CITATION: R. v. Roberts, 2007 ONCA 64
DATE: 20070131
DOCKET: C41735
COURT OF APPEAL FOR ONTARIO FELDMAN, SIMMONS and ROULEAU JJ.A.
B E T W E E N :
HER MAJESTY THE QUEEN
Howard Leibovich for the appellant
Appellant
- and -
RONALD ROBERTS
Clayton Ruby and Daniel Brodsky for the respondent
Respondent
Heard: September 21, 2006
On appeal from two orders of Justice Harry S. LaForme of the Superior Court of Justice: the first, dated March 30, 2004, dismissing a dangerous and long-term offender application, with reasons reported at [2004] O.J. No. 1383; the second, dated April 1, 2004, imposing sentence following the respondent’s conviction for aggravated assault, with reasons reported at [2004] O.J. No. 1431.
Feldman J.A.:
[1] The respondent attacked a man in a bar with a pool cue, hitting him three times on the head, knocking him unconscious and causing bleeding as well as some aftereffects. As a result, the respondent was convicted of aggravated assault contrary to s. 268 of the Criminal Code, an indictable offence for which the maximum sentence is fourteen years.[^1] The respondent had a lengthy criminal record that included adult convictions for ten prior crimes of violence against both strangers and two former spouses, including two sexual assaults against strangers. Before sentencing on the predicate offence of aggravated assault, the Crown obtained an order for an assessment for the purpose of a dangerous offender application.
[2] Following the hearing of evidence and submissions at the dangerous offender hearing, the sentencing judge (who was not the trial judge) decided, as a matter of law, that before a person can be declared a dangerous offender, the court must determine that it would otherwise impose a minimum two year sentence for the predicate offence. The sentencing judge concluded that this was necessary in order to make the dangerous offender provision, s. 753, consistent with the similar requirement that is specifically imposed by s. 753.1(1)(a) before a person can be declared a long-term offender.
[3] Although the respondent had been in pre-sentence custody for over three years, the sentencing judge determined that the appropriate sentence for the predicate offence was two years less a day, plus three years probation. As a result, he found that the respondent did not meet one of the criteria for designation as a dangerous or long-term offender and concluded that there was therefore no basis for continuing the dangerous or long-term offender proceedings, or for making any further findings on the statutory criteria for those designations. He imposed the determinate sentence of two years less a day (which the respondent had already served), plus three years probation on stringent conditions that included treatment and testing requirements.
[4] With respect, in my view, the sentencing judge erred in law by reading into the dangerous offender provision, s. 753 of the Code, as a prerequisite, the requirement that the sentencing judge must first find that a minimum sentence of two years would have been imposed for the predicate offence. He then failed to fully consider whether the respondent met all of the statutory criteria for a dangerous or long-term offender designation, to address the issues mandated by the statutory provisions, and to make the required findings and exercise his discretion whether or not to declare the respondent a dangerous or long-term offender. Finally, the sentencing judge erred in his conclusion that the appropriate sentence in this case was 2 years less a day. Therefore, for the reasons that follow, I would allow the appeal, and set aside the sentence imposed. In the circumstances of this appeal, I would designate the respondent a long-term offender.
FACTS
[5] On August 9, 2001, the respondent was convicted by Keenan J., sitting without a jury, of aggravated assault and possession of a weapon for a dangerous purpose. The trial judge found that following an argument in a pub over the use of a pool table, the respondent took a pool cue and hit the victim over the head with it three times, knocking him unconscious. The victim was taken to the hospital bleeding from the head and requiring stitches. The victim later suffered headaches, periods of dizziness and mildly slurred speech.
[6] The imposition of sentence was postponed pending a Crown application seeking an order pursuant to s. 752.1(1) remanding the respondent for a psychiatric assessment. Because the trial judge was not then available to conduct the application, it proceeded before Wren J.
[7] An assessment may be ordered pursuant to s. 752.1(1) if there are “reasonable grounds to believe that the offender might be found to be a dangerous offender … or a long-term offender”. Relying on the trial transcript and occurrence reports and synopses relating to the respondent’s previous convictions, the Crown submitted that there were reasonable grounds to believe that the respondent would be found to be a dangerous offender. Counsel for the respondent conceded that there were reasonable grounds to believe that the respondent might be declared a long-term (not dangerous) offender, and accordingly did not oppose the Crown’s application.
[8] On November 23, 2001, Wren J. allowed the Crown’s application under s. 752.1(1) and ordered that the respondent be remanded for a psychiatric assessment for a period not exceeding sixty days. He concluded, based on the material placed before him, that the Crown had satisfied its burden that there were reasonable grounds to believe that the respondent might be found to be a dangerous offender under ss. 753(1)(a)(i) and (ii).
