Court Information
Court of Appeal for Ontario
Date: October 30, 2017
Docket: C59954 and C61956
Judges: Gillese, Huscroft and Trotter JJ.A.
Parties
Between
Her Majesty the Queen Respondent
and
Thomas McConville Appellant
Counsel
Richard Litkowski, for the appellant
Michelle Campbell, for the respondent
Hearing and Appeal
Heard: May 2, 2017
On appeal from: The conviction entered on July 3, 2012 and the sentence imposed on April 17, 2014 by Justice Gisele M. Miller of the Superior Court of Justice, sitting with a jury.
Decision
Huscroft J.A.:
OVERVIEW
[1] The appellant was convicted by a jury of robbery, disguise with intent, dangerous driving, and failure to stop, all of the charges arising out of a bank robbery. The only issue at trial was the identity of the robber – in particular, whether it was the appellant or his brother, Shawn McConville. The appellant brought an alternative suspect application, which the trial judge allowed, and sought to implicate his brother. The appellant did not testify and Shawn McConville was not called as a witness.
[2] A police officer saw the robber fleeing from the bank and later identified the appellant as the robber in a photo lineup. The jury accepted the officer's identification evidence and convicted. The trial judge designated the appellant a dangerous offender and imposed an indeterminate sentence under s. 753(4.1) of the Criminal Code.
[3] The appellant appeals both conviction and sentence. He makes three submissions as to the conviction:
the trial judge erred in her instruction to the jury on eyewitness identification and, in particular, failed to take into account the theory of the defence in her instruction;
the trial judge erred by reinforcing the Crown's improper suggestion that a police officer's identification of the appellant was more reliable because he was a police officer; and
the Crown's opening address to the jury prejudiced the appellant's right to a fair trial.
[4] The appellant does not contest his designation as a dangerous offender. However, he seeks leave to appeal his indeterminate sentence on two bases:
the trial judge misapprehended psychiatric evidence concerning his risk to reoffend; and
the trial judge erred by focusing on his risk of harm to the public in general, rather than the risk that he would commit a serious personal injury offence.
[5] In my view, there is no basis to interfere with either the appellant's conviction or sentence. I would dismiss the appeal for the reasons that follow.
BACKGROUND
[6] Shortly before 1:00 p.m. on December 22, 2010, a man wearing a black balaclava, a grey hoodie, and gloves, and armed with a hammer, robbed a bank in Oakville. He jumped on the counter and banged on the locked tills with the hammer, then demanded keys from the customer service manager. He ran off with approximately $4,000 - $5,000.
[7] Police Constable Tansley was directly across the street from the bank when he received a call about a robbery in progress. He saw the robber run from the bank and get into a grey Impala. The robber was alone.
[8] PC Tansley noted the Impala's license plate and then attempted to open the car's driver side door to arrest the driver. His gun was drawn. He saw the robber up close and unmasked for approximately 10-20 seconds, before the robber sped away from the scene.
[9] Another police officer pursued the grey Impala in her police cruiser. The officer was forced to break off the pursuit for safety reasons and the robber escaped. The grey Impala was found, abandoned, shortly afterwards. A balaclava was in the back seat of the car. It had the appellant's DNA on it as well as DNA from a second person. The second DNA sample could not be tested. A grey hoodie and hammer were found nearby.
[10] The appellant's brother, Shawn, was in the vicinity of the robbery at the relevant time, approximately two kilometres from where the Impala was abandoned. He took a cab to Hamilton and was arrested when he reached his home. The appellant was arrested when he arrived at Shawn's Hamilton home shortly thereafter.
[11] PC Tansley returned to the bank to review the security footage and assist in the investigation. Later that same day, he picked the appellant from a photo lineup. The lineup did not include a picture of Shawn.
THE CONVICTION APPEAL
(1) Did the trial judge err in her instruction to the jury on eyewitness identification?
