COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Sipos, 2012 ONCA 751
DATE: 20121107
DOCKET: C30833
Doherty, Watt and Pepall JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
James Peter Sipos
Appellant
James Lockyer and Michael Dineen, for the appellant
Roger A. Pinnock, for the respondent
Heard: August 2, 2012
On appeal from the sentence imposed on March 6, 1998 by Justice Thomas R. Lofchik of the Superior Court of Justice.
Doherty J.A.:
I
overview
[1] In 1998, the appellant was declared a dangerous offender and sentenced to an indeterminate sentence. A risk assessment done some 12 years later in 2010 suggests that the appellant could be released into the community under strict controls in about 2016. The appellant, relying on this assessment and an admitted legal error made by the trial judge at the dangerous offender proceedings, submits that he is entitled to a new sentencing hearing.
[2] I would dismiss the appeal. This court’s jurisdiction requires it to review the decision made by the trial judge at the dangerous offender proceeding. That review takes into account the record before the judge and any fresh evidence admitted on appeal. Despite the legal error made by the trial judge, I am satisfied, having regard to the evidence before the trial judge and the fresh evidence admitted on appeal, that there is no reasonable possibility that the result of the dangerous offender hearing would have been any different.
[3] The 2010 risk assessment indicates that there is reason to believe, based on the appellant’s progress over the last decade, that the risk posed by the appellant could be adequately addressed in the foreseeable future were the appellant to return to the community on strict conditions. That assessment, however, casts no doubt on the correctness of the decision made at the dangerous offender proceedings. The Criminal Code expressly provides that the Parole Board must review the appellant’s status on a regular basis. If the risk posed by the appellant has lowered to a level justifying his release into the community, the Parole Board can make the appropriate order. The 2010 risk assessment will be of assistance to the Parole Board in exercising its statutory duties.
II
procedural history
[4] These proceedings have a long history. The appellant was convicted of seven sexual offences in April 1996. He has a lengthy record for similar offences. In March 1998, the trial judge found that the appellant was a dangerous offender and imposed an indeterminate sentence.
[5] The appellant appealed his convictions. He also appealed his sentence, however, that appeal was contingent on the appellant having at least some success on his conviction appeal. The conviction appeal was dismissed in May 2001: R. v. J.P.S. (2001), 50 W.C.B. (2d) 161 (Ont. C.A.). The court did not address the merits of the appellant’s sentence appeal given the dismissal of the conviction appeal.
[6] In September 2003, the Supreme Court of Canada released its judgment in R. v. Johnson, 2003 SCC 46, [2003] 2 S.C.R. 357. In Johnson, the court held that when the long-term offender (“LTO”) provisions were in effect at the time a dangerous offender application was heard, the trial judge was required to consider the LTO option even if the offences giving rise to the dangerous offender application occurred before the LTO provisions came into effect. The LTO provisions give the trial judge the option of imposing a determinate sentence of at least two years combined with a long-term supervision order of up to ten years even though the offender meets the dangerous offender criteria.
[7] The LTO provisions were introduced in 1997 (S.C. 1997, c. 17, s. 4) and were in effect when this dangerous offender application was heard. It does not appear that the trial judge was asked to consider the LTO option and he did not do so. In light of Johnson, he erred in law in failing to consider the LTO option.
[8] The appellant brought a motion to reopen the sentence portion of his appeal in July 2007. The appellant relied on the admitted “Johnson error” and a preliminary report prepared by Dr. McMaster, a psychiatrist. Counsel have provided a detailed explanation for the delay between the release of the reasons in Johnson and the appellant’s motion to reopen his sentence appeal. No fault can be assigned to the appellant for that delay.
[9] In April 2008, this court set aside its previous order dismissing the appellant’s appeal from the imposition of an indeterminate sentence and granted the appellant leave to appeal his indeterminate sentence: R. v. Sipos, 2008 ONCA 325, 235 O.A.C. 277.
