999. A police officer posing as a person with an interest in child pornography began chatting on line with the respondent. The respondent sent child pornography to the officer, spoke of his sexual contact with children, and eventually agreed to meet the officer. He was arrested at the meeting. Further investigation revealed a long history of sexual misconduct with children.

[6] In 1989, when the respondent was 13 and living in Haileybury, he befriended M.B., age five, and his older brother D.B., age eight. Over a lengthy period, the respondent engaged in various sexual activities, including fellatio, with the brothers. The sexual activity ended when the respondent moved away from Haileybury.

[7] After his arrest in 1999, the respondent gave a statement to the police in which he admitted that he had engaged in repeated sexual activity, including fellatio, with two cousins in 1991-92. The respondent was about 16 years of age. The victims were about nine years of age. These acts were not the subject of separate charges.

[8] In the summer of 1997, the respondent, who was 21 years of age, returned to Haileybury to live with a friend. Over a four-week time period he sexually assaulted his friend's children some 50 to 60 times. His assaults on J.L., the friend's 10-year-old daughter, included digital penetration of her vagina and cunnilingus. His assaults on K.L., his friend's 8-year-old son, included mutual masturbation. These activities led to the sexual assault and sexual interference convictions.

[9] The respondent moved to Sault Ste. Marie in 1997. He frequented a park near his apartment and struck up friendships with many children between the ages of 9 and 11. He invited some of these children back to his apartment. At the apartment, he gave the children cigarettes, and allowed them to watch movies. Over time, the respondent showed the children pornography, including child pornography, and played sexual games with them to remove their sexual inhibitions. He exposed himself to some children in his apartment on one occasion and on another, masturbated in front of a child. Some of the children began to have sexual contact with each other, sometimes in the presence of the respondent. He talked to some of the children about making a video with them. These activities led to the respondent's convictions on the invitation to sexual touching charges. These charges involved touching among the children and not between the children and the respondent. [page262]

[10] An examination of the respondent's computer and related software revealed extensive child pornography related activity, including many pornographic images of young children.

III

The Legislation

[11] The dangerous offender provisions in Part XXIV of the Code have been through various amendments. The most recent version came into force on August 1, 1997 (S.C. 1997, c. 17). The criteria governing the determination of whether an offender is a dangerous offender are found in s. 752 and s. 753. The relevant subsections are set out below.

752. In this Part,

"serious personal injury offences" means

(a) an indictable offence, other than high treason, treason, first degree murder or second degree murder, involving

(i) the use or attempted use of violence against another person, or

(ii) conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage on another person,

and for which the offender may be sentenced to imprisonment for ten years or more, or

(b) an offence or attempt to commit an offence mentioned in section 271 (sexual assault), 272 (sexual assault with a weapon, threats to a third party or causing bodily harm) or 273 (aggravated sexual assault).

753(1) The court may, on application made under this Part following the filing of an assessment report under subsection 752.1(2), find the offender to be a dangerous offender if it is satisfied

(a) that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (a) of the definition of that expression in section 752 and the offender constitutes a threat to the life, safety or physical or mental well-being of other persons on the basis of evidence establishing

(i) a pattern of repetitive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a failure to restrain his or her behaviour and a likelihood of causing death or injury to other persons, or inflicting severe psychological damage on other persons, through failure in the future to restrain his or her behaviour, [page263]

(ii) a pattern of persistent aggressive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a substantial degree of indifference on the part of the offender respecting the reasonably foreseeable consequences to other persons of his or her behaviour, or

(iii) any behaviour by the offender, associated with the offence for which he or she has been convicted, that is of such a brutal nature as to compel the conclusion that the offender's behaviour in the future is unlikely to be inhibited by normal standards of behavioural restraint; or

(b) that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (b) of the definition of that expression in section 752 and the offender, by his or her conduct in any sexual matter including that involved in the commission of the offence for which he or she has been convicted, has shown a failure to control his or her sexual impulses and a likelihood of causing injury, pain or other evil to other persons through failure in the future to control his of her sexual impulses.

