R. v. Sipos, 2014 SCC 47, [2014] 2 SCR 423

  

 

SUPREME COURT OF CANADA

 

Citation: R. v. Sipos, 2014 SCC 47, [2014] 2 S.C.R. 423

Date: 20140710 Docket: 35310

 

Between:

James Peter Sipos

Appellant

and

Her Majesty The Queen

Respondent

- and -

Criminal Lawyers’ Association (Ontario)

Intervener

 

 

Coram: LeBel, Abella, Rothstein, Cromwell, Moldaver, Karakatsanis and Wagner JJ.

 

Reasons for Judgment: (paras. 1 to 51)

Cromwell J. (LeBel, Abella, Rothstein, Moldaver, Karakatsanis and Wagner JJ. concurring)

 

 

 

r. v. sipos, 2014 SCC 47, [2014] 2 S.C.R. 423

James Peter Sipos                                                                                           Appellant

v.

Her Majesty The Queen                                                                              Respondent

and

Criminal Lawyers’ Association (Ontario)                                                    Intervener

Indexed as:  R. v. Sipos

2014 SCC 47

File No.:  35310.

2014:  April 15; 2014:  July 10.

Present:  LeBel, Abella, Rothstein, Cromwell, Moldaver, Karakatsanis and Wagner JJ.

on appeal from the court of appeal for ontario

                    Criminal law — Appeals — Dangerous offenders — Courts — Curative powers — Fresh evidence — Trial judge declaring accused to be dangerous offender without considering long‑term offender designation — Whether trial judge committed error of law — Whether Court of Appeal erred by using curative powers and upholding dangerous offender designation — Role of fresh evidence in dangerous offender designation appeals — Criminal Code, R.S.C. 1985, c. C‑46, ss. 753 , 759 .

                    In 1996, a jury convicted the accused of multiple sexual offences and physical assaults.  In 1998, the accused was declared a dangerous offender and given an indeterminate sentence.  Between the time of the convictions and the decision on the dangerous offender proceeding, the Criminal Code  was amended to add a new designation of long-term offenders.  The sentencing judge did not consider a long‑term offender designation before declaring the accused to be a dangerous offender.  In 2012, the Court of Appeal heard an appeal from the sentence. The accused filed fresh evidence consisting of a risk assessment created in 2010 and information about his performance in sexual offender programs while in custody.  A psychiatrist opined that the accused continued to meet the standard for being found a dangerous offender but also that some factors suggested suitability for release in 2016 with 10 years long‑term supervision.  The Court of Appeal admitted the fresh evidence. It held that the sentencing judge committed a legal error by not considering the long‑term offender provisions.  However, it applied its curative powers and upheld the dangerous offender designation.

                    Held:  The appeal should be dismissed.

                    An offender may appeal a dangerous offender designation on any ground of law or fact or mixed law and fact.  Appellate review is concerned with legal errors and whether the designation was reasonable.  An appellate court may exercise its curative power despite a legal error if there is no reasonable possibility that the verdict would have been different had the error not been made.  On dangerous offender appeals, the test set out in Palmer v. The Queen, [1980] 1 S.C.R. 759, governs the admissibility of fresh evidence.  Fresh evidence addressing events between the time of sentencing and the time of the appeal raises competing values.  Changes cannot be ignored but routinely deciding sentence appeals on the basis of after‑the‑fact developments could jeopardize the integrity of the criminal process by undermining its finality and could surpass the appropriate bounds of appellate review.  The appellate process should be both responsive to the demands of justice and respectful of the limits of appellate review.

                    Fresh evidence generally has little role to play when determining whether the curative power should be exercised.  In dangerous offender appeals, an appellate court may use its curative power only where there is no reasonable possibility that the result would have been different had the error not been made.  The exercise is necessarily focused on the record before the sentencing judge because the question concerns what that judge might have done had he or she applied correct legal principles.  The appellate court must consider whether the legal error may have resulted in exclusion of evidence that ought to have been admitted or otherwise affected the evidentiary record or the judge’s assessment of it. Fresh evidence meeting the Palmer test might be admitted but where new evidence has nothing to do with the possible impact of the legal error on the sentencing decision, it should not be considered.

                    In this case, the fresh evidence has nothing to do with the impact of the legal error made by the sentencing judge.  The sentencing judge’s only realistic option was a dangerous offender designation.  There is no suggestion that the failure to consider a long‑term offender designation affected the evidentiary record.  The correct focus is on the possible impact of the error on the sentencing judge’s decision, not on the accused’s current prospects for control in the community.