[9] In reaching that conclusion, Wren J. considered the relevant criteria that the Crown would have to satisfy to have the respondent designated a dangerous offender. First, the predicate offence must be a “serious personal injury offence” as defined in s. 752(a), which reads as follows:
- 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…
[10] Second, under ss. 753(1)(a)(i) and (ii), the offender must constitute a “threat to the life, safety or physical or mental well-being of other persons” on the basis of evidence establishing either:
(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, [or]
(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[.]
[11] Wren J. found that there were reasonable grounds to believe that these criteria would be satisfied, and ordered the assessment. In reaching this conclusion, he relied on nine factors from the record including:
- the circumstances of the predicate offence;
- that the predicate offence was a “serious personal injury offence” as defined;
- that the respondent had an extensive criminal record with convictions for ten crimes of violence (including the sexual offences listed below);
- that the respondent was convicted of rape on August 19, 1982, in circumstances that included holding a knife to the victim’s throat;
- that the respondent was convicted of aggravated sexual assault on November 10, 1989, the offence having occurred within days of the respondent’s terminal temporary absence release from the penitentiary, and which again included rape at knifepoint;
- that on June 24, 1996, the respondent was convicted of three counts of assault, one against his wife for beating her with repeated punches to her head, and the other two against a man and woman who attempted to intervene;
- that on July 17, 1998, the respondent was convicted of three counts of assault causing bodily harm as a result of a vicious attack on his girlfriend and on two other people who tried to intervene. He then threatened to blow up his girlfriend’s apartment if she contacted police;
- that while in pre-trial custody for the predicate offence, the respondent banged his head against the wall causing bleeding, and then attempted to cut his throat; and
- that the respondent failed to abide by court orders and terms of supervision and violated parole and probation orders.
[12] The respondent was assessed by three experts: two psychiatrists and a neuropsychologist. The first court-ordered assessment was conducted by Dr. Woodside, a staff psychiatrist and senior clinician at the Centre for Addiction and Mental Health (CAMH). Part-way through the assessment, the respondent refused to co-operate with Dr. Woodside; however, Dr. Woodside provided a report based on tests he had conducted and written records relating to the respondent’s history. The written records available to Dr. Woodside included psychiatric reports dated as early as 1982, misconduct reports completed during the respondent’s previous terms of incarceration, and evidence documenting the respondent’s record for co-operation (or lack thereof) with supervision in the community while on probation and parole.
[13] Dr. Woodside concluded that the respondent suffered from antisocial personality disorder. He described the respondent as displaying some psychopathic traits, although he fell below the required score for a clinical diagnosis of psychopathy. Dr. Woodside also reported that the respondent had severe drug and alcohol addictions.
[14] Dr. Woodside’s opinion was that the respondent posed a very significant risk to commit future violent offences, both sexual and non-sexual, and that there was no reasonable prospect that he could be controlled in the community. Because the respondent suffered from antisocial personality disorder, Dr. Woodside’s view was that it was unlikely he would benefit from therapy. His view on that issue did not change after reading Dr. Fedoroff’s opinion that the respondent may also suffer from a psychiatric condition known as “personality change due to a generalized medical condition”, a disorder that may have been caused by brain surgery or by substance abuse, and might therefore be treatable. Dr. Woodside continued to doubt the effectiveness of any proposed treatments in the respondent’s case.
[15] Dr. Fedoroff conducted a second court-ordered assessment, at the request of the defence, with which the respondent co-operated. Dr. Fedoroff is the co-director of the Sexual Behaviours Clinic at the Royal Ottawa Hospital. Although he substantially agreed with Dr. Woodside’s diagnosis and actuarial testing results, he disagreed on the prognosis for the respondent. He believed that it was necessary to try treatment on the respondent before concluding that he was not treatable or could not be controlled in the community. He also viewed the predicate offence as less serious than the respondent’s previous offences of violence. He therefore felt that this particular offence either was not part of a pattern of violent behaviour or was part of a pattern of decreasing violence. He also expressed the view that the predicate offence was not serious enough to attract a minimum sentence of two years.
[16] Dr. Nussbaum, a clinical psychologist, prepared a report in January 2004 with the consent of both counsel, primarily to follow up on Dr. Fedoroff’s diagnosis of personality disorder possibly caused by a generalized medical condition, and to assess whether such a disorder was treatable. He concluded that the respondent’s intellectual abilities had decreased significantly during his lifetime, possibly because of a head injury or other incidents, and that there were treatments that could potentially help him. Dr. Nussbaum recommended that the respondent be given the opportunity to participate in certain therapies involving complete abstention from drugs and alcohol together with random testing, cognitive rehabilitation therapy, impulsivity-combatting medication and training in social skills and anger management. He concluded that the respondent could be released into the community under supervision following successful treatment.
