His Majesty the King v. David Norris, 2023 ONCA 683

Court File and Parties

Court of Appeal for Ontario Date: 2023-10-18 Docket: C67514

Before: Benotto, Roberts and Favreau JJ.A.

Between: His Majesty the King, Respondent and David Norris, Appellant

Counsel: John Fitzmaurice and Neill Fitzmaurice, for the appellant Brent Kettles, for the respondent

Heard: October 3, 2023

On appeal from the sentence imposed on April 11, 2018 by Justice Wailan Low of the Superior Court of Justice.

Reasons for Decision

A. Introduction

[1] Following convictions for four robberies, the appellant, David Norris, was declared a dangerous offender and sentenced to an indeterminate sentence.

[2] Mr. Norris does not appeal his designation as a dangerous offender, but he submits that the sentencing judge erred in imposing an indeterminate sentence rather than a ten-year determinate sentence for the index offences followed by a ten-year long-term supervision order. We do not accept that the sentencing judge made any errors.

[3] Prior to the predicate offences, the appellant had been convicted of 61 criminal offences since 1994, which included 26 convictions for violent offences, four convictions for failing to comply with court orders and three convictions for escaping custody. He committed the predicate offences starting the day after his release from custody on October 30, 2014. At that time, over a period of four days, he committed four robberies. Three of the robberies were committed at banks and one occurred at a convenience store. In all four cases, he claimed to have a gun, although he was unarmed.

[4] At the sentencing hearing, the Crown sought to have the appellant designated as a dangerous offender and asked for an indeterminate sentence. The appellant conceded that he met the criteria for designation as a dangerous offender, but he argued that he should be sentenced to ten years in custody followed by a ten-year supervision order. The sentencing judge accepted the Crown’s position and sentenced the appellant to an indeterminate sentence.

[5] The appellant raises three issues on appeal: 1) the sentencing judge reversed the onus of proof, 2) the sentencing judge misapprehended the evidence of the psychiatrist called by the Crown, and 3) the sentencing judge misused evidence from a representative of Correctional Services Canada regarding the difference between the level of supervision under a long-term supervision order compared to under an indeterminate sentence.

[6] We do not accept these grounds of appeal.

B. The sentencing judge did not reverse the onus of proof

[7] The appellant argues that the sentencing judge reversed the onus of proof based on the following passage in the transcription of her reasons which were delivered orally:

The starting point is the mandatory language of [section 753(4.1) of the Criminal Code]. As the Supreme Court stated in [R. v. Johnson, [2003] SCC 46]:

“ The purpose of the dangerous offender legislation is the protection of the public. The focus is to manage into the future the threat established by the past. That said, although the purpose of protection is given particular emphasis under the dangerous offender regime, the general principles and purposes of the sentencing in section 718 are also to be applied, and the least intrusive sentence required to achieve the protection of the public should be imposed. (See [R. v. Boutilier, [2017] SCC 64], at paragraphs 28, 31, 53, to 57, and 60 to 63 . The onus of proof at the disposition stage is on the defendant .”) [Italic emphasis in original; underlined emphasis added.]

[8] We agree with the appellant, and as conceded by the Crown, that the reference to the onus of proof being on the offender is an incorrect statement of the law. While the transcript of the sentencing judge’s reasons suggests that this is a quote from [R. v. Johnson, 2003 SCC 46], [2003] 2 S.C.R. 357 or [R. v. Boutilier, 2017 SCC 64], [2017] 2 S.C.R. 936, neither of those decisions states that the onus of proof is on the offender when the court determines whether to impose a long-term supervision order or an indeterminate sentence on a dangerous offender.

[9] In [Boutilier], which followed [Johnson], the Supreme Court set out the approach sentencing judges are to take in determining whether a person designated as a dangerous offender should receive a determinate sentence followed by a long-term supervision order or an indeterminate sentence. The Court held that, despite the wording of [s. 753(4) of the Criminal Code], there is no presumption that an indeterminate sentence should be imposed or that the offender has the onus of demonstrating that a lesser measure will adequately protect the public. Rather, “the sentencing judge is under the obligation to conduct a ‘thorough inquiry’ into the possibility of control in the community… The judge considers all the evidence presented during the hearing in order to determine the fittest sentence for the offender”: [Boutilier, at para. 68]. Further, as held at para. 70, in determining the appropriate sentence for a dangerous offender, sentencing judges are to apply the following three-step analytic framework:

a. If the court is satisfied that a conventional sentence, which may include a period of probation, if available in law, will adequately protect the public against the commission of murder or a serious personal injury offence, then that sentence must be imposed.

b. If the court is not satisfied that this is the case, then it must proceed to a second assessment and determine whether it is satisfied that a conventional sentence of a minimum of 2 years of imprisonment, followed by a long-term supervision order for a period that does not exceed 10 years, will adequately protect the public against the commission by the offender of murder or a serious personal injury offence. If the answer is “yes”, then that sentence must be imposed.

c. If the answer is “no”, then the court must proceed to the third step and impose a detention in a penitentiary for an indeterminate period of time.