                    On the other hand, an offender may appeal a dangerous offender designation on the basis that it is unreasonable.  There is a wider role for fresh evidence in appellate review on this basis.  The appellate court may review the sentence in light of the whole record, including admissible fresh evidence.  In dangerous offender appeals, appellate courts are frequently confronted with evidence about an offender’s rehabilitation efforts and prospects.  Appellate courts generally take a very cautious approach to intervening solely on the basis of evidence of this nature but in exceptional and proper cases, in which the evidence is sufficiently compelling, they may intervene on the basis of after‑the‑fact evidence.  The focus is still on the impact of the new evidence on the sentencing proceeding, viewed in the context of the whole record.

                    The accused’s fresh evidence indicates a reasonable possibility of eventual control of the risk in the community if he were released from incarceration in about 2016 with a further period of 10 years long‑term supervision, subject to many qualifications.  However, viewed in light of the full record before the sentencing judge, the fresh evidence falls considerably short of showing that the dangerous offender designation was unreasonable.  Placing ourselves in the position of the sentencing judge with the added information from the fresh evidence, there is no reasonable possibility that the result of the dangerous offender proceedings would have been different.  The evidence does not show that the dangerous offender designation was unreasonable and this is not a case that demands appellate intervention.

Cases Cited

                    Referred to:  R. v. Johnson, 2003 SCC 46, [2003] 2 S.C.R. 357; R. v. Currie, [1997] 2 S.C.R. 260; R. v. M. (C.A.), [1996] 1 S.C.R. 500; R. v. Shropshire, [1995] 4 S.C.R. 227; R. v. McDonnell, [1997] 1 S.C.R. 948; R. v. Lévesque, 2000 SCC 47, [2000] 2 S.C.R. 487; Palmer v. The Queen, [1980] 1 S.C.R. 759; R. v. Angelillo, 2006 SCC 55, [2006] 2 S.C.R. 728; R. v. Hamilton (2004), 72 O.R. (3d) 1; R. v. Smith (2005), 376 A.R. 389; R. v. Riley (1996), 150 N.S.R. (2d) 390; R. v. Faid (1984), 52 A.R. 338; R. v. Jimmie, 2009 BCCA 215, 270 B.C.A.C. 301; R. v. Halliday, 2012 ONCA 351 (CanLII); R. v. N.A.S., 2007 MBCA 97, 220 Man. R. (2d) 43; R. v. Martin, 2012 QCCA 2223 (CanLII); R. v. Williamson, 2003 BCCA 673, 191 B.C.A.C. 208; R. v. Ferguson (2005), 207 O.A.C. 380; R. v. B.J.M., 2007 ONCA 221 (CanLII); R. v. T.L., 2008 ONCA 766 (CanLII); R. v. Mason (2001), 147 O.A.C. 388; R. v. Henry, 2002 BCCA 575, 174 B.C.A.C. 238; R. v. Armistead, 2003 BCCA 699, 192 B.C.A.C. 227.

Statutes and Regulations Cited

Criminal Code , R.S.C. 1985, c. C‑46, ss. 675(1) (b), 683(1) , 687 , Part XXIV, 752, 753 [ad. 1997, c. 17, s. 4], 753.1(1) [idem], 759(1), (3)(a), (7).

Tackling Violent Crime Act, S.C. 2008, c. 6.

Authors Cited

Ruby, Clayton C., Gerald J. Chan and Nader R. Hasan.  Sentencing, 8th ed.  Markham, Ont.:  LexisNexis, 2012.

                    APPEAL from a judgment of the Ontario Court of Appeal (Doherty, Watt and Pepall JJ.A.), 2012 ONCA 751, 298 O.A.C. 233, 297 C.C.C. (3d) 22, [2012] O.J. No. 5212 (QL), 2012 CarswellOnt 13907, affirming a sentencing decision of Lofchik J. (1998), 54 O.T.C. 241, [1998] O.J. No. 985 (QL), 1998 CarswellOnt 1219.  Appeal dismissed.

                    Michael Dineen and Jonathan Dawe, for the appellant.

                    Roger A. Pinnock, for the respondent.

                    Nader R. Hasan and Gerald Chan, for the intervener.

                    The judgment of the Court was delivered by

                    Cromwell J. —

I.              Introduction

[1]                              This appeal poses two related questions about appellate review of a dangerous offender designation. The first is whether the sentencing judge’s legal error in the course of imposing the designation on the appellant, Mr. Sipos, was “harmless” in the sense that it had no impact on the ultimate decision. A related question concerns the role on the appeal of fresh evidence about the offender’s current treatment and prospects.

[2]                              The Ontario Court of Appeal held that an error is harmless if there is no reasonable possibility that the sentencing judge’s decision would have been different had he not made the legal error. Where there is fresh evidence, this standard is applied as if the sentencing judge had access to it at the time of the original sentencing. Approaching the matter in this way, the Court of Appeal dismissed Mr. Sipos’ appeal. The Court of Appeal rejected Mr. Sipos’ position that the appeal should be allowed if the fresh evidence raises any reasonable possibility that the outcome of a new dangerous offender proceeding could be different from the original one.

