R. v. Smith, 2003 SCC 48, [2003] 2 SCR 392

R. v. Smith, [2003] 2 S.C.R. 392, 2003 SCC 48

Her Majesty The Queen                                                                                  Appellant

v.

Stewart James Smith                                                                                     Respondent

and

Attorney General of Canada                                                                          Intervener

Indexed as:  R. v. Smith

Neutral citation:  2003 SCC 48.

File No.:  29043.

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’s conclusion that long‑term offender provisions not available to person who satisfies dangerous offender criteria 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).

In February 2000, the accused was found to be a dangerous offender and was sentenced to an indeterminate period of imprisonment.  The predicate offence was committed prior to the 1997 enactment in the Criminal Code  of the long‑term offender provisions.  The sentencing judge held that these provisions were not available to a person who satisfies the dangerous offender criteria.  The Court of Appeal 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. Mitchell, [2003] 2 S.C.R. 396, 2003 SCC 49; 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, [2001] B.C.J. No. 2627 (QL), 2001 BCCA 690, reversing a decision of the Provincial Court.  Appeal dismissed.

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

Joseph J. Blazina, 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. Mitchell, [2003] 2 S.C.R. 396, 2003 SCC 49, 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 Mitchell, 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 .  The question that this appeal raises is whether the sentencing judge’s conclusion that the long-term offender provisions are not available to a person who satisfies the dangerous offender criteria 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 concluded that the long-term offender provisions were available.  Having concluded that the long-term offender provisions are not available to a person who satisfies the dangerous offender criteria, the sentencing judge did not conduct a full inquiry into the suitability of a long-term offender designation.  Absent such an inquiry, 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:  McCullough Parsons Blazina, Victoria.

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