APPEAL NUMBER: 9403-0882-A
IN THE COURT OF APPEAL OF ALBERTA
BETWEEN:
HER MAJESTY THE QUEEN,
RESPONDENT
- and LISA COLLEEN NEVE,
APPELLANT
APPEAL FROM THE SENTENCE BY
THE HONOURABLE MR. JUSTICE MURRAY
DATED THE 17TH DAY OF NOVEMBER, A.D. 1994
SUPPLEMENTARY SENTENCE MATERIALS
OF THE CROWN RESPONDENT
K. TJOSVOLD
AGENT OF THE ATTORNEY GENERAL
3RD FLOOR, 9833 - 109 STREET
EDMONTON, ALBERTA
T5K 2E8
B. BERESH
BARRISTER AND SOLICITOR
#300, 10110 - 107 STREET
EDMONTON, ALBERTA
T5J 1J4
TELEPHONE: (403) 422-5402
FAX:
(403) 422-1 106
TELEPHONE: (403) 421-4766
FAX:
(403) 429-0346
Counsel for the Respondent
Counsel for the Appellant
INDEX
PART l
GROUNDS OF APPEAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
PART II
ARGUMENT: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
A . Was evidence of criminal conduct which did not result in
conviction properly admitted and. in particular. were the
correct procedures followed in the admission of that
evidence? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1
2
Nature of Dangerous Offender Proceedings and
Applicable Rules of Evidence . . . . . . . . . . . . . . . . . . . . . . . 3
Evidence of Other Criminal Conduct Not Resulting
in Conviction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Evidence of Other Criminal Conduct in the Present Case
. .
9
B. Was the psychiatric evidence properly admitted and
considered? Was there a proper factual basis for the
psychiatric opinion? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
C. Alleged Violation of the Appellant's Equality Rights . . . . . . . . 15
Dangerous Offender Criminal Records . . . . . . . . . . . . . . . 15
Section 15 Evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
D. Non-Charter Remedy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
LIST OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
IN T H E COURT OF APPEAL OF ALBERTA
BETWEEN:
HER MAJESTY THE QUEEN,
RESPONDENT
-AND -
LISA COLLEEN NEVE,
APPELLANT
SUPPLEMENTARY SENTENCE MATERIALS OF THE CROWN RESPONDENT
PART I - GROUNDS OF APPEAL:
1.
The present appeal was adjourned and counsel permitted to provide written
argument on grounds of appeal raised by the Court during the hearing of the appeal. The
following grounds were raised:
A. Was evidence of criminal conduct which did not result in conviction
properly admitted and, in particular, were the correct procedures followed
in the admission of that evidence?
B. Was the psychiatric evidence properly admitted and considered? Was
there a proper factual basis for the psychiatric opinion?
2.
In addition, the Court agreed to permit the Crown prosecutor to submit, in lieu
of further oral argument, additional written argument respecting the allegation that the
Appellant's rights under s. 15 of the Charter of Rights and Freedoms were violated.
Supplementary Sentence Materials o f the Crown Respondent
Page 2
PART II - ARGUMENT:
A.
Was evidence of criminal conduct which did not result in conviction properly
admitted and, in particular, were the correct procedures followed in the
admission of that evidence?
3.
The case against Lisa Neve on the dangerous offender application was based
on extensive evidence of prior violent acts, of threats to engage in violent acts and of
psychiatric opinion. The psychiatric opinion, which uniformly indicated a likelihood of
violent future conduct, was based on interviews of the Appellant, psychological testing,
Alberta Hospital records, correctional facility records, records of earlier criminal
proceedings which resulted in conviction and testimony given in the dangerous offender
application. The evidence on the hearing also included the Appellant's diaries or notes
(Exhibits 29 (Extract - Crown's Authorities -TAB 35) and 30 (Extract - Crown's Authorities TAB 36) which had been turned over to Cst. Robertson by the Appellant's roommate with
the Appellant's consent. (A.B. 415-16)
4.
At the opening of the dangerous offender proceedings, 25 exhibits were
admitted with the consent of the defence, Included in those exhibits were the files from
Alberta Hospital and the Remand Centre. Also included were the court records and
transcripts in respect of other proceedings resulting in conviction. (A.B. 276) Exhibits 26
and 27, Young Offender Centres files, were entered without objection. (A.B. 293)
5.
Criminal conduct which did not result in conviction was found in the documentary
exhibits entered with the consent of the defence, in testimony of Crown witnesses, in
statements made by the Appellant and in her own testimony on the dangerous offender
hearing. To determine whether this other violent conduct was properly considered, it is
necessary to appreciate the nature of dangerous offender proceedings and the rules of
evidence which apply on a dangerous offender hearing.
Page 3
Supplementary Sentence Materials of the Crown Respondent
Nature of Dangerous Offender Proceedings and Applicable Rules of Evidence
6.
Dangerous offender applications are considered to be part of the sentence
hearing for the predicate offence. As the Supreme Court of Canada held in R. v. Jones
(1994), 89 C.C.C. ( 3 4 353, at pp. 389-91 (S.C.C.) (Appellant's Authorities - T A B 13), a
dangerous offender application is part of the sentencing process; it does not constitute a
separate charge or proceeding; see also: R.
v. Lyons (1987), 37 C.C.C. (3d) 1 at pp. 21-
23 (S.C.C.) (Appellant's Authorities - TAB 3); Wilband v. R. 119671 2 C.C.C. 6 (S.C.C.)
(Crown's Supplementary Authorities -TAB 1); R.
v. Talbot, [I9951 O.J. No. 850, at para.
9 (Gen. Div.) (Q.L.) (Crown's Supplementary Authorities -TAB 2).
7.