[3]                              Mr. Sipos appeals by leave of the Court. He submits that the Court of Appeal was wrong in two respects. First, he says that the Court of Appeal was wrong to dismiss his appeal in light of the fresh evidence suggesting that there is a reasonable possibility that a new dangerous offender hearing might produce a different result from that reached at the original hearing. He further submits that the Court of Appeal erred by holding that the record in this case met the high standard required to conclude that the sentencing judge’s legal error was harmless. The appellant’s submissions are best considered by addressing the role of fresh evidence when the Court of Appeal is asked to use its curative powers in relation to dangerous offender appeals and by reviewing whether the Court of Appeal erred in using those curative powers in this case. 

[4]                              I agree with the result reached by the Court of Appeal and would dismiss the appeal.  However, as I will explain, I take a somewhat narrower view of the role of fresh evidence in relation to the question of whether the sentencing judge’s legal error was harmless.

II.           Overview of the Facts and Proceedings

A.           Procedural History

[5]                              The appeal has followed a long and complicated path before arriving here. This is a result of the intersection of developments in the legislation and case law coupled with very long delays in moving the appeal forward. I say this not to attribute fault to anyone, but to underline the unusual circumstances before us. The result is that the Court of Appeal in 2012 had before it a dangerous offender designation made in 1998, roughly 14 years earlier, and fresh evidence created in 2010, roughly 12 years after the conclusion of the proceedings before the sentencing judge.

[6]                              The beginning of the most relevant part of the story takes us back to April of 1996.  Lofchik J. sitting with a jury convicted Mr. Sipos of multiple sexual offences and physical assaults against three women committed from the mid-1970s to the mid-1980s. The convictions included attempted buggery, indecent assault, rape, sexual assault, assault causing bodily harm and common assault.  Mr. Sipos also had a considerable record of other offences of violence against women between the late 1970s and the mid-1980s. 

[7]                              Nearly two years after his conviction at trial, that is, in March of 1998, the judge found that Mr. Sipos was a dangerous offender and imposed an indeterminate sentence ([1998] O.J. No. 985 (QL)). 

[8]                              Between the time of the convictions and the ultimate decision nearly two years later on the dangerous offender proceeding, new legislation that is important to the case intervened.  The Criminal Code , R.S.C. 1985, c. C-46 , was amended to add a new designation of long-term offenders (S.C. 1997, c. 17, s. 4). These new provisions were in force at the time Mr. Sipos was found to be a dangerous offender but the judge did not consider them in reaching his decision.  There are many differences in both substance and procedure between the two designations.  But the main one is that in order to be found to be a long-term offender, the judge must be satisfied that “there is a reasonable possibility of eventual control of the risk in the community”: s. 753.1(1)(c).

[9]                              Mr. Sipos appealed from the convictions and sentence, but indicated that his sentence appeal was contingent on his convictions appeal being at least partially successful. The Court of Appeal dismissed the convictions appeal and did not deal with the sentence appeal (2001 CanLII 8541).  The judgment of the Court of Appeal was delivered in May of 2001 but, as noted, Mr. Sipos’ sentence appeal remained outstanding and undecided.

[10]                          The next relevant event came about five years after Mr. Sipos’ dangerous offender designation. In 2003, this Court released its decision in R. v. Johnson, 2003 SCC 46, [2003] 2 S.C.R. 357.  It decided that in dangerous offender proceedings that occurred after the new long-term offender provisions came into force — in other words, in cases like Mr. Sipos’ — judges must consider the option of a long-term offender designation, which may lead to a determinate sentence followed by long-term community supervision, before declaring a defendant to be a dangerous offender and imposing an indeterminate sentence.  Failure to do this is a legal error, often referred to as a “Johnson error”.

[11]                          As noted, the judge in 1998 did not consider the recently enacted long‑term offender provisions and, with the benefit of hindsight, this constituted a legal error in light of the 2003 judgment in Johnson.  On the basis of this error and other considerations, the Court of Appeal granted leave to reopen Mr. Sipos’ unresolved sentence appeal (2008 ONCA 325, 235 O.A.C. 277). But it took more than four years for this occur, so that the appeal was reopened only in late April of 2008.

[12]                          There was a further long delay: the appeal on the merits was not heard for more than four years, in August of 2012 (2012 ONCA 751, 298 O.A.C. 233). With the Crown’s consent, Mr. Sipos filed fresh evidence in the appeal proceedings.  The fresh evidence consisted of a risk assessment, prepared by Dr. Jeff McMaster in 2010, and information about his performance in sexual offender maintenance programs while in custody.

