



WARNING

The President of the panel
hearing this appeal directs that the following should be attached to the file:

An order restricting
publication in this proceeding under ss. 486.5(1), (2), (2.1), (3), (4),
(5), (6), (7), (8) or (9) or 486.6(1) or (2) of the
Criminal Code
shall continue.  These
sections of the
Criminal Code
provide:

486.5 (1)     Unless an
order is made under section 486.4, on application of the prosecutor in respect
of a victim or a witness, or on application of a victim or a witness, a judge
or justice may make an order directing that any information that could identify
the victim or witness shall not be published in any document or broadcast or
transmitted in any way if the judge or justice is of the opinion that the order
is in the interest of the proper administration of justice.

(2)     On application
of the prosecutor in respect of a justice system participant who is involved in
proceedings in respect of an offence referred to in subsection (2.1), or on
application of such a justice system participant, a judge or justice may make
an order directing that any information that could identify the justice system
participant shall not be published in any document or broadcast or transmitted
in any way if the judge or justice is satisfied that the order is in the
interest of the proper administration of justice.

(2.1) The offences for
the purposes of subsection (2) are

(a) an offence under
section 423.1, 467.11, 467.111, 467.12, or 467.13, or a serious offence
committed for the benefit of, at the direction of, or in association with, a
criminal organization;

(b) a terrorism offence;

(c) an offence under
subsection 16(1) or (2), 17(1), 19(1), 20(1) or 22(1) of the
Security of Information Act
; or

(d) an offence under
subsection 21(1) or section 23 of the
Security of
Information Act
that is committed in relation to
an offence referred to in paragraph (c).

(3)     An order made
under this section does not apply in respect of the disclosure of information
in the course of the administration of justice if it is not the purpose of the
disclosure to make the information known in the community.

(4)     An applicant for
an order shall

(a) apply in writing to
the presiding judge or justice or, if the judge or justice has not been
determined, to a judge of a superior court of criminal jurisdiction in the
judicial district where the proceedings will take place; and

(b) provide notice of
the application to the prosecutor, the accused and any other person affected by
the order that the judge or justice specifies.

(5)     An applicant for
an order shall set out the grounds on which the applicant relies to establish
that the order is necessary for the proper administration of justice.

(6)     The judge or
justice may hold a hearing to determine whether an order should be made, and
the hearing may be in private.

(7)     In determining
whether to make an order, the judge or justice shall consider

(a) the right to a fair
and public hearing;

(b) whether there is a
real and substantial risk that the victim, witness or justice system
participant would suffer harm if their identity were disclosed;

(c) whether the victim,
witness or justice system participant needs the order for their security or to
protect them from intimidation or retaliation;

(d) societys interest
in encouraging the reporting of offences and the participation of victims,
witnesses and justice system participants in the criminal justice process;

(e) whether effective
alternatives are available to protect the identity of the victim, witness or
justice system participant;

(f) the salutary and
deleterious effects of the proposed order;

(g) the impact of the
proposed order on the freedom of
expression
of those affected by it; and

(h) any other factor
that the judge or justice considers relevant.

(8)     An order may be
subject to any conditions that the judge or justice thinks fit.

(9)     Unless the judge
or justice refuses to make an order, no person shall publish in any document or
broadcast or transmit in any way

(a) the contents of an
application;

(b) any evidence taken,
information given or submissions made at a hearing under subsection (6); or

(c) any other
information that could identify the person to whom the application relates as a
victim, witness or justice system participant in the proceedings.
2005, c. 32, s. 15; 2015, c. 13, s. 19

486.6 (1)  Every person
who fails to comply with an order made under subsection 486.4(1), (2) or
(3) or 486.5(1) or (2) is guilty of an offence punishable on summary
conviction.

(2)     For greater
certainty, an order referred to in subsection (1) applies to prohibit, in
relation to proceedings taken against any person who fails to comply with the
order, the publication in any document or the broadcasting or transmission in
any way of information that could identify a victim, witness or justice system
participant whose identity is protected by the order. 2005, c. 32, s. 15.





COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Straub, 2022 ONCA 47

DATE: 20220124

DOCKET: C68054

Watt, Pardu and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Thomas Straub

Respondent

Stacey D. Young
,
for the appellant

Jessica Zita
,
for the respondent

Heard: June 30, 2021 by video conference

On appeal from the
sentence imposed on January 23, 2020 by Justice Robert W. Beninger of the Ontario
Court of Justice.

Watt J.A.:



[1]

Thomas Straub is a dangerous offender. Many
dangerous offenders receive the most extreme and clearest form of preventive
sentence that our law permits, a sentence of indeterminate detention in a
penitentiary. Thomas Straub is not among them.