[10] In November 2010, Dr. McMaster provided counsel for the appellant with a detailed risk assessment. About a year later, counsel for the Crown advised the appellant that the Crown would not seek to cross-examine Dr. McMaster or file any evidence in response to his 2010 report. The appeal was perfected in March 2012 and heard in August 2012. Dr. McMaster’s assessment was admitted on appeal with the consent of the Crown.
III
THE IMPACT OF R. v. JOHNSON
[11] Before the LTO provisions were introduced in 1997, s. 753 of the Criminal Code, R.S.C. 1985, c. C-46, provided that if the criteria set out in that section were met, the court “may thereupon impose a sentence of detention in a penitentiary for an indeterminate period”. That section had been interpreted by some courts as meaning that when the trial judge found that the dangerous offender criteria were met, he or she had a discretion to impose either a determinate prison term or an indeterminate sentence: see e.g. R. v. Poutsoungas (1989), 1989 CanLII 7104 (ON CA), 49 C.C.C. (3d) 388, at pp. 389-390 (Ont. C.A.). A determinate sentence was appropriate if a sentence of a determinate length could reduce the risk to society posed by the offender to an acceptable level, thereby rendering the imposition of the more punitive indeterminate sentence unnecessary to protect society. The trial judge on this dangerous offender application considered and rejected the determinate sentence option.
[12] The 1997 amendments introduced the LTO as a third sentencing option. As observed in Johnson, at para. 32, an individual who met the criteria for designation as a dangerous offender could also meet the LTO criteria. If the offender met both, the LTO option had to be imposed if designation as an LTO could adequately protect the public:
In those instances where both the dangerous and long-term offender provisions are satisfied, it may be that the sentencing sanctions available under the long-term offender provisions are capable of reducing the threat to the life, safety or physical or mental well-being of other persons to an acceptable level…. The very purpose of a long-term supervision order, then, is to protect society from the threat that the offender currently poses – and to do so without resort to the blunt instrument of indeterminate detention. If the public threat can be reduced to an acceptable level though either a determinate period of detention or a determinate period of detention followed by a long-term supervision order, a sentencing judge cannot properly declare an offender dangerous and sentence him or her to an indeterminate period of detention. [Emphasis added.]
[13] The parties accept that the appellant met the criteria for a dangerous offender finding. As Johnson instructs, however, meeting these criteria does not preclude an LTO. The distinction between offenders who meet the dangerous offender criteria and should be sentenced to an indeterminate sentence and those who meet these criteria but should be sentenced to an LTO lies mainly in the requirement that before an LTO order can be made, the trial judge must be satisfied that “there is a reasonable possibility of eventual control of the risk in the community”: s. 753.1(c).
[14] The court explained the meaning of “reasonable possibility of eventual control of the risk of the community” in Johnson, at para. 40:
If a sentencing judge is satisfied that the sentencing options available under the long-term offender provisions are sufficient to reduce the threat to the life, safety or physical or mental well-being of other persons to an acceptable level, the sentencing judge cannot properly declare an offender dangerous and thereupon impose an indeterminate sentence, even if all of the statutory criteria have been satisfied.
[15] The distinction between those persons who meet the dangerous offender criteria and should receive an indeterminate sentence and those who should receive an LTO is much the same as the distinction that existed before the introduction of the LTO option between persons found to be dangerous offenders who should receive a determinate sentence and those who should receive an indeterminate sentence. There is one difference. Under the LTO option, the determinate sentence is followed by long-term supervision of up to ten years in the community, a potentially important feature when considering whether risk to the community can be reduced to a tolerable level.