Writing for the Court in Jones, Gonthier J. emphasized that at a dangerous
offender application, like any other sentence hearing, the accused has already been found
guilty of a criminal offence. His status has changed from "accused" to "offender." As a
result, Gonthier J. reasoned, the full panoply of procedural protections available to an
accused at trial, such as evidentiary rules against the admission of involuntary
confessions, hearsay evidence and psychiatric evidence obtained without warnings as to
its possible use in a dangerous offender application, do not apply. He explained the
rationale for this position at p. 396:
"As with all sentencing, both the public interest in safety and the general
sentencing interest of developing the most appropriate penalty for the
particular offender dictate the greatest possible range of information on
which to make an accurate evaluation of the danger posed by the offender.
In the case of dangerous offender proceedings, it is all the more important
that the court be given access to the widest possible range o f information in
order to determine whether there is a serious risk to public safety. If there
is, the dangerous offender sentencing allows the justice system to more
precisely tailor the actual time served by the offender to the threat that he
poses to society. The overriding aim is not the punishment of the offender
but the prevention of future violence through the imposition of an
indeterminate sentence." [Emphasis added]
Supplementary Ssnrence Marsrials of the Crown Respondent
8.
Pap4
It is clear, then, that the evidentiary rules applicable in standard sentencing
hearings are also to be applied in dangerous offender proceedings; see R. v. Hurrie,
[I9971 B.C.J. No. 2633 (S.C.) (Q.L.)(Crown's Supplementary Authorities - TAB 3).
9.
The general scope of evidence to be considered at dangerous offender
proceedings is set out in s. 755(1) of the Criminal Code. That provision states:
"755. (1) On the hearing of an application under this Part, the court shall
hear the evidence of at least two psychiatrists and all other evidence that, in
its opinion, is relevant, including the evidence of any psychologist or
criminologist called as a witness by the prosecution or the offender."
[Emphasis added]
10.
In addition, s. 757 of the Code permits the Crown to adduce evidence of the
offender's character. It reads:
"757. Without prejudice to the right of the offender to tender evidence as to
his character and repute, evidence of character and repute may, if the court
thinks fit, be admitted on the question of whether the offender is or is not a
dangerous offender."
11.
These provisions set out a very broad test for the admissibility of evidence at
dangerous offender applications. In addition to psychiatric and character evidence, they
mandate the admission of all other "relevant" evidence.
12.
Rules of evidence applicable on a sentence hearing were codified in the re-
enactment of the Part XXlll of the Criminal Code which came into force on September 3,
1996.' The case law and the re-enactment (ss. 723(2) and (5)) both confirm that all
"relevant" evidence is to be admitted, including hearsay evidence. The new legislation
codifies the common law principle authorizing the acceptance of credible and trustworthy
hearsay evidence at a sentencing hearing; R. v. Albright (1987), 37 C.C.C. (3d) 105
(S.C.C.) (Crown's Supplementary Authorities - TAB 4); R.
v. Gardiner (1982), 68 C.C.C.
(2d) 477, at p. 514 (Appellant's Supplementary Authorities - TAB 5). As Dickson J. (as
he then was) stated in Gardiner, supra, at p. 514:
"It is a commonplace that the strict rules which govern at trial do not apply
at a sentencing hearing and it would be undesirable to have the formalities
and technicalities characteristic of the normal adversary proceeding prevail.
The hearsay rule does not govern the sentencing hearing. Hearsay evidence
may be accepted where found to be credible and trustworthy. The judge
traditionally has had wide latitude as to the sources and types of evidence
upon which to base his sentence. He must have the fullest possible
information concerning the background of the accused if he is to fit the
The relevant provisions read as foilom:
723. (1) Before determining the sentence. a court shall give the prosecutor and the offender an opportunity to make
subm~ssionswith respect to any facts relevant to the sentence to be imposed.
(2) The court shall hear any reievant evidence presented by the prosecutor or the offender.
(5) Hearsay evidence is admlssibie at sentencing proceedings but the court may
justlce compel a person to testlfy
t i
~tconsiders it to be ln the interests of
724. (1) in determining a sentence, a court may accept as proved any information disciosed at the tnal or at the sentence
proceedings and any facts agreed on by the prosecutor and the offender.
(3) Where there is a dispute wlth respect to any fact that is relevant to the determination of a sentence
(a)
(b)
the court shall requestlhat the endence be adduced as to the existence of the fact unless the court is satisfied that
sufficient evidence was adduced at the trial;
the party wishing to rely on a reievant fact, including a fact contained in a presentence report, has the burden of
prowng it;
.. .
(4
(e)
subject to paragraph (e), the court must be satisfied on a balance of probabilities of the existence of the disputed
fact before relying on it in determining the sentence; and
the prosecutor must establish, by proof beyond a reasonable doubt, the existence of any aggravating fact or any
previous conviction by the offender.
726.1 in determining the sentence, a court shail consider any relevant information placed before it, including any
representations or submissions made by or on behalf of the prosecuior or the offender.
Supplementary Sentence Materials of the Crown Respondent
Page 6
information concerning the background of the accused if he is to fit the
sentence to the offender rather than to the crime."
13.
Notably, the Code does not seem to contemplate the holding of a voir dire to
determine the admissibility of evidence proffered at a sentencing hearing. Section 723
implies quite strongly that disputes as to the credibility or strength of evidence are to be
addressed by the court as a matter of weight, not admissibility. This was recently
confirmed in Hurrie, supra. There the court noted that Gardiner had held that hearsay
evidence must be "accepted" (not "admitted") if it is credible and trustworthy. Obviously,
the reliability of evidence cannot be assessed unless it is first admitted. The only
precondition to the admission of hearsay in a sentencing hearing (including a dangerous
offender application), therefore, is relevance; Hurrie, supra, at paras. 24-28.
Evidence o f Other Criminal Conduct Not Resulting in Conviction
14.
Courts have consistently held that evidence of crimes or wrongful conduct not
resulting in criminal charges is admissible in dangerous offender proceedings. In R. v.
