W A R N I N G
The President of the panel hearing this appeal directs that the following should be attached to the file:
A non-publication and non-broadcast order in this proceeding under s. 486(3) of the Criminal Code, concerning the identity of and any evidence that would tend to identify the complainant(s), shall continue. As relevant in this case, s. 486(3) and s. 486(5) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under s. 486(3), read:
486.(3) Subject to subsection (4), where an accused is charged with
(a) an offence under section 151, 152, 153, 155, 159, 160, 170, 171, 172, 173, 210, 211, 212, 213, 271, 272, 273, 346 or 347,
(b) an offence under section 144, 145, 149, 156, 245 or 246 of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or
(c) an offence under section 146, 151, 153, 155, 157, 166 or 167 of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988,
the presiding judge or justice may make an order directing that the identity of the complainant or of a witness and any information that could disclose the identity of the complainant or witness shall not be published in any document or broadcast in any way.
(5) Every one who fails to comply with an order made pursuant to subsection (3) is guilty of an offence punishable on summary conviction.
DATE: 20050331
DOCKET: C37871
COURT OF APPEAL FOR ONTARIO
WEILER, GOUDGE and FELDMAN JJ.A.
B E T W E E N :
HER MAJESTY THE QUEEN
Karen Shai
for the appellant
Applicant/Appellant
- and -
Paul Calarco
for the respondent
NOEL JOSHUA McCALLUM
Respondent
Heard: September 10, 2004
On appeal from the decision of Justice Paul J. Cosgrove of the Superior Court of Justice, dated February 6, 2002, dismissing a dangerous offender application.
FELDMAN J.A.:
[1] The Crown appeals from the trial judge’s decision not to declare the respondent a dangerous offender, but rather a long-term offender. The sentencing judge imposed a determinate sentence for the predicate offence of sexual assault causing bodily harm of four years, following three years and seven months pre-hearing custody, together with a ten-year supervision order in the community.
[2] The Crown submits that the sentencing judge made errors of law that taint his factual findings and allow this court to either order a new hearing, or to find the respondent to be a dangerous offender. For the reasons that follow, I would allow the appeal, set aside the long-term offender designation and order a new sentencing hearing.
FACTS
[3] For the purposes of the appeal, the parties agreed to the facts of the predicate offence and of the respondent’s prior convictions. I reproduce the agreed facts in paras. [4]-[13] below, as they set out succinctly, but fully, the nature and extent of the respondent’s violent criminal history.
The Predicate Offence
November 9, 2000 – Sexual Assault Causing Bodily Harm
[4] On the evening of June 30, 1998, the respondent met the fifty-five year old victim, B.D. in a downtown restaurant in Kingston, Ontario. They had some drinks and then walked to a second public house where they had at least one more round of drinks. They left that bar and walked south on Clergy Street away from the main street which is Princess Street. B.D. was under the influence of alcohol by this time. The respondent hit B.D. on the head and pushed her to the ground of an alleyway. When she attempted to get up and get away, he again pushed her to the ground. She removed her shorts and panties because of the respondent’s threats, her fear of the respondent and her fear of further violence. The respondent had sexual intercourse with her against her will and there was DNA evidence to support the fact that intercourse with ejaculation occurred.
[5] The trial judge found that “[s]he had been hit on the head, thrown on the ground and raped”. The victim suffered a deep wound to her right forehead that required two layers of stitches. There were also injuries to her cheek, her eye and a small cut beside her mouth, as well as bruising to her collarbone, back and shins. The trial judge found these injuries constituted bodily harm.
[6] The respondent testified at trial. It was his evidence that the sexual relations between himself and the complainant were entirely consensual. He denied hitting the complainant and testified that she had no injuries on her face. On November 9, 2000 he was convicted of sexual assault causing bodily harm.
[7] The respondent committed this offence eight and one-half months after serving sentences totalling nine years for two aggravated sexual assaults.
