



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. McConville, 2017 ONCA 829

DATE: 20171031

DOCKET: C59954 and C61956

Gillese, Huscroft and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Thomas McConville

Appellant

Richard Litkowski, for the appellant

Michelle Campbell, for the respondent

Heard: May 2, 2017

On appeal from the conviction entered on July 3, 2012 and
    the sentence imposed on April 17, 2014 by Justice Gisele M. Miller of the Superior
    Court of Justice, sitting with a jury.

Huscroft J.A.:


OVERVIEW

[1]

The appellant was convicted by a jury of robbery, disguise with intent,
    dangerous driving, and failure to stop, all of the charges arising out of a
    bank robbery. The only issue at trial was the identity of the robber  in
    particular, whether it was the appellant or his brother, Shawn McConville. The
    appellant brought an alternative suspect application, which the trial judge
    allowed, and sought to implicate his brother. The appellant did not testify and
    Shawn McConville was not called as a witness.

[2]

A police officer saw the robber fleeing from the bank and later identified
    the appellant as the robber in a photo lineup. The jury accepted the officers
    identification evidence and convicted. The trial judge designated the appellant
    a dangerous offender and imposed an indeterminate sentence under s. 753(4.1) of
    the
Criminal Code
.

[3]

The appellant appeals both conviction and sentence. He makes three
    submissions as to the conviction:

1)

the trial judge erred
    in her instruction to the jury on eyewitness identification and, in particular,
    failed to take into account the theory of the defence in her instruction;

2)

the trial judge erred
    by reinforcing the Crowns improper suggestion that a police officers
    identification of the appellant was more reliable because he was a police
    officer; and

3)

the Crowns opening
    address to the jury prejudiced the appellants right to a fair trial.

[4]

The appellant does not contest his designation as a dangerous offender.
    However, he seeks leave to appeal his indeterminate sentence on two bases:

1)

the trial judge
    misapprehended psychiatric evidence concerning his risk to reoffend; and

2)

the trial judge erred
    by focusing on his risk of harm to the public in general, rather than the risk
    that he would commit a serious personal injury offence.

[5]

In my view, there is no basis to interfere with either the appellants
    conviction or sentence. I would dismiss the appeal for the reasons that follow.

BACKGROUND

[6]

Shortly before 1:00 p.m. on December 22, 2010, a man wearing a black
    balaclava, a grey hoodie, and gloves, and armed with a hammer, robbed a bank in
    Oakville. He jumped on the counter and banged on the locked tills with the
    hammer, then demanded keys from the customer service manager. He ran off with
    approximately $4,000 - $5,000.

[7]

Police Constable Tansley was directly across the street from the bank
    when he received a call about a robbery in progress. He saw the robber run from
    the bank and get into a grey Impala. The robber was alone.

[8]

PC Tansley noted the Impalas license plate and then attempted to open
    the cars driver side door to arrest the driver. His gun was drawn. He saw the
    robber up close and unmasked for approximately 10-20 seconds, before the robber
    sped away from the scene.

[9]

Another police officer pursued the grey Impala in her police cruiser.
    The officer was forced to break off the pursuit for safety reasons and the
    robber escaped. The grey Impala was found, abandoned, shortly afterwards. A
    balaclava was in the back seat of the car. It had the appellants DNA on it as
    well as DNA from a second person. The second DNA sample could not be tested. A
    grey hoodie and hammer were found nearby.

[10]

The
    appellants brother, Shawn, was in the vicinity of the robbery at the relevant
    time, approximately two kilometres from where the Impala was abandoned. He took
    a cab to Hamilton and was arrested when he reached his home. The appellant was
    arrested when he arrived at Shawns Hamilton home shortly thereafter.

[11]

PC
    Tansley returned to the bank to review the security footage and assist in the
    investigation. Later that same day, he picked the appellant from a photo
    lineup. The lineup did not include a picture of Shawn.

THE CONVICTION APPEAL

(1)

Did the trial judge err in her instruction to the jury on eyewitness
    identification?