[12] Section 753(1) describes two paths to a finding that a person is a dangerous offender. Section 753(1)(a) deals with offenders who have been convicted of a "serious personal injury offence" as defined in s. 752(a). Broadly speaking, serious personal injury offences under s. 752(a) are offences punishable by at least ten years in jail, but not carrying a minimum of life imprisonment, that involve violence, the endangerment of the safety or life of others, or the infliction or risk of infliction of severe psychological damage. If the offender has been convicted of a "serious personal injury offence" as defined in s. 752(a), the court must then determine whether the Crown has established that the offender constitutes a threat to the life, safety or physical or mental well-being of other persons. The Crown can meet this burden by showing that the offender fits within any of the three subcategories of s. 753(1)(a). It is unnecessary to describe those provisions in detail. Generally speaking, they look to the risk posed by the offender.

[13] The second route to a finding that a person is a dangerous offender is set out in s. 753(1)(b). This section targets offenders who have committed any of the sexual assault offences listed in s. 752(b), and who have by their conduct in sexual matters shown a failure to control their sexual impulses, and a likelihood of causing "injury, pain or other evil" to persons through the failure in the future to control their sexual impulses.

[14] The criteria set out in s. 753(1)(a) and s. 753(1)(b) overlap. The Crown argued that the respondent met both sets of criteria, however, it relied primarily on s. 753(1)(b). [page264]

[15] Prior to the amendments to the dangerous offender provisions in 1997, if an offender met the criteria [^2], the court had a discretion as to whether to designate the offender a dangerous offender. In addition, if the court did designate the person a dangerous offender, it had a discretion to impose an indeterminate sentence or a definite sentence: R. v. Lyons, 1987 25 (SCC), [1987] 2 S.C.R. 309, 37 C.C.C. (3d) 1, at p. 338 S.C.R., p. 29 C.C.C. Under the present provisions, the second of those discretions is removed. Section 753(4) states:

753(4) If the court finds an offender to be a dangerous offender, it shall impose a sentence of detention in a penitentiary for an indeterminate period.

[16] The removal of the discretion to impose a definite sentence on a person designated as a dangerous offender is explained in part by the creation of the long-term offender status in the 1997 amendments. Under this designation, offenders can be subject to up to ten years of supervision in the community following completion of their jail terms. Section 753.1 as it read at the time of trial provided in part [^3]:

753.1(1) The court may, on application made under this Part following the filing of an assessment report under subsection 752.1(2), find an offender to be a long-term offender if it is satisfied that

(a) it would be appropriate to impose a sentence of imprisonment of two years or more for the offence for which the offender has been convicted;

(b) there is a substantial risk that the offender will reoffend; and

(c) there is a reasonable possibility of eventual control of the risk in the community.

(2) The court shall be satisfied that there is a substantial risk that the offender will reoffend if

(a) the offender has been convicted of an offence under section 151 (sexual interference), 152 (invitation to sexual touching) or 153 (sexual exploitation), subsection 173(2) (exposure) or section 271 (sexual assault), 272 (sexual assault with a weapon) or 273 (aggravated sexual assault), or has engaged in serious conduct of a sexual nature in the commission of another offence of which the offender has been convicted; and

(b) the offender

(i) has shown a pattern of repetitive behaviour, of which the offence for which he or she has been convicted forms a part, that shows a likelihood of the offender's causing death or [page265] injury to other persons or inflicting severe psychological damage on other persons, or

(ii) by conduct in any sexual matter including that involved in the commission of the offence for which the offender has been convicted, has shown a likelihood of causing injury, pain or other evil to other persons in the future through similar offences.

(3) Subject to subsections (3.1), (4) and (5), if the court finds an offender to be a long-term offender, it shall

(a) impose a sentence for the offence for which the offender has been convicted, which sentence must be a minimum punishment of imprisonment for a term of two years; and

(b) order the offender to be supervised in the community, for a period not exceeding ten years, in accordance with section 753.2 and the Corrections and Conditional Release Act.

(6) If the court does not find an offender to be a long- term offender, the court shall impose a sentence for the offence for which the offender has been convicted.

[17] Under s. 753.1(1)(a), a long-term offender designation can be considered only if a sentence of two years or more would be appropriate for the offences for which the offender has been convicted. If the offences warrant a sentence of two years or more, the trial judge will then assess the risk of reoffending and the possibility of control of that risk in the community: Criminal Code, s. 753.1(b), (c). The court must be satisfied that there is a substantial risk that the offender will reoffend. It must find that the risk exists if the offender has been convicted of one of the sexual offences set out in s. 753.1(2)(a) and the offender meets the criteria in either s. 753.1(2)(b)(i) or s. 753.1(2)(b)(ii). These criteria are similar to the dangerous offender criteria found in s. 753(1) (a)(i) and s. 753(1)(b).

