CITATION: R. v. Cumming, 2009 ONCA 700
DATE: 20091006
DOCKET: C45461
COURT OF APPEAL FOR ONTARIO
Goudge, Sharpe and Epstein JJ.A.
BETWEEN:
Her Majesty the Queen
Respondent
and
Gary William Cumming
Appellant
Brian Snell, for the appellant
Craig Harper, for the respondent
Heard: June 17, 2009
On appeal from the conviction entered by Justice George B. Smith of the Superior Court of Justice on November 25, 2004, and the sentence imposed on December 2, 2005.
Goudge J.A.:
A. OVERVIEW
[1] On November 25, 2004, the appellant was convicted by Smith J., sitting alone, of eight counts arising out of two separate domestic assaults. The Crown then applied to have the appellant declared a dangerous offender, and on December 2, 2005, after a four-day hearing, the trial judge made that order.
[2] The appellant appeals some, but not all, of his convictions and his designation as a dangerous offender. I would dismiss his conviction appeal. However, for the reasons that follow, I conclude that the trial judge erred in basing his conclusion on the opinion that motivation to change was an essential prerequisite to be designated a long-term offender in the face of unanimous expert evidence that the contrary was true for this appellant. I would therefore allow his sentence appeal, set aside his designation and order a new hearing of the Crown’s dangerous offender application.
B. THE FACTS
[3] In 2004 the appellant was 47 years old. Early that year, Victoria LeBlanc, then 41 years old, and her two teenaged children moved into his home. She and the appellant soon became intimate. Both of them were alcoholics.
[4] The first incident occurred on May 27, 2004. The trial judge convicted the appellant of assaulting Ms. LeBlanc, by choking her after a violent argument in the home. He also convicted the appellant of assaulting Ms. LeBlanc’s daughter when she tried to intervene, and of preventing the daughter from using the telephone when she tried to contact the police.
[5] The second incident occurred on June 15, 2004. The trial judge found that the appellant, in a drunken state, assaulted the entire LeBlanc family. He convicted the appellant of assault causing bodily harm for an assault of Victoria LeBlanc that he described as brutal and vicious, causing horrendous injuries. He convicted the appellant of assaulting Ms. LeBlanc’s daughter and son, each of whom were in the home at the time. Finally, he convicted the appellant of preventing the daughter from calling the police for help, and of assaulting a police officer after the appellant’s arrest.
[6] The Crown sought to have the appellant declared a dangerous offender based on the predicate offence of assault causing bodily harm to Ms. LeBlanc on June 15, 2004. Over the four days of hearing that application, the trial judge heard evidence of the appellant’s numerous prior convictions, his assaults of previous domestic partners and others, and his numerous breaches of probation orders over some 22 years. The trial judge also heard from Dr. Phillip Klassen, the forensic psychiatrist called by the Crown who performed the assessment of the appellant pursuant to s. 752.1 of the Criminal Code, and Dr. Julian Gojer, the forensic psychiatrist called by the defence.
[7] In the end, the trial judge concluded as follows:
With an individual who presents with a record of persistent violent behaviour over many years against multiple partners and multiple acts of brutality towards them, but presenting as well with some sincere demonstration of an attempt to alter that behaviour either by following counselling programs or at least obeying Court ordered conditions designed to support an altered lifestyle, some reasonable possibility of eventual control of the risk of re-offending would exist, but that is not this offender at this time in his life.
I regretfully conclude that Gary Cumming has proved himself to be a dangerous offender and I so find for the reasons earlier expressed. I have no confidence that there exists, at present, a reasonable possibility of eventual control in the community of the substantial risk that the accused will re-offend. The numerous stringent terms suggested by the psychiatric experts to provide that control could succeed only with a determined, sincere effort on the part of the subject.
C. THE CONVICTION APPEALS
[8] The appellant does not appeal his conviction for the predicate offence, or his conviction for assaulting his daughter on June 15, 2004. In oral submissions, the appellant addressed only his conviction for interfering with Ms. LeBlanc’s daughter’s attempt to call police on June 15, 2004. He argued that there was no evidence that the daughter had the right to use the phone or to enter the room where it was located.
[9] I disagree. There was ample evidence that the appellant’s house was the daughter’s family home at the time, and that she had access to all the rooms.
[10] As to the other convictions, the appellant’s factum advances the general position that there was insufficient evidence to sustain them. Again, I disagree. I need only say that all of the convictions are well founded on the evidentiary record.
