Her Majesty the Queen v. M.J.O. [Indexed as: R. v. O. (M.J.)]

90 O.R. (3d) 241

Court of Appeal for Ontario,

Doherty, Moldaver and Cronk JJ.A.

May 7, 2008

Criminal law -- Dangerous offenders -- Trial judge erring in excluding s. 752.1 psychiatric assessment and terminating dangerous offender proceedings on basis of power imbalance between accused and state, lack of independence of report and prejudice to accused from late disclosure of material used to prepare report -- Finding of power imbalance based primarily on judge's own observations and little information before court -- Finding made in absence of Charter application -- Power imbalance not existing -- Doctor who conducted assessment not collaborating with Crown -- Accused never raised with his many counsel the extent of material the Crown sent to the assessing psychiatrist -- Accused making no complaint for two years after he was aware of additional material sent after he consented to an extension of time for the completion of the report -- Crown not to be criticized for providing fullest possible information to psychiatrist doing s. 752.1 assessment -- Accused suffering little if any prejudice as result of late disclosure -- Sentence imposed by trial judge set aside on appeal and accused declared to be dangerous offender -- Determination of dangerous offender issue on appeal possible and appropriate due to completeness of evidence adduced in dangerous offender proceedings and at conventional sentencing hearing -- Criminal Code, R.S.C. 1985, c. C-46, s. 752.1.

The accused pleaded guilty to one count of breaking and entering and committing an assault with a weapon, one count of forcible confinement and two counts of threatening to cause death. The accused was 52 at the time of predicate offences and 61 when the appeal was heard. The Crown brought an application for a declaration that the accused was a dangerous offender. The accused was diagnosed as a psychopath, and having a number of anti-social personality disorders, including alcohol abuse disorder. Four and a half years later, after the Crown's application was begun, the accused brought an application to exclude a s. 752.1 assessment report. He had a lengthy record for violence, especially against women, and many violations of prior court orders, many of which prohibited contact with prior victims. The trial judge excluded the report and terminated the dangerous offender proceedings. He provided three principal grounds for his decision to exclude the report: (1) the power imbalance between the state and the accused; (2) the lack of independence of the s. 752.1 report; and (3) the prejudice to the accused from the late disclosure of certain material used in the preparation of the report. The accused had been unaware that new material was being gathered when he agreed to an extension of the assessment period, and F, who conducted the assessment, had incorporated the new material into his assessment without first affording the accused an opportunity to respond to it. After terminating the dangerous offender proceedings, the trial judge conducted a conventional sentencing hearing and determined that a global sentence of 15 years was appropriate. The accused was given 12 [cents] years' credit for pre-trial custody and was sentenced to an additional 2 [cents] years' imprisonment. The Crown appealed.

Held, the appeal should be allowed.

The trial judge erred in terminating the dangerous offender application. He erred in allowing his subjective concerns about an imbalance of power to [page242] influence his evidentiary ruling. Absent a Canadian Charter of Rights and Freedoms challenge, it was not appropriate for the trial judge to measure the fairness of the scheme established by Parliament according to his personal perception of fairness. Moreover, the trial judge's indictment of the dangerous offender regime was one-sided and failed to take into account the many checks and balances that exist to preserve and protect the rights of an accused. Contrary to the trial judge's finding, it was not wrong or unfair of the Crown to ferret out every last bit of information pertinent to the accused's level of dangerousness. Finally, the system provided the accused with numerous lawyers both before and during the dangerous offender proceeding, offered him a lawyer at the province's expense, provided for and funded amicus curiae, enabled the accused to obtain his own "defence" psychiatric assessment, and made special provision for the accused so that he could review the Crown's material and prepare for his defence.

There was no evidence to support the trial judge's conclusion that F collaborated with the Crown nor that someone from F's office must have told the Crown that the report would not be favourable to the Crown unless additional material was obtained. There was no evidence that the integrity and independence of the assessment report were irrevocably compromised. The accused suffered little, if any, prejudice as a result of the additional material sent to F, and certainly none that would warrant exclusion of the assessment report. F testified that his conclusion would have been unchanged had he not received the additional information.

The Crown appeal is allowed, which raises the question of remedy. The Crown asked that the court impose a dangerous offender designation rather than order a new hearing. Given the completeness of the evidence adduced in the dangerous offender proceedings and at the conventional sentencing hearing, it was appropriate to decide the merits of the dangerous offender application on appeal rather than order a new dangerous offender hearing. As found by the trial judge, the accused is a psychopath who suffers from an antisocial personality disorder, a narcissistic personality disorder, a borderline personality disorder and an alcohol abuse disorder. For more than 30 years, he had physically abused, sexually assaulted and psychologically tormented virtually every woman with whom he had formed a relationship. He has 44 prior convictions, 18 of which involve violence and nine of which involve breaches of court orders. The violent offences were almost entirely directed at women. There was evidence that he presents a high risk for future violent criminal behaviour. Given that round- the-clock supervision of the accused would be needed to control his risk of reoffending, a long-term offender finding is not appropriate. The accused is declared to be a dangerous offender and is sentenced to detention for an indeterminate period.

APPEAL by the Crown from a sentence imposed by Langdon J., [2005] O.J. No. 5824, 69 W.C.B. (2d) 401 (S.C.J.).

Cases referred to R. v. L. (G.) (2007), 87 O.R. (3d) 683, [2007] O.J. No. 2935, 2007 ONCA 548, 226 O.A.C. 148, 225 C.C.C. (3d) 20, 75 W.C.B. (2d) 327 [Leave to appeal to S.C.C. refused [2008] S.C.C.A. No. 39], apld Other cases referred to R. v. D. (F.E.) (2007), 84 O.R. (3d) 721, [2007] O.J. No. 1278, 2007 ONCA 246, 222 O.A.C. 253, 222 C.C.C. (3d) 373, 74 W.C.B. (2d) 576 [Leave to appeal to S.C.C. refused [2007] S.C.C.A. No. 568]; R. v. Johnson, [2003] 2 S.C.R. 357, [2003] S.C.J. No. 45, 2003 SCC 46, 230 D.L.R. (4th) 296, 308 N.R. 33, [2004] 2 W.W.R. 393, J.E. 2003-1825, 186 B.C.A.C. 161, 19 B.C.L.R. (4th) 243, 177 C.C.C. (3d) 97, 13 C.R. (6th) 205, 58 W.C.B. (2d) 154; [page243] R. v. Mitchell, [2003] 2 S.C.R. 396, [2003] S.C.J. No. 48, 2003 SCC 49, 230 D.L.R. (4th) 329, 309 N.R. 8, [2004] 2 W.W.R. 425, J.E. 2003-1822, 186 B.C.A.C. 205, 19 B.C.L.R. (4th) 275, 177 C.C.C. (3d) 130, 13 C.R. (6th) 232, 58 W.C.B. (2d) 153, affg [2002] B.C.J. No. 122, 2002 BCCA 48, 161 C.C.C. (3d) 508, 2 C.R. (6th) 385, 52 W.C.B. (2d) 468 Statutes referred to Criminal Code, R.S.C. 1985, c. C-46, ss. 752, 752.1 [as am.], 753(1), 753.1(1) [as am.], 754(1)(a)

Howard Leibovich, for applicant. M.O., in person. Philip Downes, as amicus curiae.

[1] BY THE COURT: -- This is a Crown appeal from the sentence imposed on the respondent, M.O., following a guilty plea. The circumstances giving rise to it are atypical.

[2] The sentence hearing in this case lasted the better part of five years. The first four and a half years were taken up with a dangerous offender application. The offences underlying that application (the predicate offences) consisted of one count of breaking, entering and committing an assault with a weapon, one count of forcible confinement, and two counts of threatening to cause death. The respondent pleaded guilty to the predicate offences on January 22, 2001.

[3] The dangerous offender application was eventually terminated by the trial judge in a ruling dated June 17, 2005. A conventional sentence hearing ensued and on November 17, 2005, the trial judge determined that a 15-year global sentence for the predicate offences was appropriate. Taking into account the time spent by the respondent in pre-trial custody, which the trial judge calculated on a two-for-one basis as 12 and a half years, he sentenced the respondent to two and a half years' imprisonment. The Crown appeals from this sentence.