[16] After Johnson, there can be no doubt that the trial judge erred in law in failing to consider the LTO option before imposing an indeterminate sentence. However, as Johnson explains, at paras. 47-50, the failure to consider the LTO option does not automatically compel an order directing a new dangerous offender hearing. Like any error in law, the failure to consider the LTO option will not require appellate intervention if the Crown can demonstrate that the error occasioned no substantial wrong or miscarriage of justice. To do so, the Crown must show that there was no reasonable possibility that the trial judge would have found the offender to be an LTO had the trial judge considered that option. Johnson, at para. 50, describes the potential application of the curative proviso to the Johnson error in these terms:
Where the error of law consists of the sentencing judge’s failure to consider the availability of the long-term offender provisions, it is in only the rarest of circumstances, if any, that there will be no reasonable possibility that the sentencing judge would have imposed a different sentence but for the error. The criteria set out in the long-term offender provisions are substantially different from the criteria set out in the dangerous offender provisions. Therefore, the evidence and arguments that are relevant under the long-term offender application are not precisely the same as the evidence and arguments that are relevant under the dangerous offender application. Absent a thorough inquiry into the suitability of the long-term offender provisions at the sentencing hearing, it will be difficult, if not impossible, for an appellate court to be satisfied that the sentencing options available pursuant to the long-term offender provisions would have been incapable of reducing the threat of harm to an acceptable level. [Emphasis added.]
[17] This court has considered the Johnson error in several cases. Most have led to orders allowing the appeal and directing a new dangerous offender hearing: see e.g. R. v. Ferguson (2005), 2005 CanLII 28419 (ON CA), 207 O.A.C. 380 (C.A.); R. v. Robinson (2006), 2006 CanLII 33189 (ON CA), 212 C.C.C. (3d) 439 (Ont. C.A.). This court has, however, on occasion applied the curative proviso and dismissed the appeal: see e.g. R. v. Saddlemire, 2007 ONCA 36, 216 C.C.C. (3d) 119; R. v. N.P.C., 2007 ONCA 457, 83 O.R. (3d) 571; R. v. T.G., 2011 ONCA 317.
IV
CAN the curative proviso be applied?
[18] I think the potential application of the curative proviso to the Johnson error must be examined in the context of three different scenarios. First, it may be that on a review of the record that was before the trial judge on the dangerous offender proceedings, it cannot be said that there is no reasonable possibility that the trial judge would not have found the offender to be an LTO had he or she considered that option. Second, it may be that on an examination of the record before the trial judge as supplemented by fresh evidence adduced on appeal, it cannot be said that there is no reasonable possibility that the trial judge would have found the offender to be a long-term offender had he or she considered that possibility in light of the trial record as augmented by the evidence offered on appeal. Third, it may be that on a review of the evidence tendered at the initial dangerous offender proceedings as supplemented by the fresh evidence adduced on appeal, it can be said there is no reasonable possibility that the trial judge would have found the accused to be an LTO, but it cannot be said that there is no reasonable possibility that the offender would be found to be an LTO were a new sentencing hearing ordered by the appeal court.
[19] The first two situations raise no juristic difficulties. In both, it cannot be said that there is no reasonable possibility that a trial judge would have opted for an LTO finding. The curative proviso cannot be applied and the Johnson error would require an order directing a new dangerous offender hearing.
[20] The third scenario is fundamentally different from the first two. In the third scenario, the focus of the appellant’s claim is not on whether there is a “reasonable possibility that the sentencing judge would have imposed a different sentence but for the error”, Johnson, at para. 50, but on whether an LTO order would be possible were a dangerous offender hearing to be held as of the hearing of the appeal. On this third scenario, the claim is not that the appellant was wrongly sentenced to an indefinite period of incarceration because the trial judge made a legal error, but that because the judge made a legal error the appellant should have his status reassessed as of the time of the appeal.
[21] Appellate review is fundamentally an error correcting exercise. It looks backward to the decision under appeal. While appellate review is sometimes undertaken with the benefit of evidence not before the trial judge, the question always remains – did the court below fall into reversible error when it made the decision under appeal? The possibility that a different decision might be made were the appellate court to consider the same issue de novo as of the time of the appeal (in this case some 14 years after the trial judgment) is irrelevant to appellate review.
[22] The distinction between review for an error at the original proceeding and an assessment of the offender’s status at the time of the appeal is no mere formalism. The distinction is essential to the principle of finality, a core value in the justice system. If this court decides to allow the appeal, there must be a new sentencing hearing. Everyone involved in that hearing, including the victims caught up in the relevant matters underlying the dangerous offender proceedings, will be brought back to the dangerous offender hearing stage of the process. The Crown must attempt to reconstitute its case years after the fact. More importantly to the proper administration of justice, victims may be required to undergo the further trauma of new proceedings at a time when they could justifiably have believed that the horror, no doubt associated with reliving the relevant events in a courtroom, was long behind them.
