R. v. Currie, [1997] 2 S.C.R. 260
Her Majesty The Queen Appellant
v.
Robert Currie Respondent
Indexed as: R. v. Currie
File No.: 25053.
Hearing and judgment: January 31, 1997.
Reasons delivered: May 22, 1997.
Present: Lamer C.J. and La Forest, L’Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.
on appeal from the court of appeal for ontario
Criminal law ‑‑ Dangerous offenders ‑‑ Indeterminate sentence ‑‑ Sexual assaults ‑‑ Accused declared dangerous offender and sentenced to indeterminate detention ‑‑ Whether trial judge erred by failing to focus on seriousness of predicate offences ‑‑ Whether dangerous offender designation and corresponding indeterminate sentence reasonably supported by evidence -- Whether dangerous offender designation and corresponding indeterminate sentence premised on errors of law ‑‑ Criminal Code, R.S.C., 1985, c. C‑46, ss. 752, 753.
The accused was convicted of three counts of sexual assault for a series of related incidents in which he sexually touched a number of young girls in a department store. Prior to sentencing, the Crown initiated dangerous offender proceedings pursuant to s. 753(b) of the Criminal Code. The predicate offences were not isolated incidents. The accused had been previously convicted of numerous sexual offences, some of which were extremely violent and highly degrading to the victims. The Crown psychiatrist testified that the accused was an obsessed and extremely temperamental “sexual deviate” who had a “biological anomaly in the wiring of his brain”, and that, as such, he was “a very dangerous person to society”. The defence psychiatrist acknowledged the profound nature of the accused’s sexual problems but concluded that he had shown change toward less violent behaviour and did not “find him particularly dangerous at the present time”. The trial judge preferred the evidence of the Crown psychiatrist and found that the accused was a dangerous offender. On the subject of the predicate offences, the trial judge endorsed the Crown psychiatrist’s conclusion that although they “may appear less serious” than the accused’s previous sexual offences “from an assaultive aspect, they are more blatant, indicating a lessening of control on the part” of the accused. On the issue of sentencing, the trial judge alluded to the fact that, under s. 761(1) of the Code, the National Parole Board is statutorily required to review the dangerous offender designation intermittently. He then exercised his statutory discretion and imposed an indeterminate sentence. On appeal, the Court of Appeal held that the trial judge had wrongfully declared the accused a dangerous offender, mainly because it found that the trial judge “failed to consider the gravity of the predicate offences in isolation from his previous offences”.
Held: The appeal should be allowed.
The accused was properly designated a dangerous offender and correctly sentenced to an indeterminate period of incarceration. Under s. 753(b) of the Code, there are two thresholds that the Crown must surpass in order for a dangerous offender application to be successful: first, the Crown must establish that the offender has been convicted of a “serious personal injury offence”, which is defined in s. 752(b) of the Code to include all forms of sexual assault; and second, the trial judge must be satisfied beyond a reasonable doubt that there is a “likelihood” that the offender will cause “injury, pain or other evil to other persons through [his] failure in the future to control his sexual impulses”. Given the language, nature and structure of s. 753(b), a trial judge need not focus on the objective seriousness of a predicate offence in order to conclude that a dangerous offender designation is warranted. The prospective dangerousness of the offender in s. 753(b) is measured by reference to “his conduct in any sexual matter including that involved in the commission of the offence for which he has been convicted”. “[A]ny sexual matter” can refer to the predicate offence, but it need not. As long as the offender’s past conduct in any sexual matter demonstrates a present likelihood of inflicting future harm upon others, the dangerous offender designation is justified. Further, in enacting s. 753(b), Parliament has indicated that certain types of offence, which are inherently serious, can trigger a dangerous offender application, and sexual assault ‑‑ whatever form it may take ‑‑ is one of them.
The dangerous offender designation was reasonably supported by the evidence. The accused’s pattern of criminal sexual behaviour and the psychiatric evidence of the Crown psychiatrist, which was accepted by the trial judge, were sufficient proof to justify such a conclusion. While it was open to the trial judge to prefer the evidence of the Crown psychiatrist to that of the defence psychiatrist, it was not similarly open to the Court of Appeal to re‑evaluate the psychiatric evidence and overturn the dangerous offender designation because of a mere difference of opinion. A finding of dangerousness by a trial judge is a finding of fact, frequently based on the competing credibility of experts, and as long as it is reasonable, it is a finding which should not be lightly overturned. The role of an appellate court is to determine if the dangerous offender designation was reasonable. Section 759 of the Code cannot be interpreted as calling for the equivalent of a trial de novo on the dangerous offender application. Some deference to the findings of a trial judge is warranted. The trial judge’s findings were reasonable and, absent an error of law, his designation should stand.
The trial judge’s conclusions were not based on errors of law. He did not misconstrue the burden of proof in dangerous offender proceedings when he stated that the accused’s submissions “failed to persuade” him. When this passage is read in its entire context, it is obvious that the trial judge was really indicating that the accused’s submissions had failed to disturb his findings as regards the accused’s dangerousness. Finally, the trial judge’s reference to the National Parole Board’s intermittent power of review under s. 761(1) of the Code was not an abdication of responsibility. It was a judicial reminder that, although it may be indeterminate, the accused’s sentence need not be permanent.
