File No.: 35310
IN THE SUPREME COURT OF CANADA
(ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO)
BETWEEN
JAMES PETER SIPOS
Appellant
-and-
HER MAJESTY THE QUEEN
Respondent
CRIMINAL LAWYERS' ASSOCIATION (ONTARIO)
Intervener
RESPONDENT'S FACTUM
ROGER A. PINNOCK
Ministry of the Attorney General
Crown Law Office - Criminal
720 Bay Street, 1Oth Floor
Toronto, Ontario M7 A 2S9
Tel: (416) 326~4575
Fax: (416) 326-4656
E-mail: [email protected]
ROBERT E. HOUSTON, Q.C.
Burke-Robertson
441 MacLaren Street, Suite 200
Ottawa, Ontario
K2P 2H3
Tel: (613) 236-9665
Fax: (613) 235-4430
E-mail: rhouston(q),burkerobertson.com
Counsel for the Respondent
Ottawa Agent for the Respondent
MICHAEL DINEEN
Dawe & Dineen
171 John Street, Suite 101
Toronto, Ontario M5T 1X3
Tel.: (416) 649-5059
Fax: (416) 352-7733
E-mail: [email protected]
GUY REGIMBALD
Gowling Lafleur Henderson LLP
160 Elgin Street, Suite 2600
Ottawa, Ontario KIP 1C3
Tel.: (613) 786-0197
Fax: (613) 563-9869
Counsel for the Appellant
Ottawa Agent for the Appellant
E-mail: [email protected]
2
RUBY SHILLER CHAN HASAN
Barristers
11 Prince Arrthur Avenue
Toronto, ON M5R 1B2
GOWLING LAFLEUR HENDERSON
Barristers and Solicitors
2600-160 Elgin St., Box 466, Station D
Ottawa, ON K1P 1C3
Gerald Chan
Nader R. Hasan
Tel: (416) 964-9664
Fax: (416) 964-8305
Email : gchan(a1rubyshiller.com
[email protected]
Guy Regimbald
Tel: (613) 786-0197
Fax: (613) 563-9869
Email: [email protected]
File No.: 35310
IN THE SUPREME COURT OF CANADA
(ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO)
BETWEEN
JAMES PETER SIPOS
Appellant
-and-
HER MAJESTY THE QUEEN
Respondent
CRIMINAL LAWYERS' ASSOCIATION (ONTARIO)
Intervener
RESPONDENT'S FACTUM
Table of Contents
PART I: RESPONDENT'S STATEMENT AS TO FACTS .................................................... !
A.
Overview ............................................................................................................................. 1
B.
Statement of the Facts .................................................................................................... 2
1.
The Appellant's History of Violent and Predatory Sexual Offences ...................... 2
i)
His First Victim - I.H .................................................................................................... 2
ii)
His Second Victim- P.N ......................................................................................... 3
iii)
His Third Victim- D.B ............................................................................................. 3
iv)
His Fourth Victim- L.C ........................................................................................... 4
v)
His Fifth Victim- P.S ............................................................................................... 4
vi)
His Sixth Victim- C.S .............................................................................................. 4
vii) The Predicate Crimes- His Seventh, Eighth and Ninth Victims- Susan C.,
Cathy S and Linda N ........................................................................................................... 4
11
Psychological Findings at the Dangerous Offender Hearing .................................. 6
2.
i.
ii.
Evidence in support of the Dangerous Offender Designation ....................................... 6
The defence evidence .............................................................................................. 12
3.
The Fresh Evidence ................................................................................................... 14
4.
Court of Appeal Ruling (2012) ................................................................................. 15
PART II: POINT IN ISSUE ..................................................................................................... 17
PART III: ARGUMENT ............................................................................................................ 18
C.
A.
The Nature ofDangerous Offender Appeals Do Not Support a Prospective .... 18
Approach .................................................................................................................................. 18
5.
The Role of an Appellate Court is to Review for Errors in Principle .................. 18
6.
Evidence of Post-Sentence Rehabilitation Is Better Assessed by the ....................... .
Parole Board ........................................................................................................................ 18
7.
Release by the Parole Board Will be Authorized in the .......................................... .
Appropriate Circumstances ................................................................................................ 20
8.
This case is consistent with other appellate level jurisprudence ........................... 22
9.
Dangerous Offender Appeals are Different from Appeals as to Quantum ............ .
of Sentence ........................................................................................................................... 23
D.
The Judgement,on Appeal .............................................................................................. 24
1.
The Ontario Court of Appeal Properly Applied the Curative Proviso ................ 24
2.
The Court of Appeal properly held that there was no reasonable possibility that
a long-term offender order could have been imposed at the sentencing hearing .......... 26
PART IV: SUBMISSIONS ON COSTS .................................................................................... 29
PARTV: ORDERREQUESTED .............................................................................................. 29
PART VI: LIST OF AUTHORITIES ....................................................................................... 30
1
PART I:' RESPONDENT'S STATEMENT AS TO FACTS
1.
The respondent accepts as substantially correct the appellant's recitation of facts, and relies
upon the following additional facts.
A.
Overview
2.
Following the appellant's conviction for a series and violent sexual offences, and based
upon overwhelming psychiatric evidence in respect of the appellant's clear danger to the
community, the appellant was found to be a dangerous offender by Lofchik J. of the Ontario
Superior Court of Justice.
He was subsequently sentenced to an indeterminate period of
incarceration. The trial judge did not specifically advert to the (then) recently enacted long-term
offender provisions. In accordance with the judgment of this Court in R. v. Johnson 1, he erred in
so doing. This case had been advanced before the Court of Appeal on the clear basis that the
Johnson error rendered the dangerous offender designation invalid at law. On appeal to the
Ontario Court of Appeal, this legal error was conceded, with the Crown seeking to rely upon the
curative proviso. The Ontario Court of Appeal upheld the indeterminate sentence and ruled that
notwithstanding the legal error, there was no miscarriage of justice in this case, as there was no
reasonable possibility that the sentencing judge would have ruled differently. Accordingly the
appeal was dismissed.
The appellant was subsequently granted leave from this Honourable
Court to appeal the decisio,n of the Ontario Court of Appeal.
3.
The respondent maintains that notwithstanding the Johnson error, the Ontario Court of
Appeal correctly applied the curative proviso, concluding that upon consideration of the totality
of the record, including the fresh evidence tendered by the appellant, there existed no reasonable
possibility the sentencing judge would have imposed a long-term offender designation.
1
R. v. Johnson, [2003] S.C.R. 357 [Appellant's Book of Authorities, Tab 33]
2
4.
The respondent further submits that the Ontario Court of Appeal correctly held that within
the context of the application of the curative proviso, the validity of the appellant's dangerous
offender designation was to be determined at the time of sentencing and not at the time of the
appeal. The appellate court is not the appropriate forum for a de novo assessment of whether the
appellant has progressed to a point where his status should be reassessed. Rather, it is the task of
the appeal court to identify a legal error and to determine whether the appellant was wrongly
designated a dangerous offender and sentenced to an indefinite period of incarceration because
of that error. Having concluded that the dangerous offender designation was valid at law, the
Court of Appeal for Ontario quite properly dismissed the appeal. The Parole Board of Canada,
in contrast, is the proper forum and vested with the requisite expertise to assess the appellant's
rehabilitative progress and to conduct a present-day risk assessment in the context of determining
possible release into the community.
B.
Statement of the Facts
1. The Appellant's History of Violent and Predatory Sexual Offences
5.