[17] The oral hearing of the dangerous offender application commenced on December 15, 2003 before LaForme J., the sentencing judge. At the conclusion of the evidence[^2] on March 19, 2004, the respondent’s counsel sought a ruling dismissing the Crown’s application. He argued that the court could not designate the respondent as a dangerous or long-term offender unless a fit and proper sentence for the predicate offence would be two years or more, and that in this case, the proper sentence was less than two years.
[18] In a written ruling delivered March 30, 2006, the sentencing judge made the following findings as a matter of law: (1) under s. 752.1(1), at the first stage of the process before an assessment can be ordered, the sentencing judge must determine that the predicate offence is a “serious personal injury offence” as defined, and that the minimum sentence the offender would receive for the predicate offence is two years; (2) at the second stage of the process, in order to have an offender designated a dangerous offender pursuant to s. 753(1)(a), the Crown must establish both that the predicate offence is a “serious personal injury offence” as defined, and that a sentence of at least two years is the appropriate sentence for that offence, and; (3) the sentencing judge should be satisfied that the Crown has established these two prerequisites before proceeding with the dangerous offender hearing, but it is not fatal if the sentencing judge makes the second determination after the hearing but before considering the application on the evidence.
[19] Applying these principles to the case before him, the sentencing judge found that the predicate offence of aggravated assault is a “serious personal injury offence” as defined. Because he had heard all of the psychiatric and other evidence from witnesses such as former parole and probation officers for the purpose of the dangerous offender application, he decided that it was appropriate to use that evidence for the purpose of determining whether a sentence of at least two years should be imposed for the predicate offence. He made it clear that he was using the evidence only in the context of applying the sentencing principles and objectives found in ss. 718 and 718.1 of the Code for the purpose of determining what the appropriate sentence should be and not for the purpose of determining the dangerous offender application.
[20] The sentencing judge then reviewed the evidence of the three experts. He found that he preferred the evidence of Dr. Fedoroff to that of Dr. Woodside and concluded that the respondent was not beyond rehabilitation. He also concluded that the respondent’s offences were “decreasing in both nature and severity”, and that although he is “a criminal who poses a danger to the public”, his criminal profile is not of “an offender who is clustered at or near the extreme end”. He found that the appropriate range of sentence for the predicate offence was between one and three years.
[21] The sentencing judge stated that in this case the sentencing objectives were general and specific deterrence with a focus on rehabilitation, using all available sanctions other than prison. To achieve that end, the appropriate sentence would be “more than one year of imprisonment but less than two”, with a significant period of probation.
[22] Having made the finding that the sentence for the predicate offence would not be a minimum of two years, the sentencing judge concluded:
Given this result, the dangerous offender proceedings cannot proceed. The Crown has failed to establish one of the first prerequisites to commence dangerous or long-term offender proceedings, namely, that the index offence is one where it would be appropriate to impose a sentence of imprisonment of two years or more. Accordingly, the dangerous offender application is dismissed and Mr. Roberts should now be formally sentenced for the index offence.
[23] After further submissions were made respecting sentence, on April 1, 2004 the sentencing judge imposed a sentence of two years less a day plus three years probation on terms requiring submission to psychiatric treatment, medication treatment, drug and alcohol treatment, plus testing and other rehabilitative conditions.
Issues
(1) Did the sentencing judge err in law by effectively reading into s. 753(1) of the Criminal Code, as a precondition for making a finding of dangerous offender, a requirement that the appropriate sentence for the predicate offence must be a minimum of two years, when that requirement is only specifically provided for the long-term offender designation under s. 753.1?
(2) If so, despite the error, is it open to this court to find that in all the circumstances, the sentencing judge effectively exercised his discretion under ss. 753 and 753.1 of the Code not to find the respondent a dangerous or long-term offender and that he imposed the determinate sentence he was entitled to impose following the exercise of his discretion?
(3) If that finding is not open to this court, what is the appropriate remedy?
Analysis
(1) Did the sentencing judge err by reading into the dangerous offender provision a requirement that the predicate offence must warrant a sentence of two years or more?
[24] The following sections of the Criminal Code provide the context for the analysis:
- The definition of “serious personal injury offence” in s. 752:
- … “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 on 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).
- Section 752.1(1) that provides for an assessment before a dangerous offender application can proceed:
752.1 (1) Where an offender is convicted of a serious personal injury offence or an offence referred to in paragraph 753.1(2)(a) and, before sentence is imposed on the offender, on application by the prosecution, the court is of the opinion that there are reasonable grounds to believe that the offender might be found to be a dangerous offender under section 753 or a long-term offender under section 753.1, the court may, by order in writing, remand the offender, for a period not exceeding sixty days, to the custody of the person that the court directs and who can perform an assessment, or can have an assessment performed by experts. The assessment is to be used as evidence in an application under section 753 or 753.1.
