



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Spilman, 2018 ONCA 551

DATE: 20180615

DOCKET: C59188

Rouleau, Watt and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Derek Norman Spilman

Appellant

Derek Norman Spilman, acting in person

Amy Ohler, appearing as duty counsel

Lorna Bolton, for the respondent

Heard: January 9, 2018

On appeal from the sentence imposed on July 22, 2014 by
    Justice André L. Guay of the Ontario Court of Justice, with reasons reported at
    2014 ONCJ 373.

Watt J.A.:

[1]

Not all dangerous offenders are sentenced to detention in a penitentiary
    for an indeterminate period.

[2]

Derek Norman Spilman is a dangerous offender. A judge concluded that
    there was a reasonable expectation that a measure lesser than an indeterminate
    sentence would adequately protect the public against violent recidivism by
    Spilman. And so the judge sentenced Spilman (the appellant) to imprisonment for
    10 years
[1]
and ordered that he be subject to long-term supervision for a further period of
    10 years.

[3]

The appellant says that the custodial portion of his sentence  10 years
    less credit for pre-disposition custody  is unfit and should be reduced. These
    reasons explain why I disagree and would dismiss the appeal.
[2]

The Background Facts

[4]

To locate the claim of error in its proper setting, some brief
    background about the predicate offence, as well as the basis for the dangerous offender
    finding and the sentence imposed is necessary.

The Predicate Offence

[5]

The appellant was tried by a judge of the Ontario Court of Justice on an
    information containing a single serious personal injury offence  assault
    causing bodily harm  and three counts of breaching a recognizance entered into
    under s. 810.2 of the
Criminal Code
.

[6]

The offences all arise out of the same circumstances. An evening of
    drinking with the complainant. More drinking at a bar. Altercations between the
    appellant and others at the bar. A severe beating of the appellant by two other
    men. Then a return to the complainants home. There the appellant, an invited
    guest, beat and kicked his host, leaving her with cuts, bruises and nerve
    damage to the right side of her face.

The Dangerous Offender Proceedings

[7]

The Crown obtained the consent necessary to institute dangerous offender
    proceedings. The hearing judge received extensive written materials as well as
    the reports and testimony of two experienced forensic psychiatrists. Both
    doctors concluded that the appellant satisfied the statutory criteria for
    designation as a dangerous offender. However, they differed about whether there
    was a reasonable expectation that a sentence other than imprisonment in a
    penitentiary for an indeterminate period would adequately protect the public
    against the appellants violent recidivism.

The Dangerous Offender Finding

[8]

The hearing judge was satisfied beyond a reasonable doubt that the
    appellant met the requirements of each subparagraph in s. 753(1)(a) of the
Criminal
    Code
for designation as a dangerous offender. The judge concluded:

A review of the evidence, including
    Derek Spilmans criminal record and the various reports submitted with respect
    to that record, clearly establishes a pattern of repetitive behaviour, which
    includes the offence for which he is being sentenced, which shows a failure to
    restrain his behaviour and the likelihood that this behaviour will in the
    future cause death or injury to other persons or inflict on them severe
    psychological damage.

In Derek Spilmans case, that behaviour involves repeated acts
    of physical violence and aggression committed against others since he was 15
    years of age. Common to many of these assaults is the emotional and apparent
    psychological consternation of the victims resulting from the unrestrained
    nature of Derek Spilmans attacks on them.

I find that Derek Spilmans behaviour, commencing at the age of
    15, and ending with his assault on C.F., constitutes a pattern of persistent,
    aggressive behaviour which shows a substantial degree of indifference on his
    part to the reasonably foreseeable consequences to other persons of that
    behaviour.

I also find that Derek Spilmans behaviour during the course of
    the offence committed by him against C.F. was of such a brutal nature as to
    compel the conclusion that his future behaviour would unlikely be inhibited by
    normal standards of behavioural restraint.

