DATE: 20050812

DOCKET: C41154

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – KEVIN FERGUSON (Appellant)

BEFORE:

GOUDGE, SIMMONS AND ARMSTRONG JJ.A.

COUNSEL:

Anil Kapoor

for the appellant

Susan Chapman

for the respondent

HEARD:

August 8, 2005

On appeal from the conviction by Justice Paul G.M. Hermiston of the Superior Court of Justice, dated June 25, 1998 and on appeal from the sentence imposed by Justice Paul G.M. Hermiston dated July 27, 2000.

E N D O R S E M E N T

[1] The predicate offences in this matter took place on July 9, 1997, several weeks before the proclamation of the 1997 amendments to the Criminal Code which introduced the Long Term Offender designation.

[2] At the sentencing hearing, all counsel and expert witnesses proceeded on the basis that the LTO designation did not apply, as a matter of law. Thus, at best, the LTO criteria, particularly s. 753.1(1)(c) were addressed in evidence only tangentially, and then only in passing.

[3] While in argument, defence counsel asked that the LTO disposition be considered, the trial judge found that the proper law excluded these amendments. He then went on to say this,

I find, without deciding whether the long term offender disposition can be incorporated into the governing pre-amendment legislation, because it is academic in this case, that the Crown has proved the offender … stand up sir, I find that the Crown has proved you, Mr. Ferguson, to be a dangerous offender, as these words are defined by s. 753(1)(a)(i) and (ii) of the Criminal Code. Sit down sir.

[4] We interpret this cryptic conclusion as a finding that even if the LTO criteria could be read into the pre-amendment Criminal Code it would be pointless to consider whether the appellant met them, because he was clearly proven to be a dangerous offender. As is made clear in R. v. Johnson (2003) 2003 SCC 46, 177 C.C.C. (3d) 97 (S.C.C.) this constitutes an error in law. The finding that the appellant is not a long-term offender cannot be reached by elimination, because it is possible to meet the criteria for both the LTO and DO designations.

[5] The Crown urges that the trial judge’s cryptic finding should be read as his conclusion that he has considered the LTO criteria, and found that the appellant does not meet them regardless of whether the appellant also meets the DO criteria. While we do not think such a reading is possible, even if it were, it would constitute reversible error. The trial judge offers no clear explanation for reaching the conclusion that appellant does not meet the LTO criteria, nor does the evidentiary record provide any adequate basis for such a finding, since everyone was of the view that it was not available as a matter of law, and presented the case accordingly.

[6] Because of this misapprehension, this appeal is not one of those “rarest of circumstances” in which the proviso can be applied to sustain the result. As was the case in Johnson, supra, the record here discloses insufficient evidence to conclude that there is no reasonable possibility that the appellant would have been declared a long-term offender had the parties considered these provisions to apply, presented their case on that basis and had the trial judge addressed the issue.

[7] The appeal must therefore be allowed, the dangerous offender designation set aside, and a new sentencing hearing held.

“S.T. Goudge J.A.”

“Janet Simmons J.A.”

“Robert P. Armstrong J.A.”