



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Hess, 2017 ONCA 220

DATE: 20170320


DOCKET: C61790

Hoy A.C.J.O., Doherty and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Allan Alexander Hess

Respondent

Lisa Joyal and Jennifer Crawford, for the appellant

Erin Dann, for the respondent

Heard:  February 8, 2017

On appeal from the decision of Justice H.S. Arrell of the
    Superior Court of Justice, dated January 28, 2016, dismissing the Crowns
    dangerous offender application.

Hoy A.C.J.O.:

[1]

The Crown appeals the sentencing judges denial of its
    application to designate the respondent Allan Hess as a dangerous offender
    pursuant to s. 753(1)(a) of the
Criminal Code
.

[2]

For the following reasons, I would dismiss the appeal.

Background

The offender and the predicate offence

[3]

The respondent, an Aboriginal person, grew up in a dysfunctional family.
    Both biological parents were alcoholics. Both parents physically abused him,
    and his father sexually abused him. He started using alcohol at age seven, by
    age 11 he was contemplating suicide, and at age 12 he started using drugs.

[4]

He received his first custodial sentence in the same year. Between then
    and the time he committed the predicate offence in 2008 at the age of 21, he
    amassed a lengthy criminal record, including for violent offences, and spent
    all but 12 months in youth and adult correctional facilities.

[5]

While in custody in 2005, after being subjected to a racial slur, the
    respondent attacked a jail guard, causing three puncture wounds to his neck. He
    pled guilty to aggravated assault.  Stong J. dismissed the Crowns ensuing
    application for a dangerous offender designation and sentenced the respondent
    to a time-served sentence of 18 months, followed by 3 years probation.

[6]

The predicate offence occurred in 2008, shortly after the respondent was
    released from custody in relation to the 2005 assault. He had spent more than 21
    of the 31 months preceding his release in segregation. He was released with
    virtually no supports in place. Thirty-six days after his release, he stabbed
    his uncle in the neck during a whiskey-fuelled celebration. His uncle reported
    that the respondent was growling at him before the stabbing, and that the
    respondent didnt come out normal after his long period in the hole. The
    respondent was immediately remorseful.

The issue before the
    sentencing judge

[7]

At the time of the respondents predicate offence in 2008, if a
    sentencing judge found an offender to be a dangerous offender, he or she was
    required to impose a sentence of detention in a penitentiary for an
    indeterminate period. However, a sentencing judge had discretion to instead
    designate an individual a long-term offender, if the individual also satisfied
    the three criteria under s. 753.1(1) of the
Criminal Code
.
[1]
Under s. 753.1(3), long-term offenders are sentenced to a definite term of
    imprisonment followed by a long-term community supervision order of a maximum
    of ten years in accordance with the
Corrections and Conditional Release Act
(CCRA).

[8]

The sentencing judge agreed with the parties that the respondent met the
    statutory criteria for the dangerous offender designation. As the Supreme Court
    noted in
R. v. Johnson
, 2003 SCC 46, [2003] 2 S.C.R. 357, almost every
    offender who satisfies the dangerous offender criteria will satisfy the first
    two criteria in s. 753.1(1). The analysis typically turns  and in this case
    turned  on whether the third criterion in the long-term offender provision is
    satisfied.

[9]

At the time of the respondents predicate offence, that criterion was
    is there a reasonable possibility of eventual control of the risk in the
    community?
[2]

[10]

In
R. v. Johnson
, the Supreme Court directed that if an
    individual satisfies the criteria to be designated a long-term offender, the
    sentencing judge should find the individual to be a long-term offender, and not
    a dangerous offender. At para. 32, Iacobucci and Arbour JJ., for the court,
    wrote: [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.

[11]

As the sentencing judge observed, the real issue before him was
    whether there was a reasonable possibility of eventual control within the
    community of the respondents risk of reoffending and causing harm to others.
    If so, he correctly observed, he should find the respondent to be long-term
    offender and not a dangerous offender.