[18] If the court concludes that there is a substantial risk of reoffending, it will then consider whether there is a reasonable possibility of controlling that risk within the community. If that possibility exists, the offender may be declared a long-term offender.

[19] An offender who is found to be a long-term offender is subject to community supervision as described in s. 753.2. That section provides in part:

753.2(1) Subject to subsection (2), an offender who is required to be supervised by an order made under paragraph 753.1(3)(b) shall be supervised in accordance with the Corrections and Conditional Release Act . . . .

. . . . . [page266]

(3) An offender who is required to be supervised, a member of the National Parole Board, or, on approval of that Board, the parole supervisor, as that expression is defined in subsection 134.2(2) of the Corrections and Conditional Release Act, of the offender, may apply to a superior court of criminal jurisdiction for an order reducing the period of long-term supervision or terminating it on the ground that the offender no longer presents a substantial risk of reoffending and thereby being a danger to the community. The onus of proving that ground is on the applicant.

[20] The Crown may bring a long-term offender application or it may seek that designation by way of alternative remedy on a dangerous offender application: Criminal Code, s. 753(5).

[21] The operation of the provisions of Part XXIV of the Criminal Code and, in particular, the interaction between the dangerous offender and long-term offender provisions was recently considered in R. v. Johnson, 2003 SCC 46, [2003] 2 S.C.R. 357, 177 C.C.C. (3d) 97. The court held that where the Crown brings a dangerous offender application, the trial judge must first determine whether the Crown has established the dangerous offender criteria in either s. 753(1)(a) or s. 753(1)(b). If the Crown has not established either set of criteria, the dangerous offender application cannot succeed. If the Crown does establish that the offender fits into either or both sets of criteria in s. 753(1), the sentencing judge is not obliged to find that the offender is a dangerous offender but rather has a discretion as to whether to declare the offender a dangerous offender: R. v. Johnson, supra, at pp. 369-76 S.C.R., pp. 109-13 C.C.C. In exercising that discretion, the sentencing judge must take into account the relevant principles of sentencing found in the Criminal Code as they apply to dangerous offender applications. One of those principles requires the sentencing judge to consider whether any available sanction short of an indeterminate sentence would adequately protect the public. The court said at p. 376 S.C.R., p. 114 C.C.C.:

The principles of sentencing thus dictate that a judge ought to impose an indeterminate sentence only in those instances in which there does not exist less restrictive means by which to protect the public adequately from the threat of harm, i.e., where a definite sentence or a long-term offender designation are insufficient. The essential question to be determined, then, is whether the sentencing sanctions available pursuant to the long-term offender provisions are sufficient to reduce this threat to an acceptable level, despite the fact that the statutory criteria in s. 753(1) have been met.

(Emphasis added)

[22] The court further described the circumstances in which the long-term offender designation would be appropriate at pp. 377-78 S.C.R., pp. 114-15 C.C.C.:

Almost every offender who satisfies the dangerous offender criteria will satisfy the first two criteria in the long-term offender provisions. In virtually [page267] every instance in which an offender is declared dangerous, it would have been appropriate to impose a sentence of imprisonment of two or more years in respect of the predicate offence and there will be a substantial risk that the offender will reoffend. In a certain percentage of those cases there will also be a reasonable possibility of eventual control of the risk in the community. In those instances in which the offender currently constitutes a threat to the life, safety or physical or mental well-being of other persons yet there is a reasonable possibility of eventual control of the risk in the community, an offender will satisfy the criteria in both the dangerous offender and long-term offender provisions.

In those instances where both the dangerous and long-term offender provisions are satisfied, it may be that the sentencing sanctions available under the long-term offender provisions are capable of reducing the threat to the life, safety or physical or mental well-being of other persons to an acceptable level. . . . The very purpose of a long-term supervision order, then, is to protect society from the threat that the offender currently poses -- and to do so without resort to the blunt instrument of indeterminate detention . . . .

(Emphasis added)

[23] The trial judge did not have the benefit of the clear road map through Part XXIV of the Code drawn in R. v. Johnson.