The Submissions on Sentence

[9]

Crown counsel at the dangerous offender hearing (not Crown counsel on appeal)
    sought a sentence of detention in a penitentiary for an indeterminate period.
    He emphasized that an indeterminate sentence was the presumptive sentence for
    dangerous offenders. He advocated that the evidence of Dr. Pearce, whom he had
    called as a witness for the Crown, should be preferred over that of Dr.
    McMaster who was called as a defence witness on the issue of the adequacy of
    any lesser sentence to protect the public against future violent recidivism by
    the appellant. In the alternative, the Crown sought a determinate sentence of
    3-4 years followed by long-term supervision order, though Crown counsel noted
    the custodial term might  [be] even longer based on the evidence youve heard.

[10]

Counsel
    for the appellant at the hearing (not duty counsel) sought a sentence of time
    served, and, in the alternative, a three month fixed-term sentence of
    imprisonment followed by long-term supervision. He urged the hearing judge to
    prefer the expert opinion of Dr. McMaster who concluded that such a blended
    sentence would adequately protect the public against future violent recidivism
    by the appellant.

The Reasons for Sentence

[11]

In
    his reasons for sentence, the hearing judge preferred the testimony of Dr.
    McMaster to that of Dr. Pearce.

[12]

The
    hearing judge observed that both risk and risk management were contextual. Risk
    management depended upon treatment during the custodial portion of the sentence
    and supervision thereafter. He noted the expert evidence suggested a
    significant decrease in the risk of violent recidivism beginning at age 45. He
    concluded that simply because the appellants condition would require careful
    monitoring and supervision over a period of 10-15 years was not a reason to
    conclude that the eventual supervision of the appellant in the community was
    not an appropriate legal response.

[13]

The
    hearing judge considered that the appellant was more likely to receive and
    benefit from more services if sentenced to a lengthy term of imprisonment
    followed by long-term supervision than he would if he were to receive an
    indeterminate sentence. The failure of the appellant to benefit from prior
    programs was, the judge concluded, attributable to the length of earlier
    sentences not the inefficacy of the programs themselves.

[14]

The
    hearing judge also considered that the appellants conduct in pre-disposition
    custody supported the conclusion that he was capable of controlling his violent
    impulses and nature, if motivated to do so. That said, the hearing judge was
    not satisfied that a sentence of imprisonment for a fixed-term alone, without
    community supervision, would adequately protect the public.

[15]

In
    the end, the hearing judge settled on the blended sentence option of s.
    753(4)(b) as the appropriate disposition. He explained:

While the process of change has begun with Derek Spilman, the
    time remaining under appropriate sentence for his offence, the assault causing
    bodily harm of C.F., after credit is given for pre-sentence custody, would be
    insufficient to allow him satisfactorily to deal with his violence and
    substance abuse issues. And, in fact, the  what both psychiatrists have
    concluded about his substantial risk to commit that serious violent offence
    within the next 7 or 8 years. I also believe, on the basis of the evidence
    which I heard, that there is a reasonable expectation that the lesser sentence
    measure provided under s. 753(4)(b) of the
Code
will protect the
    public against the commission by the offender of murder or a serious personal
    injury offence.

In light of the evidence adduced at this hearing, it would be
    appropriate then to impose on Derek Spilman, for the offence of assault causing
    bodily harm on C.F., a sentence of 10 years of custody, together with a long
    term supervision order of 10 years. Bearing in mind s. 719(3.1) of the
Code
,
    and the fact that the offence of assault causing bodily harm on C.F. was
    committed while Derek Spilman was bound by a recognizance made pursuant to s.
    810.2 of the
Code
, I allow Derek Spilman a credit for time served in
    pre-sentence custody calculated on a one for one day basis.

The grounds of appeal

[16]

The
    appellant challenges the fitness of the custodial portion of the blended
    sentence imposed upon him. He says that the hearing judge failed to properly
    apply the principles of sentencing of Part XXIII of the
Criminal Code
in determining the length of the custodial portion of the sentence. The quantum
    of the custody component of the blended sentence was not, as it should have
    been, in accordance with the principle of proportionality, but was determined
    by the judges assessment of how long the appellant should be in custody to
    complete correctional programs such as anger management prior to his release
    into the community under long-term supervision.

[17]

As
    an additional submission, the appellant says that the hearing judge erred in
    his calculation of the credit the appellant should receive for pre-disposition
    custody.

