R. v. Dagenais

Case Name:
R. v. Dagenais
Between
Her Majesty the Queen, appellant, and
Raymond Adam Dagenais, respondent
[2003] A.J. No. 1585
2003 ABCA 376
Docket No.: 01-00211
Alberta Court of Appeal
Calgary, Alberta
Fruman and Wittmann JJ.A. and LoVecchio J. (ad hoc)
Heard: December 2, 2003.
Supplementary facta received October and November 2003.
Judgment: December 23, 2003.
(98 paras.)
Criminal law — Dangerous offenders, detention — Evidence — Protection of the
public — Pattern of repetitive behaviour — Persistent aggressive behaviour —
Indifference respecting consequences of behaviour to others — Evidence and proof.
Appeal by the Crown from the dismissal of its dangerous offender application in
respect of Dagenais. Dagenais committed 15 spousal assaults, made 14 threats to injure
or kill, and committed seven other violent offences. Dagenais brutally beat and stabbed
his common-law wife, left her for dead, and expressed hope that she died. Psychiatric
evidence showed that Dagenais had an anti-social personality, was unable to control his
behaviour, and had bleak prospects of rehabilitation. The Criminal Code empowered the
Court to designate a dangerous offender if the predicate offence was a serious personal
injury and if the offender repeatedly engaged in behaviour likely to cause death, injury, or
psychiatric damage, persistent aggressive behaviour showing significant indifference to
its consequences to others, or brutal behaviour compelling the conclusion that the
offender was unlikely to be governed by normal restraint. The Supreme Court of Canada
had previously held that the primary objective of the dangerous offender regime was the
protection of the public. The trial judge was not aware of that case. The trial judge found
that the predicate offence was a serious personal injury offence and that Dagenais met all
three of the Criminal Code's criteria for designation as a dangerous offender. However,
the judge exercised residual discretion to refuse to designate Dagenais on the grounds
that although his prospects of rehabilitation were bleak, there was some hope which
justified a determinate sentence rather than an indeterminate sentence. Dagenais did not
dispute the facts as found by the judge. The Crown appealed, arguing that the judge erred
in law.
HELD: Appeal allowed. Dagenais's sentence was set aside and he was designated a
dangerous offender. The judge erred in law by requiring elimination of all Dagenais's
rehabilitation prospects before designating Dagenais a dangerous offender. The judge
over-emphasized the importance of rehabilitation, and compromised the primary
objective of public safety. Given the lack of factual dispute, the Court of Appeal was in
as good a position as the trial judge to exercise discretion. As Dagenais met the Code's
criteria, and constituted a threat to the public, it designated him a dangerous offender.
Statutes, Regulations and Rules Cited:
Criminal Code, ss. 718.1, 718.2(d), 718.2(e), 753(1)(a)(i), 753(1)(a)(ii), 753.1(1),
753.1(3)(a), 753.1(3)(b), 753.1(6), 759(1), 759(2), 759(4)(a), 759(4)(b), 759(5).
Appeal From:
On appeal from the sentence by Park J., dated May 4, 2001.
Counsel:
Goran Tomljanovic, for the appellant.
Peter J. Royal, Q.C., for the respondent.
[Editor's note: A Corrigendum was released from the Court December 23,
2003. The corrections have been made to the text and the Corrigendum is appended to
this document.]
REASONS FOR JUDGMENT
Reasons for judgment were delivered by Wittman J.A. Concurred in by Fruman J.A.
and LoVecchio J.
WITTMANN J.A.:—
Introduction
¶1
The Crown appealed the sentencing judge's decision not to designate the
respondent, Raymond Dagenais, a dangerous offender. After the sentencing judge found
that the statutory criteria for a dangerous offender had been established beyond a
reasonable doubt, he then considered his residual discretion. He declined to impose the
designation primarily on the basis that the respondent's treatment prospects, although still
bleak, were not without some hope.
Facts
General background
¶ 2 On May 22, 1999, a jury convicted the respondent of three offences: two threats to
cause bodily harm, and one attempted murder of a female ("F-5"). For the offence of
attempted murder, the Crown sought the dangerous offender designation. Before detailing
the particular crime for which the respondent was sentenced, it is important to understand
the respondent's past behaviour.
¶3
The respondent's prior conduct was admitted to the dangerous offender hearing
through an agreed statement of facts which detailed a long history of violence over a
period of two decades. This violence included a pattern of abuse and violent aggression
towards his legal and common-law spouses, and towards women with whom he shared
intimate relationships. The respondent's attempt to murder F-5 was an escalation of his
prior offences against her and an escalation of the previous assaults on his other victims.
Based on his review of the respondent's prior offences, the sentencing judge found that
the respondent had committed 15 spousal assaults since 1977, made 14 threats to injure
or kill spouses or other persons, and committed seven other violent offences.
¶4
The sentencing judge noted that the respondent demonstrated substantial
indifference to the consequences of the physical injury and trauma inflicted on his
victims, and exhibited repeated lack of empathy for them. He found the respondent had
an open disregard for his victims' rights and was unable to appreciate the foreseeable
consequences of his actions. Further, the respondent suffered from substance abuse and
anger management problems, and was unable to maintain healthy long-term relationships
with women.
The respondent's past behaviour: 1972 - 1994
¶5
The information before the sentencing judge on the respondent's past behaviour
began with a 1972 conviction for robbery in Ontario. On this occasion, the respondent
was in possession of a .22 caliber automatic rifle which he sawed off to a length of
approximately 10 inches. Armed with this rifle, he entered a gas bar disguised by placing
a nylon over the upper part of his head and pulling the neck of his sweater over the lower
part of his face. He pointed the rifle at and then robbed the night attendant.
¶6
In 1973, the respondent commenced a relationship with a female ("F-1") while
both resided in Ontario. At that time, F-1 was 15 years old, six years younger than the
respondent. Their relationship continued despite the respondent's 1973 incarceration for
the 1972 armed robbery. While on parole in 1977, the respondent assaulted F-1 in her
apartment, hitting her all over her body. By July 1980, the respondent had been released
from the Ontario penitentiary and both he and F-1 had moved to Calgary. On October 5,
1980, while still on parole, the respondent again assaulted F-1. On October 30 and 31,
1980, he threatened over the telephone to kill F-1. However, by mid-November 1980, the
couple had reconciled and resumed cohabitation.