Cases Cited
Considered: R. v. Lyons, 1987 CanLII 25 (SCC), [1987] 2 S.C.R. 309; distinguished: R. v. Shropshire, 1995 CanLII 47 (SCC), [1995] 4 S.C.R. 227; R. v. M. (C.A.), 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500; R. v. McDonnell, 1997 CanLII 389 (SCC), [1997] 1 S.C.R. 948; referred to: R. v. McCraw, 1991 CanLII 29 (SCC), [1991] 3 S.C.R. 72; R. v. Sullivan (1987), 1987 CanLII 6853 (ON CA), 37 C.C.C. (3d) 143; R. v. Burns, 1994 CanLII 127 (SCC), [1994] 1 S.C.R. 656; R. v. Barrett, 1995 CanLII 129 (SCC), [1995] 1 S.C.R. 752; R. v. Knight (1975), 1975 CanLII 1424 (ON SC), 27 C.C.C. (2d) 343; R. v. Dwyer (1977), 1977 ALTASCAD 63, 34 C.C.C. (2d) 293; R. v. Carleton (1981), 1981 ABCA 220, 69 C.C.C. (2d) 1, aff’d 1983 CanLII 157 (SCC), [1983] 2 S.C.R. 58; R. v. Langevin (1984), 1984 CanLII 1914 (ON CA), 11 C.C.C. (3d) 336.
Statutes and Regulations Cited
Criminal Code, R.S.C., 1985, c. C‑46, ss. 686(1)(a) [am. 1991, c. 43, s. 9 (Sch., item 8)], 752, 753(b), 759(1), 761(1).
APPEAL from a judgment of the Ontario Court of Appeal (1995), 1995 CanLII 1057 (ON CA), 26 O.R. (3d) 444, 86 O.A.C. 143, 103 C.C.C. (3d) 281, allowing the accused’s appeal from a sentence of indeterminate detention. Appeal allowed.
Lucy Cecchetto and Aimée Gauthier, for the appellant.
Alan D. Gold, for the respondent.
The judgment of the Court was delivered by
[1] The Chief Justice -- This appeal is concerned with the propriety of a dangerous offender designation and the corresponding indeterminate sentence that was imposed by the trial judge after the respondent, Robert Currie, was convicted of sexually assaulting three young girls. At the conclusion of the hearing of this appeal, this Court held, without providing reasons at that time, that neither the designation nor the sentence should be overturned. Our reasons now follow.
I. Facts and Procedural Background
[2] The respondent, Robert Currie, was charged with three counts of sexual assault, for a series of related incidents in which he sexually touched a number of young girls on November 5, 1988 in a Towers department store in Barrie, Ontario. During the first incident, the respondent approached a group of four girls in the Towers toy section, felt and squeezed the buttocks of three of them, and left the area. During the second, more invasive incident, the respondent followed a group of three sisters near the store’s tobacco department. At first, he placed his hand on the eldest girl’s breast. Immediately thereafter, he approached the girls from behind and, as the trial judge described, “swept his hand between the legs of two of them in an attempt to touch their genitals”. The frightened girls notified store employees and security personnel who eventually apprehended the respondent outside the store and awaited the arrival of the police.
[3] The respondent was convicted of all charges on April 12, 1989 before Tobias J. Prior to sentencing, the Attorney General for Ontario initiated dangerous offender proceedings pursuant to s. 753(b) of the Criminal Code, R.S.C., 1985, c. C-46. Section 753(b) essentially provides that the Crown may apply to have an offender declared a “dangerous offender” and sentenced to an indefinite term of imprisonment if: (a) he has been convicted of a “serious personal injury offence”; and (b) his failure to control his sexual impulses reveals “a likelihood of his causing injury, pain or other evil to other persons” in the future. A “serious personal injury offence” is defined in s. 752 of the Criminal Code to include all forms of sexual assault.
[4] These sexual assaults were not isolated incidents. Part of the rationale for seeking to have the respondent declared a dangerous offender was his lengthy history of sexual offences that occurred in the Ottawa, Toronto and Hamilton regions between 1975-1988. As outlined in disturbing detail in the judgments below and in the pleadings filed before this Court, the respondent had been previously convicted of numerous sexual offences, some of which were extremely violent and highly degrading to the victims.
[5] Robert Currie’s criminal sexual activity began in and around Ottawa between September and November 1975. In separate incidents, the respondent stalked and sexually attacked four women. All four of the incidents were serious and frightening for the victims, but two were comparatively more severe. On September 30, 1975, the respondent followed a teenage girl into a field. He caught her, undressed her and forced her to perform fellatio and engage in repeated acts of sexual intercourse. When she resisted he pulled her hair and struck her in the face. On November 29, 1975, later on the same night that he had indecently assaulted another victim, the respondent stalked a young woman in Nepean. After approaching her from behind and striking her to the ground, he forced her into the deep snow of a deserted field. He then undressed his victim completely, repeatedly struck her in the face, forced her to perform fellatio, and forced her to submit to multiple acts of anal and vaginal intercourse. He had a hunting knife in his possession during the rape with which he threatened the victim after the attack. She was bleeding heavily when he abandoned her naked in the snow.