[23] I accept that the difficulties described above are inherent in appellate review whenever it leads to an order for a new hearing. They are not, in my view, however, necessary to do justice to the appellant in a case like this one, where material relied on to support the claim for a new hearing offers no support for the assertion that there was a meaningful error made at the initial proceeding. Where an offender’s real claim is that he has progressed to the point that his status should be reassessed, an appeal from the original decision is not the appropriate mechanism by which to achieve that new assessment.
[24] Part XXIV of the Criminal Code includes a provision for the release on parole of individuals sentenced to indeterminate sentences. The relevant provision, as it applies to the appellant (s. 761(1)[^1]), provides in part:
[W]here a person is in custody under a sentence of detention in a penitentiary for an indeterminate period, the National Parole Board shall, forthwith after the expiration of three years from the day on which the person was taken into custody and not later than every two years thereafter, review the condition, history and circumstances of that person for the purpose of determining whether he should be granted parole under Part II of the Corrections and Conditional Release Act and, if so, on what conditions.[^2]
[25] In its policy manual, the Parole Board recognizes that the possibility of parole is essential to the constitutionality of the dangerous offender provisions: see R. v. Lyons, 1987 CanLII 25 (SCC), [1987] 2 S.C.R. 309, at p. 341. The manual sets out, albeit in general terms, the duties and responsibilities of Parole Board members considering parole applications brought by offenders serving an indeterminate sentence: Parole Board of Canada, PBC Policy Manual, vol. 1, no. 25 (2012).
[26] It may be argued that the potential for parole is illusory. Certainly, parole is rarely granted to offenders serving an indeterminate sentence. As of 2011, only 15 of the 437 persons serving indeterminate sentences in Canada had been released into the community. Three were on day parole and twelve were on full parole: Public Safety Canada Portfolio Corrections Statistics Committee, Corrections and Conditional Release Statistical Overview, Annual Report 2011, (2011), at p. 58. These figures do not assist in determining the outcome of this appeal. This court proceeds on the basis that the Parole Board properly performs its statutory duties. It is hardly surprising that few offenders serving indeterminate sentences obtain parole. The statistics say nothing about whether a particular offender, such as the appellant, will be released on some form of community supervision at the appropriate time by the Parole Board. In any event, this court cannot expand upon its legitimate appellate function to compensate for some assumed failure by the Parole Board to properly perform its function.
(i) Was there a reasonable possibility that the trial judge could have made an LTO order on the evidence adduced on the dangerous offender hearing?
[27] As pointed out in Johnson, in most cases in which the trial judge has failed to consider the LTO option, it cannot be said what evidence might have been led or what order might have been made had the LTO been addressed by the parties and the trial judge. In this case, however, the parties and the trial judge did address the possibility that the appellant’s risk could be adequately controlled in the community at some time in the future in the context of determining whether the trial judge, having found that the appellant met the dangerous offender criteria, should impose a determinate sentence rather than an indeterminate sentence.
[28] The trial judge instructed himself that he must impose a determinate sentence rather than an indeterminate sentence if the risk to society could be reduced to an acceptable level by the imposition of a determinate sentence. The parties adduced evidence and made submissions on that issue. In doing so, the parties effectively addressed the key consideration when choosing between an indeterminate sentence and an LTO where the offender meets the criteria for a dangerous offender finding. It is true that the experts did not consider the potential impact of a long-term supervision order when assessing the appellant’s risk were he to be released into the community. However, I see nothing in the evidence adduced by the experts that would suggest that the potential for a long-term supervision order would have had any effect on their risk assessment as of the time of the sentencing hearing.