[4] The Crown raises several issues on appeal. First, it submits that the trial judge erred in terminating the dangerous offender application. If correct in that submission, the Crown further submits that this court should declare the respondent a dangerous offender and impose an indeterminate sentence having regard to the completeness of the record, the procedural rights afforded to the respondent, the jeopardy he was facing both during and after the dangerous offender application and the findings of fact made by the trial judge on sentencing. [page244]

[5] Alternatively, the Crown submits that if this court accepts that the trial judge erred, but is not prepared to declare the respondent a dangerous offender, we should allow the appeal and order a new dangerous offender proceeding.

[6] As a final alternative, the Crown submits that if we conclude that the trial judge did not err in terminating the dangerous offender application, we should nonetheless allow the appeal and increase the respondent's sentence from two and a half years to six years because of a calculation error made by the trial judge in assessing the credit for pre-trial custody.

[7] The respondent, who appeared in person, submits that the appeal should be dismissed in its entirety. Alternatively, he submits that if the trial judge erred in terminating the dangerous offender application, we should allow the appeal and order a new dangerous offender proceeding. He also suggests that if we are concerned about his imminent release into the community on parole, we should marginally increase his sentence to ensure that he remains in custody pending the outcome of that proceeding. This proposal, though presumably made in good faith, is legally untenable.

[8] Although the respondent was unrepresented on the appeal, Mr. Philip Downes appeared as amicus curiae and provided helpful submissions to the court, for which we are grateful. Mr. Downes submitted that the appeal should be dismissed in its entirety. Alternatively, he argued that if we allow the appeal on the basis that the trial judge erred in terminating the dangerous offender application, we should uphold the existing custodial sentence, find the respondent to be a long-term offender and order that he be supervised in the community upon his release for a period of ten years.

[9] For reasons that follow, we are respectfully of the view that the trial judge erred in terminating the dangerous offender application. We are further of the view that the record amply supports a finding that the respondent is a dangerous offender and that there are no due process concerns that would cause us to forego making that finding and instead order a new dangerous offender hearing. We are also satisfied that there is no reasonable possibility of a different outcome if a new dangerous offender hearing were to be ordered.

[10] Accordingly, we would allow the appeal, set aside the sentence imposed by the trial judge, declare the respondent to be a dangerous offender and impose a sentence of detention in a penitentiary for an indeterminate period. [page245] Background

[11] The respondent is 61 years old. He was 52 when he committed the predicate offences. As found by the trial judge, the respondent is a psychopath who suffers from an antisocial personality disorder, a narcissistic personality disorder, a borderline personality disorder and an alcohol abuse disorder. His condition and the disorders that underlie it are long- standing and deeply ingrained.

[12] For a period of more than 30 years, beginning in December 1965 when he married his first wife, and ending in November 1997 when he was arrested and detained for the predicate offences, the respondent has, with depressing regularity, physically abused, sexually assaulted and psychologically tormented virtually every woman with whom he has formed a relationship. The record before us is replete with the experiences of ten such women.

[13] Over this period, the respondent has amassed a substantial criminal record consisting of 44 prior convictions, 18 of which involve offences of violence and nine of which involve breaches of court orders. The violent offences are almost entirely directed at women. They include such serious crimes as attempted rape, choking, sexual assault, threatening death and assault causing bodily harm. The breach offences consist of breaches of bail and probation orders. Many of these offences involve breaches of non-association conditions designed to protect the affected women, as well as breaches of conditions intended to promote the respondent's rehabilitation and prevent him from committing further crimes.

[14] The litany of violent episodes reported by the women whom the respondent has victimized over the years is discussed thoroughly in the trial judge's reasons for sentence. These reasons attest, in graphic terms, to the respondent's propensity for violence and his need to dominate, control, humiliate and in some instances, terrorize the women with whom he has formed relationships. With one exception, the trial judge accepted the evidence of the women who testified about the respondent's violent and abusive conduct and he rejected the respondent's denials or watered-down version of these events. He found a picture of "one almost unbroken chain of drunken, psychological, physical and sexual abuse" of women that "has continued for almost thirty years" and that only "truly stopped when [the respondent] was in prison".

[15] We propose to elaborate on only three such instances: the predicate offences against A.M. in 1997; the offence against M.T. [page246] in 1996; and the offences against M.I. in 1987. The facts underlying these offences illustrate the nature and extent of the respondent's violent behaviour. They also show how manipulative and deceitful he can be. 1. The predicate offences against A.M.

[16] The respondent pleaded guilty to the predicate offences on January 22, 2001. As mentioned, these offences consisted of one count of breaking, entering and committing an assault with a weapon, one count of forcible confinement and two counts of uttering a death threat. Charges of kidnapping, assault with a weapon and possession of a weapon for a purpose dangerous to the public peace were withdrawn as a result of the respondent's guilty pleas.

[17] A.M. was the victim of the predicate offences. She and the respondent met in 1996 at an Alcoholics Anonymous meeting and commenced a relationship that lasted for one year. The respondent refused to accept A.M.'s decision to end the relationship.

[18] On November 20, 1997, the respondent placed 18 phone calls to A.M.'s home in Oakville. He left voice messages in which he sounded more drunk after each call. Eventually, A.M. picked up the phone and told the respondent she was planning to marry another man and that there was no possibility of a relationship between them ever again. Upon hearing this, the respondent became very angry and threatened to slit her fiancé's throat. A.M. and her fiancé called the police for advice, but A.M. was not overly concerned because she believed the respondent was in Port Colborne, where he was to be sentenced the next day on a charge of impaired driving.

[19] Contrary to her belief, the respondent did not attend at court as expected on November 21. He instead went to A.M.'s home and entered through an unlocked door while she was home alone. Brandishing a knife, he grabbed her and forced her down the stairs into the family room. A.M. begged him not to kill her and he responded that he would not hurt her if she behaved. He told her that he had come to kill her fiancé. A.M. was very frightened and described the respondent's demeanor as "very vicious" and "beyond angry".

[20] The respondent then led A.M. through the house and instructed her to lock the doors and unplug the phones so that she could not call for help, all the while holding a knife close to her side. He repeated that he intended to kill her fiancé and said that he would kill himself after doing so. He told A.M. that he [page247] was going to tie her up so that she could not warn anyone and said that she would have to live with the knowledge that he had killed her fiancé.

[21] Knowing the respondent was an alcoholic, A.M. convinced him that they should have something to drink before he carried out his plans. The respondent agreed to go with her to the liquor store, but he warned her that the knife would be "on her" at all times and that he would kill her if she tried anything.

[22] On the drive to the liquor store, the respondent sat in the passenger seat and held the knife five inches from A.M.'s side. When they arrived at the store, he turned off the car and took the keys. The knife was still out of his pocket and pointed towards her.

[23] As the respondent got out of the car, A.M. seized the opportunity to lock the doors. She started yelling for help and hitting the horn. The respondent used the keys to unlock the door. A.M. tried to get out of the car, but the respondent grabbed her by the hair and pulled her back in, shouting "I'll kill you, bitch. I'll kill you". The respondent held the knife near A.M.'s neck, about one foot from her throat. She instinctively grabbed the blade and held on to it, injuring her hand. The respondent grabbed her by the vest, but she was able to slide out of the vest and flee from the car. The respondent pursued her and a struggle ensued, with A.M. fighting to keep the knife away from her. Bystanders shouted at the respondent to stop, but no one intervened. A.M. shouted for someone to call the police. When the respondent heard police sirens, he tried unsuccessfully to start the car and then fled on foot to a nearby parking garage.

[24] The police arrived and contained him in the parking garage pending the arrival of the tactical response unit. The respondent was observed holding a knife in his hand with blood on his arm from a self-inflicted wound. Following unsuccessful efforts to negotiate his peaceful surrender, the police employed a series of non-lethal weapons to subdue him, including rubber projectiles fired from a gun, tear gas and pepper spray. To the surprise of the police, none of these methods had any visible effect on the respondent. Eventually, a number of officers rushed at the respondent with shields and he was pinned down and arrested. A blood alcohol test revealed that he had been drinking but not heavily. According to A.M., the respondent was not drunk when he arrived at her home. 2. The 1996 offence against M.T.

[25] By all accounts, the respondent is a master of deception and a consummate manipulator. These traits are well-documented [page248] and figure prominently in his diagnosis as a dangerous psychopath. The events surrounding the respondent's conviction for sexual assault on M.T. bear witness to this.

[26] In 1996, the respondent managed to convince the Canadian Mental Health Association ("CMHA") that he was a member of the Ontario Psychological Association and that he held a Bachelor of Arts degree and a Masters degree in Education. His curriculum vitae further proclaimed that his Ph.D. was "incomplete". The trial judge at the sentence hearing commented on the respondent's purported credentials as follows:

That is the understatement of the century. In his entire life Mr. O. got about as close to a doctoral degree as he got to the planet Mars. . . . . .