¶ 7 The next incident occurred in Calgary on February 24, 1981. While the respondent
was driving with F-1 as a passenger, he struck and killed a pedestrian. He slowed his
vehicle, but left the scene without stopping. Both the respondent and F-1 were charged
with criminal negligence causing death, and leaving the scene of an accident; however,
the charges against F-1 were subsequently withdrawn. The respondent pleaded guilty to
both of the charges arising from the pedestrian accident, and also pleaded guilty to
threatening to kill F-1 on October 30, 1980. He was sentenced to 30 months for the
threats (varied on appeal to one year), one year consecutive for criminal negligence, and
six months concurrent for leaving the scene.
¶8
When the respondent received parole on November 9, 1982, the conditions were
that he abstain from intoxicants and that he have no contact with F-1 or her family. Later
that same day, however, the respondent went to the workplace of F-1's brother and
assaulted him. The respondent swung at him, grabbed him by the tie, choked him, and
scratched him in the eyes. Still later that same day, the respondent called his parole
officer, and threatened to go after F-1. On May 7, 1984, the respondent pleaded guilty to
the November 9, 1982 assault and received time in custody.
¶ 9 During the 10 year period from April 1984 to June 1994, the sentencing judge
found that the respondent committed various other assaults and threats. In April 1984, he
committed spousal assault against a female ("F-2"). Later that year on December 11 and
12, 1984, he also committed spousal assault against a female ("F-3"). On the first
instance, he gave her a black eye; on the second, he hit her in the face, back and legs.
Following the second assault, F-3 escaped and ran to a store to call the police. The final
incident involving F-3 occurred on September 21, 1986, when the respondent struck her
in the face with his hand. He was convicted of common assault on June 3, 1987.
¶ 10 Another incident took place between the respondent and a male on October 12,
1986. While walking with a friend, the respondent made a sexual comment to a woman,
which was overheard by the woman's common-law husband. When the common-law
husband approached the respondent and asked if he had a problem, the respondent
answered that he could kill him in a minute. The respondent then pulled out a knife, and
pushed it within six inches of the common-law husband's chin. Thereupon, the commonlaw husband said that the respondent and his friend were sick, and the respondent replied
by stabbing himself in the left bicep, saying "See how easy it is."
¶ 11
Additional findings by the sentencing judge include that the respondent
threatened a male with a crowbar on June 29, 1989, and he assaulted a police officer on
April 8, 1992. Finally, during the period of July 22 to 31, 1993, the respondent threatened
F-4, a woman with whom he was in a spousal relationship at the time. He also damaged
her property and assaulted her.
The respondent's past behaviour with F-5
¶ 12 F-5 met the respondent in May 1994. The respondent's assaults on F-5 began in
June 1994. In the first reported instance, the respondent punched F-5 in the face and gave
her a black eye. The respondent assaulted her again on July 20, 1994 resulting in bruising
to her back and right knee, a cut to the inside of her upper lip, and a tender neck and
throat. The day after this assault, F-5 was advised by her family doctor to move out,
however, she was too afraid to take this step.
¶ 13 The respondent and F-5 married on August 13, 1994. Seven days later, the
respondent assaulted her for a third time. This was followed a short time later by an
assault in front of F-5's teenaged son on October 10, 1994. During an argument about her
son, F-5 crouched inside a closet in their home while the respondent kicked and hit her.
On July 27, 1995, the respondent assaulted F-5 again, this time resulting in the swelling
of her left eye. She visited her doctor the following day and was advised to see a lawyer
and lay charges.
¶ 14
During the period of July 20, 1994 to August 25, 1995, the respondent made
various threats to kill F-5 during arguments between them. For example, he threatened
that he would hunt her down and kill her if she ever left and would do so with a smile on
his face. She left the respondent on August 25, 1995, and went to live at the Sheriff King
Home in Calgary. F-5 reported these threats to the police on August 29, 1995. The
respondent was taken into custody and was released on his own recognizance on
September 14, 1995. The conditions of his release were that he abstain from alcohol and
have no contact with F-5. F-5 resided at the Sheriff King Home until September 21, 1995,
then lived with a friend or with her parents. Approximately four weeks after leaving the
shelter, she reconciled with the respondent and they recommenced cohabitation.
¶ 15
On November 3, 1995, the respondent assaulted F-5 for the sixth time. He had
been drinking at the time, despite the condition that he abstain from alcohol. After he
received an upsetting phone message, the respondent threw his drink and F-5's hot cup of
tea at her. She began packing to leave the home when the respondent grabbed her hair,
pulled her head down and brought his knee into her head. She continued packing after he
left, but upon his return to the room, the respondent grabbed her, forced his fingers in her
mouth, grabbed her throat and started pinching it. F-5 fell to the ground, at which time he
grabbed her by the hair and struck her several times. As a result of this incident, F-5
suffered a broken nose and a bruised cheek, forehead, left eye and upper forearm. F-5
called the police following this assault. The police arrested the respondent, but he was
again released on his own recognizance. This time his release was with a $200 cash
deposit and on condition that he not contact F-5. Despite this condition, the respondent
called F-5 several times from the remand centre, asking that she post his bail.
¶ 16 After his release on November 6, 1995, the respondent again assaulted F-5.
When he returned to the home in which he had resided with F-5, he told her to go to the
basement bedroom. He threw a cup of hot Neo-Citran at her and told her that he was tired
of her throwing him in jail for these `Mickey Mouse' charges. He then punched her in the
left eye, the same eye which had been bruised by the assault three days prior, leaving the
eye completely swollen shut. The respondent then strangled her, nearly to the point of
unconsciousness. The assault ended with the respondent threatening F-5 that if she were
to attend court, she would be dead.
¶ 17
On the morning of November 7, 1995, F-5 telephoned the police to report this
incident, resulting in another arrest. While at the police processing unit, the respondent
twice threatened F-5. In court that same day, the respondent threatened her by pretending
to point a gun at her head and mouthed threatening words to her about dying a slow
death. The respondent threatened F-5 in court again on December 15, 1995 at which time
he pretended to have a gun, looked at her and mouthed the words "Bang, you're dead!" to
her.
The predicate offence
¶ 18
The offences for which the sentencing judge was required to make a disposition
were two convictions for threatening to cause death or bodily harm, and one conviction
for the attempted murder of F-5.