[29] The trial judge reviewed the relevant evidence and decided, based on the evidence he accepted, that it could not support a finding that at some determinate point in the future, the risk to society posed by the appellant, were he allowed to live in the community, could be reduced to an acceptable level. I need not review the trial judge’s analysis as counsel for the appellant does not argue that an LTO finding could have been made on the evidence relied on by the trial judge. On the trial judge’s analysis of the evidence, he would inevitably have rejected the LTO option for the very same reasons that he rejected the determinate sentence option.
(ii) Was there a reasonable possibility that the trial judge could have made an LTO order if he had the benefit of Dr. McMaster’s risk assessment?
[30] Dr. McMaster provided a detailed risk assessment. It is clear, however, that he was not asked to comment on the findings made in 1998 by the trial judge, or the evidence adduced in support of those findings. He was asked to consider whether, as of 2010, the appellant could meet the criteria for an LTO. He said:
In the current assessment, the question is whether Mr. Sipos presents with a substantial risk of re-offence and if there is a reasonable possibility of eventual control of that risk in the community.
[31] Dr. McMaster was cautiously optimistic about the appellant’s prospects as of 2010. He opined that the appellant’s risk to the community could be reduced to a tolerable level in about six years, that is, in about 2016. Dr. McMaster based this opinion on the appellant’s positive treatment progress since his incarceration in 1998 and the mitigating effect of the aging process:
The following factors suggest that Mr. Sipos is now suitable for gradual release and reintegration into the community. Mr. Sipos’ risk has been lowered, in my opinion, by factors including: his increased age, his successful treatment at sex offender and other groups, successful treatment with sex drive reducing medication, and his plans which will assist him in adjusting to living in the community (e.g. has learned a skilled trade; in the process of arranging supports).
[32] Dr. McMaster did not diminish the risk posed by the appellant. In his view, the appellant “continues to pose a substantial risk to reoffend” and were he to reoffend, “a very serious personal injury offence could occur”. In Dr. McMaster’s opinion, these concerns “suggest that a high degree of caution, treatment, and supervision should be undertaken to manage his risk, should he be released into the community.”
[33] Dr. McMaster summarized his assessment in these terms:
Accordingly, from a psychiatric perspective, I would not consider Mr. Sipos an assumable risk for the community (absent his placement in a CCC [Community Correctional Centre]) until approximately the age of 60. This would equate to a further period of incarceration of about 6 years, or less, allowing him to enter a CCC at the age of 58. It is further recommended that his release from the CCC take place at a time approaching his 60th birthday. In the event that Mr. Sipos was granted an LTSO [Long Term Supervising Order] under such circumstances, his LTSO would expire at about the age of 68, which would be in keeping with public safety in my opinion.
[34] I do not think that Dr. McMaster’s risk assessment casts any doubt on the trial judge’s assessment that as of 1998, an indeterminate sentence was the appropriate sentence. Despite the positive treatment developments, Dr. McMaster still viewed the appellant’s potential release into the community as about six years distant. We now know, with the benefit of hindsight, and accepting Dr. McMaster’s opinion, that on a “best case” scenario, the appellant’s potential for release into the community was at least some 18 years away in 1998.
[35] As I read Dr. McMaster’s assessment, it sheds valuable light on the appellant’s progress since his incarceration and his potential for release into the community several years from now. That assessment does not speak to what order could have been made in 1998 had the trial judge addressed the LTO option.
V
conclusion
[36] Hopefully, the appellant will continue the progress described by Dr. McMaster and will, in keeping with Dr. McMaster’s opinion, be a suitable candidate for some form of release into the community in the not too distant future. That hope is not, however, a reason to order a new sentencing hearing. Any change in the appellant’s status based on the progress described by Dr. McMaster must come from the Parole Board. I would dismiss the appeal.
RELEASED: “NOV 07 2012” “DD”
“Doherty J.A.”
“I agree David Watt J.A.”
“I agree Sarah Pepall J.A.”
[^1]: Criminal Code, R.S.C. 1985, c. C-46, as amended by Corrections and Conditional Release Act, S.C. 1992, c. 20, s. 215.
[^2]: The present provision calls for review by the Parole Board after seven years: s. 761(1). Johnson, at para. 46, provides that persons in the position of the appellant are entitled to the more generous statutory terms found in the former provision.