Her Majesty the Queen v. F.E.D. [Indexed as: R. v. D. (F.E.)]

84 O.R. (3d) 721

Court of Appeal for Ontario,

Sharpe, Simmons JJ.A. and Pardu J. (ad hoc)

April 5, 2007

Criminal law -- Dangerous offenders -- Sentencing judge erring in placing onus on Crown to prove beyond reasonable doubt that there was no reasonable possibility of eventual control of risk presented by accused in community -- Issue of whether public threat can be reduced to acceptable level through long-term offender provisions or determinate sentence not requiring either party to satisfy burden of proof -- Appropriate to designate accused long-term offender if judge satisfied on whole of evidence reasonable possibility of eventual control of offender's risk in community -- Accused should be designated dangerous offender if judge not satisfied criteria for long-term offender met or if uncertain whether met -- Crown arguing that appellate court should substitute dangerous offender designation as accused would inevitably have been found to be dangerous offender but for error regarding burden of proof -- New hearing required as trial judge making no findings of fact regarding conflicting psychiatric evidence -- Crown appeal from long-term offender designation allowed and new hearing ordered.

The accused was convicted of prostitution offences. He had a lengthy criminal record, including nine prior prostitution- related convictions. The Crown brought an application to have the accused declared a dangerous offender. The trial judge found that the statutory criteria for a dangerous offender were satisfied. However, he concluded that before the accused could be declared a dangerous offender, in addition to the statutory criteria, the Crown had to prove beyond a reasonable doubt that there was no reasonable possibility of eventual control of the risk the accused presented in the community. As he was not satisfied that the Crown had satisfied that burden, he dismissed the dangerous offender application, declared the accused to be a long-term offender and imposed a three-year sentence and a ten-year supervision order. The Crown appealed.

Held, the appeal should be allowed.

The trial judge erred in imposing a burden on the Crown to prove beyond a reasonable doubt that there was no reasonable possibility of eventual control in the community of the risk the accused presented. In the context of a dangerous offender application, the sentencing judge may exercise his or her discretion not to declare an offender dangerous after finding that the offender satisfies the statutory criteria for that designation if, he or she is satisfied that, the public threat can be reduced to an acceptable level through either the long- term offender provisions or a determinate sentence. This is not an issue that requires either party to satisfy a burden of proof; rather, it is an issue for the sentencing judge concerning whether to exercise his or her discretion based on the whole of the evidence adduced. If the judge is not satisfied that there is a reasonable possibility of eventual control in the community of the risk posed by the offender or if the judge is uncertain whether he or she is satisfied, the offender should be found to be a dangerous offender.

The Crown asked that the court make the finding that the accused was a dangerous offender. The defence nominated psychiatrist, although stating that the offender's prospects for rehabilitation were poor and the risk he posed of future [page722] violence moderately high to high, nonetheless expressed doubt about whether the accused fitted the criteria for designation as a dangerous offender. The trial judge made no findings of fact regarding the defence psychiatrist's evidence and, as a result, this is not an appropriate case for substituting a finding that the accused is a dangerous offender. A new hearing is ordered.

APPEAL from the judgment of O'Flynn J. of the Superior Court of Justice, dated April 22, 2005, dismissing a dangerous offender application and sentencing the accused as a long-term offender.

Cases referred to R. v. A.P.A., [2003] B.C.J. No. 1503, 2003 BCCA 376, 184 B.C.A.C. 268; R. v. B.R.B., [2002] B.C.J. No. 2363, 2002 BCCA 420, 174 B.C.A.C. 243; R. v. D.B.B., [2004] O.J. No. 1395, 62 W.C.B. (2d) 247 (S.C.J.); R. v. J.J.M., 2006 NBCA 39, [2006] N.B.J. No. 166, 297 N.B.R. (2d) 355, 771 A.P.R. 355, 208 C.C.C. (3d) 312 (C.A.); R. v. Johnson, 2003 SCC 46, [2003] 2 S.C.R. 357, [2003] S.C.J. No. 45, 230 D.L.R. (4th) 296, 308 N.R. 333; R. v. Johnson, 2001 BCCA 456, [2001] B.C.J. No. 2021, 159 B.C.A.C. 255; R. v. Lemaigre, 2004 SKCA 125, [2004] S.J. No. 589, 254 Sask. R. 255, 336 W.A.C. 255, 189 C.C.C. (3d) 492 (C.A.); R. v. R.M., [2005] O.J. No. 4977, 68 W.C.B. (2d) 78 (S.C.J.); R. v. Wormell, 2005 BCCA 328, [2005] B.C.J. No. 1289, 198 C.C.C. (3d) 252 (C.A.) [Leave to appeal to S.C.C. refused [2005] S.C.C.A. No. 371], consd Other cases referred to R. v. A.O., [2007] O.J. No. 800, 2007 ONCA 144, 222 O.A.C. 38; R. v. Currie, [1997] 2 S.C.R. 260, [1997] S.C.J. No. 10, 146 D.L.R. (4th) 688, 211 N.R. 321; R. v. Guilford, [1999] O.J. No. 4894, 44 W.C.B. (2d) 523 (S.C.J.); R. v. H. (M.B.) (2004), 70 O.R. (3d) 257, [2004] O.J. No. 1679, 185 O.A.C. 319, 186 C.C.C. (3d) 62 (C.A.); R. v. Lyons, [1987] 2 S.C.R. 309, [1987] S.C.J. No. 62, 82 N.S.R. (2d) 271, 44 D.L.R. (4th) 193 (sub nom. Lyons v. R.); R. v. M. (S.H.), [1989] 2 S.C.R. 446, [1989] S.C.J. No. 93, 69 Alta. L.R. (2d) 209, 100 N.R. 1, 50 C.C.C. (3d) 503 (sub nom. R. v. S.H.M.) Statutes referred to Criminal Code, R.S.C. 1970, c. C-34, Part XXI, s. 687 Criminal Code, R.S.C. 1985, c. C-46, ss. 653, 718-718.2 [as am.], 752 [as am.], 752.1 [as am.], 753 [as am.], 753.1 [as am.], 759 [as am.]