- Section 753(1) that allows a court to find the offender to be a dangerous offender:
- (1) The court may, on application made under this Part following the filing of an assessment report under subsection 752.1(2), find the offender to be a dangerous offender if it is satisfied
(a) that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (a) of the definition of that expression in section 752 and the offender constitutes a threat to the life, safety or physical or mental well-being of other persons on the basis of evidence establishing
(i) a pattern of repetitive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a failure to restrain his or her behaviour and a likelihood of causing death or injury to other persons, or inflicting severe psychological damage on other persons, through failure in the future to restrain his or her behaviour,
(ii) a pattern of persistent aggressive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a substantial degree of indifference on the part of the offender respecting the reasonably foreseeable consequences to other persons of his or her behaviour, or
(iii) any behaviour by the offender, associated with the offence for which he or she has been convicted, that is of such a brutal nature as to compel the conclusion that the offender’s behaviour in the future is unlikely to be inhibited by normal standards of behavioural restraint; or
(b) that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (b) of the definition of that expression in section 752 and the offender, by his or her conduct in any sexual matter including that involved in the commission of the offence for which he or she has been convicted, has shown a failure to control his or her sexual impulses and a likelihood of causing injury, pain or other evil to other persons through failure in the future to control his or her sexual impulses. [Emphasis added.]
- Section 753.1(1) that allows a court to find an offender to be a long-term offender:
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.
(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 163.1(2) (making child pornography), subsection 163.1(3) (distribution, etc., of child pornography), subsection 163.1(4) (possession of child pornography), subsection 163.1(4.1) (accessing child pornography), section 172.1 (luring a child), 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 offences. [Emphasis added.]
[25] These sections reveal that Parliament has specifically provided a detailed description of the role of the predicate offence in the scheme of the dangerous and long-term offender regime under Part XXIV of the Code.
[26] First, the predicate offence must qualify as a “serious personal injury offence” or, in the case of a long-term offender application only, an offence listed in s. 753.1(2)(a), which is a list of sexual offences and offences involving children, before the mandatory assessment for the purpose of a dangerous or long-term offender application can be ordered under section 752.1(1). “Serious personal injury offence” is defined in s. 752(a), set out above, as well as in s. (b), which lists a number of sexual offences that are deemed to be serious personal injury offences. The point here is that for either designation, before an assessment can be ordered, the predicate offence must qualify as a “serious personal injury offence” as defined or, in the case of the long-term offender designation, the predicate offence can also be one of a number of listed sexual offences or offences involving children.
[27] The assessment under s. 752.1 is a precondition for both applications. This is clear from the opening words of s. 753(1) and s. 753.1(1).
[28] Under s. 753(1), the nature and role of the predicate offence again form part of the conditions that allow a court to make a dangerous offender finding. Again, first, the offence for which the offender was convicted must be a “serious personal injury offence” as defined in ss. 752(a) or (b). Second, if it is an offence described in s. (a), that offence must form part of a pattern of repetitive behaviour that shows a lack of restraint, part of a pattern of persistent aggressive behaviour that shows substantial indifference to others, or be associated with behaviour by the offender that is brutal and predictive of lack of restraint in the future. If it is an offence described in s. (b), then the offender’s conduct in sexual matters including the predicate offence, must show an inability to control sexual impulses that is likely to cause injury in the future.
[29] These detailed provisions describe the relation of the predicate offence to the decision that must be made at each stage of the dangerous offender analysis. There is clearly no stated requirement that the appropriate sentence for the predicate offence be a minimum of two years. That two-year minimum, however, is the first prerequisite before a court may designate an offender as a long-term offender under s. 753.1(1)(a).
[30] In coming to his conclusion that the same precondition should be read into s. 753(1), the sentencing judge considered the Supreme Court of Canada’s recent analysis in R. v. Johnson (2003), 2003 SCC 46, 177 C.C.C. (3d) 97 of the interconnection between the two designations and the process a court should follow before making either designation.
[31] In Johnson, the court reviewed the history of the dangerous offender provision and the legislative amendments made in 1997 that added the long-term offender designation to be applied where an offender still poses a threat to the public, but where there is a reasonable possibility that the risk that the offender will reoffend can be controlled in the community.
[32] The court reaffirmed that the primary purpose of the dangerous offender regime is the protection of the public. It is intended to apply, as La Forest J. stated in R. v. Lyons (1987), 1987 CanLII 25 (SCC), 37 C.C.C. (3d) 1 at 29 to “a very small group of offenders whose personal characteristics and particular circumstances militate strenuously in favour of preventive incarceration”.