¶ 19
The first threat for which the respondent was convicted occurred on July 3, 1997,
the day before he attempted to murder F-5. While he was sober, the respondent
threatened to kill F-5. The second threat for which he was also convicted occurred on
December 19, 1997 when the respondent threatened to kill F-5. For these threats, the
respondent was convicted by the jury of two counts of threatening to cause death or
bodily harm contrary to s. 264.1(1)(a) of the Criminal Code.
¶ 20
The predicate offence for which the Crown made the dangerous offender
application was the attempted murder of F-5. The jury convicted the respondent of this
attempted murder contrary to s. 239(b) of the Criminal Code.
¶ 21
The attempted murder occurred on July 4, 1997. On that day, the respondent
went to F-5's apartment building, intending to confront her. Prior to entering the building,
and without F-5's knowledge, the respondent slashed the tires on F-5's vehicle to prevent
her from leaving and then hid in the hallway until she returned to her suite.
¶ 22
On July 4, 1997, F-5 had left her apartment for work at approximately 7:15 a.m.
She went to the parking lot and noticed that her truck was unlocked, which was not how
she had left it. When she entered the vehicle, she also noted that some of the wiring had
been pulled and the vehicle would not start. As a result, she returned to her apartment
building. After she ensured that the security entrance was locked behind her, she returned
to her suite.
¶ 23
Before she could get the key into the door, the respondent came out from around
a corner and confronted F-5 with what she described as a two-inch long Swiss army
knife. He told her that she knew better than to call the cops and that she was going to die.
F-5 described the respondent running towards her with the knife, yelling and screaming.
She dropped the keys and bag that were in her hands. The respondent then began to stab
her with the knife with extreme force.
¶ 24 The respondent violently stabbed F-5 numerous times with the knife. This was a
continuous stabbing and the location of the stabbing appeared to be random. F-5 recalled
that the stabbing started with her hands and described the blood as jumping out of her
hands. He stabbed her in the chest, heart, spleen and her sides. The walls were covered in
blood. He punctured both of F-5's lungs, which collapsed as a result. Eventually she
could not scream anymore. He slit her throat missing her jugular vein by mere
centimetres. As he stabbed her, the respondent said, "Die you bitch." In addition to the
severe injuries suffered by F-5 as a result of this repeated stabbing, she also suffered
defensive wounds to her hands, fingers and arms. F-5 recalled having heard the
respondent saying that she was going to die approximately four times.
¶ 25
When the stabbing began, F-5 had been standing at the door to her apartment.
She fell to her knees almost immediately after he began stabbing her. F-5 next recalled
being in the fetal position, curled up lying on her side on the floor outside her apartment.
She had crossed her hands over her face to protect it from the attack. She was still in the
fetal position when he slit her throat.
¶ 26
F-5 testified that the respondent had pulled on her braid, jerked her head back,
slit her throat and said "Good, the bitch is dead." As he left F-5 to die, the respondent
kicked her in the head. With great difficulty, F-5 managed to get back into her apartment
and was able to call 911 for assistance.
¶ 27 After this attack, the respondent left F-5 to bleed to death. He did not seek
assistance for her, but, instead, fled the scene and tried to eliminate evidence of his blood
covered body and clothing. The respondent later indicated his regret that he did not
complete the murder. F-5 only escaped death as a result of expert medical intervention.
¶ 28 The respondent's initial confrontation with F-5 in the hallway was in front of a
witness. The witness heard the terrified screams of F-5 and heard the respondent state, "I
told you not to." According to the sentencing judge, this statement may support the
Crown's theory that the respondent went to F-5's apartment in order to take revenge on
her and punish her for going to the police.
¶ 29
The sentencing judge described the attempted murder as brutal and the
respondent's actions as savage and cruel. In addition to the severe physical injuries she
sustained in this attack, the respondent's actions undoubtedly caused psychological
damage to F-5. F-5 testified that she had lost most of the use of her right hand because a
tendon had been cut during the attack. She has scars all over her back, down both sides,
on her chest, hands, and neck. She described herself as having scars everywhere.
The dangerous offender hearing and expert evidence
¶ 30 The respondent was arrested in early July 1997 and has remained in custody from
the time of his arrest until the present.
¶ 31
After the conviction on the predicate offence, the Crown successfully applied to
the sentencing judge on May 28, 1999 for an order that the respondent undergo an
assessment under s. 752.1(1) of the Criminal Code. The respondent was admitted to the
Peter Lougheed Centre of the Calgary General Hospital on June 18, 1999 for an
assessment which was conducted by Dr. Levin from June 18 to July 1, 1999, and then by
Dr. Xie until July 7, 1999. The respondent was discharged prematurely on July 7, 1999
based on the belief of the forensic staff that he was causing problems. The respondent
remained in custody from July 7, 1999 until the dangerous offender hearing.
¶ 32 The Crown applied to have the respondent declared a dangerous offender on
April 14, 2000 and provided the respondent with notice of the evidence on which it
intended to rely. This evidence included evidence heard during the jury trial, the
respondent's criminal record, F-5's victim impact statements, the respondent's conduct
during the jury trial, evidence of prior offences in which the respondent was found guilty
or pled guilty, and evidence of other offences for which charges were stayed, withdrawn,
or were presently outstanding.
¶ 33 Two experts testified during the dangerous offender hearing. The first was Dr.
Dalby who was qualified as a forensic psychologist and was recognized as an expert by
the sentencing judge. Dr. Dalby testified for one day at the dangerous offender hearing.
The other expert who testified was Dr. Levin, who was recognized by the sentencing
judge as an experienced practitioner in the field of forensic psychiatry. He testified at the
dangerous offender hearing for approximately two and one-half days.
The Sentencing Judge's Decision
¶ 34 The sentencing judge provided the background to the dangerous offender
proceeding. He explained that defence counsel acknowledged the respondent met the
statutory criteria under ss. 753(1)(a)(i) and (iii), but went further and found that the
criteria under ss. 753(1)(a)(i), (ii), and (iii) had all been met beyond a reasonable doubt.
¶ 35 The sentencing judge set out a detailed analysis of the evidence he relied on to
find that the predicate offence of attempted murder was a serious personal injury offence,
including both the attempted murder of F-5 and the surrounding circumstances. In
addition to the respondent's particular crime, he also considered the offence of attempted
murder in general. After this analysis, the sentencing judge had no hesitation finding that
the respondent's conviction for attempted murder was a serious personal injury offence.