The employment history stated in his curriculum vitae makes no reference to any of the significant time that he spent, either in treatment for alcohol, or in jail. This document is calculated and deceptive. It gives an impression of stability, employment and residence that is entirely false.

[27] Under these pretences, the respondent set up a counselling business in Barrie. He promoted himself as an expert in "sexually related issues" targeting vulnerable women, young and old. The CMHA, duped by his curriculum vitae, referred M.T. to him. As noted by the trial judge, M.T. "was a woman in her 30s who was seeking therapeutic help to assist her in dealing with problems of childhood sexual abuse and addictions". She began to see the respondent for therapy in January 1996. The respondent quickly began a sexual relationship with her that lasted for two weeks.

[28] M.T.'s case worker at the CMHA became suspicious of her relationship with the respondent. Following her initial denial, M.T. eventually disclosed the nature of their relationship. The respondent had cautioned M.T. to say nothing about it. When he learned that she had disobeyed him, he went to her apartment and very angrily demanded an explanation. He returned a week later and again demanded an explanation.

[29] The next week, on June 18, 1996, the respondent once again went to M.T.'s apartment. He was intoxicated, enraged and blamed her for having lost his job. M.T. was frightened and asked him to leave. He laughed at her and then began to kiss her. M.T. told him to stop but he continued. She began to struggle and he grabbed her wrist and forced her to the bedroom.

[30] Once in the bedroom, the respondent attempted to remove M.T.'s dress. She resisted and threatened to call the police but the respondent paid no attention. He removed her pants, pushed her on to the bed, ignored her attempts to resist him and forcibly [page249] performed oral sex on her. While she was still resisting, the respondent passed out. After he eventually regained consciousness, M.T. demanded that he leave and the respondent stormed out the door.

[31] Given M.T.'s vulnerability and the array of emotional and behavioural difficulties she had been experiencing, the impact of her ordeal with the respondent proved particularly devastating for her. 3. The 1987 offences against M.I.

[32] On September 21, 1987, the respondent pleaded guilty to charges of assault causing bodily harm, uttering death threats, and attempted strangulation to facilitate the indictable offence of assault. His victim was M.I., a woman with whom he had been living for a period of time.

[33] M.I. reported that over the course of their relationship, she and the respondent had been involved in no less than seven physical altercations between October 1986 and July 1987. A particularly vicious altercation occurred on August 20, 1987. The respondent arrived at M.I.'s apartment at 2:30 a.m. in an intoxicated state, despite being bound by two release orders prohibiting him from drinking alcohol. When he could not find any beer, he flew into a rage. M.I. threatened to revoke his bail. The respondent replied that he would kill her if she did. He grabbed her by the hair, threw her on the couch, and started choking her with his bare hands, stating "this is the last time you'll ever interfere, you fucking bitch" and "you'll be dead in the morning". M.I. lost consciousness.

[34] When M.I. regained consciousness, she found herself on the floor. The respondent grabbed her again by the hair and began punching her in the face and head. He then attempted to strangle her for a second time, causing her to again lose consciousness.

[35] When M.I. regained consciousness, the respondent ordered her to stand up. After she complied, he kicked her in the back, knocking her to the floor and asking her "now what are you going to do about it"?

[36] The respondent continued his attack, grabbing M.I. by the neck and banging her head against the arm of the couch and a nearby desk. He threw her on the couch and once again began to choke her, threatening that she would never walk again. M.I. lost consciousness for the third time. When she awoke, the respondent was kicking her and yelling "how do you like it now"?

[37] The respondent next ordered M.I. to lie on her back. He kicked her on the side, grabbed her hair and forced her to roll [page250] over onto her stomach. Each time she tried to move, he would kick her in the back. The respondent poured beer over her head and kicked her when she tried to move away. He grabbed the telephone receiver and struck her on the forehead with it, stating "what are you going to do with the fucking cops now"? M.I. repeatedly begged the respondent not to kill her. The respondent replied by telling her not to open her mouth or he would shut it permanently.

[38] The respondent then grabbed M.I. by the hair, dragged her down the hallway to the bedroom, threw her on the bed and told her not to move while he retrieved his cigarette and beer. Upon returning, he flicked his cigarette ashes on her and told her that he would burn her with the cigarette if she tried to move. To show that he meant business, the respondent burned the duvet beneath her right arm. He then fell asleep or passed out on the bed and M.I. fled to the closest police station. Her ordeal had lasted for two hours.

[39] The incidents involving A.M., M.T. and M.I. are but a few examples of the violence and cruelty that the respondent has inflicted and the deceit he has practised on so many women for so many years. Dangerous Offender Provisions of the Criminal Code

[40] The dangerous offender scheme in Part XXIV of the Criminal Code, R.S.C. 1985, c. C-46 empowers the prosecution to apply to the court for a finding that an accused is a dangerous offender. If the court makes a dangerous offender finding, the Code requires the imposition of an indeterminate custodial sentence. Section 752 defines the types of offences that may give rise to a dangerous offender application. In this case, the predicate offences against A.M. constitute serious personal injury offences as that term is defined in s. 752(a)(i) and (ii) of the Code:

752. In this Part, "court" means the court by which an offender in relation to whom an application under this Part is made was convicted, or a superior court of criminal jurisdiction; "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 . . . [page251]

[41] Following the respondent's guilty plea to the predicate offences on January 22, 2001, the Crown commenced the dangerous offender application. Section 752.1 empowers the court to order an assessment of the offender in such circumstances:

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.

(2) The person to whom the offender is remanded shall file a report of the assessment with the court not later than fifteen days after the end of the assessment period and make copies of it available to the prosecutor and counsel for the offender.

[42] Subsections 753(1)(a)(i) and (ii) of the Criminal Code specify the criteria for the dangerous offender designation:

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, . . .

[43] With these provisions in mind, we turn to the primary ground of appeal raised by the Crown, namely that the trial judge erred in terminating the dangerous offender application some four and a half years after it had begun. [page252] Issue One: Did the Trial Judge Err in Terminating the Dangerous Offender Application?

[44] The respondent was represented by counsel when he pleaded guilty to the predicate offences on January 22, 2001. He entered this plea knowing that the Crown intended to pursue a dangerous offender application against him based on the predicate offences. The Crown's application triggered the need for an assessment, which was to be filed with the court as provided by s. 752.1(2).

[45] Prior to proceeding with the assessment contemplated by s. 752.1(1), the trial judge remanded the respondent in custody to the Royal Ottawa Hospital for a "defence psychiatric assessment" at the respondent's request. That assessment, conducted by Dr. Bradford, began on August 8, 2002 and ended on October 3, 2002. To date, the respondent has never produced a report from that hospital, assuming that one exists.

[46] The s. 752.1(1) assessment, mistakenly referred to by the trial judge as the "Crown's assessment", took place at the Mental Health Centre in Penetanguishene under the auspices of Dr. R. Fleming. It commenced on November 19, 2002 and was scheduled to be completed on January 18, 2003.

[47] On January 17, 2003, with the respondent's consent, the trial judge extended the assessment period to January 28, 2003. On that date, the respondent was transferred from the Mental Health Centre in Penetanguishene back to the Maplehurst Detention Centre.

[48] The extension of the assessment period to January 28, 2003 meant that the assessment report was due to be filed with the court by February 12, 2003. That did not occur. Instead, on March 7, 2003, the parties appeared before the trial judge and, over the respondent's objection, who by now was represented by counsel, the Crown sought and received a one-week extension.

[49] We pause briefly to note that over the course of these lengthy proceedings, the respondent has retained and discharged many lawyers. In the context of the dangerous offender application, he was represented by counsel from January 22, 2001 until March 23, 2001, again from April 27, 2001 until October 18, 2002, and again from March 7, 2003 until June 3, 2004.

[50] On each occasion when counsel was removed from the record, the removal came about either at the respondent's request or as a result of his own misconduct. [See Note 1 below] Moreover, after the [page253] removal of the respondent's last set of lawyers in June 2004, the Crown indicated that it would not oppose an order appointing counsel at the expense of the province. Despite the Crown's willingness to assist, the respondent remained unrepresented for the balance of the dangerous offender proceeding and the conventional sentence hearing that followed. He claimed that he could not find a lawyer willing to take his case and stated that he wanted to represent himself, albeit with the assistance of a junior lawyer and a private investigator. Several months later, on October 13, 2004, at the instance of the Crown and over the objection of the respondent, the trial judge appointed two counsel to act as amicus curiae.