The appellant has a lengthy criminal record of brutal, repeated acts of sexual and physical
violence, spread over a decade, both before and after serving time for sex crimes. He has
victimized nine women. Three were in relationships with him. He had a relationship of trust with
them. Six were strangers. He has inflicted both serious enduring trauma upon his victims.
i)
6.
His First Victim - I.H. 2
In 1977, I.H. and a girlfriend met him in a bar. He was to drive her and two others home.
After dropping off the others, he drove I.H. to a secluded area and made sexual advances. She
refused. He struck her and grabbed her throat. She blacked out. She woke up at roadside. Her
2
Reasons for Sentence- Ontario Court of Justice (General Division), Appellant's Record, Volume 1, pp. 7-8.
3
jeans and panties were on the ground. She walked to a farm and called police. She had bruises on
her chest and throat. He pleaded guilty to common assault.
ii)
7.
His Second Victim- P.N. 3
Before 1979, the appellant and a co-accused picked up P.N., a stranger, at roadside. They
drove her to a field and said they were going to rape her. They stripped her and tried raping her.
She fought back. The two assailants discussed killing her and burying her in the field and/or
burning her body. They drove around and stopped to sleep. The next morning, they drove
around, went to a wooded area, and again stripped her and tried to rape her. They got hockey
tape to tie her to a tree and bound her arms, but then decided not to. They offered $500 if she
agreed to keep her mouth shut. She agreed. They released her. Eventually police were called.
The appellant pleaded guilty to attempted rape.
iii)
8.
His Third Victim - D.B. 4
In 1979, the appellant was behind D.B., a stranger, at the bank. She told a teller she'd be at
a hotel the next evening. The next night, she drove home from the hotel, she saw a car following
her, flashing its lights. When it tried running her off the road, she pulled over and unsuccessfully
tried locking her doors. The appellant dragged her out of her car and into his, striking her head
and face. He said he was going to rape her. He threatened to kill her if she spoke.
9.
He went to his trunk. She tried escaping. He went crazy, dragged her back to his car and
punched her face and head. He put something around her neck and threatened to kill her if she
talked. She screamed. He pulled whatever was around her neck tighter. He forced her into the
back seat, stripped her, and anally raped her, while tightening the restraint around her neck when
she tried to scream. He let her dress and took her to his home. He forced her to bathe, saying it
was to eliminate evidence. She dressed, came out, saw his wife, and managed to leave.
3
4
Reasons for Sentence- Ontario Court of Justice (General Division), Appellant's Record, Volume 1, pp. 8-10.
Reasons for Sentence- Ontario Court of Justice (General Division), Appellant's Record, Volume 1, pp. 10-13.
4
10.
She called police, saying only that he'd run her off the road and assaulted her. In 1979, he
was convicted of common assault. In 1994, she told her husband about the sexual attack. 5
His Fourth Victim- L.C. 6
iv)
11.
In August 1979, he pulled up by L.C., a stranger, asking for directions. He grabbed her
neck and
tri~d
to pull her into his car. She struggled, screamed, broke free and flagged down a
motorist. She alerted police. In 1979, he was convicted of assault.
v)
12.
His Fifth Victim- P .S. 7
In August 1979, he picked up P.S., a stranger, who was hitchhiking. He drove her to a
cornfield and said he wanted intercourse or oral sex. She tried to escape. He dragged her into his
car and forced his penis into her mouth, while fondling her breasts. He later dropped her off on
the road. She later told police. He pleaded guilty to indecent assault.
vi)
13.
His Sixth Victim- C.S. 8
In August 1987, he picked up C.S, a stranger who was hitchhiking. He gave a false name.
She protested when he drove her away from her destination. He made up an excuse. She
protested and asked him to let her out. He grabbed her mouth and ordered her to do what he said
and she won't get hurt. He parked, got rough with her, pulled down her jumpsuit and raped her.
He turned her over and unsuccessfully tried to anally rape her. He vaginally raped her from
behind. She struggled naked out of the car and asked for her clothes. He threw them at her. She
ran to a secluded spot and dressed. A couple saw this and took her to police. He was convicted of
sexual assault.
vii)
5
Reasons for
Reasons for
7
Reasons for
8
Reasons for
9
Reasons for
6
The Predicate Crimes- His Seventh, Eighth and Ninth Victims- Susan C., Cathy S
and Linda N. 9
Sentence- Ontario Court of Justice (General Division), Appellant's Record, Volume 1, pp. 10-13
Sentence- Ontario Court of Justice (General Division), Appellant's Record, Volume 1, p. 14.
Sentence- Ontario Court of Justice (General Division), Appellant's Record, Volume 1, pp. 14-15.
Sentence- Ontario Court ofJustice (General Division), Appellant's Record, Volume 1, pp. 16-18.
Sentence- Ontario Court of Justice (General Division), Appellant's Record, Volume 1, pp. 4-6.
5
14.
From 1975 to 1976, Susan C. (age 15-16) had a relationship with him. From 1977 to 1979,
Cathy S. (age 18-20) had a relationship with him. In 1977, they married. From 1979 to 1982, he
was incarcerated for some of his earlier crimes. After that, from 1983 to 1986, Linda N. (age 1821) had a relationship with him. In 1984, they married. From 1987 to 1993, he was again
incarcerated for other of his earlier attacks. On his release, in 1993 and afterward, he was
charged with the predicate offences.
15.
These victims described his serious physical and sexual violence during their relationships,
including:
a) He raped Susan at another's home. He grabbed and molested her in a van with
a friend there. Possibly the same day as the molestation, he punched her face outside her
grandmother's home;
b) Cathy recounted numerous horrific attacks. Some involved physical violence.
Others involved forced sex including sexual intercourse, anal intercourse and/or
performing oral sex on him. Sometimes his sexual violence was made worse by physical
violence;
c) Linda described many attacks similar to Cathy's.
16.
There were numerous similarities among the attacks each victim endured, subject to the
fact that he could inflict much fewer on Susan in her shorter relationship with him:
a)
Each described his angrily forcing them to participate in sexual activity,
whether or not they wanted to, so long as he wanted sex. His victims' protestations didn't
stop him. All three victims described forced sexual intercourse, his most common form of
violation. Linda and Cathy also described incidents of forced oral sex and attempts at
forcing anal sex;
6
b) He brutally beat Cathy and Linda, at times incapacitating them for days, weeks
or months. He punched or slapped each in the face. Cathy and Linda suffered numerous
such incidents. Susan suffered one;
c) Afterwards he often apologized, expressed remorse and promised to stop. To
Cathy and Linda he'd profess his love;
d) He unleashed a significant temper toward each. Anger about anything could
lead him to be physically or sexually violent, especially at Cathy and Linda;
e) He voiced very strong, irrational jealousy and suspicions of infidelity about
each, if seen with or if they had opportunity to be anywhere near other men. He
baselessly accused each of sexual infidelity. This often resulted in jealousy-driven
physical attacks and at times sexual violence;
f) He had a pattern of verbally abusing and degrading Cathy and Linda. He called
each a slut and whore. He made each feel worthless. He told each they were lucky to
have him;
g) He threatened to kill Cathy and Linda and, at times, made threats regarding
their families or children, if they left him or told others about his violence against them.