[33] However, even if an offender meets all the criteria for a finding of dangerous offender, the court must not make the declaration where the goal of protecting the public can be met without imposing indeterminate detention, which is mandatory under s. 753(4) once the designation is made. This conclusion accords with the principles of sentencing set out in ss. 718 to 718.2 of the Code, and in particular, s. 718.2(d) which provides that an offender “should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances”.
[34] Therefore, before a court can find an offender to be dangerous, it must consider whether the less restrictive long-term offender sanction would be adequate to achieve the objective of protecting the public. As the Supreme Court stated in Johnson,
The very purpose of a long-term supervision order, then, is to protect society from the threat that the offender currently poses – and to do so without resort to the blunt instrument of indeterminate detention. 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. (para. 32)
[35] However, in so saying, the Supreme Court recognized that the initial requirements for the two designations are not identical The court stated:
Almost every offender who satisfies the dangerous offender criteria will satisfy the first two criteria in the long-term offender provisions. In virtually every instance in which an offender is declared dangerous, it would have been appropriate to impose a sentence of imprisonment of two or more years in respect of the predicate offence and there will be a substantial risk that the offender will reoffend…. [Emphasis added.] (para. 31)
[36] The court recognized in this paragraph of its reasons that because the criteria contained in the dangerous and long-term offender provisions are described differently, it is possible that there could be circumstances where an offender meets the dangerous offender criteria, but not the first two long-term offender criteria. In particular, there could theoretically be circumstances where the predicate offence is a “serious personal injury offence”, but it would not be appropriate to impose a sentence of two years or more for that offence in all the circumstances.
[37] Although this possibility exists because the criteria are defined differently, it is clear that the circumstances will be very rare where the predicate offence is a “serious personal injury offence”, but would not attract a sentence of two years or more for an offender with a significant record of violent crimes.
[38] The sentencing judge referred to the Supreme Court’s confirmation in Johnson that a dangerous offender designation is more serious than a long-term offender designation and concluded that
it would be a rather bizarre result if an offender did not qualify as a long-term offender because the offence was not serious enough to warrant a sentence of two years or more, but did qualify for the more serious designation of dangerous offender simply because the two-year criteri[on] does not exist in the wording of s. 753(1)(a). Such a result, in my view, could not have been one that was intended by Parliament.
[39] I respectfully disagree. It is clear from the detailed scheme of the two provisions that the role of the predicate offence was fully thought out by Parliament and incorporated into the design of the provisions. For a dangerous offender, the predicate offence must be a “serious personal injury offence” and must form part of a pattern of violent conduct that suggests that the offender is a danger to the public. The nature and gravity of the predicate offence form an integral part of the critical analysis that the court must follow before it can find an offender to be dangerous. Had Parliament intended to add a further qualification on the nature of the predicate offence, it would have done so.
[40] Furthermore, if the court concludes that the offender qualifies as a dangerous offender and decides to exercise its discretion to impose that designation, then it must impose an indeterminate sentence. The issue of what sentence would otherwise have been appropriate for the predicate offence is irrelevant. Because the court is not called on to impose a determinate sentence, there would be no purpose to considering what the sentence for the predicate offence would otherwise be.
[41] The Crown may seek the long-term offender designation independently. Therefore, it requires its own set of criteria. Importantly, if the court imposes a long-term offender designation, it will then impose a determinate sentence of two years or more followed by a period of supervision in the community of up to ten years. It is therefore necessary for the court to consider what the sentence will be because it is required to impose that sentence.
[42] The requirement that the predicate offence attract a two-year minimum sentence makes sense for the long-term offender designation because where a court imposes a sentence of two years or less, under ss. 731(1)(b) and 732(2)(b) of the Code, it may also order community supervision within the provincial correctional regime in the form of probation for up to three years.[^3] Where it is appropriate to impose a longer penitentiary sentence of two years or more, the long-term offender provision then allows a court to impose up to ten years of community supervision, but under the federal correctional regime in accordance with the Corrections and Conditional Release Act, S.C. 1992, c. 20.
[43] When the two provisions are being considered together as mandated by Johnson, the sentencing judge is required to consider all the criteria in both provisions in order to properly deal with the Crown’s application and decide whether to declare the offender a dangerous or long-term offender, or to dismiss the application and order the appropriate sentence for the predicate offence. This procedure also ensures that a court of appeal has all the necessary findings to fully review any decision on appeal.