IV

The Evidence

[24] On the dangerous offender application, the trial judge had reports prepared by Dr. Woodside and Dr. Bradford. Both psychiatrists also testified. Dr. Woodside was the psychiatrist designated to prepare an assessment under s. 752.1 and Dr. Bradford assessed the respondent at the request of the respondent's counsel. Dr. Woodside assessed the respondent first. Dr. Bradford assessed the respondent over an extended period while the respondent was hospitalized in Ottawa. In addition to the psychiatric reports and testimony, the trial judge had voluminous medical records pertaining to the respondent's long medical history.

[25] The respondent testified on the application.

[26] The respondent is a pedophile. He was born in 1975. He is an aboriginal and was adopted when he was three months old and raised by a non-aboriginal couple. The respondent left school after grade 12 and worked sporadically. He described various consensual sexual activities with age appropriate males and females. The respondent also described a strong interest in child pornography and sexual activity with children. He reported having amassed thousands of pictures of child pornography in his computer over a three-year period. The respondent acknowledged that he had been involved in acts of fondling and oral sex with approximately 20 children, the majority of whom had been males. According to Dr. Woodside, the respondent insisted that [page268] the children had consented to the sexual activity. The respondent was adamant that he would never do violence to a child or use threats to force himself upon a child. He told Dr. Woodside that he had never had intercourse with a child because he might harm the child.

[27] Dr. Woodside testified that the respondent was of average intelligence and did not suffer from any neurological problems. Dr. Woodside opined that the respondent likely suffered from a borderline personality disorder and major depression. The tests conducted by Dr. Woodside indicated that the respondent was a bisexual pedophile. This deviant sexual preference is a lifelong condition, but can be treated by a combination of psychological and pharmacological approaches.

[28] The respondent had a long psychiatric history, including several attempts at suicide. He had undergone various forms of treatment, none of which were directed towards his pedophilia. The respondent had not complied with treatment recommendations except in times of crisis.

[29] Based on his clinical assessment and actuarial assessments, Dr. Woodside thought there was a "significant" chance that the respondent would reoffend. Dr. Woodside believed that the respondent posed a "significant risk for violent (sexual and non-sexual) reoffence". Dr. Woodside emphasized that his main concern was the likelihood of sexual recidivism.

[30] Dr. Woodside did not think that the respondent was a good candidate for treatment. He noted that the respondent needed lifelong treatment to help him avoid situations in which he might be tempted to engage in sexual contact with young children. Dr. Woodside did not think that the respondent appreciated the negative effect that his conduct had on children, or the inability of children to provide meaningful consent to sexual activities. The respondent had also told Dr. Woodside that he would not take drugs to reduce his desire to have sexual contact with children if those drugs reduced his overall sex drive.

[31] Dr. Woodside was very concerned that the respondent had insisted that he would continue to use the Internet to access child pornography and would resist any attempt to limit his Internet use. The respondent believed that viewing child pornography on his computer helped him control his pedophilic urges. Dr. Woodside testified that access to and the use of child pornography on the Internet was not only harmful in and of itself, but also encouraged rather than diminished resort to other pedophilic activity.

[32] Dr. Woodside testified that from a medical point of view, it was arguable that the respondent met the dangerous offender [page269] criteria under s. 753(1)(a)(i) and (ii). He further indicated that the respondent did meet the criteria in s. 753(1)(b). Dr. Woodside was, however, careful to note that the ultimate question whether a person met the relevant criteria was a legal rather than medical one.

[33] Dr. Woodside also testified that the respondent did not meet the long-term offender criteria because he was not treatable in the community. Dr. Woodside said:

Mr. Hall was at high risk and is at high risk for sexual re- offence in a way that I don't think treatment is going to markedly diminish.

[34] Dr. Bradford did not disagree with Dr. Woodside's psychiatric profile of the respondent. He also agreed that there was a real risk that the respondent would reoffend. He indicated, however, that reoffending could involve a wide variety of sexual offences, some of which were less harmful than others. Dr. Bradford observed that many features of the respondent's previous behaviour, as well as his attitude towards sexual activity with children, suggested that if the respondent were to reoffend, it would not involve the more egregious forms of sexual conduct with children.

[35] Dr. Bradford acknowledged that pedophilia was a lifetime condition and that pedophiles must learn to cope with that condition and avoid placing themselves in situations where they could act in a sexually inappropriate way towards children. Dr. Bradford indicated that pharmacological treatment was often helpful. He testified that the vast majority of pedophiles are treated in the community and are not held under indeterminate sentences as dangerous offenders.

