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Criminal - Dangerous Offender (3). R. v. Snowden
In R. v. Snowden (Ont CA, 2023) the Court of Appeal considered the dangerous offender element of 'serious personal injury offences' ('SPIOs'), here in the context of child pornography:(2) Child Pornography Offences as SPIOs: Previous Decisions
[68] Only a handful of cases have addressed the specific issue on appeal – whether the offences of possessing, accessing, and making available child pornography constitute SPIOs. It is accepted that they are not categorically SPIOs. On the other hand, these cases support the conclusion that, depending on the circumstances, they are capable of being SPIOs. It is helpful to review some of this jurisprudence.
[69] In R. v. Patterson, 2018 ONSC 5395, the Crown applied under s. 752.1 for an assessment order in relation to charges of possession and accessing child pornography. The Crown argued that, as a matter of law, any conviction for either offence would necessarily constitute an SPIO: “[E]very image represents violence towards children.” Bawden J. rejected this sweeping submission, along with the Crown’s further submission that everyone who possesses or accesses child pornography is a party to the making of that child pornography. The Crown does not make either submission on this appeal.
[70] Turning his attention to Steele, Bawden J. considered the manner in which Mr. Patterson committed his offences. Bawden J. summarized the evidence of the accused’s offending and referred to the victim impact statement of the mother of a 12-year-old boy whose image figured prominently on a website frequented by Mr. Patterson, and whose image was in Mr. Patterson’s collection. Bawden J. held, at para. 30: “[T]he statement establishe[d] a foundation for a finding that the maker of the images inflicted severe damage to [this child].” He ultimately concluded, however, that Mr. Patterson’s offences were not SPIOs, at para. 32:Mr. Patterson was a low end consumer of child pornography. There is no evidence that he did anything to encourage the creation of child pornography apart from committing the essential elements of his own offences. The two images that he possessed did not depict a sexual assault on either of the subjects. One of the images that he accessed (the boy with ejaculate on his tongue) did depict evidence of a sexual assault but on the scale of such images, this was on the less serious end. The videos showing sexual activity between prepubescent boys are clearly the most disturbing images but they were few in number and of limited visual quality. There is no evidence that Mr. Patterson ever attempted to take possession of them. [71] Bawden J. declined to make an assessment order for the purposes of a dangerous offender application.
[72] The approach in Patterson was followed in R. v. Ewing, 2021 ONCJ 273, a case also involving the offences of possessing and accessing child pornography. The SPIO issue arose at the s. 752.1 application stage. The sentencing judge, Libman J., described the collection amassed by Mr. Ewing, which included images of young children, some of whom have been identified by international police agencies. The Crown also tendered a victim impact statement of one of the individuals in Mr. Ewing’s collection. She recounted the trauma she continues to experience 20 years after the abuse at the hands of her father, which was recorded and shared on the internet.
[73] Libman J. distinguished Patterson, holding that Mr. Ewing was not a “low end consumer”: para. 80. He placed great reliance on the victim impact statement of the child whose image was in the collection. Libman J. also relied on the same community impact statements filed in this case and found that there were reasonable grounds to believe that Mr. Ewing had committed an SPIO. In relation to the identified victim, Libman J. said the following, at para. 89:In the mind of [the identified victim], and other survivors of child sexual abuse who live in constant dread of their images being viewed by others, and especially of being recognized, there is no meaningful distinction between the maker of child pornography, or the viewer of same. They each inflict severe psychological damage on such victims, albeit at different times and in different ways, every time the image is viewed. The publisher may play the role of principal offender; the audience’s role as secondary offender. The performance may be “pay for view” or not. However, they remain offenders alike; they are all patrons of the same genre of harm. [74] Libman J. ordered an assessment under s. 752.1.
[75] In R. v. Brouillard, 2020 QCCS 604, the accused was convicted of accessing, possessing, and making available child pornography. The sentencing judge, Ouellet J.S.C., focused on the accused’s behaviour in sharing child pornography online, which included providing others with codes and/or passwords necessary to access file directories.