Howard Leibovich, for appellant. Susan Mulligan, for respondent.

The judgment of the court was delivered by

[1] SIMMONS J.A.: -- Following a trial before O'Flynn J. sitting with a jury, the respondent was found guilty of procuring a young woman to become a prostitute and living partially off the avails of prostitution of a person under the age of 18 years. These crimes related to the same victim and were the respondent's tenth and 11th prostitution-related convictions. Following the verdicts, the Crown applied to have the respondent declared a dangerous offender.

[2] The trial judge found that the statutory criteria for a dangerous offender designation were satisfied. However, he concluded [page723] that before the respondent could be declared a dangerous offender, in addition to the statutory criteria, the Crown had to prove beyond a reasonable doubt that there is no reasonable possibility of eventual control of the risk the respondent presents in the community. As he was not persuaded that the Crown had satisfied that burden, the trial judge dismissed the dangerous offender application, declared the respondent a long-term offender and imposed a three-year sentence (in addition to four years' credit for time served) plus a ten-year supervision order.

[3] Pursuant to s. 759(2) of the Criminal Code, R.S.C. 1985, c. C-46, the Crown appeals from the order dismissing the dangerous offender application. The Crown submits that, in exercising his discretion concerning whether to declare the respondent dangerous, the trial judge erred in law by placing an onus on the Crown to prove beyond a reasonable doubt that there is no reasonable possibility of eventual control of the risk the respondent presents in the community. The Crown contends that but for this legal error, a dangerous offender designation was inevitable. The Crown therefore asks this court to set aside the trial judge's order and to substitute an order declaring the respondent a dangerous offender.

[4] In the alternative, the Crown contends that the trial judge erred in law by failing to provide any reasons for finding that the risk the respondent presents can eventually be controlled in the community and asks this court to set aside the trial judge's order and direct a new dangerous offender hearing. Finally, in the event this court rejects its appeal from the dismissal of the dangerous offender application, the Crown submits that the custodial sentence imposed by the trial judge is demonstrably unfit and asks this court to increase the period of incarceration to the maximum available penalty.

[5] By way of response, the respondent submits that the legal test applied by the trial judge was correct. In any event, he submits that the trial judge erred in finding that the statutory criteria for a dangerous offender designation were satisfied and, in addition, claims that there were other grounds upon which the trial judge could have relied to exercise his discretion not to declare the respondent dangerous. The respondent therefore asks that this appeal be dismissed.

[6] While I agree that the trial judge erred in imposing a burden on the Crown to prove beyond a reasonable doubt that there is no reasonable possibility of eventual control in the community of the risk the respondent presents, for reasons that I will explain, in my view, it is necessary that there be a new dangerous offender hearing. I would therefore allow the appeal, set aside the trial judge's order and direct a new dangerous offender hearing. [page724]

I. Background

(i) The predicate offences

[7] The respondent was found guilty of procuring and living partially off the avails of prostitution of a person under the age of 18 years on February 18, 2003. He was acquitted of charges of sexual assault and sexual assault with a weapon concerning the same victim. Directed verdicts of not guilty were entered on other related charges.

