SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 10706
DATE: 2012-09-13

A non-publication and non-broadcast order has been made in this proceeding pursuant to s. 486.4(1) of the Criminal Code of Canada concerning the identity of and any evidence that would tend to identify a complainant or witness.

RE: HER MAJESTY THE QUEEN (Respondent) -and- ROLAND HILL (Applicant)

BEFORE: Justice A.W. Bryant

COUNSEL:
Laurie Tuttle, for the Crown/ Respondent
Peter Behr, for the Defendant/Applicant

HEARD: February 8, 9, 10 & 13, 2012

E N D O R S E M E N T

I. Overview

[ 1 ] Roland Hill was convicted on January 11, 2000 of a sexual assault and received a custodial sentence of two years and six months. On September 20, 2004, Mr. Hill was convicted of assault causing bodily harm. He was sentenced to two years less one day after receiving eleven months’ credit for five and one-half months pre-trial custody on a two-for-one basis.

[ 2 ] On July 26, 2010, Mr. Roland Hill pled guilty before this Court to two serious personal injury offences, one of which is also classified as a primary designated offence under s. 752 of the Criminal Code .

[ 3 ] The Crown sought an order that Mr. Hill be designated a dangerous offender. The Crown relied, in part, upon the presumption set out in s. 753(1.1) ( Tackling Violent Crime Act , S.C. 2008, c. 6, in force July 2, 2008). Section 753(1.1) provides that if an offender is convicted of a primary designated offence for which it would be appropriate to impose a sentence of imprisonment of two years or more and the offender was previously convicted at least twice of a primary designated offence and was sentenced to at least two years of imprisonment for each of those convictions, the dangerous offender criteria (s. 753(1)(a) or (b)) are presumed to have been satisfied unless the contrary is proven on a balance of probabilities.

[ 4 ] Mr. Hill seeks an Order declaring that s. 753(1.1) of the Criminal Code is invalid and of no force or effect pursuant to s. 52 of the Constitution Act, 1982 . Counsel for Mr. Hill submits that s. 753(1.1) infringes s. 7 , s. 11(d) and s. 12 of the Canadian Charter of Rights and Freedoms .

[ 5 ] The Court delayed ruling on the constitutional issue as the Crown intended to proceed with the dangerous offender application even if the Court found s. 753(1.1) contravened the Charter and was of no force and effect. Counsel for Mr. Hill agreed but he required a ruling on the applicant’s constitutional challenge at the close of the Crown’s case and before electing to call evidence.

II. Chronology of Pre-Hearing Proceedings

[ 6 ] On July 26, 2010, Roland Hill pled guilty to the following indictable offences:

Count 1: with the intent to enable or assist himself to commit the indictable offence of aggravated sexual assault, he attempted to choke S.S. by putting a lace around her neck, contrary to s. 246 (a) of the Criminal Code ; and,

Count 3: while sexually assaulting S.S. he wounded, maimed, disfigured or endangered the life of S.S. and thereby committed an aggravated sexual assault contrary to s. 273(1) of the Code .

[ 7 ] Both offences are classified as serious personal injury offences pursuant to s. 752 of the Code . The offence of aggravated sexual assault is also a primary designated offence (the “index offence”).

[ 8 ] On September 3, 2010, Crown counsel applied for an assessment of Mr. Hill pursuant s. 752.1 of the Code .

[ 9 ] On September 21, 2010, the Court ruled on Mr. Hill’s Kienapple motion to stay the conviction on Count 3. The Court ruled that convictions on Count 1 and Count 3 did not breach the rule against multiple convictions for the same delict ( R. v. Hill , 2010 ONSC 5150 , [2010] O.J. No. 3956 ).

[ 10 ] On December 7, 2010, the Court remanded Mr. Hill for an assessment and ordered Dr. Philip Klassen, a forensic psychiatrist, to conduct an assessment of Mr. Hill pursuant to s. 752.1 of the Code . On March 28, 2011, Dr. Klassen completed his assessment of Mr. Hill.

[ 11 ] On March 12, 2011, the Court ordered a Gladue Report with respect to the applicant. On July 7, 2011, the N’Amerind Friendship Centre of London completed the Gladue Report for Mr. Hill.

[ 12 ] On August 28, 2011, Murray Segal, Deputy Attorney General, consented, pursuant to s. 754, to proceedings being instituted to have Mr. Hill declared a dangerous offender within the meaning of s. 753(1) of the Criminal Code . On September 30, 2011, the Crown filed an application for a declaration that Mr. Hill is a dangerous offender.