[76] Ouellet J.S.C. concluded that, “at a minimum”, making available child pornography is conduct that is likely to inflict severe psychological damage on another person: at para. 31. A key factor was that the faces of the victims were visible, such that “they can recognize themselves, be recognized, and know that they will be recognized, for all time, as long as these images are circulating on the Internet”: at para. 32. He rested this conclusion on statements of the Supreme Court about child pornography, discussed above, as well as other cases about the indelible nature of images posted online. He found that making child pornography available qualified it as an SPIO.
[77] Lastly, I refer to R. v. Millie, 2021 SKQB 281, a case involving the offences of making available, accessing, and possessing child pornography.
[78] Applying Steele, Dawson J. accepted that the essential elements of the three offences do not automatically qualify as SPIOs: para. 76. Referencing Sharpe, Dawson J. accepted that there is a rational connection between accessing, possessing, and making available child pornography and the sexual exploitation of children, but held that “the SPIO definition requires something more than mere speculation or an abstracted rational connection”: para. 79.
[79] Mr. Millie was in possession of and had access to 90,708 images of child pornography, of which 13,289 were unique. There were also 131 unique videos in his collection. The children’s faces were visible in some of the images Mr. Millie uploaded to the internet.
[80] After reproducing the passages from Friesen and S.(J.) quoted above, Dawson J. held that “the court must be satisfied that the offender’s conduct contributed in some non-zero measure to the severe psychological damage to a victim of the child pornography in question. In other words, the connection or link between the offender’s conduct and a victim’s identifiable severe psychological damage must be established”: para. 92. She found that, although the identifiable victims in Mr. Millie’s collection did not directly attribute the harms they suffered to Mr. Millie’s conduct, this did not bar a finding that he caused their severe psychological damage. The perpetual and acute emotional distress the victims described in their victim impact statements was not specific to Mr. Millie because the statements were prepared before the date of his offences. However, Dawson J. concluded:[114] All three victims identify significant, prolonged and continuing severe psychological damage from the knowledge that individuals download and possess the child pornographic images of them. Even though the victims did not relate their psychological damage to Mr. Millie specifically, or individually, I am satisfied that there is established from the Victim Impact Statements … a clear link between the knowledge of the victims that persons possess and view their images and each of their psychological damage.
[115] Here, Mr. Millie’s possession of the pornography, which contains the victims’ images, has the effect of inflicting severe psychological harm, as the victims are aware that they have been victimized in this way and revictimized by the ongoing process of access and/or possession of the images.
[116] I am satisfied on the evidence, that Mr. Millie’s possession of the said pornography is inflicting or likely to inflict severe psychological damage on another person.
[117] I find that the circumstances of this case mandate a finding that the possession of child pornography contrary to s. 163.1(4), committed by James Millie in the factual circumstances, of this case satisfies the definition of an SPIO for the purposes of s. 752 of the Criminal Code. [81] Together, these cases apply Steele and demonstrate a common approach to the determination of whether possessing, accessing, and making available child pornography are SPIOs – a case-by-case consideration of the circumstances in which the offences were committed in light of s. 752(a)(ii). None of these cases categorically preclude these offences from being qualified as such.
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[93] Applied to the context of child pornography, the initial harm lies in the sexual assault of the infant or child. Added to this is the related harm of recording this abuse. This harm is different in kind, but still an extension of the sexual abuse. Similarly, the sharing of recordings with others furthers or perpetuates the harm caused by the initial recording and underlying abuse. Accessing and possessing child pornography fulfills the objective of the person who shares it or makes it available. Indeed, this market for child pornography, whether for purchase, trade or otherwise, may motivate those who make it available, and in turn, those who create it. Accessing and possessing child pornography may further harm the children depicted in the child pornography where they become aware that their image has been accessed or possessed. Thus, cognizable harm has the potential to extend beyond the initial abuse involved in creating child pornography. It may not be the same type of harm at each stage, but it need not be to remain within the ambit of conduct that inflicts or is likely to inflict severe psychological damage. The court continues at paras 96-107 to expand this law in light of the current case facts.