[12] The appellant contends that the trial judge's charge to the jury was a standard eyewitness charge that was inadequate in the circumstances of this case. The trial judge highlighted that the description given by PC Tansley matched the appellant and that PC Tansley picked the appellant out of a lineup. But this was a single issue case: the only issue for the jury was whether the robber was the appellant or his brother Shawn. As a result, the trial judge should have directed the jury to consider how PC Tansley's identification evidence compared to Shawn McConville, and should have highlighted the ways in which PC Tansley's description matched Shawn as much as it did the appellant. Instead, the trial judge did not even mention Shawn in her instructions to the jury. Nor did the trial judge direct the jury to consider shortcomings in the photo lineup, including the absence of Shawn's photo from the lineup.
[13] I would reject this submission.
[14] This was a very strong case. PC Tansley saw the appellant, up close, for 10-20 seconds immediately following the robbery. Not only did PC Tansley identify the appellant in the lineup, he testified that Shawn was not the robber and, in direct and in cross-examination, explained differences in the appearance of the brothers. The direct and circumstantial evidence all implicated the appellant.
[15] There was, at most, a mere possibility that Shawn McConville was the robber. The only evidence linking Shawn to the robbery was that he was picked up by a cab in Oakville shortly following the robbery, not far from where the robbery had occurred, and driven to Hamilton. The trial judge instructed the jury as follows:
It is the defence position that none of the evidence rules out the possibility that Shawn McConville could have committed this robbery. There is no evidence that Shawn McConville could not have had access to his brother's car. Shawn McConville could have used the balaclava conceivably left in the car by Thomas McConville. There was only one person seen in the bank during the robbery. There was only one person seen running to the get-away vehicle. There was only one person seen in the get-away vehicle and no one else was seen running away from the scene. Shawn McConville hailed a cab not far from the bank where the robbery occurred and Shawn McConville was arrested when he exited that Burlington based cab.
It is the defence position that while it is entirely possible and maybe even likely that Thomas McConville committed the robbery, it is also entirely possible, on the facts and evidence at trial, that Shawn McConville was the person who committed the robbery. Put another way, there is no reason why Shawn could not have committed the robbery and it is the defense position that that is the definition of reasonable doubt.
[16] In my view, the trial judge's instructions cannot be impugned. Not only did the trial judge set out the defence position, she referred to the evidence capable of supporting that position. Moreover, the trial judge specifically instructed the jury that it had to be satisfied that the lineup procedure was fair to the appellant. I note that defence counsel at trial reviewed the charge in advance and did not object after it was given. Nor did defence counsel raise any concerns about the omission of Shawn McConville from the photo lineup.
[17] In my view, the trial judge properly instructed the jury on eyewitness evidence and properly took into account the position of the defence. Nothing more was required in the circumstances.
(2) Did the trial judge err by reinforcing the Crown's suggestion that PC Tansley's identification was reliable?
[18] The appellant submits that the Crown improperly relied on the proposition that a police officer's identification evidence is inherently more reliable than that of a civilian. The appellant submits that the trial judge failed to correct this and, instead, reinforced this proposition by reminding the jury that PC Tansley had been trained to make a mental note of distinguishing features. This emphasis on the superior identification ability of PC Tansley further tainted the trial judge's instructions on eyewitness identification and resulted in an unfair trial.
[19] I would reject this submission.
[20] The impugned passages from the Crown's closing address are as follows:
In the bank the robber was masked. The [persons in the bank were] in no position to be able to identify who the robber was. You next heard from Constable Nick Tansley. And you heard that he was right across the street when the call came in and he responded within seconds. Now, this is not a regular citizen in the bank with a man holding a hammer at him; this is a trained police officer, different than a teller in a bank….