[13]                          This is how the Court of Appeal came to address in 2012 a dangerous offender designation that had been made roughly 14 years earlier and had evidence before it that was created in 2010, roughly 12 years after the designation.

B.            Judgment of the Court of Appeal

[14]                          The Court of Appeal concluded that, in light of Johnson, there was clearly a legal error in not considering the long-term offender option before designating Mr. Sipos as a dangerous offender. The Court of Appeal noted, however, that this error does not automatically compel a new dangerous offender hearing. Rather, the appellate court has a curative power: it may dismiss the appeal if persuaded that there is no reasonable possibility that the sentence would have been different had the legal error not been made (see Johnson, at paras. 47-50).

[15]                          Putting aside the fresh evidence, the Court of Appeal concluded that there was no such reasonable possibility, noting that Mr. Sipos did not contend otherwise.  The sentencing judge, in comprehensive reasons, found that the evidence before him did not support the view that, at some determinate point in the future, the risk that Mr. Sipos posed to society could be reduced to an acceptable level if he were to be allowed to live in the community. The sentencing judge’s analysis of the evidence would have inevitably led him to reject a long-term offender designation for the same reasons that he rejected the determinate sentence option: sentencing judge’s reasons, at paras. 199-207; Court of Appeal reasons, at para. 29.

[16]                          The question then arose as to how the Court of Appeal should use the new evidence in considering whether to exercise this curative power. The new evidence suggests that there is now a possibility that the risk that Mr. Sipos poses can be controlled in the community by 2016 with appropriate supervision. The Court of Appeal held that, while the new evidence must be considered, appellate review is fundamentally an error-correcting exercise that looks backward to the decision under appeal, in order to determine whether the court below fell into reversible error when it made the decision being reviewed. It held that the possibility that a different decision might be made if a new dangerous offender hearing were held now is irrelevant.  The question on appeal was whether, having regard to the evidence before the sentencing judge, and the fresh evidence admitted on appeal, there was any reasonable possibility that the result of the dangerous offender hearing would have been any different had the judge considered the long-term offender provisions. 

[17]                          The Court of Appeal answered this question in the negative. The court noted that the new evidence from Dr. McMaster consisted of his assessment as of 2010 and pertained to whether Mr. Sipos could meet the criteria for a long-term offender. Even on Dr. McMaster’s “‘best case’ scenario”, his potential release into the community was at least some 18 years away in 1998 (para. 34). Considering the report in light of the other evidence before the sentencing judge, the Court of Appeal concluded that Dr. McMaster’s risk assessment did not cast any doubt on the sentencing judge’s conclusion that as of 1998, an indeterminate sentence was appropriate.

III.        Analysis

[18]                          Before returning to the two issues in detail, it will be helpful to place them in their proper legal framework. That, in turn, requires a brief review of the difference between long-term offender and dangerous offender status, this Court’s decision in Johnson, the nature of appellate review and the powers of the court of appeal on dangerous offender appeals.

A.           Legal Framework

(1)         The Two Regimes

[19]                          The dangerous offender and long-term offender provisions found in Part XXIV of the Criminal Code  are both examples of preventive sanctions. While they may only come into play once the offender has been convicted of offences of a certain degree of seriousness, their focus is on imposing special measures on the offender in order to address an elevated risk of future offending. A dangerous offender may be sentenced to an indeterminate sentence of imprisonment; this is preventive detention in its clearest and most extreme form. A long-term offender may be sentenced for the underlying offence and, in addition, to a long-term supervision order not to exceed 10 years.  This is a preventive sanction that is finite in length and built on supervision in the community.

[20]                          For the purposes of this appeal, s. 753(1)(b) is the relevant provision in relation to Mr. Sipos’ designation as a dangerous offender.  Before the designation may be imposed, the offence for which the offender has been convicted must be a “serious personal injury offence”. Serious personal injury offences include offences involving the use or attempted use of violence for which the offender may be sentenced to imprisonment for at least 10 years and a number of specified sexual offences: s. 752. There is no question that Mr. Sipos’ convictions qualify.  The remaining elements required for the designation are both retrospective and prospective. The offender must be shown to have failed in the past “to control his or her sexual impulses” and, in the future, that there is “a likelihood of causing injury, pain or other evil to other persons through failure in the future to control his or her sexual impulses”: s. 753(1)(b).

[21]                          The long-term offender provisions permit the court to impose a sentence for the offence for which the offender has been convicted and order that he or she be subject to long-term supervision for a period that does not exceed 10 years: s. 753.1(3). In order to make a long-term offender designation, the court must be satisfied that it would be appropriate to impose a sentence of imprisonment of at least two years for the offence for which the offender has been convicted, that there is a substantial risk that the offender will reoffend, and that there is a reasonable possibility of eventual control of the risk in the community: s. 753.1(1).