[36] Dr. Bradford disagreed with Dr. Woodside's assessment of the respondent's amenability to treatment in the community. He believed that the respondent could be successfully treated in the community if he stopped accessing child pornography on the Internet and undertook behavioural and pharmacological treatment. Dr. Bradford made this assessment knowing that the respondent had previously refused treatment for psychiatric conditions other than pedophilia and that when he had accepted treatment, he had done so for brief periods of time during crisis situations. Dr. Bradford also indicated that the respondent could only be successfully treated if he acknowledged that he is a pedophile and was motivated to receive the necessary treatment. The respondent had acknowledged his pedophilia and in Dr. Bradford's opinion was motivated to receive the necessary treatment.

[37] In his report, Dr. Bradford said:

Mr. Hall does not show the prolonged or persistent pattern of sexual offences that I have normally seen in cases referred for a dangerous offender evaluation [page270] or for a long- term offender evaluation. In my opinion, he would not qualify for either of these designations. As I appreciate that this is a legal, as opposed to a medical decision making process, if the decision is that he does fit the criteria under s. 753(1)(b) of the Criminal Code, my opinion would be that there is a reasonable possibility of eventual control of the risk in the community i.e., he is treatable and therefore, in my opinion, meets the criteria under section 753.1(1) as a long-term offender.

[38] Dr. Bradford was not specifically questioned about the above-quoted passage from his report. The trial judge did, however, ask Dr. Bradford about the feasibility of treatment as a term of probation and whether individuals continued treatment after the probation period ended. Dr. Bradford replied:

And again, my own sort of bias nonetheless, was that I felt that short probation terms of three years, for example, in the case of sexual offenders just didn't work as well as they should. And I was concerned that people coming out on federal -- out of the federal system, would be held to warrant expiry and there would be nothing to monitor them and to deal with them in the community, which I thought was -- didn't make sense, particularly with sexual offenders, and therefore, was very supportive of long-term offender legislation with up to ten years of parole supervision.

I mean it's not just only the monitoring. If you look at most of the studies, the recidivism tends to occur in the first five years. And it occurs with time, but it slows down after the five years. So it would make sense to have something that was in place for at least double the first five years.

(Emphasis added)

[39] In his testimony, the respondent said that he had initially resisted taking any medication that might reduce his sex drive, and had opposed any attempt to limit his Internet use. While under the care of Dr. Bradford, he had come to realize that he needed the medication and that accessing child pornography on the Internet was not an effective way to control his pedophilic desires. The respondent had taken the prescribed medication while at the Royal Ottawa Hospital and had continued to take the medication after he was returned to the local jail in Sault Ste. Marie.

[40] The respondent tried to explain his comments to Dr. Woodside concerning young children consenting to sexual activity with him. The respondent said that he was referring only to a specific young child and not to children in general.

[41] After a thorough review of the evidence, the trial judge made strong unequivocal findings of fact:

In the final analysis, I accept the evidence of Dr. Bradford that the accused can be treated so as to control his pedophilic urges. I find that since his attendance at the Royal Ottawa Hospital the attitude of the accused in respect to treatment has changed drastically and completely and that the change that has occurred has been for the better, has been positive. While others may not believe him, I do believe him when he says that he is committed to undergoing treatment and to the continued use of the drugs required to be [page271] taken as a necessary component of that treatment. He espouses the program of treatment, with the pharmaceutical component included, even though he realizes that the ongoing taking of the drugs may have serious side effects. At this time he is most definitely not intractable, as are some pedophiles.

(Emphasis added)

V

The Alleged Error

[42] The Crown submits that the trial judge erred by requiring that the circumstances surrounding the predicate offences relied on to support the dangerous offender application pass a high seriousness threshold before they could support a dangerous offender application.

[43] The trial judge began this part of his reasons by observing:

I come now to a consideration of what type of circumstances must or should exist surrounding the commission of the predicate offences in order for a finding to be made that the accused is either a dangerous or a long-term offender. Certainly, for openers, the offences must be set out in the section of concern. That is a given. In my view, however, more is required than just that simple fact.

[44] After reference to some authority, he said:

In my view, the word serious as used by the court does not only relate to the category of offence being considered. It surely must relate as well to the facts surrounding the commission of the predicate offence/s relied on by the Crown. . . .