[51] Returning to the assessment process, at a hearing on March 7, 2003, the Crown requested an extension of time to file the assessment report. In support of that request, Crown counsel advised the court that the investigation was continuing and that additional material had recently been obtained and sent to Dr. Fleming. The Crown's submission was consistent with information contained in a letter sent to the trial judge on March 6, 2003 from the Penetanguishene Mental Health Centre.

[52] The additional material referred to by the Crown was voluminous. It consisted primarily of audio-taped and transcribed interviews with a number of the respondent's former domestic partners who spoke about their involvement with the respondent and the nature and extent of the abuse they suffered at his hands.

[53] The respondent was not aware of this material, or of the fact that it was being gathered, when he agreed on January 17, 2003 to an extension of the assessment period from January 18 to January 28, 2003. Nor was he aware until the March 7, 2003 hearing that Dr. Fleming was incorporating the additional material into his assessment without first affording him an opportunity to respond to it.

[54] On March 7, 2003, the Crown provided the respondent and his counsel with all of the additional material that had been sent to Dr. Fleming. Dr. Fleming's assessment was filed with the court on March 11, 2003.

[55] Nothing more was heard about the additional material or the use made of it by Dr. Fleming until March 1, 2005, almost two years later, when amicus informed the court that he would be bringing a motion to exclude Dr. Fleming's s. 752.1 assessment report.

[56] The motion, which eventually proceeded on June 6, 2005, was based on the Crown's alleged failure to disclose in a timely [page254] fashion the additional material sent to Dr. Fleming for assessment purposes and the prejudice said to be flowing to the respondent from the lack of timely disclosure.

[57] In the intervening two years, from March 2003 to March 2005, apart from the psychiatric evidence that was eventually called at the conventional sentence hearing, all the other prosecution evidence relevant to the dangerous offender application, including evidence from the respondent's former domestic partners and from various correctional officials, was called by the Crown in the dangerous offender proceeding. The respondent was represented by counsel or assisted by amicus throughout the period when the bulk of this evidence was tendered.

[58] Between June 6 and June 10, 2005, the trial judge heard submissions on the motion by amicus to exclude Dr. Fleming's s. 752.1 assessment report. Although the respondent initially opposed the motion, he eventually joined with amicus in seeking to have the assessment excluded. In addition to the grounds raised by amicus, the respondent alleged serious misconduct on the part of the Crown, the police, and Dr. Fleming and his assistants, including an allegation that they had misled the court as to the reason for seeking an extension of the time for filing the assessment report.

[59] On June 17, 2005, the trial judge released written reasons in which he allowed the motion and excluded Dr. Fleming's report. In view of the wording of s. 753(1) of the Code, which requires that an assessment report under s. 752.1(2) be filed as a precondition to finding someone a dangerous offender, the trial judge terminated the dangerous offender application. See R. v. D. (F.E.) (2007), 2007 ONCA 246, 84 O.R. (3d) 721, [2007] O.J. No. 1278, 222 C.C.C. (3d) 373 (C.A.), leave to appeal to S.C.C. refused [2007] S.C.C.A. No. 568.

The trial judge's reasons for excluding the assessment report and our analysis of these reasons

[60] The trial judge provided extensive reasons for excluding Dr. Fleming's assessment report from the dangerous offender proceeding. Three principal grounds for his decision to exclude the report can be discerned from his reasons: (1) the power imbalance between the state and the respondent; (2) the lack of independence of the s. 752.1 report; and (3) prejudice to the respondent from the late disclosure of the material used to prepare the report. We now summarize and analyze the trial judge's reasons on each of these three grounds. [page255] 1. Power imbalance

[61] In excluding the assessment report, the trial judge placed considerable emphasis on "the context of this application" and the "enormous imbalance of power" that "infects every level and nuance of a dangerous offender proceeding". Accepting amicus' description of dangerous offender proceedings as "Canada's answer to capital punishment", the trial judge compared and contrasted the respondent's unenviable position -- in custody and impecunious -- to that of "the state's officers", who are "all at liberty" and who "enjoy unlimited resources with which to prosecute the application".

[62] In this vein, the trial judge outlined in considerable detail the difficulties faced by the respondent in trying to defend himself from a jail cell, hampered by a lack of resources and an inability to access the voluminous material that the Crown had amassed against him. He also outlined some of the steps he personally had taken to assist the respondent, including arranging for a special holding cell at the courthouse where the respondent could review the material and prepare his defence.

[63] In concluding this part of his reasons, the trial judge candidly acknowledged that "[l]ittle of the information . . . just reported" had been filed before him on the application. Rather, it was the product of the trial judge's own observations over the four and a half years during which the respondent had been "trying, with incredible tenacity, to defend himself".

[64] In the end, the trial judge concluded that the failings of the system were relevant to the application brought by amicus and the respondent to exclude Dr. Fleming's assessment report. In his view, they were "important to the context of this application and in the evaluation of prejudice that can be sustained by an offender when he faces procedural injustice beyond that which is forced upon him by the weight of the system itself".

Analysis of the power imbalance issue

[65] We conclude that the trial judge erred in allowing his subjective concerns about an imbalance of power to influence his evidentiary ruling. We have four reasons for that conclusion.

[66] First, as the trial judge acknowledged, "[l]ittle of the information" upon which he based his sweeping condemnation of the dangerous offender regime and the procedural hurdles it presents for offenders, was filed on the application. In any event, absent a Canadian Charter of Rights and Freedoms challenge, it was not appropriate for the trial judge to measure the fairness of [page256] the scheme established by Parliament according to his personal perception of fairness.

[67] Second, the trial judge's indictment of the dangerous offender regime is very much one-sided and fails to take into account the many checks and balances that exist to preserve and protect the rights of an accused. A sampling of these protective measures includes:

-- The requirement that before such proceedings can be launched, the accused must first be convicted of a "serious personal injury offence" as that term is defined in s. 752(a) and (b) of the Code;

-- The consent of the Attorney General must be obtained before a court can embark upon a dangerous offender proceeding (see s. 754(1)(a) of the Code);

-- Before an accused can be found to be a dangerous offender, the Crown must prove beyond a reasonable doubt that he or she fits within the statutory criteria identified in s. 753(1)(a) or (b) of the Code;

-- The trial judge retains an overriding discretion to refrain from declaring an offender dangerous even if all of the statutory criteria have been met (see R. v. Johnson, 2003 SCC 46, [2003] 2 S.C.R. 357, [2003] S.C.J. No. 45, 177 C.C.C. (3d) 97).

[68] These requirements represent some of the important protective measures designed to ensure that only those persons who warrant the dangerous offender designation are so found. In our view, they go a considerable distance towards levelling the playing field and countering the power imbalance that the Crown is said by the trial judge to enjoy.

[69] Third, in commenting on the unfairness of this perceived power imbalance, the trial judge referred to the unlimited resources available to the Crown and made much of the fact that, in this case, the Crown conducted an extensive investigation and left no stone unturned. He observed at paras. 19-22:

This enormous imbalance of power infects every level and nuance of a dangerous offender proceeding. In the prosecution of this one, the Crown has prepared informations for and been granted twenty-five general warrants. All were executed and resulted in voluminous data bearing on almost every aspect of Mr. O.'s life from elementary school forward. He is now 60 years of age. Only two warrants for which the Crown applied were refused. [page257]

All of this voluminous material has been carefully organized and collated by the police and the Crown legal team. [In a footnote, the trial judge commented that when the voluminous material was sent to the Royal Ottawa Hospital for the respondent's psychiatric assessment, it was "wholly unorganized."]

(Emphasis in original)

Even in its organized form it represents a prodigious and intimidating body of potential evidence. The Crown has obtained, where possible, transcripts or documents of and from earlier proceedings involving Mr. O., including domestic and divorce proceedings in which he was involved.

I have not counted the witnesses who have testified but they are numerous, indeed. The witnesses include many so-called victims of Mr. O.'s alleged and proven past misconduct and representatives of almost every aspect of the federal and provincial correctional systems. If authorities have placed any budgetary restraints on the Crown in the prosecution of these proceedings, they are not apparent to me.

