This week’s top three summaries: R v Runions, 2023 ABCA 29: #dangerous off’dr sentence, R v LL, 2023 ONCA 52: 11(b) #jurisdiction, and R v Crier, 2023 ABCA 26: #sentence error Gladue, 1st off’dr, rehab.
This week's top case deals with sentencing issues. For great general reference on the law of sentencing, I recommend the Emond title below. It is available for purchase now for our readership with a 10% discount code provided below. To purchase, simply click on image below.
R v Runions, 2023 ABCA 29
[January 30, 2023] Sentencing: Dangerous Offender Proceedings - Distinction of Designation Stage from Need for Indeterminate Sentence [Strekaf, Feehan, and Ho JJ.A.]
AUTHOR’S NOTE: In order to designate someone a dangerous offender, a sentencing judge must (amongst other things) determine that the person both poses a high likelihood of harmful recidivism and that his or her conduct is intractable (ie. behaviour the offender is unable to surmount). At the sentencing stage, to give an indeterminate sentence, the judge must be satisfied that there is no lesser measure that will adequately protect the public against the commission of murder or a serious personal injury offence. A finding of intractability cannot determine the need for an indeterminate sentence. A thorough inquiry into the possibility of eventual control in the community is necessary for the judge to find the "fittest" sentence. Here, the ABCA found the trial judge's reasons for imposing an indeterminate sentence were at core based reliance on the expert's evidence that led to a finding of intractability. This was an error that led the Appeal Court to order the matter back for re-sentencing.
The Court:
I. Introduction
[3] The appeal is allowed for the reasons that follow.
II. Background Facts
[5] The attack occurred after the appellant and an acquaintance met with the complainant and noticed he was wearing a gold chain. The appellant told the complainant he liked the chain and asked if he was interested in selling it. After the complainant said no and placed the chain in his pocket, the three men travelled a short distance together into an alley. In the alley, the complainant heard a firearm click and turned around to see the acquaintance brandishing an imitation gun and the appellant holding a large machete. Believing he would be robbed, the complainant attempted to move but the appellant quickly slashed the machete into the left side of his neck. The complainant ran down the back alley, yelling for help and tightly applying pressure to his neck. A passerby provided prompt medical assistance to stem the loss of blood. The complainant was transported to the hospital in life-threatening condition after losing two litres of blood. He immediately underwent surgery and received a blood transfusion.
[6] The stab wound was severe and life-threatening, and had a profound impact on the complainant, who was left with impaired facial functioning and had to relearn basic functions such as eating and speaking....
- 2008: assault, s 266
- 2010: breaking and entering, s 348(1)
- 2012: assault, s 266
- 2017 (July 1): aggravated assault, s 268
- 2017 (July 30): aggravated assault, s 268
- 2017 (July 20): aggravated assault, 268 (predicate offence)
Sentencing Decision
[9] The statutory scheme governing dangerous offender sentencing has two steps. First, the offender must be designated as a dangerous offender under s 753(1) of the Criminal Code. Second, the sentencing judge must determine the appropriate sentence under ss 753(4) and (4.1): R v Zoe, 2020 NWTCA 1 at para 20.
[10] The designation stage has both backward-looking and forward-looking components. The judge must look at the past behaviour of the offender and determine whether the conduct falls within ss 753(1)(a) or 753(1)(b) of the Criminal Code. These sections require that the underlying offence be a serious personal injury offence and the offender be a threat based on evidence:
- of a pattern of repetitive behaviour and likelihood of death or injury to others if not restrained (s 753(1)(a)(i));
- of a pattern of aggressive behaviour and a substantial degree of indifference to the reasonably foreseeable consequences of such behaviour (s 753(1)(a)(ii));
- any brutal behaviour which indicates that the offender is unlikely to be inhibited by normal standards of behavioural restraint in the future (s 753(1)(a)(iii));
-
a pattern of sexual offences that demonstrates a failure to control sexual impulses in the past and the likelihood of causing injury, pain, or other evil through failure to control sexual impulses in the future (s 753(1)(b)).