[6] As a result of these attacks, on May 20, 1976, the respondent was convicted of indecent assault, rape, and possession of a weapon and sentenced to five years’ imprisonment. Since that time, whenever he was at large, his sexually impulsive criminal behaviour continued. In 1979, while on parole in Toronto, the respondent stalked and attacked a woman. When she screamed in response to his attempt to touch her genitals, he jammed his fingers into her mouth, pushed her to the ground and kicked her. He fled the scene, but was immediately apprehended by police and subsequently convicted of indecent assault. In Hamilton in 1981 and 1982, while under intensive police surveillance, the respondent was observed following and stalking a number of women through the city streets. In one case, the girl sensed she was being followed and sought shelter on the porch of a nearby home. In another case, the respondent indecently assaulted a woman he had been following by putting his hand under her clothing between her legs in an effort to touch her genitals. When arrested by police for the latter incident, the respondent stated:
It was me I did it. I couldn’t help myself. I asked for help before but they released me. I needed help but they let me go. I was going to play hockey and I picked this girl up hitchhiking. She was wearing a bathing suit. I got all turned on. It was like she was asking for it. Not this one but the other one. How do you guys do it? I mean when you see these girls wearing bathing suits all day. I need help. I am always stalking women, little kids, and people. I can’t stop.... I can’t help myself.... I’m always thinking about women.... I didn’t mean to harm anybody. I guess I figure its just a few seconds of being frightened and its all over and nobody is hurt.
A. Psychiatric Evidence
[7] To substantiate its dangerous offender application, the Crown elicited the testimony of a psychiatrist, Dr. Angus McDonald, who participated in a two-month team assessment of the respondent after the commission of the recent Towers department store sexual assaults -- the so-called “predicate offences”. Dr. McDonald evaluated the respondent as an obsessed and extremely temperamental “sexual deviate” who had a “biological anomaly in the wiring of his brain”. As such he was “a very dangerous person to society”. In making these findings, Dr. McDonald was influenced by the admission the respondent made to a psychometrist at the Penetanguishene Mental Health Centre in 1989, in which he stated:
[The] stuff I was doing in ’79, I got rid of that. I don’t bruise them now but don’t get me wrong. They had better give me sex if I want it because I often have a knife and I always have my hands.
By way of conclusion, Dr. McDonald gave the prognosis that the respondent “was not open to treatment any longer and posed a risk to women and female children”.
[8] The defence-appointed psychiatrist, Dr. Basil Orchard, acknowledged that the respondent suffered from an impulsive personality disorder and “a polymorphous sexual deviation” that includes “voyeurism, heterosexual pedophilia and hebephilia and impulsive sexual aggressiveness”. Given this diagnosis, he admitted that there was a likelihood that the respondent would re-offend. Dr. Orchard did conclude, however, that the respondent was neither schizophrenic nor psychotic and that he had shown change toward less violent behaviour. He prognosticated that if there were future recurrences of the respondent’s criminal behaviour, his conduct would tend toward “nuisance-type offences” rather than offences of a violent nature. In sum, he did not “find him particularly dangerous at the present time”.
B. Reasons on the Dangerous Offender Application
[9] Given the evidence before him, Tobias J. concluded that the respondent was, in fact, a dangerous offender under s. 753(b) of the Criminal Code. In reaching this decision, he preferred the evidence of Dr. McDonald to that of Dr. Orchard, finding the latter’s report to be “ambiguous and disjunctive”. He also indicated that he was particularly influenced by the respondent’s most recent admission, post-dating the commission of the predicate offences, in which he openly admitted that he has been having irrepressible thoughts about sex with young children. Tobias J. also concluded that treatment was unlikely to repress these stated urges, particularly given the respondent’s failure to admit the need for it and his ambivalence toward the impact of his most recent behaviour.
[10] On the specific subject of the predicate offences, Tobias J. endorsed Dr. McDonald’s conclusion that “[a]lthough the predicate offences may appear less serious from an assaultive aspect, they are more blatant, indicating a lessening of control on the part of the respondent”. In response to defence counsel’s specific plea that the predicate offences exhibited a decline in danger, Tobias J. stated the following:
I have not been unmoved by the submissions of counsel for the respondent that the character of his behaviour has changed markedly over a period of 15 years from violent to harmless, with the result that the respondent cannot now be described as dangerous. Nonetheless, these submissions have failed to persuade me that the violence and the brutality of the respondent’s early sexual assaults do not continue to be evidenced in the pattern of his subsequent sexual assaults, including that conduct which resulted in his conviction upon the predicate offences.
[11] Given all of his findings, Tobias J. indicated that, pursuant to s. 753 of the Criminal Code, he was satisfied beyond a reasonable doubt that: (a) Robert Currie had been convicted of “serious personal injury offences”; and (b) his conduct since 1975, including the commission of the predicate offences, demonstrated a failure to control his sexual impulses and presented an existing likelihood of causing injury, pain or other evil to other members of society. He granted the Crown’s dangerous offender application.
C. Reasons on Sentence
[12] Having granted the dangerous offender application, Tobias J. then turned his mind to the issue of sentencing. In doing so, he alluded to the fact that, under s. 761(1) of the Criminal Code, the National Parole Board is statutorily required to intermittently review the dangerous offender designation. He stated:
s. 761(1) of the Criminal Code provides a framework by which the National Parole Board considers the incarceration of an individual sentenced to an indeterminate sentence, and in my respectful opinion, it is in that protection of the review set out in s. 761(1) that Mr. Currie will receive the consideration of his personality disorder, the status of that personality disorder, the status of his sexual deviation, and whether at a time in the future, he no longer is a dangerous offender and a threat to the public. I cannot say that in five years or six years or ten years that will occur.
I must therefore sentence Mr. Currie to an indeterminate period in the penitentiary and leave to the evaluation by experts in the National Parole Board and in the penitentiary system the status of Mr. Currie’s treatment and his right to re-enter society.
