R. v. Johnson, [2003] 2 S.C.R. 357, 2003 SCC 46
Her Majesty The Queen Appellant
v.
Jerimiah Josia Johnson Respondent
and
Attorney General of Canada, Attorney General of Ontario
and Attorney General of Alberta Interveners
Indexed as: R. v. Johnson
Neutral citation: 2003 SCC 46.
File No.: 28945.
2003: January 16; 2003: September 26.
Present: McLachlin C.J. and Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour, LeBel and Deschamps JJ.
on appeal from the court of appeal for british columbia
Criminal law — Sentencing — Dangerous offenders and long‑term offenders — Accused declared to be dangerous offender and sentenced to indeterminate prison term — Whether, under current regime, sentencing judge must consider long‑term offender provisions prior to declaring offender dangerous — Whether sentencing judge must consider long‑term offender provisions when predicate offence occurred prior to enactment of long‑term offender provisions — Criminal Code, R.S.C. 1985, c. C‑46, ss. 753, 753.1.
Criminal law — Sentencing — Appeal — Dangerous offenders — Accused declared to be dangerous offender and sentenced to indeterminate prison term — If sentencing judge’s failure to consider long‑term offender provisions constituted an error of law, whether appeal should be allowed on basis that error of law resulted in no substantial wrong or miscarriage of justice — Criminal Code, R.S.C. 1985, c. C‑46, s. 759(3)(b).
Constitutional law — Charter of Rights — Benefit of lesser punishment — Accused declared to be dangerous offender and sentenced to indeterminate prison term — Sentencing judge did not consider long‑term offender provisions enacted in 1997 because predicate offence committed prior to amendments — Whether sentencing judge required to consider applicability of long‑term offender provisions — Canadian Charter of Rights and Freedoms, s. 11(i) — Criminal Code, R.S.C. 1985, c. C‑46, ss. 753, 753.1.
At the accused’s sentencing hearing, the judge did not consider the availability of the long‑term offender provisions, added to the Criminal Code in 1997, on the basis that the offence for which the accused was convicted was committed prior to these amendments. He held that the accused was a dangerous offender as defined by s. 753(1)(b) of the Code and sentenced him to detention for an indeterminate period. The majority of the Court of Appeal allowed the accused’s appeal and ordered a new sentencing hearing.
Held: The appeal should be dismissed.
A sentencing judge must take into account the long‑term offender provisions prior to declaring an offender dangerous and imposing an indeterminate sentence. The language of s. 753(1) of the Code indicates that a sentencing judge retains the discretion not to declare an offender dangerous even if the statutory criteria in para. (a) or (b) are met. On its face, the word “may” in the phrase “[t]he court may . . . find the offender to be a dangerous offender” denotes a discretion. The principles of statutory interpretation, the purpose of the dangerous offenders regime, and the principles of sentencing support that interpretation. The primary purpose of the dangerous offender regime is the protection of the public. The principles underlying the Code’s sentencing provisions dictate that a sentence must be appropriate in the circumstances of the individual case. The proposition that a court is under a duty to declare an offender dangerous every time the statutory criteria are satisfied would introduce an unnecessary rigidity into the process and overshoot the public protection purpose. It would also undermine a sentencing judge’s capacity to fashion a sentence that fits the individual circumstances of a given case.
A judge’s discretion whether to declare an offender dangerous must be guided by the relevant principles of sentencing contained in ss. 718 to 718.2 of the Code. These include the principle of proportionality and, most relevant to this appeal, the principle of restraint. A sentencing judge must consider the possibility that a less restrictive sanction would attain the same sentencing objectives as one more restrictive. Since the sentencing objective in question is public protection, 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 the statutory criteria have been satisfied. The imposition of an indeterminate sentence is justifiable only insofar as it actually serves the objective of protecting society. Prospective factors, including the possibility of eventual control of the risk in the community, must thus be considered prior to a dangerous offender designation. Lastly, s. 753(5) of the Code does not preclude a sentencing judge from considering the long‑term offender provisions until after he or she has already determined that the offender is not a dangerous offender. Parliament did not intend the dangerous offender provisions and the long‑term offender provisions to be considered in isolation of one another.