[8] The predicate offences arose out of events that occurred between June and September 1998. At the time, the appellant was on parole in relation to a nine-year sentence imposed in March 1991. The victim, 17-year-old E.G., was an unemployed single mother on welfare. She was approached by the respondent shortly after moving to Kingston, while dancing at a nightclub. He told her he had a business proposal for her, that she was attractive, that he could get her a house, a car, and lots of money and that all she had to do was "sell herself".

[9] On the first day she went to work for him, the respondent told E.G. to give him the money she received from each client for safekeeping. At the end of the night, E.G. asked for her money back but the respondent refused, saying that he spent it on drugs. E.G. continued to work for the respondent out of fear from June 1998 until the respondent was hospitalized on September 6, 1998. She was too afraid to go to the police at that time, but did so later.

[10] The respondent underwent major surgery in September 1998, returned home on September 24, 1998, and continued to receive home nursing care until December 1998. He was arrested on September 9, 1999, after attempting to procure fourteen- year-old C.K., and has been in custody ever since.

(ii) The evidence at the dangerous offender hearing

[11] Apart from the evidence at trial concerning the predicate offences and psychiatric evidence, the evidence at the dangerous offender hearing consisted primarily of documentary evidence.

(a) The respondent's criminal record

[12] The respondent has 26 criminal convictions dating back to 1977. As noted, he had nine previous convictions for prostitution-related offences and he received penitentiary sentences of six and nine years respectively for two sets of such offences. He has nine convictions for crimes of violence and has committed numerous offences while on bail or parole. [page725]

(b) The respondent's prior prostitution-related convictions

[13] The respondent's prior convictions for prostitution- related offences have the most significance for the purposes of this appeal.

[14] In September 1985, the respondent was convicted of living off the avails of prostitution in relation to S.W. during the period January to December 1983. The respondent had been living with S.W. for 7 1/2 years at the time and had three children with her. There was evidence at the dangerous offender hearing that during conversations with various health care professionals the respondent admitted hitting S.W. and threatening her to get her to work as a prostitute.

[15] The respondent was convicted of living off the avails of prostitution in relation to 14-year-old J.B. in March 1985. Evidence at the dangerous offender hearing indicated that the respondent was on bail for the charges in relation to S.W. when he procured J.B. to work as a prostitute during a two-day period in July 1984. There was some evidence at the dangerous offender hearing indicating that J.B. was afraid of the respondent.

[16] In November 1985, the respondent was convicted of attempting to procure 19-year-old D.B. and attempting to live off the avails of prostitution in relation to her during a two- day period in January 1985. The respondent was on bail for the charges in relation to S.W. when he sexually seduced D.B., took her to Montréal and attempted to make her work as a prostitute. Evidence at the dangerous offender proceeding indicated that D.B. was able to call home and that her family drove to Montréal to pick her up.

[17] The respondent was released to a halfway house on day parole in January 1988. While under supervision at the halfway house, the respondent used cocaine and gambled daily, and regularly attended nightclubs. During this period, he also started pimping S.D., procured and pimped W.W. and began pimping C.G. In November 1988, he went unlawfully at large. He took S.D. with him and continued to pimp her in western Canada. In September 1989, he was arrested in Winnipeg on charges relating to C.G. and W.W.

[18] The respondent was convicted of several offences in relation to C.G. and W.W. on March 18, 1991, and was sentenced to a total of nine years in the penitentiary. The evidence indicated that the respondent threatened to kill 20-year-old C.G. regularly and that on one occasion he grabbed her by the throat with one hand and put a knife to her throat with the other hand. The evidence also indicated that the respondent beat 24-year-old W.W. and threatened to kill her, her family and her three children. One night, he punched W.W. between the eyes, [page726] knocking her unconscious. Two months later, he punched her in the left eye, opening a wound which bled profusely. The impact also shattered W.W.'s contact lens. W.W. was later diagnosed as having a concussion and a severe infection in the left eye. She required surgery to treat the infection and to repair the skull area around the eye that had collapsed from the impact. She was also informed that her nose was broken from the earlier assault. While she was in the hospital, the respondent called her daily to ensure that she would not make a statement to the police.

[19] The respondent was never charged with any offences in relation to S.D., whom he married in 1990. However, evidence at the dangerous offender hearing indicated that the respondent physically abused his wife and also forced her to prostitute herself. He once kicked her in the face, fracturing her nose. On approximately ten occasions, he whipped her with a hanger while she was naked. He also whipped her with an extension cord. On one occasion he tied her up for ten hours while she was naked.

[20] In January 2001, the respondent was convicted of attempting to procure 14-year-old C.K. in the period between July and September 1999. After being introduced to C.K., the respondent obtained her telephone number and called her at home. He invited her to work as a prostitute but she declined. He subsequently met with her, called her repeatedly and threatened to hurt her or to kill her.