Acknowledging that the purpose of s. 753(b) is the protection of the public, Tobias J. exercised his statutory discretion and imposed an indeterminate sentence.
D. Ontario Court of Appeal (1995), [1995 CanLII 1057 (ON CA)](https://www.canlii.org/en/on/onca/doc/1995/1995canlii1057/1995canlii1057.html), 26 O.R. (3d) 444 (per Brooke, Finlayson and Carthy JJ.A.)
[13] On appeal, the Ontario Court of Appeal held that the trial judge had wrongfully declared the respondent a dangerous offender and sentenced the respondent to time served. According to Finlayson J.A., the dangerous offender designation was not supported by the evidence. Although the previous sexual offences committed by the respondent were, at times, violent and extremely degrading, he noted (at p. 448) that the predicate offences were “not nearly as serious” and that the trial judge erred by failing to focus on the seriousness of the predicate offences themselves. In this respect, Finlayson J.A. criticized the nature of Dr. McDonald’s evidence and preferred the report of Dr. Orchard which concluded that the “relatively mild nature of the [accused’s] predicate offences suggested that treatment had helped him to control his violent tendencies” (p. 451).
[14] The Court of Appeal also held that the trial judge’s decision was premised upon a misconception of the burden of proof. Finlayson J.A. interpreted the trial judge’s concluding comment, as I have quoted above, that the respondent’s submissions have “failed to persuade me that the violence and the brutality of the respondent’s early sexual assaults do not continue to be evidenced” as an improper reversal of the burden of proof upon the respondent.
[15] Finlayson J.A. was also concerned with the trial judge’s separate reasons for imposing the indeterminate sentence. He noted that the trial judge should not have derived any comfort from the fact that the Criminal Code requires the National Parole Board to intermittently review a person’s dangerous offender status. According to Finlayson J.A., in doing so, the trial judge effectively abdicated his responsibilities as sentencing judge.
II. Issues
[16] The fundamental disagreement in the judgments below on the suitability of designating Robert Currie a dangerous offender and imposing an indeterminate sentence raises, in my opinion, the following three issues on appeal to this Court:
(1) Must a trial judge, when evaluating a dangerous offender application under s. 753(b) of the Criminal Code, focus on the seriousness of the specific predicate offences that have led to the Crown’s dangerous offender application?
(2) Were the dangerous offender designation and the corresponding indeterminate sentence reasonably supported by the evidence?
(3) Were the dangerous offender designation and the corresponding indeterminate sentence premised on any errors of law?
Given our holding at the conclusion of the hearing, it should come as no surprise that the Court resolves each of these issues in favour of the appellant. A thorough explanation is nonetheless warranted and should provide needed guidance for future dangerous offender application hearings.
III. Analysis
[17] It is the stated opinion of this Court that Robert Currie was properly designated a dangerous offender and correctly sentenced to an indeterminate period of incarceration. That opinion is grounded in two basic legal propositions both of which I develop and apply below. Those propositions are: first, given the nature and structure of s. 753(b) of the Criminal Code, a presiding trial judge need not focus on the objective seriousness of a predicate offence in order to conclude that a dangerous offender designation is warranted. Second, a finding of dangerousness by a trial judge is a finding of fact, frequently based upon the competing credibility of experts, and as long as it is reasonable, it is a finding which should not be lightly overturned.
A. Must a Trial Judge Focus on the Seriousness of the Predicate Offences?
[18] The Court of Appeal quashed the trial judge’s designation of Robert Currie as a dangerous offender principally because it found the trial judge erred by failing to focus on the seriousness of the predicate offences. The respondent has relied upon that finding and insists that, when evaluating the likelihood of danger that an offender presents, the sentencing judge must consider the relative gravity of the predicate offences. Unless there is “some rational relationship between the predicate offences and the sentences”, the respondent contends that the offender is being sentenced for his past criminality.
[19] It is true that, when viewed in isolation, the predicate offences appear less serious than much of the respondent’s past conduct. Indeed the appellant has admitted that “[t]he predicate offences in this case are properly characterized as offences of a less serious nature than the offender’s earlier offences, and thankfully do not approach the gravity of the very violent earlier offences”. However, that observation does not necessarily translate into a conclusion that the designation of Robert Currie as a dangerous offender was misplaced. Rather, once an individual has committed an offence specifically defined in the Criminal Code as a “serious personal injury offence”, he or she has made it possible for the Crown to invoke the Criminal Code’s dangerous offender application process. If that process is invoked, it is incumbent upon the trial judge to evaluate the offender’s potential danger to the public and this may or may not depend upon the specific nature and objective gravity of the predicate offence.
[20] Section 753(b) of the Criminal Code makes this point abundantly clear. It provides:
- Where, on an application made under this Part following the conviction of a person for an offence but before the offender is sentenced therefor, it is established to the satisfaction of the court
(b) that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (b) of the definition of that expression in section 752 and the offender, by his conduct in any sexual matter including that involved in the commission of the offence for which he has been convicted, has shown a failure to control his sexual impulses and a likelihood of his causing injury, pain or other evil to other persons through failure in the future to control his sexual impulses,
the court may find the offender to be a dangerous offender and may thereupon impose a sentence of detention in a penitentiary for an indeterminate period, in lieu of any other sentence that might be imposed for the offence for which the offender has been convicted. [Emphasis added.]