. R. v. Snowden
In R. v. Snowden (Ont CA, 2023) the Court of Appeal reviewed the law of dangerous offenders [CCC 753], particularly the element of personal injury offences ('SPIOs') [CCC 753] - here in a child pornography Crown sentence appeal:E. DANGEROUS AND LONG-TERM OFFENDERS
(1) The Statutory Framework
[39] Part XXIV (Dangerous Offenders and Long-Term Offenders) of the Criminal Code establishes a detailed procedure and threshold criteria for determining whether a sentencing judge may impose the exceptional preventive measures of indeterminate detention or a long-term supervision order. In R. v. Sipos, 2014 SCC 47, [2014] 2 S.C.R. 423, Cromwell J. described the former as “preventive detention in its clearest and most extreme form”: para. 19.
[40] Section 753(1) lists the statutory criteria required to be met before an offender may be designated as a dangerous offender. As discussed in detail below, this includes the Crown proving that the accused person has committed an SPIO. Described as the “designation stage”, s. 753(1) sets out the types of behaviour that will qualify for the purposes of this designation:753 (1) On application made under this Part after an assessment report is filed under subsection 752.1(2), the court shall find the offender to be a dangerous offender if it is satisfied
(a) that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (a) of the definition of that expression in section 752 and the offender constitutes a threat to the life, safety or physical or mental well-being of other persons on the basis of evidence establishing
(i) a pattern of repetitive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a failure to restrain his or her behaviour and a likelihood of causing death or injury to other persons, or inflicting severe psychological damage on other persons, through failure in the future to restrain his or her behaviour,
(ii) a pattern of persistent aggressive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a substantial degree of indifference on the part of the offender respecting the reasonably foreseeable consequences to other persons of his or her behaviour, or
(iii) any behaviour by the offender, associated with the offence for which he or she has been convicted, that is of such a brutal nature as to compel the conclusion that the offender’s behaviour in the future is unlikely to be inhibited by normal standards of behavioural restraint; or
(b) that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (b) of the definition of that expression in section 752 and the offender, by his or her conduct in any sexual matter including that involved in the commission of the offence for which he or she has been convicted, has shown a failure to control his or her sexual impulses and a likelihood of causing injury, pain or other evil to other persons through failure in the future to control his or her sexual impulses. [Emphasis added.] [41] As the Supreme Court of Canada held in R. v. Boutilier, 2017 SCC 64, [2017] 2 S.C.R. 936, subparas. (a)(i) to (iii) are disjunctive: “[T]hey provide three standalone grounds for finding that the offender is a ‘threat’ under s. 753(1)”: at para. 18, per Coté J. If any one of the criteria is met, there is no discretion in the sentencing judge; “the designation must follow”: at para. 20.
[42] However, once a dangerous offender designation is made, the sentencing judge regains discretion to impose the appropriate sentence, subject to s. 753(4.1). The options are set out in s. 753(4), and the analysis is guided by s. 753(4.1):(4) If the court finds an offender to be a dangerous offender, it shall
(a) impose a sentence of detention in a penitentiary for an indeterminate period;
(b) impose a sentence for the offence for which the offender has been convicted — which must be a minimum punishment of imprisonment for a term of two years — and order that the offender be subject to long-term supervision for a period that does not exceed 10 years; or
(c) impose a sentence for the offence for which the offender has been convicted.
(4.1) The court shall impose a sentence of detention in a penitentiary for an indeterminate period unless it is satisfied by the evidence adduced during the hearing of the application that there is a reasonable expectation that a lesser measure under paragraph (4)(b) or (c) will adequately protect the public against the commission by the offender of murder or a serious personal injury offence. [43] There is an alternative route to a long-term offender designation. Even if the court does not find the offender to be a dangerous offender, it may treat the application as a long-term offender application: s. 753(5)(a). In this case, having dismissed the dangerous offender application, the sentencing judge considered whether the respondent should be sentenced as a long-term offender, but decided against it.