(c) The respondent's background

[21] The respondent was born on August 13, 1960 in Toronto. He described his father as a gangster who abused him and his family; he described his sisters as prostitutes and drug addicts. When the respondent was 11 or 12, he was sent to live with his uncle who was a pimp. As a 15-year-old teenager, he began to rely on pimping as a lucrative source of financial support. He quit school in grade 9, has no employment history and has gambling and drug addictions.

[22] The respondent was diagnosed with Crohn's disease while in the penitentiary. Medical records filed at the dangerous offender hearing for the period October 1997 to December 1999 demonstrated that the respondent had undergone significant hospitalization, operations and treatment for Crohn's disease and for a debilitating spinal infection during that period.

(d) Psychiatric evidence

[23] In addition to reports of numerous assessments conducted while the respondent was incarcerated, Dr. Hucker, for the Crown, [page727] and Dr. Bradford, for the respondent, provided psychiatric evidence at the dangerous offender hearing. Dr. Hucker and Dr. Bradford both diagnosed the respondent as having an antisocial personality disorder and as being a psychopath. Further, both indicated that the respondent was a moderate-high to high risk to re-offend violently, most likely in the context of the sex trade industry.

[24] Dr. Hucker said that the respondent needs very, very tight monitoring. A halfway house would be inadequate. He said that any suitable community supervision "would be so tight that I can't imagine what it would be". Dr. Hucker's opinion was that there was not a "fairly good chance that his behaviour will be controlled within an appropriate time within the community". He said it would be very difficult to monitor the respondent and that there was no foundation upon which he could say that at some point within the foreseeable future the respondent would be a "fairly good chance for a safe release to the community".

[25] Dr. Bradford expressed reservations in his report about whether, from a legal perspective, the respondent meets the statutory criteria for a dangerous offender. In particular, he noted that the respondent had never been convicted of a sexual assault and that the degree of violence in the offences he committed was relatively low compared to what Dr. Bradford had seen in other dangerous offender applications. However, Dr. Bradford concluded that the respondent's chance of being rehabilitated was poor. He said:

Mr. D. has very severe problems, a poor prognosis and very little chance of a successful rehabilitation in the attainment of a pro-social lifestyle. This is based on the severe antisocial personality disorder that he presents with for which there is very little optimism for any response whatsoever to treatment. In addition, he clearly has problems related to sexual attraction to adolescent females as well as having evidence of a sexually sadistic preference for the same age group.

[26] Dr. Bradford testified that, while it was inaccurate to say that there was absolutely no treatment for the respondent, the chances were "extremely slim for any treatment to be effective". He said that assuming that past programs had had some effect on him, the respondent would have to stay away from the sex trade industry and be monitored in such a way to make returning to it impossible. There would have to be random urine tests, treatment for substance abuse and treatment for gambling. These factors, in addition to his age and health, may reduce his risk to re-offend. The respondent's biggest barrier to success was his severe personality disorder. Dr. Bradford said it would require a "cognitive restructuring" and that "it requires a total commitment on behalf of the person undergoing the treatment". [page728]

II. Relevant Statutory Provisions

[27] The issues on this appeal require consideration of both the dangerous offender provisions and the long-term offender provisions contained in Part XXIV of the Criminal Code. The dangerous offender provisions have been amended on several occasions. The most recent version came into force on August 1, 1997 (S.C. 1997, c. 17). In R. v. H. (M.B.) (2004), 70 O.R. (3d) 257, [2004] O.J. No. 1679, 186 C.C.C. (3d) 62 (C.A.), this court observed that these provisions give the court the discretion to find that an offender is a dangerous offender and to impose a sentence of detention in a penitentiary for an indeterminate period via two possible routes.

[28] First, under s. 753(1)(a) of the Criminal Code, the court may declare an offender to be a dangerous offender where it is satisfied that the offender has been convicted of a serious personal injury offence as defined in s. 752(a) of the Criminal Code and that the offender constitutes a threat to the life, safety or physical or mental well-being of other persons based on evidence establishing that the offender falls into any of three categories.

[29] Second, under s. 753(1)(b), the court may declare an offender to be a dangerous offender where it is satisfied that the offender has been convicted of a serious personal injury offence as defined in s. 752(b) of the Criminal Code and that the offender has shown a likelihood of causing injury, pain or other evil to other persons through failure to control his or her sexual impulses.

[30] The relevant portions of the dangerous offender provisions are as follows:

753(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[page729]

(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 a sexual impulses.

752. In this Part, . . . . .

"serious personal injury offence" means

(a) an indictable offence, other than high treason, treason, first degree murder or second degree murder, involving

(i) the use or attempted use of violence against another person, or

(ii) conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage upon another person,

and for which the offender may be sentenced to imprisonment for ten years or more, or

(b) an offence or attempt to commit an offence mentioned in section 271 (sexual assault), 272 (sexual assault with a weapon, threats to a third party or causing bodily harm) or 273 (aggravated sexual assault).