The Fitness of the Sentence

[18]

The
    appellant begins with a reminder that, at bottom, Part XXIV of the
Criminal
    Code
is concerned with sentencing. And as a sentencing provision, as the
    authorities make clear, the principles of sentencing in Part XXIII, especially
    ss. 718-718.2, apply to dangerous offender proceedings. Among those principles
    is the fundamental principle of proportionality in s. 718.1.

[19]

The
    application of the principles in Part XXIII, especially the fundamental
    principle of proportionality, even according primary emphasis to denunciation,
    deterrence and separation of a dangerous offender from society to ensure its
    protection, cannot sustain imposition of the custodial component of the blended
    sentence imposed here.  Quite simply, imposition of the maximum sentence in the
    circumstances of this case is disproportionate to the gravity of the offence
    and the degree of responsibility of the appellant as the offender who committed
    it. Concern for the appellants rehabilitation does not justify a departure
    from the fundamental principles of sentencing.

[20]

The
    respondent counters with a submission that no intervention with the sentence
    imposed at trial is warranted.

[21]

According
    to the respondent, the deference due to sentencing decisions under Part XXIII
    continues in connection with sentencing decisions under Part XXIV. In
    particular, in the selection of sentencing dispositions under s. 753(4). No
    less stringent standard of review than that mandated by
R. v. Lacasse
,
    2015 SCC 64, [2015] 3 S.C.R. 1089 applies when the sentence under review is
    that imposed in dangerous offender proceedings.

[22]

The
    respondent accepts that the provisions of Part XXIII, in particular ss.
    718-718.2, apply to sentencing dangerous offenders under Part XXIV. But these
    principles cannot be transported without regard to the context of Part XXIV.
    After all, a dangerous offender designation has been made, not simply a
    conviction recorded for the predicate offence. The purpose of the sentence is
    to ensure the public is adequately protected against the likelihood of violent
    recidivism by one with an established record of violence. And that is very
    different from the purpose of sentencing under Part XXIII.

[23]

In
    this case, the respondent says, the custodial sentence imposed was supported by
    expert evidence accepted by the hearing judge, which suggested that the
    appellant required a lengthy sentence to ensure his completion of
    rehabilitative programs prior to supervision in the community. To do otherwise
    would put the safety of the community at risk during the period of long-term
    supervision. In any event, the respondent argues, the selection of a 10 year
    sentence enured to the benefit of the appellant. After all, the only other
    sentencing alternative was a sentence of detention in a penitentiary for an
    indeterminate period.

The Governing Principles

[24]

Dangerous
    offender proceedings are sentencing proceedings. But unlike other sentencing
    proceedings, dangerous offender proceedings entail a two-stage process.

[25]

To
    begin, the
designation
stage. This involves and requires a
    determination of whether the evidence adduced on the hearing satisfies the
    requirements of s. 753(1) of the
Criminal Code
for the offender to be
    designated a dangerous offender:
R. v. Boutilier
, 2017 SCC 64, [2017]
    2 S.C.R. 936, at para. 14.

[26]

To
    obtain a designation of dangerousness resulting from the offenders violent
    behaviour, the Crown must prove beyond a reasonable doubt that:

i.

the offence of which the offender has been convicted  the predicate
    offence  is a serious personal injury offence as defined in s. 752; and

ii.

the offender must represent a threat to the life, safety or physical or
    mental well-being of other persons on the basis of evidence establishing a
    violent pattern of conduct within ss. 753(1)(a) or (b).

See,
Boutilier
, at paras. 17-18.

[27]

The
    appellant devoted little time to contesting his designation as a dangerous offender.
[3]
I see no reason to disturb that finding.

[28]

The
    second stage of the dangerous offender regime  the
penalty
stage 
    has to do with the sentencing of those found to be dangerous offenders. As in
    all sentencing proceedings, it is incumbent on the hearing judge to apply the
    principles and mandatory guidelines put in place by ss. 718-718.2 of Part XXIII
    of the
Criminal Code
:
Boutilier
, at paras. 53, 61 and 63. Parliament
    has decided that, for individuals designated as dangerous offenders, protection
    of the public is an enhanced sentencing objective. However, it does not follow
    from the mere enhanced place of protection of the public that this objective
    forecloses all others in the sentencing decision. It remains necessary to
    evaluate all the circumstances:
Boutilier
, at para. 56.