[44] Part XXIV creates rights of appeal similar to appeals under Part XXI (Appeals – Indictable Offences). An offender found to be a dangerous offender may appeal on any ground of law or fact, or mixed law and fact (s. 759(1)), whereas the Attorney General may only appeal “on any ground of law” (s. 759(2)).
(2) SPIO: Definition and Methodology
[45] At the heart of this appeal is a foundational concept of Part XXIV of the Criminal Code: the concept of the SPIO. The resolution of this appeal requires clarification of the approach to be taken to determine when possessing, accessing, and making available child pornography will be SPIOs. Following the approach in the leading case of R. v. Steele, 2014 SCC 61, [2014] 3 S.C.R. 138, a case-by-case consideration of the factual circumstances of these offences will be required to determine whether they meet the criteria for an SPIO. However, as I will discuss below, in my view the sentencing judge interpreted the definition of an SPIO in a manner that precluded the consideration of some relevant facts.
[46] The commission of an SPIO plays an important role at two junctures in Part XXIV. First, it serves as a “gatekeeper” for entry into the dangerous offender or long-term offender regime at the assessment stage, under s. 752.1 of the Criminal Code: Steele, at para. 35. The section provides:752.1 (1) On application by the prosecutor, if the court is of the opinion that there are reasonable grounds to believe that an offender who is convicted of a serious personal injury offence or an offence referred to in paragraph 753.1(2)(a) might be found to be a dangerous offender under section 753 or a long-term offender under section 753.1, the court shall, by order in writing, before sentence is imposed, remand the offender, for a period not exceeding 60 days, to the custody of a person designated by the court who can perform an assessment or have an assessment performed by experts for use as evidence in an application under section 753 or 753.1. [Emphasis added.] [47] Second, s. 753 provides that a conviction for an SPIO is a requirement, among others, before a court may find an offender to be a dangerous offender.
[48] An SPIO is defined in s. 752 as follows:serious personal injury offence means
(a) an indictable offence, other than high treason, treason, first degree murder or second degree murder, involving
(i) the use or attempted use of violence against another person, or
(ii) conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage on another person,
and for which the offender may be sentenced to imprisonment for ten years or more, or
(b) an offence or attempt to commit an offence mentioned in section 271 (sexual assault), 272 (sexual assault with a weapon, threats to a third party or causing bodily harm) or 273 (aggravated sexual assault) [49] First, an SPIO under para. (a) of the definition in s. 752 must be punishable by a sentence of 10 years or more. Most of the offences in this appeal meet this threshold. Possession of child pornography (s. 163.1(4)) and accessing child pornography (s. 163.1(4.1)) are both punishable by a maximum of 10 years’ imprisonment when prosecuted by indictment.[3] Making child pornography available (s. 163.1(3)) is an indictable offence, punishable by a maximum punishment of 14 years’ imprisonment. Breach of probation (s. 733.1(1)) does not qualify because it is punishable by a maximum sentence of four years’ imprisonment, when prosecuted by indictment.
[50] The next part of the definition of an SPIO may take two forms. One is categorical, in that para. (b) of the definition states that offences under ss. 271, 272, and 273 will always be SPIOs.[4] The other, under para. (a), is interpretive. The Crown must establish that the offence in question either involves (i) the use or attempted use of violence against another person, or (ii) conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage on another person. This appeal turns on the application of subpara. (a)(ii) to the child pornography offences in question.
[51] In Steele, the Supreme Court of Canada discussed the methodology for classifying offences as SPIOs. That case involved a robbery committed by using threats of violence (Criminal Code, s. 343(a)). It required the interpretation of the subpara. (a)(i) definition of an SPIO, but it is also instructive in the approach to subpara. (a)(ii) in this case.
