W A R N I N G

The President of the panel hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486.5(1), (2), (3), (4), (5), (6), (7), (8) or (9) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.5 (1) Unless an order is made under section 486.4, on application of the prosecutor, a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of justice.

(2) On application of a justice system participant who is involved in proceedings in respect of an offence referred to in subsection 486.2(5) or of the prosecutor in those proceedings, a judge or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of justice.

(3) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice if it is not the purpose of the disclosure to make the information known in the community.

(4) An applicant for an order shall

(a) apply in writing to the presiding judge or justice or, if the judge or justice has not been determined, to a judge of a superior court of criminal jurisdiction in the judicial district where the proceedings will take place; and

(b) provide notice of the application to the prosecutor, the accused and any other person affected by the order that the judge or justice specifies.

(5) An applicant for an order shall set out the grounds on which the applicant relies to establish that the order is necessary for the proper administration of justice.

(6) The judge or justice may hold a hearing to determine whether an order should be made, and the hearing may be in private.

(7) In determining whether to make an order, the judge or justice shall consider

(a) the right to a fair and public hearing;

(b) whether there is a real and substantial risk that the victim, witness or justice system participant would suffer significant harm if their identity were disclosed;

(c) whether the victim, witness or justice system participant needs the order for their security or to protect them from intimidation or retaliation;

(d) society’s interest in encouraging the reporting of offences and the participation of victims, witnesses and justice system participants in the criminal justice process;

(e) whether effective alternatives are available to protect the identity of the victim, witness or justice system participant;

(f) the salutary and deleterious effects of the proposed order;

(g) the impact of the proposed order on the freedom of expression of those affected by it; and

(h) any other factor that the judge or justice considers relevant.

(8) An order may be subject to any conditions that the judge or justice thinks fit.

(9) Unless the judge or justice refuses to make an order, no person shall publish in any document or broadcast or transmit in any way

(a) the contents of an application;

(b) any evidence taken, information given or submissions made at a hearing under subsection (6); or

(c) any other information that could identify the person to whom the application relates as a victim, witness or justice system participant in the proceedings. 2005, c. 32, s. 15.

486.6 (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 205, c. 32, s. 15.

R. v. Edwards, 2008 ONCA 414

DATE: 20080527

DOCKET: C45798 & C45417

COURT OF APPEAL FOR ONTARIO

FELDMAN, JURIANSZ and ROULEAU JJ.A.

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

and

ERROL EDWARDS

Applicant/Appellant

AND BETWEEN

HER MAJESTY THE QUEEN

Appellant

and

ERROL EDWARDS

Respondent

COUNSEL:

Kenneth L. Campbell and Tracy Stapleton for the Crown

Christopher D. Hicks and Catriona Verner for Errol Edwards

Heard: April 11, 2008

On appeal from the judgment of Justice N.D. Dyson of the Superior Court of Justice dated April 18, 2006, with reasons reported at (2006), 69 W.C.B. (2d) 785.

ROULEAU J.A.:

[1] Errol Edwards was convicted of aggravated sexual assault, wear a disguise with intent and uttering threats contrary to sections 273, 351(2) and 264.1 of the Criminal Code. At the sentencing hearing, the trial judge declined to impose a dangerous offender designation sought by the Crown. Instead the trial judge found Edwards to be a long-term offender and sentenced him to fifteen years in custody consecutive to the prison term he was then serving to be followed by a ten-year long-term supervision order.

[2] Both parties have appealed. Edwards appeals the fifteen year sentence and the Crown appeals the trial judge’s failure to declare Edwards a dangerous offender.

Facts

[3] At the time of trial on the predicate offences, Edwards was serving a fifteen year sentence (less credit given for pre-trial detention on a 1.5 for 1 basis) for sex based offences against four women committed in 1991. The predicate offences involved a violent assault in the course of which Edwards vaginally raped the victim ejaculating inside of her. The predicate offences were committed in 1991, before commission of the offences for which Edwards was imprisoned. The trial was not held until 2004 because Edwards was not identified as the perpetrator until after the retroactive DNA provisions came into effect in 2000.[^1]

[4] In its application to have Edwards declared a dangerous offender, the Crown called two psychiatrists, Dr. Klassen and Dr. Glancy. They gave expert evidence opining that Edwards suffered from a coercive sexual paraphilia, a form of core deviant sexual preference, and was likely to re-offend. Dr. Glancy was also of the opinion that the appellant’s offence pattern revealed a possible diagnosis of sexual sadism. Klassen testified that Edwards “may present with a ‘reasonable possibility of eventual control of risk in the community’, should the substantial [proportion] of the following decade be dealt [with] by means of a fixed sentence, and a substantial [proportion ] of the following decade be dealt [with] by means of a Long-Term Offender designation.” This view was premised on the fact that Edwards, forty-two years old at the time of sentencing, would be over fifty years old after completing a ten year fixed term sentence.