¶ 36
The sentencing judge then turned to what he described as the "threat issue" under
s. 753(1)(a), the need to determine whether the respondent constitutes a threat to the life,
safety, or physical or mental well-being of others as defined in that subsection. To make
this finding, the sentencing judge explained, he had to make a present determination that
the respondent would continue to be dangerous in the future.
¶ 37
He considered the respondent's pattern of behaviour and found it showed a
failure to restrain himself. The sentencing judge stated at AB 3351-2:
He cannot restrain his behaviour. When one looks at the evidence, one
notes that neither incarceration, counselling, probation, parole, police,
friends, court orders or the decorum of the courtroom restrains his
behaviour. Dagenais commits these acts despite incarceration for similar
offences, despite his counsellor's advice, despite his probation orders,
despite his parole conditions, despite the intervention of the police in
arresting him, despite his friends' advice, despite court orders and
recognizance[s], and finally, despite being in a courtroom, he continued to
threaten [F-5].
¶ 38
He then detailed specific evidence which demonstrated lack of restraint and
concluded at AB 3353-4:
Finally I am satisfied that the pattern shows a likelihood of death, injury, or
severe psychological damage to other persons and to [F-5] in particular
through failure by Dagenais to restrain his behaviour in the future.
I am further satisfied that Dagenais' conduct in the past demonstrates a
relatively high level of intractability. It does not offer any evidence that it
will change. The reasons for his behaviour militate against any reasonable
prospect from [sic] meaningful change in the future. His violence and the
likely continuation of that conduct justify the finding that he will likely
pose a threat in the future, In short, when Dagenais does not restrain his
behaviour, there is a likelihood of causing death or injury to other persons
or inflicting severe psychological harm on other persons through failure in
the future to restrain his behaviour. Raymond Dagenais' future danger is
firmly anchored in his pattern of past behaviour. Indeed, all of Dagenais'
offences involving violence demonstrate that he has inflicted injury to
other persons.
¶ 39
Only one of the three statutory criteria is required to designate an offender as a
dangerous offender. The sentencing judge found that the respondent met all three. He
considered the evidence of persistent aggressive behaviour to satisfy the s. 753(1)(a)(ii)
requirement for a substantial degree of indifference for the consequences to other persons
of the offender's behaviour. The sentencing judge found the respondent had a lengthy
history of aggression demonstrated in his criminal offences. He noted that not only did
the respondent have a history of persistent aggressive behaviour but that his recent
behaviour showed an escalation of violence. The sentencing judge also found the
respondent was indifferent to the consequences of physical injury or trauma to his victims
and lacked empathy for his victims. He concluded at 3359-60:
[T]his basis of evidence under section 753(1)(a)(ii) establishes to my
satisfaction beyond a reasonable doubt that as a result of his conviction for
the predicate offence, the attempted murder, Raymond Dagenais
constitutes a threat to the life, safety or physical or mental well-being of
other persons. Again I find that the statutory criteria under section
753(1)(a)(ii) have been met on the necessary standard of proof.
¶ 40
Finally, he found the behaviour of the respondent met the requirement in s.
753(1)(a)(iii) that the predicate offence, attempted murder, was of such a brutal nature to
compel the conclusion that the offender's future behaviour is unlikely to be inhibited by
normal standards of behavioural restraint. He reviewed the facts of the attempted murder,
noting the only thing that prevented the acts from being murder was medical intervention.
He described the respondent's conduct as brutal, savage and cruel. The sentencing judge
also reviewed the respondent's expression of regret that he had not killed the victim and
found the offence was an escalation of prior violence that the respondent had perpetrated
on F-5.
¶ 41
The sentencing judge had no difficulty finding beyond a reasonable doubt that
the respondent met the statutory requirements, but declined to impose a dangerous
offender designation based solely on his fact findings with respect to the statutory
criteria. The judge stated he had residual judicial discretion as set out in R. v. Neve
(1999), 137 C.C.C. (3d) 97 (Alta. C.A.), and R. v. Lyons (1987), 37 C.C.C. (3d) 1
(S.C.C.). As a result, he indicated it was also necessary to assess, in conjunction with the
expert evidence, the respondent's future danger to society. While he acknowledged that
psychiatric evidence was not necessary, the sentencing judge recognized the need for this
type of evidence, and hoped that it would aid and comfort him in assessing the
respondent's future dangerousness. The sentencing judge stated that these assessments
would assist him both in deciding whether the respondent's conduct fit the pattern
required by s. 753, and in ascertaining the respondent's future dangerousness, treatment
prospects, moral blameworthiness and the respondent as an offender. The sentencing
judge considered this analysis to be necessary for the exercise of his residual discretion.
¶ 42
In the next stage of his analysis, the sentencing judge considered the expert
evidence itself. He began with a detailed discussion of Dr. Levin's evidence, explaining
he found several problems with Dr. Levin's conclusions. His concerns included the length
of the doctor's interview with the respondent, his limited contact with the respondent, his
extensive use of secondary material, his limited use of consultation with health care
personnel and his lack of testing of the respondent or use of diagnostic tools.
¶ 43
Notwithstanding these problems, the sentencing judge found that Dr. Levin's
evidence assisted his determination that the respondent was a threat based on his past
behaviour and confirmed that the statutory criteria had been met. The sentencing judge
did not attach significant weight to Dr. Levin's opinion regarding the respondent's future
dangerousness. In particular, he did not give much weight to Dr. Levin's opinion that the
respondent exhibits a marked or severe anti-social personality disorder, as opposed to a
mere anti-social personality disorder.
¶ 44 Turning to the evidence of Dr. Dalby, the sentencing judge accepted his
assessment that the respondent has an anti-social personality disorder and poses a risk for
the future. However, the judge was unable to accept his diagnosis that the respondent has
a severe or marked form of the disorder. The sentencing judge's inability to attach weight
to this aspect of Dr. Dalby's evidence resulted from the fact that Dr. Dalby had only one
brief interview with the respondent, and had employed what the judge referred to at AB
3385 as a "rather singular diagnostic tool".
¶ 45
Following this assessment of the expert evidence, the sentencing judge
considered his residual discretion to impose a dangerous offender designation. He stated
his duty was to determine whether application of the statutory criteria would lead to an
unjust result and whether, on the evidence, the respondent falls within the relatively small
group of criminals for whom preventative incarceration is warranted. To exercise this
discretion, the sentencing judge referred to three factors that he would consider: the
respondent's treatment prospects, the relative degree of seriousness and the extent of his
moral blameworthiness, and the respondent himself.