[29]

Section
    753(4) lists three sentencing dispositions available to the hearing judge for
    those found to be dangerous offenders:

i.

detention in a penitentiary for an indeterminate period;

ii.

a sentence of imprisonment of at least two years for the predicate
    offence followed by a period of long-term supervision of not more than 10
    years; or

iii.

a sentence for the predicate offence.

[30]

Section
    753(4.1) provides guidance on how hearing judges can properly exercise their
    discretion, in accordance with the applicable objectives and principles of
    sentencing, to impose the appropriate sentence to manage the established threat
    that the offender poses to society. The provision requires the judge to examine
    the evidence adduced at the hearing to determine whether there is a reasonable
    expectation that a lesser measure  a conventional fixed-term sentence or a
    fixed-term sentence of at least two years followed by a long-term supervision
    order  will adequately protect the public against the risk that the offender
    will commit murder or a serious personal injury offence. The hearing judge must
    first exhaust the less coercive sentencing options to address this risk of recidivism
    before imposing a sentence of indeterminate detention in a penitentiary:
Boutilier,
at para. 69.

[31]

The
    arguments advanced by duty counsel require consideration of two further issues
    of principle, which I would paraphrase as whether, in determining the length of
    the custodial portion of a composite sentence imposed under s. 753(4)(b), a
    hearing judge:

i.

is restricted to the range of sentence that would be appropriate for the
    offender upon conviction of the predicate offence, but in the absence of any
    dangerous offender proceedings; and

ii.

may consider the time reasonably necessary for the offender to complete
    available rehabilitative programs in the penitentiary.

[32]

As
    I will explain, I am satisfied that in determining the length of the fixed-term
    custodial component of a composite sentence under s. 753(4)(b), the hearing
    judge is not restricted to imposing a term of imprisonment that would be
    appropriate on conviction of the predicate offence but in the absence of a
    dangerous offender designation. The hearing judge must take into account the
    statutory limits of the offence for which sentence is being imposed, the
    paramount purpose of public protection under Part XXIV, and other applicable
    sentencing principles under ss. 718-718.2. This analysis may justify fixed term
    sentences lengthier than those appropriate outside the dangerous offender
    context. I reach this conclusion for six reasons.

[33]

First,
    Parliament has determined that protection of the public is an enhanced
    sentencing objective for that class of offenders who have been designated as
    dangerous in light of their previous, current and likely future conduct.
    Emphasis on the public safety component is consistent with the fact that public
    protection is the general purpose of Part XXIV of the
Criminal Code
:
Boutilier,
at para. 56;
R. v. Steele,
2014 SCC 61, [2014] 3 S.C.R. 138, at
    para. 27. This enhanced objective of public safety distinguishes proceedings
    under Part XXIV from those under Part XXIII and is of sufficient cogency to
    warrant sentencing dispositions beyond those ordinarily available for the predicate
    offence: see ss. 753(4)(a) and (b).

[34]

Second,
    a related point. The context provided by s. 753(4)(a)  the provision
    permitting sentences of indeterminate detention  makes it clear that hearing
    judges have an increased flexibility under the dangerous offender regime to
    construct a sentence  that emphasizes protection of the public, but is not
    concordant with the sentencing options available upon conviction of the
    predicate offence. A sentence of indeterminate detention represents a
    determination that the relative importance of the sentencing objectives of
    rehabilitation, deterrence and retribution are greatly attenuated in the case
    at hand and the objective of prevention correspondently increased:
R. v.
    Lyons
, [1987] 2 S.C.R. 309, at p. 329. We learn from
Boutilier
that a sentence of indeterminate detention is not an exception to the
    principles of sentencing. To the contrary, such a sentence is one mandated by
    their proper application:
Boutilier,
at para. 55. If a proper
    application of sentencing principles in the dangerous offender setting under s.
    753(4) can justify a sentence of indeterminate detention  a sentencing
    disposition not available in the traditional sentencing context  it would seem
    logically to follow that those same principles can also justify less onerous
    fixed-term sentences that extend beyond what would be appropriate outside the
    dangerous offender setting.