[5] Both Dr. Klassen and Dr. Glancy testified that after the age of fifty there was an age-related decline in risk that Edwards would violently or sexually reoffend. That risk would decline to very low levels after the age of sixty. Edwards will be fifty-seven years old after serving the fifteen year fixed term portion of the sentence imposed by the trial judge.

[6] At the hearing of the appeal, the Crown appeal was argued first followed by Edwards’ sentence appeal. I will follow the same sequence in these reasons.

The Crown appeal

[7] The Crown submits that the trial judge erred in relying exclusively on psychiatric evidence that indicated that individuals are substantially less likely to engage in violent sexual behaviour beyond a given age. The Crown argues that this general tendency was based on group data. There was no evidence specific to this particular offender to support the conclusion that the general tendency applied to Edwards and that, as a result, there was a reasonable possibility of eventual control in the community such that a long-term offender designation was appropriate. As such, the Crown submits that the court should continue to consider Edwards to be at a serious risk of reoffending.

[8] The Crown also submits that, having found that Edwards met the criteria for a dangerous offender designation, the trial judge erred in law by placing an onus upon the Crown to demonstrate that the offender should not to be classified as a long-term offender.

[9] The Crown notes that there were significant uncertainties in the diagnosis of Edwards. The opinions of the psychiatrists had to be considered provisional given the absence of important information about Edwards. Specifically, the trial judge noted that “[t]he question of whether Edwards is a sexual sadist and precisely what this portends in relation to the likelihood of recidivism, regardless of age, would be of great assistance to the court in deciding whether this is a case for an indeterminate sentence or a long-term designation with its unique sentencing provisions.”

[10] The Crown argues that because Edwards would not allow himself to be interviewed or treated by Dr. Klassen or Dr. Glancy, the concerns as to whether Edwards could be classified as a sexual sadist and whether he would be amenable to treatment were not fully explored. By exercising his discretion to declare Edwards a long-term offender notwithstanding the absence of important information required to make such a decision, the trial judge impermissibly shifted the onus onto the Crown to demonstrate why the offender ought not to have been subject to an indeterminate period of incarceration.

[11] In my view, the Crown’s appeal should fail. The trial judge was well aware of the difficulty of applying statistical evidence regarding age-related decline in risk of reoffending by sexual offenders to a specific individual such as Edwards. Further, the trial judge did not, as alleged by the Crown, rely exclusively on the statistical evidence of age-related decline in reaching his conclusion. The trial judge also had the benefit of the extensive reports filed by Dr. Klassen and Dr. Glancy, as well as reports from the institution where Edwards has been incarcerated for over a decade. These reports indicated that Edwards had attended two sex offender treatment programs. From the second program, it was reported that Edwards had shown some progress with respect to developing insight into his offence cycle and formulating a realistic relapse prevention plan.

[12] In his reasons, the trial judge addressed all of the weaknesses and concerns raised and found that, with his advanced years upon release and appropriate parole conditions, there is a reasonable possibility of eventual control of Edwards’ risk in the community. This finding was open to him and, in reaching this conclusion, the trial judge did not, in my view, improperly shift the onus to the Crown.

Edwards’ sentence appeal

[13] In his appeal, Edwards maintains that a sentence of fifteen years is excessive given that he is already serving a sentence of fifteen years for his earlier conviction for crimes committed shortly after the predicate offences. He argues that, in imposing the fifteen year sentence, the trial judge did not consider the “totality principle”.

[14] In my view, there is no basis for interfering with the sentence imposed in this somewhat unique set of circumstances. The offences included a brutal aggravated sexual assault under s. 273 of the Code, which renders the offender liable to a sentence of imprisonment for life. A fifteen year sentence is therefore within the available range of sentences for these offences.

[15] At the sentencing hearing, the Crown sought a dangerous offender designation. Once the trial judge concluded that Edwards met the criteria of a dangerous offender, a designation to that effect and a sentence of detention for an indeterminate period would normally follow. However, before actually designating Edwards as a dangerous offender, the trial judge had to decide whether to exercise his discretion not to make a designation (see R. v. Lyons, [1987] 2 S.C.R. 309 at 338 & 362), and consider whether the less restrictive sanction of a determinate sentence and long-term offender designation was appropriate.