[2]

The sentencing judge at Thomas Straubs
dangerous offender hearing concluded that the public could be adequately
protected against Thomas Straubs violent recidivism by a sentencing
disposition less than a sentence of indeterminate detention. The judge imposed
a composite sentence: imprisonment for a term of five years, to be followed by
a long-term supervision order (LTSO) for a further ten years.

[3]

The Crown says that the sentence imposed does
not adequately protect the public against Thomas Straubs well-established
propensity for committing violent offences against others. What is required,
the Crown contends, is a sentence of indeterminate detention in a penitentiary.
Only the most extreme and clearest form of preventive sentence will provide the
degree of protection necessary under the legislation.

[4]

These reasons explain why I agree that the
sentence imposed cannot stand. I would allow the appeal, set aside the sentence
imposed at the conclusion of the dangerous offender application and substitute
a sentence of indeterminate detention in a penitentiary.

The Background Facts

[5]

A brief summary of the circumstances of the
predicate offences and of relevant aspects of the dangerous offender
proceedings will provide the background necessary to evaluate the merits of the
Crowns appeal from the sentence imposed.

The Predicate Offences

[6]

The predicate offences include two counts of
robbery and single counts of unlawful confinement, assault with a weapon, and
breach of probation. They arose out of two incidents a few hours apart. In each
case, the attack occurred in a public area. The respondents target in both
attacks was a woman, a complete stranger.

[7]

The first incident involved a woman who was
standing by herself waiting for a bus at a bus stop. The respondent, armed with
a knife, grabbed her from behind. He demanded her cellphone. She refused. The
respondent pushed her into a vacant building, then threw her to the floor. The
victim escaped but dropped her cellphone. The respondent picked it up and
disappeared into the interior of the vacant building. The victim suffered minor
injuries.

[8]

The victims screams attracted the attention of
two men who were across the street. They ran over to the vacant building and
went inside. They confronted the respondent who tried to stab one of them with
a knife with an eight-inch blade. The man was not injured, the blade caught on
his jacket. The respondent fled.

[9]

A few hours later, the respondent confronted
another woman who was waiting alone in a church parking lot. Once again, armed
with a knife, the respondent demanded her cellphone. Once again, she refused.
The respondent knocked her down and grabbed a bag she was carrying containing
several personal items. The respondent fled with the bag.

[10]

Later that same day, police saw the respondent
walking alone along the street in an area not far away from where the attacks
had occurred. He was arrested at gunpoint and searched. Police found the first
victims cellphone and a kitchen knife with an eight-inch blade. The respondent
was bound by the terms of several probation orders when he was arrested.

The Dangerous Offender Proceedings

[11]

The Crown obtained the consent necessary to initiate
dangerous offender proceedings against the respondent and an assessment order
authorizing preparation of a report for the hearing of the application. The
report was prepared by Dr. Jonathan Rootenberg, an experienced forensic
psychiatrist.

[12]

The sentencing judge received extensive written
materials on the hearing of the application. The materials included assessment
reports, materials from the Correctional Service of Canada (CSC), probation
reports and medical records. Transcripts and particulars of the respondents prior
convictions. Misconduct Reports from the provincial facility in which the
respondent was housed since arrest. An Agreed Statement of Facts describing the
respondents conduct towards his prior counsel and a letter written to the
Crown with conduct of the dangerous offender proceedings.

[13]

The Crown called several witnesses at the
hearing. Dr. Rootenberg, the author of the assessment report. Witnesses also
testified about the respondents misconduct as the dangerous offender
proceedings unfolded, including threatened sexual assaults of female
correctional and probation officers.

[14]

An Agreed Statement of Facts described two incidents
involving the respondent and his former counsel. When counsel met with the
respondent in the cell area of the courthouse to speak with him after a court
appearance, counsel terminated the interview when she began to suspect the
respondent was masturbating as they spoke. Counsel ceased to represent the
respondent after he sent her a letter explaining about how he would break into
her house, stab her, tie her up in her bedroom, sexually assault her, abandon
her after flooding her home, and steal her car to escape.

[15]

The respondent also sent a letter to the Crown
who was conducting the dangerous offender proceedings. The respondent
catalogued a lengthy history of voyeurism which began when he was eight years
old and continued throughout his adult life. He explained that his attack on
his first victim was sexually motivated, not to steal her cellphone.

[16]

Dr. Rootenberg concluded that the respondent did
not suffer from a major mental illness. However, the doctor identified two
disorders which emerged from various tests he had administered and his own
interviews of the respondent. The first, substance use disorder, was in
remission in the correctional setting in which the respondent was housed. The
second, antisocial personality disorder, remained.