Section 11(i) of the Canadian Charter of Rights and Freedoms provides that any person charged with an offence has the right “if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment”. Accordingly, even though the accused’s offence was committed prior to the 1997 amendments, the sentencing judge was required to consider the applicability of the long‑term offender provisions, since the accused, who may have been declared a dangerous offender under the former provisions, could benefit from the long‑term offender designation available under the current provisions. If the long‑term offender criteria are satisfied and there is a reasonable possibility that harm could be reduced to an acceptable level under the long‑term offender provisions, s. 11(i) dictates that the proper sentence, under the current regime, is a determinate period of detention followed by a long‑term supervision order.
The curative proviso in s. 759(3)(b) of the Code is to be applied only when there is no reasonable possibility that the verdict would have been any different had the error of law not been made. Where the error of law consists of the sentencing judge’s failure to consider the availability of the long‑term offender provisions, it is only in the rarest of circumstances, if ever, that there will be no reasonable possibility that the sentencing judge would have imposed a different sentence but for the error. Here, in the absence of a full inquiry into the suitability of the long‑term offender provisions, it would be improper to reinstate the sentencing judge’s finding that the accused was properly classified as a dangerous offender.
Cases Cited
Referred to: R. v. Edgar, [2003] 2 S.C.R. 388, 2003 SCC 47; R. v. Smith, [2003] 2 S.C.R. 392, 2003 SCC 48; R. v. Mitchell, [2003] 2 S.C.R. 396, 2003 SCC 49, aff’g (2002), 161 C.C.C. (3d) 508, 2002 BCCA 48; R. v. Kelly, [2003] 2 S.C.R. 400, 2003 SCC 50; R. v. Potvin, [1989] 1 S.C.R. 525; Brown v. Metropolitan Authority (1996), 150 N.S.R. (2d) 43; R. v. Lyons, [1987] 2 S.C.R. 309; Re Moore and The Queen (1984), 10 C.C.C. (3d) 306; R. v. Proulx, [2000] 1 S.C.R. 61, 2000 SCC 5; R. v. Jones, [1994] 2 S.C.R. 229; R. v. Moore (1985), 16 C.C.C. (3d) 328; R. v. Boutilier (1995), 144 N.S.R. (2d) 293; R. v. Dow (1999), 120 B.C.A.C. 16, 1999 BCCA 177; R. v. J.T.H. (2002), 209 N.S.R. (2d) 302, 2002 NSCA 138; R. v. D.W.M., [2001] A.J. No. 165 (QL), 2001 ABPC 5; R. v. N. (L.) (1999), 71 Alta. L.R. (3d) 92, 1999 ABCA 206; R. v. Driver, [2000] B.C.J. No. 63 (QL), 2000 BCSC 69; R. v. O.G., [2001] O.J. No. 1964 (QL); R. v. Tremblay (2000), 87 Alta. L.R. (3d) 229, 2000 ABQB 551; R. v. Roy, [1999] Q.J. No. 5648 (QL), rev’d (2002), 167 C.C.C. (3d) 203; R. v. F.W.M., [2001] O.J. No. 4591 (QL); R. v. Morin (1998), 173 Sask. R. 101; R. v. R.C. (1996), 145 Nfld. & P.E.I.R. 271; Hatchwell v. The Queen, [1976] 1 S.C.R. 39; R. v. Carleton (1981), 32 A.R. 181, aff’d [1983] 2 S.C.R. 58; R. v. Bevan, [1993] 2 S.C.R. 599.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, s. 11(i).
Corrections and Conditional Release Act, S.C. 1992, c. 20, s. 134.1(2) [am. 1997, c. 17, s. 30].
Criminal Code, R.S.C. 1985, c. C‑46, ss. 686(1)(b)(iii) [ad. c. 27 (1st Supp.), ss. 145, 203; 1991, c. 43, s. 9 (Sch., item 8)], 718 [ad. c. 27 (1st Supp.), s. 155; am. 1995, c. 22, s. 6], 718.1 [ad. c. 27 (1st Supp.), s. 156; am. 1995, c. 22, s. 6], 718.2 [ad. 1995, c. 22, s. 6], Part XXIV, 752.1 [ad. 1997, c. 17, s. 4], 753 (former), 753(1) [ad. 1997, c. 17, s. 4], (4) [idem], (5) [idem], 753.1(1) [idem], (2) [idem], (3) [idem], 753.2 [idem], 759(3) [repl. idem, s. 6], 761(1) (former), 761(1) [repl. 1997, c. 17, s. 8].