[44] It is clear from the Supreme Court’s decision in Johnson that the sentencing judge’s discretion to declare an offender dangerous and impose an indeterminate sentence is restricted to cases where that drastic sentence “actually serves the purpose of protecting the public” (para. 20). Therefore, if the sentencing judge finds that there is a reasonable possibility that the offender can eventually be controlled in the community, the court no longer has the discretion to declare that offender dangerous. Rather, the offender must be sentenced to a determinate sentence with supervision in the community, pursuant to either a long-term offender order (if all relevant criteria are satisfied) or a probation order.
[45] Consequently, in a case where the dangerous offender test is met but the long-term offender criteria are not satisfied because the predicate offence does not call for a sentence of two years or more, the court cannot impose a dangerous offender designation unless it finds that there is no reasonable possibility that the offender can eventually be controlled in the community. If the court cannot impose either the dangerous or long-term offender designation, what is left for the sentencing court is to impose the appropriate determinate sentence for the predicate offence, together with up to three years probation with terms that allow the offender to be appropriately supervised in the community during that period. This option implements the scheme developed by Parliament that reflects its view of how society can best be protected from certain offenders who present a danger of continued violence, while at the same time recognizing the rights of each offender and the significance of the circumstances of the predicate offence as an indication of the most appropriate way to balance these rights against the needs of society.
[46] When the sentencing judge made his ruling in this case, he did not have the benefit of this court’s decision in R. v. M.B.H. (2004), 2004 CanLII 14199 (ON CA), 186 C.C.C. (3d) 62, released on April 15, 2004. As in this case, the trial judge had ruled that the offender could not be declared a dangerous or long-term offender because the predicate offences he had committed were not factually serious enough to trigger those provisions. He concluded that the predicate offence or offences must “approa[ch] the worst type of conduct imaginable” and the offender must be “among the worst of offenders”. This court disagreed and held, following the Supreme Court of Canada decision in R. v. Currie (1997), 1997 CanLII 347 (SCC), 115 C.C.C. (3d) 205, that the predicate offence need only qualify as a “serious personal injury offence”, as defined, in order to trigger the dangerous offender provision. The court then applied the tests set out in the section in order to determine whether the offender’s past conduct, including the predicate offence, revealed that he presented a potential future danger to the public. This court quoted from Lamer J.'s reasons in Currie:
…once an individual has committed an offence specifically defined in the Criminal Code as a “serious personal injury offence”, he or she has made it possible for the Crown to invoke the Criminal Code’s dangerous offender application process. If that process is invoked, it is incumbent upon the trial judge to evaluate the offender’s potential danger to the public and this may or may not depend upon the specific nature and objective gravity of the predicate offence. (214)
[47] This court held in M.B.H. that the trial judge erred by limiting the application of the dangerous and long-term offender designations based on an evaluation of the seriousness of the facts of the predicate offence.
[48] A similar error was made by the sentencing judge in this case by imposing a requirement that the predicate offence merit a sentence of two years or more before a dangerous offender application can be considered. As in M.B.H., this is another way of adding a requirement regarding the seriousness of the facts and circumstances surrounding the predicate offence, as a prerequisite to the court’s jurisdiction to consider a dangerous offender application. This approach has been rejected by the Supreme Court in Currie and by this court in M.B.H.
(2) Can this court treat the ruling by the sentencing judge as the exercise of his discretion not to order a dangerous offender or a long-term offender designation?
[49] In his argument for the respondent on this appeal, Mr. Ruby submitted that if this court were to find that the sentencing judge erred in law by reading a two-year minimum sentence requirement into the dangerous offender provision, then this court should treat the sentence imposed as the effective exercise of the sentencing judge’s discretion not to designate the respondent as either a dangerous or a long-term offender.
[50] Mr. Ruby points to the fact that the sentencing judge made findings regarding the evidence of the three experts. He preferred the evidence of Dr. Fedoroff to that of Dr. Woodside and concluded that the respondent was not beyond rehabilitation. He then went on to impose a determinate sentence plus three years probation with strict terms for treatment and testing. He thereby effectively exercised his discretion not to impose a dangerous or long-term offender designation.
[51] I cannot give effect to this submission. Although the sentencing judge discussed the evidence of the experts and made certain findings, he was specific in saying that he only did so in the context of applying the sentencing principles and objectives in ss. 718 and 718.1 of the Code for the purpose of determining the appropriate sentence for the predicate offence. He did not apply the evidence to the criteria set out in ss. 753 and 753.1 in order to make the findings necessary to designate the respondent either a dangerous or long-term offender (other than the minimum two-year sentence for the predicate offence under the long-term provision), or to exercise his discretion not to make either designation.
