



COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Sipos, 2012 ONCA 751

DATE:  20121107

DOCKET: C30833

Doherty, Watt and Pepall JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

James Peter Sipos

Appellant

James Lockyer and Michael Dineen, for the appellant

Roger A. Pinnock, for the respondent

Heard:  August 2, 2012

On appeal from the sentence imposed on March 6, 1998 by
    Justice Thomas R. Lofchik of the Superior Court of Justice.

Doherty J.A.:

I



overview

[1]

In 1998, the appellant was declared a dangerous offender and sentenced
    to an indeterminate sentence.  A risk assessment done some 12 years later in
    2010 suggests that the appellant could be released into the community under
    strict controls in about 2016.  The appellant, relying on this assessment and
    an admitted legal error made by the trial judge at the dangerous offender
    proceedings, submits that he is entitled to a new sentencing hearing.

[2]

I would dismiss the appeal.  This courts jurisdiction requires it to
    review the decision made by the trial judge at the dangerous offender
    proceeding.  That review takes into account the record before the judge and any
    fresh evidence admitted on appeal.  Despite the legal error made by the trial
    judge, I am satisfied, having regard to the evidence before the trial judge and
    the fresh evidence admitted on appeal, that there is no reasonable possibility
    that the result of the dangerous offender hearing would have been any
    different.

[3]

The 2010 risk assessment indicates that there is reason to believe,
    based on the appellants progress over the last decade, that the risk posed by
    the appellant could be adequately addressed in the foreseeable future were the
    appellant to return to the community on strict conditions.  That assessment,
    however, casts no doubt on the correctness of the decision made at the
    dangerous offender proceedings.  The
Criminal Code
expressly provides that the P
arole Board
    must review the appellants status on a regular basis.  If the risk posed by
    the appellant has lowered to a level justifying his release into the community,
    the Parole Board can make the appropriate order.  The 2010 risk assessment will
    be of assistance to the Parole Board in exercising its statutory duties.

II



procedural history

[4]

These proceedings have a long history.  The appellant was convicted of seven
    sexual offences in April 1996.  He has a lengthy record for similar offences. 
    In March 1998, the trial judge found that the appellant was a dangerous
    offender and imposed an indeterminate sentence.

[5]

The appellant appealed his convictions.  He also appealed his sentence,
    however, that appeal was contingent on the appellant having at least some
    success on his conviction appeal.  The conviction appeal was dismissed in May
    2001:
R. v. J.P.S.
(2001),

50 W.C.B. (2d) 161 (Ont. C.A.).  The
    court did not address the merits of the appellants sentence appeal given the
    dismissal of the conviction appeal.

[6]

In September 2003, the Supreme Court of Canada released its judgment in
R.
    v. Johnson
, 2003 SCC 46, [2003] 2 S.C.R. 357.  In
Johnson
, the
    court held that when the long-term offender (LTO) provisions were in effect
    at the time a dangerous offender application was heard, the trial judge was
    required to consider the LTO option even if the offences giving rise to the
    dangerous offender application occurred before the LTO provisions came into
    effect.  The LTO provisions give the trial judge the option of imposing a
    determinate sentence of at least two years combined with a long-term
    supervision order of up to ten years even though the offender meets the dangerous
    offender criteria.

[7]

The LTO provisions were introduced in 1997 (S.C. 1997, c. 17, s. 4) and
    were in effect when this dangerous offender application was heard.  It does not
    appear that the trial judge was asked to consider the LTO option and he did not
    do so.  In light of
Johnson
, he erred in law in failing to consider
    the LTO option.

[8]

The appellant brought a motion to reopen the sentence portion of his appeal
    in July 2007.  The appellant relied on the admitted 
Johnson
error
    and a preliminary report prepared by Dr. McMaster, a psychiatrist.  Counsel
    have provided a detailed explanation for the delay between the release of the
    reasons in
Johnson
and the appellants motion to reopen his sentence
    appeal.  No fault can be assigned to the appellant for that delay.

[9]

In April 2008, this court set aside its previous order dismissing the appellants
    appeal from the imposition of an indeterminate sentence and granted the appellant
    leave to appeal his indeterminate sentence:
R. v. Sipos
, 2008 ONCA 325,
    235 O.A.C. 277.