Now, he said, and this was his own words, he said, "I couldn't get the door open. I knew the likelihood of him driving away was pretty great, so I was gathering as much detail as I could in case I was called upon to identify him later. Certainly facial features you cannot change, like jaw, lips, nose, eyes. So (and he said these words) as a trained investigator we're taught to hone in on those features." So, don't make the mistake of comparing what the teller said to what the police officer said with regards to their observations. This is a trained investigator and his focus is on the driver. And the un-contradicted, the un-contradicted evidence of Constable Tansley is that it was Thomas McConville that was the driver of that car.
[21] The trial judge summarized the evidence relevant to the defence's argument that PC Tansley's identification was unreliable because of the stressful context in which it occurred: he was attempting to arrest a fleeing suspect who, he thought, might have been armed. The trial judge stated:
Constable Tansley testified that he was running after the individual and at the same time making radio calls about what was happening. He agreed there was lots of adrenaline. Constable Tansley testified that he was looking at the individual's face while making mental notes of distinguishing features as he was trained to do. At the same time he had his gun drawn, he was trying to open the door of the car and was watching the person's hands because he did not know if the person had a weapon or what sort of weapon he might have. Constable Tansley testified that he was less than a foot away from the person's face, looking directly at him through the driver's window and then through that front windshield while that person was yelling obscenities at him. He agreed that it was an out of the ordinary experience.
[22] The Crown acknowledges on appeal that police identification evidence is not inherently more reliable than civilian identification evidence. But the trial judge did not suggest that it was. Moreover, as the Crown notes, this was not a case in which there was a contest between the eyewitness evidence of a police officer and a civilian. All that mattered was the quality of PC Tansley's identification. He was the only person who saw the robber's face.
[23] The difficulty for the defence was that PC Tansley not only saw the robber, unmasked; he saw him close-up, for a relatively lengthy period of time – approximately 10-20 seconds. His evidence was firm and uncontradicted. He identified the appellant in a lineup and, what is more, categorically denied that the person he saw was Shawn rather than the appellant.
[24] The Crown's reference to PC Tansley's training to hone in on certain unchangeable facial features was not inappropriate in the circumstances. The defence was relying on the urgency of the circumstances in which PC Tansley found himself in an attempt to undermine his identification of the appellant. PC Tansley explained his effort to remember the robber before he drove away in order that he could later identify him, and his training was relevant in this regard.
[25] The trial judge's reference to PC Tansley's training did not taint her instructions. She properly instructed the jury on the dangers of eyewitness investigation and specifically addressed the "frailties of eyewitness evidence" and the possibility that PC Tansley might have erred:
[Y]ou heard evidence from Constable Tansley that the man he saw run from the bank and get into the gray Impala … was Thomas McConville. Eyewitness testimony is an expression by a witness of his belief or impression. It is quite possible for an honest witness to make a mistake in identification. Honest people do make mistakes. An apparently convincing witness can be mistaken and so can a number of apparently convincing witnesses.
[26] Moreover, the trial judge referred to alleged inconsistencies in PC Tansley's evidence.
[27] Defence counsel at trial did not object to either the Crown's address or to the trial judge's charge. The failure to object does not determine this argument on appeal, of course, but it weighs against it. I see no basis to impugn the trial judge's instructions.
(3) Did the Crown's opening address to the jury prejudice the appellant's right to a fair trial?
[28] The appellant takes issue with two aspects of the Crown's opening address. First, the appellant says the Crown unnecessarily suggested that the appellant had been involved in similar offences in the past. In particular, the Crown informed the jury that the appellant was immediately a suspect in the robbery because of his history with the police. Second, the Crown's opening address suggested that the appellant was such a serious criminal that he had been under police surveillance as recently as five days prior to the robbery. This, the appellant submits, likely caused the jury to form the opinion that the appellant was the type of person who would commit the robbery before they had heard any evidence. The appellant acknowledges that defence counsel at trial vetted the Crown's opening and did not object to it, but submits that this is not determinative and that a new trial is required, citing this court's decision in R. v. M.B., 2011 ONCA 76, 267 C.C.C. (3d) 72, at paras. 27-34.
[29] There is no merit to this submission.