Latham (1987), 47 Man. R. (2d) 81 (Crown Authorities -TAB 16), at pp. 112-13 (Q.B.),
affirmed (8 March 1988), No. 243187 (C.A.), leave to appeal to S.C.C. refused (1988), 57
Man. R. (2d) 159n, the court rejected the argument that the admission of this type of
evidence in a dangerous offender proceeding violates s. 7 of the Charter. The Ontario
Court of Appeal reached the same conclusion in R. v. Lewis (1984), 12 C.C.C. (3d) 353
(Ont. C.A.), appeal to S.C.C. abandoned 25 C.C.C. (3d) 288n (Crown's Supplementary
Authorities -TAB 5). These decisions confirmed the pre-Charter position as pronounced
in cases such as R. v. Kanester, [I9681 1 C.C.C. 351 (B.C.C.A.) (Crown's Supplementary
Authorities -TAB 6) and R. v. Maclnnis (l981), 64 C.C.C. (2d) 553 (N.S.S.C. App. Div.)
(Crown's Supplementary Authorities -TAB 7).
Supplementary Sentence Materials o f the Crown Respondent
15.
Page 7
In R. v. Kanester, supra, the court held that the admission of this type of
evidence was mandated by the evidentiary provisions of the extant preventative detention
provisions of the Criminal Code. The Court explained as follows at p. 354:
"Counsel says, in effect, that the only evidence that can be given describing
incidents of this kind are with respect to incidents where a conviction has
been recorded against him. I cannot agree with this submission because
when I turn to s. 661(2), 1 find that it says this:
'(2) On a hearing on an application under subsection (1) the Court
shall hear any relevant evidence, and shall hear the evidence of at
least two psychiatrists.'
I italicize the words,'any relevant evidence'. In my view it was relevant
evidence that was given by Mrs. Settle from which an inference could be
drawn this man had, within the meaning of the definition of dangerous sexual
offender, on occasion in the past failed to control his sexual impulses, and,
further, that it was also relevant to the question as to whether or not it was
likely in the future that he would inflict pain or suffering as a result of his
future failure to control his sexual impulses."
16.
As the Ontario Court of Appeal observed in R. v. Lewis, supra, evidence of
other instances of misconduct may also be indicative of the offender's "character and
repute", the admission of which is also approved by s. 757 of the Code. "Evidence as to
other incidents," the Court reasoned further at pp. 357-58, "may be of considerable
importance in establishing 'a pattern of repetitive behaviour by the offender' under s.
688(a)(i), 'a pattern of persistent aggressive behaviour by the offender' under s. 688(a)(ii),
or 'a failure to control his sexual impulses' under s. 688(b)."
17.
Where the Crown seeks to adduce such evidence, of course, it must do so in
accordance with the regular rules of evidence; R. v. Jackson (1981), 61 C.C.C. (2d) 540
(N.S.S.C. App. Div.) (Appellant's Supplementary Authorities -TAB 4). As noted above, it
is the Crown's position that it is the rules of evidence for sentence hearings and not for the
determination of guilt or innocence which apply on the dangerous offender hearing.
Supplemenfary Senfence Materials o f rho Crown Respandenr
18.
Page 8
The Appellant argues that Justice Murray did not follow the proper procedure
for the admission of evidence of criminal conduct which did not result in conviction, citing
R. v. Teskey (l995), 176 A.R. 4 (Appellant's Supplementary Authorities - TAB 2 ) . In that
decision, Nash J. confirmed that evidence of the conduct of the offender that did not result
in criminal charges is admissible in a dangerous offender proceeding. The issue before
her, however, was the admissibility of evidence of a criminal charge scheduled for trial.
She held that such evidence is inadmissible until there has been a conviction, the charge
has been withdrawn or the Crown has undertaken not to proceed with the prosecution. If
such evidence was admissible, she reasoned, there would be a danger of inconsistent
verdicts.
19.
The Appellant argues for a much broader rule respecting the admission of
evidence of criminal conduct for which the offender has not been charged. The fact that
the Crown has not yet laid a charge, she maintains, provides no assurance that it will not
pursue charges at a later date. The potential for inconsistent verdicts thus remains.
20.
This argument, along with the Appellant's further argument that the admission
of this type of evidence subverts the offender's right to a jury trial and various other
procedural rights, fundamentally misconceives the purpose and effect of dangerous
offender proceedings. As La Forest J. emphasized in R. v. Lyons, at pp. 16-17, supra
(C.C.C.),the purpose of preventative detention legislation is not to punish the offender for
past criminal behaviour that is not the subject of the dangerous offender application.
Rather, its primary purpose is to protect the public from criminals who are likely to
constitute a significant danger to the public if released from prison. It is not a violation of
principles of fundamental justice, La Forest wrote at p. 22 to impose a sentence that is "not
entirely reactive or based on a 'just deserts' rationale." "Preventative detention . . .", he
continued at p. 22, "simply represents a judgment that the relative importance of the
objectives of rehabilitation, deterrence and retribution are greatly attenuated in the
circumstances of the individual case, and that of prevention, correspondingly increased."
Sup~lernsnrarySentence Materials o f fhs Crown Respondent
21.
Page 9
In this context, it is clear that the purpose of taking "other" misconduct into
account is simply to aid in the determination of the offender's dangerousness. It is not, as
in standard sentencing proceedings, to punish the offender for the "other" misconduct
based on the proportionality or 'Tust deserts" principle. Consequently, there is no need to
observe the same procedural safeguards - such as ensuring that the offender admits to
committing a distinct offence and that no further prosecution will result - that apply where
the Crown seeks to adduce evidence of untried offences in standard sentencing
proceedings and to have punishment imposed for that other conduct. Because the
offender is not being punished for that misconduct, it is not necessary to either establish
that the facts constitute a criminal offence or to guarantee that offender will not be
prosecuted for that misconduct.
Respecting the procedure on an ordinary sentence hearing, see: R. v.