In short, there are two thresholds that the Crown must surpass in order for the dangerous offender application to be successful. The Crown must first establish that the offender has been convicted of a “serious personal injury offence”. Then the focus of the inquiry shifts. The question then becomes whether there is a “likelihood” that the offender will cause “injury, pain or other evil to other persons through [his] failure in the future to control his sexual impulses”.
[21] There is no question in this appeal that the predicate sexual assaults committed by the respondent against the young girls in the Towers department store constituted “serious personal injury offences”. Section 752(b) of the Criminal Code defines “serious personal injury offence” to include “an offence or attempt to commit an offence mentioned in section 271 (sexual assault)”. However, the parties fundamentally disagree over the manner in which the trial judge applied the second standard. The respondent alleges that the trial judge erred because he did not take proper notice of the relative gravity of the predicate offences. He submits that an indeterminate sentence is disproportionate to the seriousness of sexual touching.
[22] My problem with this argument is twofold. First, the language of s. 753(b) explicitly states that there is no requirement to focus on the specific nature of the predicate offence. Section 753(b) provides that the prospective dangerousness of the offender is measured by reference to “his conduct in any sexual matter including that involved in the commission of the offence for which he has been convicted” (emphasis added). “[A]ny sexual matter” can refer to the predicate offence, but it need not. As long as the offender’s past conduct, whatever conduct that might be, demonstrates a present likelihood of inflicting future harm upon others, the designation is justified. Second, the respondent’s position is inconsistent with the nature and structure of the dangerous offender statutory scheme created by Parliament. As I indicated above, a crucial element of s. 753(b) is the notion of the “serious personal injury offence”. Parliament has said that there are certain types of offences, which are inherently serious, that can trigger a dangerous offender application. As this Court observed in R. v. McCraw, 1991 CanLII 29 (SCC), [1991] 3 S.C.R. 72, at p. 83, sexual assault, whatever form it may take, is one of them. Other offences, presumably less threatening to the personal safety of others, do not trigger s. 753.
[23] As such, I would find it contradictory, as well as callous, to categorize the impugned predicate assaults as “nuisance-type offences”. These sexual assaults, while not as violent or grave as some of the respondent’s earlier offences, were nevertheless within the category of violent and grave. The predicate offences involved repeated sexual touching of young girls in public and at least two of the victims of the assaults have experienced serious psychological trauma and other side effects. If these sexual assaults were not serious, sexual assault would not be enumerated as a s. 752 offence. Nor would Parliament have ever seen fit to eliminate the distinction between rape and indecent assault -- indeed it would have ensured that such a distinction endured.
[24] By definition, therefore, arguments of proportionality do not withstand scrutiny. There may be, as the respondent asserts, an objective difference between the nighttime rape at knife point and the predicate offences, but this distinction is not reflected in s. 752 or 753 of the Criminal Code. Indeed the respondent is asking the Court to alter or even reduce the definition of “serious personal injury offence”. This alteration would, as the appellant notes, effectively guarantee that an accused who has committed an arguably less serious sexual predicate offence would never be declared a dangerous offender. I cannot imagine that Parliament wanted the courts to wait for an obviously dangerous individual, regardless of the nature of his criminal record and notwithstanding the force of expert opinion as to his potential dangerousness, to commit a particularly violent and grievous offence before he or she can be declared a dangerous offender.
[25] Does it defy reality, as the respondent submits, to treat all “serious personal injury offences” the same in applying s. 753(b)? In my opinion, it does not. This might be problematic if s. 753(b) were a one-stage test. Section 753(b) might not make sense if, for example, it were to provide, without qualification, that a trial judge may designate any person who commits a “serious personal injury offence” as a dangerous offender. But, it is crucial to recognize that the conviction for a “serious personal injury offence” merely triggers the s. 753(b) application process. There remains a second stage to s. 753(b), at which point the trial judge must be satisfied beyond a reasonable doubt of the likelihood of future danger that an offender presents to society before he or she can impose the dangerous offender designation and an indeterminate sentence.
[26] Parliament has thus created a standard of preventive detention that measures an accused’s present condition according to past behaviour and patterns of conduct. Under this statutory arrangement, dangerous offenders who have committed “serious personal injury offences” can be properly sentenced without having to wait for them to strike out in a particularly egregious way. For example, suppose a known sexual deviate has been convicted of repeated offences for stalking and sexually assaulting young girls in playgrounds. He operates by offering them candy, touching their private parts, and if the children seem to comply or submit to his criminal advances, by taking them away where he violently sexually assaults them. Now suppose that individual is at large in society and caught by a parent at a playground after having offered a child candy and improperly touching her. In this example, like the present case, the predicate offence is objectively less serious than a violent and invasive rape, but the trial judge need not justify the dangerous offender designation and an indeterminate sentence as a just desert for the isolated act of sexual touching. On the theory of s. 753(b), the offender has committed an inherently “serious personal injury offence”. On a dangerous offender application, a trial judge is then entitled to consider his “conduct in any sexual matter” to determine if he presents a future danger to society. Otherwise, we would be saying that an offender’s present condition is defined by the precise degree of seriousness of the predicate offences. That is equivalent to assuming that a dangerous individual will always act out, or be caught for that matter, at the upper limits of his dangerous capabilities.