[35]

Third,
    nothing in the plain language of s. 753(4)(b), or for that matter of s.
    753(4)(c), indicates that the provisions do not share the general purpose of
    Part XXIV sentences. The plain language of s. 753(4)(c)  impose a sentence
    for the offence for which the offender has been convicted  requires nothing
    more than adherence to sentencing options provided for the predicate offence 
    any minimum and the maximum term of imprisonment.
[4]
That wording does not preclude hearing judges from placing enhanced focus on
    public safety when imposing a sentence.

[36]

Fourth,
    the requirement that the custodial component of a composite sentence under s.
    753(4)(b) must be a minimum punishment of imprisonment for a term of two years
    signals a departure from the traditional sentencing principles of Part XXIII.

[37]

Fifth,
    conviction of a predicate serious personal injury offence is an essential
    pre-condition to designation of the offender as a dangerous offender, but it is
    not, as it is in conventional sentencing proceedings, the offence for which the
    offender is being sentenced. The appellant is being sentenced not only as a
    person who committed the predicate offence, but because he is a dangerous
    offender, albeit a person who committed the predicate offence among other
    things. The different focal points of the sentencing proceedings puts paid to
    the claim that the length of the custodial term in a composite sentence in
    dangerous offender proceedings should mirror that in stand-alone proceedings
    for the predicate offence. To do so would be to render the dangerous offender
    finding redundant.

[38]

Finally,
    the available sentencing options under ss. 753(4)(b) and (c) should be
    interpreted broadly and generously. After all, they represent the only
    available alternatives to ensure the protection of the public from dangerous
    offenders other than the most extreme form of preventive sentence that our law
    permits  detention in a penitentiary for an indeterminate period:
Boutilier
,
    at para. 3. To interpret the provisions of s. 753(4)(b) in this way, that is to
    say, by imposition of a custodial term within the sentencing options available
    for the predicate offence but beyond the range appropriate in the absence of a dangerous
    offender designation, permits the hearing judge to impose the least intrusive
    sentence required to achieve the primary purpose of Part XXIV, yet reserves
    indeterminate sentences for those for whom no other measure will adequately
    protect the public:
Boutilier,
at para. 60.

[39]

I
    turn next to the question of whether the hearing judge may consider the time
    reasonably necessary for the dangerous offender to complete available
    rehabilitative programs in determining the length of the custodial component of
    the composite sentence under s. 753(4)(b). For reasons that I will develop, I
    am satisfied that a hearing judge is entitled to take into account access to
    rehabilitative programming in a penitentiary in deciding upon the length of the
    custodial component of a composite sentence under s. 753(4)(b).

[40]

No
    one gainsays the relevance of evidence about a dangerous offenders prospects
    for treatment to the determination of the sentencing disposition required to
    adequately protect the public against the prospect of future violent
    recidivism:
Boutilier,
at para. 45. It is also well settled that
    outside the dangerous offender environment, sentencing judges are disentitled
    to determine the length of a sentence of imprisonment solely by reference to
    the period of time necessary to complete essential or recommended
    rehabilitative programs: see, for example,
R. v. M.B.
(1987), 36
    C.C.C. (3d) 573 (Ont. C.A.), at pp. 574-575;
R. v. Legere
(1995), 22 O.R.
    (3d) 89 (C.A.), at p. 101.

[41]

Implicit
    if not explicit in the appellants complaint is that to take cognizance of the
    time needed for rehabilitative treatment or programs in a penitentiary in
    fixing the length of the custodial component of composite sentence results in
    the unwarranted extension of the appropriate range of sentence, and does not
    accord the fundamental principle of the proportionality its proper due.

[42]

As
    it seems to me, this argument assumes that the range of sentence appropriate
    for the predicate offence
outside
the dangerous offender regime
    provides the benchmark against which to measure sentences imposed under ss.
    753(4)(b) or (c) within Part XXIV. But, as we have already seen, these are not
    comparable regimes. The submission fails to give effect to the indelible fact
    that the offender has been designated a dangerous offender and to the enhanced
    sentencing objective of protection of the public which is the focus of Part
    XXIV. Rather than comparing the sentence imposed to the appropriate sentence
    outside the dangerous offender context, the relevant question should be whether
    the hearing judge has reasonably assess[ed] the relative importance of the
    sentencing objectives in [a] particular case:
Boutilier
, at para. 55.