[12]

The
    appellant contends that the trial judges charge to the jury was a standard
    eyewitness charge that was inadequate in the circumstances of this case. The
    trial judge highlighted that the description given by PC Tansley matched the
    appellant and that PC Tansley picked the appellant out of a lineup. But this
    was a single issue case: the only issue for the jury was whether the robber was
    the appellant or his brother Shawn. As a result, the trial judge should have
    directed the jury to consider how PC Tansleys identification evidence compared
    to Shawn McConville, and should have highlighted the ways in which PC Tansleys
    description matched Shawn as much as it did the appellant. Instead, the trial
    judge did not even mention Shawn in her instructions to the jury. Nor did the
    trial judge direct the jury to consider shortcomings in the photo lineup,
    including the absence of Shawns photo from the lineup.

[13]

I
    would reject this submission.

[14]

This
    was a very strong case. PC Tansley saw the appellant, up close, for 10-20
    seconds immediately following the robbery. Not only did PC Tansley identify the
    appellant in the lineup, he testified that Shawn was not the robber and, in
    direct and in cross-examination, explained differences in the appearance of the
    brothers. The direct and circumstantial evidence all implicated the appellant.

[15]

There
    was, at most, a mere possibility that Shawn McConville was the robber. The only
    evidence linking Shawn to the robbery was that he was picked up by a cab in
    Oakville shortly following the robbery, not far from where the robbery had
    occurred, and driven to Hamilton. The trial judge instructed the jury as
    follows:

It is the defence position that none of the evidence rules out
    the possibility that Shawn McConville could have committed this robbery. There
    is no evidence that Shawn McConville could not have had access to his brothers
    car. Shawn McConville could have used the balaclava conceivably left in the car
    by Thomas McConville. There was only one person seen in the bank during the
    robbery. There was only one person seen running to the get-away vehicle. There
    was only one person seen in the get-away vehicle and no one else was seen
    running away from the scene. Shawn McConville hailed a cab not far from the
    bank where the robbery occurred and Shawn McConville was arrested when he
    exited that Burlington based cab.

It is the defence position that while it is entirely possible
    and maybe even likely that Thomas McConville committed the robbery, it is also
    entirely possible, on the facts and evidence at trial, that Shawn McConville
    was the person who committed the robbery. Put another way, there is no reason
    why Shawn could not have committed the robbery and it is the defense position
    that that is the definition of reasonable doubt.

[16]

In
    my view, the trial judges instructions cannot be impugned. Not only did the
    trial judge set out the defence position, she referred to the evidence capable
    of supporting that position. Moreover, the trial judge specifically instructed
    the jury that it had to be satisfied that the lineup procedure was fair to the
    appellant. I note that defence counsel at trial reviewed the charge in advance
    and did not object after it was given. Nor did defence counsel raise any
    concerns about the omission of Shawn McConville from the photo lineup.

[17]

In
    my view, the trial judge properly instructed the jury on eyewitness evidence
    and properly took into account the position of the defence. Nothing more was
    required in the circumstances.

(2)

Did the trial judge err by reinforcing the Crowns suggestion that PC Tansleys
    identification was reliable?

[18]

The
    appellant submits that the Crown improperly relied on the proposition that a
    police officers identification evidence is inherently more reliable than that
    of a civilian. The appellant submits that the trial judge failed to correct
    this and, instead, reinforced this proposition by reminding the jury that PC Tansley
    had been trained to make a mental note of distinguishing features. This
    emphasis on the superior identification ability of PC Tansley further tainted
    the trial judges instructions on eyewitness identification and resulted in an
    unfair trial.

[19]

I
    would reject this submission.

[20]

The
    impugned passages from the Crowns closing address are as follows:

In the bank the robber was masked. The [persons in the bank
    were] in no position to be able to identify who the robber was. You next heard
    from Constable Nick Tansley. And you heard that he was right across the street
    when the call came in and he responded within seconds. Now, this is not a
    regular citizen in the bank with a man holding a hammer at him; this is a
    trained police officer, different than a teller in a bank.

Now, he said, and this was his own
    words, he said, I couldnt get the door open. I knew the likelihood of him
    driving away was pretty great, so I was gathering as much detail as I could in
    case I was called upon to identify him later. Certainly facial features you
    cannot change, like jaw, lips, nose, eyes. So (and he said these words) as a
    trained investigator were taught to hone in on those features. So, dont make
    the mistake of comparing what the teller said to what the police officer said
    with regards to their observations. This is a trained investigator and his
    focus is on the driver. And the un-contradicted, the un-contradicted evidence
    of Constable Tansley is that it was Thomas McConville that was the driver of
    that car.

