DATE: 20060929
DOCKET: C37175
COURT OF APPEAL FOR ONTARIO
ROSENBERG, ARMSTRONG and ROULEAU JJ.A.
B E T W E E N :
HER MAJESTY THE QUEEN
Respondent
- and -
JODY RORY ROBINSON
Appellant
Keith Wright for the appellant
Howard Leibovich For the respondent
Heard: April 18, 2006
On appeal from sentence and dangerous offender order imposed by Justice Nicholson D. McRae of the Superior Court of Justice dated June 26, 2000.
BY THE COURT:
[1] The appellant Jody Robinson appeals from an order declaring him to be a dangerous offender and from a sentence of indeterminate detention. At the appellant’s request, this appeal was dealt with in writing. We have received extensive written submissions from counsel for the appellant and from Crown counsel. For the following reasons the appeal is allowed, the dangerous offender order is set aside, and a new hearing is directed. We have reached this conclusion principally on the basis that the trial judge did not consider the effect of the long-term offender provisions as required by R. v. Johnson (2003), 2003 SCC 46, 177 C.C.C. (3d) 97 (S.C.C.) and because of procedural defects resulting from by the prosecution experts’ and the trial judge’s reliance on findings stemming from convictions that were subsequently set aside by this court: see R. v. Robinson (2001), 2001 24059 (ON CA), 153 C.C.C. (3d) 398 (Ont. C.A.). We give no effect to the appellant’s argument that a dangerous offender finding was unreasonable and that this court should impose a fixed sentence or find the appellant to be a long-term offender.
CHRONOLOGY
[2] To appreciate the impact of the principal grounds of appeal, it is important to understand at least an outline of the chronology. We set out the essential features below:
1993 Appellant acquitted of sexual assault but convicted of anal intercourse.
1995 Court of Appeal enters acquittal on anal intercourse charge.
April 4, 1996 Appellant first sees Dr. Girgla, a psychiatrist, for counselling.
March to July 1996 Appellant allegedly commits a series of offences involving L.S. [the London complainant]; the offences allegedly occurred in London and Mississauga, but were tried in London.
July 27, 1996 Appellant attacks S.N. [the Toronto complainant]; this attack gives rise to the predicate offences.
July 29, 1996 Appellant keeps regular appointment with Dr. Girgla; Dr. Girgla notices nothing unusual despite the fact that two days earlier the appellant viciously assaulted S.N.
August 1, 1997 Amendments to Part XXIV of Criminal Code, including long-term offender provisions, come into force.
November 1997 Appellant convicted of some, but not all, charges involving L.S. and sentenced to thirty months imprisonment; he appeals from these convictions.
April 19, 1999 With respect to the attack involving S.N., the appellant pleads guilty before McRae J. to sexual assault with a weapon, sexual assault causing bodily harm, unlawful confinement and uttering death threats.
June 26, 2000 McRae J. finds appellant to be a dangerous offender and imposes an indeterminate sentence.
March 28, 2001 Court of Appeal sets aside London convictions and orders a new trial; Crown draws up two indictments for London and Mississauga charges
October 9, 2001 Crown withdraws London indictment
September 26, 2003 Supreme Court of Canada releases reasons for judgment in R. v. Johnson and companion cases: R. v. Edgar (2003), 2003 SCC 47, 177 C.C.C. (3d) 122; R. v. Kelly (2003), 2003 SCC 50, 177 C.C.C. (3d) 126; R. v. Smith (2003), 2003 SCC 48, 177 C.C.C. (3d) 133; and R. v. Mitchell (2003), 2003 SCC 49, 177 C.C.C. (3d) 130.
November 14, 2003 Crown stays the Mississauga indictment, apparently because the complainant is unwilling to return to Canada to testify at a new trial.
THE FACTS
The predicate offences
[3] The trial judge characterized the offences against S.N. as offences of a brutal nature. We agree with that characterization. The following brief summary can hardly capture the seriousness of the crimes committed by the appellant.