¶ 46
While the sentencing judge did not accept the diagnosis of a marked or severe
anti-social personality disorder, he did accept that the respondent has an anti-social
personality disorder. He concluded at AB 3386-7:
I accept that Dagenais has an antisocial personality disorder. Hence, his
treatment prospects, although still bleak, are not without some hope. I am
as well concerned with the extent of the doctors' assessment of Raymond
Dagenais' future dangerousness because of their limited involvement and
their heavy reliance on weak secondary source materials. I do find some
probability for limited treatment prospects for Raymond Dagenais.
¶ 47
The sentencing judge found that the respondent's criminal culpability was
extremely high. Similarly, he found that the respondent was "extremely high on the moral
blameworthiness scale". As for the respondent himself, he found that his personal
circumstances were dismal, referring specifically to his long criminal record, substance
abuse and anger management problems, and inability to maintain long-term relationships
with women.
¶ 48 Concluding his analysis, the sentencing judge found that while the respondent
has a high probability to re-offend and remains a risk to society, he did not feel that he
had any reliable psychiatric evidence on which he could "realistically assess and
measure" the respondent's future risk and future dangerousness. In addition, based on the
"tainted" report of Dr. Levin and the limited interaction of both experts with the
respondent, the sentencing judge found himself unable to totally reject the respondent's
treatment prospects.
¶ 49
The sentencing judge was hesitant to place the respondent in the small group of
dangerous offenders in Canada. He stated this hesitation resulted from his reservations
about the psychiatric evidence and his reluctance to rely on his own assessment of the
non-psychiatric evidence, as he was not qualified to assess the respondent's treatment
prospects and future dangerousness without a reliable assessment. The sentencing judge
declined to impose a dangerous offender designation, although he commented that the
respondent had come to the very brink of being so designated.
¶ 50 He then asked whether the respondent should be designated as a long-term
offender. He declined to do so because he found no evidence of a reasonable possibility
of the respondent's eventual control of his risk in the community as required under s.
753.1(1). He stated at AB 3389:
While I found on the evidence before me that his treatment prospects were
bleak because of his ASPD designation, I did find on Dr. Dalby's evidence
some hope of treatment prospects for his behaviour. However, that
evidence for treatment prospects falls far short of establishing a reasonable
possibility of eventual control of the risk in the community.
¶ 51
The judge sentenced the respondent to life imprisonment.
Issue
¶ 52
The Crown conceded, and there is no dispute, that a sentencing judge, when
determining whether to designate a dangerous offender, not only has residual discretion,
but also has an obligation to consider exercising it. This discretion was referred to in
Lyons at 29 where LaForest J. stated:
[T]he court has the discretion not to designate the offender as dangerous or
to impose an indeterminate sentence, even in circumstances where all of
these criteria are met.
¶ 53 On September 26, 2003, the Supreme Court of Canada rendered five concurrent
decisions which confirmed the existence of residual discretion in dangerous and longterm offender sentencing, explained the relation between dangerous and long-term
offender designations and articulated the legal principles and factors that a sentencing
judge must consider in the exercise of that discretion: R. v. Johnson, [2003] S.C.J. No.
45, 2003 SCC 46, R. v. Edgar, [2003] S.C.J. No. 46, 2003 SCC 47, R. v. Smith, [2003]
S.C.J. No. 47, 2003 SCC 48, R. v. Mitchell, [2003] S.C.J. No. 48, 2003 SCC 49, R. v.
Kelly, [2003] S.C.J. No. 49, 2003 SCC 50. The Court stated in Johnson at para. 18:
As we will elaborate, neither the purpose of the dangerous offenders
regime, nor the principles of sentencing, nor the principles of statutory
interpretation suggest that a sentencing judge must designate an offender
dangerous if the statutory criteria in s. 753(1)(a) or (b) have been met. On
the contrary, each of these factors indicates that a sentencing judge retains
the discretion not to declare an offender dangerous even if the statutory
criteria are met. This is particularly true now that it is clear that offenders
declared dangerous must be given an indeterminate sentence.
¶ 54
The issue, therefore, is whether the sentencing judge's exercise of his residual
discretion in this case constituted an error of law.
Relevant Legislative Provisions
¶ 55 The applicable legislative provisions in determining whether to designate a
person a dangerous offender are contained in Part XXIV, ss. 752 and 753(1)(a) of the
Criminal Code. The first requirement is that the offence for which the person is being
sentenced must be a "serious personal injury offence."
752. In this Part,
"serious personal injury offence" means
(a) an indictable offence, other than high treason, treason, first degree
murder or second degree murder, involving
(i) the use or attempted use of violence against another person, or
(ii) conduct endangering or likely to endanger the life or safety of
another person or inflicting or likely to inflict severe
psychological damage upon another person, and for which the
offender may be sentenced to imprisonment for ten years or
more, ...
¶ 56 After establishing that the predicate offence is a serious personal injury offence,
the offender may be designated a dangerous offender if one of the three statutory criteria
set forth in s. 753(1)(a) have been met:
753.(1) The court may, on application made under this Part following the
filing of an assessment report under subsection 752.1(2), find the offender
to be a dangerous offender if it is satisfied
(a) that the offence for which the offender has been convicted is a serious
personal injury offence described in paragraph (a) of the definition of
that expression in section 752 and the offender constitutes a threat to
the life, safety or physical or mental well-being of other persons on the
basis of evidence establishing
(i) a pattern of repetitive behaviour by the offender, of which the
offence for which he or she has been convicted forms a part,
showing a failure to restrain his or her behaviour and a
likelihood of causing death or injury to other persons, or
inflicting severe psychological damage on other persons,
through failure in the future to restrain his or her behaviour,
(ii) a pattern of persistent aggressive behaviour by the offender, of
which the offence for which he or she has been convicted forms
a part, showing a substantial degree of indifference on the part
of the offender respecting the reasonably foreseeable
consequences to other persons of his or her behaviour, or
(iii) any behaviour by the offender, associated with the offence for
which he or she has been convicted, that is of such a brutal
nature as to compel the conclusion that the offender's behaviour
in the future is unlikely to be inhibited by normal standards of
behavioural restraint; or [...]