[70] We fail to see why the Crown's thoroughness should be held against it, let alone be used as a basis for rejecting Dr. Fleming's assessment report. To suggest that it was somehow wrong or unfair for the Crown to ferret out every last bit of information pertinent to the respondent's level of dangerousness is a remarkable proposition and one that we soundly reject. The Crown's ability to uncover a large body of evidence unfavourable to the respondent speaks more to the respondent's failings than to any unfairness on the Crown's part. Moreover, the Crown cannot be criticized, and indeed should be commended, for adducing evidence to fully inform the trial judge of the relevant facets of the provincial and federal correctional systems, including programs available in prison and in the community that might be of assistance to the respondent.

[71] Fourth, the bleak picture painted by the trial judge of the insurmountable obstacles that the respondent was forced to endure is largely overstated and in many respects unjustified. For example, the trial judge stated at para. 25:

Mr. O. while self represented at one point asked the court to order the Legal Aid system to provide him, not with counsel, but with some secretarial help and materials and some services of a private investigator. Alas, Legal Aid's warrant is only to provide counsel, not any lesser or less expensive kind of help. Legal Aid may fund a private investigator but only if applied for by counsel and then approved. Without counsel, Mr. O.'s request was turned down. He was very much on his own.

[72] To the extent that the respondent was "very much on his own", he had only himself to blame. The criminal justice system cannot be faulted. It came to the respondent's aid at every conceivable turn. The system provided the respondent with numerous lawyers both before and during the dangerous [page258] offender proceeding; the system offered the respondent a lawyer at the province's expense; the system provided for and funded amicus curiae; the system enabled the respondent to obtain his own "defence" psychiatric assessment at the Royal Ottawa Hospital; and the system made special provision for the respondent so that he could review the Crown's material and prepare for his defence.

[73] In short, if the respondent was disadvantaged, it was largely a function of his own making and not that of a power imbalance within the criminal justice system. For these reasons, we conclude that the trial judge erred in taking into account his concerns about an imbalance of power in deciding to exclude the s. 752.1 assessment report. 2. The independence of the s. 752.1 report

[74] The trial judge concluded that the integrity and independence of Dr. Fleming's assessment report was irrevocably compromised. Central to his conclusion were certain disparaging findings of fact made against the two Crown attorneys who had carriage of the case, the police officer in charge of the investigation, and Dr. Fleming and his staff at the Penetanguishene Mental Health Centre. These findings paint the Crowns as acting in a high-handed fashion, with little or no regard for the rights or interests of the respondent. Indeed, the trial judge's findings are capable of implicating the participants in a conspiracy to mislead the court and manipulate the course of justice.

[75] What appears to have led the trial judge to make his damaging findings against these participants was the fact that a large amount of new material was gathered by the police and sent by the Crown to Dr. Fleming in the months of February and March 2003, after the respondent had completed his extended stay at Penetanguishene. As noted above, the additional material consisted primarily of written statements and audio recordings from a number of domestic partners who had been victimized by the respondent over a 30-year period.

[76] The trial judge determined that the new material provided to Dr. Fleming in February and March 2003 was the product of a collaborative effort designed to ensure that Dr. Fleming would provide the Crown with a report favourable to its position. According to the trial judge, the new information -- which had actually been available for some time -- was hurriedly gathered by Detective Knight in January 2003 because someone from Dr. Fleming's office had tipped the Crown attorneys to a [page259] possible problem with Dr. Fleming's assessment report. The trial judge stated at paras. 70-71 that he was:

. . . satisfied that some communication, however oblique, occurred to warn the Crown that the report either might be unfavourable or, if favourable, might be thin and that the evidence supporting a favourable report needed topping-up.

This alone explains the otherwise inexplicable and sudden burst of activity by Detective Knight and the Crown's office to flood Dr. Fleming with scads of unfavourable information respecting Mr. O., emanating largely from the most biased of all possible sources, his ex-intimate partners.

[77] The trial judge concluded that "Dr. Fleming's assessment was so far compromised by the nature and volume of the contact between his office and the Crown's office that it took on the appearance, if not the character, of a partisan rather than an independent evaluation of Mr. O" (emphasis in original). It followed, according to the trial judge, that the report had not been "undertaken and completed" in a "procedurally fair and even-handed" manner.

[78] The cumulative effect of these findings proved fatal to the admissibility of Dr. Fleming's assessment report. According to the trial judge, the respondent's important liberty interests had been "put in jeopardy by a process that began as fair but suddenly became dreadfully skewed". The trial judge found that Dr. Fleming and his staff "quite unwittingly . . . allowed themselves to become apparently co-opted by the Crown" and the Crown "made the error of treating the assessment report as a partisan medical". Because of this, the trial judge was of the view that he could place "no confidence in the independence of the report". Dr. Fleming's disclaimer in the report that the "subsequent material did not change [his] initial conclusion" only increased the trial judge's "suspicion".

Analysis of the independence of the s. 752.1 report

[79] The trial judge's decision to exclude Dr. Fleming's report depended largely on his finding that the report was the product of a collaborative effort between the Crown and Dr. Fleming, which caused it to lack the quality of independence needed to warrant its reception under s. 752.1(1) of the Code. We find that the record does not support the finding of collaboration. The trial judge's finding rests almost entirely on speculation and untenable inferences.

[80] The finding of collaboration is a very serious one. It constitutes an attack on the professional integrity of the Crown attorneys, the investigating officer and Dr. Fleming and his [page260] staff. As noted, this finding is capable of implicating these individuals in a conspiracy to mislead the court and potentially manipulate the course of justice. It follows, in our view, that before a finding of collaboration is made, the court should look for clear and convincing evidence to support it. No such evidence exists here.

[81] There is simply no evidence to support the trial judge's finding that someone from Dr. Fleming's office must have informed the Crown, presumably in January 2003, that Dr. Fleming's report was not going to be favourable and that additional material was therefore needed. Rather, the pertinent evidence is to the contrary.

[82] In his assessment report, Dr. Fleming stated that the new material did not alter his initial opinion. No evidence to the contrary was led on the motion, and neither the respondent nor amicus sought to question Dr. Fleming about this assertion. If a finding were to be made that Dr. Fleming and his staff displayed a lack of professionalism and integrity, then fairness required that they be questioned further in an attempt to elicit evidence capable of grounding such a serious finding. The trial judge's remark that Dr. Fleming's "protestation . . . simply increases suspicion" does not qualify as a finding based on the evidence.

[83] Nor is there any evidence to support the trial judge's finding that Detective Knight suddenly increased her investigative efforts in January 2003 in order to gather information from the respondent's former partners and others that would bolster Dr. Fleming's report. Detective Knight was not called to testify on the motion to exclude the report. However, evidence she gave earlier in the proceeding was tendered on the motion. Detective Knight explained that prior to 2003, she spent the majority of her time preparing search warrants and gathering documents, as well as working on other cases, and that it was only in 2003 that she began to work full time on the respondent's case. She also testified that she had not previously contacted the various domestic partners because she was concerned that they would be traumatized, and if they had to be involved at all, it was better that this occur later rather than sooner. Finally, Detective Knight made it clear that she had no say or involvement in the dealings between the Crown and Dr. Fleming. Her role was limited to gathering evidence and providing it to the Crown and whomever else the Crown requested.

[84] The trial judge rejected Detective Knight's evidence with the bald and conclusory observation that if she "had such pure motives and did not want to traumatize former complainants [page261] unnecessarily, then surely it follows that the time to do so was after the Attorney-General's consent [to the dangerous offender proceeding] had been obtained" because only then would she have known "that the complainants would have to testify" (emphasis in original).

[85] The trial judge's reasoning ignores Detective Knight's evidence that prior to 2003, she was mostly gathering documents and preparing search warrants and was not working full time on the case. In 2003, the case was finally reaching the point where the Attorney General's consent would soon be sought. It is not surprising that the Crown would want to know the extent of the evidence available to it before seeking that consent. The information from the respondent's former domestic partners would presumably be very useful to the Attorney General in deciding whether to grant or withhold consent.

[86] Viewed that way, Detective Knight's evidence-gathering activity in 2003 becomes fully understandable. At the very least, absent compelling evidence to the contrary, it provides an innocent explanation for the timing of her increased investigative activity, and rebuts the nefarious one drawn by the trial judge. In our view, the innocent explanation for the "burst of activity" is at least as plausible, if not more plausible, than the interpretation placed on it by the trial judge.

[87] Finally, in arriving at his finding of collaboration, the trial judge placed considerable emphasis on the tone and content of a series of e-mails between the Crown's office and Dr. Fleming's assistant in the months of January, February and March 2003. The e-mails dealt primarily with the additional material the Crown was forwarding to Dr. Fleming and Dr. Fleming's request for extensions of time to complete his assessment report.