[21]

The
    trial judge summarized the evidence relevant to the defences argument that PC Tansleys
    identification was unreliable because of the stressful context in which it
    occurred: he was attempting to arrest a fleeing suspect who, he thought, might
    have been armed. The trial judge stated:

Constable Tansley testified that he was running after the
    individual and at the same time making radio calls about what was happening. He
    agreed there was lots of adrenaline. Constable Tansley testified that he was
    looking at the individuals face while making mental notes of distinguishing
    features as he was trained to do. At the same time he had his gun drawn, he was
    trying to open the door of the car and was watching the persons hands because
    he did not know if the person had a weapon or what sort of weapon he might
    have. Constable Tansley testified that he was less than a foot away from the
    persons face, looking directly at him through the drivers window and then
    through that front windshield while that person was yelling obscenities at him.
    He agreed that it was an out of the ordinary experience.

[22]

The
    Crown acknowledges on appeal that police identification evidence is not
    inherently more reliable than civilian identification evidence. But the trial
    judge did not suggest that it was. Moreover, as the Crown notes, this was not a
    case in which there was a contest between the eyewitness evidence of a police
    officer and a civilian. All that mattered was the quality of PC Tansleys
    identification. He was the only person who saw the robbers face.

[23]

The
    difficulty for the defence was that PC Tansley not only saw the robber,
    unmasked; he saw him close-up, for a relatively lengthy period of time 
    approximately 10-20 seconds. His evidence was firm and uncontradicted. He
    identified the appellant in a lineup and, what is more, categorically denied
    that the person he saw was Shawn rather than the appellant.

[24]

The
    Crowns reference to PC Tansleys training to hone in on certain unchangeable
    facial features was not inappropriate in the circumstances. The defence was
    relying on the urgency of the circumstances in which PC Tansley found himself in
    an attempt to undermine his identification of the appellant. PC Tansley
    explained his effort to remember the robber before he drove away in order that
    he could later identify him, and his training was relevant in this regard.

[25]

The
    trial judges reference to PC Tansleys training did not taint her
    instructions. She properly instructed the jury on the dangers of eyewitness
    investigation and specifically addressed the frailties of eyewitness evidence
    and the possibility that PC Tansley might have erred:

[Y]ou heard evidence from Constable Tansley that the man he saw
    run from the bank and get into the gray Impala  was Thomas McConville.
    Eyewitness testimony is an expression by a witness of his belief or impression.
    It is quite possible for an honest witness to make a mistake in identification.
    Honest people do make mistakes. An apparently convincing witness can be
    mistaken and so can a number of apparently convincing witnesses.

[26]

Moreover,
    the trial judge referred to alleged inconsistencies in PC Tansleys evidence.

[27]

Defence
    counsel at trial did not object to either the Crowns address or to the trial
    judges charge. The failure to object does not determine this argument on
    appeal, of course, but it weighs against it. I see no basis to impugn the trial
    judges instructions.

(3)

Did the Crowns opening address to the jury prejudice the appellants
    right to a fair trial?

[28]

The
    appellant takes issue with two aspects of the Crowns opening address.  First,
    the appellant says the Crown unnecessarily suggested that the appellant had
    been involved in similar offences in the past. In particular, the Crown
    informed the jury that the appellant was immediately a suspect in the robbery
    because of his history with the police. Second, the Crowns opening address
    suggested that the appellant was such a serious criminal that he had been under
    police surveillance as recently as five days prior to the robbery. This, the
    appellant submits, likely caused the jury to form the opinion that the
    appellant was the type of person who would commit the robbery before they had
    heard any evidence. The appellant acknowledges that defence counsel at trial
    vetted the Crowns opening and did not object to it, but submits that this is
    not determinative and that a new trial is required, citing this courts
    decision in
R. v. M.B
., 2011 ONCA 76, 267 C.C.C. (3d) 72, at paras.
    27-34.

[29]

There
    is no merit to this submission.

