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Criminal - Sentencing - Dangerous Offender (4). R. v. Hason
In R. v. Hason (Ont CA, 2024) the Ontario Court of Appeal briefly reviews the dangerous offender designation and sentencing regime:(3) The Dangerous Offender Designation and Sentence
[84] Dangerous offender proceedings have two stages: designation and penalty. At the designation stage, the court must designate the person as a dangerous offender if any of the four designation pathways are satisfied. Those pathways each have different criteria but share four common elements: (1) the person has been convicted of and must be sentenced for a serious personal injury offence, (2) this predicate offence is part of a broader pattern of violence, (3) the person must pose a high likelihood of harmful recidivism, and (4) the violent conduct is intractable. Future treatment prospects are relevant to the third and fourth elements. After designation, the court must proceed to the penalty stage and determine whether to impose a determinate sentence, a determinate sentence plus a long-term supervision order, or an indeterminate sentence. R. v. Boutilier clarified that indeterminate sentences are not presumptively fit and may only be imposed if less coercive sentences would not adequately protect the public: 2017 SCC 64, [2017] 2 S.C.R. 936, at paras. 26-27, 42-45, 64-77; see also Francis, at paras. 58-62. . R. v. Eamer
In R. v. Eamer (Ont CA, 2024) the Ontario Court of Appeal dismisses a 'dangerous offender' appeal, here where the appellant sought that "he should have been designated a long-term offender rather than a dangerous offender, or in the alternative, if designated as a dangerous offender, he should have received a determinate sentence followed by a long-term supervision order (“LTSO”)".
Here the court considers whether the trial judge made a 'Boutillier error':(i) The Alleged Boutilier Error
[13] As his first ground of appeal, the appellant raises a “Boutilier” error (R. v. Boutilier, 2017 SCC 64, [2017] 2 S.C.R. 936). The appellant contends that the sentencing judge, who decided this case before Boutilier was released by the Supreme Court of Canada, erred in failing to consider whether his risk was intractable at the designation stage.
[14] In oral argument the appellant’s counsel also asserted that, in designating him as a dangerous offender, the sentencing judge failed to take into consideration the ten-year gap in his criminal record between 1996 and 2005, when he was apparently able to control his behaviour in the community without re-offending. This ought to have been considered in any assessment of the appellant’s intractability.
[15] We do not give effect to this ground of appeal. First, while the sentencing judge did not explicitly advert to the need to find that the appellant’s risk was intractable at the designation stage, his discussion indicates that he took into consideration all of the relevant evidence, including the significant amount of counselling and therapy the appellant had received and his continued violent conduct despite such treatment, before concluding that the evidence established beyond a reasonable doubt the appellant’s future inability to control his violent behaviours. Second, the sentencing judge made explicit findings of intractability at the sentencing stage, where he stated, at para. 285, that the appellant had gone through “significant treatment, counselling and therapy with very limited, if any success”, and that “[t]he true measure of this failure [was] that he [had] continued to re-offend violently notwithstanding this continuous treatment”. The sentencing judge also observed, at para. 313, that “[t]he unfortunate reality is that, at best, the risk can possibly be managed within a very structured and monitored environment” and that “[the appellant’s] condition is described as intractable”.
[16] The evidence at the dangerous offender hearing was uncontroverted that the appellant had a history of treatment interventions in the community and in prison, and that he had continued to offend violently. The psychiatrists were in agreement that the appellant posed a lifelong risk of dangerous re-offence, that he was not amenable to treatment, and that the only option was to attempt to control the risk through continual monitoring.
[17] As for the appellant’s “ten-year gap” in offending, the sentencing judge referred to this period in setting out the appellant’s history. However, the evidence was clear that his violence against women had begun in 1992 and had become increasingly violent and uninterrupted since 2005, when the appellant was involved in a series of violent assaults against ten women. In such circumstances, the sentencing judge reasonably avoided treating the gap in the appellant’s criminal record as predictive of his subsequent risk.