He terrified each. He isolated Cathy and Linda from friends and family. Each were afraid
to tell anyone either at all, or about the worst of the violence. Each made up excuses for
the black eyes or other visible signs of his violence. Each was very afraid of him and felt
under his control;
h) In the case of Cathy and Linda, with whom the appellant took up residence
respectively, there was a pattern of frequent moves to new residences.
2. Psychological Findings at the Dangerous Offender Hearing
i.
Evidence in support of the Dangerous Offender Designation
7
17.
Supporting this DO designation were Crown-appointed psychiatrist, Dr. Angus
Macdonald, psychologist Dr. Peter Jaffe (called by the Crown), and psychiatrist Dr. Peter
Collins, whom the Court nominated when the appellant refused to nominate one. The appellant
refused to take part in an assessment by any of these undisputed experts. Defence psychologist
i
Dr. Harold Miller (addressed further below) conceded the possibility of a diagnosis being
formulated by someone who hasn't interviewed the appellant.
18.
Drs. Macdonald, Jaffe and Collins all gave highly damning assessments:
a) Dr. Macdonald found him" ... a psychopathic, sadistic, sexual deviate, a sexual
sadist. He is rape-prone with an extreme potential for violence and definite homicidal
potential." 10 He suffers from an antisocial personality disorder warranting the label of
"psychopath" or "sociopath." He has a life-long incapacity to appreciate social morality.
He tends to use others to satisfy his needs without considering the effect on them. He
uses substantial gratuitous violence, seeming to enjoy inflicting pain and terror.
Extremely ominously, he engages in acts of degradation and humiliation, physical
beatings and choking. 11
Dr. Macdonald testified that the concurrent diagnoses of
psychopathy and sexual sadism creates an especially terrifying scenario. 12
b) Dr. Jaffe said he's consistently been assessed with an antisocial personality
disorder or psychopath (sociopath). He has no concern for his behaviour's impact on
others. The evidence is consistent, with no other explanation for his conduct. 13
c) Dr. Collins gave no diagnosis, not having assessed the appellant. However, by
history, he opined that it's reasonable to conclude that he has a long history of paraphilic
(sexually deviant) behaviour engaging in hyper-dominance, sexually assaultive behaviour
to female partners and strangers. Given his pattern of physical assaultiveness, degradation
and humiliation of his victims, one must consider if he's a sexual sadist. Previous
assessments documented that he appears to meet criteria for an Antisocial Personality
Disorder, also called psychopath or sociopath. It's reasonable to conclude that he was at
10
Reasons for Sentence- Ontario Court of Justice (General Division), Appellant's Record, Volume 1, p. 22.
Reasons for Sentence- Ontario Court of Justice (General Division), Appellant's Record, Volume 1, pp. 22-24.
12
Dr. Angus McDonald Examination In-Chief, Appellant's Record, Volume 2, p. 48, lines 16-18
13
Reasons for Sentence- Ontario Court of Justice (General Division), Appellant's Record, Volume 1, pp. 40-41.
11
8
least rape-prone. His records show that by 1979, he had a provisional psychiatric
diagnosis of "personality disorder with predominantly sociopathic or asocial
manifestations." 14
19.
These three experts gave very negative evidence that he has a high risk to re-offend:
a) They agreed that the best predictor of future behaviour is past conduct. Drs.
Macdonald and Jaffe said predicting likelihood of re-offending isn't easy. Drs.
Macdonald and Collins said it can't be done with certainty, however, Dr. Macdonald said
it can be done with some reliability. 15
b) Dr. Macdonald testified that the mix of psychopathy and sexual sadism
"present the most ominous combination for likely violent recidivism." The combination
of antisocial personality disorder and sexual deviate yields a worse-case scenario. 16 Such
conduct can tend to escalate. Dr. Collins said that paraphilic behaviour combined with
psychopathy lead to a very poor prognosis. 17
c) Drs. Collins and Macdonald considered the appellant more likely to re-offend,
given the greater the number of his victims and the longer his period of offending. His
pattern is pervasive. Exacerbating this is his violence's intensity during some assaults.
Dr. Macdonald testified that the appellant showed failures to restrain his behaviours and
was highly likely to reoffend, causing severe physical or psychological damage to
others. 18 Dr. Collins saw no evidence of any ability to control this while out of jail. The
fact that a number of his offences were committed while on bail or parole for similar
offences is illustrative of the fact that he has no self-control and is a risk to re-offend. 19
d) Similarly, Dr. Jaffe said his high risk ofre-offending is further indicated by the
number of his victims, the fact that some were women with whom he had a relationship
while others were strangers, his threatening to kill two if his victims went to the
14
Reasons for Sentence- Ontario Court of Justice (General Division), Appellant's Record, Volume
Reasons for Sentence- Ontario Court of Justice (General Division), Appellant's Record, Volume
46-47.
16
Reasons for Sentence- Ontario Court ofJustice (General Division), Appellant's Record, Volume
17
Reasons for Sentence- Ontario Court ofJustice (General Division), Appellant's Record, Volume
18
Dr. Angus McDonald Examination In-Chief, Appellant's Record, Volume 2, p. 41, lines 10-18
19
Reasons for Sentence- Ontario Court of Justice (General Division), Appellant's Record, Volume
15
1, pp. 43-47.
1, pp. 27,40 &
1, pp. 23-24.
1, p. 46.
1, pp. 51-52
9
authorities, and his consistently re-offending over time, (not just committing isolated
crimes). Dr. Jaffe testified that judging from the number of victims, the different kind of
victims and the different circumstances under which the crimes occurred, the overall risk
of re-offending is high. His past conduct shows a significant risk of future violence and
potential for it being life-threatening. Likely recurrence is exacerbated by his offences
being motivated at times by jealousy. These aren't just sexual offences, but part of a
pattern of behaviour to control, dominate, humiliate or terrorize a victim. His violent reoffending after a prison term is especially significant. It shows he isn't concerned about
his violence's impact on his victim and its consequences to himself. 20
e) Dr. Macdonald said his likelihood of re-offending into his 50s is high,
exacerbated by factors listed above. He added that as here, the more numerous the
offences, the more likely they recur. Also, his violence is substantially severe. He appears
to have difficulty restraining himself. He shows jealousy and levels accusations of
infidelity related to the assaults. Often those who commit violent sex crimes and are rapeprone need to dominate others, exemplified by infidelity accusations, followed by
physical and/or sexual violence. 21
f) Dr. Macdonald questioned the likelihood of his burning out. There was then no
indication of any bum-out. Dr. Jaffe said there's little or no indication that his behaviour
would change in the immediate or long term future. No data supports a claim that
psychopaths bum out over time, or that there is a magic age when they stop being violent.
Dr. Collins said there is controversy over claims of a bum-out phenomenon. He's
assessed people who commit crimes in their 40s, 50s or 60s. Claims regarding bum-out
concern personality disorder, not as here, the addition of sexually deviant conduct.
Psychopathic character and behaviour can very possibly continue into the fifth and sixth
decades. 22
g) Dr. Collins (with Dr. Macdonald's support) said that the fact that the appellant
is a model prisoner doesn't controvert his findings. Psychopaths and sexual deviants are
20
Reasons for Sentence- Ontario Court of Justice (General Division), Appellant's Record, Volume 1, pp. 40-41;
Dr. Peter George Jaffe Examination In-Chief, Appellant's Record, Volume 3, p. 33, lines 29-33, p. 34, lines 5-11
21
Reasons for Sentence- Ontario Court of Justice (General Division), Appellant's Record, Volume 1, pp. 27-32.