[30]

Although,
    as I have noted, a failure to object at trial is not determinative of a matter
    raised on appeal, this case goes far beyond a failure to object. It is nothing
    like
M.B.
, which concerned inflammatory rhetoric in the context of a
    closing address, one of several errors that led the court to conclude the
    appellant had not received a fair trial.

[31]

In
    this case, the statements complained of were the subject of discussion and
    agreement of the Crown and defence counsel before they were made, and again prior
    to the examination of the arresting officer. The statements were designed to
    minimize potential prejudice to the appellant. As the Crown points out, not
    only did defence counsel at trial not object to the Crowns opening, he relied
    upon the statements in question in support of his alternative suspect
    application that sought to implicate Shawn McConville. The matter was
    specifically canvassed with counsel by the trial judge following the Crowns
    opening statement, and Crown counsel confirmed that he had discussed the matter
    with defence counsel and that they were on the same page about how far we both
    think is appropriate The Crown later informed the trial judge that the
    evidence of the officer who arrested both the appellant and Shawn McConville (that
    related, in part, to the police surveillance of the appellant) had been
    canvassed with defence counsel before he was called as a witness, and that
    issues concerning the surveillance had been resolved. No objection to the
    officers evidence was made by the defence.

[32]

I
    agree with the Crown that it was a tactical advantage to the defence for the
    jury to know that the police suspected both the appellants brother Shawn  the
    subject of the appellants alternate suspect defence  as well as the
    appellant. In all of these circumstances, the appellant cannot be said to have
    been prejudiced by the Crowns opening statement.

THE APPEAL FROM SENTENCE

(1)

The
Criminal Code
provisions

[33]

It
    is convenient to set out the relevant provisions governing the sentencing of dangerous
    offenders. The
Criminal Code
provides as follows:

s. 752
    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 on another
    person,

and for which the offender
    may be sentenced to imprisonment for ten years or more



753(4)
    If the court finds an offender to be a dangerous offender, it shall

(a) impose
    a sentence of detention in a penitentiary for an indeterminate period;

(b)
    impose a sentence for the offence for which the offender has been convicted 
    which must be a minimum punishment of imprisonment for a term of two years 
    and order that the offender be subject to long-term supervision for a period
    that does not exceed 10 years; or

(c)
    impose a sentence for the offence for which the offender has been convicted.

(4.1) The court shall impose a
    sentence of detention in a penitentiary for an indeterminate period unless it
    is satisfied by the evidence adduced during the hearing of the application that
    there is a reasonable expectation that a lesser measure under paragraph (4)(b)
    or (c) will adequately protect the public against the commission by the
    offender of murder or a serious personal injury offence.

(2)

The trial judges decision

[34]

The
    trial judge concluded that the robbery committed by the appellant involved the
    use or attempted use of violence against another person and that the use of
    violence was significant in the commission of the robbery. Following a review
    of the authorities, she concluded that robbery qualified as a serious personal
    injury offence under s. 752 and, as a result, that the appellant met the
    statutory criteria for being designated as a dangerous offender.

[35]

The
    trial judge went on to consider the appropriate sentence under s. 753(4.1). She
    concluded as follows:

I am hopeful that this time Mr. McConvilles resolve will
    translate into a real effort to follow through with programming and that he
    will be able to demonstrate sufficient achievements in his treatment to permit
    safe reintegration into the community. At this time, however, this is no more
    than a hope. It is clear that absent successful treatment Mr. McConville will
    remain a danger to the public at least until he is so old that he no longer
    poses any threat.

The length of determinate sentence I could impose for the
    offenses before the Court, even when combined with a maximum long-term
    supervision order will not, in my view, be long enough to get Mr. McConville to
    that age where protection of the public could be reasonably ensured. The
    reality is that if Mr. McConville does not succeed in his treatment before the
    expiration of a determinate sentence he will be released. The provisions of long-term
    supervision order will in that case, in my view, be insufficient to protect the
    public given Mr. McConvilles propensity for non-compliance with community
    supervision. The prospect that Mr. McConville will by that point have reached a
    point of burn out in respect of his propensity to engage in criminal activity
    is much too speculative.