The evidence before the
    sentencing judge on the real issue

[12]

In September 2011, the respondent was transferred to the St Lawrence
    Valley Correctional and Treatment Centre (SVCTC)  a psychiatric hospital
    within a correctional setting  because of the severity of his symptoms. He had
    made suicide attempts. Initially, he was experiencing symptoms of acute
    psychosis and was in seclusion. He was diagnosed with schizophrenia, major
    depression and post-traumatic stress disorder.

[13]

For the first time in the respondents troubled life, he began to
    receive consistent, comprehensive psychiatric care.

[14]

The respondents treatment involved both medication and individual and
    group therapy. His treating psychiatrist, Dr. Watson, saw very significant
    improvements. The respondent developed significant insight into his mental
    illness and his need for medication, crucial factors in predicting compliance with
    future treatment.  Dr. Watson had no reason to believe he would not be
    compliant with medication. Further, Dr. Watson testified the respondent
    appreciates he needs to stay away from peers and family who drink and knows
    that drinking and drugs will make his mental illness worse. He was eager to
    undergo treatment.

[15]

Dr. Watson testified that, in the treatment teams opinion, the
    respondent could be successfully and safely transitioned into the community.
    Dr. Watson proposed a plan involving graduated supervised release from the
    hospital.

[16]

Dr. Watson explained that once the respondent was sentenced, he would
    have access to a social worker who would focus on setting up a comprehensive
    discharge plan.

[17]

She suggested that the respondent could be released to a forensic
    hospital where privileges would gradually be increased. From hospital, he could
    be transitioned to a mental health boarding home. She recommended the
    involvement of an Assertive Community Treatment Team (an ACT)  an outpatient
    team that meets with patients in the community to assist with keeping
    appointments, getting medication, engaging in activities and providing support
    and assistance with life skills.  Finally, she recommended the imposition of a
    community treatment order (CTO)  an order issued by a physician and agreed
    to by a patient requiring the patient to take medication.  The respondent
    indicated that he was agreeable to such an order and to a graduated transition
    to the community.

[18]

The opinion of Dr. Watson was contrary to that of the forensic
    psychiatrists who had interviewed the respondent. In their opinions, the
    respondent could not be safely managed in the community under a long-term
    supervision order. One of them, Dr. Rootenberg, had concluded that the
    respondent suffered from an anti-social personality disorder rather than
    schizophrenia. Dr. Rootenberg completed his assessment report prior to the
    respondents transfer to and treatment at SVCTC.

[19]

Another forensic psychiatrist, Dr. McMaster, assessed the respondent
    seven months into his stay at SVCTC. He also diagnosed the respondent with
    anti-social personality disorder. However, he noted he could not be absolutely
    certain the respondent did not instead have schizophrenia, in part because it
    is difficult to sort out his self-report of psychotic-like symptoms. Dr.
    McMaster also noted the respondents upward trajectory since starting
    treatment at SVCTC.

The sentencing judges
    decision

[20]

The sentencing judge reviewed the relevant facts, including the
    respondents violent history.

[21]

The sentencing judge preferred the evidence of Dr. Watson, whose team
    had worked with the respondent daily for nearly four years, to that of the
    forensic psychiatrists who had only seen the respondent in formal interview
    settings on a few occasions, and before any meaningful treatment had been
    provided to him.  He found that her evidence on the issue of treatability and
    management in the community was more accurate, comprehensive and probative that
    the forensic psychiatric evidence.

[22]

The sentencing judge specifically noted that protection of the public
    must be paramount in his analysis.

[23]

He found that there was clear, undisputed evidence that the treatment
    the respondent had been receiving was working. The progression of improvement
    in the respondent was evidence of his treatability. He concluded the release
    plan proposed by Dr. Watson has a very high degree of probability that it will
    be successful and will protect the public.

[24]

On January 28, 2016, the sentencing judge found the respondent to be a
    long-term offender and imposed a total jail term of two years less one day on
    the predicate offence of aggravated assault. The sentencing judge gave the
    respondent seven years and ten months credit for pre-sentence custody (March
    2008 to January 2016) for an effective sentence of nine years and ten months.
    The respondent was also placed on a five-year Long Term Supervision Order
    commencing upon his release after serving the two years less one day term of
    imprisonment. In total, the sentence imposed provided for seven years of
    incarceration/supervision of the respondent from the date of sentence.