¶ 57
Section 753.1 sets out the criteria for designation of a long term offender. The
provisions relevant to this appeal state:
753.1 (1) The court may, on application made under this Part following the
filing of an assessment report under subsection 752.1(2), find an offender
to be a long-term offender if it is satisfied that
(a) it would be appropriate to impose a sentence of imprisonment of
two years or more for the offence for which the offender has
been convicted;
(b) there is a substantial risk that the offender will reoffend; and
(c) there is a reasonable possibility of eventual control of the risk in
the community.
¶ 58
Upon finding a long-term offender, s. 753.1(3) provides:
(3) Subject to subsections (3.1), (4) and (5), if the court finds an offender
to be a long-term offender, it shall
(a) impose a sentence for the offence for which the offender has
been convicted, which sentence must be a minimum punishment
of imprisonment for a term of two years; and
(b) order the offender to be supervised in the community, for a
period not exceeding ten years, in accordance with section 753.2
and the Corrections and Conditional Release Act.
¶ 59
If the offender is not found to be a long-term offender, s. 753.1(6) requires:
(6) If the court does not find an offender to be a long-term offender, the
court shall impose sentence for the offence for which the offender has
been convicted.
¶ 60 Section 752.1(1) provides the Crown with the ability to apply to the court for an
order that an offender be remanded for an expert assessment. This assessment can then be
used as evidence in an application under s. 753. Section 752.1(1) states:
752.1(1) Where an offender is convicted of a serious personal injury
offence or an offence referred to in paragraph 753.1(2)(a) and, before
sentence is imposed on the offender, on application by the prosecution, the
court is of the opinion that there are reasonable grounds to believe that the
offender might be found to be a dangerous offender under section 753 or a
long-term offender under section 753.1, the court may, by order in writing
remand the offender, for a period not exceeding sixty days, to the custody
of the person that the court directs and who can perform an assessment, or
can have an assessment performed by experts. The assessment is to be used
as evidence in an application under section 753 or 753.1.
¶ 61
Part XXIV of the Criminal Code also provides the basis on which the sentencing
judge's disposition in a dangerous offender hearing can be appealed by the Crown or by
the offender. The Crown's right of appeal is more limited than an offender's. This part of
the Criminal Code also sets out the powers of the court of appeal upon allowing or
dismissing an appeal.
759 (1) An offender who is found to be a dangerous offender under this
Part may appeal to the court of appeal against that finding on any ground
of law or fact or mixed law and fact.
[...]
(2) The Attorney General may appeal to the court of appeal against the
dismissal of an application for an order under this Part, or against the
length of the period of long-term supervision of a long-term offender,
on any ground of law.
[...]
(4) On an appeal against the dismissal of an application for an order that
an offender is a dangerous offender under this Part, the court of appeal
may
(a) allow the appeal and
(i) find that the offender is a dangerous offender,
(ii) find that the offender is not a dangerous offender, find that
the offender is a long-term offender, impose a minimum
sentence of imprisonment for two years, for the offence for
which the offender has been convicted, and order the
offender to be supervised in the community, for a period
that does not, subject to subsection 753.1(5) exceed ten
years, in accordance with section 753.2 and the
Corrections and Conditional Release Act, or
(iii) order a new hearing; or
(b) dismiss the appeal.
(5) a judgment of the court of appeal finding that an offender is or is not a
dangerous offender or a long-term offender, or changing the length of
the period of long-term supervision ordered, has the same force and
effect as if it were a finding by or judgment of the trial court.
Standard of review
¶ 62 This appeal does not raise issues of fact. However, the parties disagree whether
the issue is one of law or one of mixed fact and law. The proper categorization of the
issue determines not only the standard of review but in the case of a Crown appeal, this
Court's jurisdiction to conduct a review. The Crown may only appeal the sentencing
judge's failure to designate an offender dangerous on a ground of law. This review,
therefore, proceeds on the correctness standard.
¶ 63
What constitutes an issue of law or mixed fact and law was defined by the
Supreme Court in Canada (Director of Investigation and Research, Competition Act) v.
Southam, [1997] 1 S.C.R. 748 and Housen v. Nikolaisen, [2002] S.C.J. No. 31, 2002
SCC 33. Southam provided a brief characterization at para. 35:
Briefly stated, questions of law are questions about what the correct legal
test is; questions of fact are questions about what actually took place
between the parties; and questions of mixed law and fact are questions
about whether the facts satisfy the legal tests.
¶ 64
When an issue before the court of appeal involves applying a legal standard to a
set of facts, the question is one of mixed fact and law. The Supreme Court of Canada
recently cited Southam in Housen v. Nikolaisen at para. 27 to confirm that "what appears
to be a question of mixed fact and law, upon further reflection, can actually be an error of
pure law." In Southam at para. 39, the Court explained when an issue of mixed fact and
law is a question of law:
[I]f a decision-maker says that the correct test requires him or her to
consider A, B, C, and D, but in fact the decision-maker considers only A,
B, and C, then the outcome is as if he or she had applied a law that required
consideration of only A, B, and C. If the correct test requires him or her to
consider D as well, then the decision-maker has in effect applied the wrong
law, and so has made an error of law.
¶ 65 Housen v. Nikolaisen at paras. 36 and 37 provides another instance in which
what appears to be a question of mixed fact and law can actually be a question of pure
law and thus, reviewed on the standard of correctness:
Matters of mixed fact and law lie along a spectrum. Where, for instance, an
error with respect to a finding of negligence can be attributed to the
application of an incorrect standard, a failure to consider a required
element of a legal test, or similar error in principle, such an error can be
characterized as an error of law, subject to a standard of correctness.
Appellate courts must be cautious, however, in finding that a trial judge
erred in law in his or her determination of negligence, as it is often difficult
to extricate the legal questions from the factual. It is for this reason that
these matters are referred to as questions of "mixed law and fact." Where
the legal principle is not readily extricable, then the matter is one of "mixed
law and fact" and is subject to a more stringent standard...
...
[A] question of mixed fact and law..is subject to a standard of palpable and
overriding error unless it is clear that the trial judge made some extricable
error in principle with respect to the characterization of the standard or its
application, in which case the error may amount to an error of law.
Analysis
The dangerous offender determination
¶ 66 The parties were invited to make additional written submissions in light of the
Supreme Court of Canada's decisions in Johnson, Edgar, Smith, Mitchell and Kelly. Both
did.
¶ 67
The Supreme Court of Canada in Johnson stated that a sentencing judge retains
the discretion not to declare an offender dangerous even if the statutory criteria are met.