The section of concern, in my respectful opinion, was never intended to be used in cases where the conduct of the accused surrounding the commission of the offence/s relied on by the Crown is anything but conduct approaching the worst type of conduct imaginable and that the accused is among the worst of offenders.

(Emphasis in the original)

[45] The trial judge concluded:

none of the factual situations presented to the court, either standing alone, or when considered in conjunction with each other, are of the serious type required to permit or require this court to make the findings sought by the Crown.

(Emphasis in the original)

[46] I agree with Crown counsel's submission that the trial judge's approach to the dangerous offender provisions is inconsistent with the analysis provided in R. v. Currie, 1997 347 (SCC), [1997] 2 S.C.R. 260, 115 C.C.C. (3d) 205. In Currie, the Crown brought a dangerous offender application under s. 753(b) (now s. 753(1) (b)). Currie had been convicted of three charges of sexual assault all of which arose out of the groping of young girls in a department store. The [page272] facts surrounding these convictions were significantly less serious than the facts surrounding Currie's earlier convictions for sexual assault. This court reversed the trial judge's dangerous offender finding in part because the trial judge had failed to consider whether the facts surrounding the convictions for sexual assault were sufficiently serious to support a dangerous offender application ((1995), 1995 1057 (ON CA), 26 O.R. (3d) 444, 103 C.C.C. (3d) 281 (C.A.)).

[47] The Supreme Court of Canada restored the trial judge's finding. Lamer C.J.C., for the court, rejected the contention that a dangerous offender finding could be made only where the facts surrounding the commission of the offence triggering the application were sufficiently serious. He said at p. 272 S.C.R., p. 214 C.C.C.:

once an individual has committed an offence specifically defined in the Criminal Code as a "serious personal injury offence", he or she has made it possible for the Crown to invoke the Criminal Code's dangerous offender application process. If that process is invoked, it is incumbent upon the trial judge to evaluate the offender's potential danger to the public and this may or may not depend upon the specific nature and objective gravity of the predicate offence.

[48] Lamer C.J.C. explained at pp. 273-75 S.C.R., pp. 215-16 C.C.C. that s. 753(1)(b) involved a two-step process. First, the Crown had to establish a conviction for a "serious personal injury offence". In the light of the definition in s. 752(b), a conviction for sexual assault is a conviction for a "serious personal injury offence" without any inquiry into the nature or circumstances of that offence. Once the Crown had shown that the offender had been convicted of a "serious personal injury offence", the inquiry then turned to the dangerousness of the offender and the likelihood of the commission of further offences having any of the effects described in s. 753(b). This second inquiry looked to the offender's "conduct in any sexual matter including that involved in the commission of the offence". At this stage, the circumstances surrounding the conviction for the predicate offence became relevant as did his past behaviour. In rejecting the contention that the facts surrounding the predicate offence must pass a seriousness threshold, the Chief Justice explained at pp. 275-76 S.C.R., pp. 216-17 C.C.C.:

Section 753(b) might not make sense if, for example, it were to provide, without qualification, that a trial judge may designate any person who commits a "serious personal injury offence" as a dangerous offender. But, it is crucial to recognize that the conviction for a "serious personal injury offence" merely triggers the s. 753(b) application process. There remains a second stage to s. 753(b), at which point the trial judge must be satisfied beyond a reasonable doubt of the likelihood of future danger that an offender presents to society before he or she can impose the dangerous offender designation and an indeterminate sentence. [page273]

Parliament has thus created a standard of preventive detention that measures an accused's present condition according to past behaviour and patterns of conduct. Under this statutory arrangement, dangerous offenders who have committed "serious personal injury offences" can be properly sentenced without having to wait for them to strike out in a particularly egregious way.

(Emphasis added)

[49] The respondent was convicted of sexual assault [^4]. Under s. 753(1)(b), sexual assault is a "serious personal injury offence". There is no requirement that the facts surrounding the sexual assault clear any seriousness threshold. The trial judge erred in law by effectively holding that some sexual assaults were not sufficiently serious to engage s. 753(1)(b). Rather than fixing on the seriousness of the circumstances surrounding the offence which triggered the application, the trial judge should have focused on whether the totality of the respondent's conduct in sexual matters showed a failure to control his sexual impulses and a likelihood of causing injury, pain or other evil to other persons.