[25]

The sentencing judge was satisfied that the sentence he imposed properly
    reflected the
Gladue
principles that he was required to consider.

Issues

[26]

The Crown does not dispute that deference is accorded to a sentencing
    judge on issues of fact-finding, including on the question of whether there is
    a reasonable possibility of eventual control of an offender in the community:
R.
    v. Ramgadoo
, 2012 ONCA 921, 300 O.A.C. 149, at para. 42;
R. v. R. M.
,
    2007 ONCA 872, 231 O.A.C. 198, at para. 53.

[27]

However, it argues that the sentencing judges fact-finding process was
    tainted by several errors of law. I would characterize some of the alleged
    errors as arguments that there was an absence of evidence supporting the
    sentencing judges finding that there is a reasonable possibility of eventual
    control of the respondent in the community. The balance consist of what the
    Crown says are fatal flaws in the proposed release plan. Below, I address the
    Crowns arguments under these two rubrics.

[28]

As I will explain, I am not persuaded the sentencing judges
    fact-finding process was tainted by legal error. In my view, his finding that
    there is a reasonable possibility of eventual control in the community is
    reasonable and is entitled to deference.

1.

Absence
    of evidence to support the finding of a reasonable possibility of eventual
    control within the community

The Crowns Position

[29]

The Crown argues there was no admissible evidence supporting the
    sentencing judges conclusion there was a reasonable possibility of eventual
    control of the risk that the respondent poses to the community.

[30]

It says that Dr. Watson is not a forensic psychiatrist and was not
    qualified to opine on the respondents risk or whether he could ever be safely
    released back into the community. It also says her opinion was based on the
    unproven underlying assumption that schizophrenia was the reason for the
    respondents past offending in the community.

[31]

The Crown submits a sentencing judge may only resort to the long-term
    offender regime where there is evidence that is more than an expression of hope
    that the offender could be meaningfully treated within a definite period of
    time. It submits this requirement is necessary to achieve the goal of
    protection of the pubic under the dangerous offender and long-term offender
    provisions, relying on several decisions of this court:
R. v. McCallum
(2005)
, 196 O.A.C. 101, 201 C.C.C. (3d)
    541 (C.A.), at paras. 47-49;
R. v. Higginbottom
(2001)
, 150 O.A.C. 79, 156 C.C.C. (3d)
    178 (C.A.), para. 24-27;
R. v. Solano
, 2014 ONCA 185,

309 C.C.C. (3d) 386, para. 15. It argues Dr. Watsons
    opinion that the respondent could be safely transitioned into the community is
    nothing more than an expression of hope and, moreover, that she was required
    to, but did not, say when the respondent would be ready to be released into the
    community without supervision.

Analysis

[32]

I reject these arguments.

[33]

The sentencing judge properly instructed himself that any decision that
    a lesser measure than an indeterminate sentence can control the offender must
    be based on evidence introduced during the course of the hearing.

[34]

Dr. Watson was qualified as an expert in the diagnosis and treatment of
    psychiatric disorders. She provided a clinical prognosis for reintegration into
    the community. There was no challenge to her expertise in this area.  The
    sentencing judge recognized that Dr. Watson was not a forensic psychiatrist,
    and Dr. Watson admitted in her testimony she could not provide an opinion on
    the risk of recidivism based on an actuarial risk assessment.  The sentencing
    judge was nevertheless entitled to accept Dr. Watsons evidence and to prefer
    it to the evidence of the forensic psychiatrists.

[35]

Dr. Watsons evidence was that once the respondents illness had been
    appropriately identified and treated, the respondent stopped engaging in
    violent and threatening behaviour. The respondents aggression was not
    previously controlled, even in custody. Further, the respondents brother was
    diagnosed with schizophrenia at age 17. There is an adequate foundation for the
    assumption underlying her opinion and the sentencing judges conclusion that
    the respondents untreated psychosis was a significant factor underlying the
    respondents past conduct.