[27] Contrary to the respondent’s submission, this holding is entirely consistent with R. v. Lyons, 1987 CanLII 25 (SCC), [1987] 2 S.C.R. 309. In Lyons, the accused was convicted of break and enter, unlawful use of a weapon in a sexual assault, unlawful use of a firearm in an indictable offence, and theft. He was subsequently designated a dangerous offender by the trial judge and sentenced to indeterminate detention. The question that arose on appeal to this Court was whether the dangerous offender provisions of the Criminal Code were consistent with the Canadian Charter of Rights and Freedoms. The Court upheld the constitutionality of the provisions, principally on the basis that a dangerous offender is not being sentenced for past or even future criminality. As La Forest J. indicated at p. 328:
The individual is clearly being sentenced for the “serious personal injury offence” he or she has been found guilty of committing, albeit in a different way than would ordinarily be done. It must be remembered that the appellant was not picked up off the street because of his past criminality (for which he has already been punished), or because of fears or suspicions about his criminal proclivities, and then subjected to a procedure in order to determine whether society would be better off if he were incarcerated indefinitely. Rather he was arrested and prosecuted for a very serious violent crime and subjected to a procedure aimed at determining the appropriate penalty that should be inflicted upon him in the circumstances.
[28] In my opinion, despite the reference to a “very serious violent crime”, Lyons does not require that all predicate offences fit that description. As La Forest J. indicated at the hearing of this case, when he asserted that Thomas Lyons was arrested and prosecuted for a “very serious violent crime” he was merely referring to the particular facts in Lyons. He was not, I would add, stating that predicate offences need to be especially serious and violent to justify a dangerous offender designation. In fact, while specifically aimed at providing the constitutional justification for s. 753 (then s. 688), the above passage from Lyons serves to underline the very point of this case -- that “serious personal injury offences” are inherently serious and there is thus no need to think that the offender is being punished for his “past criminality”. As in Lyons, there is nothing in this case that suggests the respondent has been “picked up off the street”. Nor is there any more reason here than there was in Lyons to suggest that he is being punished for anything other than the predicate offences.
[29] There is, however, another subtle wrinkle to this issue, and I would be remiss if I did not address it. Although the respondent relies upon the judgment of the Ontario Court of Appeal, he has argued that it would be a mistake to conflate their respective positions. On the one hand, the Court of Appeal quashed the dangerous offender designation largely because it found that the trial judge “failed to consider the gravity of the predicate offences in isolation from his previous offences” (p. 451). On the other hand, the respondent submits that the trial judge made the related but opposite error -- that he ignored the predicate offences.
[30] This argument is conceptually different, but I find it no more persuasive. For one, the language of s. 753(b) of the Criminal Code would seem to suggest that once the offender has been found guilty of a “serious personal injury offence”, the trial judge can ignore the nature of the predicate offence. Notwithstanding the unlikelihood of such a scenario, as long as some conduct of the accused “in any sexual matter” demonstrates a likelihood that his sexual urges will cause future “injury, pain or other evil”, there is no conceptual need to pay any attention to the predicate offence. Second, and more importantly, there is every indication that the trial judge did not ignore the nature of the predicate offences. In fact, on this very subject he endorsed Dr. McDonald’s conclusion that “[a]lthough the predicate offences may appear less serious from an assaultive aspect, they are more blatant, indicating a lessening of control on the part of the respondent”. He later concluded that “the violence and the brutality of the respondent’s early sexual assaults ... continue to be evidenced in the pattern of his subsequent sexual assaults, including that conduct which resulted in his conviction upon the predicate offences”.
[31] As much as our system of criminal justice seeks to sentence the offence, imposing a proper sentence is very much a function of the dual nature of the specific crime and the unique attributes of the offender. Insofar as this duality is concerned, the effectiveness of s. 753(b) should not go unnoticed. The “serious personal injury offence” requirement acts as a gatekeeper to ensure that the sentence is not disproportionate to the offence. At the same time, the manner in which s. 753(b) allows a trial judge to evaluate an offender’s present condition ensures that the uniquely dangerous attributes of each offender and his or her patterns of conduct are given due consideration, whatever form they might take.
B. Were the Dangerous Offender Designation and the Corresponding Indeterminate Sentence Reasonably Supported by the Evidence?
[32] On the basis of the language of s. 753(b) of the Criminal Code and the principles I have articulated above, I am satisfied that there was enough evidence before Tobias J. for him to find that the respondent was a dangerous offender. The respondent’s pattern of criminal sexual behaviour and the psychiatric evidence of the Crown-nominated psychiatrist are certainly sufficient proof, if accepted by a trier of fact, to justify such a conclusion.
[33] In this respect, the role of an appellate court is to determine if the dangerous offender designation was reasonable. This standard of reasonableness is similar to the traditional standard employed by appellate courts in their review of verdicts under s. 686(1)(a)(i) of the Criminal Code. Reasonableness is the appropriate standard of review in this case because, as much as dangerous offender status is a part of the post-conviction process, the application of general standards of sentence review is not warranted given the broad language of s. 759. Section 759(1) provides:
- (1) A person who is sentenced to detention in a penitentiary for an indeterminate period under this Part may appeal to the court of appeal against that sentence on any ground of law or fact or mixed law and fact. [Emphasis added.]
Given this provision, I do not find the “manifestly wrong” or “demonstrably unfit” general sentencing standards developed and applied in cases such as R. v. Shropshire, 1995 CanLII 47 (SCC), [1995] 4 S.C.R. 227, R. v. M. (C.A.), 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500, or R. v. McDonnell, 1997 CanLII 389 (SCC), [1997] 1 S.C.R. 948, to be applicable to this situation. However, it is equally true that s. 759 cannot be interpreted as calling for the equivalent of a trial de novo on the dangerous offender application. Some deference to the findings of a trial judge is warranted. After all, credibility should be assessed and findings of fact should be made by the trier of fact. The trier of fact is present when the testimony is being given and has the contemporaneous ability to assess each witness.