[4] On Saturday, July 27, 1996, the appellant met S.N. and her friend in a bar. He made a number of attempts to have S.N. agree to go home with him. Eventually, she agreed to go to his car to exchange business cards so that they could make a future date. Once in the car, the appellant drove off with S.N. and headed to an isolated area, north of Toronto.
[5] With S.N. trapped in the car, the appellant began a series of horrendous acts against her. Over the course of the evening and in several locations he beat her, anally raped her on multiple occasions and forced her to put a stick in her anus and vagina. While terrorizing S.N. with threats of death, he repeatedly forced her to perform fellatio on him. He held a knife to her throat, whipped her with his belt and burnt her breast with a cigarette. She was compelled to burn herself, to play with herself for the appellant, and to ejaculate him. On several occasions the appellant defecated or urinated in S.N.’s mouth.
[6] This string of brutal acts continued until the appellant suddenly backed away from S.N. as if in shock and said: “Oh my God, I’m sorry. I can’t believe I did this to you.” He picked up a rope that he had removed from his trunk and said he was going to hang himself; he did not and he returned to the car. The appellant began to cry and said that he did not see S.N., but rather his ex-girlfriend (L.S.). He then drove S.N. back to the bar where she retrieved her car. She went home and called the police.
The impact on the victim
[7] The appellant’s offences have had a devastating impact on the victim. She initially attempted to return to work, but remained only a couple of months before she had to resign. She was also unable to return to school. Her relationship with a man that she was considering marrying ended.
[8] In February 1997, the victim had a complete break down. She had had a kidney transplant before the attack. The transplanted kidney went into irreversible rejection, possibly as a result of the stress from the attack.
[9] Three years later, the victim’s life was beginning to return to some semblance of normalcy when she was told by the police that these proceedings were beginning. She began to have nightmares again and needed to take tranquilizers. She has begun a new relationship with another man, but the relationship is strained and she remains fearful of men and of walking alone.
The appellant’s therapy before the attack
[10] In April 1996, the appellant attended at a Toronto area hospital and was referred to Dr. Girgla for counselling. The appellant reported that he had difficulty with a relationship with a woman in London. He said that he had moved to London to be with her, but later found out that she was seeing other men. He reported that he was very jealous and believed that he had problems controlling women. Dr. Girgla saw the appellant weekly from May 10 to July 29, 1996. Remarkably, when Dr. Girgla saw the appellant on July 29, only two days after the attack on S.N., the appellant seemed normal. Nothing in his presentation on that day suggested that anything was disturbing him or that he had done anything unusual. He said he was finally getting over the break-up with his ex-girlfriend.
[11] Dr. Girlga testified that, having spent so much time with the appellant without detecting any indication of the type of activity displayed in the predicate offences, it was apparent that the appellant had deep-seated problems. These problems far exceeded those for which Dr. Girgla was providing assistance.
The expert evidence
[12] Only the Crown called expert evidence at the dangerous offender hearing. Of the three experts, only Dr. Wilson, a psychologist, had spoken to the appellant. The appellant refused to speak to the Crown’s two expert psychiatrists, Dr. Glancy and Dr. Klassen.
(a) Dr. Wilson
[13] Dr. Robin Wilson met with the appellant at the Toronto Gaol where he was awaiting the Crown’s decision as to whether to proceed with the dangerous offender application. The purpose of the interview was to provide an opinion whether the appellant should be held until expiry of the 30-month sentence on the London charges. Dr. Wilson was aware of the facts underlying the Toronto convictions and a 1993 sexual assault allegation of which the appellant had been acquitted on appeal.
[14] Dr. Wilson testified that the appellant was eager to talk to him. However, because the appellant had been advised not to talk about the Toronto offences he said very little about them. He also said very little about the London charges and the London victim.
[15] Dr. Wilson concluded that the appellant suffered from a sexual behavioural disorder known as paraphilia. The paraphilia included components of sadism (deriving sexual pleasure from inflicting pain on others), rape proneness (deriving sexual pleasure from non-consensual sex), urophilia (sexual interest in urine), and coprophilia (sexual interest in feces). Dr. Wilson considered certain actuarial measures of dangerousness including the Psychopathy Checklist Revised (PCL-R) and the Sexual Offender Risk Appraisal Guide (SORAG), but concluded that he did not have sufficient information about the appellant to use those tests.