22
Reasons for Sentence- Ontario Court of Justice (General Division), Appellant's Record, Volume 1, pp. 32, 42 &
53.
10
often model prisoners. In prison, his targets aren't available. 23
20.
All three experts concluded that treatment wouldn't materially reduce his risk of re-
offending:
a) Dr. Macdonald said most mental health professionals consider his condition
substantially untreatable. Treatment can't significantly control psychopathic traits, even if
one agrees to it. 24
b) Dr. Collins said an anti-social personality disorder is hard-wired. It's virtually
impossible to change a personality, especially if the person thinks there's nothing wrong
with them. Paraphilic behaviour combined with psychopathy has a very poor prognosis.
Both are difficult or impossible to treat. Paraphilic behaviour is a personality problem.
The behaviour is controllable in some but not in others. If one has rape-proneness that is
paraphilic, it will continue, although the person may learn to control it. The psychopathic
aspect of personality can't be controlled, because it's part of one's character. 25
c) Dr. Jaffe described him as a high-risk offender. His review of the appellant's
file found no basis for optimism about treatability. The appellant can't change his
behaviour, despite severe consequences to himself and his victims. Offenders with his
profile and history have little to gain from mental health professionals. Other than
management and supervision of such high risk offenders, the literature reports no
effective treatment. Research suggests that similar offenders display no change, or an
increase in recidivism? 6 Drs. Jaffe and Collins agreed that few studies support the
likelihood that incarceration or hospitalization reduces likelihood of re-offending. The
prognosis for treating psychopaths is poor. 27
d) Dr. Jaffe said that parole or probation won't likely inhibit his behaviour. Drs.
Collins, Macdonald and Jaffe all found that his re-offending on bail or parole, or after
23
Reasons for Sentence- Ontario Court of Justice (General Division), Appellant's Record, Volume
Reasons for Sentence- Ontario Court of Justice (General Division), Appellant's Record, Volume
25
Reasons for Sentence- Ontario Court of Justice (General Division), Appellant's Record, Volume
56.
26
Reasons for Sentence- Ontario Court of Justice (General Division), Appellant's Record, Volume
27
Reasons for Sentence- Ontario Court of Justice (General Division), Appellant's Record, Volume
24
1, pp. 53-54.
1, pp. 24-25.
1, pp. 49 & 551, pp. 35-36.
1, pp. 39 & 49.
11
servmg pnson time, indicates a poor prognosis for benefiting from treatment or
community supervision. 28
e) Dr. Macdonald said his motivation for treatment wasn't great. Drs. Macdonald
and Jaffe said he seems to have participated in rehabilitation programmes, mostly due to
anticipated benefit of earlier release. He has a record of minimizing his offences and
denying any sexual problem. Dr. Jaffe said in 1992 he showed an increased interest in
treatment. He would have shown progress had he then divulged previously unrevealed
crimes and had he dealt with them. There was no evidence he did this. Institutional
records show no indication of remorse, only deflecting blame. 29
f) Drs. Jaffe and Macdonald said that since he was at times violent when sober,
alcohol doesn't explain his problem. Dr. Macdonald said while alcohol may have played
a role in some offences, there's no clear evidence that intoxication was required, or that
sobriety would cure the problem. Dr. Collins saw no evidence of his ability to control this
if out of prison. While alcohol may have contributed to his conduct, it isn't the cause. 30
g)
Dr. Macdonald discounted sex-drive reducing drugs as a solution for his
sexual deviancy and sadism. He would have to comply with taking these drugs, and be
monitored. That requires his honestly revealing his thoughts and urges. Dr. Macdonald
was seriously concerned about this. In the
p~st
the appellant refused to acknowledge
improper thoughts, and so wouldn't likely be honest when monitored. He was also
concerned about the appellant complying with taking this drug. According to Dr. Collins,
the appellant's merely taking sex-drive reducing drugs won't necessarily stop his reoffending. He'd also have to be motivated not to re-offend, and no longer have the
cognitive distortions associated with his history of rationalizations and justifications. 31
h) Dr. Collins said two 1992 reports on the appellant which were "somewhat
28
Reasons for Sentence- Ontario Court of Justice (General Division), Appellant's Record, Volume
&48.
29
Reasons for Sentence- Ontario Court of Justice (General Division), Appellant's Record, Volume
35-38.
30
Reasons for Sentence- Ontario Court of Justice (General Division), Appellant's Record, Volume
41-42, & 46.
31
Reasons for Sentence- Ontario Court ofJustice (General Division), Appellant's Record, Volume
54.
1, pp. 26, 37, 41
1, pp. 25-26,
1, pp. 23, 29-30,
1, pp. 30-31 &
12
more optimistic" about rehabilitation are mere "islands of optimism in a sea of
pathology." He'd have to see more thanjust a couple ofmonths of such evaluations. One
of these reports was prepared by a person not qualified to self-designate as a
psychologist. 32
ii.
21.
The defence evidence.
The defence called psychologist Dr. Harold Miller. He specializes in psychometric
assessment. The reasons show that the judge didn't find that Miller's evidence refuted Drs.
Collins, Jaffe and Macdonald's evidence.
22.
From a psychometric assessment, Dr. Miller suggested that the appellant isn't a psychopath
and that the risk of violent re-offending is relatively low though not non-existent. He suggested
from a study or studies that there's a possibility of remission as offenders age. He referred to at
least one study finding a high correlation between age and remission of psychiatric disorders. He
thought it was unlikely the appellant would re-offend after a sentence of around 7 years, because
he had received some treatment, was 41 when assessed in 1999, and will have programmes
available in prison. To reduce the risk of repeated violence, the appellant, in custody and on
release, should take a sex offenders' relapse prevention programme, including anger
management. He should refrain from alcohol and non-prescribed drugs "as these would lower his
already tenuous impulse control." He should consider sex-drive reducing drugs. Because ten
years passed since his last attack, this may be significant to recidivism depending on his use of
those years. He thought the appellant's motivation for treatment continues. 33
23.
However, Dr. Miller made several admissions undermining his opinion:
a) He admitted making calculation errors, understating the risk rating. After
correcting them, he had an increased 35% chance of re-offending within seven years, and
32
33
Reasons for Sentence- Ontario Court of Justice (General Division), Appellant's Record, Volume 1, pp. 49-50.
Reasons for Sentence- Ontario Court of Justice (General Division), Appellant's Record, Volume 1, pp. 62-67.
13
a 48% chance within 10 years. Dr. Miller told the appellant the test's purpose. The
manual says this can affect the results. 34
b)
He admitted there was evidence that the appellant had an anti-social
personality disorder but couldn't venture an opinion on it. He couldn't say if the appellant
was a sadistic sexual deviate but would have to question whether he was. If so, it's hard
to treat. He agreed psychopathy is untreatable. He disputed that the appellant is a
psychopath, calling him a sexual offender. 35
c) He agreed that the best predictor of future behaviour is past behaviour, so long
as there are no intervening factors over time, e.g. incarceration or stopping alcohol use. 36
d) He gave a psychometric risk assessment without knowing what caused the
appellant to commit his crimes. When interviewing the appellant, he didn't ask why he
committed them. 37
e) From speaking with the appellant, he said that the appellant recognized he had
a sex and alcohol problem, but still minimized his major crimes and felt he'd been set
up_38
f) He said the appellant is unlikely to re-offend if he gets treatment. He qualified
that without treatment, he'd very likely re-offend, and the benefits of past treatment likely
had evaporated. 39
g) He didn't know the content of the court-ordered Royal Ottawa Hospital
assessment. The. defence blocked the judge from seeing it. That assessment could affect
his opinion. 40
24.