[30] Although, as I have noted, a failure to object at trial is not determinative of a matter raised on appeal, this case goes far beyond a failure to object. It is nothing like M.B., which concerned inflammatory rhetoric in the context of a closing address, one of several errors that led the court to conclude the appellant had not received a fair trial.
[31] In this case, the statements complained of were the subject of discussion and agreement of the Crown and defence counsel before they were made, and again prior to the examination of the arresting officer. The statements were designed to minimize potential prejudice to the appellant. As the Crown points out, not only did defence counsel at trial not object to the Crown's opening, he relied upon the statements in question in support of his alternative suspect application that sought to implicate Shawn McConville. The matter was specifically canvassed with counsel by the trial judge following the Crown's opening statement, and Crown counsel confirmed that he had discussed the matter with defence counsel and that they were "on the same page about how far we both think is appropriate…" The Crown later informed the trial judge that the evidence of the officer who arrested both the appellant and Shawn McConville (that related, in part, to the police surveillance of the appellant) had been canvassed with defence counsel before he was called as a witness, and that issues concerning the surveillance had been resolved. No objection to the officer's evidence was made by the defence.
[32] I agree with the Crown that it was a tactical advantage to the defence for the jury to know that the police suspected both the appellant's brother Shawn – the subject of the appellant's alternate suspect defence – as well as the appellant. In all of these circumstances, the appellant cannot be said to have been prejudiced by the Crown's opening statement.
THE APPEAL FROM SENTENCE
(1) The Criminal Code provisions
[33] It is convenient to set out the relevant provisions governing the sentencing of dangerous offenders. The Criminal Code provides as follows:
s. 752 serious personal injury offence means
(a) an indictable offence, other than high treason, treason, first degree murder or second degree murder, involving
(i) the use or attempted use of violence against another person, or
(ii) conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage on another person,
and for which the offender may be sentenced to imprisonment for ten years or more…
753(4) If the court finds an offender to be a dangerous offender, it shall
(a) impose a sentence of detention in a penitentiary for an indeterminate period;
(b) impose a sentence for the offence for which the offender has been convicted — which must be a minimum punishment of imprisonment for a term of two years — and order that the offender be subject to long-term supervision for a period that does not exceed 10 years; or
(c) impose a sentence for the offence for which the offender has been convicted.
(4.1) The court shall impose a sentence of detention in a penitentiary for an indeterminate period unless it is satisfied by the evidence adduced during the hearing of the application that there is a reasonable expectation that a lesser measure under paragraph (4)(b) or (c) will adequately protect the public against the commission by the offender of murder or a serious personal injury offence.
(2) The trial judge's decision
[34] The trial judge concluded that the robbery committed by the appellant involved the use or attempted use of violence against another person and that the use of violence was significant in the commission of the robbery. Following a review of the authorities, she concluded that robbery qualified as a serious personal injury offence under s. 752 and, as a result, that the appellant met the statutory criteria for being designated as a dangerous offender.
[35] The trial judge went on to consider the appropriate sentence under s. 753(4.1). She concluded as follows:
I am hopeful that this time Mr. McConville's resolve will translate into a real effort to follow through with programming and that he will be able to demonstrate sufficient achievements in his treatment to permit safe reintegration into the community. At this time, however, this is no more than a hope. It is clear that absent successful treatment Mr. McConville will remain a danger to the public at least until he is so old that he no longer poses any threat.
The length of determinate sentence I could impose for the offenses before the Court, even when combined with a maximum long-term supervision order will not, in my view, be long enough to get Mr. McConville to that age where protection of the public could be reasonably ensured. The reality is that if Mr. McConville does not succeed in his treatment before the expiration of a determinate sentence he will be released. The provisions of long-term supervision order will in that case, in my view, be insufficient to protect the public given Mr. McConville's propensity for non-compliance with community supervision. The prospect that Mr. McConville will by that point have reached a point of "burn out" in respect of his propensity to engage in criminal activity is much too speculative.