(Zoe at para 26)
[12] Given the appellant’s past offences, including the predicate offence, the sentencing judge found there was a history of repetitive and increasingly violent behaviour that established a pattern under s 753(1)(a)(i). The appellant does not contest that finding. The sentencing judge noted that there was little to no provocation precipitating the appellant’s violent attacks. The sentencing judge was satisfied beyond a reasonable doubt that the pattern of repetitive aggressive behaviour involving a likelihood of death or injury, including the predicate offence, demonstrated a failure by the appellant to restrain his behaviour. There was a likelihood that this aggressive behaviour would continue in the future.
[18] Finally, the sentencing judge found the appellant’s history of breaching parole conditions and sustained substance abuse pose a high risk for the future and contribute to his intractability.
[19] The threat analysis concluded with the sentencing judge finding the appellant was substantially indifferent to the reasonably foreseeable consequences to his victims in relation to the predicate offence and other pattern offences. These factors weighed towards a high risk of recidivism and pathological intractability. The sentencing judge declared the appellant to be a dangerous offender.
III. Standard of Review
IV. Dangerous Offender Sentencing Analysis
Applicable Law
(a) a sentence of indeterminate detention in a penitentiary;
(b) the appropriate sentence for the underlying offence (minimum 2 years in a penitentiary) plus a long-term supervision order for a maximum of 10 years; or
(c) a sentence applying standard sentencing principles for the offence for which the offender has been convicted.
First, if the court is satisfied that a conventional sentence, which may include a period of probation, if available in law, will adequately protect the public against the commission of murder or a serious personal injury offence, then that sentence must be imposed. If the court is not satisfied that this is the case, then it must proceed to a second assessment and determine whether it is satisfied that a conventional sentence of a minimum of 2 years of imprisonment, followed by a long-term supervision order for a period that does not exceed 10 years, will adequately protect the public against the commission by the offender of murder or a serious personal injury offence. If the answer is “yes”, then that sentence must be imposed. If the answer is “no”, then the court must proceed to the third step and impose a detention in a penitentiary for an indeterminate period of time. Section 753(4.1) reflects the fact that, just as nothing less than a sentence reducing the risk to an acceptable level is required for a dangerous offender, so too is nothing more required.
[30] ...en the first and second stages of analysis, but the issue before the court is fundamentally different. As stated in Boutilier at para 31:
The designation stage is concerned with assessing the future threat posed by an offender. The penalty stage is concerned with imposing the appropriate sentence to manage the established threat. Though evidence may establish that an offender is unable to surmount his or her violent conduct, the sentencing judge must, at the penalty stage, turn his or her mind to whether the risk arising from the offender’s behaviour can be adequately managed outside of an indeterminate sentence.
Application to the Sentencing Decision
[33] The sentencing judge recognized that s 753(4.1) does not impose an onus or rebuttable presumption for indeterminate detention and that the court “must impose the least intrusive sentence required to reduce Mr. Runions’ public safety threat to an acceptable level ... (and) must conduct an individualized assessment of all relevant circumstances and consider the sentencing objectives set out in ss.753(4), (4.1) and 718-718.2, which include those developed for Indigenous offenders”: Runions at paras 583-584.
...Dr. Hashman opined that the duration and severity of his substance abuse disorder, his antisocial personality disorder, and his disingenuous presentation with significant symptom exaggeration was such that Mr. Runions’ prognosis is considered to be a high risk for violent recidivism....
I agree with Dr. Hashman’s conclusions, and as I have considered each of Boutilier’s stages of analysis, I conclude that there is no realistic possibility of eventual control of Mr. Runions in the community. All of the evidence, including the Gladue factors, do not provide me with any comfort that there is a reasonable expectation that Mr. Runions can be managed in the community. There is no less restrictive means by which the public can be protected.
The reasons do not adequately address evidence relevant to community control or explain why the appellant could not be managed in the community.
Under s. 753(4.1), the sentencing judge is under the obligation to conduct a “thorough inquiry” into the possibility of control in the community: Johnson, at para. 50. The judge considers all the evidence presented during the hearing in order to determine the fittest sentence for the offender:
The judge should . . . take into account all the evidence available before making a determination, which will inevitably require a thorough investigation. Once such an investigation has been conducted, it will be up to the judge to determine the sentence; there is no obligation on any of the parties to prove on any standard the adequate sentence one way or another.