Interpretation Act, R.S.C. 1985, c. I‑21, s. 11.
Authors Cited
Sullivan, Ruth. Sullivan and Driedger on the Construction of Statutes, 4th ed. Markham, Ont.: Butterworths, 2002.
APPEAL from a judgment of the British Columbia Court of Appeal (2001), 158 C.C.C. (3d) 155, 159 B.C.A.C. 255, 259 W.A.C. 255, [2001] B.C.J. No. 2021 (QL), 2001 BCCA 456, reversing a decision of the British Columbia Supreme Court, [1998] B.C.J. No. 3216 (QL). Appeal dismissed.
William F. Ehrcke, Q.C., and Beverly MacLean, for the appellant.
Gil D. McKinnon, Q.C., and James I. S. Sutherland, for the respondent.
Robert J. Frater and David Schermbrucker, for the intervener the Attorney General of Canada.
Ian W. Bulmer, for the intervener the Attorney General of Ontario.
Goran Tomljanovic, for the intervener the Attorney General of Alberta.
The judgment of the Court was delivered by
1 Iacobucci and Arbour JJ. — This case was heard at the same time as R. v. Edgar, [2003] 2 S.C.R. 388, 2003 SCC 47, R. v. Smith, [2003] 2 S.C.R. 392, 2003 SCC 48, R. v. Mitchell, [2003] 2 S.C.R. 396, 2003 SCC 49, R. v. Kelly, [2003] 2 S.C.R. 400, 2003 SCC 50, released concurrently herewith. Each case involves an appeal against a sentencing judge’s decision to declare an offender dangerous and sentence him to an indeterminate period of detention. In deciding these appeals, the British Columbia Court of Appeal conducted an extensive review of the dangerous offender provisions in light of amendments to Part XXIV of the Criminal Code, R.S.C. 1985, c. C-46, which contains the provisions governing dangerous offenders.
2 The amendments, which took effect August 1, 1997, brought a number of changes to Part XXIV of the Criminal Code. For instance, the period before a dangerous offender’s first parole hearing was extended from three years under the pre-1997 legislation to seven years under the amended legislation. Another change was the addition of the new category of long-term offender to Part XXIV of the Code. While Canada has had legislation providing for the indeterminate incarceration of high risk offenders in one form or another since 1947, the 1997 amendments introduced, for the first time, a mechanism to allow for supervision in the community, for a limited period after the expiry of a determinate sentence, of certain offenders who pose a risk of re-offence. This case requires this Court to consider for the first time the interaction between the dangerous offender provisions and the new long-term offender provisions, both of which govern the sentencing of offenders who pose an ongoing public threat.
3 This appeal raises two primary issues. The first issue is whether a sentencing judge must, under the current regime, take into account the possibility of a long-term offender designation when considering a dangerous offender application. The second issue is whether the current provisions, particularly the long-term offender provisions which were absent in the pre-1997 legislation, are available in instances in which the predicate offence occurred prior to the 1997 amendments.
I. Legislative Background
4 Prior to the 1997 amendments, the Crown could bring an application to have an offender declared dangerous pursuant to s. 753 of the Criminal Code. There were no long-term offender provisions. Section 753 set out the criteria that the court must be satisfied of for an offender to be found dangerous. If the criteria were satisfied, the sentencing judge could declare the offender dangerous and thereupon impose a sentence of detention in a penitentiary for an indeterminate period:
753. Where, on an application made under this Part following the conviction of a person for an offence but before the offender is sentenced therefor, it is established to the satisfaction of the court
(a) that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (a) of the definition of that expression in section 752 and the offender constitutes a threat to the life, safety or physical or mental well-being of other persons on the basis of evidence establishing
(i) a pattern of repetitive behaviour by the offender, of which the offence for which he has been convicted forms a part, showing a failure to restrain his behaviour and a likelihood of his causing death or injury to other persons, or inflicting severe psychological damage on other persons, through failure in the future to restrain his behaviour,
(ii) a pattern of persistent aggressive behaviour by the offender, of which the offence for which he has been convicted forms a part, showing a substantial degree of indifference on the part of the offender respecting the reasonably foreseeable consequences to other persons of his behaviour, or
(iii) any behaviour by the offender, associated with the offence for which he has been convicted, that is of such a brutal nature as to compel the conclusion that his behaviour in the future is unlikely to be inhibited by normal standards of behavioural restraint, or
(b) that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (b) of the definition of that expression in section 752 and the offender, by his conduct in any sexual matter including that involved in the commission of the offence for which he has been convicted, has shown a failure to control his sexual impulses and a likelihood of his causing injury, pain or other evil to other persons through failure in the future to control his sexual impulses,
the court may find the offender to be a dangerous offender and may thereupon impose a sentence of detention in a penitentiary for an indeterminate period, in lieu of any other sentence that might be imposed for the offence for which the offender has been convicted.