[17]

Dr. Rootenberg was satisfied that from a
psychiatric perspective, the respondent met the criteria required for
designation as a dangerous offender.

The Dangerous Offender Finding

[18]

The sentencing judge was satisfied that the
respondent was a dangerous offender. He explained his conclusion in these
terms:

On a totality of the evidence, I find that the
Crown has proven beyond a reasonable doubt that all the criteria of a dangerous
offender designation have been met. Pursuant to s. 753(1), I am required to
make a finding of a dangerous offender designation.

[19]

The finding appears to be grounded on
satisfaction on the standards set by ss. 753(1)(a)(i) and (ii) of the
Criminal
Code
, R.S.C., 1985, c. C-46, rather than s. 753(1)(a)(iii) about which Dr.
Rootenberg expressed no opinion, or s. 753(1)(b).

The Submissions on Sentence

[20]

Before the sentencing judge, Crown counsel
sought a sentence of indeterminate detention in a penitentiary.

[21]

Counsel for the respondent sought a composite
sentence which included a term of imprisonment of five years, followed by an
LTSO of five to seven years duration.

The Sentence Imposed

[22]

In order to protect the public from the
likelihood of the appellants violent recidivism, the sentencing judge
considered it necessary to sentence the respondent to a penitentiary term that
would allow the respondent to participate in all the programming offered by the
CSC. The judge concluded:

I have considered the totality of the
evidentiary record at this hearing. I am satisfied that the overall sentence
can adequately protect the public. The respondent has the ability to
participate in, and benefit from, treatment. Dr. Rootenbergs report sets
out a detailed plan for managing the respondent in the community. The CSC has
the tools to manage and enforce a release plan in the community.

The Appeal

[23]

Dangerous offender proceedings involve two stages.
The first is designation. The second is penalty. This appeal involves only the
second stage, the sentencing of the respondent as a dangerous offender.

[24]

The Crown appeals the composite sentence imposed
by the sentencing judge. She asks that we set aside that sentence and replace
it with a sentence of indeterminate detention in a penitentiary.

[25]

Section 759(2) of the
Criminal Code
limits appeals by the Crown from decisions made in dangerous or long-term
offender proceedings to grounds of law. In this case, the Crown says that the
sentencing judge made three errors. He failed to impose a sentence that gave
effect to the purpose of the dangerous offender regime. He failed to consider
evidence that the respondent could not be controlled in the community. And he
applied the wrong standard in deciding that a composite sentence, combining a
determinate penitentiary sentence with an LTSO, was the appropriate sentencing
disposition.

[26]

For the purposes of the discussion that follows,
I would consolidate the grounds of appeal advanced into a single compendious
ground. I would frame that ground as an error in assessing the evidence on the
basis of the wrong legal principle. This involves a question of law:
R. v. H.(J.M.)
,
2011 SCC 45, [2011] 3 S.C.R. 197, at para. 29.

The Background

[27]

After finding the respondent met the
requirements of ss. 753(1)(a)(i) and (ii) to be designated a dangerous
offender, the sentencing judge turned to the penalty stage governed by ss.
753(4) and (4.1). Section 753(4.1) requires a sentencing judge to impose an
indeterminate sentence to be served in the penitentiary unless the judge is
satisfied by the evidence adduced at the hearing that there is a reasonable
expectation that some lesser sentencing measure will adequately protect the
public against the offenders commission of murder or a serious personal injury
offence.

[28]

In this case, for all practical purposes, the
issue at the penalty stage was whether the sentencing disposition would be
detention in a penitentiary for an indeterminate period or a determinate term
of imprisonment of more than two years followed by an LTSO of not more than ten
years. The resolution of that question depended upon whether the evidence
adduced at the hearing satisfied the standard put in place by s. 753(4.1)  a
reasonable expectation that a lesser measure [a composite sentence of
imprisonment and an LTSO] will adequately protect the public against the
commission by the offender of murder or a serious personal injury offence.

[29]

The principal evidence that informed the penalty
decision was the evidence of Dr. Rootenberg, the forensic psychiatrist who
completed the assessment report. Dr. Rootenberg was called by the Crown at the
hearing. The defence called no evidence. The sentencing judge said that he
placed the greatest weight on Dr. Rootenbergs evidence in reaching his
decision on penalty.