Mr. McConvilles typical reaction in order to avoid being
    returned to custody has been to flee from police. This has in the past resulted
    in serious injury to the passenger in the vehicle Mr. McConville was driving,
    in significant injury to himself (he continues to this day to take medication
    for neck pain), and in great danger to the police officers in pursuit as well
    as any member of the public in the immediate area. The danger is simply too
    great to take a chance that Mr. McConville will, by the end of his release,
    have reached a point of burn-out.

I am not satisfied by the evidence adduced during the hearing
    of the application that there is a reasonable expectation that a lesser measure
    under s. 753 (4)(b) or (c) will adequately protect the public against the
    commission by Thomas McConville of a serious personal injury offence.

[36]

The
    appellant does not contest the conclusion that he is a dangerous offender. He
    seeks to appeal his indeterminate sentence on the basis that the trial judge
    misapprehended the evidence and erred in applying the test set out in s.
    753(4.1).

(3)

Did the trial judge misapprehend psychiatric evidence concerning the
    appellants risk to reoffend?

[37]

The
    appellant submits that, following the decision of the Supreme Court of Canada in
R. v. Lyons
, [1987] 2 S.C.R. 309, detention for an indeterminate term
    may be imposed only on a very small number of offenders. Although Parliament
    has since broadened the group of offenders who may be declared to be dangerous
    offenders, this court recognized in
R. v. Szostak
, 2014 ONCA 15, 118
    O.R. (3d) 401, leave to appeal refused, [2014] S.C.C.A. No. 300, at para. 54,
    that the new legislation was to be interpreted in the spirit of
Lyons
.
    This, the appellant submits, means that only the most dangerous offenders may
    receive an indeterminate sentence  a small subset of those considered a high
    risk of reoffending violently.

[38]

The
    appellant submits that it was imperative for the trial judge to recognize and
    consider that the experts did not place the appellant amongst this subset. The
    appellant focuses on the trial judges treatment of the evidence of the Crowns
    expert, Dr. Pearce, who placed the appellant in the moderate to high risk
    category. The trial judge misapprehended Dr. Pearces evidence, wrongly stating
    that he had identified the appellant as a high risk to reoffend violently. The
    trial judge repeated this error in her oral summary of her written decision.
[1]
The appellant submits that the trial judge would not have imposed an
    indeterminate sentence in the absence of this misapprehension.

[39]

The
    Crown submits that whether an offender is one of the worst offenders is not
    the sole standard by which the appropriateness of an indeterminate sentence is
    judged. The Crown acknowledges that the trial judge misstated Dr. Pearces diagnosis
    in stating that the appellant was a high risk to reoffend violently, but
    describes this as a misstatement arising in the context of collectively
    referring to Dr. Pearce and Dr. Gojer, the latter of whom did classify the appellant
    as a high risk. The Crown submits that the misstatement played no meaningful
    role in the trial judges finding that an indeterminate sentence was required.

[40]

I
    agree with the Crowns submission.

[41]

Although
    this court stated in
Szostak
that the legislation must be interpreted
    in the spirit of
Lyons
, it recognized that Parliament intended a
    broader group of offenders be declared dangerous offenders than was envisaged
    in
Lyons
where the court spoke of a very small group of offenders.
    The court added that it was of no assistance to attempt to predict the number
    of offenders that Parliament intended to bring within the legislative scheme.

[42]

Szostak
does not require that only the most dangerous of dangerous offenders may
    receive an indeterminate sentence. That is not the test. The trial judge was
    required to apply the legislation in accordance with its terms  no more, no
    less. Section 753(4.1) required that she sentence the appellant to a term of
    indeterminate detention unless she was satisfied there was a reasonable
    expectation that a lesser measure would provide adequate protection against
    the commission of a murder or serious personal injury offence by the appellant.

[43]

The
    trial judge carefully reviewed the expert psychiatric evidence, which included
    a s. 752.1 assessment conducted by Dr. Pearce and an assessment conducted by
    Dr. Gojer, who was retained by the defence. There were numerous similarities in
    their assessments. They agreed that the appellant has Anti-Social Personality
    Disorder and substance abuse problems. Using the same risk assessment tools 
    the Hare Psychopathy checklist, the Violence Risk Assessment Guide, and the
    HCR-20  Dr. Pearce assessed the appellant as a moderate to high risk to reoffend
    violently, and Dr. Gojer concluded that the appellant was a high risk. They
    agreed that the appellant was not a psychopath, but would be difficult to
    treat. And they agreed that the appellant meets the criteria to be declared a
    dangerous offender.