[16] A concern with all of the expert evidence was that the experts had originally been given a great deal of information. That information did not accord with the evidence placed before the trial judge. More importantly for the purposes of this appeal, the experts to some degree relied upon a version of facts relating to the London convictions. However, all the experts were asked whether they could make the sexual sadism diagnosis on the basis of the Toronto offences alone.
[17] Dr. Wilson testified that his diagnosis could be made on the basis of the Toronto offences alone. He also testified that the abnormality of the Toronto facts lead to a diagnosis of sadism that is predictive of future sadistic behaviour:
Using the information found in the agreed statement of fact, the description of the events and the nature of the behaviour that took place … it is my opinion that any ... clinician of reasonable competence would arrive at a diagnosis much the same as mine.
[18] However, Dr. Wilson also relied on the London convictions and their underlying facts to support his conclusions. He noted similarities between the facts of the two sets of offences, especially the urination, defecation and use of foreign objects, which added a certain degree of reliability to his diagnosis:
The information available with respect to the offence history for Toronto is in and of itself sufficient to make the diagnosis. The information from London adds a certain degree … of reliability to that … diagnosis.
While he went on (in response to a leading question from Crown counsel) to affirm that his diagnosis stands even if he were to “factor out” the London offences, he continued to refer to information relating to the London offences during his testimony. For example, he referred to the psychological impact on the London victim, and relied on the London occurrence as an indication that the appellant’s behaviour in the Toronto occurrence was not an isolated incident. However, he also testified that “on an actuarial basis, [it] would be highly improbable” that the Toronto incident was an isolated event since he had “great difficulty conceiving how anybody could … commit the types of offences that Mr. Robinson committed without meeting [his] diagnosis [of sexual sadism]”.
[19] Notably, Dr. Wilson testified that the two sets of offences revealed a pattern of behaviour that could be the basis for a dangerous offender finding. However, since the Crown does not rely on a pattern of behaviour as a basis for the dangerous offender finding, we need not further consider this part of Dr. Wilson’s opinion.
[20] Dr. Wilson considered the appellant to be at high risk to re-offend on the basis of the Toronto offences alone. He testified that there is no cure for a paraphilic disorder. While treatment stands a reasonable chance of aiding an offender to remain offence free, it would be particularly difficult for the appellant to achieve success even with treatment to control his urges to engage in aggressive sexual behaviour. He believed that the appellant would still be at risk to re-offend after serving a lengthy (14-year) penitentiary sentence.
[21] Dr. Wilson also pointed out the high cost of failure because of the seriousness of the harm (including death) a sexual sadist may inflict on his victim. He said:
However, being that is my opinion that [sexually sadistic behaviour] is his preference, and given that if he should happen to have a momentary lapse and fall back into that preference, the risk of him harming somebody to the extent that the victims in these cases were harmed is a risk that I don’t think the community can take.
[22] Dr. Wilson testified that the treatment that might be available for the appellant would have to include relapse prevention therapy and medication to reduce his sex drive.
[23] Dr. Wilson was asked about the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV) definition of sexual sadism. He acknowledged that to make a diagnosis of paraphilia, including sexual sadism, the DSM-IV requires that the relevant fantasies, urges or behaviour persist for a period of at least six months. This requirement safeguards against making a diagnosis with an insufficient basis. Dr. Wilson, however, considered that he could make the diagnosis in the appellant’s case using his own definition which, in his view, was more generally accepted in the sexological community than the DSM-IV definition.
(b) Dr. Glancy
[24] Dr. Graham Glancy is a forensic psychiatrist and has been involved in a number of dangerous offender proceedings. Dr. Glancy knew and respected Dr. Wilson and relied on his findings, particularly given the fact that Dr. Wilson had the opportunity to meet with the appellant. His findings were generally consistent with Dr. Wilson’s, although he considered rape proneness, urophilia and coprophilia as incorporated in the sexual sadism diagnosis.