If the offender was found dangerous and sentenced to an indeterminate sentence, s. 761(1) required a parole hearing three years after the day on which the offender was taken into custody.
5 The dangerous offender provisions were amended in 1997. Under the amended provisions, the criteria that the court must be satisfied of for an offender to be declared a dangerous offender have remained the same:
753. (1) The court may, on application made under this Part following the filing of an assessment report under subsection 752.1(2), find the offender to be a dangerous offender if it is satisfied
(a) that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (a) of the definition of that expression in section 752 and the offender constitutes a threat to the life, safety or physical or mental well-being of other persons on the basis of evidence establishing
(i) a pattern of repetitive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a failure to restrain his or her behaviour and a likelihood of causing death or injury to other persons, or inflicting severe psychological damage on other persons, through failure in the future to restrain his or her behaviour,
(ii) a pattern of persistent aggressive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a substantial degree of indifference on the part of the offender respecting the reasonably foreseeable consequences to other persons of his or her behaviour, or
(iii) any behaviour by the offender, associated with the offence for which he or she has been convicted, that is of such a brutal nature as to compel the conclusion that the offender’s behaviour in the future is unlikely to be inhibited by normal standards of behavioural restraint; or
(b) that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (b) of the definition of that expression in section 752 and the offender, by his or her conduct in any sexual matter including that involved in the commission of the offence for which he or she has been convicted, has shown a failure to control his or her sexual impulses and a likelihood of causing injury, pain or other evil to other persons through failure in the future to control his or her sexual impulses.
Under s. 753(4), if the sentencing judge finds the offender to be a dangerous offender, he or she shall impose a sentence of detention in a penitentiary for an indeterminate period. Under s. 761(1), the first parole hearing is required to take place seven years from the day on which the offender was taken into custody.
6 The most significant amendment, at least insofar as the present appeal is concerned, is the introduction of the long-term offender provisions. The criteria that the court must be satisfied of for an offender to be designated a long-term offender are set out in s. 753.1(1) and (2):
753.1 (1) The court may, on application made under this Part following the filing of an assessment report under subsection 752.1(2), find an offender to be a long-term offender if it is satisfied that
(a) it would be appropriate to impose a sentence of imprisonment of two years or more for the offence for which the offender has been convicted;
(b) there is a substantial risk that the offender will reoffend; and
(c) there is a reasonable possibility of eventual control of the risk in the community.
(2) The court shall be satisfied that there is a substantial risk that the offender will reoffend if
(a) the offender has been convicted of an offence under section 151 (sexual interference), 152 (invitation to sexual touching) or 153 (sexual exploitation), subsection 173(2) (exposure) or section 271 (sexual assault), 272 (sexual assault with a weapon) or 273 (aggravated sexual assault), or has engaged in serious conduct of a sexual nature in the commission of another offence of which the offender has been convicted; and
(b) the offender
(i) has shown a pattern of repetitive behaviour, of which the offence for which he or she has been convicted forms a part, that shows a likelihood of the offender’s causing death or injury to other persons or inflicting severe psychological damage on other persons, or
(ii) by conduct in any sexual matter including that involved in the commission of the offence for which the offender has been convicted, has shown a likelihood of causing injury, pain or other evil to other persons in the future through similar offences.
Under s. 753.1(3), if the court finds an offender to be a long‑term offender, it shall: “(a) impose a sentence for the offence for which the offender has been convicted, which sentence must be a minimum punishment of imprisonment for a term of two years; and (b) order the offender to be supervised in the community, for a period not exceeding ten years, in accordance with section 753.2 and the Corrections and Conditional Release Act”, S.C. 1992, c. 20 (as amended by S.C. 1997, c. 17).