[16] In his reasons, the trial judge reviewed relevant Criminal Code provisions governing the dangerous offender application. He determined that, while the appellant satisfied the requirements for designation as a dangerous offender under s. 753(1) of the Code, a long-term offender designation pursuant to s. 753.1 was appropriate in this case. Section 753.1(1) provides as follows:

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.

[17] Applying these provisions he reasoned that, for there to be a reasonable possibility of eventual control of the risk in the community, Edwards would have to attain a certain age before being released into the community. The trial judge had before him expert testimony regarding the age-related decline in risk for sex offenders and, weighing this evidence, concluded that a fixed-term sentence of fifteen years, combined with a long-term offender designation was necessary to address the concern that Edwards had a significant risk of reoffending.

[18] The “totality principle” has little relevance to the fashioning of an appropriate sentence in this case. The “totality principle” is concerned with ensuring that, in the aggregate, a sentence is just and appropriate. The principle is designed to ensure that the sentence imposed is in keeping with the record and prospects of the offender and does not impose on the offender what is in essence a “crushing sentence”. See Clayton Ruby, Sentencing, 4th ed. (Toronto: Butterworths, 1994) at pp. 44-45.

[19] The dangerous offender/long-term offender sentencing regime is a “specialized measure” targeted at offenders who clearly pose a threat to the security of our communities: R. v. Payne (2001), 41 C.R. (5th) 156 at para. 83 (Ont. S.C.J.). In R. v. Lyons at 328, the Supreme Court affirmed that the primary purpose of the dangerous offender sentencing regime is the protection of the public. The view expressed in Lyons was described more fully in R. v. Johnson, 2003 SCC 46, [2003] 2 S.C.R. 357 at para. 19:

In Lyons, La Forest J. explained that preventive detention under the dangerous offender regime goes beyond what is justified on a “just desserts” rationale based on the reasoning that in a given case, the nature of the crime and the circumstances of the offender call for the elevation of the goal of protection of the public over the other purposes of sentencing. La Forest J. confirmed, at p. 339, that the legislation was designed “to carefully define a very small group of offenders whose personal characteristics and particular circumstances militate strenuously in favour of preventive incarceration”. [Emphasis added.]

[20] Thus, in sentencing the appellant, the trial judge’s paramount concern must have been to design a sentence that complied with the goal of public protection; this concern was elevated above the concern captured within the “totality principle”. With the objective of public interest in mind, the trial judge was faced with the choice of either: (1) a dangerous offender designation coupled with an indeterminate sentence, or (2) a long-term offender designation coupled with a determinate sentence that offered “a reasonable possibility of eventual control of the risk in the community.” Based on the evidence presented, the trial judge adopted the second option.

[21] Here, the recognition of the appellant’s advanced age upon release and the imposition of appropriate conditions during the supervision period were the main reasons for the trial judge’s decision to impose the long-term offender designation over the dangerous offender designation. Application of the “totality principle” in isolation would likely have resulted in a shorter sentence that would not have allowed these specific conditions to develop. In my view, the “totality principle” cannot be applied to require that a trial judge impose a fixed-term sentence that is shorter than the sentence judged necessary to meet the requirements for a long-term offender designation.

[22] In addition, the circumstances of this case were such that, if the trial judge had concluded that the “totality principle” required the imposition of a determinate sentence of a shorter duration, the trial judge would have been limited to imposing a dangerous offender sentence (again, because the conditions underlying the trial judge’s decision to impose a long-term offender sentence could not have been satisfied). As a result, the imposition of a fixed-term sentence at what might be considered to be the high end of the range for the predicate offences became the least restrictive sentence for this offender. The sentence enabled the trial judge to make the long-term offender designation rather than the dangerous offender designation that would have resulted in a sentence of detention for an indeterminate period.

Disposition and Conclusion

[23] I would dismiss both appeals.

“Paul Rouleau J.A.”

“I agree K. Feldman J.A.”

“I agree R.G. Juriansz J.A.”

RELEASED: May 27, 2008

[^1]: Canada’s DNA data bank legislation was enacted in December 1998 and came into force on June 30, 2000. The legislation created a new statute governing the establishment and administration of a national DNA data bank, the DNA Identification Act, S.C. 1998, c. 37, and also amended the Criminal Code to allow judges to make post-conviction DNA data bank orders authorizing the taking of bodily substances from persons found guilty of designated offences under the Code for the purposes of including the offender’s DNA profile in the national DNA data bank.