Defence psychologist Dr. Czudner testified that he saw the appellant in weekly group
therapy and individual counselling over 3-4 years. He thought the appellant's motivation to
34
Reasons for Sentence - Ontario Court of Justice (General Division), Appellant's Record, Volume
Reasons for Sentence- Ontario Court ofJustice (General Division), Appellant's Record, Volume
36
Reasons for Sentence- Ontario Court of Justice (General Division), Appellant's Record, Volume
37
Reasons for Sentence- Ontario Court of Justice (General Division), Appellant's Record, Volume
38
Reasons for Sentence- Ontario Court of Justice (General Division), Appellant's Record, Volume
39
Reasons for Sentence- Ontario Court of Justice (General Division), Appellant's Record, Volume
40
Reasons for Sentence - Ontario Court of Justice (General Division), Appellant's Record, Volume
35
1, pp. 72-73.
1, pp. 66-73.
1, p. 65.
1, p. 68.
1, p. 71.
1, pp. 70-71.
1, pp. 71-72.
14
participate seemed genuine. There was no effort to get into the criminal behaviour that put the
participants in jail. The sessions focused more on the offenders' impact on their own families,
not their victims. 41
3. The Fresh Evidence
25.
On appeal to the Ontario Court of Appeal, the appellant tendered a full report by Dr.
McMaster as fresh evidence. The report, while containing positive components, determined that
the appellant's risk to reoffend remains high.
26.
The following factors in the report - considered within the context of the totality of the
record before this Court - militates significantly against any reasonable likelihood that a longterm offender designation would have been ordered:
a) Dr. McMaster concluded that the appellant's risk for violent sexual recidivism remains
high; 42
b) That the most likely scenario for a return by Mr. Sipos are acts of forced oral, vaginal or
anal sex, arising within the context of an intimate relationship with an adult woman something which he has been denied while in custody these past 14 years; 43
c)
Physical coercion to secure sexual compliance appears to be likely; 44
d) Rather than disputing the sentence imposed at First Instance, Dr. McMaster confirms that
Mr. Sipos continues to meet a standard for being found a dangerous offender; 45
e) Notwithstanding, the passage of 14 years during which Mr. Sipos has availed himself of
medical and other treatments, he is not, at present, capable of being successfully controlled
within the community; 46
f) Dr. McMaster truly acknowledges the potential harm that Mr. Sipos poses to the
community is not minor and that if Mr. Sipos were to re-offend, other serious personal
41
Reasons for Sentence- Ontario Court of Justice (General Division), Appellant's Record, Volume 1, pp. 57-60.
Report ofDr. JeffMcMaster, November 30,2010, Appellant's Record, Volume 4, pp. 159-160.
43
Report ofDr. Jeff McMaster, November 30,2010, Appellant's Record, Volume 4, p. 160.
44
Report ofDr. Jeff McMaster, November 30,2010, Appellant's Record, Volume 4, p. 160.
45
Report ofDr. JeffMcMaster, November 30,2010, Appellant's Record, Volume 4, p. 160.
46
Report ofDr. Jeff McMaster, November 30,2010, Appellant's Record, Volume 4, p. 162.
42
15
injury offence could occur; 47
g)
That any possible control within the community would rest upon the continued use of
sexually inhibiting drugs - and that it is far more likely for an individual to discontinue the
use of such drugs when not externally required to take them. 48
h)
Dr. McMaster concludes that Mr. Sipos continues to pose a substantial risk to
reoffend49
4.
27.
Court of Appeal Ruling (2012)
The appellant appealed from the imposition of an indeterminate sentence to the Ontario
Court of Appeal in 2012. The appellant argued that in light of the Johnson error, he was entitled
to a new dangerous offender hearing. This case had not been advanced on the basis of the fitness
of sentence.
28.
Doherty J.A., writing for the unanimous court, held that appellate review is fundamentally
an error correcting exercise. It looks backward to the decision under appeal.
The relevant
question remains whether the court below fell into reversible error when it made its decision.
The possibility that a different decision might be made were the appellant court to consider the
same issue de novo as of the time of the appeal is irrelevant to appellate review. 50 The court
determined that Dr. McMaster's assessment does not cast any doubt on the sentencing judge's
decision to impose an indeterminate sentence and it did not speak to what order could have been
made in 1998 had the trial judge address the long-term offender option.
29. While the court reviewed the fresh evidence tendered by the appellant and acknowledged
his progress, it concluded that an appeal from the original decision is not the appropriate forum
to make a de novo assessment of the appellant's risk. The Parole Board of Canada, in contrast, is
47
Report of Dr. Jeff McMaster, November 30, 2010, Appellant's Record, Volume 4, p. 163.
Report ofDr. JeffMcMaster, November 30,2010, Appellant's Record, Volume 4, pp. 163-164.
49
Report of Dr. Jeff McMaster, November 30,2010, Appellant's Record, Volume 4, p. 165.
50
Reasons for Judgement of the Ontario Court of Appeal (Doherty, Watt and Pepall, JJ.A.), Appellant's Record,
Volume 1, p. 101, para. 21.
48
16
clearly the more suitable forum to bring forward evidence of the appellant's rehabilitative
progress. 51
30.
From the trial judge's analysis of the evidence, the Court of Appeal determined that the
trial judge would have inevitably rejected the long-term offender option for the very same
reasons that he rejected the determinate sentence option. 52 The Court further considered and
then rejected whether there was a reasonable possibility that the trial judge would have made a
long-term offender order if he had the benefit of Dr. McMaster's risk assessment. The Court
noted that despite the positive treatment developments, Dr. McMaster did not believe the
appellant's risk could be immediately controlled into the community. At the time of the appeal,
Dr. McMaster's opinion on any potential release into the community was about six years in the
future.
31. Accordingly, the Court of Appeal ruled that the sentencing judge did not commit a
meaningful error. The appeal was dismissed.
51
Reasons for Judgement of the Ontario Court of Appeal (Doherty, Watt and Pepall, JJ.A.), Appellant's Record,
Volume 1, p. 102, para. 23.
52
Reasons for Judgement of the Ontario Court of Appeal (Doherty, Watt and Pepall, JJ.A.), Appellant's Record,
Volume 1, p. 105, para. 28.
17
PART II: POINT IN ISSUE
32.
This appeal raises two main issues:
1.
Did the Ontario Court of Appeal err by concluding that the fitness of the appellant's
dangerous offender designation must be determined as of the date it was imposed and not
as of the date the appeal was heard?
2.
Did the Ontario Court of Appeal erred by concluding that there was no reasonable
possibility the sentencing judge would have imposed a long-term offender designation?
18
PART III: ARGUMENT
C.
33.
A.
The Nature of Dangerous Offender Appeals Do Not Support a Prospective
Approach
5.
The Role of an Appellate Court is to Review for Errors in Principle
The proper role of an appellate court is to retrospectively review the record for errors made
at the court of first instance. Absent an error in law, the standard of review on a dangerous
offender appeal is whether the sentence was reasonable and supported by evidence. 53 In R. v.
Currie, this Court held that appeals from a dangerous offender designation cannot be interpreted
as calling for the equivalent of a trial de novo. The trial judge is in a unique position to assess
the testimony of each witness. As such, some deference must be given to his or her assessments
of credibility and findings of facts. 54
34.