[10]

In
    November 2010, Dr. McMaster provided counsel for the appellant with a detailed risk
    assessment.  About a year later, counsel for the Crown advised the appellant
    that the Crown would not seek to cross-examine Dr. McMaster or file any
    evidence in response to his 2010 report.  The appeal was perfected in March
    2012 and heard in August 2012.  Dr. McMasters assessment was admitted on
    appeal with the consent of the Crown.

III



THE IMPACT OF
R. v. JOHNSON

[11]

Before
    the LTO provisions were introduced in 1997, s. 753 of the
Criminal Code
,
    R.S.C. 1985, c. C-46, provided that if the criteria set out in that section
    were met, the court may thereupon impose a sentence of detention in a
    penitentiary for an indeterminate period.  That section had been interpreted by
    some courts as meaning that when the trial judge found that the dangerous
    offender criteria were met, he or she had a discretion to impose either a
    determinate prison term or an indeterminate sentence: see e.g.
R. v.
    Poutsoungas
(1989), 49 C.C.C. (3d) 388, at pp. 389-390 (Ont. C.A.).  A
    determinate sentence was appropriate if a sentence of a determinate length
    could reduce the risk to society posed by the offender to an acceptable level,
    thereby rendering the imposition of the more punitive indeterminate sentence
    unnecessary to protect society.  The trial judge on this dangerous offender
    application considered and rejected the determinate sentence option.

[12]

The
    1997 amendments introduced the LTO as a third sentencing option.  As observed
    in
Johnson
, at para. 32, an individual who met the criteria for designation
    as a dangerous offender could also meet the LTO criteria.  If the offender met
    both, the LTO option had to be imposed if designation as an LTO could
    adequately protect the public:

In those instances where both the dangerous and long-term
    offender provisions are satisfied, it may be that the sentencing sanctions
    available under the long-term offender provisions are capable of reducing the
    threat to the life, safety or physical or mental well-being of other persons to
    an acceptable level.  The very purpose of a long-term supervision order, then,
    is to protect society from the threat that the offender currently poses  and
    to do so without resort to the blunt instrument of indeterminate detention.  If
    the public threat can be
reduced to an acceptable level
    though 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.
[Emphasis added.]

[13]

The
    parties accept that the appellant met the criteria for a dangerous offender finding. 
    As
Johnson
instructs, however, meeting these criteria does not
    preclude an LTO.  The distinction between offenders who meet the dangerous
    offender criteria and should be sentenced to an indeterminate sentence and
    those who meet these criteria but should be sentenced to an LTO lies mainly in
    the requirement that before an LTO order can be made, the trial judge must be
    satisfied that there is a reasonable possibility of eventual control of the
    risk in the community: s. 753.1(c).

[14]

The
    court explained the meaning of reasonable possibility of eventual control of
    the risk of the community in
Johnson
,
at para. 40:

If a sentencing judge is satisfied that the sentencing options
    available under the long-term offender provisions are sufficient to reduce the
    threat to the life, safety or physical or mental well-being of other persons to
    an acceptable level, the sentencing judge cannot properly declare an offender
    dangerous and thereupon impose an indeterminate sentence, even if all of the statutory
    criteria have been satisfied.

[15]

The
    distinction between those persons who meet the dangerous offender criteria and
    should receive an indeterminate sentence and those who should receive an LTO is
    much the same as the distinction that existed before the introduction of the LTO
    option between persons found to be dangerous offenders who should receive a determinate
    sentence and those who should receive an indeterminate sentence.  There is one
    difference.  Under the LTO option, the determinate sentence is followed by long-term
    supervision of up to ten years in the community, a potentially important
    feature when considering whether risk to the community can be reduced to a
    tolerable level.

[16]

After
Johnson
, there can be no doubt that the trial judge erred in law in failing
    to consider the LTO option before imposing an indeterminate sentence.  However,
    as
Johnson
explains, at paras. 47-50, the failure to consider the LTO
    option does not automatically compel an order directing a new dangerous
    offender hearing.  Like any error in law, the failure to consider the LTO
    option will not require appellate intervention if the Crown can demonstrate
    that the error occasioned no substantial wrong or miscarriage of justice.  To
    do so, the Crown must show that there was no reasonable possibility that the
    trial judge would have found the offender to be an LTO had the trial judge considered
    that option.
Johnson
, at para. 50, describes the potential application
    of the
curative proviso
to the
Johnson
error in these terms:

