



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Solano, 2014
    ONCA 185

DATE: 20140310

DOCKET: C52560

Cronk, Epstein and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Daniel Solano

Appellant

Michael A. Crystal, for the appellant

Elise Nakelsky, for the respondent

Heard: March 6, 2014

On appeal from the sentence imposed on June 4, 2010 by
    Justice R. Pelletier of the Superior Court of Justice.

By the Court:

A.      Introduction

[1]

On June 4, 2010, the appellant was designated a dangerous offender and
    sentenced to an indeterminate detention.  The predicate offences of which he
    was convicted included: possession of a knife for a purpose dangerous to the
    public peace; assaulting a peace officer with intent to resist arrest; breaking
    and entering and attempting to commit robbery; breaking and entering and
    committing robbery; three counts of robbery; attempted robbery; and hostage
    taking.

[2]

The appellant appealed from his designation as a dangerous offender.  He
    argued that the sentencing judge erred: (1) by failing to exercise his
    discretion not to designate the appellant as a dangerous offender, as then
    permitted under s. 753(1) of the
Criminal Code
; and (2) by finding
    that the appellant did not fit the description of a long-term offender under s.
    753.1 of the
Criminal Code
.  We note that his specific complaints
    regarding the sentencing judges decision were narrowed somewhat during oral
    argument of the appeal.  In addition, at the outset of oral argument, the
    appellant abandoned his fresh evidence application.

[3]

At the conclusion of oral argument, we dismissed the appeal for reasons
    to follow.  These are those reasons.

B.      Discussion

(1)

Designation as a Dangerous Offender

[4]

We see no reversible error in the sentencing judges decision to
    designate the appellant as a dangerous offender.

[5]

The designation in this case was based on evidence of: the violent
    nature of the appellants predicate offences; his lengthy and virtually
    uninterrupted history of criminal conduct (more than 50 criminal convictions,
    including numerous crimes involving severe violence and multiple convictions
    for breaches of court orders (some while he was on bail or parole)); his proven
    repeated unsuccessful attempts at reintegration into the community; his
    psychiatric diagnosis as a psychopath with anti-social personality disorder and
    substance dependence, together with possible schizophrenia; his historical lack
    of response to anti-psychotic medications; his assessed moderately high to
    high-risk of reoffending; his past refusals to continue prescribed or
    recommended treatment; and the absence of any evidence accepted by the
    sentencing judge that the risk the appellant posed to the public could
    eventually be controlled in the community.  Based on all this evidence, which
    was carefully considered and evaluated by the sentencing judge, it was open to
    the sentencing judge to designate the appellant as a dangerous offender.

[6]

Contrary to the appellants submission, a dangerous offender designation
    is not restricted to offenders who commit the gravest of crimes.  There is no
    requirement under the
Criminal Code
that the serious personal injury
    offence required to trigger a dangerous offender application meet a specified
    threshold of seriousness.  As this court recognized in
R. v. M.B.H.
(2004),
    70 O.R. (3d) 257, 186 C.C.C. (3d) 62 (C.A.), a worst offender/worst offence
    characterization is not a precondition to the imposition of an indeterminate
    sentence under s. 753.1 of the
Criminal Code
.  To the contrary, a
    dangerous offender designation and an indeterminate sentence are properly
    imposed in cases where, as here, the offender meets the statutory criteria for
    such a designation and his or her future risk cannot be controlled through a
    determinate sentence or the imposition of a long-term supervision order.

[7]

In this case, the sentencing judge considered the suitability of a
    long-term supervision order and concluded, on the evidence accepted by him,
    that the appellants risk of re-offence is very high and there is no reasonable
    possibility of eventual control of that risk in the community.  These findings
    were amply grounded in the evidentiary record, in particular, by the evidence
    of: the appellants lack of insight into the seriousness of his violent
    offences and their consequences; his continuing rationalization of the violent
    crimes he was found to have committed; his repeated reintegration failures; his
    continuing substance abuse, specifically, his admitted addiction to crack
    cocaine; his lack of familial supports; and his unresolved, serious mental
    health issues.

[8]

This ground of appeal fails.