...As Boutilier directs, prospective evidence of treatability plays a different role at the penalty stage than at the designation stage (para 45):
The same prospective evidence of treatability plays a different role at the different stages of the judge’s decision-making process. At the designation stage, treatability informs the decision on the threat posed by an offender, whereas at the penalty stage, it helps determine the appropriate sentence to manage this threat. Thus, offenders will not be designated as dangerous if their treatment prospects are so compelling that the sentencing judge cannot conclude beyond a reasonable doubt that they present a high likelihood of harmful recidivism or that their violent pattern is intractable: see Neuberger, at p. 7-1, by M. Henschel. However, even where the treatment prospects are not compelling enough to affect the judge’s conclusion on dangerousness, they will still be relevant in choosing the sentence required to adequately protect the public.
The Crown’s position risks collapsing the inquiry required at the penalty stage into the inquiry at the designation stage.
[38] ...While the sentencing judge’s decision to accept Dr. Hashman’s opinion is afforded deference, the sentencing judge’s inquiry at the penalty stage cannot end there, nor can the inquiry merely adopt the earlier conclusion about the threat posed by the appellant. The sentencing judge was required to explain why the less severe sanctions would not adequately protect the public. He failed to provide any reasons justifying the indeterminate sentence in place of the less severe measures and failed to grapple with the evidence regarding the scope of treatment options available to the appellant.
- Dangerous offenders are assigned to an experienced parole officer, and there is a great deal of scrutiny of both the offender and the work of the parole officer assigned to monitor the dangerous offender.
- Strict conditions around substance abuse can be imposed, including treatment while in custody, followed up through the Community Residential Facility (“CRF”) half- way houses and other residential treatment programming. Ongoing treatment may be coupled with an order not to use drugs or associate with certain individuals and more frequent urinalysis.
- Dangerous offenders can receive specialized programing for violence while incarcerated and if paroled, they can receive maintenance components for the treatment received, including further referrals and access to a psychologist.
- Special conditions can be put in place to prohibit association with persons involved in the criminal subculture, including specific gangs. There are special monitoring procedures for prohibiting gang association, including regular collateral contact with friends and family and “very good communications with the police – including the Calgary Police ‘guns and gangs’ unit.”
- Mental health management in the community includes a holistic approach involving supportive CRF residency conditions and ensuring the offender has their basic needs met, such as food and shelter.
- Someone newly released on a long-term supervision order would need to meet with him for the first three months on an “intensive” basis which would mean two contacts per week or eight contacts per month. Contact may exceed this amount, and there would also be contact with collaterals.
- Dangerous offenders are subject to supervision once released for the rest of their lives.
-
If there is a violation, the parole supervisor must determine if the risk remains manageable. A parolee is continuously monitored, and there is “no hesitation whatsoever in returning someone to custody” if the risk is not manageable.
Gladue factors in Dangerous Offender Sentencing
[43] ...We recognize that public safety is paramount and Gladue factors may play a more limited role at the dangerous offender designation stage. However, Gladue considerations are highly relevant at the penalty stage when considering how culturally sensitive programming might enhance future rehabilitation and community control options: Zoe at paras 57-58....
V. Conclusion
R v LL, 2023 ONCA 52
[January 26, 2023] Charter 11(b) - Prior Appearance Comments by Judges [Grant Huscroft, Gary Trotter, and A. Harvison Young JJ.A.]
AUTHOR’S NOTE: There are many appearances and sometimes applications before a matter ultimately comes before a judge deciding whether a matter has been delayed so much that the 11(b) Charter right to a trial within a reasonable time has been breach. This case authoritatively decides what impact comments of those judges can have on the ultimate 11(b) application judge. The answer is: none. It is a matter akin to plain jurisdiction. All prior comments, including ones made when deciding issues of relevance to the delay application cannot apportion delay or decide the question of apportionment of the delay. Here, a judge deciding a disclosure motion (in favour of the defence) commented that the Defence "could and should have made its election without the disclosure". Despite this the application judge decided the disclosure was in fact important to making strategic decisions about the trial such as the election. The Crown appealed and the Court of Appeal ruled that all players in the system have to stay in their lanes - apportionment of delay was not the role of the disclosure application judge.