Appellate courts are not courts of original jurisdiction and should not engage in routine
fact-finding. The respondent submits that courts of appeal must generally confine themselves to
a review of facts concerning the accused and his crimes as they were on the date of sentence.
Accordingly, the validity of the appellant's dangerous offender designation must be determined
as of the date it was imposed. 55
6.
35.
Evidence of Post-Sentence Rehabilitation Is Better Assessed by the
Parole Board
This Court has recognized that appellate courts should not consider fresh evidence in a
manner that usurps the function of the trial judge or fails to afford deference to the factual
findings of the court of first instance. However, in some situations, as acknowledged by Doherty
53
R. v. Currie, [1997] S S.C.R. 260 at paras. 33-35 [Appellant's Book of Authorities, Tab 18]
1bid
55
See: R. v. Greaves, 2007 BCCA 430 at para. 17; R. v. Smith, 2005 ABCA 404 at paras. 6 & 24-27 [Appellant's
Book of Authorities, Tab 65]; R. v. Khemhus, [1994] B.C.J. No. 3050 (C.A.) at para. 8.
54
19
J.A., appellate review does benefit from the reception of fresh evidence. But the admission of
new evidence on appeal must be restricted to exceptional cases. 56
36.
In the context of a dangerous offender appeal, the appellate process ought not to be a forum
to reassess the designation on the basis of the appellant's current rehabilitative progress. Rather,
the role of the appellate process is to determine whether the designation was lawfully and validly
imposed by the court of first instance. The appropriate forum to assess whether the progress of
the offender's rehabilitation has reached a stage where some form of community release might
be contemplated is before the Parole Board of Canada.
57
Indeed, the Parole Board is an expert
tribunal whose very nature and purpose is to determine whether an offender's release from
custody is warranted. 58 As noted by Doherty J.A., this Court in R. v. Lyons1 has stated that the
Parole Board has explicitly recognized in its policy manual that the possibility of parole is
essential to the constitutionality of the dangerous offender provisions. 59
37.
Pursuant to section 761 of the Criminal Code/ a dangerous offender sentenced to an
indeterminate period of imprisonment has a right to have their parole eligibility reviewed. The
review is triggered after the offender has served seven years of the indeterminate sentence.
Thereafter, the sentence must be reviewed every two years.
38.
The Parole Board, along with the experts who participate in the parole process, are in a
better position than an appellate court to assess whether the appellant has progressed, over time,
to a point where his release on some form of community supervision is presently appropriate. 60
The Board is an inquisitorial body that can query whether the offender has partaken in specific
56
R. v. Levesque, 2000 SCC 47 at para. 19 [Appellant's Book of Authorities, Tab 35] quoting R. v. P.S.M, [1992]
O.J. No. 2410 (C.A.).
57
See : R. v. Lyons, [1987] 2 S.C.R. 309 at para. 90 [Appellant's Book of Authorities, Tab 36]; R. v. Smith, supra at
paras. 21-24; Steele v. Mountain Institution, [1990] 2 S.C.R. 1385 (S.C.C.); R. v. T.L., 2008 ONCA 766 at para. 7; R.
v. Berikoft 2007 BCCA 31 at para. 7.
58
Lyons, supra, at para. 90.
Reasons for Judgment of the Ontario Court of Appeal (Doherty, Watt and Pepall, JJ.A.), Appellant's Record,
Volume 1, p. 103 at para. 25.
60
Steele v. Mountain Institution, supra at para. 71.
59
20
treatments and interventions. It will also have the most current information as to the appellant's
medications, treatment, progress, and participation in other programs in the institution, leaving
the Board in the most advantageous position to make the necessary assessments. Accordingly,
the Parole Board is clearly better suited to conduct a full evaluation of the appellant's progress in
detention and to determine whether he has developed true insight into his history and condition.
And most significantly, they are better situated to evaluate and assess the appellant's present risk
to the community.
39.
In the respondent's submission, appellate courts should not operate as a parallel system of
release with the Parole Board. The role of the judiciary in this context is to scrutinize the
Board's decisions and to determine whether the Board properly exercised its jurisdiction in
granting or denying parole. 61
7.
40.
Release by the Parole Board Will be Authorized in the
Appropriate Circumstances
An indeterminate sentence is not a perpetual sentence. The offender faces incarceration
only for the period of time that he poses a serious risk to the safety of society. To release a
dangerous offender while he remains unable to control his actions serves neither the interests of
the offender nor those in the community. 62 If and when an offender meets all the criteria for
release, his release will be authorized.
41.
The appellant submits that offenders serving indeterminate sentences have very little real
prospect of parole and in fact only a small number of dangerous offenders are released by the
Parole Board each year. As Doherty J.A. noted, these statistical probabilities do not speak to a
particular offender's likelihood of release.
It is also not surprising that many dangerous
offenders are not granted parole bearing in mind Parliament's intentions to reserve the
61
62
Ibid, at para. 83.
R. v. Jones, [1994] 2 S.C.R. 229 at para 124.
21
indeterminate sentence for a very small group of offenders "whose personal characteristics and
particular circumstances militate strenuously in favour of indeterminate preventive detention" 63
42.
In R. v. Lyons, 64 this Court similarly conceived of the dangerous offender legislation as
applying narrowly to offenders who are "highly" dangerous.
Dangerous offenders are not
generally suitable candidates for rehabilitation. Consequently very few persons so designated
can be expected to be in a position to produce evidence of positive progress. However, if an
offender does bring forward compelling evidence of post-sentence rehabilitation, such evidence
can properly be tendered before the Parole Board in support of an application for release. There
is simply no basis upon which to conclude that the Parole Board is anything less than fully
competent to carry out their statutory mandate and grant release in appropriate cases.
43.
And of course, the decisions of the Parole Board are by no means isolated from judicial
scrutiny. The proper role of an appellate court is to assume a supervisory function to ensure that
the discretion of the Parole Board is appropriately exercised. For example, in Steele v. Mountain
Institution, 65 this Court determined that the continued incarceration of an offender who met the
release criteria constituted cruel and unusual punishment contrary to section 12 of the Charter.
The Parole Board in Steele had committed notable errors, which violated three requirements of
the Parole Act, s.16(1)(a).
66
In particular, they had not considered i) whether the inmate had
derived the maximum benefit from imprisonment; ii) whether the inmate's reform and
rehabilitation would be furthered by parole; and iii) whether the inmate's release would
constitute an undue risk to society. In that case, the decision of the board was quashed and the
offender was liberated.
44.
Individuals subject to a dangerous offender designation are by no means constrained in
terms of available avenues for the review of their designation. When the claim is that the
63
R. v. Lemaigre, 2004 SKCA 125 at para. 15.
R. v. Lyons, supra, at para. 62.
65
Steele v. Mountain Institution, supra.
66
The Parole Act has since been replaced by the Corrections and Conditional Release Act
64
22
appellant was wrongly sentenced to an indefinite period of incarceration because the trial judge
made a legal error, judicial appellate review is available to identify the error and assess whether
there is a reasonable possibility that the trial judge would have imposed a different sentence but
for the error. This is precisely the circumstances presented in the case at bar. Where the claim is
that the offender's course of treatment during his period of incarceration has progressed to a
point where he may be safely released into the community under some form of supervision, the
Parole Board stands ready to make such a determination.
8.
45.