(2)         Johnson and the “Johnson Error”

[22]                          The two regimes must be considered together. At the time of the sentencing judge’s decision, the version of s. 753 in force was the same as the one interpreted by this Court in Johnson. The Court held that if a sentencing judge is satisfied that the long-term offender provisions are sufficient to reduce the risk to the life, safety or physical or mental well-being of other persons to an acceptable level, the judge “cannot properly declare an offender dangerous and thereupon impose an indeterminate sentence, even if all of the statutory criteria have been satisfied”: Johnson, at para. 40.  Failure to consider these options became known as the “Johnson error”. There is no dispute between the parties that the sentencing judge made it in this case and it has not been suggested that the 2008 amendments to the provisions (S.C. 2008, c. 6) affect that conclusion in this case.

(3)         Dangerous Offender Appeals

[23]                          A person who has been found to be a dangerous offender may appeal to the court of appeal on any ground of law or fact or mixed law and fact: s. 759(1).  The appellate court has the statutory power to dismiss the appeal or to allow it. If the court allows the appeal, it may find that the offender is not a dangerous offender or a long-term offender, make an order that the trial court could make or order a new hearing: s. 759(3)(a).  There is no explicit reference to appellate review of the fitness of the designation.  This Court has determined that appellate review is concerned with legal errors and whether the dangerous offender designation was reasonable: R. v. Currie, [1997] 2 S.C.R. 260, at para. 33.

[24]                          Consistent with this broad understanding of the appellate court’s review of the sentence, this Court in Johnson interpreted the power to dismiss an appeal as including the power to do so even in the face of a legal error, provided that the error occasioned no substantial wrong or miscarriage of justice. The Court emphasized, however, that this will be so “in only the rarest of circumstances, if any”: para. 50. For the court to exercise this curative power, the Crown must show that there is “no reasonable possibility that the verdict would have been any different had the error of law not been made”: para. 49. 

[25]                          It is worth pausing here to contrast appellate review of a dangerous offender designation with that of what I will refer to as “regular” sentence appeals.  In indictable matters, the offender may appeal the sentence passed by the trial court unless the sentence is one fixed by law: s. 675(1)(b).  On the appeal, the court of appeal is to “consider the fitness of the sentence” and may “on such evidence, if any, as it thinks fit to require or to receive”, vary the sentence or dismiss the appeal: s. 687(1). This allows for appellate review for error in principle and for whether the sentence is demonstrably unfit or manifestly wrong.  This is a highly deferential standard of review. As Lamer C.J. put it in R. v. M. (C.A.), [1996] 1 S.C.R. 500, at para. 90:

     . . . absent an error in principle, failure to consider a relevant factor, or an overemphasis of the appropriate factors, a court of appeal should only intervene to vary a sentence imposed at trial if the sentence is demonstrably unfit.

 

(See also R. v. Shropshire, [1995] 4 S.C.R. 227, at paras. 45-50; R. v. McDonnell, [1997] 1 S.C.R. 948, at paras. 14-17.)

[26]                          The Court in Currie held that appellate review of a dangerous offender designation is somewhat more robust. Nonetheless, this does not call for a completely fresh look on appeal at the designation (or as lawyers say, a de novo assessment).  The appellate court must give some deference to the findings of the sentencing judge: Currie, at para. 33.

[27]                          Unlike dangerous offender appeals, there is no curative power on “regular” sentence appeals and the predominant view is that there is no authority in the court of appeal to remit the matter to the trial judge for a new sentencing hearing. On a regular sentence appeal, the appellate court’s role is to determine the legality and fitness of the sentence imposed at trial. If the court of appeal finds that there are grounds requiring its intervention, it imposes a fit sentence in what amounts to a new sentencing hearing: Criminal Code , s. 687 .

(4)         Fresh Evidence on Sentence Appeals

[28]                          On sentence appeals in indictable offences, the court may consider “such evidence, if any, as it thinks fit to require or to receive”: s. 687(1). There is no parallel provision in relation to appeals of dangerous offender designations. However, on those appeals, the court of appeal may admit fresh evidence when it is in the interests of justice to do so: s. 759(7) and s. 683(1). 

