Court of Appeal for Ontario

Date: 20241004 Docket: C69628

Before: Fairburn A.C.J.O., Coroza J.A. and Baltman J. (ad hoc)

Between: His Majesty the King, Respondent and Roger Beaudin, Appellant

Counsel: James Harbic, for the appellant Jennifer Epstein, for the respondent

Heard: September 25, 2024

On appeal from the sentence imposed on February 12, 2021 by Justice Célynne S. Dorval of the Ontario Court of Justice.

Reasons for Decision

[1] The appellant was declared a dangerous offender on January 26, 2018. He received a determinate sentence of 5 years, 9 months and 24 days. In light of the pre-disposition custody he had served, the appellant only had another 2 months and 24 days left to serve. He was also made the subject of a 10-year Long Term Supervision Order (“LTSO”). At the first sentencing hearing, the judge said that had she not been acceding to a joint submission, she would have imposed an indeterminate sentence.

[2] Almost immediately upon his release into the community, the appellant breached the conditions of his LTSO by refusing to attend treatment and by using cocaine. As he had already been designated a dangerous offender, the sentencing hearing on the LTSO breaches were governed by s. 753.01 of the Criminal Code, R.S.C. 1985, c. C-46. At that hearing, the sentencing judge imposed an indeterminate sentence. This is an appeal from that determination.

[3] The appellant maintains that in imposing the indeterminate sentence, the sentencing judge erred by failing to consider the principle of proportionality. We disagree.

[4] While the sentencing principles, such as the fundamental principle of proportionality, must be taken into account at dangerous offender proceedings, these types of hearings are not to be confused with conventional sentencing proceedings: R. v. Boutilier, 2017 SCC 64, [2017] 2 S.C.R. 936, at paras. 52-53. The paramount consideration is the protection of the public, which requires a “thorough inquiry” into the prospect of controlling the offender in the community: Boutilier, at para. 68, citing R. v. Johnson, 2003 SCC 46, [2003] 2 S.C.R. 357, at para. 50; Johnson, at para. 19.

[5] At a s. 753.01(5) hearing, much like a hearing under s. 753(4.1), the judge must consider less coercive sentencing options before imposing an indeterminate sentence: Boutilier, at para. 69.

[6] This is precisely how the sentencing judge proceeded in this case. In lengthy and detailed reasons, she explained why less coercive sentencing options could not be imposed. She carefully reviewed the appellant’s risk to the community and the possibility of managing that risk.

[7] The breaches of the LTSO, both of which relate to his established inability to control his addictions, are directly linked to the serious offending behaviour that formed the foundation of the dangerous offender designation and illustrate the risk he poses in the future. This is captured in the following passages from the reasons for sentence:

The evidence shows a pattern of refusing programming or treatment and of being expelled from treatment programs. On the one program he completed after release in Kingston, he met expectations only minimally: he was late, lacked insight, and was described as unreliable in his self-reporting. The completion of this program had little effect on his anger management, as can be seen by his explosive behaviour towards other residents of the halfway house. His anger was further displayed towards his parole officer, his caseworker, and staff on the telephone at [Correctional Service Canada], after his release in the community.

Mr. Beaudin says he is motivated now, but his history belies that motivation. I found him guilty of refusing to attend the maintenance program in November 2018 even when warned of the consequences of doing so.

Mr. Beaudin's attitude on the predicate offences of breach is that he has served enough time on what he calls: ‘a dirty piss test.’ There is no insight whatsoever on the fact that he remains untreated and the risk he poses when he consumes cocaine. Instead, he minimizes his behaviour towards supervision and fails to accept responsibility for his continued detention.

The risk that Mr. Beaudin poses increases with the consumption of cocaine and with interactions with people involved in the drug trade and drug users. It is in that context that he has met vulnerable women who became girlfriends, and later complainants. He tested positive for cocaine metabolites 20 days after he was released from a suspension. His consumption of cocaine would have had to take place amidst strict rules and supervision.

[8] On this record, it was open to the sentencing judge to conclude that external controls would fall short of effectively managing the appellant’s risk. We can do no better than her reasoning on these points, which concludes with the following observations:

At the present time, he is described by Dr. Klassen as posing a high risk to reoffend violently against a partner and by Dr. Gray as medium to high risk to do so. Due to his psychological and psychiatric profile, he has resisted treatment, and at this stage, treatment will not be effective. The external controls recommended by Dr. Klassen are to manage the risk to reoffend violently. If those controls cannot be maintained, Mr Beaudin poses a continued risk to commit further personal injury offences. Mr. Beaudin was able to consume cocaine amidst very strict supervision. To require the [Community Correction Centre (“CCC”)] to maintain a 2 hour or 4 hour limit on his freedom in order to circumvent any possibility of Mr. Beaudin combining cocaine with female relationships is akin to imposing incarceration at the CCC.

[9] We would simply add that the sentencing judge also addressed the possibility that the appellant’s risk and violent tendencies would decline with age, a point which he raises on appeal. The sentencing judge specifically noted that there was no evidence as to when any decline would commence in the appellant’s offending behaviour, at what rate, and to what extent it would reduce. At best, the evidence on this point was general and theoretical in nature. Should anything change in terms of the appellant’s current risk, it will be for the parole board to assess those changes as they become relevant: R. v. A.M., 2024 ONCA 587, at para. 42.

[10] The appeal is dismissed.

“Fairburn A.C.J.O.” “S. Coroza J.A.” “Baltman, J. (ad hoc)”