[44]

In
    his assessment, Dr. Pearce stated that there were few reasons for optimism
    regarding the likelihood of treating this gentlemans relevant diagnoses and
    few reasons for optimism that this gentleman will be manageable in the
    community upon the expiry of an LTSO, given his escalating and extensive
    criminal history, his substance abuse disorder and the presence of antisocial
    personality disorder. He testified that he was a fair distance away from
    concluding that there was a reasonable possibility that the appellant would not
    violently reoffend following a LTSO.

[45]

For
    his part, Dr. Gojer expressed the opinion that there was a reasonable
    possibility that the appellants risks could eventually be managed in the
    community if he received a lengthy penitentiary sentence; substance abuse counselling;
    anger management and pro-social counselling; and the maximum long-term
    supervision order. He agreed, however, that if the appellant did not manage his
    substance abuse the intensity of his violent acts might remain the same or
    increase.

[46]

The
    trial judge found as follows:

The risk assessment tools employed by both [Dr.s] Pearce and
    Gojer confirm that Thomas McConville is a high risk to reoffend violently. It
    is the opinion of both psychiatrists, employing those tools as well as their
    own clinical assessments that Mr. McConville is a high risk to reoffend
    violently. Both psychiatrists diagnosed Mr. McConville with Anti-Social
    Personality disorder which they agree is not treatable but can only be managed.

[47]

The
    trial judges statement that the appellant was found by both doctors to be a
    high risk to reoffend violently is clearly a misstatement. Only Dr. Gojer
    classified the appellant as a high risk to reoffend violently. Dr. Pearce
    assessed the appellant as a moderate to high risk to reoffend violently.

[48]

However,
    when the decision is read as a whole, it is also clear that the misstatement
    was not essential to the trial judges finding that an indeterminate sentence
    was required, nor did it play a significant role in that finding. The trial
    judge concluded that an indeterminate sentence was required because she
    considered that nothing short of an indeterminate sentence would provide
    reasonable protection for the public. This finding is amply supported in the
    record, as I explain below.

(4)

Did the trial judge err by focusing on the risk of harm in general,
    rather than the risk that the appellant would commit a serious personal injury
    offence?

[49]

The
    appellant argues, in essence, that the trial judge misunderstood the
    requirements of s. 753(4.1). She considered the risk of future violence in
    general, whereas she should have focused on the risk that the appellant would
    commit a serious personal injury offence or murder. This is a particular
    problem for the appellant, because most of the violent offences he committed were
    not personal injury offences and the likelihood of him committing such an
    offence was a live issue.

[50]

The
    appellant submits that there must be more than a possibility that a dangerous
    offender will commit a serious personal injury offence in the future before an
    indeterminate sentence is required; there must be a probability or likelihood
    that the he will commit such an offence. However, the trial judge did not refer
    to the risk that the appellant would commit a serious personal injury offence.
    Instead, she referred repeatedly to the appellants risk of future violence, as
    well as the expert evidence on managing the appellants risk of general
    violence in the community. The only offences she referred to specifically were
    driving offences  dangerous driving and failure to stop. The appellant submits
    that the trial judge erred in considering the driving offences because they
    were not serious personal injury offences.

[51]

The
    appellant reiterates the submission, rejected above, that he is not one of the
    very small group of offenders for whom an indeterminate sentence is
    appropriate. He invites comparison of the circumstances of his case with those
    of the appellant in
Szostak
, in which a determinate sentence was
    imposed despite the appellants commission of several acts of extreme violence.

[52]

I
    would reject this submission.

[53]

The
    appellant parses the trial judges reasons in support of this submission, but
    in my view the trial judges decision, read as a whole, cannot be impugned. The
    trial judge carefully reviewed all of the relevant considerations including the
    expert evidence, which I have already addressed. She reviewed the appellants
    lengthy criminal record, the appellants conduct while in custody and while
    under community supervision over the years, and his convictions that post-date
    the index offences.