Where the error of law consists of the sentencing judges
    failure to consider the availability of the long-term offender provisions,
it is in only the rarest of circumstances, if any, that there
    will be no reasonable possibility that the sentencing judge would have imposed
    a different sentence but for the error.
The criteria set out in the
    long-term offender provisions are substantially different from the criteria set
    out in the dangerous offender provisions.  Therefore, the evidence and
    arguments that are relevant under the long-term offender application are not
    precisely the same as the evidence and arguments that are relevant under the
    dangerous offender application.  Absent a thorough inquiry into the suitability
    of the long-term offender provisions at the sentencing hearing, it will be
    difficult, if not impossible, for an appellate court to be satisfied that the
    sentencing options available pursuant to the long-term offender provisions
    would have been incapable of reducing the threat of harm to an acceptable
    level.  [Emphasis added.]

[17]

This
    court has considered the
Johnson
error in several cases.  Most have
    led to orders allowing the appeal and directing a new dangerous offender
    hearing: see e.g.
R. v. Ferguson
(2005), 207 O.A.C. 380 (C.A.);
R.
    v. Robinson
(2006), 212 C.C.C. (3d) 439 (Ont. C.A.).  This court has,
    however, on occasion applied the
curative
    proviso
and dismissed the appeal: see e.g.
R. v. Saddlemire
,
    2007 ONCA 36, 216 C.C.C. (3d) 119;
R. v. N.P.C.
, 2007 ONCA 457, 83
    O.R. (3d) 571;
R. v. T.G.
, 2011 ONCA 317.

IV



CAN the curative proviso be applied?

[18]

I
    think the potential application of the
curative
    proviso
to the
Johnson
error must be examined in the
    context of three different scenarios.  First, it may be that on a review of the
    record that was before the trial judge on the dangerous offender proceedings,
    it cannot be said that there is no reasonable possibility that the trial judge
    would not have found the offender to be an LTO had he or she considered that
    option.  Second, it may be that on an examination of the record before the
    trial judge as supplemented by fresh evidence adduced on appeal, it cannot be
    said that there is no reasonable possibility that the trial judge would have
    found the offender to be a long-term offender had he or she considered that
    possibility in light of the trial record as augmented by the evidence offered
    on appeal.  Third, it may be that on a review of the evidence tendered at the
    initial dangerous offender proceedings as supplemented by the fresh evidence adduced
    on appeal, it can be said there is no reasonable possibility that the trial
    judge would have found the accused to be an LTO, but it cannot be said that there
    is no reasonable possibility that the offender would be found to be an LTO were
    a new sentencing hearing ordered by the appeal court.

[19]

The
    first two situations raise no juristic difficulties.  In both, it cannot be
    said that there is no reasonable possibility that a trial judge would have
    opted for an LTO finding.  The curative proviso cannot be applied and the
Johnson
error would require an order directing a new dangerous offender hearing.

[20]

The
    third scenario is fundamentally different from the first two.  In the third
    scenario, the focus of the appellants claim is not on whether there is a
    reasonable possibility that the sentencing judge would have imposed a different
    sentence but for the error,
Johnson
, at para. 50, but on whether an
    LTO order would be possible were a dangerous offender hearing to be held as of
    the hearing of the appeal.  On this third scenario, the claim is not that the
    appellant was wrongly sentenced to an indefinite period of incarceration
    because the trial judge made a legal error, but that because the judge made a
    legal error the appellant should have his status reassessed as of the time of
    the appeal.

[21]

Appellate
    review is fundamentally an error correcting exercise.  It looks backward to the
    decision under appeal.  While appellate review is sometimes undertaken with the
    benefit of evidence not before the trial judge, the question always remains 
    did the court below fall into reversible error when it made the decision under
    appeal?  The possibility that a different decision might be made were the
    appellate court to consider the same issue
de novo
as of the time of
    the appeal (in this case some 14 years after the trial judgment) is irrelevant
    to appellate review.

[22]

The
    distinction between review for an error at the original proceeding and an
    assessment of the offenders status at the time of the appeal is no mere
    formalism.  The distinction is essential to the principle of finality, a core
    value in the justice system.  If this court decides to allow the appeal, there
    must be a new sentencing hearing.  Everyone involved in that hearing, including
    the victims caught up in the relevant matters underlying the dangerous offender
    proceedings, will be brought back to the dangerous offender hearing stage of
    the process.  The Crown must attempt to reconstitute its case years after the
    fact.  More importantly to the proper administration of justice, victims may be
    required to undergo the further trauma of new proceedings at a time when they
    could justifiably have believed that the horror, no doubt associated with reliving
    the relevant events in a courtroom, was long behind them.

