SUPREME
COURT OF CANADA
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.