II. Judicial History
7 At the sentencing hearing, Tysoe J. of the Supreme Court of British Columbia did not consider the availability of the long-term offender provisions, on the basis that the offence for which Mr. Johnson was convicted was committed prior to the 1997 amendments. He held that Mr. Johnson was a dangerous offender as defined by s. 753(1)(b) of the Criminal Code and sentenced him to detention in a penitentiary for an indeterminate period: [1998] B.C.J. No. 3216 (QL).
8 Ryan J.A., for the majority of the British Columbia Court of Appeal ((2001), 158 C.C.C. (3d) 155, 2001 BCCA 456), concluded that the matter ought to have been determined in accordance with the current regime. Under s. 11(i) of the Canadian Charter of Rights and Freedoms, any person charged with an offence has the right “if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment”. Ryan J.A. found that under the current regime the long-term offender provisions narrow the scope of the dangerous offender provisions by providing the sentencing judge with the option of sentencing an offender who would previously have been declared dangerous to a lesser punishment. Ryan J.A. thus concluded that the sentencing judge should have sentenced Mr. Johnson under the current regime, and in so doing should have considered the suitability of the long-term offender provisions.
9 In reaching this conclusion, Ryan J.A. considered the dangerous offender provisions prior to the amendments. In her view, implicit in one form or another in each of the criteria under s. 753 is the requirement that the pattern of conduct be substantially or pathologically intractable. If the pattern of conduct is substantially or pathologically intractable, the sentencing judge must declare the offender dangerous. The sentencing judge, however, retains the discretion to sentence a dangerous offender to a determinate sentence, but only if a cure for the offender’s behaviour is probable within the parameters of the fixed sentence.
10 Ryan J.A. then concluded that under the current regime a sentencing judge does not retain the discretion to sentence a dangerous offender to a determinate sentence. However, the sentencing judge must consider the prospects for treatment or cure in order to determine whether the pattern of conduct exhibited by the offender is sufficiently intractable to satisfy the statutory criteria set out in s. 753(1)(a) and (b). If there is a reasonable possibility that a cure will be found within the time-frame of a fixed sentence, or that the offender will be controllable under the long-term offender provisions, the sentencing judge cannot rightly conclude that the offender is a dangerous offender. According to Ryan J.A., the primary distinction between the long-term offender provisions and the dangerous offender provisions, under the current regime, is the absence of a requirement under the long-term offender provisions that the pattern of conduct be substantially or pathologically intractable. An offender whose conduct is not pathologically intractable may now qualify for long-term offender status rather than dangerous offender status.
11 Saunders J.A. dissented on the basis that she was unable to say with certainty, at the time that the hearing commenced, that the current sentencing regime would result in a lesser punishment than the prior regime. According to Saunders J.A., it is possible that an offender who would have been declared dangerous and sentenced to a fixed term under the former regime would be declared a long-term offender and sentenced to a fixed term with a period of probation under the current regime, or that a person who would not have been declared dangerous under the former regime would be declared a long-term offender under the current regime. If the predicate offence was committed prior to the 1997 amendments, the offender should be sentenced under the former regime.
III. Issues
12 This appeal raises two primary issues: (i) whether, under the current regime, a sentencing judge must take into account the long-term offender provisions prior to declaring an offender dangerous and imposing an indeterminate sentence; and (ii) whether a sentencing judge must take into account the long-term offender provisions in instances in which the predicate offence occurred prior to the enactment of the long-term offender provisions. If the sentencing judge’s failure to consider the long-term offender provisions constituted an error of law, a third issue arises as to whether the appeals should be allowed on the basis that the error of law resulted in no substantial wrong or miscarriage of justice.
IV. Analysis
13 Section 11(i) of the Charter guarantees that everyone has the right, “if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment”. The question in this appeal is whether the new provisions offer any benefit to the respondent such that his sentencing must be governed retrospectively by the provisions as amended in 1997. In order to answer this question, it is necessary to interpret both the old and the new provisions, to determine which offers the prospect of a lesser punishment to an accused in the position of the respondent who is sentenced under them.