[18] The focus of the hearing, as stated above, was on whether the appellant’s risk could be managed in the community, not on the prospects of successful treatment. The evidence of both psychiatrists as accepted by the sentencing judge was that the appellant’s condition was lifelong and untreatable. In any event, as noted earlier, the sentencing judge considered the appellant’s prospects of successful treatment and intractability elsewhere in his reasons. There is simply no reason to believe that the sentencing judge would have come to a different conclusion about the appellant’s dangerousness if he had also explicitly referred to the factors of treatability and intractability at the designation stage. . R. v. Eamer
In R. v. Eamer (Ont CA, 2024) the Ontario Court of Appeal dismisses a 'dangerous offender' appeal [under CCC s.759], here where the appellant sought that "he should have been designated a long-term offender rather than a dangerous offender, or in the alternative, if designated as a dangerous offender, he should have received a determinate sentence followed by a long-term supervision order (“LTSO”)":[11] Under s. 759 of the Criminal Code, a person designated as a dangerous offender can appeal their designation or sentence on any ground of law, fact or mixed fact and law. The standard of review was articulated by Tulloch J.A. (as he then was) in R. v. Sawyer, 2015 ONCA 602, 127 O.R. (3d) 686, at para. 26:Appellate review of a dangerous offender designation “is concerned with legal errors and whether the dangerous offender designation was reasonable”. While deference is owed to the factual and credibility findings of the sentencing judge, appellate review of a dangerous offender designation is more robust than on a “regular” sentence appeal. [Citations omitted.] [12] In short, in s. 759 appeals, errors of law are reviewed on a correctness standard and errors of fact are reviewed on a reasonableness standard: R. v. Ahmed, 2023 ONCA 676, at para. 99. . R. v. Eamer
In R. v. Eamer (Ont CA, 2024) the Ontario Court of Appeal dismisses a 'dangerous offender' appeal, here where the appellant sought that "he should have been designated a long-term offender rather than a dangerous offender, or in the alternative, if designated as a dangerous offender, he should have received a determinate sentence followed by a long-term supervision order (“LTSO”)".
Here the court focusses on whether a dangerous offender 'indeterminate' sentence was merited [CCC s.753(4.1) - 'Application for finding that an offender is a dangerous offender - Sentence of indeterminate detention']:(ii) The Alleged Sentencing Error
[19] We now turn to the central issue on appeal: whether the sentencing judge erred in determining there was no reasonable expectation that a sentencing option less than an indeterminate sentence would adequately protect the public (Criminal Code, s. 753(4.1)). The appellant contends that the sentencing judge erred in departing from the opinion of the two psychiatric experts that his risk of violent re-offence could be controlled in the community.
[20] We disagree. The sentencing judge, tracking the language of s. 753(4.1), conducted a detailed review of all of the evidence in order to determine whether there was a reasonable expectation that the plan that was proposed by the psychiatrists would adequately protect the public against the appellant’s commission of a serious personal injury offence.
[21] The sentencing judge noted that the appellant had a history of re-offending despite measures taken to manage his risk while in the community. These measures included ongoing counselling and therapy; psychiatric treatment by Dr. Gray from 2007 to 2014; regular monitoring to ensure that the appellant complied with the taking of medication; probation orders; conditional sentences; and being regularly reminded by his last probation officer not to enter into any romantic relationships. The sentencing judge properly considered the appellant’s history as a predictor of his future control. He noted, at para. 256, that “[t]he unfortunate reality is that [the appellant] has continuously re-offended violently notwithstanding the measures taken to manage the risk he poses while in the community”.
[22] The sentencing judge then considered whether the evidence established a reasonable expectation of control from a “looking-forward” perspective, noting that for the most part this issue revolved around the evidence of the two expert witnesses. The sentencing judge considered the evidence of the two psychiatrists and concluded that their evidence, “when analyzed in the context of the whole of the evidentiary record, [did] not allow for a finding that a lesser measure [than an indeterminate sentence] will adequately protect the public from Mr. Eamer”: at para. 259.
[23] In arriving at this conclusion, the sentencing judge reviewed each condition that was proposed to control the appellant’s risk in order to determine whether the proposed controls were feasible and realistically capable of controlling the appellant’s risk. In concluding that they were not, the sentencing judge considered not only the opinions of the psychiatric experts, but also the appellant’s past behaviour while on probation, and the evidence of the lay witnesses: a Correctional Service of Canada (“CSC”) Parole Supervisor, a CSC Regional Program Manager, a Parole Board of Canada (“PBC”) Regional Manager of Conditional Release Programs, and a Deputy Superintendent at Central East Correctional Centre. These witnesses, according to the sentencing judge, provided a “roadmap of how the various sentencing options in this matter are administered by authorities”: at para. 104.