[88] The tone of the e-mails was courteous and friendly. The Crowns and Dr. Fleming's assistant addressed each other on a first-name basis, while sometimes referring to the respondent by his last name, and expressions of gratitude such as "Thanks again for all your assistance" or "Thanks again for your help" are found in several instances.

[89] We provide but one of several possible examples of the trial judge discerning nefarious meaning in the tone used in these e-mails. In a message sent by Dr. Fleming's assistant to the Crown advising that she had received certain transcripts, the e-mail ends with the line "Thanks again for your help." The trial judge commented in a footnote that the "use of the word 'help' clearly implies that both parties to the correspondence are engaged in a joint enterprise". [page262]

[90] In our view, the expressions of gratitude found in e- mail correspondence between the Crown attorneys and Dr. Fleming's assistant cannot possibly bear out the sinister implication placed on them by the trial judge. By any measure, the tone of the messages does not support the trial judge's very serious finding of a joint enterprise between the Crown and Dr. Fleming.

[91] In addition to being highly critical of the tone of the e-mails, the trial judge also objected to the content of an e- mail from the Crown, asking Dr. Fleming's assistant whether Dr. Fleming would like to receive tapes and transcripts of interviews with the victims, in which the Crown noted that Detective Knight "finds the demeanor of the victims striking in how emotionally they react so many years later". In another e- mail from the Crown, reference is made to two audio-taped interviews between Detective Knight and the respondent which are said to "address his manner of addressing her and various other comments he makes to her". The trial judge found these references to be "a clear example of advocacy by police and Crown to the assessor".

[92] We conclude that such a finding is equally untenable. The e-mails simply alert Dr. Fleming to something on the tapes that might be of interest to him. There is nothing wrong with this. Neither the police nor the Crown told Dr. Fleming what he should find or what conclusions he should draw. Alerting someone to something that may be of interest hardly fits the description of advocacy and the trial judge erred in concluding otherwise.

[93] For these reasons, we conclude that the finding of collaboration was unreasonable and unwarranted on this record. The trial judge committed a fundamental error in relying on it as the overriding basis for excluding Dr. Fleming's assessment report. 3. Prejudice from the lack of timely disclosure

[94] The third ground for the trial judge's decision to exclude the report was based on his finding that the late production of the material gathered by the police and sent by the Crown to Dr. Fleming in February and March 2003 was highly prejudicial to the respondent and worked the following four injustices on him.

[95] First, the respondent had been under the impression that the material amassed by the Crown as of August 2002, which was sent to the Royal Ottawa Hospital for the "defence assessment", was the extent of the material relied on by the [page263] Crown to have him declared a dangerous offender. That this was not the case worked an injustice on the respondent, according to the trial judge, because it deprived him of the opportunity of reviewing and responding to the new material in relation to both the defence assessment as well as that performed by Dr. Fleming.

[96] Second, had the respondent known of the additional material that the Crown was planning to provide to Dr. Fleming, he would not have consented to the extension of the assessment period in January 2003. He did so to his prejudice while unrepresented.

[97] Third, had the respondent known of the new material, he would likely not have provided Dr. Fleming with an "otherwise privileged 103 page autobiography" that he had earlier prepared for the defence assessment (although, in an earlier ruling, the trial judge had dismissed the respondent's application to reassert privilege over this document).

[98] Fourth, the new material received by Dr. Fleming contained information from a former domestic partner of the respondent whose evidence the trial judge later found to be unreliable. Nonetheless, her evidence had been considered by Dr. Fleming, thereby resulting in potential prejudice to the respondent.

Analysis of the prejudice issue

[99] We are of the view that the respondent suffered little if any prejudice as a result of the additional materials sent to Dr. Fleming in February and March 2003, and certainly none that would warrant the exclusion of Dr. Fleming's assessment report. To the extent that the trial judge found otherwise, we believe that his analysis was skewed by his co-existent findings concerning the lack of independence that he concluded tainted Dr. Fleming's assessment report. We have already addressed those findings and nothing more need be said about them.

[100] The respondent's erroneous belief about the nature and extent of the Crown's case against him should have played no part in the trial judge's prejudice inquiry. The Crown did not mislead the respondent; nor, it seems, did the respondent ever raise with any of his many counsel the issue of the extent of the material being used for assessment purposes.

[101] Absent abuse or irremediable prejudice, neither of which exists here, there are no fixed timelines beyond which the Crown may not adduce additional evidence. See R. v. Mitchell, 2002 BCCA 48, [2002] B.C.J. No. 122, 161 C.C.C. (3d) 508 (C.A.), at paras. 23-34, affd 2003 SCC 49, [2003] 2 S.C.R. 396, [2003] S.C.J. No. 48, 177 C.C.C. (3d) 130. [page264] As the Court of Appeal for British Columbia observed in Mitchell, to the extent that new material coming late in the day may occasion prejudice to an accused, the remedy will generally take the form of an adjournment to allow the accused to re-group and respond.

[102] That is precisely what could have occurred here, had the respondent felt any prejudice from the disclosure of the additional material on March 7, 2003. At that time, it will be recalled, the respondent was represented by counsel. And yet, apart from objecting to the Crown's request for a one-week extension to file Dr. Fleming's assessment report, not a word was said by counsel or by the respondent about any supposed prejudice. Rather, it was not until two years later, after virtually all of the evidence pertinent to the dangerous offender application had been heard, that amicus first informed the trial judge that he planned to bring a motion to exclude Dr. Fleming's assessment report.

[103] While we have no doubt that amicus acted in good faith, motions of such nature brought belatedly in the proceeding should be viewed with considerable skepticism. The respondent had two years within which to remedy the so-called prejudice arising from the additional material relied on by the Crown. Had he or his counsel been of the view that the new material unfairly undermined his defence assessment with Dr. Bradford or his s. 752.1(1) assessment with Dr. Fleming, steps could have been taken to have him reassessed, if need be. Alternatively, or additionally, he could have responded to the new material at the hearing by cross-examining those complainants who testified and providing his own version of events. Indeed, he did just that. What he failed to do, in all but one instance, was to persuade the trial judge that he was telling the truth. Hence, conducting additional assessments after permitting the respondent to review the new material would have accomplished nothing, apart from dragging out the proceeding for an even longer period of time.

[104] As for the respondent's concession in January 2003 to extend the assessment period and his willingness to turn over his autobiography to Dr. Fleming, the prejudice found by the trial judge to arise from these matters is tied directly to the trial judge's finding of collaboration and a lack of independence on the part of Dr. Fleming and his staff. Those findings having been rejected, it can hardly be maintained that the consent to an extension and the disclosure of the autobiography caused any prejudice to the respondent. In short, with the question of independence off the table, there is no basis for thinking that the [page265] respondent would not have consented to an extension or the disclosure of his autobiography.

[105] Turning finally to the information considered by Dr. Fleming from a former domestic partner whose evidence the trial judge later found to be suspect, we are of the view that any possible taint from it would have been very minor and would not come close to justifying the exclusion of the report. The evidence was but a fraction of the damning evidence given by the respondent's other nine former partners.

Conclusion on issue one

[106] We are thus satisfied that the trial judge's three principal grounds for excluding the s. 752.1 assessment report are without any foundation. The trial judge erroneously allowed his subjective concerns about a perceived power imbalance to affect his evidentiary ruling. He further erred in concluding that Dr. Fleming's report was not independent or impartial based on his unsubstantiated finding that the Crown attorneys, police and Dr. Fleming's office were engaged in a collaborative effort against the respondent. Finally, the trial judge erred in concluding that the respondent was prejudiced by the additional material sent to Dr. Fleming and relied on by the Crown in support of the dangerous offender application. Having erred in excluding Dr. Fleming's report, the trial judge further erred in terminating the dangerous offender application. To this extent, the appeal must succeed. Issue Two: What is the Appropriate Remedy?

[107] In view of our conclusion that the trial judge erred in terminating the dangerous offender application, under ordinary circumstances, we would allow the appeal and order a new dangerous offender hearing. However, this case is anything but ordinary.

[108] As explained, the dangerous offender application proceeded for some four and a half years before it was terminated on June 17, 2005. During that time, the Crown called virtually every witness it had proposed to call, including correctional personnel who were familiar with the resources available to the respondent if he should be released into the community. The only witnesses not called by the Crown were Dr. Fleming and Dr. Klassen, two psychiatrists who had assessed the respondent, and Dr. Wright, a psychologist who performed psychological testing on the respondent in conjunction with Dr. Fleming's assessment. These witnesses, [page266] however, were called by the Crown at the conventional sentence hearing that followed the termination of the dangerous offender application.