[29]                          The Court established in R. v. Lévesque, 2000 SCC 47, [2000] 2 S.C.R. 487, that while the sources and types of new evidence are more flexible in relation to sentence appeals, the well-known “Palmer” test governs admissibility of fresh evidence. That test, as is well known, sets out four criteria concerned with due diligence, relevance, credibility and impact on the result: Palmer v. The Queen, [1980] 1 S.C.R. 759, at p. 775. Generally, fresh evidence should not be received if it could have been obtained at trial by exercising due diligence, although this criterion is not strictly applied in criminal matters when it would be contrary to the interests of justice to do so. The evidence must be relevant in the sense that it relates to a potentially decisive issue and reasonably worthy of belief. Finally, the evidence, if accepted, must reasonably be expected to have affected the result when considered along with the trial evidence.  As Charron J. explained in R. v. Angelillo, 2006 SCC 55, [2006] 2 S.C.R. 728, at para. 15:

     In accordance with the last three of the Palmer criteria, an appellate court can therefore admit evidence only if it is relevant and credible and if it could reasonably be expected to have affected the result had it been adduced at trial together with the other evidence. [Emphasis added.]

 

[30]                          Fresh evidence addressing events that have occurred between the time of sentencing and the time of the appeal may raise difficult issues which bring competing values into sharp relief. On one hand, we must recognize, as Doherty J.A. put it in R. v. Hamilton (2004), 72 O.R. (3d) 1, at para. 166, that “[a]ppeals take time. Lives go on. Things change. These human realities cannot be ignored when the Court of Appeal is called upon to impose sentences well after the event.”  However, we must equally pay attention to the institutional limitations of appellate courts and the important value of finality. Routinely deciding sentence appeals on the basis of after-the-fact developments could both jeopardize the integrity of the criminal process by undermining its finality and surpass the appropriate bounds of appellate review: Lévesque, at para. 20; R. v. Smith (2005), 376 A.R. 389 (C.A.), at paras. 21-25.

[31]                          Given the almost infinite variety of circumstances that may arise, it is neither desirable nor possible to formulate any hard and fast, detailed rules about the sorts of after-the-fact evidence that should or should not be considered in all cases. The abundant appellate jurisprudence cannot be reduced to a tidy set of rules, but rather reflects the courts’ attempts to balance these at times competing values in light of particular and widely varying sets of circumstances: see, e.g., R. v. Riley (1996), 150 N.S.R. (2d) 390 (C.A.); R. v. Faid (1984), 52 A.R. 338 (C.A.); R. v. Jimmie, 2009 BCCA 215, 270 B.C.A.C. 301; R. v. Halliday, 2012 ONCA 351 (CanLII); and generally, C. C. Ruby, G. J. Chan and N. R. Hasan, Sentencing (8th ed. 2012), at §§ 4.49 ff.; R. v. N.A.S., 2007 MBCA 97, 220 Man. R. (2d) 43; R. v. Martin, 2012 QCCA 2223 (CanLII). At the level of principle, the approach set out in Lévesque and Angelillo strikes the balance between the competing values and, when applied thoughtfully to the particular circumstances before the court, provides sufficient flexibility to ensure that the appellate process is both responsive to the demands of justice and respectful of the proper limits of appellate review.

[32]                          With this legal framework in mind, I now return to the issues raised on appeal by Mr. Sipos.

B.            Did the Court of Appeal Err by Using Its Curative Powers?

[33]                          The appellant’s basic point is that the Court of Appeal’s error was to limit the application of its curative power by asking whether there was a reasonable possibility that the result at the original hearing would have been different but for the legal error. Instead, the appellant submits that the Court of Appeal ought to have followed what he says is the usual practice on sentence appeals of considering what would be a fit sentence at the time of the appeal: A.F., at paras. 16-17. This position, in my respectful view, is fundamentally flawed.

[34]                          The appellant’s submission in my view confuses appellate review for legal error with appellate review for the reasonableness of the designation. Whether the curative power should be exercised is part of appellate review for legal error. The question essentially involves considering what impact, if any, the legal error had on the outcome. In considering that question, fresh evidence generally has little role to play.  On the other hand, whether the designation is reasonable is a more searching form of appellate review and fresh evidence that meets the Palmer criterion potentially has a greater role to play in that context.

(1)         The Curative Power and Fresh Evidence

[35]                           In dangerous offender appeals, the appellate court may use its curative power to dismiss an appeal even though there was a legal error at first instance. This power may be used only where the legal error was “harmless” in the sense that there is no reasonable possibility that the result would have been different had the error not been made. It follows that a legal error does not necessarily require reconsideration of the sentence. The appellate court must consider whether the error had any impact on the result. But there is a heavy onus on the Crown: it must show that there is no reasonable possibility that the result would have been different had the error not been made. 