Introduction
[4] The application judge found: (1) the respondent’s delayed election was not unreasonable and any consequent delay was not defence delay; and (2) COVID- 19 did not contribute to the delay in getting to trial and ought not to be classified as an exceptional circumstance in the Jordan framework. She found that s. 11(b) had been infringed and imposed a stay of proceedings under s. 24(1) of the Charter.
Background
[7] The disputed period of delay was between December 9, 2020 (when basic disclosure was made) and May 7, 2021 (when the respondent made his election). When basic disclosure was provided, defence counsel responded by requesting further disclosure of four occurrence reports and other documents relating to incidents between his client and the complainant. The respondent’s position was that this material was relevant to his election as to the mode of trial and he would not elect until receiving the documents.
[8] The Crown was not initially responsive to the requests for the additional disclosure. Moreover, it did not advise the defence for over two months that it was taking the position that the state-created occurrence reports and related documents, prepared by the Toronto Police Service, were third party records. This would turn out to be wrong.
Here, the defence could and should have made its election without the disclosure it now seeks to obtain. There was no reason to delay matters pending the outcome of this application. Accordingly, in my view, that election should be made by or on the next appearance date.
Analysis
...However, here the Applicant was not insisting on every piece of disclosure before making an election. It is clear from Mr. Weisberg’s correspondence that once he had the complainant’s video-taped statement, the only other disclosure required to move to a meaningful pre- trial were the occurrence reports....
The requested occurrence reports, in my view, were not trivial in nature. They were not dated. ...The investigative records contained information about the interactions of the complainant and the Applicant in the days and weeks leading up to the complainant’s allegations of sexual assault. They also included a statement by the Applicant in relation to these interactions. [Emphasis added.]
Conclusion
[24] The appeal is dismissed.
R v Crier, 2023 ABCA 26
[January 31, 2023] Sentencing: Underemphasis of First Offender Status, Gladue Factors and Rehabilitation is an Error in Principle [Schutz, Antonio, and Ho JJ.A.]
AUTHOR’S NOTE: Failure to account sufficiently in a sentence for some mitigating factors can be an error in principle leading to the sentence being overturned. Here, the sentencing judge failed to reasonably reflect the offender's youthful first offender status, the impact of intergenerational trauma on his upbringing, and his efforts at rehabilitation prior to sentencing. The Court of Appeal reduced the sentence by a third due to these factors and stayed the remainder of his sentence given his performance on bail pending appeal.
I. Overview
[2] The appellant argues that his sentence was demonstrably unfit for a first-time offender who entered guilty pleas, completed rehabilitative programs and had relevant Gladue factors. He further argues that the sentencing judge failed to give appropriate weight to mitigating factors and imposed a jail sentence that was longer than necessary considering the circumstances of the offences and the offender.
II. Background
[6] In March 2021, the appellant posted disparaging comments about his former partner and the investigating officer on his other charges on the “Father’s Rights Alberta” Facebook page. The messages were seen by Lurleen Hilliard, who messaged the appellant directly about the consequences of such posts. The appellant then sent the following message to Ms Hilliard about his former partner, her new boyfriend, their child and Detective Horchuk of the Edmonton Police Service:
I'm not the same person anymore. I have become dark and hateful and murderous with revenge. I plan every day how to kill them both and take their baby from them. That bitch of a cop Steve Horchuk, too. He let my ex wait a whole week to get a sex kit done so I'm planning to get him or his family, the people he loves like he did to me. I'm going to prison so I'm going to become the most evil, nasty thing these people wanted to create. I'm going to either take my own life or I take theirs. It's quite simple in my eyes. I have already accepted I will never see my [child] again so I am going out a hero before I turn into a villain. I'm sorry, I understand your wanting to help but I have no intentions of going to Court or prison. I'm going to do what my spirit is telling me is right and then I'm going to either take my own life or theirs. The system did this to me. Made me insane. Yeah, I realize nothing I do will help me. She won. So I am going out loud before I go out.