Prior Convictions
(a) 1980 – Unlawful confinement, break, enter and theft, theft over (x2)
[8] On July 24, 1980, at the age of sixteen, the respondent broke and entered the home of D.K. and waited for her to arrive. She was a worker at Ranch Ehrlo, the group home where the respondent then resided. When she arrived home, the respondent knocked her to the floor, threatened her, and asked if he “could feel her up”. She refused saying that she would yell and fight him as much as possible. He pointed an eight-inch steak knife at her and said something to the effect of, “if you do anything foolish I’ll be forced to use this”. They sat and talked from 1:30 a.m. to 3:30 a.m. They decided to go out for food. They took her car to a restaurant but saw police there and so returned to her apartment. When they returned, he allowed her to lie down in her bedroom and he subsequently left her apartment some time around or after 6:30 a.m. The respondent admitted to police that he entered the apartment through a window and had six beers. He also admitted that he threatened to kill her if she gave him any trouble. As a result of his actions on this occasion he was convicted on August 15, 1980 of break, enter and theft, two counts of theft over, and unlawful confinement. He was sentenced to nine months imprisonment with twelve months probation to follow.
(b) 1983 - Assault
[9] On December 14, 1983, the respondent was convicted of assault. On March 12, 1983 Regina Police were dispatched to the General Hospital where they met the victim, C.M. He had sustained a large bump to his forehead and various scratches to his head and back. His left knee was badly scraped. When arrested the respondent admitted to assaulting the victim because of an earlier verbal exchange. The respondent stated that he had “jumped all over” the victim and struck him “30 or so” times.
(c) 1984 – Assault causing bodily harm
[10] On October 21, 1983, the respondent was observed by the victim, C.Y., as he was attempting to break and enter her apartment via a window. The victim exited that apartment building’s door to investigate and was punched in the nose by the respondent, who then fled. The victim was taken to hospital where she was diagnosed by the doctor as having a cracked nose. The respondent was convicted of assault causing bodily harm on January 26, 1984 and sentenced to nine months concurrent with the sentence being served at the time.
(d) 1984 – Aggravated sexual assault
[11] On November 14, 1983, the victim, S.D., left a party with the respondent some time after 10:00 p.m. They were to go to another party that the respondent knew about. On the way, the respondent attacked the victim, beat her severely about the face and the head, threatened her and raped her. The doctor who treated the victim described, in part, the injuries he examined on November 16th as generalized facial swelling, a very large bruise over the right temple and right cheek, a crack fracture of the nasal bone, large swelling of the lower lip on the right side and two missing teeth. On January 27, 1984 the respondent was convicted of aggravated sexual assault and sentenced to four and one-half years in prison.
(e) 1988 – Aggravated sexual assault, break, enter and theft
[12] On April 17, 1987, while on parole for just over two months, the respondent broke and entered the residence of the victim, a fifty-five year old widow named N.P. Upon retiring to her bedroom, she was grabbed from behind by the respondent who pushed her into the living room and pulled her nightgown up over her head, obscuring her vision. The respondent shoved the victim to the floor, punched her in the face and sexually assaulted her from behind, causing such injury to her vagina that she required surgery. The respondent dragged her back into the bedroom where he made her kneel down; he then tied her hands behind her back, took some money and fled. On October 13, 1988, the respondent was convicted of aggravated sexual assault, break and enter and the indictable offence of sexual assault. He was sentenced to four and one-half years in prison and prohibited from possessing a firearm for a period of ten years.
(f) 1988 – Aggravated sexual assault
[13] On July 4, 1987, at approximately 2:30 a.m., the victim M.P. left her basement apartment to go to a laundry room next door. She was grabbed from behind by the respondent, dragged back into her apartment, thrown on the bed and had her clothes torn off. The respondent put a pillow over her head and smothered her to the point of near unconsciousness. The respondent then removed the pillow, took off the pillowcase and wrapped the pillowcase around the victim’s neck before jamming it into her mouth. He then subjected the victim to anal intercourse. He stole some money and left. The victim was forty-six years old and suffered from cerebral palsy which caused her to have difficulty speaking and to experience involuntary leg spasms. She was also somewhat crippled. On October 13, 1988 the respondent was convicted of aggravated sexual assault and sentenced to four and one-half years consecutive.
[14] The unfortunate consequence of the respondent’s criminal activity for him is that, at the age of 41 years old, he has been out of custody since the age of 19 for just over one year in total.