[36]                          This exercise is necessarily focused on the record before the sentencing judge because the question concerns what that judge might have done had he or she applied correct legal principles. Of course, the appellate court must also consider whether the judge’s legal error may have resulted in exclusion of evidence that ought to have been admitted or otherwise affected the state of the evidentiary record or the judge’s assessment of it: see, e.g., R. v. Williamson, 2003 BCCA 673, 191 B.C.A.C. 208; R. v. Ferguson (2005), 207 O.A.C. 380; R. v. B.J.M., 2007 ONCA 221 (CanLII). In cases of that nature, fresh evidence meeting the Palmer test might be admitted so that the appellate court can properly consider the impact of the error on the outcome. But generally speaking, where proposed new evidence has nothing to do with the possible impact of the legal error on the sentencing judge’s decision, it should not be considered in relation to the use of the curative power. This is nothing more than application of the second Palmer criterion: that the evidence be relevant in the sense that it bears upon a decisive or potentially decisive issue relating to the sentence. Evidence that is in no way linked to the legal error made by the sentencing judge is not relevant to the question of whether the curative power should be used.

[37]                          In this respect, I differ from the view of the Court of Appeal. It held that evidence of the offender’s current rehabilitative prospects has a role to play in connection with applying the proviso. In my view, absent some connection between the fresh evidence and the sentencing judge’s legal error, it does not.

[38]                          In this case, the fresh evidence has nothing to do with the impact of the legal error made by the sentencing judge. There is no dispute that, on the record before the sentencing judge, the only realistic option was a dangerous offender designation. There is no suggestion that the judge’s failure to consider a long-term offender designation in any way affected the evidentiary record before him or that he might have weighed the evidence differently if he had considered the long-term offender option.

[39]                          The appellant’s submission amounts to this: every legal error made by the sentencing judge requires the appellate court to direct a new hearing if there is any reasonable possibility that a different sentence would now be imposed. This approach, in my view, has two flaws. First, it loses entirely the correct focus when exercising the curative power. That focus is on the possible impact of the error on the sentencing judge’s decision, not on the offender’s current prospects for control in the community. Second, losing that focus in effect creates a very low threshold for obtaining a new sentencing hearing.  This, in my respectful view, turns the legal framework on its head. The appellate court would no longer be assessing the possible impact of the legal error on the result arrived at by the sentencing judge, but would be using the error to trigger a complete assessment of the current appropriateness of the sentencing judge’s decision. In short, any legal error, even though it could have had no conceivable impact on the sentencing judge’s decision, would require a new hearing unless the same result would almost inevitably be reached now.  This approach, if adopted, would convert appellate review for legal error into sentencing by instalment.

[40]                          The issue for the appellate court is not, as the appellant contends, what the outcome might conceivably be today. Rather, the issue is whether the past decision would have been the same notwithstanding the error: R.F., at para. 51.  I respectfully agree with Doherty J.A., writing for the Court of Appeal in this case, that on the appellant’s proposed approach,

the claim is not that the appellant was wrongly sentenced to an indefinite period of incarceration because the trial judge made a legal error, but that because the judge made a legal error the appellant should have his status reassessed as of the time of the appeal.

. . .

     . . . Where an offender’s real claim is that he has progressed to the point that his status should be reassessed, an appeal from the original decision is not the appropriate mechanism by which to achieve that new assessment. [paras. 20 and 23]

C.             Should the Dangerous Offender Designation Nonetheless Be Set Aside?

[41]                          As I have explained, my view is that the Court of Appeal took too expansive a view of the role of fresh evidence in relation to exercising the court’s curative power.  As I see it, there is no role for the fresh evidence in relation to the curative power in this appeal; the only remaining question is whether the dangerous offender designation should be set aside because it is unreasonable. This, in my respectful view, is the better lens through which to consider whether the Court of Appeal erred in its ultimate conclusion that the appeal should be dismissed. In my view, it did not.

[42]                          The offender may appeal a dangerous offender designation on the basis that it is unreasonable: Currie.  There is thus potentially a wider role for fresh evidence in relation to appellate review on this basis than there is when the appellate court is considering whether or not a legal error was harmless. While the new evidence must satisfy the Palmer criteria, the appellate court may review the sentence in light of the whole record, including any admissible fresh evidence. However, in the case of review on this basis, the onus is on the offender.

[43]                          In dangerous offender appeals, the appellate courts are frequently confronted, as we are in this appeal, with evidence about the offender’s rehabilitation efforts and prospects long after the initial sentencing.  While the Lévesque/Angelillo test sets out the applicable legal framework for admitting this sort of evidence, appellate courts generally take a very cautious approach to intervening solely on the basis of evidence of this nature: see, e.g., R. v. T.L., 2008 ONCA 766 (CanLII); R. v. Mason (2001), 147 O.A.C. 388; Halliday; R. v. Henry, 2002 BCCA 575, 174 B.C.A.C. 238; Jimmie.  Appellate courts have also recognized that in a proper case, in which the evidence is sufficiently compelling, they may intervene on the basis of after-the-fact evidence: see, e.g., Halliday, at para. 17; R. v. Armistead, 2003 BCCA 699, 192 B.C.A.C. 227. However, evidence about the offender’s post-sentencing rehabilitative efforts and prospects will only exceptionally meet the Lévesque/Angelillo test. Those developments are generally speaking matters for the correctional authorities to consider in the course of administering the offender’s indeterminate sentence.