The Court reiterated that the dangerous offender proceedings form part of the sentencing
process and as such, the sentencing judge, when exercising discretion, must be guided by
the relevant principles of sentencing contained in ss. 718 to 718.2 of the Criminal Code,
which include the fundamental principle of proportionality contained in s. 718.1 and the
principle of restraint enunciated in ss. 718.2(d) and (e).
¶ 68
Sections 718.1 and 718.2(d) and (e) provide as follows:
718.1 A sentence must be proportionate to the gravity of the offence and
the degree of responsibility of the offender.
718.2 A court that imposes a sentence shall also take into consideration the
following principles:
...
(d) an offender should not be deprived of liberty, if less restrictive
sanctions may be appropriate in the circumstances; and
(e) all available sanctions other than imprisonment that are
reasonable in the circumstances should be considered for all
offenders, with particular attention to the circumstances of
aboriginal offenders.
¶ 69 The Court stated at para. 28, "The joint effect of these principles is that a
sentencing judge must consider the possibility that a less restrictive sanction would attain
the same sentencing objectives that a more restrictive sanction seeks to attain."
¶ 70
The primary objective of the dangerous offender regime, the Court stated at para.
19, citing Lyons, "is the protection of the public." And further at para. 20, the Court
stated, "Indeterminate detention under the dangerous offender regime is warranted only
insofar as it actually serves the purpose of protecting the public."
¶ 71 The Court emphasized one factor that must be considered is whether the longterm offender provisions would be sufficient to protect the public from the threat of harm
that the dangerous offender provisions seek to advance. The sentencing judge must
determine whether the sentencing sanctions available pursuant to the long-term offender
provisions are sufficient to reduce the threat of harm to an acceptable level, despite the
fact that the statutory criteria for a dangerous offender have been met.
¶ 72
The Court observed that where the offender currently constitutes a threat to the
life, safety or physical or mental well-being of other persons, yet there is a reasonable
possibility of eventual control of the risk in the community, an offender will satisfy the
criteria in both the dangerous offender and long-term offender provisions. In those
instances, it may be that the sentencing sanctions available under the long-term offender
provisions are capable of reducing the threat to the life, safety or physical or mental wellbeing of other persons to an acceptable level. At para. 32, the Court stated:
The very purpose of a long-term supervision order, then, is to protect
society from the threat that the offender currently poses - and to do so
without resort to the blunt instrument of indeterminate detention. If the
public threat can be reduced to an acceptable level through either a
determinate period of detention or a determinate period of detention
followed by a long-term supervision order, a sentencing judge cannot
properly declare an offender dangerous and sentence him or her to an
indeterminate period of detention.
¶ 73 The reasons in Johnson make abundantly clear that the exercise of residual
discretion must always take into account the objective of the protection of the public. As
well, there is no suggestion in Johnson that the sentencing judge, in exercising residual
discretion, should reconsider or re-weigh factors already used to decide that the offender
met the statutory requirements for a dangerous offender.
Exercise of residual discretion in this appeal
¶ 74
In this appeal, the sentencing judge, who did not have the benefit of the reasons
in Johnson, erred in law by misapprehending the test for the exercise of discretion. He
focussed on the dubious prospect of rehabilitation and failed to consider whether public
safety would be compromised by a determinate sentence.
¶ 75
The sentencing judge was bound by and applied Neve which at para. 229
described the residual judicial discretion to be exercised as requiring the sentencing judge
to ask, "Does this offender fall within that relatively small group of criminals in respect
of whom preventative incarceration is warranted?" His reasons for failing to designate the
respondent a dangerous offender focussed on treatment prospects. This constituted an
error in law in two ways: first, by creating an additional criterion, the elimination of all
treatment prospects, as a prerequisite for a dangerous offender designation; and second,
by requiring the treatment standard to be satisfied even when public safety would be
compromised by failing to impose an indeterminate sentence.
¶ 76
The sentencing judge reached several conclusions on the respondent's treatment
prospect. He said:
[H]is treatment prospects, although still bleak, are not without some
hope.(AB 3386)
I do find some probability for limited treatment prospects for Raymond
Dagenais. (AB 3387)
I do not feel I can totally reject his treatment prospects. (AB 3388)
¶ 77
Reading the first statement, it appears the sentencing judge would not designate
the respondent a dangerous offender unless there was no hope of treatment. From the
third statement, it appears the sentencing judge would not exercise his judicial discretion
to designate the respondent a dangerous offender unless he could totally reject any
prospect of treatment.
¶ 78
This Court's decision in Neve indicated that future treatment prospects should be
considered a factor in exercising residual discretion. But that decision did not require a
sentencing judge to completely reject all prospects for treatment of the offender or find
treatment to be entirely hopeless before making the designation, nor did it invite judges to
disregard other sentencing principles, such as protection of the public, in exercising
residual discretion. The standard the sentencing judge applied to the offender's prospects
for treatment was incorrect; he in fact created a new standard, one which would require a
finding that the offender had absolutely no prospect of treatment. This standard would be
impossible to meet.
¶ 79
The sentencing judge, in considering whether there was any possibility of
treatment, elevated that factor to a determining principle in the exercise of his discretion.
This was an error of law analogous to the illustration in Southam quoted above.
¶ 80 The respondent submitted, based in part on R. v. Roestad (1971), 19 C.R.N.S.
190 at 222 (Ont. Co. Ct.), that the burden is on the Crown to prove that the offender is not
likely to benefit from treatment and is not motivated by treatment. However, in R. v.
Nepoose (1997), 200 A.R. 273 at para. 16 this Court stated, "[T]he Crown has no
obligation to refute treatability."
¶ 81
More significantly, by elevating the total lack of treatment prospects to a
prerequisite for a dangerous offender designation, the sentencing judge erred by failing to
consider whether public safety would be adequately protected as required by Johnson.
¶ 82 Johnson directs the long-term offender criteria be considered first, since this
designation constitutes a less restrictive means to protect the public. An indeterminate
sentence as a dangerous offender should only be imposed when less restrictive means do
not exist.
¶ 83 In this case, the sentencing judge determined the dangerous offender designation
before considering the long-term offender criteria. Despite the order in which he
considered these matters, it is clear he was of the view that the respondent remains a risk
to society and that risk would not be adequately met with a long-term offender
designation.
