Court of Appeal for Ontario

CITATION: R. v. Dyke, 2015 ONCA 120

DATE: 20150223

DOCKET: C53998

BEFORE: Watt, Pepall and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Gerald Dyke

Appellant

COUNSEL:

Lance C. Beechener, for the appellant

Andreea Baiasu, for the respondent

HEARD AND RELEASED ORALLY: January 30, 2015

On appeal from the sentence imposed on January 28, 2011 by Justice Gerald E. Taylor of the Superior Court of Justice, sitting with a jury.

ENDORSEMENT

[1] Gerald Dyke appeals a sentence of detention in a penitentiary for an indeterminate period imposed upon him after he was declared a dangerous offender.

[2] It was beyond controversy at the dangerous offender hearing that the evidence satisfied the standard required for the appellant to be designated a dangerous offender. What was controversial, however, was whether there was nonetheless a reasonable possibility of eventual control of the appellant’s risk in the community.

[3] The appellant submits that the trial judge made three errors in principle in concluding that there was no reasonable possibility of eventually controlling his (the appellant’s) risk in the community:

(i) he misapprehended the evidence of Kim Gillespie concerning the period during which an LTO could reside in a community correctional centre;

(ii) he erred in his treatment of the issue of whether a condition requiring the appellant to take Antabuse could mitigate his risk to the community; and

(iii) he erred in his analysis of the extent to which the appellant’s aging could attenuate his risk to the community.

[4] The trial judge’s reference to the period the Parole Board may require an LTO to reside in a community correctional centre as being 180 days is not entirely correct. The evidence of Ms. Gillespie was that this initial period of 180 days could be extended by the Board on application of an offender’s parole officer. The evidence did not reveal on what basis or according to what criteria or factors such an extension may be granted. The submission of a request by the parole officer appears to us to be no more than a recommendation to the Board.

[5] Despite this, we are nonetheless satisfied that the conclusion of the sentencing judge was firmly grounded in the evidence adduced at the hearing. Considered as a whole, the evidence fully supported the trial judge’s conclusion that there was no realistic possibility of eventual control of the risk in the community. We note, for example, that the appellant was bound by the terms of his conditional release order when he committed the predicate offence. Those terms proved inadequate to control the risk of re-offence in the community.

[6] In oral argument, the appellant did not vigorously press his second and third submissions. We have nonetheless considered them, and find them to be unpersuasive.

[7] The appeal is dismissed.

“David Watt J.A.”

“S.E. Pepall J.A.”

“Grant Huscroft J.A.”