[52] It would clearly have been open to the sentencing judge, after considering all of the expert and other evidence and making the required findings under ss. 753 and 753.1, to exercise his discretion not to designate the respondent a dangerous or long-term offender if he believed there was a reasonable possibility of controlling the offender’s risk in the community without any further period of incarceration and with supervision for three years or less. This discretion would exist even had he found that the respondent met the criteria for the dangerous or long-term offender designation, or both. However, because the sentencing judge did not go through that process, we do not know what conclusion he would have reached had he done so.
(3) Is this court required to order a new sentencing hearing or can it grant another remedy?
[53] The Crown says that because the sentencing judge erred in law and failed to consider the dangerous offender application, this court ought to order a new sentencing hearing. In his submissions on behalf of the respondent, Mr. Brodsky, who was counsel on the dangerous offender hearing, stated that if this court found an error of law it should not order a new hearing. He advised that all the Crown’s evidence was in at the original hearing, and that he was only considering the possibility of leading some further systemic evidence following the motion. He further submitted that any new hearing ordered at this point would be a “paper hearing” based on the record before this court, and that this court is therefore in the best position to determine the appropriate sentence. This submission alleviates any concerns that the ruling was made before the completion of the evidence and that it therefore could be prejudicial for this court to decide the appropriate sentence based on the record. The Crown had completed its case and therefore is not prejudiced, and the respondent is willing to accept a sentence imposed on the basis of the existing record.
[54] In M.B.H., after taking into account time served of thirty months (sixty if two-for-one credit is counted), the trial judge gave the offender a sentence of three years probation. On appeal, this court set aside the sentence imposed by the trial judge because he erred in law by rejecting the dangerous offender and long-term offender designations on the basis that the predicate offence was not serious enough. However, based on the findings of the trial judge that (1) the offender was at risk to commit further sexual offences and therefore met the statutory requirement of posing a substantial risk to reoffend, and (2) there was a reasonable possibility that the risk could be controlled in the community, this court concluded that a long-term offender designation was the proper result.
[55] The third requirement before a long-term offender designation can be made is that it must be “appropriate to impose a sentence of imprisonment of two years or more” for the predicate offence (s. 753.1(1)(a)). In M.B.H., the trial judge stated that he was giving two-for-one credit for the thirty months the offender had served in pre-sentence custody and concluded that no additional period of incarceration was necessary. This court held that to meet the requirement in s. 753.1(1)(a), it was not necessary for the court to impose an additional minimum two years; rather, the pre-sentence custody could satisfy the statutory requirement (para. 62).
[56] In this case, the sentencing judge also made significant findings of fact based on the lengthy expert evidence that he heard. In his ruling holding that the dangerous offender hearing could not proceed, he first found that the respondent was “a criminal who poses a danger to the public” and described him as a “serious recidivist”. However, he also accepted the evidence that the respondent’s deficits were neurocognitive and therefore treatable, although there was no guarantee of success. He accepted that following treatment for these deficits, the respondent would become more treatable for his other problems including drug and alcohol dependence and anger management. He also accepted that the relevant treatments were not available in the prison system but only in the community. Although the sentencing judge made no specific finding that such treatment together with appropriate supervision would reduce the risk of reoffending to an acceptable level, that conclusion is implicit in both his reasons and his disposition.
[57] As I stated above, the sentencing judge made his findings of fact in the context of determining the proper sentence for the predicate offence. However, as in M.B.H., these findings are not tainted by the error of law. In my view, they can be used by this court for the purpose of determining the appropriate sentence on appeal in accordance with s. 759(4)(a) of the Code, to avoid the need to order a whole new sentencing hearing.
[58] Although the sentencing judge concluded that he did not need to address the dangerous offender issue, his findings make it clear that he would not have found the respondent to be a dangerous offender. He summed up his conclusions on the evidence as follows:
In sum, the evidence is that Mr. Roberts is not beyond being rehabilitated. That is, he is not an offender where the prevailing opinion, including mine, is that he cannot be rehabilitated and whose sentence, therefore, must be directed at management. His criminal profile is one of offences that are decreasing in both nature and severity. The evidence to this point reveals Mr. Roberts as a criminal who poses a danger to the public. However, it does not show him to be an offender who is clustered at or near the extreme end. The offence is one where the appropriate sentence would be between one and three years. [Emphasis added.]
[59] The sentencing judge never specifically addressed the application of the long-term offender provisions because he found, in the context of considering his jurisdiction to embark on a dangerous offender application, that the appropriate custodial sentence for the predicate offence was not two years or more, but two years less a day. Of course, this conclusion precluded him from designating the respondent a long-term offender, even though the respondent satisfied the other two criteria.
[60] The Crown takes the position on this appeal that the trial judge erred in his conclusion that the appropriate sentence in this case was two years less a day and states that the sentence is demonstrably unfit. I agree with that submission.