[10] Accordingly, there is no onus on the offender to demonstrate that a determinate sentence followed by a supervision order will adequately protect the public. Rather, before imposing an indeterminate sentence, the sentencing judge must consider, based on all the evidence, whether anything less than an indeterminate sentence will sufficiently protect the public.

[11] We are satisfied that there was a transcription error in the passage from the sentencing judge’s reasons quoted above. As we read the passage, the quotation from Johnson was limited to the first sentence in quotation marks, namely “ The purpose of the dangerous offender legislation is the protection of the public .” The rest of the passage reflects the sentencing judge’s reasons. That said, we agree that the onus of proof was misstated.

[12] Reading the sentencing judge’s reasons as a whole, it is evident that, while the sentencing judge misstated the onus of proof in her description of the general applicable legal principles, she applied the correct analytic framework and did not reverse the onus of proof by requiring the appellant to demonstrate that a determinate sentence followed by a supervision order would adequately protect the public.

[13] This is evident from the following passage in her decision in which the sentencing judge made clear that, before imposing an indeterminate sentence, she had to be satisfied that lesser measures would not adequately protect the public:

The sole issue to be decided is whether under [section 753(4.1) of the Criminal Code] there is evidence to satisfy the Court that there is a reasonable expectation that a lesser measure than an indeterminate sentence, that is, under [section 753(4)(b) or (c) of the Criminal Code] will adequately protect the public against the commission by the offender of a murder or a serious personal injury offence.

[14] After instructing herself in this way, the sentencing judge proceeded to consider the evidence available to her, including the psychiatric evidence and the evidence from Correctional Services Canada, regarding whether anything less than an indeterminate sentence would adequately protect the public before concluding that an indeterminate sentence was necessary. Ultimately, she concluded that the public could not be protected from further serious personal injury offences by the appellant with anything “short of an indeterminate sentence with the intended public protection mechanisms that go with it.”

[15] In the circumstances, we are satisfied that the sentencing judge’s statement that the onus of proof was on the offender was an inadvertent misstatement that did not infect her reasoning or her assessment of the evidence.

C. The sentencing judge did not misapprehend the psychiatrist’s evidence

[16] At the sentencing hearing, the Crown called the evidence of Dr. Mark Pearce, a psychiatrist who assessed the appellant. The appellant alleges that the sentencing judge misapprehended Dr. Pearce’s evidence because she did not properly consider his evidence that, if the appellant was held for a long period of detention before being released on a ten-year supervision order, there was a possibility he could be controlled in the community.

[17] The sentencing judge made no such error.

[18] Dr. Pearce prepared a written report in which he conducted a thorough review of the appellant’s history and circumstances. In his report, Dr. Pearce diagnosed the appellant with severe treatment resistant polysubstance use disorder and an unspecified personality disorder with anti-social and borderline features. Dr. Pearce emphasized several times that, given the appellant’s diagnoses and prior conduct, he is at “high risk” of committing future violent offences. For example, in considering the appellant’s risk of reoffending, Dr. Pearce concluded that the appellant “is in a high risk category for violent recidivism. He may offend quickly and repeatedly and there is the potential for severe violence as well ” (emphasis added). Dr. Pearce also concluded that “if released from custody in the near future he will likely fail to restrain his behaviour and cause serious physical injury and/or severe psychological damage to other persons”. He went on to consider the appellant’s suitability for a long-term supervision order. In that context, he noted that the prospects of treating the appellant’s polysubstance and personality disorders were very low, that he did not have a history of successful participation in any programs while in custody and that his record of supervision while in the community was very poor. Ultimately, he concluded as follows:

In summary and considering the aforenoted factors, it is not clear, given this gentleman’s history, if he will be manageable while subjected to a LTSO. If he could, in the coming years in custody be allocated for programming and benefit from same, it is possible that a graduated and carefully supervised release could prevent violent re-offence. With a 10-year LTSO, he may be able to continue to make gains and ultimately take steps towards leading a pro-social life. However, given his history and all the difficulties he has encountered, from my perspective, I cannot, at this juncture, conclude that there is a “reasonable expectation” that his risk to the community will be contained upon the expiry of a LTSO . [Emphasis added.]