[34] I should also point out that I am sympathetic to the submission of the respondent and the conclusion of the Ontario Court of Appeal below that, given their s. 759 jurisdiction to review the propriety of an indeterminate sentence, appellate courts are necessarily entitled to consider whether the finding of dangerousness itself was justified. In other words, as much as R. v. Langevin (1984), 1984 CanLII 1914 (ON CA), 11 C.C.C. (3d) 336 (Ont. C.A.), and R. v. Sullivan (1987), 1987 CanLII 6853 (ON CA), 37 C.C.C. (3d) 143 (Ont. C.A.), correctly held that s. 759 does not give appellate courts an explicit jurisdiction to overturn a dangerous offender designation, the facts upon which a dangerousness finding are based are necessarily relevant to determining whether an indeterminate sentence should be quashed. Hence the finding of dangerousness is properly before an appellate court.
[35] Accordingly, absent an error of law (which I discuss below), the crucial question on appeal is whether the trial judge’s findings were reasonable. I can only conclude that they were. For one, there was consensus at the application hearing that Robert Currie is a pedophile and hebephile with a long history of sexual offences, some of which were extremely violent. The Crown-nominated psychiatrist, Dr. McDonald, diagnosed the respondent as an obsessed and temperamental hypersexual individual who was extremely dangerous to women and female children. In Dr. McDonald’s view, the respondent inherited a biological anomaly in the wiring of his brain which makes his deviate sexual impulses uncontrollable. While Dr. McDonald accepted that the respondent’s predicate assaults were not as serious as some of the assaults he had committed in the past, he found that they were “ominous” and more blatant because they were committed in a very public place. This suggested, in his opinion, a lessening of the respondent’s ability to control his deviate impulses and he expected the respondent’s offences to increase in severity in the long term.
[36] This evidence alone was sufficient to justify the dangerous offender designation, and I do not accept the respondent’s objection that it was a product of overgeneralization. Experts necessarily bring past experiences to bear on their opinions and, as the appellant submits, Dr. McDonald’s opinion was based on an extensive assessment of the respondent. As a result, the trial judge was perfectly entitled to believe Dr. McDonald’s diagnosis, and conclude from the respondent’s lengthy criminal history that the commission of the predicate offences was part of a pattern of sexual deviation. See Sullivan, supra. However, the trial judge also had the benefit of the testimony of the defence-nominated psychiatrist. Although Dr. Orchard concluded that the predicate offences exhibited a declining danger, he did acknowledge the profound nature of the respondent’s sexual problems and also recognized that there was a likelihood that the respondent would re-offend. In fact, Dr. Orchard himself indicated that the respondent exhibited “a lot of tendencies towards violence or dangerous behaviour”.
[37] Furthermore, the Crown adduced evidence, which I believe was properly put before the trial judge, of comments the respondent made to a psychometrist in 1989. Robert Currie stated at that time:
[The] stuff I was doing in ’79, I got rid of that. I don’t bruise them now but don’t get me wrong. They had better give me sex if I want it because I often have a knife and I always have my hands.
This evidence, the reliability and strength of which the trial judge was able to evaluate, and which he was not required to discuss in his reasons to avoid error (R. v. Burns, 1994 CanLII 127 (SCC), [1994] 1 S.C.R. 656, at pp. 662-65, and R. v. Barrett, 1995 CanLII 129 (SCC), [1995] 1 S.C.R. 752, at pp. 752-53), further supports the conclusion that the respondent is dangerous. In fact it is a chilling reminder, from the mouth of the offender himself, of his sexually impulsive and volatile nature.
[38] In my opinion, therefore, it was entirely open to the trial judge to prefer the evidence of Dr. McDonald to that of Dr. Orchard. It was not, however, similarly open to the Court of Appeal to re-evaluate the psychiatric evidence and overturn the dangerous offender designation because of a mere difference of opinion. I cannot overemphasize the point that no appellate court should lightly disturb a finding of dangerousness which is so heavily dependent upon the relative credibility of expert witnesses. In saying this, I have not forgotten the broad language of s. 759. However, having observed both experts and evaluated their reports, Tobias J. simply found the opinion of Dr. McDonald to be more credible. It was a reasonable conclusion amply supported by the evidence. It should not have been disturbed by the Court of Appeal.
[39] The reason for this finding is simple. To an outside observer, the predicate assaults can be interpreted in any number of ways. They might, as the Court of Appeal and respondent believe, carry information that suggests that the respondent’s condition was improving. By contrast, because they occurred in broad daylight in a crowded public place, they might indicate that the respondent’s condition had become more blatant and reflected a lessening of self-control. Further still, the predicate assaults might even be interpreted as part of a pattern that the respondent displayed in his earlier offences. As I noted at the outset of these reasons, on November 29, 1975, on the very day the respondent committed an extremely violent and degrading rape, he had also committed a less violent and less intrusive indecent assault on another victim sometime earlier. It is therefore possible that, even though the predicate offences were less violent than past offences, Robert Currie might have committed more violent and aggressive sexual assaults that very day, had he not been reported by his young victims.