The Expert Evidence

[30]

In his assessment report on testimony, Dr.
Rootenberg developed a composite assessment of the risk of recidivism by the
respondent. The assessment was based on actuarial and clinical factors. The
risk that the respondent would commit violent acts was high. Dr. Rootenberg was
concerned about acts involving severe violence. The respondent had a history,
the doctor pointed out, of failing to consistently follow through with or
complete treatment programs. Relatedly, the respondent failed to make stable
lifestyle choices. And the respondents chronic substance abuse exacerbated and
perpetuated his risk of violent recidivism.

[31]

Dr. Rootenberg gave evidence that the respondent
was a high risk offender. His risk of violence is chronically elevated and at
its highest in the context of active substance use, which leads to disinhibition,
impulsivity, and poor judgment.

[32]

In his report and testimony, Dr. Rootenberg
considered whether some measure less than an indeterminate sentence could
adequately protect the public against the respondents violent recidivism. The
doctor characterized risk as contextual, dependent on the treatment and
supervision put in place. Because of the respondents decade long history of
offences, his risk factors, and his history of difficulties with supervision
and treatment, high levels of risk management would be necessary to manage the
respondents risk were he to be released into the community. Intensive
treatment in custody, followed by intensive supervision and further treatment
in the community were necessary to manage that risk.

[33]

In outlining the treatment and supervision which
may assist in managing the respondents risk, Dr. Rootenberg explained that the
respondent should receive an adequate dose of intensive treatment, including
cognitive behavioural therapy for his Antisocial Personality Disorder, relapse
prevention and monitoring for his substance abuse, and a structured lifestyle
to address his poor coping methods and unstable lifestyle. It was unclear
whether any treatment success would translate into an absence of recidivism in
the community without further external controls on the respondents behaviour.

[34]

In his report, Dr. Rootenberg summarized his
opinion about whether some lesser measure than an indeterminate sentence could
adequately protect the public against the respondents violent recidivism in
these words:

In summary, Mr. Straub appears to be an
individual at a high risk of violence, and there appears to be a substantial
risk that this violence may be of a serious nature. It appears that there is
the possibility of eventual control of that risk in the community on an LTSO,
but that is largely dependent upon Mr. Straub demonstrating a much more diligent
and concerted effort than he has previously demonstrated.

[35]

In assessing the reasonableness of eventual
control of the respondents risk in the community, Dr. Rootenberg listed
several factors he considered relevant:

i.

that the respondent receive federal treatment
based on RNR (risk, need, responsivity) principles;

ii.

that the respondent enter the community under
supervision at a community correctional centre;

iii.

that the respondents treatment continue in the
community to prevent erosion of any gains;

iv.

that the respondent be closely supervised in the
community and breached for minor infractions;

v.

that any relapse into substance abuse be used
for further treatment of his criminogenic risk factors; and

vi.

that the respondents risk would not be attenuated
by age at expiry of an LTSO since the acuity of a personality disorder traits
does not tend to diminish until late 40s.

The Reasons of the Sentencing Judge

[36]

In his reasons for sentence, the sentencing
judge said that he placed the greatest weight on the opinions of Dr. Rootenberg
and Dr. Arrowood in reaching his decision. He quoted Dr. Rootenbergs summary
and final opinion:

It appears that there is the possibility of
eventual control of that risk in the community on a LTSO, but that is largely
dependent upon Mr. Straub demonstrating a much more diligent and concerted
effort than he has previously demonstrated.

[37]

The sentencing judge focused on the respondents
actions rather than his words, because he considered the respondent not a
reliable historian. Among the factors the sentencing judge considered in
reaching his conclusion that a sentencing disposition lesser than an
indeterminate sentence was appropriate were:

i.

the respondents interest in help reflected in
his completion of his High School Diploma while in pre-disposition custody;

ii.

the lack of any significant cognitive
difficulties which would impede the respondents ability to engage in
treatment;

iii.

the fact that the respondent had never been
sentenced to a term of federal custody, thus never had the opportunity to
benefit from the different and more intensive programming available in CSC
facilities;

iv.

the structure and enforcement resources
available under an LTSO;

v.

the recommendations of Dr. Rootenberg of terms
and conditions of any future release plans; and

vi.

the early opportunity to address the risk of
relapse under an LTSO.

[38]

The sentencing judge concluded that a lengthy
penitentiary term, together with an LTSO, was the least intrusive sentence that
could meet the enhanced sentencing objective of protecting the public. He said:

I have considered the totality of the
evidentiary record at this hearing. I am satisfied that the overall sentence
can adequately protect the public. The respondent has the ability to
participate in, and benefit from, treatment. Dr. Rootenbergs report sets
out a detailed plan for managing the respondent in the community. The CSC has
the tools to manage and enforce a release plan in the community.