[36]

And Dr. Watsons evidence was far more than an expression of hope that
    the respondent could be meaningfully treated within a definite period of time.

[37]

There was concrete evidence of treatability over the nearly four years
    the respondent was at the SVCTC.  There was very significant improvement in the
    respondents condition. Staff described him as a different person than he was
    at the time of admission. As the sentencing judge found, the progression of
    improvement in [the respondent] is evidence of his treatability.

[38]

Further, Dr. Watson opined that the respondent would be ready to begin
    the proposed process of gradual release into the community in a years time.
    After she explained that St Lawrence would need approximately a year to put a
    graduated release plan in place, the following exchange took place:

Q: Youve indicated that the facility is about a years time to
    put everything all in place. Is [the respondent], are you able to give the
    court an opinion, is [the respondent] ready to start the process of a gradual
    release into the community such that you dont anticipate any violent
    outbursts, any violent acting out on members of the community?

A: Its our, its our opinion that, that he certainly is ready
    to begin the process

[39]

The evidence in this case is very different from that in the cases that
    the Crown relies on.

[40]

McCallum
most clearly articulates the principle that the Crown
    relies on. At para. 47, Feldman J.A., citing
Higginbottom
and an
    earlier decision,
R. v. Poutsoungas
(1989), 49 C.C.C. (3d) 388 (Ont.
    C.A.), wrote that there must be evidence of treatability that is more than an
    expression of hope and that indicates that the specific offender can be treated
    within a definite period of time.

[41]

In
McCallum
, the sentencing judge relied on comments that the
    offender had shown some progress and demonstrated the ability to benefit from
    treatment to conclude that there was a reasonable possibility of eventual
    control in the community of the risk that the offender would re-offend. But the
    sentencing judge did not assess those positive comments in light of subsequent
    negative comments, the diagnosis of sexual sadism, and the three violent sexual
    offences the respondent committed after those comments were made.  Feldman J.A.
    characterized the evidence before the sentencing judge as no more than a hope
    that the offender would either be amenable to treatment or that, if amenable,
    he would be treatable within a definite period of time.

[42]

In
Higginbottom
, the offender was a pedophile who denied that
    he had a problem. This court held the sentencing judge erred in relying on
    general evidence that it is was premature to label the offender untreatable
    because it is
possible
to eventually rehabilitate sexual offenders who
    deny they have a problem. The only evidence specific to that particular
    offender was from a physician who testified there was no realistic possibility
    of treatment in the community. This court concluded the trial judge erred in in
    exercising his discretion to impose a determinate sentence in the absence of
    any evidence
specific to the offender
that he could be rehabilitated
    within a fixed period of time.

[43]

In
Poutsoungas
, the evidence was that
if
the accused was able to appreciate and
    accept his personal responsibility for his crimes, was genuinely remorseful,
    was able to come to grips with his addiction to alcohol and drugs, and received
    proper treatment, there could be positive results that could lead to his
    rehabilitation. This court concluded that the sentencing judges reasoning was
    dependent on so many contingencies as to be little more than an expression of
    hope that the respondent might or could be rehabilitated.

[44]

Finally, in
Solan
o
,
    an offender diagnosed as a psychopath with anti-social personality disorder and
    substance dependence, together with possible schizophrenia, appealed his
    designation as a dangerous offender.  In designating the offender as a
    dangerous offender, the sentencing judge noted the offenders historical lack
    of response to anti-psychotic medications, his past refusals to continue
    prescribed or recommended treatment, and his proven repeated unsuccessful
    attempts at reintegration in the community.  This court held that the
    sentencing judge did not err in dismissing the evidence of two psychiatric
    nurses that that the offenders risk could be managed to an acceptable level if
    he participated in community based programs offered by Correction Services
    Canada as no more than an expression of hope, and dismissing the evidence of
    the offenders psychiatrist about the possibility of treatment with a new
    anti-psychotic drug as speculative.