(2)

Ruling that the Appellant is not a Long-Term Offender

[9]

The appellant challenges the sentencing judges ruling that he does not
    fit the description of a long-term offender.  As advanced during oral argument,
    this challenge has two components.

[10]

First,
    the appellant submits that the sentencing judge erred by failing to make a
    definitive finding as to whether the appellant suffers from schizophrenia.

[11]

We
    do not accept this submission.  Both psychiatrists who testified at the
    sentencing hearing (one of whom testified for the defence) essentially agreed that
    a determination whether the appellant suffers from schizophrenia
in
    addition
to his other agreed multiple psychiatric disorders was not a
    crucial factor given that the treatment for schizophrenia and the appellants
    type of psychosis are the same.  In addition, the appellant acknowledges that a
    diagnosis of schizophrenia would not materially lower his risk assessment. 
    Even if schizophrenia formed part of his diagnosis, he would remain in the
    moderately high risk of reoffending category.

[12]

It
    was not the sentencing judges role to medically diagnose the appellant.  His
    role was to assess the appellants risk of violent recidivism and whether there
    was a reasonable possibility that this risk could eventually be controlled in
    the community.  The sentencing judge properly fulfilled these tasks.

[13]

Second,
    the appellant contends that the sentencing judge erred by failing to provide
    reasons for rejecting the evidence of two psychiatric nurses that the
    appellants risk could be managed to an acceptable level if he participated in
    community-based programs offered by Corrections Services Canada (CSC) and his
    participation in those programs was appropriately monitored.

[14]

Again,
    we disagree.  The sentencing judge was entitled to reject the evidence of the
    defence witnesses regarding the appellants prospects for effective treatment
    and risk reduction and to accept, as he did, the expert opinion evidence of Dr.
    Hucker regarding the prospects for eventual control of the appellants risk to
    the public.  Further, both nurses acknowledged during their evidence that the
    appellants past efforts at reintegration into the community had failed.  The
    record established that the appellant had failed to take full advantage of
    measures available to him while detained and, as well, on various release
    programs.  Indeed, he had a history of refusing treatment recommendations while
    on statutory release and his past conduct while under community supervision had
    prompted revocation of his parole.

[15]

Resort
    to the long-term offender regime is appropriate only where there is evidence
    that an offender can be meaningfully treated, so that the offenders risk to
    the public can be controlled at an acceptable level, within a determinate
    period of time.  A mere hope that treatment will be successful, or simple
    optimism that there is a reasonable possibility of eventual control of the
    offenders risk in the community, is insufficient to ground a determinate
    sentence:
R. v. Johnson
, 2003 SCC 46, [2003] 2 S.C.R. 357.

[16]

In
    this case, the sentencing judge did not err in concluding that the proposed
    untested CCS programming was no more than an expression of hope that the
    appellants risk could eventually be contained in the community.  Nor did he
    err in holding that the trial treatment of a relatively new anti-psychotic
    medication  Clozapine  as proposed by the defence psychiatrist (Dr.
    Federoff), was too speculative a measure of future risk reduction.  On the
    evidence before the sentencing judge, it was uncertain whether the appellant is
    a suitable candidate for this drug, the drug has a relatively low to moderate rate
    of success (33%) and there is no way to guarantee that the appellant would
    comply with a Clozapine-treatment regime while in the community, unless the
    drug was administered by injection.  Notwithstanding his claims to the
    contrary, the appellants past responses to treatment in the community strongly
    undercut any suggestion of future compliance with a prescribed treatment regime
    of the type identified by Dr. Federoff.

[17]

At
    the end of the day, after evaluating the risk assessment and treatment evidence
    pertaining to the appellant, the sentencing judge held on the totality of the
    evidence that there was no adequate basis for concluding that there was a
    reasonable possibility that the appellants risk could eventually be controlled
    in the community.  His reasons clearly reveal the basis for this holding.

C.      Disposition

[18]

Accordingly,
    for these reasons, the appeal is dismissed.

Released:

MAR 10 2014                                   E.A.
    Cronk J.A.

EAC                                                Gloria
    Epstein J.A.

M.L.
    Benotto J.A.