[52] The Court held that some offences, while not included in para. (b) of the definition, will always amount to an SPIO, “where personal violence or endangerment forms part of the definition of the offence”: at para. 22, citing R. v. Cepic, 2010 ONSC 561 (a case involving dangerous driving causing bodily harm). However, other offences may not, by definition, meet the criteria of an SPIO. In such cases, Steele requires an examination of the manner and circumstances in which the offence was committed in order to determine whether the definition of an SPIO in subpara. (a)(i) is satisfied. The same approach is employed with subpara. (a)(ii): see R. v. Cook, 2020 ONCA 809, at para. 20 (a criminal harassment case).
[53] This interpretive exercise must be undertaken in a manner consistent with the purposes of Part XXIV of the Criminal Code. The primary rationale of this Part is the protection of the public; but there is more to it than that. As Wagner J. (now C.J.) explained in Steele, at paras. 35-36:These sentences are also punitive, however, and in this regard, the function of the SPIO requirement is twofold: first, it serves as a “gatekeeper” for entry into the dangerous or long-term offender system (s. 752.1(1)); second, if the Crown applies for a finding that the offender is a dangerous offender, it serves as a requirement for the making of such a finding (s. 753(1)). If the punitive purpose of these sentencing options were outweighed entirely by their preventive purpose, they might violate the fundamental principle of sentencing, that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. The SPIO requirement helps safeguard the constitutionality of the scheme: Lyons, at p. 338. As Lamer C.J. put it in Currie, “[t]he [SPIO] requirement acts as a gatekeeper to ensure that the sentence is not disproportionate to the offence” (para. 31; see also Goforth, at para. 44).
These two purposes, one of them general and the other specific, are in conflict. In interpreting the definition of an SPIO, I must give effect to the overall protective purpose of Part XXIV, while also furthering the specific purpose of the SPIO requirement by tying the punishment to the predicate offence and safeguarding the objective of proportionality. Whereas an unduly narrow interpretation of the words “use or attempted use of violence” could preclude courts from remanding potentially dangerous offenders for assessment and thereby undermine the goal of public protection, an unduly broad interpretation of those words would dilute the gatekeeper function of the SPIO requirement and jeopardize the scheme’s objective of proportionality. [54] Importantly, Wagner J. held that subpara. (a)(ii) does not include a requirement of objective seriousness; that is, an SPIO does not require a minimum level of violence: at paras. 38-41. This was also the holding of this court in R. v. Lebar, 2010 ONCA 220, 101 O.R. (3d) 263, at para. 67, cited in Steele.
[55] The same approach is indicated under the companion definition in subpara. (a)(ii) – “conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage on another person” (emphasis added).
[56] Whereas subpara. (a)(i) requires the use or attempted use of violence, subpara. (a)(ii) is cast in broader terms. In R. v. Morgan (2005), 2005 CanLII 7254 (ON CA), 195 C.C.C. (3d) 408 (Ont. C.A.), leave to appeal refused, [2005] S.C.C.A. No. 247, MacFarland J.A. held, at para. 13: “The section requires that the conduct have actually inflicted severe psychological damage on a complainant or be such that it is likely to cause severe psychological damage. It is in this sense that the offence can be said to be a serious personal injury offence” (emphasis added). Moreover, it need not be an offence against the person. MacFarland J.A. said, at para. 11: “Had Parliament intended that only offences against the person were capable of meeting the definition of ‘serious personal injury offence’, it would have said so as it did in respect of sexual offences in s. 752(b).” In Morgan, attempting to obstruct justice was found to be an SPIO.
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[108] As noted above, s. 753(5)(a) of the Criminal Code allows a court, where a dangerous offender designation has not been made, to treat the application as an application to designate the offender a long-term offender. The sentencing judge engaged in this process.