[43]

Second,
    accounting for a dangerous offenders access to rehabilitative programs within
    the federal correctional system is consistent with the primary purpose of the
    dangerous offender sentencing provisions in Part XXIV: protection of the
    public. Facilitating access to treatment or other rehabilitative programs factors
    into the hearing judges decision about whether there is a reasonable
    expectation that a sentence other than detention in a penitentiary for an
    indeterminate period will adequately protect society from the risk of future
    violent recidivism.

[44]

This
    point is well made in
R. v. Hopley
, 2015 BCCA 499, 380 B.C.A.C. 160. The
    appellant was found to be a long-term offender. The hearing judge imposed a
    composite sentence under s. 753.1(3). Hopley appealed his sentence on the basis
    that he had not been given adequate credit for the time he had spent in
    pre-disposition custody. Central to the decision of the hearing judge was the
    need for Hopley to have access to rehabilitative programs in the penitentiary
    before the long-term supervision order began. The British Columbia Court of Appeal
    dismissed the appeal and made the following observations:

Sentences under Part XXIV of the Code are structurally
    different and have a different focus than those under Part XXIII of the Code.
    Sentences under Part XXIII draw upon the principles and purposes of sentencing
    in ss. 718, 718.1 and 718.2 to determine the scope of the circumstances in s.
    719(3.1) that would justify enhanced credit. The principles and objectives of
    sentencing set out in ss. 718, 718.1 and 718.2 must also be considered in
    determining if a long-term offender order should be imposed (see
R. v.
    Johnson
, 2003 SCC 46 at para. 28 for a discussion in the dangerous
    offender context), however, the principal focus of sentences under Part XXIV is
    on the protection of the public.
With respect to a long-term offender
    order, the protection of the public is sought to be achieved by reducing the
    offenders risk through programming and treatment while serving the determinate
    sentence in order to facilitate the offenders supervised reintegration into
    the community.
[Emphasis added.]



The ultimate sentence, including the effective sentence and its
    adjustment for pre-sentence custody at the lower rate, carefully balanced all
    the relevant considerations of Mr. Hopleys antecedents, his ongoing sentencing
    needs, and the paramount objective of the protection of the public from Mr.
    Hopleys high risk to reoffend against children. The judge found that it was
    unlikely Mr. Hopleys substantial risk to reoffend would be sufficiently
    reduced to a level that could be managed in the community without a lengthy
    period of incarceration, during which it was hoped that he would successfully
    complete the high intensity Sex Offender Program or alternatively have his risk
    to reoffend reduced through the aging process.

The overarching objective of the protection of the public, through
    the formulation of a determinate period of imprisonment adjusted for credit for
    pre-sentence custody at the lower rate in order to facilitate the offenders
    supervised reintegration into the community, distinguishes this case from [
R.
    v. Gazeley
, 2006 BCCA 240, 210 C.C.C. (3d) 218]. In this case, the judges
    discretionary application of the lower credit rate for the qualitative
    rationale, and impliedly for the quantitative rationale, was justified through
    a principled analysis that focused on the objective of the publics protection.

See,
Hopley
, at paras. 59, 63 and 64. In
    connection with the use of a reduced rate of credit for pre-disposition custody
    to achieve this purpose, see also
R. v. Cote
, 2015 SKCA 52, 457 Sask.
    R. 237, at paras. 78-81; and
R. v. D.(E.E.)
, 2007 SKCA 99, 304 Sask.
    R. 192, at para. 74.

[45]

Third,
    imposition of a fixed-term custodial sentence that accounts for access to
    rehabilitative programs in a penitentiary at the front end of a composite
    sentence under s. 753(4)(b) may also allow a hearing judge to avoid imposition
    of an unnecessary sentence of indeterminate detention with its profoundly
    devastating impact on the dangerous offender:
Lyons
, at p. 339.

[46]

To
    illustrate, take the facts of
R. v. Walters
, 2013 ONSC 6551.

[47]

Walters
    was convicted of criminal harassment and designated a dangerous offender. His
    counsel sought a four to six month sentence in a reformatory in addition to
    three years of pre-disposition custody, prior to commencement of a ten year
    long-term supervision order. But expert evidence indicated that Walters
    required access to high intensity sexual assault programs only available in the
    penitentiary absent which he was at risk to reoffend.