This case is consistent with other appellate level jurisprudence
The case at bar is not an outlier. The respondent submits that the Ontario Court of Appeal's
ruling is consistent with other appellate jurisprudence on fresh evidence in dangerous offender
appeals 67 :
•
In R. v. TL., the Ontario Court of Appeal dismissed the appellant's appeal despite
a Johnson error. The appellant sought to tender a post-sentence progress report as
fresh evidence. The court held that the Parole Board was the appropriate forum to
assess the new evidence and to use it in a risk evaluation.
•
In R. v. Berikoff, the British Columbia Court of Appeal determined that a postsentence psychiatric report could not reasonably be expected to have affected the
result of the sentencing hearing and accordingly dismissed the appellant's appeal.
The court ruled that had the fresh evidence been before the sentencing judge, the
result would have been the same. The proper forum for review of the appellant's
situation is before the Parole Board.
•
In R. v. Trevor, British Columbia Court of Appeal dismissed the appellant's
appeal despite a Johnson error. The court refused to admit a psychologist's report
67
R. v. T.L., supra; R. v. Berikoff, supra; R. v. Trevor, 2010 BCCA 331; R v. B. (D. V.), 2010 ONCA 291-leave to
appeal to S.C.C refused, [2011] S.C.C.A. No. 207 [Appellant's Book of Authorities, Tab 5]; R. v. Halliday, 2012
ONCA 351 [Appellant's Book of Authorities, Tab 29].
23
as fresh evidence on the basis that it could not reasonably be expected to affect
the result of the case. The court concluded that there was no possibility the
sentencing judge would have made a long-term offender order because the
appellant's risk could not be controlled in the community.
9.
Dangerous Offender Appeals are Different from Appeals as to Quantum
of Sentence
46. The jurisprudence on the admission of fresh evidence in the context of regular sentence
appeals is not directly applicable to appeals from a dangerous offender designation. It was not
the question of fitness, per se, that was before the Ontario Court of Appeal in the instant case,
but the validity of the dangerous offender designation in light of an acknowledged error of
law. The appeal court has no jurisdiction to modify or alter a dangerous offender designation to
reward post-sentence rehabilitative progress. The relief sought here was a new sentencing
hearing based on a Johnson error. As such, the appeal court in the present case was left with the
simple and discreet question of whether the acknowledged Johnson error was such as to mandate
a new hearing. The appellant's fresh evidence was admitted and properly considered within the
context of the application of the curative proviso. The court concluded - based on established
jurisprudence -that a new hearing was not warranted. They committed no error in so doing.
47.
In the context of regular sentence appeals, where rehabilitation has been a paramount
consideration in sentencing, appellate courts may be more receptive to receiving this type of
post-sentence evidence. 68
This Court in Lyons stated, however, that the use of preventive
detention in dangerous offender proceedings represents a judgment that the objective of
prevention is paramount and the objectives of rehabilitation and deterrence are relatively less
.
69
Important.
68
69
R. v. Smith, supra, at para. 25.
R. v. Lyons, supra, at para. 27.
24
48.
Furthermore, in cases where the sentence was varied on appeal because of the offender's
post-sentence progress, the offender was often immediate release into the community. 70 In these
examples, the immediate risks posed by the offender are usually not an issue.
In contrast,
evidence in the case at bar overwhelmingly establishes that the appellant is not presently fit for
release.
D.
The Judgement on Appeal
1. The Ontario Court of Appeal Properly Applied the Curative Proviso
49.
The Ontario Court of Appeal fully canvassed whether the acknowledged legal error could
have reasonably altered the result of the appellant's dangerous offender hearing.
Having
concluded that it did not, the Court properly applied the curative proviso under section
686(1 )(b)(iii) of the Criminal Code.
Under this section, a conviction may be upheld
notwithstanding the existence of an error of law, provided that the error has not resulted in a
substantial wrong or miscarriage of justice. 71 Put simply, the appellant was not improperly
subject to the dangerous offender designation as a consequence of the admitted legal error.
50.
This Court has ruled that the curative proviso applies in situations where there are serious
errors that would otherwise justify a new trial or an acquittal, but for the fact that the evidence
against the accused was so overwhelming that any other verdict would have been impossible to
obtain. 72 Consequently, the fact that an error was made in the dangerous offender proceeding
does not necessarily mean that the dangerous offender designation will be quashed. The curative
proviso is available in cases where the long-term offender provisions were not considered but the
70
See: R. v. Nielson, [1991] B.C.J. No. 3455 [Appellant's Book of Authorities, Tab 47]; R. v. Scanlon, [1995] M.J.
No. 661 [Appellant's Book of Authorities, Tab 59]; R. v. Armistead, 2003 BCCA 699 [Appellant's Book of
Authorities, Tab 4].
71
R. v. Bevan, [1993] 2 S.C.R. 599 [Appellant's Book of Authorities, Tab 10].
72
See: R. v. Khan, [1990] 2 S.C.R. 531; R. v. Van, [2009]1 S.C.R. 716 at para. 34; R. v. Sarrazin, [2011]3 S.C.R. 505
at para. 25 & 27.
25
evidence establishes that the result would necessarily have been the same had the trial judge
turned his mind to such provisions.
51.
The assessment of the application of the proviso is inherently retrospective in nature. The
issue is not what the verdict should be today, but whether the past verdict would have been the
same notwithstanding the error. The appellate courts are to consider the decision at trial and
determine whether, notwithstanding the error, the result would have been the same.
The
respondent submits that after identifying an error of law in a dangerous offender hearing, the
appellate court must look at the nature of the error and any relevant findings of fact by the trial
judge that are not contaminated by the error. Only after that can the court decide whether, on the
evidence before the sentencing judge, it is clear beyond a reasonable doubt that the offender met
all the conditions of a dangerous offender. 73 The test is retrospective - it queries what the
sentencing judge would have concluded had the error not been committed. The test is not and
should not be a de novo assessment of what the sentence ought to be today.
52.
In the respondent's submission, the Ontario Court of Appeal properly applied the curative
proviso in the specific circumstances ofthe appellant's case. The Court of Appeal reviewed the
trial record together with the tendered fresh evidence and determined that there was no
reasonable possibility that the finding at trial would have been different.
53.
This Court held in Johnson that it will only be "in the rarest of cases" that a new dangerous
offender hearing will not be required where the trial judge's error consists of the failure to
consider the long-term offender provisions. 74 This Court stated:
"Where the error of law consists of the sentencing judge's failure to
consider the availability of the long-term offender provisions, it is in only
the rarest of circumstances, if any, that there will be no reasonable
possibility that the sentencing judge would have imposed a different
sentence but for the error. The criteria set out in the long term offender
provisions are substantially different from the criteria set out in the a
73
74
See: R. v. Dow, 1999 BCCA 177 at para. 37; R. v. Miller, 2000 BCCA 329 at para 68.
R. v. Johnson, supra, at para. 50.
26
through inquiry into the suitability of the long-term offender provision at
the sentencing hearing, it will be difficult, if not impossible, for an appellate
court to be satisfied that the sentencing options available pursuant to the
long-term offender provisions would have been incapable of reducing the
threat ofharm to an acceptable level"75
54.
The Ontario Court of Appeal adverted to the ruling of this Court in Johnson and concluded
that the evidence in respect of the appellant's dangerous offender finding was so overwhelming
that any other designation would not be possible. Doherty J.A. observed that at the appellant's
dangerous offender hearing, the sentencing judge considered and rejected the determinate
sentence option.