THE SENTENCING JUDGE’S FINDINGS
[15] At the sentencing hearing, the trial judge had the opinion reports from the Crown expert psychiatrist, Dr. Bradford, and from the defence expert psychologist, Dr. Satterberg. Both were cross-examined on their reports at the hearing. The trial judge also had as exhibits the respondent’s full prison record, which included various medical and psychological reports.
[16] Dr. Bradford’s opinion was that the respondent suffered from severe psychopathy and sexual sadism. He concluded that the respondent had no insight into his behaviour, that he was indifferent to his victims, and that his behaviour was directed toward degradation, humiliation and the infliction of pain and fear on his victims. Dr. Bradford stated that although treatment is possible where there is sexual sadism, it is a prolonged and difficult process that involves sex-drive reducing medication as well as good insight, high motivation and co-operation by the perpetrator. In the case of the respondent, Dr. Bradford’s opinion was that because he had no insight into his behaviour, which the doctor characterized as “rape-prone” and “sexually sadistic,” and because he saw no need for treatment and showed very little guilt or remorse, he was not a candidate for treatment.
[17] In contrast, Dr. Satterberg’s view was that the respondent had only borderline, not severe, psychopathy, and did not suffer from sexual sadism. Dr. Satterberg stated that the respondent had expressed remorse to him, although he believed that “there is further growth in this area that may be possible.” On the potential for treatment, he concluded that the issue of whether the respondent was treatable had “not been exhausted,” and that in his view, there was a reasonable possibility of eventual control of the respondent in the community, although he stated it would take a long time.
[18] The trial judge accepted the opinion of Dr. Bradford on one issue, and of Dr. Satterberg on the others. The trial judge questioned Dr. Satterberg’s rejection of the diagnosis of sexual sadism, in light of the earlier conclusion of another psychologist at the Kingston Penitentiary, Dr. Bellemore, who stated in a 1994 report that the respondent’s three convictions (at that time) for aggravated sexual assault “point to the presence of a sexual disorder (sexual sadism).” The trial judge accepted Dr. Bradford’s diagnosis of sexual sadism based on the pattern of conduct surrounding the sexual assaults, which were “sometimes brutish” and involved “enjoyment or sexual excitement”.
[19] However, the trial judge rejected Dr. Bradford’s interpretation of the psychopathy checklist results of the test administered to the respondent by both experts. He preferred Dr. Satterberg’s interpretation, namely, that the results indicated borderline, rather than severe psychopathy.
[20] He also preferred Dr. Satterberg’s opinion that the respondent had shown remorse. He rejected Dr. Bradford’s opinion that the respondent’s “flat effect” [sic] reflected a lack of remorse, not other factors such as his childhood, his prison experience or his cultural traits.
[21] Finally, the trial judge rejected Dr. Bradford’s opinion that the respondent was not motivated for treatment. The trial judge viewed this opinion as based on the respondent having taken issue, in communication with Dr. Bradford, with aspects of his record and the contents of reports. The trial judge pointed out that Dr. Bradford acknowledged in cross-examination that these complaints by the respondent were not actual refusals of treatment. Because Dr. Bradford had never actually asked the respondent if he would be willing to accept the medication, the trial judge also rejected Dr. Bradford’s opinion that the respondent would not be amenable to the required drug therapy.
[22] The trial judge concluded that the respondent should not be found to be a dangerous offender but rather a long-term offender because, in the words of s. 753.1(1) of the Criminal Code, there was a reasonable possibility of eventual control in the community of the risk that the respondent would re-offend. The trial judge based his conclusion on his acceptance of the evidence of Dr. Satterberg, and his reliance on several positive references or observations of the respondent contained in the respondent’s psychological file, and referred to by Dr. Satterberg.
[23] The trial judge sentenced the respondent to a definite term of imprisonment of four years, and a ten-year long-term supervision order. He recommended to the prison authorities that the respondent be imprisoned in a facility where he would obtain, as soon as possible, sex offender treatment, substance abuse therapy, anger management counselling, life skills and occupational training. He also recommended to the Parole Board four specific conditions of the supervision order: (1) that the respondent take medication as prescribed, including anti-androgen therapy as part of his treatment for sexual or alcohol problems; (2) that he be physically surveilled through electronic monitoring; (3) that he be subject to random drug testing; and (4) that he attend for any treatment or counselling initiatives identified by the Board, including aboriginal cultural initiatives, and that he fully co-operate in that regard.