[48]

The
    hearing judge imposed a two year penitentiary sentence followed by a ten year long-term
    supervision order. She refused to compare the sentence to be imposed in the
    case with one that should be imposed in a non-dangerous offender case:
Walters
,
    at para. 59. The hearing judge accepted the evidence that Walters required
    access to programming only available in the penitentiary and tailored the
    sentence accordingly.

[49]

On
    appeal, this court upheld the hearing judges decision in brief reasons which,
    in their relevant part, are:

We are satisfied that the trial judge properly approached her
    task of sentencing the appellant, after he had been found a dangerous offender,
    in a manner that emphasized the least intrusive sentence required to achieve
    the primary purpose of the statutory scheme:
R. v. Boutilier
, 2017 SCC
     64, [2017] 2 S.C.R. 936, at para. 60.
In particular, the trial judge
    had regard to the need for the appellant to be in a penitentiary setting in
    order to access necessary high intensity sexual assault programs. The trial
    judge determined this to be necessary treatment to address the significant
    threat posed by the appellant to the community.
[Emphasis added.]

See,
R. v. Walters,
2018 ONCA 391, at para.
    13. This court reached a similar conclusion in
R. v. McCauley
(2004),
    187 O.A.C. 139, at paras. 3-5. See also,
R. v. Edwards
, 2008 ONCA 414,
    237 O.A.C. 40, at paras. 18-22;
R. v. Wilton
, 2016 SKCA 131, at paras.
    53-54.

[50]

Had
    the hearing judge in
Walters
been prohibited from fashioning a
    sentence responsive to Walters need for treatment in the penitentiary, she may
    well have been forced to impose a sentence of indeterminate detention under s. 753(4)(a).
    The unfairness to Walters would have been manifest. He would have faced, at a
    minimum, a seven year term of imprisonment before being entitled to a parole
    hearing under s. 761(1) of the
Criminal Code
, even though
no
evidence at the hearing suggested that a sentence of that length was necessary
    to safeguard the public. This outcome would have contradicted the Supreme
    Courts clear guidance in
Boutilier
, at para. 65, and in
R. v. Johnson
,
    2003 SCC 46, [2003] 2 S.C.R. 357, at para. 44, that courts should impose an
    indeterminate period of detention, if, and only if, an indeterminate sentence
    is the least restrictive means by which to reduce the public threat posed by
    the offender to an acceptable level.

[51]

For
    these reasons, I am satisfied that when imposing a sentence under ss. 753(4)(b)
    or (c), a hearing judge may impose a fixed-term sentence that exceeds the
    appropriate range in the non-dangerous offender context, to ensure the offender
    has access to treatment programs in a penitentiary. The length of the sentence
    imposed, however, should be subject to three constraints.

[52]

First,
    the punishment provisions for the predicate offence. Any custodial sentence
    imposed as a component of a composite sentence under ss. 753(4)(b) or as a standalone
    disposition under s. 753(4)(c), cannot exceed the maximum term of imprisonment
    for the predicate offence.

[53]

Second,
    the sentencing objectives, principles and factors in ss. 718-718.2. While
    factors such as the degree of responsibility of the offender and the gravity of
    the offence play a lesser role in determining a sentence under Part XXIV, these
    considerations cannot be entirely ignored. Even where their significance is
    attenuated, they prevent the imposition of lengthy fixed-term sentences that
    are entirely disconnected from the circumstances of the offence giving rise to
    the sentencing proceedings.

[54]

Third,
    the length of sentence imposed must be responsive to evidence adduced at the
    hearing. The evidence about treatment programs should be specific, preferably
    indicating an approximate length or range of time within which the offender may
    be expected to complete the programming said to be necessary to protect the
    public. There must be a clear nexus between that programming and future public
    safety, sufficient to support a reasonable expectation that the overall
    sentence will adequately protect the public against the commission by the
    offender of murder or a serious personal injury offence: s. 753(4.1). And the
    evidence must account for the offenders amenability to treatment and the
    prospects for the success of treatment in reducing or containing the offenders
    risk of reoffending:
R. v. Little
, 2007 ONCA 548, 225 C.C.C. (3d) 20,
    at para. 40.