[25] Dr. Glancy was also asked to “factor out” the London offences. He too was still prepared to make the sexual sadism diagnosis: “[B]ut it could not be made as firmly if there were not the two incidents but nevertheless the Toronto incident or series of incidents in and of themselves clearly suggests the diagnosis and it’s not uncommon that we see people with just one incident of a sexually sadistic nature”.
[26] Dr. Glancy agreed that based only on the Toronto offences, the appellant did not fit the DSM-IV criteria, but he explained that for the purposes of making the diagnosis in this case that was not important. In the course of his explanation Dr. Glancy seemed to rely upon the “supportive evidence from the London incident”. He also seemed to engage in the somewhat circular reasoning that since sexual sadists are known to have engaged in thoughts, fantasies and urges for a long period of time prior to engaging in the sexually sadistic behaviour, “this would fulfill the DSM-IV criteria”. Dr. Glancy came to this conclusion with no information that the appellant had in fact engaged in those kinds of thoughts and fantasises before the London or Toronto offences.
[27] Dr. Glancy was also of the view that the Toronto incident could not be viewed as an isolated incident in response to the break-up of the appellant’s relationship with the London victim. As he said:
When we add in the Toronto incident, which was more brutal, more clearly indicated some planning and rehearsal and also wasn’t directly in the setting of the break-up of the relationship, it was some time after the break-up of the relationship and in fact at a time where he was in psychiatric treatment and appeared to be resolving the feelings engendered by the break-up of the relationship, it actually suggests that this was more clearly evidencing acting out on a sexually sadistic fantasy than being related to the break-up of the relationship.
[28] Dr. Glancy testified that many people in the field believe that sexual sadists are not treatable through cognitive behavioural therapy and that there is little evidence that sadists have been successfully treated. He also testified that “many in the field would feel uncomfortable treating [sexual sadists] in the community even by [sex drive reducing medications]” because “there’s very little documented evidence that any methods actually work with sexual sadists, and second of all, the risks are so high if treatment fails”. Dr. Glancy surmised that the offences that the appellant committed in the future would likely be of a similar nature because of what seemed to be an ingrained sexual preference. He also pointed out that the crimes of some sexual sadists escalate and that “even the two groups of offences before the Court seem to show some element of escalation in a short period of time”.
[29] Dr. Glancy predicted that the appellant would be difficult to manage in the community because of his demonstrated ability to deceive his therapist. If he were released into the community, he would require lifelong monitoring. However, Dr. Glancy also testified that if various other problematic aspects of the appellant’s character could be managed, such as his drinking, then “it’s possible that he could be managed with sex drive reducing medication”.
(c) Dr. Klassen
[30] Dr. Philip Klassen is also a forensic psychiatrist. He is a consultant at the Clarke Institute of Psychiatry and head of the forensic consultation service at the Centre for Addiction and Mental Health. He has dealt with over a thousand sex offenders and one of his areas of expertise is in the diagnosis of disorders suffered by violent and sexual offenders. As with the other experts, Dr. Klassen originally came to his opinion based upon the London and Toronto offences. An additional concern with Dr. Klassen’s opinion was that he had completed actuarial assessments of the appellant using the SORAG and the Static-99 test based on information from the London and Toronto offences as well as other information not in evidence before the trial judge. During the hearing, he was asked to redo the assessments without this information.
[31] Like the other experts, it was Dr. Klassen’s opinion that, on the basis of the Toronto offences alone, the appellant suffers from paraphilia consistent with sexual sadism. Taking into account the London offences shows the escalation in the seriousness of conduct usually seen with sexual sadists. Dr. Klassen pointed out a number of aspects of the Toronto incident that were highly consistent with sexual sadism. He did not believe that the appellant was a psychopath, but he did opine that the appellant suffered from a personality disorder.
[32] Dr. Klassen testified that, until they are apprehended, sadists will continue to offend. There is little information about recidivism among sadists because there are so few and they are rarely released from custody due to the seriousness of their crimes. The actuarial tools that Dr. Klassen used showed that the appellant was in a category of persons with a high likelihood to re-offend. If he were released, the appellant would need to receive psychological treatment and treatment with sex-drive reducing drugs for the foreseeable future.