[24] While the sentencing judge observed that a prohibition against any romantic relationships and residing with a female was a theoretically sound and logical proposition, the difficulties lay in the implementation and enforcement of such a measure. He began by pointing out that it was uncertain whether the PBC would impose an absolute prohibition against romantic relationships, citing the evidence of the PBC Regional Manager that she had never seen such a condition before. The sentencing judge also noted that the expert opinion about the effectiveness of such a prohibition was predicated on significant control over the appellant’s whereabouts while residing at a halfway house, but there was no evidence to support the suggestion that halfway houses provide any control while an offender is outside the halfway house. He observed that a significant weakness in the plan was that it depended on the appellant’s willingness and ability to comply with the terms of probation, including abstinence from any romantic relationships. Probation in the past had not controlled the appellant, who had been on probation for the most part since July 2006, and had continued to commit crimes of violence against women. Importantly, the appellant had failed to disclose two separate relationships with women to his most recent probation officer and had misled him about the true nature of his relationship with one of the women.
[25] The sentencing judge also concluded that none of the requirements for medication monitoring, monthly appointments with a psychiatrist, and abstinence from drugs and alcohol would assist in controlling the appellant’s risk. The appellant had committed violent offences while compliant with medication requirements and while under Dr. Gray’s care. Dr. Gray testified that he was unsure whether he would report breaches of conditions by the appellant to the authorities, as this would affect his relationship with the appellant. And the past offences were not committed while the appellant was under the influence of drugs or alcohol.
[26] Another concern identified by the sentencing judge was that the appellant’s ability to get into a relationship and to become violent happens quickly. He noted that, according to the psychiatric evidence, the risk associated to any type of relationship with a female was so far-reaching that the appellant should even avoid female volunteers.
[27] A further problem identified by the sentencing judge was that the proposed treatment plan and prospective evidence did not speak to risk management after the expiry of the maximum ten-year period of long-term supervision. As the sentencing judge noted, it was fundamental to the plan that risk control required strict supervision to ensure that the appellant did not enter into a relationship with a woman, but the bulk of the evidence – and here the sentencing judge referred to specific aspects of the psychiatric evidence – established that the appellant could not be relied on to avoid such relationships.
[28] Contrary to the appellant’s argument, the sentencing judge did not err in departing from the opinions of the expert witnesses with respect to the potential for the control of the appellant’s risk in the community. The psychiatrists spoke to the elements of a plan that provided for a reasonable “possibility” of control under the terms of an LTSO, which only went so far. Their opinions were based on certain assumptions about the availability and effectiveness of the various controls that were proposed. The sentencing judge was required to consider all of the evidence in order to evaluate whether under s. 753(4.1) of the Criminal Code, there was a reasonable expectation of control, which included an assessment of the feasibility of the measures that were proposed.
[29] As in R. v. Primmer, 2021 ONCA 564, which was another case involving an indeterminate sentence imposed on a dangerous offender where the risk of violent re-offence involved intimate partner violence, the sentencing judge did not err in departing from conditions for an LTSO that were endorsed in the psychiatric evidence. In that case, as here, the sentencing judge reasonably concluded that “the extent of the monitoring and verification required to ensure the appellant’s compliance with the various conditions was not possible”: at para. 95. See also R. v. K.P., 2020 ONCA 534, 152 O.R. (3d) 145, at paras. 66-69.
[30] Given the totality of the evidence, the sentencing judge reasonably concluded that there was no reasonable expectation that anything less than an indeterminate sentence would adequately protect the public.
[31] Finally, we note that, in oral argument on the appeal, the appellant’s counsel downplayed the severity of the appellant’s risk of violent re-offence. Counsel relied on the appellant’s relatively short criminal record, the fact that he had never had a custodial sentence in a penitentiary, and the evidence that he did not have a sexual deviance or prey on strangers. While it may be true, as counsel argues, that the appellant does not fit the “usual profile” for a dangerous offender, the dangerous offender designation and indeterminate sentence are available and appropriate in a case such as this, where the offender’s risk of serious harm to a particular type of victim – a future domestic partner or even a romantic interest – is significant and intractable. . R. v. Jackman [sentencing]
In R. v. Jackman (Ont CA, 2024) the Court of Appeal walks-through a 'dangerous offender' sentencing, which it supports on appeal:2. The trial judge’s imposition of an indeterminate sentence was reasonable.