[45]

In this case, unlike all of the above cases, there was concrete
    evidence of meaningful treatment.

2.

The release plan

The Crowns Position

[46]

The Crown argues the sentencing judge erred in law in three respects in
    accepting the release plan proposed by Dr. Watson as a basis for concluding
    there was a reasonable possibility of eventual control of the respondent within
    the community.

[47]

First, citing
R. v. G.L.
, 2007 ONCA 548, 87 O.R. (3d) 683, at
    paras. 58  70,
R. v. M.J.O.
, 2008 ONCA 361, 90 O.R. (3d) 241, at
    paras. 136-137,
R. v. D.V.B.
, 2010 ONCA 291, 100 O.R. (3d) 736, leave
    to appeal dismissed, [2011] S.C.C.A. No. 207, and
R. v. Trevor
,
2010 BCCA 331, 257 C.C.C. (3d) 72, the
    Crown submits that if the restrictive provisions necessary to control an
    offenders risk of re-offending and protect public safety essentially replicate
    jail-like conditions in the community, an indeterminate sentence is required. 
    The Crown argues that the release plan proposed by Dr. Watson  including
    release to a forensic hospital where privileges would gradually be increased 
    replicates jail-like conditions. Therefore, it argues, the sentencing judge
    erred in law in imposing a determinate sentence, followed by an LTSO.

[48]

Second, it says that the proposed plan improperly relies on the
    provisions of the
Mental Health Act
, and not correctional services, to
    control the respondents risk to public safety.

[49]

Third, and again relying on
G.L.
and
Trevor
, it says
    that a sentencing judge must be satisfied that the resources necessary to
    supervise the offender in the community will be available and that there was no
    evidence that the resources required to implement the proposed plan will be
    available.

[50]

I reject these arguments. Below, I address them in turn.

Jail-like conditions

[51]

I do not agree that Dr. Watson recommended jail-like conditions. Dr.
    Watson testified that a forensic hospital could be the first stop on a
    graduated release plan and that if it were, privileges would be gradually
    increased over the course of the respondents stay at the hospital.  She
    described this as a transitional placement to assist the respondent in
    gaining the skills needed to live in the community. Then, when appropriate, he
    could be discharged to a mental health group home or rented accommodation. While
    Dr. Watsons evidence was that the respondent would initially need extensive
    support, the objective of her proposed release plan was to enable him to function
    in a non-jail like environment.

[52]

The type and extent of the supervision proposed in this case is very
    different from that found to be jail-like in
G.L.
,
M.J.O.
and
Trevor
. In those cases, the offenders were not treatable and it
    was accepted that round-the-clock supervision would be required throughout the
    term of the long-term supervision order.

[53]

In
G.L.
, the sentencing judge sentenced the offender to a
    ten-year term of imprisonment for the predicate offence, to be followed by a
    ten-year supervision order. The offender was diagnosed as a psychopath and the
    evidence was that he was not amenable to treatment. The recommended conditions
    included almost twenty-four hour monitoring of the offender by officials expert
    in psychopathy, coupled with residency in a controlled environment, for ten
    years.  The court concluded that the resources necessary to provide the
    community supervision envisaged were not available, but commented, at para. 61,
    that even if they were, the overall form of supervision proposed comes close
    to replicating in the community the form of monitoring and supervision that the
    state provides in custodial settings. At para. 62, Cronk J.A. wrote that while
    conditions of supervision may be imposed under the CCRA, I do not believe that
    that statute or the long-term offender regime is intended to virtually
    replicate jail-like conditions in the community for offenders released from
    custody.

[54]


M.J.O.
also involved a diagnosed and untreatable psychopath
    where the risk he posed to the community could only be reduced to an acceptable
    level with round-the-clock community supervision. The court applied
G.L.
and concluded that a long-term offender finding was not appropriate.

[55]

In
Trevor
, an offender with limited intellectual and cognitive
    abilities had a history of sexual offences. He lacked the intelligence and
    skills needed to benefit from treatment aimed at helping him control his
    inappropriate sexual urges.  As in
G.L.
, the safe control of the
    offenders risk in the community was reliant on supervision, rather than
    treatment.