THE TRIAL JUDGE’S FINDINGS
[33] The trial judge found the evidence that the appellant was a dangerous offender overwhelming. He found that the appellant met the criteria under each of ss. 753(1)(a)(i), (1)(a)(iii) and (1)(b) of the Criminal Code. In making these findings the trial judge appeared to rely upon the London and Toronto offences except in relation to s. 753(1)(a)(iii). That finding was based solely on the Toronto offences. Section 753(1)(a)(iii) provides as follows:
- (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
(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;
[34] The trial judge was also prepared to make the dangerous offender finding without resort to expert evidence:
Even in the absence of specialized psychiatric and psychological evidence, his conduct was so egregious and so beyond normal restraint, the court would, I believe, reach the same conclusion. The psychiatric and psychological evidence here is so strong, I have no hesitation finding him a dangerous offender.
[35] Following submissions, the trial judge then imposed a sentence of indeterminate detention. He accepted the expert evidence that the sexual sadism is chronic and cannot be changed by treatment:
Only his behaviour may be somewhat controlled with supervision and tight controls.
There is no evidence before me that he can be so controlled within a determinate period of time. My primary concern at this point is the protection of the public. It is impossible for me today to predict if his conduct will be controlled in the future.
ANALYSIS
The application of the long-term offender provisions
[36] On August 1, 1997, amendments to Part XXIV of the Criminal Code came into force. These amendments created a long-term offender regime. On this appeal, Mr. Leibovich, who was not Crown counsel at trial, concedes that the trial judge should have considered the new provisions. The applicability of the long-term offender provisions was authoritatively determined by the Supreme Court of Canada in R. v. Johnson in 2003, some three years after the hearing concluded in this case. In Johnson, the Supreme Court held that the accused was entitled to the benefit of the new regime, which was in force at the time of his second trial, even though he committed the predicate offence before the regime came into effect.
[37] The importance of the new regime to a potential candidate for a dangerous offender designation lies principally in the availability of the less Draconian designation of long-term offender. As the court pointed out in Johnson at para. 31: “Almost every offender who satisfies the dangerous offender criteria will satisfy the first two criteria in the long-term offender provisions.” The first two criteria for a long-term offender designation as set out in s. 753.1(1) are that (a) it would be appropriate to impose a sentence of imprisonment of two years or more; and (b) there is a substantial risk that the offender will reoffend.
[38] Importantly, the court held that even if an offender meets the criteria for a dangerous offender designation, the sentencing judge must still consider the applicability of the long-term offender provisions. Thus, leaving aside all the other arguments raised by the appellant in this case, it is no answer to his appeal that the trial judge found that he was a dangerous offender. Put another way, a court need not determine that the appellant does not meet the dangerous offender criteria before it can find the appellant to be a long-term offender: see R. v. Johnson at para. 39.
[39] The Crown submits that this appeal should be dismissed notwithstanding this error in law because the evidence adduced at the hearing did not demonstrate the third pre-requisite for a long-term offender designation, namely that “there is a reasonable possibility of eventual control of the risk in the community.” We will consider this submission further after dealing with the other errors alleged by the appellant.
Admissibility of the London allegations
[40] As indicated in the above chronology, at the time of the dangerous offender hearing the appellant had been convicted of offences in relation to L.S. Although those convictions were under appeal, Crown counsel at trial argued that he could rely on them and their underlying facts without calling L.S. The trial judge agreed and held that the Crown could rely upon the findings of fact made by the London trial judge in sentencing the appellant. The trial judge also held that the transcript of evidence from the London trial was admissible for its truth and as proof of the underlying facts of the convictions. Finally, the trial judge ruled that, by reason of the res judicata doctrine, it was not open to the appellant to challenge those facts.