The Principles Applied

[55]

For
    the brief reasons that follow, I would not interfere with the fixed-term
    custodial sentence imposed by the hearing judge. After credit for time spent in
    pre-disposition custody, the term of imprisonment in a penitentiary was for
    slightly less than 7 years.

[56]

To
    begin, for the reasons expressed above, I do not accept the submission advanced
    by the appellant that the custodial term of a composite sentence authorized by
    s. 753(4)(b) should be equivalent or near equivalent in length to the sentence
    that would be appropriate for the predicate offence standing alone. Nor did the
    hearing judge err in principle by having regard for the appellants need for
    rehabilitative programming in the penitentiary in determining the fixed term of
    imprisonment to impose.

[57]

The
    hearing judge considered the available programs in the penitentiary to be
    necessary to address the significant threat the appellant posed to the
    community. Evidence was given about the availability of these programs and
    their suitability to address the root causes of the appellants recidivism. And
    there was expert evidence about the period during which such programming would
    be required so as not to put at risk public safety during the period of
    long-term supervision.  In the end, the hearing judge settled upon a composite
    sentence that he was satisfied would adequately protect the public against the
    appellants future commission of murder or a serious personal injury offence.
    It was the less intrusive of the only viable sentencing options, the other
    being a sentence of detention in a penitentiary for an indeterminate period. I
    am not prepared to say that he erred in doing so.

Pre-Sentence Custody

[58]

Duty
    counsel submits that the hearing judge erred by refusing to award the appellant
    enhanced credit for presentence custody. The hearing judge relied on s.
    719(3.1) of the
Criminal Code
to justify awarding credit on a 1:1
    basis. Following the appellants hearing, s. 719(3.1) was declared
    unconstitutional by this court:
R. v. Meads
, 2018 ONCA 146.

[59]

I
    would not give effect to this submission, for three reasons. First, in this
    case, the appellants proven breaches of a s. 810.2 recognizance militate
    against an award of enhanced credit even absent the former prohibition in s.
    719(3.1):
R. v. Morris
, 2013 ONCA 223, 282 C.R.R. (2d) 1, at para. 19;
R. v. McBeath
, 2014 BCCA 305, 314 C.C.C. (3d) 531, at para. 20. Second,
    the appellant was held until warrant expiry when serving his prior sentence and
    is unlikely to be a candidate for early release. In these circumstances, [e]nhanced
    credit for presentence custody could not be justified on the basis of a lost
    opportunity to gain credits toward some form of early release:
R. v. O.
    (M.)
, 2016 ONCA 236, 348 O.A.C. 216, at para. 31. Third, enhanced credit
    would unduly interfere with the length of custodial sentence deemed necessary
    by the trial judge to adequately protect the public from the risk of the
    appellants recidivism:
Hopley
, at paras. 63-66;
Cote
, at
    para. 80;
Walters
(ONSC), at para. 59.

Conclusion

[60]

In
    the result, I would dismiss the appeal.

Released: PR Jun 15 2018

David
    Watt J.A.
I agree. Paul Rouleau J.A.
I agree. David Brown J.A.





[1]

The actual sentence imposed was 10 years less credit of 1118
    days for time spent in pre-disposition custody. The net sentence is six years
    343 days.



[2]

The appellants appeal from conviction was dismissed at the
    conclusion of oral argument.



[3]

The appellant briefly raised two points potentially relevant
    to his designation as a dangerous offender. First, he complained that both psychiatric
    experts who testified at his hearing worked at the same office. I see no
    evidence that the independence and impartiality of either witness was thereby
    compromised. The appellant also argued that hearing judge failed to consider the
    possibility of a long-term offender designation. I disagree. The hearing judge
    extensively canvassed the case law interpreting the long-term offender provisions,
    and was clearly alive to the possibility of designating the appellant as a
    long-term offender. His reasons make clear that he did not view such an order
    as a viable option in this case.



[4]
Compare, for example, the inclusion of the language for which it would be
appropriate
to impose a sentence of imprisonment of two years of more in ss. 753(1.1) and
    753.1(1)(a) (emphasis added).