(Emphasis added)

[31] The long-term offender provisions of the Criminal Code were first introduced with the 1997 amendments to the dangerous offender provisions. They provide the court with discretion to find that an offender is a long-term offender where the court is satisfied that three criteria set out in s. 753.1(1) of the Criminal Code are met. Those criteria require that the court be satisfied: (i) that it would be appropriate to sentence the offender to a period of imprisonment of at least two years; (ii) that there is a substantial risk that the offender will re-offend; and (iii) that there is a reasonable possibility of eventual control of that risk in the community. If the court finds an offender to be a long-term offender it shall impose a sentence of imprisonment for a minimum of two years and order the offender to be supervised in the community for a period not exceeding ten years: s. 753.1(3). [page730]

[32] The relevant portions of the long-term offender provisions are as follows:

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.

(Emphasis added)

[33] Section 753.1(2) sets out certain circumstances in which the court shall be satisfied that there is a substantial risk that an offender will re-offend. Amendments were made to this section in 2002, after the predicate offences were committed. At the time the predicate offences occurred, this section read:

753.1(2) The court shall be satisfied that there is a substantial risk that the offender will reoffend if

(a) the offender has been convicted of an offence under section 151 (sexual interference), 152 (invitation to sexual touching) or 153 (sexual exploitation), subsection 173(2) (exposure) or section 271 (sexual assault), 272 (sexual assault with a weapon) or 273 (aggravated sexual assault), or has engaged in serious conduct of a sexual nature in the commission of another offence of which the offender has been convicted; and

(b) the offender

(i) has shown a pattern of repetitive behaviour, of which the offence for which he or she has been convicted forms a part, that shows a likelihood of the offender's causing death or injury to other persons or inflicting severe psychological damage on other persons, or

(ii) by conduct in any sexual matter including that involved in the commission of the offence for which the offender has been convicted, has shown a likelihood of causing injury, pain or other evil to other persons in the future through similar offence.

(Emphasis added)

[34] As this court noted in H. (M.B.), supra, it is clear from the Supreme Court of Canada's decision in R. v. Johnson, 2003 SCC 46, [2003] 2 S.C.R. 357, [2003] S.C.J. No. 45 that where the Crown brings a dangerous offender application, the sentencing judge must first consider whether the Crown has established the statutory criteria in either s. 753(1)(a) or s. 753(1)(b) for declaring the offender dangerous. If the Crown has not satisfied that burden, [page731] the dangerous offender application cannot succeed. If the Crown has satisfied that burden, the sentencing judge then has the discretion not to declare the offender dangerous and, in exercising that discretion, must consider whether any available sanction short of a determinate sentence would adequately protect the public, including a long-term offender designation.

[35] While the Crown may seek a long-term offender designation as an alternative remedy on a dangerous offender application, it may also seek that designation by way of a free-standing application under s. 753.1 of the Criminal Code.

III. The Trial Judge's Reasons

[36] As already noted, the trial judge dismissed the Crown's dangerous offender application and declared the respondent a long-term offender. Before turning to his analysis, he reviewed certain aspects of the evidence adduced at the hearing, the general law applicable to dangerous offender and long-term offender applications and the positions of the parties. As part of this review, he referred to Johnson, supra, and noted that the court retains the discretion not to declare an offender dangerous even where the statutory criteria are met. He also noted that, in seeking to have the respondent declared dangerous, the Crown relied on both ss. 753(1)(a)(i) and 753(1) (a)(ii) of the Criminal Code.

[37] The trial judge then set out his analysis as follows:

I find the offender, Mr. D., meets the criteria for both a dangerous offender and a long-term offender.

Section 753.1(1)(c) requires the Court to consider, despite the offender's substantial risk to re-offend, whether there is a "reasonable possibility" of eventual control of the risk in the community. If the result of that analysis is that there is no such possibility, then the offender is designated a dangerous offender.

There are certain concerns on the part of the doctors as to the treatability of Mr. D. The Crown has to establish beyond a reasonable doubt that there is no reasonable possibility of eventual control of the risk presented by Mr. D. in the community.

Mr. D. does not have to prove he is treatable. The Crown must prove beyond a reasonable doubt that he is not treatable.

I am not satisfied beyond reasonable doubt, considering all the evidence and in particular the evidence of Dr. Bradford, that Mr. D. is not treatable. I am satisfied that the criteria in section 753.1(1)(a)(b)(c) have been met.

I thereby find Mr. D. to be a long-term offender pursuant to section 753.1(1).

I am exercising my discretion and not declaring Mr. D. to be a dangerous offender.