[23]

I
    accept that the difficulties described above are inherent in appellate review
    whenever it leads to an order for a new hearing.  They are not, in my view,
    however, necessary to do justice to the appellant in a case like this one, where
    material relied on to support the claim for a new hearing offers no support for
    the assertion that there was a meaningful error made at the initial proceeding. 
    Where an offenders real claim is that he has progressed to the point that his
    status should be reassessed, an appeal from the original decision is not the
    appropriate mechanism by which to achieve that new assessment.

[24]

Part
    XXIV of the
Criminal Code
includes a provision for the release on
    parole of individuals sentenced to indeterminate sentences.  The relevant
    provision, as it applies to the appellant (s. 761(1)
[1]
),
    provides in part:

[W]here a person is in custody under a sentence of detention in
    a penitentiary for an indeterminate period, the National Parole Board shall,
    forthwith after the expiration of three years from the day on which the person
    was taken into custody and not later than every two years thereafter, review
    the condition, history and circumstances of that person for the purpose of
    determining whether he should be granted parole under Part II of the
Corrections
    and Conditional Release Act
and, if so, on what conditions.
[2]

[25]

In
    its policy manual, the Parole Board recognizes that the possibility of parole
    is essential to the constitutionality of the dangerous offender provisions: 
    see
R. v. Lyons
, [1987] 2 S.C.R. 309, at p. 341.  The manual sets out,
    albeit in general terms, the duties and responsibilities of Parole Board members
    considering parole applications brought by offenders serving an indeterminate
    sentence: Parole Board of Canada,
PBC Policy Manual
, vol. 1, no. 25
    (2012).

[26]

It
    may be argued that the potential for parole is illusory.  Certainly, parole is
    rarely granted to offenders serving an indeterminate sentence.  As of 2011,
    only 15 of the 437 persons serving indeterminate sentences in Canada had been released
    into the community.  Three were on day parole and twelve were on full parole:
    Public Safety Canada Portfolio Corrections Statistics Committee,
Corrections
    and Conditional Release Statistical Overview, Annual Report 2011
, (2011),
    at p. 58.  These figures do not assist in determining the outcome of this
    appeal.  This court proceeds on the basis that the Parole Board properly performs
    its statutory duties.  It is hardly surprising that few offenders serving
    indeterminate sentences obtain parole.  The statistics say nothing about
    whether a particular offender, such as the appellant, will be released on some
    form of community supervision at the appropriate time by the Parole Board.  In
    any event, this court cannot expand upon its legitimate appellate function to
    compensate for some assumed failure by the Parole Board to properly perform its
    function.

(i)

Was there a reasonable possibility that the trial judge could have made
    an LTO order on the evidence adduced on the dangerous offender hearing?

[27]

As pointed out in
Johnson
, in most cases in which the trial
    judge has failed to consider the LTO option, it cannot be said what evidence
    might have been led or what order might have been made had the LTO been
    addressed by the parties and the trial judge.  In this case, however, the
    parties and the trial judge did address the possibility that the appellants
    risk could be adequately controlled in the community at some time in the future
    in the context of determining whether the trial judge, having found that the
    appellant met the dangerous offender criteria, should impose a determinate
    sentence rather than an indeterminate sentence.

[28]

The
    trial judge instructed himself that he must impose a determinate sentence
    rather than an indeterminate sentence if the risk to society could be reduced
    to an acceptable level by the imposition of a determinate sentence.  The
    parties adduced evidence and made submissions on that issue.  In doing so, the
    parties effectively addressed the key consideration when choosing between an
    indeterminate sentence and an LTO where the offender meets the criteria for a
    dangerous offender finding.  It is true that the experts did not consider the
    potential impact of a long-term supervision order when assessing the
    appellants risk were he to be released into the community.  However, I see
    nothing in the evidence adduced by the experts that would suggest that the
    potential for a long-term supervision order would have had any effect on their
    risk assessment as of the time of the sentencing hearing.