[109] At the sentence hearing, the respondent also called a number of witnesses, including a former parole officer who reviewed the entirety of his records with the Correctional Service of Canada. The respondent chose to testify and spent eight days on the witness stand.

[110] The respondent, quite understandably, was fully engaged in the sentence hearing. He knew that the Crown was seeking a sentence of life imprisonment for the predicate offences to which he had pleaded guilty in January 2001. The trial judge initially balked at the Crown's proposed penalty. He required the Crown to call evidence and show cause why a life sentence should even be considered; only then would he put the defence to its option of calling evidence. On July 22, 2005, after hearing the psychiatric evidence and receiving submissions from the Crown, the trial judge indicated that he had "been persuaded that there is a case to meet [for a life sentence]" and he called on the defence to present evidence if it chose to do so.

[111] Thus, in the context of the conventional sentence hearing, the respondent knew that he was at risk of being sentenced to imprisonment for life. Faced with that prospect, he took the opportunity to call evidence and he vigorously resisted the Crown's attempt to have him jailed for life.

[112] In these unique circumstances, we see no natural justice or due process concerns that would prevent us from deciding the merits of the dangerous offender application. We note that no fresh evidence was tendered by or on behalf of the respondent that might otherwise have dissuaded us from taking this approach. Nor are we persuaded that the substantive outcome might reasonably be different were we to order a new dangerous offender hearing. On the contrary, for reasons that follow, we are satisfied that such a hearing would simply postpone the inevitable.

The trial judge's reasons for sentence

[113] The trial judge delivered extensive reasons for sentence, comprising 93 pages of transcript and covering the respondent's life history from beginning to end. Of critical importance is the bleak and foreboding picture of the respondent that emerges from his findings of fact.

[114] In virtually every instance where the respondent's version of events differed from the version described by his former [page267] domestic partners, the trial judge believed the domestic partners and rejected the respondent's evidence. Fifty-two pages of his reasons are devoted to the traumatic experiences suffered by the many women victimized by the respondent over a 30-year period. In all but one of the ten domestic relationships considered by the trial judge, he was not persuaded by the respondent's attempts to deny or minimize the nature and degree of the harm that he inflicted and the consequences flowing from his abusive conduct.

[115] In sharp contrast with the sympathetic view of the respondent expressed by the trial judge in his reasons for excluding the assessment report, it is quite apparent that by the time of his sentencing decision, the trial judge's opinion of the respondent had radically changed. No longer is the respondent depicted as the victim of the system. Nor are his former partners dismissively characterized as the "most biased of all possible sources". The evidence presented at the sentence hearing fully explains and justifies this altered opinion.

[116] The trial judge's exhaustive review of the respondent's life story and the pain and suffering he inflicted on his domestic partners and others, for so many years, is well- summarized at paras. 142-50 of his reasons for sentence. The salient passages are reproduced here [paras. 144-46, 150]:

You married J.O. in 1965. By 1968 or 1969 you were routinely and drunkenly abusing her. Is it just coincidence that the pattern of abuse that she described became the harbinger of the abuse that M.I. described twenty years later?

J.O. never met your second wife, L.O., but what L.O. described was simply an escalating version of what J.O. endured. That is not a coincidence. It continued. ...

What a litany it is, Mr. O. [,] J.O., L.O., S.B., R.V., M.I., J.W., D.S., M.T., A.M., P.B. This list does not include sundry other drunken assaults . . . To this must be added a number of drunk-driving convictions. . . . . .

Mr. O., it comes down to this: Jekyll and Hyde. When you are sober you can be an intelligent, engaging, capable, artistic individual, well able to do constructive work and make a contribution to society. When you are drunk, you are a monster. You know it. You have known it for decades and you have chosen to do nothing about it.

[117] The destructive personality traits identified by the trial judge are manifestations of the serious psychiatric disorders from which the respondent suffers. These disorders, which will be discussed further below, are confirmed in the psychiatric reports and oral testimony of Dr. Fleming and Dr. Klassen. The [page268] trial judge accepted the evidence of these experts and found that "[t]heir diagnoses are correct". He further found that [at para. 156] "[a]ny differences of opinion later expressed [in their testimony] are differences of degree only." On the basis of the expert evidence, the trial judge found that the respondent is a long-standing psychopath who suffers from an antisocial personality disorder, a narcissistic personality disorder, a borderline personality disorder and an alcohol abuse disorder.

Expert evidence on the respondent's psychiatric profile

[118] Both psychiatrists who assessed the respondent, Dr. Klassen and Dr. Fleming, diagnosed him with multiple personality disorders. In his report dated July 21, 2003, Dr. Klassen indicated that the respondent "would appear to meet the adult criteria for antisocial personality disorder". That disorder, he explained, is reserved for someone who

has demonstrated a pervasive pattern of disregard for, and violation of, the rights of others, as indicated by three or more of:

-- Failure to conform to social norms with respect to lawful behaviours

-- Deceitfulness as indicated by repeated lying, use of aliases, or conning others for personal profit or pleasure

-- Impulsivity or a failure to plan ahead

-- Irritability and aggressiveness

-- Reckless disregard for the safety of self or others

-- Consistent irresponsibility as indicated by a repeated failure to sustain consistent work behaviour or honour financial obligations

-- A lack of remorse, as indicated by being indifferent to, or rationalizing, having hurt, mistreated, or stolen from another

[119] In Dr. Klassen's opinion, the respondent met not just three of those criteria, but all seven.

[120] Dr. Klassen also determined that the respondent "would meet . . . the criteria for narcissistic personality disorder". He explained that people who suffer from that disorder "demonstrate a pervasive pattern of grandiosity and need for admiration, and lack of empathy". He further stated that such individuals "tend to believe they are superior" and when they are thwarted, they "experience intense anger, and require the destruction of those who would oppose them". When their self- esteem is challenged, they can be left "feeling humiliated, degraded, hollow, or empty" and "they may react with disdain, rage, or defiant counter-attack". In Dr. Klassen's opinion, the respondent exhibited these traits, none of which "appear to have waned significantly in his later adult years". [page269]

[121] Dr. Klassen also found that the respondent clearly meets the criteria for a substance abuse disorder, which manifests itself in the following ways:

-- A failure to fulfill major role obligations

-- Recurrent substance use in situations in which it is physically hazardous

-- Recurrent substance related legal problem[s]

-- Recurrent substance use despite having persistent or recurrent social or interpersonal problems caused or exacerbated [by] the effects of the substance

In particular, Dr. Klassen found that the respondent "quite clearly meet[s] the criteria for alcohol abuse disorder".

[122] Dr. Fleming's diagnosis is found in his report dated March 11, 2003. That report is the same report that the trial judge excluded from the dangerous offender proceeding because it was not objective and independent. Nonetheless, he received it on the sentence hearing and relied on both that report and Dr. Fleming's oral testimony in his reasons for sentence. Notably, neither the respondent nor amicus attacked Dr. Fleming's independence or integrity when he testified at the sentence hearing.

[123] In his report, Dr. Fleming found that the respondent suffers from essentially the same psychiatric disorders as those identified by Dr. Klassen. He diagnosed the respondent as having "a severe Personality Disorder in which Antisocial and Narcissistic features predominate . . . . He could also be seen as having some Borderline or Histrionic elements."

[124] After describing the criteria for antisocial personality disorder and narcissistic personality disorder in terms similar to those expressed by Dr. Klassen, Dr. Fleming elaborated on the respondent's borderline personality disorder and histrionic personality disorder as follows:

Borderline Personality Disorder is characterized by "a pervasive pattern of instability of interpersonal relationships, self image and affects, and marked impulsivity". Again, in Mr. O. we see an individual whose relationships have never been stable but who has difficulty giving them up, and reacts angrily and aggressively when the termination of the relationship is undertaken by the other party. He similarly has some of the emotionality, flair for the dramatic and need to be the centre of attention associated with Histrionic Personality Disorder.

[125] Dr. Fleming recognized that "there is frequently overlap in these Personality Disorder descriptions". He concluded that the respondent is "fundamentally antisocial or, in Robert Hare's terminology, a Psychopath". [page270]

Expert evidence on risk assessment and risk management

[126] Both Dr. Klassen and Dr. Fleming were of the view that the respondent poses a high risk of recidivism. In Dr. Klassen's opinion, the respondent presented:

. . . with a likelihood of future violent behaviour. He has shown a substantial indifference to the reasonably foreseeable consequences of his behaviour. His violent behaviour may take the form of nonsexual violence, sexual violence, or both. According to Dr. Klassen, it followed that, from a psychiatric perspective, the respondent "meets the test for Dangerous Offender status".

