COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Solano, 2014 ONCA 185

DATE: 20140310

DOCKET: C52560

Before: Cronk, Epstein and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Daniel Solano

Appellant

Counsel: Michael A. Crystal, for the appellant Elise Nakelsky, for the respondent

Heard: March 6, 2014

On appeal from the sentence imposed on June 4, 2010 by Justice R. Pelletier of the Superior Court of Justice.

By the Court:

A. Introduction

[1] On June 4, 2010, the appellant was designated a dangerous offender and sentenced to an indeterminate detention. The predicate offences of which he was convicted included: possession of a knife for a purpose dangerous to the public peace; assaulting a peace officer with intent to resist arrest; breaking and entering and attempting to commit robbery; breaking and entering and committing robbery; three counts of robbery; attempted robbery; and hostage taking.

[2] The appellant appealed from his designation as a dangerous offender. He argued that the sentencing judge erred: (1) by failing to exercise his discretion not to designate the appellant as a dangerous offender, as then permitted under s. 753(1) of the Criminal Code; and (2) by finding that the appellant did not fit the description of a long-term offender under s. 753.1 of the Criminal Code. We note that his specific complaints regarding the sentencing judge’s decision were narrowed somewhat during oral argument of the appeal. In addition, at the outset of oral argument, the appellant abandoned his fresh evidence application.

[3] At the conclusion of oral argument, we dismissed the appeal for reasons to follow. These are those reasons.

B. Discussion

(1) Designation as a Dangerous Offender

[4] We see no reversible error in the sentencing judge’s decision to designate the appellant as a dangerous offender.

[5] The designation in this case was based on evidence of: the violent nature of the appellant’s predicate offences; his lengthy and virtually uninterrupted history of criminal conduct (more than 50 criminal convictions, including numerous crimes involving severe violence and multiple convictions for breaches of court orders (some while he was on bail or parole)); his proven repeated unsuccessful attempts at reintegration into the community; his psychiatric diagnosis as a psychopath with anti-social personality disorder and substance dependence, together with possible schizophrenia; his historical lack of response to anti-psychotic medications; his assessed moderately high to high-risk of reoffending; his past refusals to continue prescribed or recommended treatment; and the absence of any evidence accepted by the sentencing judge that the risk the appellant posed to the public could eventually be controlled in the community. Based on all this evidence, which was carefully considered and evaluated by the sentencing judge, it was open to the sentencing judge to designate the appellant as a dangerous offender.

[6] Contrary to the appellant’s submission, a dangerous offender designation is not restricted to offenders who commit the gravest of crimes. There is no requirement under the Criminal Code that the serious personal injury offence required to trigger a dangerous offender application meet a specified threshold of seriousness. As this court recognized in R. v. M.B.H. (2004), 2004 CanLII 14199 (ON CA), 70 O.R. (3d) 257, 186 C.C.C. (3d) 62 (C.A.), a “worst offender/worst offence” characterization is not a precondition to the imposition of an indeterminate sentence under s. 753.1 of the Criminal Code. To the contrary, a dangerous offender designation and an indeterminate sentence are properly imposed in cases where, as here, the offender meets the statutory criteria for such a designation and his or her future risk cannot be controlled through a determinate sentence or the imposition of a long-term supervision order.

[7] In this case, the sentencing judge considered the suitability of a long-term supervision order and concluded, on the evidence accepted by him, that the appellant’s risk of re-offence is very high and there is no reasonable possibility of eventual control of that risk in the community. These findings were amply grounded in the evidentiary record, in particular, by the evidence of: the appellant’s lack of insight into the seriousness of his violent offences and their consequences; his continuing rationalization of the violent crimes he was found to have committed; his repeated reintegration failures; his continuing substance abuse, specifically, his admitted addiction to crack cocaine; his lack of familial supports; and his unresolved, serious mental health issues.

[8] This ground of appeal fails.

(2) Ruling that the Appellant is not a Long-Term Offender

[9] The appellant challenges the sentencing judge’s ruling that he does not fit the description of a long-term offender. As advanced during oral argument, this challenge has two components.

[10] First, the appellant submits that the sentencing judge erred by failing to make a definitive finding as to whether the appellant suffers from schizophrenia.

[11] We do not accept this submission. Both psychiatrists who testified at the sentencing hearing (one of whom testified for the defence) essentially agreed that a determination whether the appellant suffers from schizophrenia in addition to his other agreed multiple psychiatric disorders was not a crucial factor given that the treatment for schizophrenia and the appellant’s type of psychosis are the same. In addition, the appellant acknowledges that a diagnosis of schizophrenia would not materially lower his risk assessment. Even if schizophrenia formed part of his diagnosis, he would remain in the moderately high risk of reoffending category.

[12] It was not the sentencing judge’s role to medically diagnose the appellant. His role was to assess the appellant’s risk of violent recidivism and whether there was a reasonable possibility that this risk could eventually be controlled in the community. The sentencing judge properly fulfilled these tasks.

[13] Second, the appellant contends that the sentencing judge erred by failing to provide reasons for rejecting the evidence of two psychiatric nurses that the appellant’s risk could be managed to an acceptable level if he participated in community-based programs offered by Corrections Services Canada (“CSC”) and his participation in those programs was appropriately monitored.

[14] Again, we disagree. The sentencing judge was entitled to reject the evidence of the defence witnesses regarding the appellant’s prospects for effective treatment and risk reduction and to accept, as he did, the expert opinion evidence of Dr. Hucker regarding the prospects for eventual control of the appellant’s risk to the public. Further, both nurses acknowledged during their evidence that the appellant’s past efforts at reintegration into the community had failed. The record established that the appellant had failed to take full advantage of measures available to him while detained and, as well, on various release programs. Indeed, he had a history of refusing treatment recommendations while on statutory release and his past conduct while under community supervision had prompted revocation of his parole.

[15] Resort to the long-term offender regime is appropriate only where there is evidence that an offender can be meaningfully treated, so that the offender’s risk to the public can be controlled at an acceptable level, within a determinate period of time. A mere hope that treatment will be successful, or simple optimism that there is a reasonable possibility of eventual control of the offender’s risk in the community, is insufficient to ground a determinate sentence: R. v. Johnson, 2003 SCC 46, [2003] 2 S.C.R. 357.

[16] In this case, the sentencing judge did not err in concluding that the proposed untested CCS programming was no more than an expression of hope that the appellant’s risk could eventually be contained in the community. Nor did he err in holding that the trial treatment of a relatively new anti-psychotic medication – Clozapine – as proposed by the defence psychiatrist (Dr. Federoff), was too speculative a measure of future risk reduction. On the evidence before the sentencing judge, it was uncertain whether the appellant is a suitable candidate for this drug, the drug has a relatively low to moderate rate of success (33%) and there is no way to guarantee that the appellant would comply with a Clozapine-treatment regime while in the community, unless the drug was administered by injection. Notwithstanding his claims to the contrary, the appellant’s past responses to treatment in the community strongly undercut any suggestion of future compliance with a prescribed treatment regime of the type identified by Dr. Federoff.

[17] At the end of the day, after evaluating the risk assessment and treatment evidence pertaining to the appellant, the sentencing judge held on the totality of the evidence that there was no adequate basis for concluding that there was a reasonable possibility that the appellant’s risk could eventually be controlled in the community. His reasons clearly reveal the basis for this holding.

C. Disposition

[18] Accordingly, for these reasons, the appeal is dismissed.

Released:

“MAR 10 2014” “E.A. Cronk J.A.”

“EAC” “Gloria Epstein J.A.”

“M.L. Benotto J.A.”