[ 13 ] Mr. Hill was “convicted previously at least twice of a primary designated offence”. On January 11, 2000, Mr. Hill was convicted of sexual assault (s. 271) and was sentenced to two years and six months for that offence. On September 20, 2004, Mr. Hill was convicted of assault causing bodily harm (s. 267(b)) and was sentenced to two years less one day after receiving eleven months’ credit for five and one-half months pre-trial custody on a two-for-one basis ( R. v. Hill , 2004 CarswellOnt 6217 , [2004] O.J. No. 6276 (O.C.J.) , aff’d https://www.canlii.org/en/on/onca/doc/2005/2005canlii6783/2005canlii6783.html , [2004] O.J. No. 604 (C.A.) ).

[ 14 ] On December 21, 2011, the Court ruled that the sentence imposed on September 20, 2004 for assault causing bodily harm was the equivalent of a sentence of two years and eleven months after having regard for the pre-trial incarceration credited to Mr. Hill by the trial judge ( R. v. Hill , 2011 ONSC 7623 , [2011] O.J. No. 6183 ).

[ 15 ] Mr. Hill was hospitalized before the commencement of the hearing and again after the completion of the Crown’s case. He was returned to the Elgin-Middlesex Detention Centre pending the continuation of the hearing. The proceeding was delayed to allow counsel for Mr. Hill an opportunity to obtain funding from Legal Aid Ontario to retain a defence expert. The Court further adjourned the proceeding to allow the defence expert to conduct an assessment of Mr. Hill.

III. Charter Application

[ 16 ] Counsel for Mr. Hill filed a Notice of Application and Constitutional Issue, dated January 9, 2012, on the following ground:

Whether s. 753(1.1) of the Criminal Code of Canada violates s. 7 , s. 11(d) , and s. 12 of the Canadian Charter of Rights and Freedoms and whether this provision ought to be declared invalid and of no force and effect pursuant to s. 52 of the Constitution Act, 1982 .

IV. Position of the Parties

(a) Position of the Applicant

[ 17 ] Counsel for Mr. Hill submitted that s. 753(1.1) violates the presumption of innocence because proof of the basic facts does not lead inexorably to the conclusion that core dangerous offender criteria are satisfied ( R. v. Lyons , 1987 25 (SCC) , [1987] 2 S.C.R. 309 , at 350-353 , 362, 44 D.L.R. (4th) 193; R. v. Oakes , 1986 46 (SCC) , [1986] 1 S.C.R. 103 , 24 C.C.C. (3d) 321 ; R. v. Downey , 1992 109 (SCC) , [1992] 2 S.C.R. 10 , at 30, 72 C.C.C. (3d) 1 ).

[ 18 ] Counsel for Mr. Hill submits that the presumption set out in s. 753(1.1) presumes that Mr. Hill is a dangerous offender unless the offender proves to a balance of probabilities that he does not satisfy the criteria in ss. 753(1) (a) or (b). Counsel argues that the statutory criteria set out in ss. 753(1) (a) or (b) are aggravating sentencing factors which must be proven by the Crown beyond a reasonable doubt ( R. v. Gardiner , 1982 30 (SCC) , [1982] 2 S.C.R. 368 , 140 D.L.R. (3d) 612 ; R. v. Pearson , 1992 52 (SCC) , [1992] 3 S.C.R. 665 , 77 C.C.C. (3d) 124 ; R. v. D.B. , 2008 SCC 25 , [2008] 2 S.C.R. 3 , at paras. 78-80 , 231 C.C.C.(3d) 338 ; R. v . Currie , 1997 347 (SCC) , [1997] 2 S.C.R. 260 , at para. 25 , 42, 115 C.C.C. (3d) 205; R. v. Jackson , [1981] N.S.J. No. 406 , (1981), 1981 3281 (NS CA) , 61 C.C.C.(2d) 540 , at paras. 174 (N.S.C.A.) ; R. v . Vanderwal , 2010 ONSC 265 , [2010] O.J. No. 246 , at para. 21 ) [1] .

[ 19 ] Counsel submits that the reversal of the burden of proof for aggravating factors violates principles of fundamental justice contrary to s. 7 of the Charter ( R. v. D.B. , 2008 SCC 25 , [2008] 2 S.C.R. 3 , at paras. 25-27 , 37-39; R. v. Pearson , at 683, 686).

