R. v. Kelly, 2003 SCC 50, [2003] 2 SCR 400

R. v. Kelly, [2003] 2 S.C.R. 400, 2003 SCC 50

Her Majesty The Queen                                                                                  Appellant

v.

Michael Edward Kelly                                                                                  Respondent

and

Attorney General of Canada                                                                          Intervener

Indexed as:  R. v. Kelly

Neutral citation:  2003 SCC 50.

File No.:  29140.

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 after enactment in Criminal Code  of long‑term offender provisions — Whether sentencing judge’s failure to consider possibility of long‑term offender designation constituted error of law — Criminal Code, R.S.C. 1985, c. C‑46, ss. 753(1) , 753.1 , 759(3) (b).

The sentencing judge found the accused to be a dangerous offender and sentenced him to an indeterminate period of incarceration.  The predicate offence occurred after the enactment in the Criminal Code  of the long‑term offender provisions, but the sentencing judge did not consider the applicability of these provisions.  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, a sentencing judge must consider the possibility of a long‑term offender designation prior to declaring an offender dangerous.  In the absence of a full inquiry into the suitability of the long‑term offender provisions, 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. Mitchell, [2003] 2 S.C.R. 396, 2003 SCC 49.

APPEAL from a judgment of the British Columbia Court of Appeal (2002), 163 B.C.A.C. 287, 267 W.A.C. 287, [2002] B.C.J. No. 352 (QL), 2002 BCCA 121, reversing a decision of the Provincial Court.  Appeal dismissed.

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

Jeffrey R. Ray and Letitia Sears, 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. Mitchell, [2003] 2 S.C.R. 396, 2003 SCC 49, involves an appeal against a sentencing judge’s decision to declare an offender dangerous and sentence him to an indeterminate period of detention.  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, a sentencing judge must consider the possibility of a long-term offender designation prior to declaring an offender dangerous.  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.  In the absence of a full inquiry into the suitability of the long-term offender provisions, 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:  Jeffrey R. Ray and Letitia Sears, New Westminster.

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