Stevens [I9941 M.J. No. 31 1 (Man. C.A.) (Appellant's Supplementary
Authorities -TAB 3), s. 725(1)(c) and (2).'
Evidence of Other Criminal Conduct in the Present Case
22.
To determine whether Justice Murray erred in admitting or considering instances
of criminal conduct which did not result in conviction, it is necessary to carefully consider
the trial record. For example, the Appellant complains of 3 instances when such evidence
was admitted. However, in each of these cases the Appellant did not dispute the evidence
lead by the Crown.
725(1)
In determining the sentence, a court
( c ) may consider any lacts forming part of the circumstances of the offence that could constitute the basis for a separate
charge.
j ine d x n a t c n or
(2) Tns c c i R sna Tote an, facls consaerea n ae!erv nng me sentence .naer paragrapn . l . ~ con
narc!ment ana r o fLcner proceedings r a , be t a e n ~ t f respect
l
to the clner offerce .n'ess m e con, c!.on for :he
offence of which the offender has been found guilty is set aside or quashed on appeal
Supplsmsnrary Senrencs Marerials of the Crown Respondent
23.
Page I 0
The first example is the evidence of T. P. (Shelly) that the Appellant tied her
naked to a bed in a hotel room on the pretext that they were awaiting a "john." The
Appellant admitted in her testimony that this incident occurred. Her account of the
incident, moreover, revealed that she had intended to "scare" T.P., "hit" her and "probably
beat her up" (A.B. 1286-87). While there was some dispute as to whether this incident
was a manifestation of sexual sadism, Murray J. did not refer to this controversy in his
reasons. He simply noted that the incident occurred and adverted to the expert testimony
explaining that "taping up another person, naked" should be interpreted as an attempt to
humiliate that person. (A.B. 1938-39) The event itself was not in dispute and the quest~on
of motive would have been a matter of inference for the Trial Judge.
24.
The second example cited is evidence that the Appellant had been cruel to
animals. However, Justice Murray's reasons clearly indicate that he did not consider the
possibility that the Appellant actually had been cruel to or had killed animals. "I am
proceeding on the basis," he stated at p. 1945, line 13, "that she has not in fact killed
anyone or any animals but rather repeatedly fantasizes that she has or wishes to do so."
"It is in that context only," he continued at p. 1946, line 8, "that I have considered the
evidence of killing and maiming people and animals apart from those which we know
happened." Counsel for the Appellant did not dispute the fact that the Appellant made
these statements (A.B. 1904127-34). The significance of the statements may have been
in issue, the fact that they were made was not.
25.
The third example cited by the Appellant is Justice Murray's reference to
evidence that, during the time that the Appellant had stopped working as a prostitute and
was "taken under the wing of two lawyers," she continued "jacking up" prostitutes and
"ripping o f drug dealers. (A.B. 1937) The Appellant admitted to this activity in her direct
testimony (A.B. 1307-08).
Supplsrnenfary Ssnfence Materials of the Crown Respondent
26.
Page 1 1
While there was substantial evidence of the Appellant's violent conduct, some
of which did not result in charges, it was largely undisputed. The bulk of the Appellant's
testimony did not dispute the alleged conduct but rather provided excuses or explanations
for the conduct.
Of course Justice Murray was not bound to accept those explanations
and it is apparent that he found the Appellant to be an incredible witness. It is submitted
that evidence of this other conduct was properly admitted and considered as a part of this
sentencing process.
5.
Was the psychiatric evidence properly admitted and considered? Was there
a proper factual basis for the psychiatric opinion?
27.
The Appellant maintains that the psychiatrists who testified as to the Appellant's
dangerousness should not have considered reports and files of other psychiatrists,
evidence relating to unproven charges and transcripts of previous proceedings. The
Appellant argues that reliance upon such evidence resulted in the expert opinions carrying
little or no weight and that Justice Murray did not consider whether there was a factual
basis for the psychiatric opinion.
28.
The limitations that the Appellant would impose on the material that should be
considered by expert witnesses are not supported by the case law. In R. v. Wilband,
supra, the Supreme Court dealt head-on with the question of whether psychiatrists called
upon to evaluate an offender's dangerousness may rely on hearsay material. Writing for
a unanimous Court, Fauteux J. stated the following at p. 11:
"Dealing with hearsay: The evidence, in this case, indicates that to form an
opinion according to recognized normal psychiatric procedures, the
psychiatrist must consider all possible sources of information, including
second-hand source material, it is none the less an opinion formed
according to recognized normal psychiatric procedures. It is not to be
assumed that Parliament contemplated that the opinion, which the
psychiatrists would form and give to assist the Court, would be formed by
Supplsrnsnrarv Sentence Marsrials o f the Crown Respondent
Page 12
methods other than those recognized in normal psychiatric procedures. The
value of a psychiatrist's opinion may be affected to the extent to which it may
rest on second-hand source material; but that goes to the weight and not to.
the receivability in evidence of the opinion, which opinion is no evidence of
the truth of the information but evidence of the opinion formed on the basis
of that information."
See also: R. v. Kanester, supra, at p. 355; R. v. Boyd (1983), 8 C.C.C. (3d)
143, at pp. 146-48 (B.C.C.A.) (Crown's Supplementary Authorities -TAB 8);
R. v. Talbot, supra, at para. 41
29.
This jurisprudence is consistent with decisions dealing with the use of expert
testimony in other types of cases. In R. v. Lavallee (1990), 76 C.R. (3d) 329 (S.C.C.)
(Crown's Supplementary Authorities - TAB 9), the Supreme Court held that weight can be
given to an expert opinion notwithstanding that all the facts forming the basis of the opinion
are not independently proved, provided that there is "some admissible evidence to
establish the foundation for the expert's opinion" and a warning is given to the jury that
facts not independently proved cannot be taken as true. In coming to this conclusion, the
Court clarified that its earlier decision in R. v. Abbey (1982), 68 C.C.C. (2d) 394 (S.C.C.)