ISSUES
[24] The appellant’s position is that the trial judge erred in law by failing to declare the respondent a dangerous offender. The appellant argues that the trial judge made two errors of law in his interpretation of the dangerous and long-term offender provisions and his perception of the evidence. First, he failed to give weight to the purpose of the dangerous offender provisions, which is the protection of the public. Second, the evidence he relied on as the basis for his finding amounted to no more than hope and speculation and could not ground the conclusion that there is a reasonable possibility of eventual control of the respondent in the community. The respondent says that the trial judge made no error, and that the Crown simply failed to satisfy the court that there was no reasonable possibility that the respondent could be controlled in the community.
ANALYSIS
[25] In R. v. Johnson (2003), 2003 SCC 46, 177 C.C.C. (3d) 97 (S.C.C.), the Supreme Court set out the procedure for trial judges to follow when considering a dangerous offender application under the amended provisions that came into effect on August 1, 1997 and included the new long-term offender designation. Section 753 of the Criminal Code sets out the criteria that must be met before the court may find a convicted person to be a dangerous offender. The section provides:
- (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,
(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 or her sexual impulses.
(4) If the court finds an offender to be a dangerous offender, it shall impose a sentence or detention in a penitentiary for an indeterminate period.
(5) If the court does not find an offender to be a dangerous offender,
(a) the court may treat the application as an application to find the offender to be a long-term offender, section 753.1 applies to the application and the court may either find that the offender is a long-term offender or hold another hearing for that purpose; or
(b) the court may impose sentence for the offence for which the offender has been convicted.
[26] Although a trial court has a discretion whether to designate an offender as dangerous even when the offender meets the criteria in s. 753(1), once the designation of dangerous offender is made, the trial judge is obliged to sentence the offender to detention for an indefinite period (s. 753(4)).
[27] Section 753.1(1) sets out the criteria for a finding that a convicted person is a long-term offender. That section provides:
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.
[28] In Johnson, the Supreme Court held that on a Crown application for designation as a dangerous offender, the procedure is that the Crown must first establish the dangerous offender criteria under s. 753(1)(a) or (b). If the Crown establishes either of those criteria, then the court, in exercising its discretion whether to declare the offender a dangerous offender, must first consider whether the less restrictive long-term offender provisions are sufficient to protect the public and reduce to an acceptable level the threat that the offender will re-offend. (para. 29)
[29] The Supreme Court held at para. 32 that where the criteria for both designations are satisfied, “[I]f the public threat can be reduced to an acceptable level through either a determinate period of detention or a determinate period of detention followed by a long-term supervision order, a sentencing judge cannot properly declare an offender dangerous and sentence him or her to an indeterminate period of detention.”
[30] In this case, the trial judge did not have the benefit of the procedural direction from the Supreme Court in Johnson, and he did not make specific findings under s. 753 that the respondent satisfied the criteria for designation as a dangerous offender. He viewed the issue on the motion as whether the respondent should be found to be a dangerous or a long-term offender, and focused on determining whether the respondent satisfied the criteria to be designated a long-term offender and sentenced as such. It may be that the trial judge was proceeding on the basis that the Crown had established the criteria for a dangerous offender designation. In any event, although the trial judge did not engage in the full procedure mandated by the Supreme Court, because he focused first on the lesser sentence and its availability for this offender, he effectively approached the case in the order envisioned by the Supreme Court, and I would not find an error on that basis.
[31] In addressing the three components of s. 753.1(1), the trial judge concluded that given the gravity of the predicate offence, it was appropriate to impose a sentence of two years or more and therefore s. 753.1(1)(a) was satisfied. He identified the two issues in the hearing as s. 753.1(1)(b), the degree of risk that the respondent would re-offend and s. 753.1(1)(c), the possibility of eventual control in the community. The trial judge stated that because he was satisfied that there was a reasonable possibility of eventual control in the community, he was therefore not satisfied beyond a reasonable doubt that there was a likelihood that the respondent would cause future harm.