The Arguments on Appeal

[39]

The Crown appellant alleges three specific
errors in the reasoning of the sentencing judge:

i.

failure to give effect to the purpose of
dangerous offender proceedings under Part XXIV of the
Criminal Code
;

ii.

failure to consider evidence that the risk of
the respondents recidivism could not be controlled in the community; and

iii.

failure to apply the proper standard in
determining the sentence imposed.

[40]

The purpose of Part XXIV, the Crown contends, is
to protect society from a class of offenders who are dangerous in light of
their past, present, and likely future conduct. The respondent is a high-risk
offender, a threat to the safety of the public. There is a high likelihood he
will engage in harmful recidivism. His behaviour is intractable.

[41]

The sentence imposed, the Crown submits,
represents a leap of faith by the sentencing judge, a hope based on
unpredictable contingencies that fail to respect the purpose of Part XXIV.
There was no evidence that the respondent could be successfully treated within
a definite period of time. He had consistently refused any available treatment
offered to him previously. The psychiatric opinion was contingent on the
respondent availing himself of available treatment. This confused the potential
to benefit from available treatment with a reasonable expectation that the
respondents risk could be managed in the community.

[42]

The Crown says that the sentencing judge,
emphasizing the absence of any significant cognitive difficulties in the
respondent, imposed a penitentiary sentence to provide the respondent with an
opportunity
to participate in the treatment on offer by the CSC. That the respondent, a
devoted abstainer from treatment programs, would even participate was purely
speculative. Manageability of the respondents risk depends upon him engaging
in treatment, willing to be supervised, complying with monitoring, and changing
his anti-social views. His record refutes any of these prospects.

[43]

The sentencing judge failed to consider evidence
that the respondents risk of recidivism could not be controlled in the
community. Risk management requires an assessment of both the treatability and
manageability of an offenders behaviour. This includes evidence of treatment
avoidance, unresponsiveness to treatment, breaches of court orders, lack of
motivation, continued involvement in high-risk conduct, or a serious
personality disorder and an elevated likelihood of violent recidivism. The
sentencing judge failed to consider the diminished strength of Dr. Rootenbergs
opinion because of the respondents conduct during the dangerous offender
hearing involving threats to assault and rape a correctional officer and his
former counsel. In addition, Dr. Rootenberg acknowledged that his opinion about
the prospect of controlling the respondent in the community depended on the
respondent actively engaging with treatment. There was no evidence the
respondent had ever done so or was even serious about doing so in the future.

[44]

The Crown says that Dr. Rootenberg did not
support the respondents release into the community on an LTSO without
intensive treatment in the penitentiary. What was required were several years
of dedicated treatment. The sentencing judge failed to consider this
significant qualification on Dr. Rootenbergs opinion.

[45]

In reaching his conclusion that a determinate
sentence and an LTSO was the appropriate disposition, the sentencing judge
referred to the reasonable possibility that the respondents risk could be
controlled in the community. This is not the standard that s. 753(4.1) directs
the hearing judge to apply. The standard is reasonable expectation, a higher
standard than reasonable possibility. A reasonable possibility
describes something that may happen. A reasonable expectation refers to a
belief that something
will
happen. Application of the wrong standard
is fatal to the disposition made by the sentencing judge. A sentence of
indeterminate detention in a penitentiary should be substituted.

[46]

The respondent submits that an indeterminate
sentence for an offender serving his first Federal sentence would violate the
fundamental principle of proportionality. The sentence imposed gives effect to
this principle and meets the standard required for a lesser sentence under s.
753(4.1). It provides ample opportunity for intensive treatment and close
supervision over the term of the LTSO. The sentencing judge made no legal error
and reached a reasonable conclusion grounded in the evidence adduced at the
hearing.

[47]

The respondent accepts that s. 753(4.1) directs
that an indeterminate sentence be imposed on a dangerous offender unless the
evidence adduced at the hearing demonstrates a reasonable expectation that a
lesser measure, such as the composite sentence imposed here, will adequately
protect the public against the offenders commission of murder or a serious
personal injury offence. The sentence imposed must be the least restrictive
means that will provide the required level of protection. The level of
protection required is adequate, not perfect.

[48]

The framework the sentencing judge should apply
in determining the proportionate sentence is akin to ascending the steps of a
ladder from the least to most restrictive. The governing focus is on risk
management, not complete elimination of the risk which would mandate an
indeterminate sentence in all cases. The sentencing decision involves the
application of the principles in the general sentencing provisions of Part
XXIII, but without losing sight of Part XXIV which assigns paramountcy to the
protection of the public. The sentencing judge repeatedly referred to the
protection of the public as the paramount principle of sentencing governing his
decision as he applied the principles enshrined in Part XXIII as he was
required to do.