[8] The appellant ultimately entered guilty pleas on the date set for trial and a Gladue report was prepared. It provided that the appellant was adopted as an infant and raised in Maskwacis near Wetaskiwin by friends of his biological mother whom he has met only recently. His biological father is a Mohawk man from Ontario unknown to the appellant. The appellant’s adopted mother and her family attended residential school where they endured abuse; that physical and mental abuse was passed on to the appellant by his mother during his upbringing. The appellant was also sexually abused by his foster sisters over a number of years when he was child. His father’s family did not approve of the appellant’s adoption because he was “white”, which created tensions in the family and eventually the appellant stopped attending family gatherings. More recently, the appellant has been diagnosed with Borderline Personality Disorder, anti-social behaviour, and has issues with post- traumatic stress and insomnia. The appellant has struggled with suicidal thoughts, and attempted suicide twice in 2020 and early 2021; it remains difficult not being able to see his child.
[9] The appellant was 31 at the time of sentencing and had no prior criminal record. The sentencing court also heard that while in remand, the appellant completed courses on parenting, anger management and release planning through Norquest College, various programs though New Life Ministries, and was released on bail and successfully completed a 56-day residential treatment program. At the time of sentencing, he was gainfully employed in the community.
[10] A victim impact statement from Detective Horchuk was entered before the court describing the impact of the offence on his family including his youngest child who has required therapy and medication to cope with anxiety. The officer had to install a security system, fencing and carried a weapon off-duty....
...Further, while noting various mitigating factors, she found that the appellant’s moral culpability remained high, and cited the following aggravating factors:
. . . the prolonged nature of the threats; the fact that they were reduced to writing; the multiple individuals who were threatened by Mr. Crier; the threats were not just to cause bodily harm but to kill; the threats included references to children and family of the complainants; the accused was on release at the time of the threats for serious allegations against one of the complainants; ....
....the threats included threats against a former domestic partner; the threats included threats against a police detective for simply fulfilling his role and his duty in the justice system as a police officer; the threats included an understanding that carrying out the threats would attract a lengthy gaol term and a stated willingness to embrace that gaol term; and the threats have had a long lasting impact on Detective Horchuk's life and an especially severe impact on the psychological wellbeing of his youngest child.
IV. Analysis
[16] First, insufficient weight was given to this relatively young, first-time offender’s guilty plea, nor was there any reference to the appellant’s various expressions of remorse. While the guilty plea was not at an early stage in the process, it spared the appellant’s former domestic partner and the police officer from testifying and thereby brought some measure of closure to their victimization.
[17] Second, while the sentencing judge cited from the Gladue report and was aware of its content, we are satisfied that the impact of the appellant’s uncontested Gladue factors were not properly reflected in her finding related to his moral blameworthiness. The appellant was raised in a cycle of intergenerational trauma, coupled with the actual physical, sexual, and emotional abuse he reported suffering during childhood. The appellant’s background was one of displacement and abandonment which speak to why, when similar intrafamilial issues arose with the breakdown of the appellant’s common law relationship and the forced separation from his child, he spiraled into addiction and attempted suicide; his sense of desperation was clearly manifested in the anger and threats seen in his posts and writing.
[18] While such threats can never be condoned, we see a strong correlation between the constellation of classic Gladue factors and the antisocial, impulsive and immature method by which the appellant chose to express his feelings. His diminished moral culpability in this regard was not recognized by the sentencing judge, nor reflected in the 18-month sentence imposed.
... [T]he central purpose of the Gladue analysis is to achieve proportionality....
[21] Restraint ought to have weighed heavily in this matter; yet, the sentence imposed was far from the least restrictive, particularly in respect of the circumstances of this Indigenous appellant: ss 718.2(d) and (e) of the Criminal Code. Further, while the sentencing judge determined that the appellant’s 10-month sentence in respect of each offence ought to be reduced by one month each to account for totality, the consecutive sentences imposed were nevertheless “unduly long or harsh”: s 718.2(c) of the Criminal Code. Further, to the extent that the sentencing judge relied on post-trial sentencing decisions where the offender had a record for violence or committed other offences concurrently, these cases had little precedential value and did not substantively assist in arriving at a fit and proportionate sentence in this case.