R. v. Mitchell, 2003 SCC 49, [2003] 2 SCR 396

R. v. Mitchell, [2003] 2 S.C.R. 396, 2003 SCC 49

Her Majesty The Queen                                                                                  Appellant

v.

Steven Keith Mitchell                                                                                   Respondent

and

Attorney General of Canada                                                                          Intervener

Indexed as:  R. v. Mitchell

Neutral citation:  2003 SCC 49.

File No.:  29083.

2003:  January 16; 2003:  September 26.

Present:  McLachlin C.J. and Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour, LeBel and Deschamps JJ.

on appeal from the court of appeal for british columbia

Criminal law — Sentencing — Dangerous offenders and long‑term offenders — Accused declared to be dangerous offender and sentenced to indeterminate prison term — Predicate offence occurring  prior to enactment in Criminal Code   of long‑term offender provisions — Whether sentencing judge should have considered long‑term offender provisions prior to declaring offender dangerous — If so, whether sentencing judge’s failure to do so constituted error of law — Criminal Code, R.S.C. 1985, c. C‑46, ss. 753(1) , 753.1 , 759(3) (b) —  Canadian Charter of Rights and Freedoms, s. 11 (i).

A sentencing judge found the accused to be a dangerous offender and  sentenced him to an indeterminate period of imprisonment.  The sentencing judge did not consider the  new long‑term offender provisions, which came into force after the predicate offence was committed.  The majority of the Court of Appeal found that the sentencing judge’s failure to consider these provisions constituted a serious error; it allowed the accused’s appeal and ordered a new sentencing hearing.

Held:  The appeal should be dismissed.

For the reasons set out in R. v. Johnson, [2003] 2 S.C.R. 357, 2003 SCC 46, the sentencing judge was required to consider the possibility of a long‑term offender designation prior to declaring the accused a dangerous  offender, even though the predicate offence was committed prior to the 1997 enactment of the long‑term offender provisions.  In the absence of a full inquiry into the suitability of a long‑term offender designation, it would be improper to reinstate the sentencing judge’s finding that the accused is properly classified as a dangerous offender.

Cases Cited

Applied:  R. v. Johnson, [2003] 2 S.C.R. 357, 2003 SCC 46; referred to:  R. v. Edgar, [2003] 2 S.C.R. 388, 2003 SCC 47; R. v. Smith, [2003] 2 S.C.R. 392, 2003 SCC 48; R. v. Kelly, [2003] 2 S.C.R. 400, 2003 SCC 50.

Statutes and Regulations Cited

Criminal Code, R.S.C. 1985, c. C‑46 .

APPEAL from a judgment of the British Columbia Court of Appeal (2002), 161 C.C.C. (3d) 508, 2 C.R. (6th) 385, 162 B.C.A.C. 247, 264 W.A.C. 247, [2002] B.C.J. No. 122 (QL), 2002 BCCA 48, reversing a decision of the British Columbia Supreme Court, [1998] B.C.J. No. 2927 (QL).  Appeal dismissed.

William F. Ehrcke, Q.C., and Beverly MacLean, for the appellant.

Robert A. Mulligan, Q.C., for the respondent.

Robert J. Frater and David Schermbrucker, for the intervener.

The judgment of the Court was delivered by

1                                   Iacobucci and Arbour JJ. — This case, which was heard at the same time as R. v. Johnson, [2003] 2 S.C.R. 357, 2003 SCC 46, R. v. Edgar, [2003] 2 S.C.R. 388, 2003 SCC 47, R. v. Smith, [2003] 2 S.C.R. 392, 2003 SCC 48, and R. v. Kelly, [2003] 2 S.C.R. 400, 2003 SCC 50, involves an appeal against a sentencing judge’s decision to declare an offender dangerous and sentence him to an indeterminate period of detention.  As in Johnson, Edgar and Smith, the predicate offence was committed prior to the 1997 enactment of the long-term offender provisions in the Criminal Code, R.S.C. 1985, c. C-46 , while the sentencing hearing took place after the long-term offender provisions came into force.  The question that this appeal raises is whether the sentencing judge’s failure to consider the possibility of a long-term offender designation constituted an error of law.

2                                   For the reasons set out in Johnson, the sentencing judge was required to consider the possibility of a long-term offender designation prior to declaring the offender dangerous, even though the predicate offence was committed prior to the 1997 enactment of the long-term offender provisions.  If an offender satisfies the criteria set out in the long-term offender provisions and the sentencing judge is satisfied that a determinate sentence followed by a long-term supervision order would reduce the threat to the life, safety or physical or mental well-being of other persons to an acceptable level, the sentencing judge cannot properly declare the offender dangerous and thereupon impose an indeterminate sentence.

3                                   In this case, the record discloses insufficient evidence to conclude that there is no reasonable possibility that the respondent would have been declared a long-term offender if the sentencing judge had considered the long-term offender provisions when determining whether to declare the offender dangerous.  In the absence of a full inquiry into the suitability of a long-term offender designation, it would be improper to reinstate the sentencing judge’s finding that the respondent is properly classified as a dangerous offender.

4                                   In the result, the appeal is dismissed.  We confirm the Court of Appeal’s decision to order a new sentencing hearing, to be determined in accordance with the principles set out in Johnson.

Appeal dismissed.

Solicitor for the appellant:  Ministry of Attorney General, Vancouver.

Solicitors for the respondent:  Mulligan Tam Pearson, Victoria.

Solicitor for the intervener:  Attorney General of Canada, Ottawa.