(Emphasis added) [page732]

IV. Analysis

(i) Did the trial judge err by placing an onus on the Crown to prove beyond a reasonable doubt there is no reasonable possibility of eventual control of the risk the respondent presents in the community?

[38] The main issue on appeal is whether, in exercising his discretion whether to find the respondent a dangerous offender, the trial judge erred by placing an onus on the Crown to prove beyond a reasonable doubt that there is no reasonable possibility of eventual control of the risk the respondent presents in the community. One of the three statutory criteria for a long-term offender designation requires that the court be satisfied there is a reasonable possibility of eventual control in the community of the risk an offender presents. Expressed differently, the main issue on appeal is whether the trial judge erred in law by placing an onus on the Crown to negative the availability of a long-term offender designation before declaring the respondent a dangerous offender.

[39] In fairness to the trial judge, in the court below the Crown agreed that it bore the burden set out above. Nevertheless, I conclude that the trial judge erred in law in imposing this burden. In my view, the trial judge's approach is inconsistent with the Supreme Court of Canada's analysis in Johnson, supra, which addresses the relationship between the dangerous offender and long-term offender provisions of the Criminal Code.

[40] In Johnson, supra, one of the primary issues was whether a sentencing judge retains the discretion not to declare an offender dangerous where the offender meets the dangerous offender criteria set out in either s. 753(1)(a) or (b) of the Criminal Code. The British Columbia Court of Appeal had concluded that there was no such discretion, but that a sentencing judge must consider the prospects for treatment or cure in order to determine whether an offender's pattern of conduct is sufficiently intractable to satisfy the statutory criteria for a dangerous offender designation.

[41] The Supreme Court of Canada concluded that a sentencing judge does retain the discretion not to declare an offender dangerous even though the offender meets the statutory criteria. In addition to the permissive language in s. 753(1), the court relied on the following factors:

-- the primary purpose of indeterminate detention under the dangerous offender regime is the protection of the public, but it is warranted "only insofar as it actually serves [that] purpose"; and [page733]

-- the dangerous offender provisions form part of the Criminal Code sentencing regime. The underlying objectives of the sentencing regime mandate the existence of the discretion to impose a just and fit sentence in the circumstances of the individual case. Further, the interpretation of the dangerous offender provisions must be governed by the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2 of the Criminal Code.

[42] Having regard to the principles of proportionality and restraint, the court held that an indeterminate sentence should only be imposed where lesser sanctions would be insufficient to adequately protect the public from the risk of harm presented by a dangerous offender. The court said:

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 a 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 s. 753(1) have been met.

(Emphasis added)

[43] The court concluded that it is possible that some offenders will satisfy both the dangerous offender and long- term offender criteria and that an offender cannot be declared dangerous and sentenced to an indeterminate period of detention where the threat to the public "can be reduced to an acceptable level" through the long-term offender provisions:

In order for the sentencing sanctions available pursuant to the long-term offender provisions to reduce the threat associated with an offender who satisfies the dangerous offender criteria to an acceptable level, it must be possible for the same offender to satisfy both the dangerous offender criteria and the long-term offender criteria . . .

Almost every offender who satisfies the dangerous offender criteria will satisfy the first two criteria in the long-term offender provisions . . . In a certain percentage of those cases there will also be a reasonable possibility of eventual control of the risk in the community. In those instances in which the offender currently constitutes a threat to the life, safety or physical or mental well-being of other persons yet there is a reasonable possibility of eventual control of the risk in the community, an offender will satisfy the criteria in both the dangerous offender and long- term offender provisions.

In those instances where both the dangerous and long-term offender provisions are satisfied, it may be that the sentencing sanctions available under the long-term offender provisions are capable of reducing the threat to the life, safety or physical or mental well-being of other persons to an acceptable [page734] level . . . If 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.

(Emphasis added)

[44] In my view, placing an onus on the Crown to prove beyond a reasonable doubt that there is no reasonable possibility for eventual control of the risk an offender presents in the community in the context of a dangerous offender application would be inconsistent with Johnson, supra. Johnson holds that a sentencing judge may exercise the discretion not to declare an offender dangerous where the long-term offender criteria are met. Those criteria include the requirement that the sentencing judge be satisfied that there is a reasonable possibility of eventual control of the risk that an offender presents in the community. If the sentencing judge is uncertain whether that requirement is satisfied, Johnson indicates that the sentencing judge should refuse to exercise the discretion not to declare the offender dangerous based on the long-term offender provisions.