[109] The criteria for designating an offender as a long-term offender is set out in s. 753.1(1):753.1 (1) The court may, on application made under this Part following the filing of an assessment report under subsection 752.1(2), find an offender to be a long-term offender if it is satisfied that
(a) it would be appropriate to impose a sentence of imprisonment of two years or more for the offence for which the offender has been convicted;
(b) there is a substantial risk that the offender will reoffend; and
(c) there is a reasonable possibility of eventual control of the risk in the community. . R. v. Francis
In R. v. Francis (Ont CA, 2023) the Court of Appeal considered the 'other offences' provisions of CCC 725, which are designed to prevent double jeopardy - here in the context of dangerous offender application:[26] In addition, the appellant maintains that it was improper to use some of the facts from the Superior Court trial in the dangerous offender proceeding because, for all intents and purposes, doing so amounted to double punishment. The double punishment is said to arise because the appellant was sentenced to three years for his conviction in the Superior Court, but then he was also sentenced based upon some of the information underlying the Superior Court trial in the Ontario Court of Justice. He says that this breached s. 725 of the Criminal Code. He contends that, had he known this was going to take place, he would have never pled guilty in the Ontario Court of Justice. Instead, he would have simply waived his preliminary inquiry and had everything dealt with together in the Superior Court.
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(4) The appellant’s s. 725 argument fails
[53] The appellant also argued in oral submissions that it was improper to use evidence from the Superior Court trial in the dangerous offender proceeding because it amounted to double punishment. He maintains that he was sentenced to three years for his conviction for attempting to possess a firearm in the Superior Court, where the aggravating factors to that crime were informed by the facts supporting the crimes to which he pled guilty in the Ontario Court of Justice. He maintains that these facts could not be used in determining whether he is a dangerous offender because s. 725 of the Code prohibits this from occurring.
[54] Section 725(1)(c) of the Code allows sentencing judges to consider “any facts forming part of the circumstances of the offence that could constitute the basis for a separate charge.” Section 725(2) then directs that where these facts are considered in sentencing for one offence, “no further proceedings” can be taken with respect to any offence disclosed by those facts.
[55] I reject the appellant’s argument on this point. A dangerous offender hearing is not a “further proceeding” for the purpose of s. 725(2). The interpretation suggested by the appellant is at odds with the entire statutory scheme for determining if a person is a dangerous offender. This scheme is predicated upon not only the accused’s recent offending history, but also his past offending history, all of which is entirely relevant to the application. By way of only one example, consider the statutory requirement pursuant to s. 753(1)(a)(i) for determining if an accused is a dangerous offender based upon, among other things, a “pattern of repetitive behaviour”. This repetitive behaviour is often drawn from not only prior convictions, but also the factual circumstances surrounding those convictions. . R. v. Francis
In R. v. Francis (Ont CA, 2023) the Court of Appeal considers a dangerous offender sentencing appeal, here regarding the role of future treatment prospects and the Boutilier (SCC, 2017) case:(2) The law on dangerous offender proceedings and Boutilier
[58] There are two stages to every dangerous offender proceeding: the designation stage and the penalty stage.
[59] Section 753(1) contains four different routes to a dangerous offender finding. Each one has its own criteria. In this case, the appellant was found to meet the criteria under s. 753(1)(a)(i): that the appellant had been convicted of a serious personal injury offence and he constitutes a threat to the life, safety or physical or mental well-being of other persons on the basis of evidence that established:... a pattern of repetitive behaviour by the offender, of which the offence for which [he] has been convicted forms a part, showing a failure to restrain [his] behaviour and a likelihood of causing death or injury to other persons, or inflicting severe psychological damage on other persons, through failure in the future to restrain [his] behaviour[.] [60] Where a person meets the requirements of one of the routes to a dangerous offender finding, that person must be declared a dangerous offender. Only then does the proceeding move along to s. 753(4) to consider an appropriate sentence. This could be an indeterminate sentence, a determinate sentence or a determinate sentence followed by a LTSO.
[61] Section 753(4.1) requires that an indeterminate sentence be imposed unless there is a reasonable expectation, based upon evidence produced at the proceeding, that a “lesser measure under paragraph (4)(b) or (c) will adequately protect the public against the commission by the offender of murder or a serious personal injury offence.”