[127] Dr. Klassen considered whether the sentencing sanctions available under the long-term offender regime would be sufficient to reduce the threat posed by the respondent to an acceptable level, despite him having otherwise met the statutory criteria for dangerous offender status under s. 753(1) of the Code. The preconditions necessary for a long-term offender finding are in s. 753.1 of the Code:

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 the 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.

[128] In both his report and his oral testimony, Dr. Klassen commented at some length on the reasonable possibility of eventual control of the threat posed by the respondent to the community. He posited a situation whereby over time, with round-the-clock community supervision, the risk posed by the respondent could be reduced to an acceptable level. At the same time, however, Dr. Klassen did not back away from the concerns expressed in the final full paragraph of his report, in which he states:

It is my opinion that this gentleman's character structure is pathologically intractable. This gentleman's history suggests that his alcohol abuse disorder is likewise. If the Long-Term offender designation is being contemplated for this individual, he will need to spend, in my opinion, extended periods of time in a community correctional facility, prior to any more autonomous release into the community. He will need to be very heavily resourced, should he return to the community. Given his history, if this [page271] individual is returned to community residency, as a Long-Term Offender, I frankly think that if he is properly managed, he will likely spend almost as much time incarcerated (on breaches of his LTO conditions) as he would were he to be found a Dangerous Offender. While I would support the notion that there may be a possibility of eventual control of the risk for this individual in the community, given his current age, I am not sure I could support the notion that there is a "reasonable" possibility of eventual control of the risk; this gentleman's criminality has been fulminant over the course of his criminal career, and has not waned in recent years, when in the community.

[129] Dr. Fleming shared Dr. Klassen's view that the psychiatric disorders from which the respondent suffers speak to the high risk he presents for future violent criminal behaviour. Dr. Fleming referred in his report to the respondent's extremely high score on the "Psychopathy Checklist -- Revised (PCL-R)". He observed that this measure "has proven to be a reliable predictor of recidivism". He further stated that the psychopathy disorder from which the respondent suffers has "predictive value" and that despite his advanced years, the respondent's "personality remains unchanged". In Dr. Fleming's opinion, if the respondent "were to return to the community . . . [he] would carry on as before" and "would form further relationships with women and emotionally and physically abuse them as he has before".

[130] Dr. Fleming concluded his report by observing that the only means for protecting the public was the continued incarceration of the respondent:

At present, there is no known treatment found to be effective of Antisocial Personality Disorders of this severity. Even with a clear mandate in the form of parole or prolonged probation, his previous treatment involvements, which suggest that he is a poor candidate for such intervention and most conventional treatment programs, if aware of his history in its entirety, would like[ly] reject him as a candidate. Unfortunately, in this circumstance, protection of the public by incarceration becomes the only viable option. (Emphasis added)

Analysis of the appropriateness of a long-term offender finding

[131] In his submissions on appeal, amicus argued that if we were otherwise inclined to allow the appeal, we should find the respondent to be a long-term offender and order that he be supervised in the community for a period of up to ten years. We would not give effect to that submission, largely for the reasons expressed by this court in R. v. L. (G.) (2007), 2007 ONCA 548, 87 O.R. (3d) 683, [2007] O.J. No. 2935, 225 C.C.C. (3d) 20 (C.A.), leave to appeal to S.C.C. refused [2008] S.C.C.A. No 39. [page272]

[132] The facts in L. (G.) bear an uncanny resemblance to the facts of this case. The offender, [G.L.], had a long history of violent criminal behaviour consisting of many crimes of violence against his domestic partners and others. The psychiatric evidence established that his risk of violently reoffending was extremely high, that persons most at risk were vulnerable, needy, dependent females, and that with or without treatment, [G.L.] would not experience any fundamental change in his personality. The trial judge described [at para. 5] the accused as "the worst partner abuser" that she had "seen in 13 years, where death has not resulted".

[133] [G.L.] was diagnosed as suffering from virtually the same character disorders as the respondent. Cronk J.A. described [G.L.]'s psychiatric condition as follows at para. 2:

G.L. suffers from an antisocial personality disorder, narcissistic personality traits and an alcohol abuse disorder. He has also been diagnosed as a psychopath, who has a history of controlling and manipulating his female domestic partners by threatening or engaging in violent behaviour and supplying them with alcohol or street drugs.

[134] Dr. Klassen also gave evidence in that case. His evidence confirmed that [G.L.]'s condition was not amenable to treatment. He expressed the opinion that [G.L.] might be designated a long-term offender and released into the community, but only under what he termed "strict and tight external controls". He acknowledged that such monitoring measures would require "very substantial resources" and might not "entirely prevent violence". Despite these concerns, the trial judge found [G.L.] to be a long-term offender and sentenced him to a ten-year term of imprisonment to be followed by a ten-year supervision order.

[135] The Crown appealed the long-term offender designation and sought to have [G.L.] declared a dangerous offender. In allowing the appeal, Cronk J.A. made the following apposite comments at paras. 59-61 concerning the supervisory regime posited by Dr. Klassen and recommended by the trial judge:

In my view, both s. 753.1(1)(c) of the Code and Johnson [R. v. Johnson (2003), 2003 SCC 46, 177 C.C.C. (3d) 97 (S.C.C.)] envisage that where the determination that an offender's risk may be safely controlled in the community rests, as it did here, on adequate community supervision, rather than treatment, the availability of the resources necessary to implement such supervision effectively cannot be uncertain. To hold otherwise would be speculative, thereby preventing any reliable assurance that unreasonable risks to public safety can be avoided.

In this case, . . . the record before the trial judge demonstrated that several of the key supervision conditions recommended by her are incapable of [page273] performance, as a result of the current law or the resourcing conditions applicable to long-term offenders . . .

[T]he supervision controls recommended by the trial judge were described by Dr. Klassen as "unusual", "stringent", "severe" and "strict and tight". I agree. The recommended conditions called for almost twenty-four-hour monitoring of G.L. in the community by officials expert in his type of disorders, coupled with [G.L.]'s residency in a controlled environment, for ten years. Even if the resources necessary to create such a lengthy offender-specific form of community supervision existed, a conclusion that I have already indicated is not supported by the evidence in this case, the overall form of supervision proposed comes close to replicating in the community the form of monitoring and supervision that the state provides in custodial settings.

[136] Cronk J.A. noted at para. 62 that where "restrictive provisions" of the type proposed by the trial judge "are necessary to control the risk of reoffending by an offender, and to thereby protect the public, the dangerous offender provisions of the Code are engaged". She rejected the notion that "the long-term offender regime is intended to virtually replicate jail-like conditions in the community for offenders released from custody". Cronk J.A. concluded that the risk G.L. posed to public safety was too great to be left to the chance of the future availability of the resources needed to implement the many conditions of supervision proposed by the trial judge in that case.

[137] In our view, Cronk J.A.'s observations apply with equal force to the situation at hand. These observations lead us to reject the submission made by amicus that the respondent should be found a long-term offender. Given that round-the-clock supervision of the respondent would be needed to control his risk of reoffending, and thereby protect the public, a long- term offender finding is not appropriate. Rather, the dangerous offender provisions of the Code are engaged.

Conclusion on issue two

[138] We are satisfied that this is a case in which a dangerous offender finding is warranted and can be safely substituted without the need for a further hearing. We come to this conclusion having regard to the record as a whole, the completeness of the discontinued dangerous offender proceeding and the ensuing sentence hearing, the procedural fairness accorded to the respondent and the strong findings of fact made by the trial judge on sentencing, all of which are borne out by the record.

[139] In our view, the evidence establishing that the respondent meets the criteria for a dangerous offender designation under s. 753(1)(a)(i) and/or (ii) is overwhelming. As such, a new hearing would merely postpone the inevitable. [page274] Disposition

[140] We would allow the appeal, set aside the sentence imposed by the trial judge, declare the respondent to be a dangerous offender and sentence him to detention in a penitentiary for an indeterminate period.

Appeal allowed.

Notes

Note 1: For example, counsel was removed from the record on March 23, 2001 after the respondent convinced his lawyer's law clerk to bring drugs into the detention centre for him. She was caught and pleaded guilty to possession for the purpose of trafficking.