[11] The conviction appeals are therefore dismissed.
D. THE SENTENCE APPEAL
[12] The appellant appeals his designation as a dangerous offender. He argues that the trial judge erred in not declaring him a long-term offender instead.
[13] The appellant does not contest the trial judge’s finding that he constitutes a threat to the life, safety or physical or mental well-being of other persons and therefore meets that criterion for dangerous offender. Following that finding, the trial judge then went on to consider, as he was required to by R. v. Johnson, 2003 SCC 46, [2003] 2 S.C.R. 357, whether the appellant nonetheless meets the requirements for designation as a long-term offender set out in s. 753.1 of the Criminal Code. He concluded that the appellant did not, because there was no reasonable possibility of eventual control in the community of the risk the appellant presents, which is an essential criterion for long-term offender mandated by s. 753.1. As a result, the trial judge declared the appellant to be a dangerous offender.
[14] The appellant says that the trial judge erred in his conclusion that there was no reasonable possibility of eventual control in the community and that the sentence imposed was fatally flawed as a consequence.
[15] Two psychiatrists gave the only expert evidence in the sentencing proceedings, Dr. Klassen for the Crown and Dr. Gojer for the defence. Their evidence was very similar.
[16] Dr. Klassen’s risk assessment of the appellant was that he is at high risk of repeating his history of violent behaviour with co-habiting persons absent significant intervention, but that in all likelihood, there will be some decline in this risk over the next number of years as the appellant moves into his fifties. Dr. Gojer’s opinion was consistent with this.
[17] Dr. Klassen was clear, however, that with the proper set of external controls on the appellant there is, in the language of s. 753.1 of the Criminal Code, a reasonable possibility of his eventual control in the community. Dr. Klassen described this as reflecting the shift in recent years from institution-based care to intensive community supervision, a shift that he believes has proven very successful. This includes regular or even daily monitoring of the individual, including where and with whom he is living and working, and ensuring that he is taking his medication and abstaining from alcohol consumption. Dr. Klassen underlined that the appellant has never been aggressively monitored in this way. He emphasized that the whole point of aggressive monitoring is to render immaterial the appellant’s lack of motivation to change. Finally, Dr. Klassen said that if the appellant does not participate in the aggressive monitoring or, if he does and there are indications that he is proceeding along a road to re-offend, he can immediately be re-incarcerated before that happens, and charged with breach of his long-term supervision order. Dr. Klassen concluded that this type of monitoring has proven effective, and is available in Toronto. He therefore concluded that it offered a reasonable possibility of eventual control in the community of the risk presented by the appellant.
[18] While somewhat less detailed, Dr. Gojer’s evidence was entirely consistent with this. He concluded, as did Dr. Klassen, that with significant external supervision, the appellant met the long-term offender designation requirement that there be a reasonable possibility that his risk could be managed effectively in the community.
[19] Despite the unanimity of this expert evidence, the trial judge came to the opposite conclusion, holding that there was no reasonable possibility of eventual control in the community of the risk presented by the appellant. The trial judge did so without articulating any reasons for rejecting it. Rather, as the passages quoted earlier indicated, the trial judge based his conclusion on his opinion that for an offender like the appellant, strict external controls, however well-fashioned, could succeed only if the individual was motivated to change and “that is not this offender at this time in his life”.
[20] This opinion is clearly and directly contrary to the expert opinion that was before the trial judge, namely that the strict external controls proposed would work regardless of the individual’s motivation. Moreover, the opinion of the trial judge that motivation was a necessary prerequisite to controlling the behaviour of someone like the appellant was itself entirely without evidentiary foundation. Since the trial judge’s conclusion was directly contrary to the expert opinion before him, and since there was no evidentiary foundation for the opinion upon which it was based, the sentence he imposed cannot stand. The basis for his conclusion that the appellant cannot qualify as a long-term offender because there is no reasonable possibility of eventual control in the community of the risk he presents has no evidentiary foundation.
[21] The sentence appeal must therefore be allowed. Since it has been almost four years since sentence was pronounced, it is appropriate that a new dangerous offender hearing be conducted so that a current assessment of the appellant can be made. The sentence appeal is allowed and a new dangerous offender hearing is ordered.
RELEASED: October 6, 2009 (“S.T.G.”)
“S.T. Goudge J.A.”
“I agree Robert J. Sharpe J.A.”
“I agree Gloria Epstein J.A.”