[62] In Boutilier, the Supreme Court determined that future treatment prospects are a relevant consideration at the designation stage: at para. 42. Treatability directly informs the decision on the actual nature of the threat posed by the offender, specifically, whether the offender poses “a high likelihood of harmful recidivism”: at para. 45. Where evidence of treatability precludes a finding beyond a reasonable doubt that the offender presents a high likelihood of harmful recidivism or that the violent offending pattern is intractable, then they will not be declared a dangerous offender: Boutilier, at para. 45.
(3) There is no Boutilier error
[63] The question on appeal is not whether the sentencing judge at the Ontario Court of Justice used the word “treatability” in his reasons. The question is whether his reasons, read as a whole, demonstrate adherence to the Boutilier principles: R. v. S.M.J., 2023 ONCA 157, at para. 20. They do.
[64] As noted by the British Columbia Court of Appeal, “it is not a truism” that every dangerous offender designation prior to Boutilier contains a Boutilier error: R. v. Lawrence, 2019 BCCA 291, at para. 60.
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[72] The two stages of a dangerous offender application must not be conflated. At the designation stage, the purpose of looking into prospective treatability is focussed upon a concern over the offender’s future threat or risk to public safety. At the sentencing stage, the same evidence is considered, but through a different lens. The question at the sentencing stage is not whether the appellant will continue to be a threat to society, but rather what sentence should be imposed to manage that threat. Therefore, “even where the treatment prospects are not compelling enough to affect the judge’s conclusion on dangerousness, they will still be relevant in choosing the sentence required to adequately protect the public”: Boutilier, at para. 45. See also S.M.J., at para. 39.
[73] As the respondent points out, the very availability of a determinate sentence following a dangerous offender finding underscores Parliament’s intention that the risk posed by someone found to be a dangerous offender might still be adequately managed without an indeterminate sentence. . R. v. Hechavarria-Tapia
In R. v. Hechavarria-Tapia (Ont CA, 2023) the Court of Appeal considered the SOR for dangerous offender designation appeals:[6] Although this court’s review of a dangerous offender designation is somewhat more robust than regular appellate review of a sentence, we do not take a completely fresh look at the designation. This court must still give some deference to the sentencing judge’s findings of fact: R. v. Currie, 1997 CanLII 347 (SCC), [1997] 2 S.C.R. 260, at para. 33; R. v. Sipos, 2014 SCC 47, [2014] 2 S.C.R. 423, at paras. 25-26; R. v. Boutilier, 2017 SCC 64, [2017] 2 S.C.R. 936, at para. 81; R. v. Kohl, 2022 ONCA 625, at para. 9. In my view, each of the sentencing judge’s impugned findings of fact find ample support in the record and so there is no basis for appellate intervention. . R. v. Norris
In R. v. Norris (Ont CA, 2023) the Court of Appeal considered the burden of proof in dangerous offender sentencing:B. THE SENTENCING JUDGE DID NOT REVERSE THE ONUS OF PROOF
[7] The appellant argues that the sentencing judge reversed the onus of proof based on the following passage in the transcription of her reasons which were delivered orally:The starting point is the mandatory language of section 753(4.1). As the Supreme Court stated in R. v. Johnson, [2003] SCC 46:“The purpose of the dangerous offender legislation is the protection of the public. The focus is to manage into the future the threat established by the past. That said, although the purpose of protection is given particular emphasis under the dangerous offender regime, the general principles and purposes of the sentencing in section 718 are also to be applied, and the least intrusive sentence required to achieve the protection of the public should be imposed. (See R. v. Boutilier, [2017] SCC 64, at paragraphs 28, 31, 53, to 57, and 60 to 63. The onus of proof at the disposition stage is on the defendant.”) [Italic emphasis in original; underlined emphasis added.] [8] We agree with the appellant, and as conceded by the Crown, that the reference to the onus of proof being on the offender is an incorrect statement of the law. While the transcript of the sentencing judge’s reasons suggests that this is a quote from R. v. Johnson, 2003 SCC 46 (CanLII), [2003] 2 S.C.R. 357 or R. v. Boutilier, 2017 SCC 64 (CanLII), [2017] 2 S.C.R. 936, neither of those decisions states that the onus of proof is on the offender when the court determines whether to impose a long-term supervision order or an indeterminate sentence on a dangerous offender.