[45] Further, in the light of Johnson, I am not persuaded that the cases on which the respondent relies provide sound authority for holding that there should be an onus on the Crown in dangerous offender applications to prove beyond a reasonable doubt that there is no reasonable possibility of eventual control of the risk that an offender presents in the community. The respondent relies on the following cases that have held that such an onus exists: R. v. B.R.B., 2002 BCCA 420, [2002] B.C.J. No. 2363, 174 B.C.A.C. 243; R. v. A.P.A., 2003 BCCA 376, [2003] B.C.J. No. 1503, 184 B.C.A.C. 268; R. v. Lemaigre, 2004 SKCA 125, [2004] S.J. No. 589, 189 C.C.C. (3d) 492 (C.A.); R. v. J.J.M., 2006 NBCA 39, [2006] N.B.J. No. 166, 208 C.C.C (3d) 312 (C.A.); R. v. D.B.B., [2004] O.J. No. 1395, 62 W.C.B. (2d) 247 (S.C.J.); and R. v. R.M., [2005] O.J. No. 4977, 68 W.C.B. (2d) 78 (S.C.J.).

[46] To the extent that these cases articulate a rationale, it appears to be rooted in jurisprudence interpreting the dangerous offender provisions as requiring the Crown to prove beyond a reasonable doubt that an offender's pattern of conduct is substantially or pathologically intractable in order to satisfy the dangerous offender criteria and equating that requirement with the impugned burden of proof: see e.g., B.R.B. at para. 11.

[47] This was the approach taken by British Columbia Court of Appeal in R. v. Johnson, 2001 BCCA 456, [2001] B.C.J. No. 2021, 159 B.C.A.C. 255 (C.A). At para. 58, the court referred to the following comments made by La Forest J. in R. v. Lyons, [1987] 2 S.C.R. 309, [1987] S.C.J. No. 62, at para. 43, concerning s. 687 of the [page735] Criminal Code, R.S.C. 1970, c. C-34, Part XXI, a predecessor to the current s. 653:

Also explicit in one form or another in each subparagraph of s. 687 is the requirement that the court must be satisfied that the pattern of conduct is substantially or pathologically intractable.

[48] At para. 72 of its decision in Johnson, supra, the British Columbia Court of Appeal interpreted these comments as meaning that treatment prospects had to be considered at the designation stage and that it would therefore be illogical to require the sentencing judge to examine treatment prospects once again as part of a residual discretion not to declare an offender dangerous. However, this approach was not adopted by the Supreme Court of Canada in its decision in Johnson. Accordingly, I am not persuaded that I should follow the authorities on which the respondent relies.

[49] Moreover, in its post-Johnson decision in R. v. Wormell, 2005 BCCA 328, [2005] B.C.J. No. 1289, 198 C.C.C. (3d) 252 (C.A.), leave to appeal refused [2005] S.C.C.A. No. 371, the British Columbia Court of Appeal held that there is no onus on the Crown in a dangerous offender proceeding to prove beyond a reasonable doubt that there is no reasonable possibility of eventual control of the risk an offender presents in the community. Both Southin J.A. and Ryan J.A. indicated that it is not appropriate to approach the issue of whether there is a reasonable possibility of eventual control of the risk an offender presents in the community from the perspective of who bears the burden of proof. In particular, Ryan J.A. stated the following [at para. 62]:

It follows that I agree with Madam Justice Southin when she says that it is not right to approach s. 753.1(1) with the burden of proof at the back of one's mind. Such an approach was found not to be right in R. v. Proulx, [2000] 1 S.C.R. 61, 2000 SCC 5, 140 C.C.C. (3d) 449, when the court dealt with the language of the conditional sentence provisions of the Criminal Code. Section 742.1 of the Code permits a sentencing judge to impose a conditional sentence, if, among other things, the court "is satisfied that serving the sentence would not endanger the safety of the community". (Emphasis added.) With respect to that language Lamer C.J.C. said this, at paras. 120-21:

The wording used in s. 742.1 does not attribute to either party the onus of establishing the offender should or should not receive a conditional sentence. To inform his or her decision about the appropriate sentence, the judge can take into consideration all the evidence, no matter who adduces it . . .

In matters of sentencing, while each party is expected to establish elements in support of its position as to the appropriate sentence that should be imposed, the ultimate decision as to what constitutes the best disposition is left to the discretion of the sentencing judge.

For reasons that I will explain below, I agree with these comments. [page736]

[50] In the context of a dangerous offender application, the issue is whether the sentencing judge should exercise the discretion not to declare an offender dangerous after the sentencing judge has found that the offender satisfies the statutory criteria for that designation. As I have explained, the sentencing judge may exercise that discretion where he or she is satisfied that the public threat can be reduced to an acceptable level through either the long-term offender provisions or a determinate sentence. This is not an issue that requires either party to satisfy a burden of proof; rather, it is an issue for the sentencing judge concerning whether to exercise his or her discretion based on the whole of the evidence adduced. Moreover, given the requirement that an assessment report under s. 752.1(2) of the Criminal Code be filed as a pre-condition to making either a dangerous offender designation or a long-term offender designation, I see little risk that the sentencing judge will be left without evidence addressing the issue.