[50] The extracts from the trial judge's reasons quoted above also make it clear that he interpreted the long-term offender provisions as applicable only where the circumstances surrounding the offence giving rise to the application were so serious as to approach the worst offender/worst offence category. This limitation is not found in s. 753.1. The seriousness of the offences giving rise to the application is addressed in s. 753.1(1)(a). If the offence or offences for which the offender was convicted merit a sentence of two years or more, they are sufficiently serious to trigger the further inquiry into the risk posed by the offender and the possibility of controlling that risk within the community.

[51] The trial judge erred in law in limiting the application of the dangerous offender and long-term offender provisions to situations in which the circumstances surrounding the sexual [page274] assault giving rise to the application were sufficiently serious to warrant a dangerous offender designation. He should have followed the analysis set out in R. v. Currie.

VI

The Appropriate Order

[52] The Crown has established an error in law. Section 759(4) reads:

759(4) On an appeal against the dismissal of an application for an order that an offender is a dangerous offender under this Part, the court of appeal may

(a) allow the appeal and

(i) find that the offender is a dangerous offender,

(ii) find that the offender is not a dangerous offender, find that the offender is a long-term offender, impose a minimum sentence of imprisonment for two years, for the offence for which the offender has been convicted, and order the offender to be supervised in the community, for a period that does not, subject to subsection 753.1(5), exceed ten years, in accordance with section 753.2 and the Corrections and Conditional Release Act, or

(iii) order a new hearing; or

(b) dismiss the appeal.

(Emphasis added)

[53] In exercising its remedial power, this court will accept findings of fact made by the trial judge if those findings are not tainted by the legal error: R. v. Dow (1999), 1999 BCCA 177, 134 C.C.C. (3d) 323, [1999] B.C.J. No. 569 (QL) (C.A.) at p. 340 C.C.C.

[54] The trial judge made two important findings of fact. Neither is tainted by his erroneous interpretation of the legislation. First, he found that there was a risk that the respondent would commit further sexual offences. He did not attempt to quantify the risk. The psychiatric evidence and the respondent's long history of sexual offences against children left no doubt that he posed a risk of reoffending. Even if that risk were to manifest itself in the less egregious forms of sexual misconduct against children, that conduct would likely cause "injury, pain or other evil" to the victims and would constitute one of the offences set out in s. 753.1(2)(a). Consequently, it would meet the statutory requirements for a finding that there was a substantial risk that the respondent would reoffend: see Criminal Code, s. 753.1(2)(a) and s. 753.1(2)(b)(ii). Second, the trial judge found, based on the evidence of Dr. Bradford and the respondent, that there was at [page275] least a reasonable possibility that the respondent's risk of reoffending could be controlled within the community.

[55] Applying the approach described in Johnson, supra, to these findings of fact, a long-term offender designation is the proper result. I note that although Dr. Bradford did not support this designation in his report, his evidence summarized above (supra, para. 38) seems to recognize the value and need for long-term community supervision of the respondent.

[56] Although the evidence warrants a long-term offender designation, there are two possible legal impediments to a long-term offender designation. Neither impediment was relied on by the respondent, although the possible effect of s. 11(i) of the Canadian Charter of Rights and Freedoms was raised briefly in oral argument.

[57] Section 11(i) of the Charter requires that where there is a change in penalty between the date of the commission of the offence and the imposition of sentence, the offender must receive the benefit of the lesser penalty. A long-term offender designation is a form of punishment for the purposes of s. 11(i) of the Charter. Consequently, the designation cannot be invoked where the convictions giving rise to that designation arose out of offences that occurred before August 1, 1997, unless in the circumstances the long-term offender designation is a lesser punishment than the punishment that the offender would have received prior to the enactment of the long-term offender provisions. As observed in Johnson, supra, pp. 381-83 S.C.R., pp. 118-19 C.C.C., if the offender would have been declared a dangerous offender but for the availability of the long-term offender provisions, those provisions provide for a lesser punishment and can be invoked in respect of offences that occurred before the enactment of the long-term offender legislation.

[58] The constitutional prohibition against the retroactive application of increased penalties does not stand in the way of a long-term offender designation in the circumstances of this case. While it is true that the sexual assault conviction relied on by the Crown for the purposes of the dangerous offender application may have occurred before August 1, 1997, the Crown did not have to rely on that conviction to trigger the potential application of the long-term offender provisions. Section 753.1(1)(a) directs that the long-term offender provisions are available only where a sentence of two years or more would be appropriate "for the offence for which the offender has been convicted". In my view, if a sentence totalling two years or more would have been appropriate for the offences the respondent committed after August 1, 1997, the application of the long-term offender provisions to the [page276] respondent does not amount to the retroactive application of the long-term offender legislation.