[56]

The offender proposed that Community Living British Columbia (CLBC),
    a social-service agency that exists to deliver services on a voluntary basis to
    developmentally-disabled adults in British Columbia, could provide the
    structure required to manage his risk as a long-term offender. Citing
G.L.
,
    Frankel J.A. held that one of the reasons that a long-term offender order was
    not appropriate was because the control-mechanisms [the offender] seeks to
    have imposed on himself are tantamount to detention. In essence, he seeks to be
    imprisoned outside of a prison.

[57]

The graduated release plan contemplated in this case stands in sharp contrast
    to the proposed conditions of supervision in
G.L.
,
M.L.O.
and
Trevor
.

Inability of correctional
    services to control the respondents risk

[58]

I turn next to the Crowns argument that, because the proposed plan
    employs tools under the
Mental Health Act
, correctional services
    will be unable to control the respondents risk to public safety.

[59]

While the proposed release plan relies in part on resources provided by
    the mental health care system, I am satisfied that the key components of the
    release plan are enforceable through the LTSO and fall within the control of
    the Parole Board and Correctional Services Canada (CSC).  Further, in my
    view, the availability and suitability of treatment and programming beyond that
    which is directly offered by CSC are relevant to the issue of potential control
    of risk in the community.

[60]

First, the key terms are under the Parole Boards control. The Parole
    Board has a broad power to craft and impose conditions for long-term
    supervision. It can establish conditions that it considers reasonable and
    necessary in order to protect society and to facilitate the successful
    reintegration into society of the offender:
Corrections and Conditional
    Release Act
, S.C. 1992, c. 20, s. 134.1(2) (
CCRA
). The
    conditions imposed are subject to regular review and can be varied by the
    Parole Board.

[61]

Under the
CCRA
, offenders may be ordered to reside at a
    specific place, including a psychiatric facility or community residential
    facility: s. 133(4.1). The Parole Board can limit the time that the offender
    spends in the community and require the respondent to meet with members of an
    ACT at specified intervals. Perhaps most importantly for this case, as this
    court held in
Ramgadoo
, at para. 58  59, the Parole Board can impose
    mental health treatment conditions in the LTSO.

[62]

While the Board might not directly
provide
the services it orders the respondent to use, it has the power to ensure
    compliance. Under s. 135.1(1) of the
CCRA
, where the Parole Board is
    satisfied that it is necessary and reasonable to suspend an LTSO to protect the
    public or prevent a breach, it is empowered to authorize the apprehension and
    commitment of the offender to a mental health facility for up to 90 days. And
    if the offender breaches a condition in the LTSO, he may be detained and then
    prosecuted for the breach.

[63]

Second, I see no error in the sentencing judge considering possible use
    of treatment and reintegration options not directly provided by CSC in
    assessing the possibility of controlling the respondents risk. I agree that
    the Parole Board cannot forcibly medicate the respondent, nor impose a CTO upon
    him involuntarily. But Dr. Watsons assessment of how likely it was the
    respondent could be effectively managed and reintegrated through measures such
    as dispositions under the
Mental Health Act
was clearly relevant
    evidence regarding risk management.

[64]

And that evidence was especially probative in light of the evidence that
    the respondent was interested in and willing to carry on his medication and
    treatment regime once released into the community. Indeed, Dr. Watson evidence
    was that the respondent was reluctant to reduce his anti-psychotic medication
    even where his treatment team suggested doing so. The sentencing judge was
    entitled to rely on this evidence to support his conclusion there was a
    reasonable possibility of eventual control of the respondents risk in the
    community.

Evidence of availability
    of the necessary resources in the community

[65]

This leaves the Crowns final argument:
G.L.
and
Trevor
require evidence of the availability in the community of the resources
    necessary to supervise the respondent and such evidence was not adduced.

[66]

I do not find this submission persuasive. First, Dr. Watsons evidence
    did provide an evidentiary basis to conclude the necessary services were
    available in the community.