[32] The respondent concedes that if the trial judge meant by that conclusion that s. 753.1(1)(b) was not satisfied, he misstated the test. He therefore made an error of law in finding the respondent to be a long-term offender, because one of the three conditions required to make the designation is a finding that there is a substantial risk that the offender will re-offend. The respondent submits, however, that the trial judge in fact made no error of law, but was only conflating the two requirements of substantial risk to re-offend (s. 753.1(1)(b)) with reasonable possibility of eventual control of the risk in the community (753.1(1)(c)).
[33] In my view, the trial judge erred in law by failing to make a finding that there was a substantial risk that the offender would re-offend, as required by s. 753.1(1)(b). Even if the respondent’s interpretation of the trial judge’s intent is correct, the trial judge erred in law by failing to specifically address the issue of substantial risk and to make a finding of substantial risk to re-offend under s. 753.1(1)(b). By effectively skipping the steps of assessing the evidence on the issue of his risk to offend and making a finding on that issue, the trial judge may not have considered the evidence regarding the respondent’s potential for treatment in the proper context and therefore his potential for eventual control in the community in light of that risk. Without that finding this potential may have been over estimated.
[34] The trial judge’s key finding in this case was his conclusion that there was a reasonable possibility of eventual control of the respondent in the community. He stated that his finding was based on his acceptance of the evidence and argument of Dr. Satterberg. He was also impressed by the evidence of treatability contained in the institutional psychological file in the form of comments from doctors who had had contact with the respondent over the years.
[35] However, Dr. Satterberg’s opinion on the issue of treatability was only that the issue had not been exhausted. He stated that the treatment by “chemical castration” was beyond his expertise, but that it should be discussed with the respondent, although no one had discussed it with him to date. Nor did Dr. Satterberg have any specific discussions with the respondent as to his willingness to engage in treatment. Dr. Satterberg relied in part on positive remarks regarding the respondent’s progress in the two sexual offender programs that he attempted during the 1990s, but from each of which he was eventually expelled for rules infractions.
[36] The appellant points out that the comments in the institutional record that were relied on by the trial judge (and to a large extent by Dr. Satterberg as well) were taken out of context and were not representative of the overwhelmingly negative evidence in the historical record, as well as the facts of the sexual violence of the predicate offence and some of the prior offences. Importantly, several of these offences occurred after the respondent was released from prison and after the positive remarks made by prison authorities that were relied on by the trial judge.
[37] For example, in the 1986 Report by Drs. Green and Gordon regarding the respondent’s participation in a sexual offender program at the regional psychiatric center, the doctors observed that the respondent was making marked improvements in all areas and that they were surprised when he was found to be involved with illicit drugs. They concluded that despite his early release from the program, the respondent had “shown some progress and demonstrated the ability to benefit from treatment.”
[38] The trial judge relied on this comment from the 1986 report without addressing or assessing how valid such positive comments remained for an offender who committed three subsequent violent sexual offences, including two in 1987, shortly after his release from prison.
[39] The trial judge also referred to a 1994 pre-parole psychiatric assessment report from Dr. Dickey who discussed future treatment with the respondent. He felt that treatment was vital and had to include intermuscular treatment with sex drive reducing agents on an ongoing basis. The doctor noted that the respondent’s motivation was “somewhat tentative”, although “he did appear to clearly realize the need for avoiding re-offence.” However, the trial judge did not quote or discuss the impact of the next and final paragraph of the report which reads:
Unfortunately, I must concur with previous assessors in that, I feel he represents a very high risk for re-offense. I would recommend that he continue contact with Ambulatory Services and that his remaining time in custody include sexological treatment with a motivational component, hopefully, to persuade him to accept the above-mentioned treatment. Given his obvious intelligence, educational upgrading or vocational training is strongly recommended.
Nor did the trial judge consider in his analysis the fact that the predicate offense was committed just eight and one-half months after the respondent’s release from prison.