¶ 84 In Johnson, the Supreme Court of Canada said that discretion must be exercised
on the basis of the sentencing principles set out in ss. 718 to 718.2 and in particular, ss.
718.1 and 718.2(d) and (e). The sentencing judge considered each of these. In
considering the proportionality of the sentence to the gravity of the offence and the
degree of responsibility of the offender as required under s. 718.1, the sentencing judge
found the respondent's moral culpability to be "extremely high" (AB 3387) and the
offence to be "one of stark horror" and "a close selection for a designation as one of the
worst cases of attempted murder" (AB 3396).
¶ 85 He considered the restraint principles as set out in ss. 718.2(d) and (e) and
concluded that "because of the seriousness and brutality of the attempted murder, they
will not be applicable" (AB 3392).
¶ 86 Despite his conclusions regarding ss. 718.1 to 718.2, he declined to find the
respondent a dangerous offender and further declined to declare him a long-term
offender. The sentencing judge stated at AB 3389:
There was no evidence before me of a reasonable possibility of Raymond
Dagenais' eventual control of his risk in the community [...]. While I found
on the evidence before me that his treatment prospects were bleak because
of his ASPD designation, I did find on Dr. Dalby's evidence some hope of
treatment prospects for his behaviour. However, that evidence for
treatment prospects falls far short of establishing a reasonable possibility of
eventual control of the risk in the community.
[Emphasis
added.]
¶ 87 The three criteria that must be established on a long-term offender application
are: (i) it must be appropriate to impose a sentence of imprisonment of two or more years
in respect of the predicate offence; (ii) there must be a substantial risk that the offender
will reoffend; and (iii) there must be a reasonable possibility of eventual control of the
risk in the community.
¶ 88
The sentencing judge here correctly considered whether the public would be
adequately protected by a long-term offender designation and concluded there was no
reasonable possibility of eventual control of the risk in the community.
¶ 89
At para. 29 of Johnson, the Court stated:
The principles of sentencing thus dictate that a judge ought to impose an
indeterminate sentence only in those instances in which there does not
exist less restrictive means by which to protect the public adequately from
the threat of harm, i.e., where a definite sentence or long-term offender
designation are insufficient. The essential question to be determined, then,
is whether the sentencing sanctions available pursuant to the long-term
offender provisions are sufficient to reduce this threat to an acceptable
level, despite the fact that the statutory criteria in s. 753(1) have been met.
¶ 90
Logically, this implies an analytical hierarchy in the sentencing process,
progressing from the least severe, a determinate sentence, to a determinate sentence with
up to a 10-year probationary period, to the most severe, an indeterminate sentence. If a
determinate sentence together with a 10-year probationary period will not control an
offender's risk to re-offend, it follows that a determinate sentence with no probation also
cannot achieve this objective. The remaining alternative to adequately protect public
safety is an indeterminate sentence.
¶ 91 In exercising his discretion to not impose a dangerous offender designation, the
sentencing judge considered the possibility of treatment, albeit remote, to be an absolute
bar to a dangerous offender designation. This is an error of law because he applied the
wrong test to exercise his discretion.
Appellate court's powers upon finding an error
¶ 92
The Supreme Court of Canada considered when an appeal court can interfere
with the trial judge's exercise of discretion in Elsom v. Elsom, [1989] 1 S.C.R. 1367.
Gonthier J. said at para. 15:
Courts of Appeal should be highly reluctant to interfere with the exercise
of a trial judge's discretion. It is he who has the advantage of hearing the
parties and is in the best position to weigh the equities in this case.
Gonthier J. referred to Harper v. Harper, [1980] 1 S.C.R. 2 and at para. 16 stated:
The principles enunciated in the Harper case, supra, indicate that an
appellate court will be justified in intervening in a trial judge's exercise of
his discretion only if the trial judge misdirects himself or if his decision is
so clearly wrong as to amount to an injustice.
¶ 93 The decision in Elsom v. Elsom was approved recently in R. v. Regan, [2002]
S.C.J. No. 14. The discretionary decision made by the trial judge in that case was whether
to grant a stay. At para. 121, LeBel J. indicated that the trial judge had misdirected
himself on the test for granting a stay, and this was found to be an error of law. While it
was a discretionary decision, the trial judge misapprehended the law.
¶ 94 Here, the sentencing judge also misdirected himself by applying the wrong test to
exercise his discretion.
Whether the respondent should be designated a dangerous offender
¶ 95
There is no dispute on the facts. In the result, this Court is in as good a position
as the sentencing judge to exercise its discretion afresh whether or not to impose the
dangerous offender designation. The respondent clearly met the statutory criteria to be
designated a dangerous offender. Both parties agreed and the sentencing judge had little
difficulty finding that the criteria had been met beyond a reasonable doubt, as required.
The respondent easily fits into the categories of a dangerous offender.
¶ 96 As set out in Johnson, the long-term offender criteria must first be considered.
Based on the extreme violence of the predicate offence and on the respondent's pattern of
violent behaviour in the past, the first two criteria are clearly satisfied; it is appropriate to
impose a sentence of imprisonment of two or more years in respect of the predicate
offence and there is a substantial risk that the offender will reoffend. On the third criteria,
the evidence supports the sentencing judge's conclusion that there is no reasonable
possibility of eventual control of the risk in the community.
¶ 97 The respondent constitutes a threat to the life, safety or physical or mental wellbeing of other persons on the basis of a pattern of repetitive and persistent aggressive
behaviour, and the brutal nature of the attempted murder. As there is no reasonable
possibility of eventual control of the risk in the community, there does not exist a less
restrictive means to adequately protect the public from the threat of harm than to impose
an indeterminate sentence. There is no basis upon which to exercise the residual
discretion not to designate the respondent a dangerous offender.
Relief
¶ 98 The appeal is allowed. The sentence of life imprisonment is set aside. Deganais is
designated a dangerous offender, and is sentenced to detention in a penitentiary for an
indeterminate period.
WITTMANN J.A.
FRUMAN JA.: I concur.
LoVECCHIO J. (ad hoc): I concur.
*****
CORRIGENDUM
Released: December 23, 2003.
In paragraph [98], the last sentence has been corrected to read: "The sentence of life
imprisonment is set aside. Deganais is designated a dangerous offender, and is sentenced
to detention in a penitentiary for an indeterminate period."
QL UPDATE: 20031230
cp/e/qw/qlmmm/qlcas