[41] As indicated in the chronology, after the appellant was found to be a dangerous offender and sentenced, this court set aside the London convictions and ordered a new trial. The Crown has since stayed those charges as it has apparently been unable to convince the London complainant to return to Canada to testify. Crown counsel on this appeal concedes that the prosecution cannot rely upon the transcripts of the London trial as proof beyond a reasonable doubt of the underlying facts. We agree with that concession. As Crown counsel fairly points out, with the overturning of the convictions, the whole basis for the trial judge’s ruling as to the conclusiveness of the London trial judge’s findings and use of the London trial transcript had been removed. This court set aside the appellant’s convictions at the London trial because of serious errors in the conduct of the trial that deprived the appellant of a fair trial. It would not be appropriate to permit the prosecution in this proceeding to rely upon findings that were tainted in this way. It would also not be appropriate to permit the Crown at this stage to rely upon the transcript of the London complainant’s evidence as proof of the facts of those offences when, because of the trial judge’s ruling, the appellant had no opportunity to challenge those facts. Because the trial judge based his ruling on application of the res judicata doctrine he did not have to consider whether the transcript might be admissible on some other basis as, for example, as an exception to the hearsay rule. However, we should not be taken as having decided that a dangerous offender finding can never be upheld because some of the convictions upon which the finding was based were subsequently set aside on appeal. That issue was not fully argued in the written submissions.
[42] Crown counsel on this appeal argues that no substantial wrong was occasioned because a close examination of the expert evidence indicates that their opinions about the appellant’s dangerousness did not depend upon the facts of the London case. The Crown also argues that the trial judge would have found the appellant to be a dangerous offender even in the absence of the London findings. Again, we will consider this issue after dealing with the appellant’s other submissions.
The derivative evidence issue
[43] The appellant submits that some of the evidence that led to his dangerous offender designation came into existence as a result of the London convictions. He submits that this evidence is derivative of those convictions and should therefore be inadmissible. The evidence in question is the testimony of Joanne Miller and Dr. Wilson.
(a) Joanne Miller
[44] Joanne Miller was a case management supervisor for the Correctional Service of Canada. She met with the appellant in July 1999 while he was serving sentence for the London offences. The interview was part of the process to determine if the appellant should be held until the expiry of his warrant. At the time, the appellant had pleaded guilty to the Toronto offences and was awaiting the Crown’s decision as to whether it would proceed with the dangerous offender application.
[45] While Ms. Miller expressed certain opinions concerning the appellant, she was not qualified as an expert and the trial judge made no reference to her evidence. The admission of her evidence did not prejudice the appellant.
(b) Dr. Robin Wilson
[46] Ms. Miller contacted Dr. Wilson to assess the appellant’s potential to re-offend. Dr. Wilson is an expert in the assessment of sex offenders and the diagnosis of sexual behaviour disorders. We have already summarized Dr. Wilson’s evidence.
[47] The appellant submits that the admission of Dr. Wilson’s evidence deprived him of a fair hearing because it was derivative of the London convictions that have now been set aside. He argues that, were it not for the London convictions and sentence, he would not have been in the penitentiary and therefore not available for Dr. Wilson to examine. The appellant submits that admission of Dr. Wilson’s evidence in the circumstances is contrary to the principles of fundamental justice as guaranteed by s. 7 of the Canadian Charter of Rights and Freedoms.
[48] We do not accept the appellant’s submission. Aside from a vague allegation that it would be unfair to admit Dr. Wilson’s evidence, the appellant has not identified any particular principle of fundamental justice that is engaged by its admission. The appellant was convicted and sentenced in London before a superior court. That verdict and sentence was lawful and the appellant was serving a lawful sentence. He availed himself of the statutory right of appeal but, until the conviction was set aside, he was lawfully held in the penitentiary and was properly subject to the processes under the Corrections and Conditional Release Act, 1992, c. 20.
[49] Since Dr. Wilson’s evidence was lawfully obtained, the exclusionary rule in s. 24(2) of the Charter has no application. We note that where the admission of legally obtained evidence would render a trial unfair contrary to s. 11(d) of the Charter of Rights and Freedoms, that evidence must be excluded: see R. v. Harrer (1995), 1995 70 (SCC), 101 C.C.C. (3d) 193 (S.C.C.) at paras. 16 - 24. The appellant has not demonstrated that admission of this evidence rendered the trial unfair within the meaning of s. 11(d). In Harrer at para. 16, La Forest J. held that “in determining whether evidence should be admitted into evidence, [Canadian courts must] be guided by our sense of fairness as informed by the underlying principles of our own legal system as it applies to the specific context of the case.” We see no principles of our legal system that would be infringed by admission of this evidence. The appellant was aware of the purpose of Dr. Wilson’s interview; he had obtained and acted upon legal advice. There was no suggestion that the appellant’s statements to Dr. Wilson were involuntary or that the he felt compelled to talk to Dr. Wilson.