[61] In considering the appropriate sentence, the sentencing judge minimized the seriousness of the offence on the basis that the weapon was only a pool cue, and the injuries suffered by the victim were merely “lacerations”. He also stated that because there was no victim impact statement, the extent of the long-term effect of the injuries was unknown. He concluded that “[i]t is far less than the most serious offence.”
[62] It is clear that in assessing the appropriate sentence, the sentencing judge was influenced by the fact that Dr. Fedoroff considered the predicate offence much less serious than the respondent’s previous violent offences and that he saw the respondent’s pattern of violence as diminishing in gravity.
[63] Having first concluded during the course of his ruling that the predicate offence warranted a sentence of between one and three years, the sentencing judge later stated in the same ruling that the appropriate sentence for the respondent was more than one year but less than two, with a significant period of probation.
[64] Following the ruling the judge heard further submissions on sentence from both counsel and from the respondent. He then concluded that for the reasons he had already given on his ruling, the sentence would be two years less a day plus three years probation with detailed terms of treatment and testing, recognizing that the respondent is “a high risk to reoffend and is a high-needs offender”.
[65] In my view, the sentencing judge erred by minimizing the seriousness of the offence and failing to consider the sentence in the context of the respondent’s record and the need for specific deterrence, given his high risk to reoffend.
[66] The following factors, taken together, called for a penitentiary sentence for aggravated assault in this case:
- The respondent struck the victim in an unprovoked attack.
- He hit the victim over the head with a pool cue three times, causing the victim to become unconscious and to bleed from the head.
- The victim was taken to the hospital by ambulance where he required stitches.
- There was evidence that the victim suffered afterward from headaches, periods of dizziness and mildly slurred speech.
- These were the respondent’s thirtieth and thirty-first adult convictions.
- The respondent had ten prior convictions for offences of violence, including two violent sexual offences.
- Past penitentiary and reformatory sentences and programs had not deterred the respondent from committing this further act of violence, even if this act was not as violent as previous assaults committed by him..
- The respondent posed a high risk to reoffend violently.
- There was no guilty plea that could attract some consideration on sentence.
[67] The respondent spent three years and seven months in pre-sentence custody during the dangerous offender application process. I would not accord credit on the full two-for-one basis because the respondent was undergoing psychiatric testing at hospitals during part of that period. If credit were accorded on the two-for-one basis for half of that period, then the respondent would have served the equivalent of five years and four and one-half months. Although this is a significant sentence, it would not be beyond the range for an unprovoked, aggravated assault causing injury, where the offender has a significant criminal record including numerous crimes of violence.
[68] I would therefore set aside the sentence imposed by the sentencing judge and instead impose a sentence of time served in pre-sentence custody, credited on a two-for-one basis for half of the period. As this time was in excess of two years, it is open to this court to find the respondent to be a long-term offender.
[69] It is our understanding that the respondent has now served two years and ten months of his three-year term of probation, which requires him to comply with rigorous conditions. I would order that the respondent be supervised in the community for a further period of seven years and two months in accordance with the Corrections and Conditional Release Act (see s. 753.1(3)(b) of the Code). This order would be subject to the respondent's right to apply for a reduction in the period of supervision, if appropriate, under s. 753.2(3) of the Code. I recommend that the respondent be subject to the same or similar conditions as were contained in his three year term of probation at least until his current situation has been assessed by the National Parole Board under the Corrections and Conditional Release Act.
RESULT
[70] I would allow the appeal, set aside the sentence imposed by the sentencing judge, designate the respondent a long-term offender and impose a sentence of the five years and four and one-half months of incarceration and two years and ten months of community supervision already served, plus a further period of community supervision of seven years and two months in accordance with the Corrections and Conditional Release Act.
Signed: “K. Feldman J.A.”
“I agree J. Simmons J.A.”
“I agree Paul Rouleau J.A.
RELEASED: “KNF” January 31, 2007
[^1]: s. 268. (1) Every one commits an aggravated assault who wounds, maims, disfigures or endangers the life of the complainant.
(2) Every one who commits an aggravated assault is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years
[^2]: The Crown had completed its evidence. At the time the defence made the motion, counsel was still considering whether it might later lead further “systemic” evidence depending on the outcome of the motion.
[^3]: Ss. 731(1)(b) of the Code allows the court to make a probation order in addition to a sentence of not more than two years imprisonment. S 732.2(2)(b) limits the length of a probation order to not more than three years. Normally, a sentencing judge who wants to impose a period of probation will impose a sentence of less than two years so that when the offender is released on probation, he or she will be under the auspices of the provincial probation authorities. Although the section allows a term of probation to be imposed in addition to a two-year sentence, that sentence puts the offender into the federal penitentiary system.