(Appellant's Supplementary Authorities - TAB l o ) , should not be interpreted (as some
courts had thought) as requiring proof of all the facts upon which an opinion was based
before the opinion could be given any weight; see: R.J. Delisle, "Lavallee: Expert Opinion
Based on "Some Admissible Evidence" - Abbey Revisited" (1990), 76 C.R. (3d) 366
(Crown's Supplementary Authorities - TAB 10); see also: R. v. Lupien, [I9701 2 C.C.C.
193 (S.C.C.) (Crown's Supplementary Authorities -TAB 11); St. John (City) v. Irving Oil
Co. (1966), 58 D.L.R. (2d) 404 (S.C.C.) (Crown's Supplementary Authorities - TAB 12).
30.
This Court's decision in R. v. Rodger (1987) 80 A.R. 79 (C.A.) (Appellant's
Supplementary Authorities -TAB 9), if it is to be taken as indicating that all of the facts
upon which an expert opinion is based must be independently proved before the opinion
can be given any weight, would be overruled by Lavallee. Furthermore, it is not clear from
psychological tests, police reports and penitentiary service reports, was tendered in
evidence or whether its credibility was disputed by the offender at the dangerous offender
proceedings. It is also apparent that, unlike the situation in the present appeal, the
psychiatrist was not permitted to interview or test the offender personally. As a result, it
is doubtful whether the case supports the general proposition that psychiatric evidence
based in part on "hearsay" can not be part of the materials which form the basis of
psychiatric opinion in a dangerous offender proceeding.
31.
Here the material to which the Appellant points was admitted in evidence
according to the rules of evidence applicable to a sentence hearing. Much of it was
admitted with the agreement of defence c ~ u n s e l .On
~ dangerous offender proceedings,
one can easily see the tactical advantage of agreeing to the admission of transcripts and
files to avoid the full weight of additional adverse psychiatric testimony and vive voce
evidence from other victims.
32.
Where the psychiatric testimony was based on documentary material admitted
with the consent of the defence and on evidence given at the dangerous offender
proceeding, the experts misapprehension of that material or reliance on evidence that is
not accepted by the sentencing judge could certainly affect the weight of the experts
opinion. The possibility of such a misapprehension is, of course, open to exploration in
the ordinary course of the adversary process. Through cross-examination and argument,
the misapprehension may be exposed and the trier-of-fact may then determine the weight
to be given to the opinion.
33.
Where, as in the present case, the psychiatrists have advised the Court of the
material upon which their opinions are based and the material is properly in evidence,
-
R. v. Canning [I9661 d C.C.C. 379 (B.C.C.A.) (Appellant's Supplementary Authorities TAB 7), which is cited for the
Appellant, may be distinguished because transcripts of proceedings on the predicate offence were admitted there, over the
objection of defence counsel, by a magistrate who had not heard the evidence.
Supplsmsnrary Sentence Materials of the Crown Respondent
Page 14
there is no reason to presume that they have misapprehended that material. Even if the
evidence disclosed such a misapprehension, there is no reason to assume that Justice
Murray was not aware of the law as stated in Lavallee and alert to the need to consider
how the weight of the evidence should be affected. For example, the Crown psychiatrists
advised that they reviewed transcripts of proceedings which resulted in earlier convictions.
Those transcripts included the findings made on the earlier proceedings. There is no
reason to conclude that the psychiatrists did not review findings of the trial judge or that
they based their opinions on evidence which was rejected.
34.
During the course of oral argument in the present appeal, the panel expressed
concern that the psychiatric opinion may have been affected by a misapprehension of the
circumstances of the Appellant's threats to Sterling Sanderman and his children. Dr. FlorHenry and Dr. O'Mahoney gave opinion evidence but also witnessed the threats which
resulted in charges. They concluded that the threats were seriously made. The original
trial judge accepted that evidence. (Crown Authorities -TAB 31) On the conviction appeal
in that case, this Honourable Court did not appear to interfere with the trial judge's finding
of credibility. (R. v. Neve (1993) 87 C.C.C. (3d) 190 (Crown's Supplementary Authorities TAB 13)) The trial judge's findings were not disturbed on the sentence appeal either. (R.
v. Neve (1994) 157 A.R.; 77 W.A.C. 182 (Crown's Supplementary Authorities - TAB 14))
It is submitted that there is nothing in the record to indicate that the psychiatric testimony
was based on a version of the offence which was not proved
35.
As is noted above, s. 755(1) of the Code and cases such as R. v. Jones, supra,
dictate that the "greatest possible range of information" should be considered on a
dangerous offender application. In the present case, psychiatric opinion and the ultimate
decision rested on an extensive evidence of the Appellant's history. Much of the evidence,
particularly the trial transcripts, hospital records (including other psychiatric opinion) and
corrections records, was entered by consent as part of this sentencing process. The
psychiatrists should not be expected to recite every detail that influenced their opinions.
Supplementary Sentence M a l s h l s of the Crown Respondent
Pags 15
Nor is the trial judge expected to review every item of evidence which might have affected
his conclusion; R. v. C m i e [I99712 S.C.R. 260 at p. 282 (Crown Authorities -TAB 2). In
the absence of demonstrated error in Justice Murray's appreciation of the psychiatric
evidence and its limitations, it is submitted that the psychiatrists' use of trial transcripts
from earlier proceedings, evidence of acts that did not result in conviction or other
psychiatric opinions contained in hospital records, does not justify appellate interference.
C.
36.
Alleged Violation of the Appellant's Equality Rights
The following is submitted pursuant to a suggestion by the panel, made during
the hearing of the sentence appeal, that the Crown could provide, in lieu of further oral
submissions, additional written argument on the alleged violation of the Appellant's rights
under s. 15 of the Charter.4
Dangerous Offender Criminal Records
37.