[59] Of the 43 charges to which the respondent pled guilty, most occurred after August 1, 1997. These included seven counts of invitation to sexual touching contrary to s. 152 of the Criminal Code. Considering the totality of the respondent's post-August 1, 1997 conduct, I have no hesitation in holding that this conduct merited a sentence of at least two years.

[60] The second potential impediment to the imposition of a long-term offender designation arises out of the requirement that the designation include a sentence of imprisonment of at least two years. Section 753.1(3)(a) requires that the court:

impose a sentence for the offence for which the offender has been convicted, which sentence must be a minimum punishment of imprisonment for a term of two years[.]

[61] The respondent was in custody for almost 30 months prior to sentencing. Following the usual practice, the trial judge gave the respondent two for one credit for his pre-sentence custody. On this basis, the respondent had served the equivalent of four years and ten months. The trial judge concluded that no additional period of incarceration was necessary.

[62] I accept that given the long period of pre-sentence custody, it would not have been appropriate to impose a further period of incarceration in excess of two years. This does not, however, mean that a long-term offender designation could not have been made. Pre-trial incarceration may be taken into account where a statute imposes a minimum penalty: R. v. Wust, 2000 SCC 18, [2000] 1 S.C.R. 455, 143 C.C.C. (3d) 129; R. v. McDonald (1998), 1998 13327 (ON CA), 127 C.C.C. (3d) 57, 40 O.R. (3d) 641 (C.A.). The same reasoning applies to the requirement in the long-term offender provisions that the court impose a sentence of at least two years. Having regard to pre-sentence incarceration in calculating the length of the sentence imposed for the purposes of the long-term offender provisions upholds Parliament's intention that the long-term offender status should be available only for persons who commit offences that warrant sentences of two years or more, and at the same time preserves the court's discretion under s. 719(3) of the Criminal Code to take into account pre-sentence incarceration: R. v. Wust, supra, at pp. 462-63 S.C.R., p. 136 C.C.C. If the sentence imposed by a trial judge, having regard to the credit that the trial judge gives for pre-sentence incarceration, is the equivalent of a sentence of two years or more, the first pre- condition to the finding that an offender is a long-term offender is met. [page277]

VII

Conclusion

[63] Having regard to the findings of fact made by the trial judge and the undisputed evidence detailing the respondent's psychiatric condition and history of sexual misconduct, I am satisfied that a finding that the respondent was a long-term offender was the only reasonable conclusion available on the totality of the record.

[64] Under the long-term offender provisions, the community supervision order can run for up to ten years. The respondent has been under strict terms of probation for almost two years. I would allow the appeal, vary the sentence on all counts (save those where the respondent was a young offender) to one of time served, which I would equate to a sentence of four years and ten months. In addition, I would make an order directing that the respondent be supervised in the community in accordance with s. 753.2 for a period of eight years. I note that, if appropriate, the respondent can apply at a future date to have the supervisory period terminated or reduced: Criminal Code, s. 753.2(3).

Appeal allowed.

[^1]: Some of the offences were committed while the respondent was a young offender. The sentences imposed on those charges are not affected by this appeal.

[^2]: The criteria were not changed by the 1997 amendments.

[^3]: The section was amended by the Criminal Law Amendment Act, 2001, S.C. 2002, c. 13, s. 76, proclaimed in force on July 23, 2002.

[^4]: The sexual assault on J.L. took place between May 1, 1997 and September 1997 and encompassed several assaults on J.L. The latest version of the dangerous offender provisions came into force on August 1, 1997. The facts relied on to support the guilty plea on the sexual assault charge did not indicate whether any part of the sexual activity relied on to support the conviction occurred after August 1, 1997. Even if all of the activity occurred before August 1, 1997, the Crown could rely on the sexual assault conviction to bring its dangerous offender application. The definition of dangerous offender was not altered by the amendment. Had the trial judge found the respondent to be a dangerous offender, the question of whether the sexual assault had occurred entirely before August 1, 1997 would have become significant since the current dangerous offender provisions are more severe in some ways than the predecessor provisions. If a dangerous offender finding was based on conduct which occurred before August 1, 1997, the offender could not be subjected to harsher treatment under the amended provisions.