[44]                          While fresh evidence has a potentially larger role to play in this context, the focus is still to a degree retrospective. The focus is on the impact of the new evidence on the sentencing proceeding, viewed in the context of the whole record.

[45]                          Mr. Sipos highlights that the thrust of the sentencing judge’s reasons was that “[the latter] was unpersuaded on the record before him that [he] would ever be a suitable candidate for release even if a very long determinate sentence were imposed”: A.F., at para. 38 (emphasis in original). Mr. Sipos refers to the sentencing judge’s conclusion that there was “no hard evidence . . . supporting the probability of a cure” during any determinate sentence that could be imposed: ibid., citing the sentencing judge’s reasons, at para. 200. The sentencing judge based this conclusion on the findings that the appellant refused drug therapy and that any positive comments on rehabilitation prospects were “islands of optimism in a sea of pathology”: sentencing judge’s reasons, at para. 201.  Mr. Sipos submits that the new evidence from Dr. McMaster shows that the assessment at the time of the original sentencing hearing was unduly pessimistic.

[46]                          As the appellant’s case rests on Dr. McMaster’s report, it is useful to summarize its key elements and conclusions. Dr. McMaster produced a comprehensive report in 2010 assessing Mr. Sipos’ psychiatric status. He was asked “whether Mr. Sipos present[ed] with a substantial risk of re-offence [as of 2010] and if there [was] a reasonable possibility of eventual control of that risk in the community”.  Dr. McMaster concluded that Mr. Sipos “continue[d] to meet the standard for being found a dangerous offender (D.O.)”.

[47]                          Dr. McMaster noted that some factors, which he reviewed in detail, suggested that Mr. Sipos was “now suitable for gradual release and reintegration into the community”. These factors included “his increased age, his successful treatment at sex offender and other groups, [his] successful treatment with sex drive reducing medication, and his plans which will assist him in adjusting to living in the community”.  Dr. McMaster noted, however, that it was “unclear” whether Mr. Sipos’ success in sex offender groups and lower risk would result in no recidivism in the “real world practical sense” and that any reintegration into the community should be undertaken in a “slow and step-wise fashion” using “extremely close monitoring and structure”. He concluded that from a psychiatric perspective he would not consider Mr. Sipos to be an assumable risk for the community until approximately the age of 60 with a further period of 10 years under a long-term supervision order “for safe measure”. In other words, Dr. McMaster thought there was a reasonable possibility of eventual control of the risk in the community if Mr. Sipos were released from incarceration in about 2016 and was subject to the maximum 10-year long-term supervision order. This opinion was subject to many qualifications in relation to such matters as whether Mr. Sipos’ advancing age would in fact reduce the risk; whether he would continue to take medication reducing his sex drive; whether his motivation to engage in treatment would be decreased if he were released into the community and whether adequate supervision was available in a community setting.

[48]                          This evidence shows that Mr. Sipos has made commendable progress in recent years, progress that was not foreseen at the time of his sentencing in 1998. However, Dr. McMaster’s report, viewed in light of the full record before the sentencing judge, falls considerably short of showing that the dangerous offender designation was unreasonable. I agree with Doherty J.A. that, placing ourselves in the position of the sentencing judge with the added information from Dr. McMaster’s assessment, there is no reasonable possibility that the result would have been different. It follows that there is also insufficient evidence to show that the sentencing judge’s decision, even had he had the benefit of Dr. McMaster’s report, was unreasonable. As Doherty J.A. put it:

     I do not think that Dr. McMaster’s risk assessment casts any doubt on the trial judge’s assessment that as of 1998, an indeterminate sentence was the appropriate sentence.  Despite the positive treatment developments, Dr. McMaster still viewed the appellant’s potential release into the community as about six years distant.  We now know, with the benefit of hindsight, and accepting Dr. McMaster’s opinion, that on a “best case” scenario, the appellant’s potential for release into the community was at least some 18 years away in 1998. [Emphasis added; para. 34.]

[49]                          Nor am I persuaded that this evidence places the appeal in that exceptional category in which the evidence is sufficiently compelling that it demands appellate intervention. 

[50]                          My view is that the Court of Appeal was correct to uphold the dangerous offender designation in this case.

IV.        Disposition

[51]                          I would dismiss the appeal.

                    Appeal dismissed.

                    Solicitors for the appellant:  Dawe & Dineen, Toronto.

                    Solicitor for the respondent:  Attorney General of Ontario, Toronto.

                    Solicitors for the intervener:  Ruby Shiller Chan Hasan, Toronto.