Mr. McConville's typical reaction in order to avoid being returned to custody has been to flee from police. This has in the past resulted in serious injury to the passenger in the vehicle Mr. McConville was driving, in significant injury to himself (he continues to this day to take medication for neck pain), and in great danger to the police officers in pursuit as well as any member of the public in the immediate area. The danger is simply too great to take a chance that Mr. McConville will, by the end of his release, have reached a point of "burn-out".
I am not satisfied by the evidence adduced during the hearing of the application that there is a reasonable expectation that a lesser measure under s. 753 (4)(b) or (c) will adequately protect the public against the commission by Thomas McConville of a serious personal injury offence.
[36] The appellant does not contest the conclusion that he is a dangerous offender. He seeks to appeal his indeterminate sentence on the basis that the trial judge misapprehended the evidence and erred in applying the test set out in s. 753(4.1).
(3) Did the trial judge misapprehend psychiatric evidence concerning the appellant's risk to reoffend?
[37] The appellant submits that, following the decision of the Supreme Court of Canada in R. v. Lyons, [1987] 2 S.C.R. 309, detention for an indeterminate term may be imposed only on a very small number of offenders. Although Parliament has since broadened the group of offenders who may be declared to be dangerous offenders, this court recognized in R. v. Szostak, 2014 ONCA 15, 118 O.R. (3d) 401, leave to appeal refused, [2014] S.C.C.A. No. 300, at para. 54, that the new legislation was to be interpreted in the spirit of Lyons. This, the appellant submits, means that only the most dangerous offenders may receive an indeterminate sentence – a small subset of those considered a high risk of reoffending violently.
[38] The appellant submits that it was imperative for the trial judge to recognize and consider that the experts did not place the appellant amongst this subset. The appellant focuses on the trial judge's treatment of the evidence of the Crown's expert, Dr. Pearce, who placed the appellant in the moderate to high risk category. The trial judge misapprehended Dr. Pearce's evidence, wrongly stating that he had identified the appellant as a high risk to reoffend violently. The trial judge repeated this error in her oral summary of her written decision.[1] The appellant submits that the trial judge would not have imposed an indeterminate sentence in the absence of this misapprehension.
[39] The Crown submits that whether an offender is "one of the worst offenders" is not the sole standard by which the appropriateness of an indeterminate sentence is judged. The Crown acknowledges that the trial judge misstated Dr. Pearce's diagnosis in stating that the appellant was a high risk to reoffend violently, but describes this as a misstatement arising in the context of collectively referring to Dr. Pearce and Dr. Gojer, the latter of whom did classify the appellant as a high risk. The Crown submits that the misstatement played no meaningful role in the trial judge's finding that an indeterminate sentence was required.
[40] I agree with the Crown's submission.
[41] Although this court stated in Szostak that the legislation must be interpreted in the spirit of Lyons, it recognized that "Parliament intended a broader group of offenders be declared dangerous offenders than was envisaged in Lyons where the court spoke of 'a very small group of offenders'." The court added that it was of no assistance to "attempt to predict the number of offenders that Parliament intended to bring within the legislative scheme".
[42] Szostak does not require that only the most dangerous of dangerous offenders may receive an indeterminate sentence. That is not the test. The trial judge was required to apply the legislation in accordance with its terms – no more, no less. Section 753(4.1) required that she sentence the appellant to a term of indeterminate detention unless she was satisfied there was a "reasonable expectation" that a lesser measure would provide adequate protection against the commission of a murder or serious personal injury offence by the appellant.