[29]

The
    trial judge reviewed the relevant evidence and decided, based on the evidence
    he accepted, that it could not support a finding that at some determinate point
    in the future, the risk to society posed by the appellant, were he allowed to
    live in the community, could be reduced to an acceptable level.  I need not
    review the trial judges analysis as counsel for the appellant does not argue
    that an LTO finding could have been made on the evidence relied on by the trial
    judge.  On the trial judges analysis of the evidence, he would inevitably have
    rejected the LTO option for the very same reasons that he rejected the
    determinate sentence option.

(ii)

Was
    there a reasonable possibility that the trial judge could have made an LTO
    order if he had the benefit of Dr. McMasters risk assessment?

[30]

Dr.
    McMaster provided a detailed risk assessment.  It is clear, however, that he
    was not asked to comment on the findings made in 1998 by the trial judge, or
    the evidence adduced in support of those findings.  He was asked to consider
    whether, as of 2010, the appellant could meet the criteria for an LTO.  He said:

In the current assessment, the question is whether Mr. Sipos
    presents with a substantial risk of re-offence and if there is a reasonable
    possibility of eventual control of that risk in the community.

[31]

Dr.
    McMaster was cautiously optimistic about the appellants prospects as of 2010. 
    He opined that the appellants risk to the community could be reduced to a
    tolerable level in about six years, that is, in about 2016.  Dr. McMaster based
    this opinion on the appellants positive treatment progress since his
    incarceration in 1998 and the mitigating effect of the aging process:

The following factors suggest that Mr. Sipos is now suitable
    for gradual release and reintegration into the community.  Mr. Sipos risk has
    been lowered, in my opinion, by factors including: his increased age, his
    successful treatment at sex offender and other groups, successful treatment
    with sex drive reducing medication, and his plans which will assist him in
    adjusting to living in the community (e.g. has learned a skilled trade; in the
    process of arranging supports).

[32]

Dr.
    McMaster did not diminish the risk posed by the appellant.  In his view, the
    appellant continues to pose a substantial risk to reoffend and were he to reoffend,
    a very serious personal injury offence could occur.  In Dr. McMasters
    opinion, these concerns suggest that a high degree of caution, treatment, and
    supervision should be undertaken to manage his risk, should he be released into
    the community.

[33]

Dr.
    McMaster summarized his assessment in these terms:

Accordingly, from a psychiatric perspective, I would not consider
    Mr. Sipos an assumable risk for the community (absent his placement in a CCC [Community
    Correctional Centre]) until approximately the age of 60.  This would equate to
    a further period of incarceration of about 6 years, or less, allowing him to
    enter a CCC at the age of 58.  It is further recommended that his release from
    the CCC take place at a time approaching his 60
th
birthday.  In the
    event that Mr. Sipos was granted an LTSO [Long Term Supervising Order] under
    such circumstances, his LTSO would expire at about the age of 68, which would
    be in keeping with public safety in my opinion.

[34]

I
    do not think that Dr. McMasters risk assessment casts any doubt on the trial
    judges assessment that as of 1998, an indeterminate sentence was the
    appropriate sentence.  Despite the positive treatment developments, Dr.
    McMaster still viewed the appellants potential release into the community as about
    six years distant.  We now know, with the benefit of hindsight, and accepting
    Dr. McMasters opinion, that on a best case scenario, the appellants potential
    for release into the community was at least some 18 years away in 1998.

[35]

As
    I read Dr. McMasters assessment, it sheds valuable light on the appellants progress
    since his incarceration and his potential for release into the community several
    years from now.  That assessment does not speak to what order could have been
    made in 1998 had the trial judge addressed the LTO option.

V



conclusion

[36]

Hopefully, the appellant will continue the progress described by Dr.
    McMaster and will, in keeping with Dr. McMasters opinion, be a suitable
    candidate for some form of release into the community in the not too distant
    future.  That hope is not, however, a reason to order a new sentencing
    hearing.  Any change in the appellants status based on the progress described
    by Dr. McMaster must come from the Parole Board.  I would dismiss the appeal.

RELEASED: NOV 07 2012  DD

Doherty J.A.

I agree David Watt
    J.A.

I agree Sarah Pepall
    J.A.





[1]

Criminal Code
, R.S.C. 1985, c. C-46, as amended by
Corrections and
    Conditional Release Act
, S.C. 1992, c. 20, s. 215.



[2]
The present provision calls for review by the Parole Board after seven years:
    s. 761(1).
Johnson
, at para. 46, provides that persons in the
    position of the appellant are entitled to the more generous statutory terms
    found in the former provision.