[49]

In his analysis, the respondent continues, the
sentencing judge considered the entirety of the relevant evidence. This
included the report and testimony of Dr. Rootenberg, neither of which was
diminished or qualified during the course of the hearing. He maintained his
emphasis on the need for intensive treatment and strenuous supervision as a
means of controlling the risk of the respondents violent recidivism. He was
alive to the role of the CSC but was not deferential to it as the appellant
suggests.

[50]

The respondent accepts that the standard imposed
by s. 753(4.1) is a reasonable
expectation
that a lesser measure than
an indeterminate sentence will adequately protect the public against the
defined recidivistic risk, and not reasonable possibility as Dr. Rootenberg
characterized it. The statutory standard, the respondent agrees, suggests a
likelihood or belief that something would happen, not a possibility that it
might happen. However, the respondent emphasizes that the sentencing judge
never actually used the term reasonable possibility himself. Rather, he
referred to it only when quoting from Dr. Rootenbergs report.

[51]

Findings of intractability and unmanageability
at the designation stage of a dangerous offender application, the respondent
submits, do not mandate an indeterminate sentence in all cases. The presiding
judge must still determine whether there is a reasonable expectation that a
lesser measure will adequately protect the public. In this case, the sentencing
judge examined the evidence, correctly stated the law, and determined that the
lesser measure he imposed met the standard required. He made no error in doing
so. The sentence imposed should not be disturbed.

The Governing Principles

[52]

Part XXIV of the
Criminal Code
authorizes and governs the conduct of dangerous offender proceedings. The
statutory scheme has two stages. Section 753(1) lists the statutory requirements
that must be met before a court can designate an offender, convicted of a
serious personal injury offence, as a dangerous offender. This is the
designation stage. Sections 753(4) and (4.1) govern the second stage of the
proceedings. They relate to the sentencing of dangerous offenders, the penalty
stage:
R. v. Boutilier
, 2017 SCC 64, [2017] 2 S.C.R. 936, at
paras. 13‑15.

[53]

We are not concerned with the designation stage
here. The respondent was designated a dangerous offender under ss. 753(1)(a)(i)
and (ii) of the
Criminal Code
. No appeal has been taken from that
designation. Our concern is with the penalty stage of the proceedings.

[54]

Section 753(4) of the
Criminal Code
provides an exhaustive catalogue of the sentencing options available to judges and
courts when an offender has been designated as a dangerous offender. Section
753(4.1) codifies the exercise of the sentencing judges discretion under s.
753(4):
Boutilier
, at para. 60.

[55]

Part XXIV contains its own appellate rights and
prescribes the remedies available on appeal. Section 759 authorizes appeals by
the offender and the Attorney General from a decision made under this Part. Where,
as here, the appellant is the Attorney General, s. 759(2) limits the right of
appeal to any ground of law. An assessment of evidence may amount to an error
of law where that assessment is based on a wrong legal principle:
H.(J.M.)
,
at para. 29. Alleged errors of law are assessed on a standard of correctness:
Boutilier
,
at para. 81.

[56]

Sections 753(4) and (4.1) work together at the
penalty stage of dangerous offender proceedings.

[57]

Section 753(4) creates an exhaustive list of the
available punishments. These may be summarized as:

i.

an
indeterminate
sentence of
imprisonment in a penitentiary;

ii.

a
composite
sentence consisting of a
term of imprisonment of at least two years, followed by an LTSO for not more
than ten years; or

iii.

a
determinate
sentence for the
predicate serious personal injury offence(s).

[58]

Section 753(4.1) codifies the exercise of the
sentencing judges discretion in light of the general purpose of the dangerous
offender regime, to protect the public from offenders who have demonstrated a
very high degree of harmful recidivism. To properly exercise their discretion,
sentencing judges must impose the least intrusive sentence required to achieve
the primary purpose of the dangerous offender scheme  the protection of the
public from offenders with a very high likelihood of violent recidivism:
Boutilier
,
at paras. 60, 65.

[59]

Dangerous offender proceedings are sentencing
proceedings. This requires the sentencing judge to apply the sentencing
objectives, principles, and mandatory guidelines of Part XXIII, in particular,
ss. 718-718.2. Errors in the application of these principles are reviewable by
appellate courts:
Boutilier
, at paras. 53-54. However, Part XXIV
proceedings are not the same as conventional sentencing. Under Part XXIV, the
sentencing judge must assign paramount consideration to the protection of the
public as s. 753(4.1) requires. Parliament has decided that protection of the
public is an enhanced sentencing objective for those who have been designated
as dangerous offenders:
Boutilier
, at paras. 55-56;
R. v. Pelly
,
2021 SKCA 50, 403 C.C.C. (3d) 127, at para. 28.