[43] The trial judge carefully reviewed the expert psychiatric evidence, which included a s. 752.1 assessment conducted by Dr. Pearce and an assessment conducted by Dr. Gojer, who was retained by the defence. There were numerous similarities in their assessments. They agreed that the appellant has Anti-Social Personality Disorder and substance abuse problems. Using the same risk assessment tools – the Hare Psychopathy checklist, the Violence Risk Assessment Guide, and the HCR-20 – Dr. Pearce assessed the appellant as a moderate to high risk to reoffend violently, and Dr. Gojer concluded that the appellant was a high risk. They agreed that the appellant was not a psychopath, but would be difficult to treat. And they agreed that the appellant meets the criteria to be declared a dangerous offender.
[44] In his assessment, Dr. Pearce stated that there were "few reasons for optimism regarding the likelihood of treating this gentleman's relevant diagnoses" and "few reasons for optimism that this gentleman will be manageable in the community upon the expiry of an LTSO, given his escalating and extensive criminal history, his substance abuse disorder and the presence of antisocial personality disorder". He testified that he was "a fair distance away" from concluding that there was a reasonable possibility that the appellant would not violently reoffend following a LTSO.
[45] For his part, Dr. Gojer expressed the opinion that there was a reasonable possibility that the appellant's risks could eventually be managed in the community if he received a lengthy penitentiary sentence; substance abuse counselling; anger management and pro-social counselling; and the maximum long-term supervision order. He agreed, however, that if the appellant did not manage his substance abuse the intensity of his violent acts might remain the same or increase.
[46] The trial judge found as follows:
The risk assessment tools employed by both [Dr.s] Pearce and Gojer confirm that Thomas McConville is a high risk to reoffend violently. It is the opinion of both psychiatrists, employing those tools as well as their own clinical assessments that Mr. McConville is a high risk to reoffend violently. Both psychiatrists diagnosed Mr. McConville with Anti-Social Personality disorder which they agree is not treatable but can only be managed.
[47] The trial judge's statement that the appellant was found by both doctors to be a high risk to reoffend violently is clearly a misstatement. Only Dr. Gojer classified the appellant as a high risk to reoffend violently. Dr. Pearce assessed the appellant as a "moderate to high risk" to reoffend violently.
[48] However, when the decision is read as a whole, it is also clear that the misstatement was not essential to the trial judge's finding that an indeterminate sentence was required, nor did it play a significant role in that finding. The trial judge concluded that an indeterminate sentence was required because she considered that nothing short of an indeterminate sentence would provide reasonable protection for the public. This finding is amply supported in the record, as I explain below.
(4) Did the trial judge err by focusing on the risk of harm in general, rather than the risk that the appellant would commit a serious personal injury offence?
[49] The appellant argues, in essence, that the trial judge misunderstood the requirements of s. 753(4.1). She considered the risk of future violence in general, whereas she should have focused on the risk that the appellant would commit a serious personal injury offence or murder. This is a particular problem for the appellant, because most of the violent offences he committed were not personal injury offences and the likelihood of him committing such an offence was a live issue.
[50] The appellant submits that there must be more than a possibility that a dangerous offender will commit a serious personal injury offence in the future before an indeterminate sentence is required; there must be a probability or likelihood that the he will commit such an offence. However, the trial judge did not refer to the risk that the appellant would commit a serious personal injury offence. Instead, she referred repeatedly to the appellant's risk of future violence, as well as the expert evidence on managing the appellant's risk of general violence in the community. The only offences she referred to specifically were driving offences – dangerous driving and failure to stop. The appellant submits that the trial judge erred in considering the driving offences because they were not serious personal injury offences.
[51] The appellant reiterates the submission, rejected above, that he is not one of the very small group of offenders for whom an indeterminate sentence is appropriate. He invites comparison of the circumstances of his case with those of the appellant in Szostak, in which a determinate sentence was imposed despite the appellant's commission of several acts of extreme violence.
[52] I would reject this submission.
[53] The appellant parses the trial judge's reasons in support of this submission, but in my view the trial judge's decision, read as a whole, cannot be impugned. The trial judge carefully reviewed all of the relevant considerations including the expert evidence, which I have already addressed. She reviewed the appellant's lengthy criminal record, the appellant's conduct while in custody and while under community supervision over the years, and his convictions that post-date the index offences.
