



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Acoby, 2015 ONCA 75

DATE: 20150203

DOCKET: C54146

Doherty, Rouleau and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Renee Acoby

Appellant

Breese Davies and Owen Goddard, for the appellant

Benita Wassenaar, for the respondent

Heard and released orally:  January 9, 2015

On appeal from the sentence imposed by Justice G.E.
    Taylor of the Superior Court of Justice on March 16, 2011.

ENDORSEMENT

[1]

Despite Ms. Davies able argument, we are satisfied that the appeal
    must be dismissed.  It is common ground that the appellant met the criteria for
    a finding that she was a dangerous offender.  It is also common ground that,
    under the legislation as it then stood, the trial judge had a discretion to
    decline to declare the appellant a dangerous offender even though she met the
    criteria in the legislation.  The judge appreciated that he had that
    discretion.  His exercise of that discretion is entitled to deference in this
    court.

[2]

In the course of his review of the evidence, the trial judge made
    several significant findings, including this one:

There is no evidence before me that Renee Acobys violent
    behaviour can be controlled in the community.  The evidence before me is that,
    even when subject to the Management Protocol which is the highest level of
    supervision available within Corrections Canada, Renee Acobys behaviour cannot
    be controlled.

[3]

The trial judge then turned to whether he should exercise his discretion
    in favour of finding the appellant a dangerous offender having determined that
    she met the criteria.  In doing so, he considered the appellants aboriginal
    status, the
Gladue
Report and the relevant principles of sentencing. 
    He concluded:

However, I am also aware that she has not benefitted from
    treatment and continues to react negatively to the restrictions to which she
    has been subjected.  It would be naïve to think she will miraculously become
    amenable to supervision in the community upon her release from custody.

I have no hesitation in concluding that Renee Acoby is one of
    the small group of offenders whose personal characteristics are such that the
    goal of protection of the public can only be achieved through a period of
    indeterminate detention.

[4]

In this court, counsel for the appellant submitted that the public could
    be adequately protected by a determinate sentence made consecutive to the
    lengthy
remanet
being served by the appellant.  Counsel argued that if
    the appellant reoffended during that lengthy period of incarceration, she could
    be sentenced accordingly and not released back into the public.  However, if
    she did not reoffend during that lengthy period of determinate custody, there
    would be no basis to conclude that her continued detention was necessary in the
    public interest.

[5]

The trial judge found that there was no prospect that the appellant
    would be amenable to supervision in the community.  That finding was open to
    him on this record.  Consequently, we must defer to that finding.  On that
    finding, the trial judges determination that the appellant should be declared
    a dangerous offender was a reasonable determination.

[6]

We would dismiss the appeal.

Doherty J.A.

Paul Rouleau J.A.

David Watt J.A.


