DATE: 20050606

DOCKET: C38235

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – GLEN ANDREW RATHWELL (Appellant)

BEFORE:

SIMMONS, CRONK and MacFARLAND JJ.A.

COUNSEL:

Vincenzo Rondinelli

for the appellant

Lucy Cecchetto

for the respondent

HEARD & RELEASED ORALLY:

May 25, 2005

On appeal from the sentence imposed by Justice R. Stortini of the Superior Court of Justice, sitting without a jury, on September 26, 1997.

E N D O R S E M E N T

[1] During a sentencing hearing that commenced on September 22, 1997, the appellant was declared to be a dangerous offender within the meaning of s. 753 of the Criminal Code. The defence conceded that the criteria set out in s. 753 for this designation were met. For this reason, the only live issue at the hearing was whether the appellant should be sentenced to a determinate or indeterminate period of detention. On September 26, 1997, the appellant was sentenced to an indeterminate period of detention.

[2] Based on the facts of this case, counsel agreed at the sentencing hearing that the sentencing judge need not consider the long-term offender provisions of the Code, which were proclaimed in force shortly before the appellant’s sentencing hearing.

[3] The appellant now appeals his designation as a dangerous offender on the basis of the Supreme Court of Canada’s decision in R. v. Johnson (2003), 2003 SCC 46, 177 C.C.C. (3d) 97, arguing that the sentencing judge erred in law in failing to consider the long-term offender provisions. The Crown concedes this error, but argues that the curative proviso should be applied because the appellant has suffered no prejudice and the result would necessarily have been the same had the error not occurred.

[4] We are unable to accept this submission. Johnson confirms that it is only in the rarest of circumstances, if any, that there will be no reasonable possibility that the sentencing judge at a dangerous offender hearing would have imposed a different sentence but for the failure to consider the availability of the long-term offender provisions: see Johnson, at para. 50.

[5] In this case, there was no inquiry into the suitability of the long-term offender sentencing measures; nor was any evidence led that addressed s. 753.1(1)(c) of the Code. In addition, neither the issue of the risk of the appellant re-offending, nor the prospects for effective treatment of him, were addressed at the sentencing hearing in the specific context of a possible long-term supervision order, coupled with a lengthy determinate sentence. Moreover, the findings of the sentencing judge did not exclude a reasonable possibility that treatment of the appellant could be effective under a long-term offender designation. Nor was this possibility the subject of argument before the sentencing judge based on the long-term offender provisions of the Code.

[6] In these circumstances, a new sentencing hearing is required.

[7] For the reasons given, the appeal is allowed, the finding that the appellant is a dangerous offender and the indeterminate sentence are set aside, and a new sentencing hearing is directed.

“Janet Simmons J.A.”

“E.A. Cronk J.A.”

“J. MacFarland J.A.”