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. Subsections 486(3) and 486(5) of the Criminal Code provide:

486.(3) Subject to subsection (4), the presiding judge or justice may make an order directing that the identity of a complainant or a witness and any information that could disclose the identity of the complainant or witness shall not be published in any document or broadcast in any way, when an accused is charged with

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 170, 171, 172, 173, 210, 211, 212, 213, 271, 272, 273, 346 or 347,

(ii) 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

(iii) 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; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i), (ii) and (iii).

(5) Every person who fails to comply with an order made under subsection (3) or (4.1) is guilty of an offence punishable on summary conviction. R.S., c. C-34, s. 442; 1974-75-76, c. 93, s. 44; 1980-81-82-83, c. 110, s. 74, c. 125, s. 25; R.S.C. 1985, c. 19 (3rd Supp.), s. 14; c. 23 (4th Supp.), s. 1; 1992, c. 21, s. 9; 1993, c. 45, s. 7; 1997, c. 16, s. 6; 1999, c. 25, s. 2; 2001, c. 32, s. 29; 2001, c. 41, s. 16, 34 and 133(13), (14); 2002, c. 13, s. 20.

DATE: 20060203

DOCKET: C39096

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – J.F.H. (Appellant)

BEFORE:

McMURTRY C.J.O., GOUDGE AND BORINS JJ.A.

COUNSEL:

Timothy E. Breen

for the appellant

Randy Schwartz

for the respondent

HEARD & RELEASED ORALLY:

January 26, 2006

On appeal from the conviction by Justice Casey Hill for the Superior Court of Justice dated May 2, 2001 and from the sentence imposed by Justice Casey Hill dated January 18, 2002.

E N D O R S E M E N T

[1] Despite the fact that this case preceded R. v. Johnson, the appellant acknowledges that Justice Hill correctly anticipated and applied the legal approach mandated for dangerous offender applications by the Supreme Court of Canada in that case.

[2] However, the appellant argues that the trial judge erred in applying this approach because he failed to consider whether the appellant could be safely controlled in the community through supervision rather than treatment. With respect, we do not read his reasons that way.

[3] The trial judge begins his analysis of the reasonable possibility of eventual control in the community by expressly referring to the separate concepts of treatment and supervision. He acknowledges that in determining the proper disposition, he must take account of both “the treatability” of the offender and “whether with extrinsic control and management measures” there is a reasonable possibility of eventual control in the community.

[4] The trial judge was thus clearly alive to the task of considering not just treatment, but also supervision, in deciding whether the appellant can be safely controlled in the community.

[5] He found that at present there is no realistic prospect of responsive treatment for the appellant. If treatment is all he thought was necessary to consider, he would not have gone on as he did to address the various ways that the appellant in the past has demonstrated a reluctance to be restrained by orders or rules, in other words, to be supervised.

[6] Ultimately, he concluded that there is not a realistic prospect of management of the risk in the community following a determinant custodial sentence. He reached this end point in light of his view of both the appellant’s treatability and the possibility of his being sufficiently supervised. Taking these into account, and on the basis of ample evidence, he found the risk posed by the appellant to be unacceptable. He did not err in doing so.

[7] The appeal must be dismissed.

“R. R. McMurtry C.J.O.”

“S. T. Goudge J.A.”

“S. Borins J.A.”