[29] The appellant argues that the trial judge failed to appropriately consider his progress in responding to treatment while in custody at the Toronto South Detention Centre (TSDC). Dr. Levin had relied upon this progress in concluding that the appellant was a suitable candidate for a 10-year long-term supervision order.
[30] The appellant further argues that the trial judge erred in stating that treatment could not be legally imposed upon him without his informed consent. The appellant submits that this statement is contrary to R. v. Ramgadoo, 2012 ONCA 921, 293 C.C.C. (3d) 157, at paras. 53-59, which requires a sentencing judge at the penalty stage to consider the possibility of imposing mandatory treatment conditions in a long-term supervision order.
[31] I would not give effect to either of these arguments.
[32] First, the trial judge expressly considered the improvements in the appellant’s condition while at the TSDC, along with Dr. Levin’s opinion about treatability. While the trial judge acknowledged that the appellant had made recent improvements, she ultimately preferred the evidence of Dr. Gray that the appellant’s Delusional Disorder, substance use, and ASPD diagnosis meant that his prospects for treatability were poor. In her view, any plan for meaningful treatment of the appellant in the community was based on a “mere hope of control”, a hope, moreover, that was speculative. She therefore concluded, reasonably in our view, that an indeterminate sentence was required because any lesser sentence would not serve the purpose of protecting the public.
[33] Nor did the trial judge err in proceeding on the basis that the appellant’s informed consent was legally required before he could be subjected to treatment. In fact, Ramgadoo (the authority relied upon by the appellant), confirms this to be the case. Moreover, while it is open to a court to recommend that mandatory treatment can be made a condition of a long-term supervision order, such a condition is only appropriate when the offender is willing to accept treatment: Ramgadoo, at paras. 53-54.
[34] The trial judge’s concern was that the appellant had refused treatment several times while incarcerated at TSDC, which led her to conclude that it was unlikely that he would be compliant with treatment and would likely not abstain from using drugs once released into the community. This factual finding is entitled to deference on appeal and, as Ramgadoo confirms, tends to support the imposition of an indeterminate sentence.
[35] The appellant has failed to identify any legal error or misapprehension of the evidence by the sentencing judge, and essentially asks this court to undertake our own de novo assessment of the appellant’s treatability. I decline to do so. In my view, the trial judge’s finding that the appellant’s risk could not be managed in the community through treatment was amply supported in the evidence and was reasonable. I would therefore dismiss this ground of appeal. . R. v. Jackman [designation]
In R. v. Jackman (Ont CA, 2024) the Court of Appeal illustrates the conduct of a (successful) Crown 'dangerous offender designation' application:[10] Following trial, the Crown brought a Dangerous Offender application and, pursuant to an order under s. 752.1, Dr. Jonathan Gray, a forensic psychiatrist at the Mental Health Centre of the Royal Ottawa Health Care Group, conducted an assessment of the appellant. Dr. Gray’s assessment supported the appellant’s designation as a Dangerous Offender.
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3. Dangerous Offender Designation and Sentence
[16] At the Dangerous Offender hearing, the Crown relied on the two reports that had been prepared by Dr. Gray, who had diagnosed the appellant as suffering primarily from Delusional Disorder. In his evidence at the hearing, Dr. Gray testified that the appellant had a repetitive pattern of failing to restrain behaviour which would likely cause severe psychological damage to others and was indifferent to those consequences. He also was of the opinion that the appellant presented a high risk of re-offence and would likely contact his victims if released from incarceration in the future.
[17] The appellant called Dr. Giovana de Amorim Levin, a forensic psychiatrist, and tendered a report she had prepared. Dr. Levin opined that the appellant suffered from Schizophrenia, Stimulant Use Disorder, and Anti-Social Personality Disorder (APSD). She noted that he had symptoms of subclinical PTSD and likely suffered from ADHD, although further formal testing would be required to confirm this diagnosis. In her view, if the appellant was subject to 10 years of court-ordered supervision and treatment, it was likely that his risk could be managed in the community.
[18] In her reasons, the trial judge reviewed the psychiatric evidence in some detail, preferring the evidence of Dr. Gray over that of Dr. Levin. She designated him a Dangerous Offender under both s. 753(1)(a)(i) (pattern of repetitive behaviour showing a failure to restrain) and s. 753(1)(a)(ii) (persistent aggressive behaviour with a substantial degree of indifference). She also sentenced him to an indeterminate sentence, finding that there was no meaningful prospect that he could be treated so that his risk to the public could be controlled to an acceptable level within a determinate amount of time.