[51] In the context of a stand-alone long-term offender application, the language of the statute appears to suggest a burden on the Crown to prove affirmatively that there is a reasonable prospect of eventual control of the offender in the community: e.g., see R. v. Currie, [1997] 2 S.C.R. 260, [1997] S.C.J. No. 10, and R. v. Guilford, [1999] O.J. No. 4894, 44 W.C.B. (2d) 523 (S.C.J.). However, in my view, the requirement in s. 753.1 that there be a reasonable possibility of eventual control of the risk the offender presents in the community is of a different character than the first two criteria in that section and I do not agree that it is necessary to approach this criterion as imposing a burden of proof.

[52] The first two criteria in s. 753.1 are similar to the criteria in the dangerous offender provisions. They speak to the level of risk the offender is likely to pose in the future having regard to the offender's past conduct. They also establish the justification for subjecting an offender to a special sentencing regime based on the need for public protection. Accordingly, these are matters that the Crown should properly bear the onus of proving on the standard of proof beyond a reasonable doubt.

[53] By way of contrast, the third criterion in s. 753.1 is not a justification for subjecting an offender to the long-term offender sentencing regime. Rather, it appears to be aimed solely at addressing whether the offender qualifies for a long- term offender designation as opposed to the more onerous dangerous offender designation. Importantly, as with the dangerous offender provisions, the long-term offender provisions give a sentencing judge a residual discretion to forego the more onerous designation where a lesser sanction would be sufficient to protect the public from the risk the offender presents. [page737]

[54] Finally, I note that, in addition to Proulx, supra, there are other cases that have held that a requirement that a court be "satisfied" of a particular matter does not necessarily connote a standard of proof beyond a reasonable doubt. See, e.g., R. v. M. (S.H.), [1989] 2 S.C.R. 446, [1989] S.C.J. No. 93, 50 C.C.C. (3d) 503, in which McLachlin J. noted that the concept of a standard of proof is "typically concerned with establishing whether something took place" and is "less helpful" when one is engaged in balancing various factors and considerations. See also R. v. A.O; R. v. J.M., 2007 ONCA 144, [2007] O.J. No. 800, 222 O.A.C. 38 (C.A.).

[55] Viewed in the context of the foregoing factors, I see no necessity or rationale for viewing the third criterion in s. 753.1 as imposing a burden of proof.

(ii) Is it necessary that there be a new dangerous offender hearing?

[56] Both parties argue that a new dangerous offender hearing is unnecessary. The Crown relies on the trial judge's finding that the respondent meets the dangerous offender criteria and contends that there was no evidence capable of supporting a finding that there was a reasonable possibility of eventual control in the community. The respondent relies on the trial judge's finding that he meets the long-term offender criteria as a complete answer to the Crown's position. In addition, the respondent contends that the trial judge erred in holding that he meets the dangerous offender criteria and that, in any event, there were other grounds upon which the trial judge could have relied to decline to declare the respondent dangerous.

[57] In my view, it is necessary that there be a new dangerous offender hearing. The trial judge's reasons span approximately 64 pages. However, his analysis is limited to what is reproduced in para. 37 above and he made no findings of fact. Given these circumstances and the context of this case, in my view, the trial judge's conclusions are not amenable to proper appellate review.

[58] Although the trial judge found that the criteria for a long-term offender designation in s. 753.1 were satisfied, it is not clear whether his finding was premised, at least in part, on his erroneous conclusion that the Crown had failed to meet its burden of proving beyond a reasonable doubt that there is no reasonable possibility of eventual control of the risk the respondent presents in the community.

[59] The respondent submits that the facts of the predicate offences were not of the same character as his prior offences and, therefore, it was not open to the trial judge to find a pattern of [page738] conduct sufficient to warrant a dangerous offender designation. In addition, the respondent contends that there was no evidence capable of supporting a finding that the respondent's conduct had or would cause such severe psychological harm or physical injury as to warrant a dangerous offender designation. I do not accept the respondent's submission that these findings were unreasonable. However, I conclude that the trial judge's failure to make findings concerning these issues and in relation to Dr. Bradford's evidence concerning whether the respondent's conduct warrants a dangerous offender designation, and his failure to explain the basis on which he exercised his discretion to decline to make a dangerous offender designation requires that there be a new dangerous offender hearing.

V. Disposition

[60] Based on the foregoing reasons, I would allow the appeal, set aside the trial judge's order, and direct that there be a new dangerous offender hearing.

Appeal allowed.