[67]

Second, this case is very different from
G.L.
and
Trevor
.
    As noted above, the offender in
G.L.
was untreatable and the Crown
    adduced evidence that many of the requisite resources  including an expert in
    psychopathy to monitor the offender  were unavailable or unrealistic. Cronk
    J.A. wrote, at para. 59, that where the determination that an offenders risk
    may be safely controlled in the community rests, as it did here, on adequate
    community supervision, rather than treatment, the availability of the resources
    necessary to implement such supervision effectively cannot be uncertain.

[68]

In
Trevor
, there was evidence that CLBC did not have the
    mandate or capacity to supervise a high-risk offender such as Mr. Trevor, who
    required a secure residential facility with 24-hour monitoring. Citing para. 62
    of
G.L.
, Frankel J.A. wrote, at para. 35, that, A judge can hardly be
    satisfied that there is a reasonable possibility of controlling [the risk
    posed by a particular offender] in the absence of evidence that the means to do
    so are in fact available.

[69]

The statements in
G.L
. and
Trevor
on which the Crown
    relies were made where (i) the control of the offenders risk in the community
    relied on twenty-four hour or almost twenty-four hour supervision, and not
    treatment, (ii) the resources required in the community were in some way
    special and not of a type generally provided by the applicable institution,
    and (iii) there was evidence that the required resources were unavailable or
    unrealistic.

[70]

In this case, unlike in
G.L.
and
Trevor
, there is
    evidence that the respondent is treatable. The control of the respondents risk
    does not rely solely on community supervision. The recommended resources within
    the community are within the mandate of the provincial mental health care
    system and available to persons diagnosed as needing them, subject to wait
    lists. And Dr. Watsons evidence was that there would be sufficient time
    between the imposition of sentence and the respondents release on an LTSO to conquer
    the waiting lists and permit a plan such as that proposed to be in place on the
    respondents release.

[71]

For all of these reasons, in my view, the sentencing judge was entitled
    to consider the proposed release plan in concluding that there was a reasonable
    possibility of eventual control of the respondent in the community.

[72]

A final note on this subject. After this appeal was argued, this court
    delivered its decision in
R. v. Radcliffe
, 2017 ONCA 176, [2017] O.J.
    No. 1060, another dangerous offender case. I am mindful of Watt J.A.s
    comments, at para. 58 of
Radcliffe
, regarding the need for [e]vidence
    of the existence and availability of community resources that will provide the
    essential level of extra-custodial supervision to adequately protect the public.
    Those comments were not essential to the courts holding in
Radcliffe
,
    and in any event the facts and issues in that case are markedly different from
    this one. I am satisfied that
Radcliffe
is consistent with these
    reasons.

Conclusion

[73]

The sentencing judges conclusion that there is a reasonable possibility
    of eventual control of the respondents risk in the community is not tainted by
    legal error and is reasonable. I would dismiss the appeal.

Released: MAR 20 2017  AH

Alexandra Hoy A.C.J.O.

I agree Doherty J.A.

I agree B.W. Miller J.A.







[1]

Effective July 2008, Parliament amended the
Criminal Code
to remove judicial discretion in the context of a dangerous offender
    designation. Under the new regime, a sentencing judge is required to designate
    an offender as a dangerous offender wherever the criteria in s. 753(1) are met.
    However, the court is no longer required to impose an indeterminate sentence
    for all dangerous offenders. The court now has the option of sentencing a
    dangerous offender to a determinate sentence combined with a long-term
    supervision order, provided the judge is satisfied the sentence will adequately
    protect the public: ss. 753(4) and (4.1), see also
R. v. Steele
, 2014
    SCC 61, [2014] 3 S.C.R. 138, at para. 31.



[2]

Under the new regime, where the criteria for a dangerous
    offender designation are met, the court may only impose a determinate sentence
    and a long term supervision order instead of an indeterminate sentence where
    there is a reasonable expectation such a sentence will adequately protect
    the public against the commission by the offender of murder or a serious
    personal injury offence: s. 753(4.1).