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1. The trial judge did not err in designating the appellant a Dangerous Offender.[2]
[22] The appellant argues that the trial judge erred by failing to consider his risk of harmful recidivism and treatability before designating him a Dangerous Offender.
[23] It is well established that an offender’s future risk, and whether that risk could be appropriately managed through treatment, must be considered at both the designation stage and the penalty stage in a Dangerous Offender proceeding: R. v. Boutilier, 2017 SCC 64, [2017] 2 SCR 936, at para. 42; R. v. Francis, 2023 ONCA 760 at para. 62. That said, it is not necessary for the trial judge to use particular terms such as “intractability” in assessing an offender’s future risk or treatability. What matters is whether the trial judge’s reasons, read as a whole, demonstrate an understanding and application of the Boutilier principles, namely, that treatability must inform the decision at both the designation and penalty stage: Francis, at para. 63..
[24] In my view, the trial judge in this case both understood and properly applied Boutilier. To be sure, her detailed analysis of the appellant’s future risk and whether that risk could be managed through treatment was set out in the section of her reasons dealing with whether the appellant should be sentenced to an indeterminate sentence. But the trial judge expressly incorporated her analysis of those issues into the designation section of her reasons where she stated at para. 53 of her reasons that “[t]he prospect of him being successfully treated and manageable in the community is poor for the reasons set out below.” Moreover, the trial judge was clearly alive to Boutilier’s requirement that she consider the appellant’s treatability at both the designation and penalty stage, since she directly or indirectly cited Boutilier twice in her reasons, including in para. 53.[3]
[25] The appellant nevertheless argues that this attempt by the trial judge to simply incorporate her later analysis of the appellant’s risk of reoffending and treatability into the designation stage of her analysis was insufficient. He relies upon this court’s statement in R. v. Tynes, 2022 ONCA 866, 165 O.R. (3d) 321, at paras. 84-85, to the effect that a sentencing judge must conduct an “independent analysis” of the offender’s future risk at both the designation and penalty stage of a Dangerous Offender proceeding.
[26] In my view, the appellant’s reliance upon Tynes is misplaced. In Tynes, the sentencing judge had incorrectly interpreted s. 753(4.1) as mandating that, once an offender had been designated a Dangerous Offender, he should be preemptively sentenced to indeterminate detention. The sentencing judge in Tynes therefore erroneously failed to consider at the penalty stage whether the offender’s future risk could be managed through a sentence that was less onerous than indeterminate detention.
[27] No such error occurred in this case. The trial judge’s analysis of the appellant’s future risk and treatability, set out in the penalty portion of her reasons, took into account the same evidence and relevant considerations that the trial judge was required to consider at the designation phase. In these circumstances, I see no difficulty with the trial judge simply incorporating her later analysis of these factors into the designation portion of her reasons by reference.
[28] As Francis explains, the issue is whether in substance the sentencing judge’s reasons reflect an adherence to the Boutilier principles. I am satisfied that the trial judge appropriately considered, as required by Boutilier, the appellant’s future risk of reoffending and his treatability before designating him a Dangerous Offender. I therefore would dismiss this ground of appeal. . R. v. Jackman [SOR]
In R. v. Jackman (Ont CA, 2024) the Court of Appeal considered the SOR for dangerous offender declarations:[21] Appellate review in Dangerous Offender proceedings is more robust than in regular sentence appeals. Nevertheless, assuming once again that the sentencing judge applied the correct legal test, the standard of review at both the designation and penalty phase[1] is reasonableness, particularly with respect to the sentencing judge’s credibility and factual findings: R. v. Sawyer, 2015 ONCA 602, 328 C.C.C. (3d) 523, at paras. 26-29. . R. v. Drake
In R. v. Drake (Ont CA, 2023) the Court of Appeal considered sentencing principles for dangerous offenders:[8] In her reasons, the sentencing judge explicitly recognized that she was required to apply the sentencing principles set out in ss. 718 to 718.2 of the Criminal Code. In addition, she correctly stated that, while all sentencing principles are relevant, protection of the public is the primary purpose of dangerous offender proceedings: Boutilier, at para. 106; see also R. v. Johnson, 2003 SCC 46, [2003] 2 S.C.R. 357 at paras. 19, 23, and 29.
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