[60]

Section 753(4.1) guides the discretion of the
sentencing judge in dangerous offender proceedings to determine the fittest
sentence based on the evidence adduced on the hearing. This requires the
sentencing judge to conduct a thorough inquiry into the prospect of control in
the community:
Boutilier
, at paras. 65, 68.

[61]

The framework a sentencing judge should apply in
exercising their discretion under s. 753(4.1) to determine the fittest sentence
to impose upon a dangerous offender requires that they first exhaust both less intrusive
sentencing options. This is because the proper exercise of discretion under s.
753(4) requires that the judge impose the least intrusive sentence required to
reduce the public threat posed by the offender to the level statutorily
required:
Boutilier
, at paras. 60, 70;
R. v. Awasis
, 2020
BCCA 23, 385 C.C.C. (3d) 369, at para. 72, leave to appeal refused, [2020]
S.C.C.A. No. 225. This is also because s. 753(4.1) does not impose an onus,
create a rebuttable presumption, or direct mandatory sentencing. An
indeterminate sentence is but one of the sentencing options available for
dangerous offenders:
Awasis
, at paras. 72, 73;
Boutilier
, at
para. 58.

[62]

Section 753(4.1) mandates imposition of an
indeterminate sentence unless there is a reasonable expectation that a lesser
sentence will adequately protect the public against the dangerous offenders
violent recidivism. The standard to be applied to the evidence adduced at the
hearing is whether there is a reasonable expectation that a lesser measure will
adequately protect the public against the offenders violent recidivism. The
standard is reasonable expectation, not reasonable possibility. The term reasonable
expectation suggests a likelihood, a belief that something would happen,
or a confident belief, for good and sufficient reasons:
Pelly
, at
para. 35;
R. v. D.J.S.
, 2015 BCCA 111, at para. 30, leave to appeal
refused, [2015] S.C.C.A. No. 194;
R. v. Sanderson
, 2018 MBCA 63, at
para. 20;
Awasis
, at para. 73. The standard reasonable expectation
is more stringent than reasonable possibility:
R. v. Groves
, 2020
ONCA 86, at para. 15.

[63]

Treatability is a relevant factor at the penalty
stage of dangerous offender proceedings. But evidence of treatability must
extend beyond speculative hope about successful treatment. The evidence must
give some indication that the offender can be treated within an ascertainable
time:
Awasis
, at para. 73, citing,
R. v. Little
, 2007 ONCA
548, 87 O.R. (3d) 683, at para. 42, leave to appeal refused, [2008] S.C.C.A.
No. 39. See also,
Boutilier
, at para. 45.

[64]

Manageability of a dangerous offenders
behaviour is also a factor to be considered at the penalty stage. On this
issue, the following is relevant: evidence that the offender avoided treatment,
failed to respond to or terminated treatment, breached court orders, lacked
motivation, continued to be involved in high-risk conduct, had a serious
personality disorder, and was a high risk to engage in violent recidivism. See
R.
v. K.P.
, 2020 ONCA 534, 152 O.R. (3d) 145, at para. 13, citing,
R. v.
Radcliffe
, 2017 ONCA 176, at paras. 64-65, leave to appeal refused, [2017]
S.C.C.A. No. 294. The moral culpability of a dangerous offender also remains
relevant at the penalty stage of the proceedings:
Pelly
, at para. 49;
Boutilier
,
at para. 63.

[65]

The nature and duration of a dangerous
offenders prior conduct may provide cogent evidence of how that offender would
act in the future, given the opportunity to do so:
Groves
, at para. 6.
Likewise, the manageability of the offender under supervision in the community.

[66]

Where an appellate court concludes that the
sentencing judge has erred in imposing a sentence, the court may impose a
sentence that may be imposed by the trial court under Part XXIV:
Criminal
Code
, s. 759(3)(a)(i).

The Principles Applied

[67]

As I will explain, I am satisfied that the
appellant has demonstrated that the sentencing judge erred in law in concluding
that a lesser measure than an indeterminate sentence  a composite sentence 
met the standard required under s. 753(4.1) to warrant its imposition. It
follows that the deference usually due to the exercise of discretion in
sentencing falls away and permits this court to consider afresh what
constitutes a fit disposition under Part XXIV.

[68]

In my respectful view, the error of law in this
case consisted of the sentencing judge assessing the whole of the evidence
against the wrong legal standard in deciding whether a lesser measure than an
indeterminate sentence satisfied the standard required by s. 753(4.1).