[54]

It
    is true, as the appellant submits, that only some of the appellants
    convictions concern violent offences. But his record includes several assaults,
    aggravated assault, assault causing bodily harm, and uttering threats. There
    was ample basis for the trial judge to find that appellant is a dangerous
    individual prone to engage in violent acts, and when facing the prospect of
    apprehension for his illegal activity, to flee from police at all costs. And
    there was ample basis for her finding that there is no more than a hope of
    the appellants future reintegration into the community.

[55]

Contrary
    to the appellants submission, the trial judge did not err in considering the
    appellants driving offences  dangerous driving, failure to stop, and driving
    while disqualified. She did not find that they constituted serious personal
    injury offences under s. 752. Clearly they do not. The appellants driving
    offences were relevant, however, to the robbery he committed. The trial judge
    found that the manner in which the appellant used a vehicle to get away
    following the robbery clearly amounted to conduct that endangered or was likely
    to endanger the life or safety of other persons.

[56]

The
    discretion to impose an indeterminate sentence is not conditional upon the
    trial judge finding that there is a probability or likelihood of the offender
    committing murder or a serious personal offence, as the appellant submits.
    Section 753(4.1) requires dangerous offenders to receive an indeterminate
    sentence unless the trial judge is satisfied that there is a reasonable
    expectation that a lesser measure offers adequate protection against the
    commission of murder or a serious personal injury offence by the dangerous
    offender. In other words, the starting point in this analysis was that the
    trial judge was required to sentence the appellant to an indefinite sentence; a
    lesser, determinate sentence could be imposed only if the trial judge was
    satisfied that there was a
reasonable expectation
that a lesser
    measure would be adequate to protect the public from the appellant committing a
    murder or serious personal injury offence.

[57]

Of
    course, the extent of the threat posed by the appellant is a relevant
    consideration in determining the adequacy of lesser measures to protect the
    public. But while more than a mere possibility that the appellant would commit
    murder or a serious personal offence was required in order to support a
    reasonable expectation that a lesser measure would not be adequate, the risk
    that the appellant will commit murder or a serious personal injury offence need
    not rise to the level of being probable or likely, as the appellant submits, in
    order to justify the imposition of an indeterminate sentence.

[58]

As
    the passages set out above demonstrate, the trial judge was not satisfied that
    a sentence other than preventive detention would protect the public. She
    recognized that an offenders motivation to engage in treatment is an important
    consideration, and in this regard she considered a letter the appellant sent to
    the court, indicating his amenability to treatment. However, as the appellant
    acknowledged, he had made similar assertions in the past and failed to follow
    through. Both psychiatrists agreed that the appellant would be difficult to
    treat, and that his Anti-Social Personality disorder could only be managed.

[59]

The
    trial judge was required to consider all of the relevant considerations and
    make a reasoned judgment under s. 753(4.1) as to the risk posed by the
    appellant and the adequacy of a determinate sentence in managing that risk. The
    trial judge found that the length of the determinate sentence she could impose,
    even combined with the maximum long-term supervision order, would not get the
    appellant to the point of burn-out. It was much too speculative. In my view,
    her conclusion is amply supported by the record. The trial judge made no errors
    in principle, nor is this sentence demonstrably unfit.

[60]

Finally,
    I note that this courts decision in
Szostak
does not support the
    appellants argument that an indeterminate sentence is inappropriate in this
    case. Care must be taken in comparing sentences imposed in different factual
    circumstances. An individual, context-specific determination is required and
    the trial judges determination is entitled to deference. In any event, I note
    that the Crown conceded that an indeterminate sentence was not appropriate in
Szostak
.

conclusion

[61]

I
    would dismiss the appeal against conviction. I would grant leave to appeal
    sentence but would also dismiss that appeal.

Released: October 30, 2017 (E.E.G.)

Grant
    Huscroft J.A.

I agree.
    E.E. Gillese J.A.

I agree.
    G.T. Trotter J.A.





[1]
Earlier in her decision, the trial judge describes Dr. Pearces assessment of
    the appellant as a moderately high risk to reoffend violently, rather than a
    moderate to high risk. No issue was taken concerning this description and it
    does not affect the analysis that follows.