[ 20 ] In the alternative, counsel submits that s. 12 of the Charter is contravened by s. 753(1.1) because it may impose an indeterminate sentence which is grossly disproportionate for an individual offender in light of all relevant contextual factors ( R. v. Lyons , at 337-338; R. v.Goltz , 1991 51 (SCC) , [1991] 3 S.C.R. 485 , at 515-516, 67 C.C.C. (3d) 481 ; R. v Wiles , 2005 SCC 84 , [2005] 3 S.C.R. 895 , at paras. 4-5 ).

[ 21 ] Counsel for Mr. Hill concludes that s. 753(1.1) infringes s. 7 , s. 11(d) , and s. 12 of the Charter and is not a reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society because the means chosen to attain the legislative objective are not proportional to its ends.

(b) Position of the Crown

[ 22 ] Crown counsel submits that s. 11(d) of the Charter creates a procedural and evidentiary rule which operates at trial requiring the prosecution to prove the guilt of the accused beyond a reasonable doubt. Counsel argues that s. 753(1.1) does not contravene the presumption of innocence protected by s. 11(d) of the Charter because Mr. Hill pled guilty to the two offences committed on January 9, 2010 and the presumption of innocence is no longer a live issue ( R. v. Morales , 1992 53 (SCC) , [1992] 3 S.C.R. 711 , at 735, 77 C.C.C. (3d) 91 ).

[ 23 ] Crown counsel acknowledges that the Crown must prove contested aggravating facts beyond a reasonable doubt ( R. v. Gardiner , supra ; R. v. Pearson , supra ). Counsel submits that it must prove the basic “facts” that the offender has been previously convicted twice of primary designated offences for which a sentence of two years or more was imposed and that the index offence is a primary designated offence for which a sentence of two years or more is appropriate. Counsel argues that once these “facts” are proven beyond a reasonable doubt, it is presumed that the criteria set out in ss. 753(1) (a) and (b) have been met. Counsel argues that this determination is “a legal conclusion as opposed to an aggravating fact.”

[ 24 ] Crown counsel submits that s. 753(1.1) does not violate s. 7 of the Charter . Counsel for the Crown submits that the s. 7 analysis is a two-fold test. The Court must first determine that there has been a deprivation of life, liberty and/or security of the person. If this is found to be the case, the Court must then determine whether the deprivation accords with the principles of fundamental justice ( R. v. D.B. , at para. 37 ). Counsel argues that the presumption set out in s. 753(1.1) does not deprive an individual of his liberty but merely designates a person as a dangerous offender which is similar to the statutory provision which mandates that an offender shall be registered as a sex offender pursuant to the Sex Offender Information Registration Act , S.C. 2004, c. 10. Crown counsel further submits that s. 753(4) permits the trial judge to impose an indeterminate sentence, a fixed sentence with a long term supervision order or a determinant sentence for the index offence.

[ 25 ] Crown counsel submits that s. 753(1.1) does not contravene s. 12 of the Charter . Counsel argues that the presumption found in s. 753(1.1) is analogous to a mandatory minimum sentence for manslaughter with a firearm ( R. v. Ferguson , 2008 SCC 6 () , [2008] 1 S.C.R. 96 , 290 D.L.R. (4 th ) 17 ) or a mandatory life sentence for murder ( R. v. Latimer , 2001 SCC 1 () , [2001] 1 S.C.R. 3 , 193 D.L.R. (4 th ) 577 ) which do not infringe s. 12 of the Charter . In addition, unlike mandatory minimum sentences, the statutory presumption grants the offender an opportunity to rebut the presumption.

(Decision continues exactly as in the original text…)

Justice A. W. Bryant

DATE: September 13, 2012

[1] The Court cited the jurisprudence counsel referred to in their facta in support of their respective positions .

[2] The Supreme Court created an exception for proof of the elements for regulatory offences in R. v. Wholesale Travel , 1991 39 (SCC) , [1991] 3 S.C.R. 154 , 4 O.R. (3d) 799 , which is not applicable to Criminal Code penal provisions.

[3] Respondent’s factum, pp. 8-9.

[4] Canada, Parliamentary Information and Research Service, Bill C-27: An Act to amend the Criminal Code (dangerous offenders and recognizance to keep the peace) by Dominique Valiquet (Law and Government Division, 10 January 2007).

[5] See Joseph Neuberger, Assessing Dangerousness: Guide to the Dangerous Offender Application Process , Carswell, 2011, , pp. 4-12 to 4-12.2