The only option he did not consider was whether the appellant could be
controlled in the community by the imposition of a determinate sentence followed by a long-term
supervision order. The Ontario Court of Appeal properly concluded that his finding would have
been the same notwithstanding his failure to advert to the LTO designation.
2.
55.
The Court of Appeal properly held that there was no reasonable possibility that
a long-term offender order could have been imposed at the sentencing hearing
The Court of Appeal was not in error when it held that the present day assessment of the
appellant's suitability for community release should be undertaken by the Parole Board of
Canada. The court nevertheless considered whether there was a reasonable possibility that the.
trial judge could have made a long-term offender order if he hypothetically had the benefit of Dr.
McMaster's risk assessment. In the respondent's submissions, Dr. McMaster's report does not
cast any doubt that an indeterminate sentence was appropriate in the 1998 sentencing hearing.
Despite the positive treatment developments, Dr. McMaster believes the appellant is not
presently ready for release into the community.
56.
Dr. McMaster's risk assessment, taken as a whole, could not reasonably be expected to
have affected the result of the sentencing hearing.
At the dangerous offender hearing, the
sentencing judge was not convinced by evidence of "some progress in receiving treatment during
75
Ibid
27
[the appellant's] last incarceration" and the "positive comments contained in the Corrections
Canada file". The judge held that such evidence were merely "islands of optimism in a sea of
pathology". 76 For the same reasons, the sentencing judge would not have found Dr. McMaster's
report persuasive. The core of the doctor's opinion is an expression of hope or optimism that
with the continued use of sexually inhibiting drugs the appellant's management in the
community would be feasible when he reaches the age of 60. The presence of nothing more than
hope or the mere possibility that the offender can be managed in the community is insufficient to
justify imposing a long-term offender order.
57.
An offender who cannot meet the requirement of reasonable control in the community
within the time frame that would be allotted for a long-term offender should be declared a
dangerous offender. 77
In R. v. Pedden/8 the British Columbia Court of Appeal found that
although there was a "possibility" of future treatment, it was unlikely that the offender could be
treated or controlled within the parameters of the appropriate fixed sentence and the supervisory
order. Consequently, the court held that a long-term offender designation was not appropriate.
Similarly, in the case at bar, the Ontario Court of Appeal noted that based on Dr. McMaster's
assessment "on a 'best case' scenario, the appellant's potential for release into the community
was at least some 18 years away in 1998."79 This fell outside the combined timeframe for a
determinate sentence in conjunction with a long-term supervision order. A long term supervision
order is only in effect for up to a maximum of 10 years.
Furthermore, at the end of the
supervision order, a long-term offender remains in the community entirely unsupervised. Dr.
McMaster opined that the appellant would require intensive supervision and diligent monitoring
76
Reasons for Sentence- Ontario Court of Justice (General Division), Appellant's Record, Volume 1, p. 49.
v: B.(D. V}., supra.
R. v. Pedden, 2005 BCCA 121 at para 29.
79
Reasons for Judgment of the Ontario Court of Appeal (Doherty, Watt and Pepall, JJ.A.), Appellant's Record,
Volume 1, p. 108 at para. 34.
77
78
R.
28
in the community ifreleased. 80 One particular difficulty not addressed by Dr. McMaster's report
is whether the appellant could be effectively controlled after a long-term supervision order
expires. By contrast, this difficulty would not arise if the offender was designated as a dangerous
offender.
When a dangerous offender is released back into the community, he or she is
supervised for life.
58.
In determining whether to. designate an offender as a dangerous or long-term offender, a
trial judge must give effect to the basic purpose of the dangerous offender provisions: the
protection of the public. "[I]n a contest between an individual offender's interest in invoking the
long-term offender provisions of the Code and the protection of the public, the latter must
prevail". 81 A judge can only designate an offender as a long-term offender if he is satisfied that
there is a reasonable possibility of eventually controlling the offender's risk of reoffending. If the
trial judge is uncertain whether there is a reasonable possibility of eventual control of risk in the
community, in the respondent's submission, the court is obliged to designate the offender a
dangerous offender and impose an indeterminate sentence. 82
59.
In this case, the safety of the community supports the designation of the appellant as a
dangerous offender at the time of the sentencing hearing. A long term supervision order would
have been an unreasonable gamble on the safety of the community. Consequently, there was no
reasonable possibility that it would have been ordered.
80
81
82
Report of Dr. Jeff McMaster, November 30,2010, Appellant's Record, Volume 4, p. 160 & 162
R. v. Little, 2007 ONCA 548 at para 70, leave to appeal to S.C.C refused, [2008] S.C.C.A. No. 39.
v. Johnson, supra at para. 29.
/bid.; R.
29
PART IV: SUBMISSIONS ON COSTS
60.
The respondent makes no submissions regarding costs.
PART V: ORDER REQUESTED
61.
It is respectfully requested that the appeal be dismissed.
Dated at Toronto, Ontario this
lOth
day of March, 2014.
ALL OF WHICH is respectfully &ubmitted by:
tt;v
Pinn~
Roger A.
Counsel for the Respondent
{
30
PART VI: LIST OF AUTHORITIES
Para(s)
R. v. Armistead, 2003 BCCA 699 ................................................................... 48
R v. B. (D. V), 2010 ONCA 291, leave to appeal to S.C.C refused,
[2011] S.C.C.A. No. 20 ............................................................................. 45, 57
R v Berikoff, 2007 BCCA 31 .......................................................................... 36, 45
R. v. Bevan, [1993] 2 S.C.R. 599 .................................................................... 49
R. v. Currie, [1997] S S.C.R. 260 .................................................................... 33
R. v. Dow, 1999 BCCA 177 ........................................................................... 51
R. v. Greaves, 2007 BCCA 430 ....................................................................... 34
R. v. Halliday, 2012 ONCA 351 ...................................................................... .45
R. v. Johnson, [2003] S.C.R. 357 ..................................................................... 2, 3, 27,
45, 46, 53,
54,58
R. v. Jones, [1994] 2 S.C.R. 229 ..................................................................... 40
R. v. Khan, [1990] 2 S.C.R. 531 ..................................................................... 50
R. v. Khemhus, [1994] B.C.J. No. 3050 (C.A) ...................................................... 34
R. v. Lemaigre, 2004 SKCA 125 ..................................................................... 41
R. v. Levesque, 2000 SCC 47 ......................................................................... 35
R. v. Little, 2007 ONCA 548, leave to appeal refused, [2008] S.C.C.A No. 39 ................ 58
R. v. Lyons, [1987] 2 S.C.R. 309 ..................................................................... 36, 42, 47
R. v. Miller, 2000 BCCA 329 ......................................................................... 51
R. v. Nielson, [1991] B.C.J. No. 3455 ................................................................. 49
R. v. Pedden, 2005 BCCA 121 ........................................................................ 57
R. v. Sarrazin, [20 11] 3 S.C.R. 505 .................................................................. 50
31
R. v. Scanlon, [1995] M.J. No. 661. .................................................................... 49
R. v. Smith, 2005 ABCA 404 ........................................................................ 34, 36, 47
Steele v. Mountain Institution, [1990] 2 S.C.R. 1385 (S.C. C.) .................................. 38, 43
R. v. TL., 2008 ONCA 766 .......................................................................... 36, 45
R. v. Trevor,2010 BCCA 331 ....................................................................... 45
R. v. Van, [2009] 1 S.C.R. 716 ...................................................................... 50