[19] When examined at the sentencing hearing, Dr. Pearce indicated that he had not appreciated that, if the appellant were to be subject to a long-term supervision order, he would still have several years to serve in custody before being released on the supervision order. Dr. Pearce testified that, if that was the case, it was possible that the appellant could be controlled in the community if a number of conditions of release were in place. He explained that, after a ten-year sentence, the appellant would be in his 50s, and that he may have reached a point of burn out and have successfully participated in programs while in custody. However, Dr. Pearce also noted that, given the appellant’s past impulsive behaviour, it was possible that he would abscond and resume his violent impulsive behaviour without any benefit from the supervision.

[20] In her reasons, the sentencing judge reviewed Dr. Pearce’s evidence in detail. She ultimately concluding that a ten-year sentence followed by a ten-year long-term supervision order would not adequately protect the public.

[21] The appellant claims that the sentencing judge misapprehended Dr. Pearce’s evidence because she did not refer to his evidence at the sentencing hearing regarding the possibility that the appellant could be controlled in the community if the supervision order followed a lengthy period of incarceration.

[22] We reject this argument.

[23] It is evident from her reasons that the sentencing judge did consider this evidence. She specifically stated that Dr. Pearce’s evidence was that “a long sentence of ten years, plus a ten-year long-term supervision order pushes him closer to saying that there is a reasonable expectation that the [appellant’s] risk could be contained”.

[24] However, it is also evident from her reasons that the sentencing judge was not persuaded that this aspect of Dr. Pearce’s evidence, which she described as a “hope” regarding the appellant’s future conduct, was sufficient to detract from the overall evidence that a long-term supervision order could not adequately protect the public:

I do not take Dr. Pearce to opine, however, that there exists a reasonable expectation that a lesser measure than an indeterminate sentence, with its concomitant mechanisms to control risk upon a potential release, will adequately protect the public against the commission by [the appellant] of a serious personal injury offence. Predictions of future behaviour and predictions of future risk, while not anchored by history, nevertheless cannot but be informed by the repetitive patterns of the past .

The fact that [the appellant] appears to be willing to engage in programs and to undergo at least some treatment in relation to sex offences, and one hopes that at some point there will be a change in direction. The existence of hope, however, does not translate into a reasonable expectation of a specific outcome . [Emphasis added.]

[25] The sentencing judge did not misapprehend Dr. Pearce’s evidence. She carefully considered his evidence in its entirety, as well as the other evidence regarding the appellant’s history, and she reasonably concluded that the appellant should be subject to an indeterminate sentence.

D. The sentencing judge did not misuse the Correctional Services Canada evidence

[26] The third error alleged by the appellant is that the sentencing judge misused the evidence of Sherri Rousell, who was called as a witness by the Crown and is an official with Correctional Services Canada.

[27] Ms. Rousell testified that the supervision available for the appellant would be better if he was under an indeterminate sentence rather than a determinate ten-year supervision order. As described by the sentencing judge, Ms. Rousell testified that, if the appellant breached a condition of his long-term supervision order, pursuant to [s. 753.2 of the Criminal Code], he could only be held in custody for 90 days unless charges were laid against him. Even if charges were laid and he was convicted, he would be released to the community once his sentence was completed regardless of the risk he posed. In contrast, under an indeterminate sentence, the appellant would be eligible for parole after serving seven of his ten-year sentence, “but the Parole Board would retain the power to suspend the release and return him to custody should he not comply with his conditions or if the Board was of the view that his risk to the community was unmanageable”.

[28] Based on her review of this evidence, the sentencing judge reasoned that the difference in supervision under an indeterminate sentence compared to a long-term supervision order was significant in respect of protecting the public, but that both forms of supervision would be minimally intrusive on the appellant if his “behaviour going forward is satisfactory and his progress sufficient to warrant parole”.

[29] At the hearing, the appellant argued that the differences Ms. Rousell described between the supervision available under determinate long-term supervision orders as compared to indeterminate sentences would be applicable to all dangerous offenders and should therefore not have formed the basis for finding that the public could not be adequately protected if the appellant was subject to a ten-year supervision order.

[30] We disagree.

[31] The sentencing judge’s description of Ms. Rousell’s evidence cannot be looked at in isolation. This was only one of the factors the sentencing judge considered in deciding whether a ten-year supervision order would adequately protect the public. As referred to above in the discussion of Dr. Pearce’s evidence, the sentencing judge focused extensively on the evidence regarding the appellant’s diagnosis and prognosis in the context of his past history. It was therefore in the context of the appellant’s particular circumstances, which included a long history of violent offences, non-compliance with prior orders and the commission of the predicate offences immediately upon release, that the sentencing judge considered the tools available to protect the public from further violent offences under a long-term supervision order as compared to an indeterminate sentence.

[32] Accordingly, we see no error in the sentencing judge’s reliance on Ms. Rousell’s evidence.

E. Disposition

[33] The appeal is dismissed.

"M.L. Benotto J.A.”

“L.B. Roberts J.A.”

“L. Favreau J.A.”