[9] In Boutilier, which followed Johnson, the Supreme Court set out the approach sentencing judges are to take in determining whether a person designated as a dangerous offender should receive a determinate sentence followed by a long-term supervision order or an indeterminate sentence. The Court held that, despite the wording of s. 753(4) of the Criminal Code, there is no presumption that an indeterminate sentence should be imposed or that the offender has the onus of demonstrating that a lesser measure will adequately protect the public. Rather, “the sentencing judge is under the obligation to conduct a ‘thorough inquiry’ into the possibility of control in the community… The judge considers all the evidence presented during the hearing in order to determine the fittest sentence for the offender”: Boutilier, at para. 68. Further, as held at para. 70, in determining the appropriate sentence for a dangerous offender, sentencing judges are to apply the following three-step analytic framework:a. If the court is satisfied that a conventional sentence, which may include a period of probation, if available in law, will adequately protect the public against the commission of murder or a serious personal injury offence, then that sentence must be imposed.
b. If the court is not satisfied that this is the case, then it must proceed to a second assessment and determine whether it is satisfied that a conventional sentence of a minimum of 2 years of imprisonment, followed by a long-term supervision order for a period that does not exceed 10 years, will adequately protect the public against the commission by the offender of murder or a serious personal injury offence. If the answer is “yes”, then that sentence must be imposed.
c. If the answer is “no”, then the court must proceed to the third step and impose a detention in a penitentiary for an indeterminate period of time. [10] Accordingly, there is no onus on the offender to demonstrate that a determinate sentence followed by a supervision order will adequately protect the public. Rather, before imposing an indeterminate sentence, the sentencing judge must consider, based on all the evidence, whether anything less than an indeterminate sentence will sufficiently protect the public.
[11] We are satisfied that there was a transcription error in the passage from the sentencing judge’s reasons quoted above. As we read the passage, the quotation from Johnson was limited to the first sentence in quotation marks, namely “The purpose of the dangerous offender legislation is the protection of the public.” The rest of the passage reflects the sentencing judge’s reasons. That said, we agree that the onus of proof was misstated.
[12] Reading the sentencing judge’s reasons as a whole, it is evident that, while the sentencing judge misstated the onus of proof in her description of the general applicable legal principles, she applied the correct analytic framework and did not reverse the onus of proof by requiring the appellant to demonstrate that a determinate sentence followed by a supervision order would adequately protect the public.
[13] This is evident from the following passage in her decision in which the sentencing judge made clear that, before imposing an indeterminate sentence, she had to be satisfied that lesser measures would not adequately protect the public:The sole issue to be decided is whether under section 753(4.1) there is evidence to satisfy the Court that there is a reasonable expectation that a lesser measure than an indeterminate sentence, that is, under section 753(4)(b) or (c) will adequately protect the public against the commission by the offender of a murder or a serious personal injury offence. [14] After instructing herself in this way, the sentencing judge proceeded to consider the evidence available to her, including the psychiatric evidence and the evidence from Correctional Services Canada, regarding whether anything less than an indeterminate sentence would adequately protect the public before concluding that an indeterminate sentence was necessary. Ultimately, she concluded that the public could not be protected from further serious personal injury offences by the appellant with anything “short of an indeterminate sentence with the intended public protection mechanisms that go with it.”
[15] In the circumstances, we are satisfied that the sentencing judge’s statement that the onus of proof was on the offender was an inadvertent misstatement that did not infect her reasoning or her assessment of the evidence.
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