CITATION: R. v. Hickey, 2008 ONCA 115

DATE: 20080219

DOCKET: C42368

COURT OF APPEAL FOR ONTARIO

WINKLER C.J.O. and SHARPE and JURIANSZ JJ.A.

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

and

GERALD HICKEY

Appellant

James Carlisle for the appellant

Colleen Hepburn for the respondent

Heard & released orally: February 14, 2008

On appeal from judgment of Justice Ian Nordheimer of the Superior Court of Justice dated November 27, 2001.

ENDORSEMENT

[1] The appellant was found guilty of attempted murder and aggravated sexual assault and found to be a dangerous offender. He appeals that finding, submitting that he should have been found to be a long-term offender.

[2] The appellant argues that the trial judge erred by restricting the scope of his expert’s testimony.

[3] We disagree. There was ample basis on the record for the trial judge to find that the defence expert, Dr. Long, had expertise in the area of alcohol and its effect on human behaviour, but lacked expertise in risk-assessment tests for sexual deviance, in the treatment of sexual offenders and in sexual deviance. Moreover, the central issue of the dangerous offender hearing was the impact of the appellant’s alcoholism on his ability to control his admitted dangerous propensities and, the trial judge found Dr. Long qualified to testify on that issue.

[4] Second, the appellant argues that the trial judge erred by rejecting the opinion of Dr. Long that there was a reasonable prospect of the appellant controlling his alcoholism, which triggered his criminal behaviour. In our view, the trial judge did not err in evaluating Dr. Long’s evidence. He simply preferred the contradictory evidence of the Crown’s expert that the appellant’s prospect for treatment were extremely poor. He was entitled to choose between the competing opinions. There was ample support in the record, including the appellant’s lengthy record and history of inability and lack of motivation to control his alcoholism for the trial judge’s conclusion that the serious risk posed by the appellant was not manageable in the community under long-term offender designation.

[5] The appeal is dismissed.

“W.K. Winkler C.J.O.”

“Robert J. Sharpe J.A.”

“R.G. Juriansz J.A.”