[40] The trial judge next referred to a 1997 report from Dr. Connell following the respondent’s expulsion from the sexual offender program at Kingston Penitentiary. The trial judge referred only to portions taken from the “family and personal background” section, while ignoring the balance of the report including the doctor’s observation that the respondent’s treatment needs relating to his primary problem of sexually violent behaviour remained unaddressed.
[41] Finally, the trial judge relied on pages 4-6 of Dr. Satterberg’s report, where he excerpted passages from the report of Dr. Connell on the respondent’s progress in the sex offender treatment program in 1997. The respondent was expelled for assaulting another inmate. After being given a second chance, he tested positive for illicit drugs. After being expelled from the group, he refused individual treatment. Although there are some positive comments in the report, the part quoted by Dr. Satterberg and the trial judge also contains many negative references including (1) the respondent’s lack of insight into his own behaviour and denial of any pattern of violence against women, (2) his lack of emotion when discussing his victims, and (3) his difficulty integrating what he learned into his behaviour.
[42] I share the concern raised by the appellant that the trial judge quotes selectively from the evidence, ignores significant and abundant negative evidence, and does not explain the basis upon which he chose to give weight to the evidence he accepted as opposed to the evidence he did not. Although it is for the trial judge to weigh the evidence, where there is cogent evidence that speaks directly against the conclusion reached by the trial judge, no obvious reasons to reject it and the judge does not explain in his reasons why that evidence was rejected, it is open to the court on appeal to conclude that the trial judge may have misapprehended the evidence or the weight to be accorded.
[43] In R. v. Sheppard (2002), 2002 SCC 26, 162 C.C.C. (3d) 298 (S.C.C.), Binnie J. stated at para. 55:
[r]easons acquire particular importance when a trial judge is called upon to address troublesome principles of unsettled law, or to resolve confused and contradictory evidence on a key issue, unless the basis of the trial judge’s conclusion is apparent from the record, even without being articulated.
In this respect, the trial judge’s reasons failed to address the evidence that contradicted his findings.
[44] In my view, the trial judge employed a highly selective approach to the evidence in coming to his conclusion that the respondent was treatable and therefore that there was a reasonable possibility of eventual control in the community. His failure to explain either the basis for his selection of positive and rejection of negative evidence, and most importantly, the basis for relying on historical positive reports that were undermined by subsequent events, amounted to an error in law in his perception of the evidence and therefore in his finding that the evidence supported his conclusion of treatability.
[45] The final support the trial judge relied on for his finding of treatability stemmed from his rejection of Dr. Bradford’s opinion that the respondent was not treatable and that he was not motivated for treatment. In particular, the trial judge discounted Dr. Bradford’s evidence because he did not discuss anti-androgen medication or treatment plans with the respondent. The trial judge found that this failure “seriously detracted from the weight of his views on treatability.” However, neither did Dr. Satterberg discuss treatment with the respondent nor did he have any basis on which to conclude that the respondent was willing to be treated for sexual sadism. Furthermore, the trial judge accepted Dr. Bradford’s diagnosis of sexual sadism and rejected Dr. Satterberg’s contrary view. Yet the trial judge did not analyze how Dr. Satterberg’s opinion regarding treatability could be reconciled with his failure to recognize or take account of the diagnosis of sexual sadism. Nor did the trial judge perform a similar analysis taking account of the sexual sadism component of Dr. Bradford’s diagnosis when rejecting his opinion that the respondent was not treatable.
[46] The issue for the trial judge was whether the evidence that the respondent was both motivated for treatment and treatable was sufficient to satisfy the court that the potential for eventual control in the community would satisfy the objective of the long-term offender provision for protection of the public.