[50] Further, the decision of the Supreme Court of Canada in R. v. Jones (1994), 1994 85 (SCC), 89 C.C.C. (3d) 353 is against the appellant on this issue. In Jones, the accused had been examined, on a court-ordered remand, by two psychiatrists and a psychologist to determine whether he was fit to stand trial. He was not told that the results of the examinations might be used to determine whether he was a dangerous offender. The Crown later did bring a dangerous offender application and sought to rely upon the evidence of the psychiatrists and the psychologist. A majority of the Supreme Court held that the evidence was properly admitted and that the accused’s Charter rights were not infringed. Speaking for the majority at p. 396, Gonthier J. stressed the importance of a court being given access to the widest possible range of information in a dangerous offender hearing. He concluded that where psychiatric evidence has been legally obtained pursuant to a court-ordered remand the evidence should be admitted. As he said at p. 399, s. 7 “does not extend to a denial of critical evaluative evidence from psychiatrists legally gained at the pre-trial evaluation that may show whether the offender could qualify as a dangerous offender.” Dr. Wilson’s examination was lawfully conducted and the evidence was lawfully obtained. Its admission at the dangerous offender proceeding did not render the hearing unfair.
[51] We would not give effect to this ground of appeal.
The 1993 acquittals
[52] Both Ms. Miller and Dr. Wilson referred to the offences for which the appellant was tried in 1993. In 1993, the appellant was tried on a number of offences, including sexual assault and anal intercourse. He was acquitted of the former and convicted of the latter. In 1995, this court set aside the conviction: see R. v. Robinson, [1995] O.J. No. 1373 (C.A.). Ms. Miller and Dr. Wilson referred to these offences as part of the background information in the possession of correctional authorities.
[53] The appellant submits that the trial judge ought to have excluded evidence of these allegations. However, none of the experts, including Dr. Wilson, required this information to form their opinion concerning the diagnosis of the appellant as a sexual sadist or the likelihood that he would re-offend. There is no basis for believing that the trial judge placed any weight on this information. This evidence did not prejudice the appellant.
Unreasonable Verdict
[54] The appellant submits that the order declaring him to be a dangerous offender was unreasonable. There is no merit to this submission. There was sufficient evidence based solely on the Toronto offences to satisfy a finding that the appellant is a dangerous offender within the meaning of s. 753(1)(a)(iii). For convenience we repeat that provision:
- (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
(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;
[55] In our view, a trier of fact could reasonably find that the appellant’s treatment of the Toronto victim was 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”. The brutality of the crimes committed by the appellant is self-evident and this conduct is so beyond the normal range of behaviour that it is a reasonable inference that the appellant was unlikely to be inhibited by normal standards of behavioural restraint. The experts were able to diagnose the appellant as a sexual sadist based solely on the Toronto offences. Given that diagnosis, the appellant fit comfortably within the definition of a dangerous offender in s. 753(1)(a)(iii) of the Criminal Code. Contrary to the appellant’s submissions, the dangerous offender finding did not depend on the London convictions. The facts of the London convictions simply strengthened the experts’ opinions.
[56] The appellant points out that when the information relating to the London convictions was removed from Dr. Klassen’s actuarial assessments, the appellant achieved lower scores on these tests. Counsel for the appellant has also conducted a thorough review of the scoring of the various tests to show their frailties given the evidence available in this case. There is no doubt that this hearing was a difficult one because of the need to sort out the admissible and reliable evidence upon which the experts’ opinions could be based. This problem was exacerbated in this court because of the removal of the London convictions as a basis for making a dangerous offender finding.