The Court has been provided with copies of criminal records for individuals
sentenced as dangerous offenders or dangerous sexual offenders in Canada. In the
Respondent's Sentence Materials at pp. 42 to 43, it is argued that the Appellant should not
be permitted to apply for the first time on appeal for a remedy under s. 24(1) of the Charter.
It was not intended that, by providing the records, this argument would be in anyway
abandoned by the Crown. In addition to the concern that the Appellant should not be
permitted a "second shot" in the absence of any intervening change in circumstances, the
Respondent maintains the position that there is no sufficient evidentiary base for the
Charter application
15(1)
Every indiiual is equal k f w e and under the law and has the right to the equal protection and equal benefit of the
lawmthout discnmimtbn and, In particular, without discrimination based on race, national or ethnic origin, colour.
religion, sex, age or mental or physical disability
(2)
Subsection (1) does not preciude any law, program or actiity that has as its object the amelioration or condirtions
of disadvantaged i n d ~ d u a l or
s groups including those that are disadvantaged because of race, national or elhnlc
origin, colour, religion. sex, age or mental or physical disability
Supplementary Sentence Materials of the Crown Respondent
38.
Page 16
The case against the Appellant was not only supported by her record of criminal
convictions and other violent conduct, but also upon psychiatric opinion which was, in turn,
based on a wide range of information apart from the record of criminal convictions. Not
only is the Court without the means to assess the seriousness of the offences found in the
filed dangerous offender records, there is no means to compare the other circumstances
which signified the Appellant's dangerousness against those of other dangerous offenders.
39.
The Crown also maintains the position that the Court should not take judicial
notice that there are men against whom a stronger dangerous offender case could be
made and the Crown has not proceeded against those men. For example, though it may
be that there are male pimps who should also be the subject of dangerous offender
proceedings and who have not been, this Honourable Court has no evidence to show that
the Crown could make out a stronger case against such an individual, having regard to the
totality of the evidence of dangerousness. The type of inquiry and evidence which would
be required to properly assess the allegation is not, it is submitted, appropriate to the
appeal process.
Section 15, Charter of Rights and Freedoms
Section 15 Evidence
40.
Should the Court chose to reject the Crown submission above and to hear the
Appellant's application for Charter relief, the following is offered, in addition to the
argument found at pp. 43 to 4a5 of the Respondent's Sentence Materials. The allegation
of the violation of the Appellant's equality rights is founded upon reasoning similar to that
found in Lisa Neve: Dangerous Offender or Dangerous Woman? A Case Comment,
Suzanne Solomon. For that reason alone, the paper requires careful scrutiny. It should
Cwnsel for the Respondent takes this opportunity to point out that the Crown Sentence Materials enoneousiy refers to Dr.
Arboleda-Florez at p. 48, para. 141. The reference should be to Dr. Flor-Henry.
Supplementary Sentence Materials of rhs Crown Respondent
Page 1 7
be noted, however, that the authots appreciation of the evidence appears to be based on
the Reasons for Judgement given on the dangerous offender application and on
newspaper reports. It is from this understanding of the case that Ms. Solomon attacks
Justice Murray's findings, the psychiatric testimony and even the Appellant's parents.
Again, there is, at the appellate stage, no opportunity for those individuals to respond to
these assertions.
41.
Ms. Solomon draws a number of unsupported inferences from Justice Murray's
comments and has a poor understanding of the evidence. The following examples are
typical of the error found in the paper:
a) Reference to Lisa Neve as an "enforcei'. (pp. 9-10 and footnote 26) Ms.
Solomon appears to doubt that the Appellant was an "enforce? and that
she "jacked-up" prostitutes. The fact that the Appellant "jacked-up"
prostitutes was admitted. She told Det. McCartney that she robbed
prostitutes. (A.B. 1307) There is no dispute that the Appellant, though
she was capable of supporting the "downtrodden", also committed many
violent acts of dominance and control. The Court is urged to look back
to the Statements of Fact as to the circumstances of the Appellant's
violence, but also to the testimony of Emery Ewanyshyn, Det. McCartney,
Cst. Robertson and the expert opinion. This evidence fully supports the
conclusion that the Appellant was an enforcer and a dominant player in
a criminal environment.
b) Punishing the Appellant for her fantasies. (pp. 13,17) The suggestion
that Lisa Neve was punished for her fantasies shows a misunderstanding
of the dangerous offender process, of Justice Murray's findings and of
the evidence. The Appellant's total preoccupation with violence, together
with the violent acts she committed, wereiaken into account in assessing
Supplsmsntary Sentence M a t e r k l s of the Crown Respondent
the risk that she posed. The focus of the proceeding was the protection
of the public and not the punishment of the offender. She was not.
punished for her thoughts but, at the same time, the psychiatrists and the
Trial Judge were not obliged to ignore her expressed preoccupation with
violence in determining whether she was a danger to the public.
c) Currie. (p. 14, footnote 41) The Ontario Court of Appeal decision in
Currie is cited as an example of a man whose dangerousness
designation was overturned in spite of a record involving particularly
violent acts. Currie has been since overturned in the Supreme Court of
Canada.
d) "Bad" woman. (p. 15 and footnote 51) Ms. Solomon accuses Justice
Murray of hiding behind "objective and neutral language" -apparently, in
her mind, the use of such language signals bias. The fact that Justice
Murray said, after referring to the Appellant's youth, that it was distasteful
to find an indeterminate sentence appropriate (A.B. 1971147-1972-3) or
that he felt the Appellant's many references to killing and maiming were
"most depressing" (A.B. 194515-15) is apparently problematic. Justice
Murray's accurate statement that the prospect of successful treatment
was "bleak (A.B. 1968143-47) or even his reference to Detective
McCartney as a "female police officer" is cited as grounds to infer that he
sentenced the Appellant as a "bad" woman, this being Ms. Solomon's
term and not Justice Murray's. It is submitted that the author is prepared
to make the accusation of bias on the slimmest grounds.
e) "Torrid relationship". (p. 16) The following comment apparently justifies
the conclusion that Justice Murray eroticized the violence that the
Appellant caused and suffered:
Pspe 18
Supplementary Sentence Materials o f the Crown Respondent
Page 19
"Ms. Neve moved in with her pimp, Richard Jacobson, in
the fall of 1991. This was apparently a torrid relationship.