[54] It is true, as the appellant submits, that only some of the appellant's convictions concern violent offences. But his record includes several assaults, aggravated assault, assault causing bodily harm, and uttering threats. There was ample basis for the trial judge to find that appellant is "a dangerous individual prone to engage in violent acts, and when facing the prospect of apprehension for his illegal activity, to flee from police at all costs". And there was ample basis for her finding that there is "no more than a hope" of the appellant's future reintegration into the community.
[55] Contrary to the appellant's submission, the trial judge did not err in considering the appellant's driving offences – dangerous driving, failure to stop, and driving while disqualified. She did not find that they constituted serious personal injury offences under s. 752. Clearly they do not. The appellant's driving offences were relevant, however, to the robbery he committed. The trial judge found that the manner in which the appellant used a vehicle to get away following the robbery clearly amounted to conduct that endangered or was likely to endanger the life or safety of other persons.
[56] The discretion to impose an indeterminate sentence is not conditional upon the trial judge finding that there is a probability or likelihood of the offender committing murder or a serious personal offence, as the appellant submits. Section 753(4.1) requires dangerous offenders to receive an indeterminate sentence unless the trial judge is satisfied that there is a reasonable expectation that a lesser measure offers adequate protection against the commission of murder or a serious personal injury offence by the dangerous offender. In other words, the starting point in this analysis was that the trial judge was required to sentence the appellant to an indefinite sentence; a lesser, determinate sentence could be imposed only if the trial judge was satisfied that there was a reasonable expectation that a lesser measure would be adequate to protect the public from the appellant committing a murder or serious personal injury offence.
[57] Of course, the extent of the threat posed by the appellant is a relevant consideration in determining the adequacy of lesser measures to protect the public. But while more than a mere possibility that the appellant would commit murder or a serious personal offence was required in order to support a reasonable expectation that a lesser measure would not be adequate, the risk that the appellant will commit murder or a serious personal injury offence need not rise to the level of being probable or likely, as the appellant submits, in order to justify the imposition of an indeterminate sentence.
[58] As the passages set out above demonstrate, the trial judge was not satisfied that a sentence other than preventive detention would protect the public. She recognized that an offender's motivation to engage in treatment is an important consideration, and in this regard she considered a letter the appellant sent to the court, indicating his amenability to treatment. However, as the appellant acknowledged, he had made similar assertions in the past and failed to follow through. Both psychiatrists agreed that the appellant would be difficult to treat, and that his Anti-Social Personality disorder could only be managed.
[59] The trial judge was required to consider all of the relevant considerations and make a reasoned judgment under s. 753(4.1) as to the risk posed by the appellant and the adequacy of a determinate sentence in managing that risk. The trial judge found that the length of the determinate sentence she could impose, even combined with the maximum long-term supervision order, would not get the appellant to the point of "burn-out". It was much too speculative. In my view, her conclusion is amply supported by the record. The trial judge made no errors in principle, nor is this sentence demonstrably unfit.
[60] Finally, I note that this court's decision in Szostak does not support the appellant's argument that an indeterminate sentence is inappropriate in this case. Care must be taken in comparing sentences imposed in different factual circumstances. An individual, context-specific determination is required and the trial judge's determination is entitled to deference. In any event, I note that the Crown conceded that an indeterminate sentence was not appropriate in Szostak.
CONCLUSION
[61] I would dismiss the appeal against conviction. I would grant leave to appeal sentence but would also dismiss that appeal.
Released: October 30, 2017 ("E.E.G.")
"Grant Huscroft J.A."
"I agree. E.E. Gillese J.A."
"I agree. G.T. Trotter J.A."
[1] Earlier in her decision, the trial judge describes Dr. Pearce's assessment of the appellant as a "moderately high risk" to reoffend violently, rather than a moderate to high risk. No issue was taken concerning this description and it does not affect the analysis that follows.