[47] Case law from this court and from the British Columbia Court of Appeal under the former dangerous offender legislation and the amended provisions has held that in order to achieve the goal of protection of the public under the dangerous offender and long-term offender provisions, there must be evidence of treatability that is more than an expression of hope and that indicates that the specific offender can be treated within a definite period of time: R. v. Poutsoungas (1989), 1989 7104 (ON CA), 49 C.C.C. (3d) 388 (Ont. C.A.); R. v. Higginbottom (2001), 2001 3989 (ON CA), 156 C.C.C. (3d) 178 (Ont C.A.). In R. v. M.(J.S.) (2003), 2003 BCCA 66, 173 C.C.C. (3d) 75 (B.C.C.A.), the court stated that the basic purpose of the dangerous offender provision before the 1997 amendment was the protection of the public and that under the amended legislation, the test for achieving that goal is set out in s. 753.1(c), namely, whether there is a reasonable possibility of control in the community of the risk of the offender re-offending. The court also noted that the French version of the section requires “une possibilité réelle”, or a “real possibility”, which may require an even higher degree of certainty in the evidence than the English version, a “reasonable possibility”.
[48] In Johnson, decided a few months after M. (J.S.), the Supreme Court explained at para. 29 the relationship between the goal of protection of the public and the test for the long-term offender designation in this way:
In this case, the sentencing objective in question is public protection: see for example Lyons, supra, [1987 25 (SCC), [1987] 2 S.C.R. 309, 37 C.C.C. (3d) 1, 44 D.L.R. (4th) 193] at p. 329, and Hatchwell v. The Queen, 1974 203 (SCC), [1976] 1 S.C.R. 39, 21 C.C.C. (2d) 201, 54 D.L.R. (3d) 419, in which Dickson J. (as he then was) wrote, at p. 43, that the dominant purpose of preventive detention is “to protect the public when the past conduct of the criminal demonstrates a propensity for crimes of violence against the person, and there is a real and present danger to life or limb”. Absent such danger, there is no basis on which to sentence an offender otherwise than in accordance with the ordinary principles of sentencing. 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 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 section 753(1) have been met. [Emphasis added.]
[49] I agree with the submission made by the appellant that the evidence in this case amounted to no more than a hope that the respondent would either be amenable to treatment or that, if amenable, he would be treatable within a definite period of time. As I have explained, the trial judge erred in law in the selective manner that he approached the evidence of both Dr. Bradford and Dr. Satterberg and the institutional records. He did not assess the positive comments concerning the respondent’s progress in light of the subsequent negative comments, the diagnosis of sexual sadism and the respondent’s subsequent sexual violence. As a result his finding of a reasonable possibility of eventual control in the community is flawed and cannot stand.
THE FRESH EVIDENCE
[50] The respondent sought to introduce as fresh evidence some reports from the institution about his progress since the sentencing hearing. This evidence was admitted on consent.
[51] The respondent has successfully completed several courses including anger and emotions management and substance abuse and has received very positive performance reports on his work assignment. However, the most relevant and significant report is the Psychological Risk Assessment Report dated July 28, 2004. This report was requested by the respondent’s case management team. The report concludes in part:
It is the opinion of this writer that Mr. McCallum continues to be a HIGH risk for both violent and sexual recidivism. Given Mr. McCallum’s propensity for violence towards women, it is highly recommended that he complete a Sex-Offender High Intensity program before release is even remotely considered. Regardless of the programs he has already successfully completed, until such time that Mr. McCallum has successfully completed a SO-HI program and has addressed his criminogenic risk factors in this core domain, he will continue to be a HIGH risk. As noted, Mr. McCallum indicated that while he does want to take this program, he plans to wait until the Dangerous Offender application that is being pursued in Ontario is resolved. ... [Emphasis in original.]
[52] Rather than enhance the reasonableness or reality of the possibility of eventual control in the community, it is of concern that while professing a willingness to engage in the necessary treatment program contemplated by the order of the trial judge, which was to occur “as soon as possible” following the sentencing, the respondent has declined to actually participate in the treatment program while awaiting the outcome of this appeal. The fresh evidence rather supports the conclusion that treatability is a mere hope.
CONCLUSION
[53] Based on the errors of law made by the trial judge, I would allow the appeal and set aside the order designating the respondent a long-term offender. Under s. 759(4) of the Code, this court may substitute an order that the respondent is a dangerous offender or may order a new hearing. In my view, the most appropriate and fair disposition for the respondent is a new hearing where both parties may, if so advised, obtain and present current opinion evidence on the respondent and his prognosis.
Signed: “K. Feldman J.A.”
“I agree K.M. Weiler J.A.”
“I agree S.T. Goudge J.A.”