Ms. Neve testified that they fought constantly and she was
repeatedly assaulted." (A.B. 1937123-26)
It is the use of the terms "tempestuous" and "torridn6that draws Ms.
Solomon to the conclusion that Justice Murray perceived dangerousness
because he relied on a stereotype of female sexuality as "wild,
uncontrollable and in need of taming". Again it is submitted that this is
a totally unsupported inference.
f) "Sadistic". (p. 16) Ms. Solomon doubts whether Justice Murray would
find men who tied up a woman and left her in a field to be sadistic to the
same extent or sadistic at all. There is no support for this conclusion.
g) "Power person". (p. 16) The paper indicates that aggressiveness,
leadership and powerfulness are considered positive male qualities. Ms.
Solomon neglects the context and the fact that judges do not regard
those features as positive when they are evidenced in violent crime.
42.
The Solomon paper is also critical of the psychiatric opinion.
In fact, Ms.
Solomon offers opinions which would, in the ordinary course of criminal proceedings,
require that she be qualified to give expert opinion. Not only that, the psychiatric experts
called on the dangerous offender proceeding had no opportunity to respond to her
allegations.
There has been no opportunity to assess her credibility against the
psychiatrists who gave evidence under oath. It is the Crown's position that this "expert
evidence" should not be considered at all on this appeal.
The Shorter Oxford English Dictionary defines the term Yorrid" as including " h o t in lemper or passion: ardent, zealous:
Suppiemsnfarv Sentence Materials o f the Crown Respondent
43.
Page 20
Even if it was appropriate to consider Ms. Solomon's comments on the
psychiatric evidence, many of them are simply wrong. For example, at p. 20 she advises
that Justice Murray applauded the objectivity of the Hare PCL-R Test. In fact Justice
Murray recognized that the testing was a subjective process and that the checklists are
simply designed to introduce a degree of objectivity. (A.B. 1953128-37) Justice Murray's
rejection of "brain state" study as a useful tool is interpreted to mean that he applauded
that test's objectivity as well. (A.B. 195418-12) At p. 23, a quote from Dr. Flor-Henry, which
when read in context, indicates that the Appellant's behavioural pattern of conduct disorder
began characteristically at around the age of 12 with the onset of puberty becomes support
for the assertion that the Appellant's promiscuity "provoked much speculation and
analysis". (A.B. 1953118-26)
44.
The paper (at p. 26) refers to the violence suffered by the Appellant as a poor
student and a teenage prostitute, there being no evidence before Justice Murray that the
Appellant suffered violence as a student. Ms. Solomon also concludes that there was a
lack of appropriate treatment, apparently overlooking the fact that the Appellant was
repeatedly admitted to the Alberta Hospital in an attempt to find suitable treatment but that
the psychiatric opinion given under oath was that she was not amenable to treatment.
45.
Even Ms. Neve's family is singled out for attack, in spite of the fact that the
Appellant has no complaint about the parents who adopted her as a baby. At p. 28-29,
Ms. Solomon argues:
"The dispatch with which Judge Murray absolved Lisa's family of any
responsibility for her criminal behaviour and the sympathy he felt for the
agony they (!) experienced over the last 9 or 10 years is alarming. When a
12 year old is expelled from school, becomes a drug addict and a prostitute
while her parents claim ignorance as to her lifestyle, at the very least, there
is an element of neglect on their part. Not only did Judge Murray discount
the major elements of Lisa's life on the streets and in her family, he also
dismissed information regarding available treatments."
Supplemsnrary Sentence Marerials o f the Crown Respondent
Page 2 1
There is in this case absolutely no evidence of neglect in the Appellant's home
46.
life. Unlike many girls who are introduced to street life because of violence at home, Lisa
Neve has always had a family that would support her.
47.
It is submitted that the Solomon article is so fraught with error and unsupported
attacks that it should be totally ignored and that the allegations which she makes against
the psychiatric experts, the Appellant's family and the Trial Judge should be rejected.
Charter Remedy
48.
Section 24(1) of the Charter of Rights and Freedoms provides:
"24(1) Anyone whose rights or freedoms, as guaranteed by this Charter,
have been infringed or denied may apply to a court of competent
jurisdiction to obtain such remedy as the court considers appropriate
and just in the circumstances."
49.
The Charter remedies that the Appellant seeks are that the dangerousness
designation be quashed and the Appellant sentenced to a fixed term or that the
indeterminate sentence be stayed and a fixed sentence imposed. As a final alternative the
Appellant proposes a new hearing. Section 759(3) of the Code7, with the amendment
proclaimed August 1, 1997, gives the appellate court the authority to find that the offender
'
759(3)
On an appeal against a finding that an offender is a dangerous offender, the court of appeal may
(a) allow the appeal and
(i)
find that the offender ri n d a dangerous offender, find that the offender is a long-term offender, impose a mlnlmurn
sentence of im~risonmentfor two vears. for the offence for which the offender has been convicted. and order the
0reraw.o w ~ p e m e cn r e zorrr-n q 'or a pe-90 lnal does not s&,ect to sasec! on 753 1 5 exceeo !ev
bears n acczroance u tn sec6.0n'53 2 anc tne C~nccronsano Conadonar R e m s e Ac:
(ii)
find hat the offender is not a dangerous offender and impose sentence for the offence for which the offender has
been convicted, or
(iii) order a new hearing; or
(b)
dismiss the appeai.
Supplementary Sentence Materials o f the Crown Respondent
Page 22
is not a dangerous offender and impose a determinate sentence, to order a new hearing
or to sentence the offender as a long term offender. The section previously allowed only
the quashing of the indeterminate sentence and imposition of a determinate sentence or
a new hearing.'
