CITATION: R. v. Caldwell, 2010 ONCA 240
DATE: 20100401
DOCKET: C44942
COURT OF APPEAL FOR ONTARIO
Feldman, Sharpe and Gillese JJ.A.
BETWEEN
Her Majesty The Queen
Respondent
and
James Caldwell
Applicant/Appellant
Catriona Verner, for the applicant/appellant
Frank Au, for the respondent
Heard & released orally: March 26, 2010
On appeal from the sentence imposed by Justice John A. Desotti of the Superior Court of Justice dated October 13, 2005.
ENDORSEMENT
[1] The appellant pleaded guilty to sexually assaulting a four-year-old child and, in the light of his lengthy prior record for similar offences, he was declared a dangerous offender and given a sentence of indeterminate detention in 1998. At the 1998 hearing, the trial judge concluded that on the evidence the appellant met the conditions for a long-term offender designation, but declared him a dangerous offender because at the time the offence was committed the long-term offender designation was not available. This court reversed that decision in 2004 and ordered a new hearing which led to the designation now under appeal.
[2] At the new hearing in 2005 before the same judge, the appellant led no new evidence but relied upon the evidence given at the first hearing. The Crown called one witness who introduced as an exhibit the reports of Correctional Services of Canada (“CSC”) detailing the appellant’s seven-year custodial history following the first hearing. The appellant conceded that he presented a substantial risk to reoffend but urged the trial judge to designate him as a long-term rather than as a dangerous offender.
[3] The trial judge reviewed the evidence and concluded that he was “unconvinced, based on the material provided, that there is a reasonable possibility of the essential control of the risk that the offender will reoffend. The long-term offender provision is not an appropriate determination”.
[4] The appellant raises three issues:
Did the trial judge err by relying on the CSC reports?
Did the trial judge misapprehend the contents of the CSC reports?
Should this court admit as fresh evidence the updated report of Dr. Bradford?
The CSC Reports
[5] As issues 1 and 2 are closely related, we deal with them together. We do not accept the submission that the trial judge erred in relying on the CSC reports, which gave the appellant’s seven-year institutional history or that he misapprehended the contents of those reports.
[6] While the appellant’s counsel objected to the admissibility of opinions offered as to risk assessment contained in the CSC reports, he did not contest the admissibility of the reports themselves. The trial judge admitted the reports and observed that if the appellant wished to contest any opinions as to risk, the authors of the reports could be brought before the court for examination. That did not occur and during oral argument, counsel for the appellant argued that those reports indicated that the appellant had made considerable progress over the seven-year period.
[7] On appeal, the appellant takes particular issue with the trial judge’s use of a report completed by Dr. Willoughby and John Gresham. The appellant submits that the trial judge treated this as an expert report despite the fact that no proper foundation was laid for admitting it on that basis.
[8] We disagree. In our view, that report cannot be properly characterized as an expert opinion report nor did the trial judge treat it as such. As its title “Program Performance Report” indicates, it describes the various programs and treatments the appellant has undergone. The trial judge was entitled to take into account the appellant’s institutional history as reflected in that report and other documents, and in particular, the fact that the appellant had done relatively poorly in the programs and that while pharmacological treatment had reduced his sex drive to some extent, he continued to have marked pedophilic preferences that made any contact or access to children inappropriate.
[9] In our view, the trial judge did not treat the report as offering an opinion as to the risk posed by the appellant nor did he rely on the opinions expressed therein. The trial judge referred to the “objective indicia” contained in the reports, by which we understand him to be referring to the facts contained in those reports, including the programs and treatment the appellant had undertaken and the results from both. However, the trial judge was entitled to rely on the expert opinions offered at the 1998 hearing. The 1999 statement of Dr. Brinks referred to by the trial judge, in our view, did not materially add to the rest of the record.
[10] The trial judge concluded that as the appellant had not made any significant progress toward suitability for living in the community with drug treatment, the prediction offered by Dr. Bradford at the first hearing that he might be managed through drugs had not been borne out.
Fresh Evidence
[11] We have reviewed the updated report of Dr. Bradford proffered as fresh evidence. We are not satisfied that this report meets the fourth criterion of the Palmer test, namely, that when taken with the other evidence adduced it could reasonably be expected to have affected the result.
[12] While Dr. Bradford continues to be of the view that the appellant could be managed in the community, his updated report is considerably less optimistic than the report he filed at the first hearing. Dr. Bradford now states that the appellant is in the highest of six categories for the risk of recidivism, that he continues to show pedophilic sexual preference, and that other features of his profile including antisocial personality disorder, lack of sexual knowledge, and substance abuse have an impact on the likelihood of future recidivism. Dr. Bradford’s opinion is based on what he acknowledges to be the appellant’s “last hope”, namely chemical castration, the most drastic form of pharmacological treatment. The success of that treatment depends upon the appellant’s willingness to continue it and tolerate its drastic effects and possible side effects. We were told during argument that the appellant has in fact commenced this treatment in the institution. However, there is no evidence before us sufficient to indicate that this treatment, over time, offers a reasonable prospect for managing this appellant in the community.
[13] In our view, given the serious risk the appellant continues to pose to public safety, the interests of justice do not favour admitting the fresh evidence and either making an LTO designation or ordering a new hearing.
[14] We note that this does not leave the appellant without hope should the drastic form of treatment he has apparently commenced prove successful, as his case can be reviewed on a regular basis by the Parole Board: see R. v. T.L. 2008 ONCA 766 at para. 7.
[15] Accordingly the appeal is dismissed.
“K. Feldman J.A.”
“Robert J. Sharpe J.A.”
“E.E. Gillese J.A.”