[40] The point is, s. 753(b) entrusts trial judges with evaluating these sorts of patterns, and in this case, the trial judge concluded, in a perfectly reasonable fashion, that the predicate offences exemplified a lessening of self-control. It is plausible to interpret the respondent’s pattern of conduct differently, but the Criminal Code does not invite either this Court or the Court of Appeal to do so. Unless the trial judge’s findings were unreasonable, and absent an error of law, the designation made by the trial judge should stand.
C. Did the Trial Judge Commit an Error of Law?
[41] The respondent alleged, and the Court of Appeal agreed, that the trial judge’s conclusions were based upon at least two errors of law. First, Finlayson J.A. stated that the trial judge misconstrued the burden of proof in dangerous offender proceedings. Second, the Court of Appeal intimated that the trial judge abdicated his sentencing responsibility to the National Parole Board. With respect, I find both of these conclusions unsatisfactory.
(1) Erroneous Burden of Proof
[42] As I stated above, the Court of Appeal’s conclusion that the trial judge misconstrued the burden of proof is based upon the following passage in the trial judge’s reasons:
I have not been unmoved by the submissions of counsel for the respondent that the character of his behaviour has changed markedly over a period of 15 years from violent to harmless, with the result that the respondent cannot now be described as dangerous. Nonetheless, these submissions have failed to persuade me that the violence and the brutality of the respondent’s early sexual assaults do not continue to be evidenced in the pattern of his subsequent sexual assaults, including that conduct which resulted in his conviction upon the predicate offences. [Emphasis added.]
I cannot accept that this passage reflects an erroneous reversal of the burden of proof. In my opinion, when the passage is read in its entire context, it is obvious that when Tobias J. said that the respondent’s submission “failed to persuade me” he was really indicating that the respondent’s submissions had failed to disturb his findings as regards the respondent’s dangerousness. In my opinion, this is clearly confirmed by the passage that immediately followed his impugned comment:
I am satisfied, therefore, beyond a reasonable doubt, upon a consideration of all of the evidence adduced upon this application, that the predicate offences for which the respondent has been convicted are serious personal injury offences as described in paragraph (b) of the definition of that expression in section 752 of the Criminal Code, and that the respondent by his conduct since the year 1975 in those sexual matters herein described, including the predicate offences, has shown a failure to control his sexual impulses, and that there is an existing likelihood of the respondent causing injury, pain or other evil to other persons through failure in the future to control his sexual impulses.
In the result, I declare the respondent a dangerous offender.
The Court cannot forget that s. 753(b) does not require proof beyond a reasonable doubt that the respondent will re-offend. Such a standard would be impossible to meet. Instead, s. 753(b) requires that the court be satisfied beyond a reasonable doubt that there is a “likelihood” that the respondent will inflict harm, and the trial judge took explicit notice of this, citing R. v. Knight (1975), 1975 CanLII 1424 (ON SC), 27 C.C.C. (2d) 343 (Ont. H.C.); R. v. Dwyer (1977), 1977 ALTASCAD 63, 34 C.C.C. (2d) 293 (Alta. C.A.); R. v. Carleton (1981), 1981 ABCA 220, 69 C.C.C. (2d) 1 (Alta. C.A.) (aff’d 1983 CanLII 157 (SCC), [1983] 2 S.C.R. 58). See also Langevin, supra. I am thus unwilling to conclude, on the basis of a few misplaced words, that the trial judge either misunderstood or misapplied the burden of proof on this dangerous offender application.
(2) Abdication of Responsibility
[43] The respondent also contends that in his reasons on sentence, the trial judge effectively surrendered his sentencing responsibilities by deferring to the judgment of the National Parole Board under s. 761(1) of the Criminal Code. As I noted above, the trial judge stated:
s. 761(1) of the Criminal Code provides a framework by which the National Parole Board considers the incarceration of an individual sentenced to an indeterminate sentence, and in my respectful opinion, it is in that protection of the review set out in s. 761(1) that Mr. Currie will receive the consideration of his personality disorder, the status of that personality disorder, the status of his sexual deviation, and whether at a time in the future, he no longer is a dangerous offender and a threat to the public. I cannot say that in five years or six years or ten years that will occur.
I must therefore sentence Mr. Currie to an indeterminate period in the penitentiary and leave to the evaluation by experts in the National Parole Board and in the penitentiary system the status of Mr. Currie’s treatment and his right to re-enter society.
While it is important to recognize that an indeterminate sentence does not automatically follow a dangerous offender designation, I do not interpret Tobias J.’s reference to the National Parole Board’s intermittent power of review as an abdication of responsibility. Instead, I view it as a judicial reminder that, although it may be indeterminate, Robert Currie’s sentence need not be permanent.
IV. Conclusion
[44] As the Court indicated at the hearing, the trial judge properly designated the respondent, Robert Currie, a dangerous offender. He was not required to focus on the objective seriousness of the predicate offences and accordingly his decision was wholly reasonable and supported by the evidence. Moreover, absent an error of law, of which there was none, the dangerous offender determination is a finding of fact that is almost always based upon the competing credibility of expert witnesses. As such, it is a decision which should not be lightly disturbed.
[45] For all of these reasons, the appeal is allowed and the Court of Appeal’s sentence of time served is set aside. The decision of the trial judge to designate the respondent a dangerous offender and the corresponding decision to impose an indeterminate sentence are restored.
Appeal allowed.
Solicitor for the appellant: The Attorney General for Ontario, Toronto.
Solicitors for the respondent: Gold & Fuerst, Toronto.