50.
It is the Crown's position that Justice Murray's findings that the Appellant is likely
to commit further violent acts and that the prospect of her rehabilitation is bleak is well
supported by the evidence. If this Honourable Court concludes that Justice Murray's
decision is reasonable, then, according to his undisturbed findings, any sentence short of
an indeterminate term will result in serious danger to the public.
Judging by the
Appellant's criminal history, it is girls or women involved in street life that will be in danger.
It is submitted that a "just and appropriate remedy" would not require those girls or women
to bear the risk posed by the Appellant's release from custody without rehabilitation.
D.
Non-Charter Remedy
51.
It has been requested, on behalf of the Respondent, that the appeal pursuant
to section 759 of the Criminal Code be dismissed. In the event this request is rejected and
the Court concludes that there has been an error in the admission, consideration or
handling of evidence, it is requested that a new dangerous offender hearing should be
ordered.
52.
In the event that the Court concludes that the declaration of dangerousness or
indeterminate sentence are unreasonable, it is submitted that a fit sentence would be a
term of imprisonment to be sewed consecutively to other sentences which had already
759(3)
On an appeal against a sentence of detention in a penlentiary for an indeterminate period, the court of appeal may
(a)
quash such sentence and impme any sentence that might have been imposed in respect of the offence for which
the appeilant was convicted, or order a new hearing; or
(b)
dismiss the appeal.
Supplementary Sentence Materials o f the Crown Respondent
Page 23
been imposed at the date of the indeterminate term. Justice Murray held that an
appropriate determinate sentence would have been in the neighbourhood of 3 years
imprisonment, consecutive to the other sentences the Appellant was servingg. (A.B. 1970)
Although counsel for the Appellant suggested in oral argument that a fit determinate
sentence would be the time already served by the Appellant, the Appellant's original
Sentence Materials proposed a 3 year term of imprisonment (without indicating whether
it should be served consecutively).
ALL OF W
CH IS RESPECTFULLY SUBMITTED:
'I
The Appellant was sewing the following sentences at the date of the indeterminate sentence, November 17, 1994:
May 27.1993
Utlering threats (2 counts)
18 months imprisonment
Breach of recognizance
(ARer appeal)
March 24. 1994
Aggravated Assaun
2 years imprisonment consecutive
Supplementary Sentence Materials of the Crown Respondent
Page 24
LIST OF AUTHORITIES
TAB 1:
Wilband v. R. [1967] 2 C.C.C. 6 (S.C.C.)
TAB 2:
R. v. Talbot, [A9951 0.J. No. 850 (Gen. Div.) (Q.L.)
TAB 3:
R. v. Hurrie, [1997] B.C.J. No. 2633 (S.C.) (Q.L.)
TAB 4:
R. v. Albright (1987), 37 C.C.C. (3d) 105 (S.C.C.)
TAB 5:
R. v. Lewis (1984), 12 C.C.C. (3d) 353 (Ont. C.A.), appeal to S.C.C.
abandoned 25 C.C.C. (3d) 288n
TAB 6:
R. v. Kanester, [I9681 1 C.C.C. 351 (B.C.C.A.)
TAB 7:
R. v. Maclnnis (19 8 l ) , 64 C.C.C. (2d) 553 (N.S.S.C. App. Div.)
TAB 8:
R. v. Boyd(1983), 8 C.C.C. (3d) 143 (B.C.C.A.)
TAB 9:
R. v. Lavallee (1WO), 76 C.R. (3d) 329 (S.C.C.)
TAB 10:
R.J. Delisle, "Lavallee: Expert Opinion Based on "Some Admissible
Evidence" -Abbey Revisited" (1990), 76 C.R. (3d) 366
TAB 11:
R. v. Lupien, [I9701 2 C.C.C. 193 (S.C.C.)
TAB 12;
St. J o h n (City) v. Irving O i l Co. (1966), 58 D.L.R. (2d) 404 (S.C.C.)
TAB 13:
R. v. Neve (1993) 87 C.C.C. (3d) 190 (Alta. C.A.)
Supplementary Sentence Malerials o f the Crown Respondent
TAB 14:
Page 25
R . v . Neve(1994)157A.R.;77W.A.C. 182(Alta. C.A.)
R. v. Jones (1994), 89 C.C.C. (3d) 353 (S.C.C.) (Appellant's Authorities TAB 13)
R. v. Lyons (1987), 37 C.C.C. (3d) 1 (S.C.C.) (Appellant's Authorities -TAB
3)
R. v. Gardiner (1982), 68 C.C.C. (2d) 477, at p. 514 (Appellant's
Supplementary Authorities - TAB 5)
R. v. Latham (1987), 47 Man. R. (2d) 81, affirmed (8 March 1988), No.
243187 (C.A.), leave to appeal to S.C.C. refused (1988), 57 Man. R. (2d)
159n (Crown Authorities -TAB 16)
R. v. Jackson (1981), 61 C.C.C. (2d) 540 (N.S.S.C. App. Div.) (Appellant's
Supplementary Authorities - TAB 4)
R. v. Teskey (1995), 176 A.R. 4 (Appellant's Supplementary Authorities TAB 2).
R. v. Stevens [I9941 M.J. No. 31 1 (Man. C.A.) (Appellant's Supplementary
Authorities - Tab 3)
R. v. Abbey (1982), 68 C.C.C. (2d) 394 (S.C.C.)(Appellant's Supplementary
Authorities - TAB 10)
R. v. Rodger (1987) 80 A.R. 79 (C.A.) (Appellant's Supplementary
Authorities -TAB 9)
R. v. Canning [1966] 4 C.C.C. 379 (B.C.C.A.) (Appellant's Supplementary
Authorities - TAB 7)
R. v. Currie [I9971 2 S.C.R. 260 (Crown Authorities - T A B 2)