[57] The appellant’s argument, however, overlooks the core concern in this case. The appellant was diagnosed by three experts as a sexual sadist, the most extreme form of paraphilia. The experts explained why they were confident in their opinions even though the appellant did not meet the DSM-IV definition. A trier of fact would be entitled to accept this evidence and their explanations. These experts testified that there was no known effective treatment for this disorder (short of castration) that could protect the public. The appellant offered nothing at the hearing to rebut this evidence.
[58] We would not give effect to this ground of appeal.
The impact of the admission of the London evidence and the Johnson case
[59] In R. v. Johnson at para. 50, the Supreme Court of Canada held that it will only be in the rarest of cases that a new hearing will not be required where a judge has failed to consider the long-term offender provisions:
Where the error of law consists of the sentencing judge’s failure to consider the availability of the long-term offender provisions, it is in only the rarest of circumstances, if any, that there will be no reasonable possibility that the sentencing judge would have imposed a different sentence but for the error. The criteria set out in the long-term offender provisions are substantially different from the criteria set out in the dangerous offender provisions. Therefore, the evidence and arguments that are relevant under the long-term offender application are not precisely the same as the evidence and arguments that are relevant under the dangerous offender application. Absent a thorough inquiry into the suitability of the long-term offender provisions at the sentencing hearing, it will be difficult, if not impossible, for an appellate court to be satisfied that the sentencing options available pursuant to the long-term offender provisions would have been incapable of reducing the threat of harm to an acceptable level. [Emphasis added.]
[60] The Crown argues that this is one of those rare cases. Counsel submits that based on the predicate (Toronto) offences alone the evidence shows that the appellant is a sexual sadist. The Crown also submits that the evidence at the hearing demonstrates that there is no reasonable prospect of treatment within the period of a determinate sentence and the maximum (ten-year) community supervision order available pursuant to a long-term offender designation. He submits that the viability of control in the community was canvassed with the experts and that the evidence shows that the appellant’s condition is untreatable and that he will remain a significant danger in the foreseeable future.
[61] While there is much to this submission, we are unable to accept it. The risk of harm if the appellant were sentenced to a determinate sentence was canvassed with the experts and they were all of the view that the appellant would remain a high risk to the community after serving a determinate sentence. They were, moreover, relatively pessimistic about the possibility of any kind of effective treatment at any time and they pointed out the high cost of failure. However, the question of risk following a determinate sentence and a ten-year supervision order was not canvassed with the experts.
[62] The “Johnson problem” is complicated in this case by the use of the London allegations. While the experts were all prepared to come to a conclusion that the appellant was a sexual sadist solely on the basis of the Toronto offences, it is also fair to say that their opinions were strengthened by their knowledge of the appellant’s conduct with the London victim. The London evidence also seems to have been a factor in the experts’ conclusions as to the likelihood of re-offending.
[63] For example, although Dr. Wilson was prepared to make his diagnosis solely on the basis of the Toronto offences, we think it fair to say that the strength of his opinion as to the likelihood that the appellant would re-offend depended, in part, on his understanding that the appellant had engaged in prior sexual assaults of a similar nature.
[64] We are also concerned that, although the experts were prepared to give an opinion solely on the basis of the Toronto offences, this was never the case that the appellant had to meet. He was always confronted with both sets of offences. It is not possible to say what evidence the appellant might have been able to adduce if he had only had to meet the Toronto offences or if he had been in a position to challenge the evidence of the London complainant.
[65] Thus, while we are not prepared to find that the dangerous offender designation in this case was unreasonable, we also cannot be satisfied that no miscarriage of justice resulted from the failure to consider the long-term offender provisions against the background of a record limited to the Toronto offences. Accordingly, there must be a new hearing.
[66] We add that we should not be taken as having decided that evidence of the London conduct is inadmissible at a new hearing in some form. That issue was not before us. It may be that the London complainant will be prepared to testify at the new hearing or that her trial evidence will be admissible in some fashion, perhaps as an exception to the hearsay rule. That will be a matter for the judge presiding at the new hearing.
DISPOSITION
[67] Accordingly, the appeal is allowed, the dangerous offender finding is set aside and a new hearing ordered.
Signed: “M. Rosenberg J.A.”
“Robert P. Armstrong J.A.”
“Paul Rouleau J.A.”