[69]

I accept as a basic principle that, absent an
error of law, a judges assessment of the evidence adduced in a proceeding is
beyond the reach of appellate review; that review is limited to grounds of law:
H.(J.M.)
, at para. 30. On the other hand, it is an error of law
to assess that same corpus of evidence on the basis of the wrong legal
standard:
H.(J.M.)
, at para. 29.

[70]

The legal standard imposed by s. 753(4.1) for a
lesser measure than an indeterminate sentence to be imposed on the dangerous
offender is whether there is a reasonable
expectation
that the lesser
measure will adequately protect the public against commission by the offender
of murder or a serious personal injury offence. This standard refers to a
likelihood
,
a belief something will happen, not that something might happen. And that something
is that the lesser measure will adequately protect the public against the
dangerous offenders violent recidivism.

[71]

A reasonable expectation is not a reasonable
possibility. A reasonable possibility sets the bar for a lesser measure too low
to ensure adequate protection of the public. Reasonable possibility was the
standard applied by Dr. Rootenberg in reaching his conclusion.

[72]

This was also the standard adopted by the
sentencing judge in deciding that the lesser measure of a composite sentence
would provide adequate protection for the public against the respondents
violent recidivism. Granted, the sentencing judge only used the term reasonable
possibility when summarizing or quoting from Dr. Rootenbergs report. But Dr.
Rootenbergs evidence significantly informed his reasons. And the sentencing
judge determined a composite sentence was adequate on the basis of factors that
supported only an opportunity or ability to participate in treatment,
rather than any expectation that the respondent actually would.

[73]

The sentencing judge therefore assessed the
evidence against a less rigorous standard than s. 753(4.1) requires. As
such, his conclusion about the adequacy of a lesser measure than an
indeterminate sentence to satisfy the required degree of public protection
cannot stand. Likewise, the composite sentence imposed to give effect to that
finding.

[74]

When the proper standard is applied to the analysis
required by s. 753(4.1), the evidence falls short of what is necessary to
conclude that there is a reasonable expectation that a lesser measure than an
indeterminate sentence will adequately protect the public.

[75]

The evidence of Dr. Rootenberg, upon which the
sentencing judge relied most heavily, was itself based on the same erroneous
standard of reasonable possibility, rather than the more stringent reasonable
expectation. Even if accepted, it cannot ascend to the standard required. All
the more so when Dr. Rootenberg acknowledged that the possibility of
eventual control of the high risk of violence and substantial risk of serious
violence was largely dependent on the respondent demonstrating a much more
diligent and concerted effort than he has previously demonstrated.

[76]

A fair reading of Dr. Rootenbergs report and
evidence reveals that management under a composite sentence would require
prolonged intensive treatment during the custodial portion of the sentence and
an equivalent level of long-term supervision. Both are entirely dependent on
the respondents willing participation and adherence.

[77]

The respondent has been treatment avoidant
throughout his over a decade‑long involvement with the criminal justice
system. He has been convicted of more than six dozen criminal offences,
including several involving actual or threatened violence against others. He
pays no heed to court orders, regularly offends while bound by probation
orders, and has been convicted of some 20 offences of failure to comply.

[78]

During his incarceration awaiting conclusion of
the dangerous offender application, the respondent incurred repeated
institutional misconducts. These included threats of violence against
correctional officers and sexual violence against female correctional officers.
He communicated grave threats of personal and sexual violence to his former
trial counsel. He sent a letter to the trial Crown expanding upon his plans for
one of his victims of the predicate offences had he not been interrupted by two
passers-by, one of whom he tried to stab with a large butcher knife.

[79]

The respondent has a serious personality
disorder, as well as a substance use disorder that enhances his risk of recidivistic
violence. Personality disorders are notoriously treatment resistant and the
respondent has demonstrated no real insight into the need for any kind of
treatment.

[80]

The record, as a whole, does not provide
evidentiary support for a conclusion that there is a reasonable expectation
that a lesser measure than an indeterminate sentence will adequately protect
the public against the respondents violent recidivism.

Disposition

[81]

I would allow the appeal, set aside the sentence
imposed by the sentencing judge, and impose a sentence of detention in a
penitentiary for an indeterminate period. In accordance with s. 759(6) of the
Criminal
Code
, the sentence of indeterminate detention is deemed to have commenced
on January 23, 2020, the date on which the original sentence was imposed at the
conclusion of the dangerous offender hearing.

Released: January 24, 2022 D.W.



David
Watt J.A.

I
agree. G. Pardu J.A.

I
agree. Gary Trotter J.A.