A. Dangerous Offender Applications under the Current Regime
14 The Crown submits that an offender who meets the criteria in s. 753(1)(a) or (b) must be declared a dangerous offender and must be given an indeterminate sentence, without regard to whether the offender might also meet the criteria for a long-term offender designation. There are two branches to this argument: first, that under 753(1), courts have no discretion to decline to declare an offender a dangerous offender once the statutory criteria have been satisfied; and second, that s. 753(5)(a) of the Criminal Code prevents a sentencing judge from considering the long-term offender provisions on a dangerous offender application until after the court has already found that an offender is not a dangerous offender. We consider each aspect of the argument in turn.
(1) The Sentencing Judge’s Discretion
15 Section 753(1) provides that “[t]he court may, on application made under this Part following the filing of an assessment report under subsection 752.1(2), find the offender to be a dangerous offender” if it is satisfied that the statutory criteria set out in paras. (a) or (b) are met. The Crown submits that the word “may” in s. 753(1) does not create a true discretion, but rather grants a power that is contingent only upon proof of the statutory conditions. On this view, the word “may” in the phrase “[t]he court may . . . find the offender to be a dangerous offender” should be treated as imperative; a sentencing judge who finds that the dangerous offender criteria are met must make a dangerous offender designation. For the following reasons, it is our opinion that this submission must fail.
16 The language of s. 753(1) indicates that a sentencing judge retains a discretion whether to declare an offender dangerous who meets the criteria for that designation. As mentioned above, s. 753(1) provides that the court may find an offender to be a dangerous offender if it is satisfied that the statutory criteria set out in paras. (a) or (b) are met. On its face, the word “may” denotes a discretion, while the word “shall” is commonly used to denote an obligation: see for example R. v. Potvin, [1989] 1 S.C.R. 525, at p. 549. Indeed, s. 11 of the Interpretation Act, R.S.C. 1985, c. I-21, requires “shall” to be construed as imperative and “may” to be construed as permissive. If Parliament had intended that an offender must be designated dangerous if each of the statutory criteria have been satisfied, one would have expected Parliament to have used the word “shall” rather than “may”.
17 That said, cases do exist in which courts have found that the power conferred by “may” is coupled with a duty once all the conditions for the exercise of the power have been met: R. Sullivan, Sullivan and Driedger on the Construction of Statutes (4th ed. 2002), at p. 58. See for example, Brown v. Metropolitan Authority (1996), 150 N.S.R. (2d) 43, in which the Nova Scotia Court of Appeal ruled that Sackville’s Metropolitan Authority was obliged to pay the claimant pursuant to s. 8(1) of the Community of Sackville Landfill Compensation Act, S.N.S. 1993, c. 71, despite the fact that the section provided that the Authority may pay an amount to a person who is a resident, or an owner or occupier of real or personal property in the municipality on account of damages arising out of the operation of the landfill. But as Sullivan observes, at pp. 59-60:
In a case like Brown, it is wrong to say that “may” means “shall” or “may” is imperative. As Cotton L.J. wrote in Nichols v. Baker,
I think that great misconception is caused by saying that in some cases “may” means “must”. It can never mean “must”, so long as the English language retains its meaning; but it gives a power, and then it may be a question in what cases, where a Judge has a power given him by the word “may”, it becomes his duty to exercise it. (In re Baker; Nichols v. Baker (1890), 44 Ch. D. 262, at 270.)
The duty, if it arises, is inferred from the purpose and scheme of the Act or from other contextual factors. [Emphasis added.]
18 In this case, there is no indication of a duty to find an offender dangerous once the statutory criteria have been met. As we will elaborate, neither the purpose of the dangerous offenders regime, nor the principles of sentencing, nor the principles of statutory interpretation suggest that a sentencing judge must designate an offender dangerous if the statutory criteria in s. 753(1)(a) or (b) have been met. On the contrary, each of these factors indicates that a sentencing judge retains the discretion not to declare an offender dangerous even if the statutory criteria are met. This is particularly true now that it is clear that offenders declared dangerous must be given an indeterminate sentence.
19 In R. v. Lyons, [1987] 2 S.C.R. 309, this Court affirmed that the primary purpose of the dangerous offender regime is the protection of the public: see also Re Moore and The Queen (1984), 10 C.C.C. (3d) 306 (Ont. H.C.), cited with approval in Lyons, supra, at p. 329. In Lyons, La Forest J. explained that preventive detention under the dangerous offender regime goes beyond what is justified on a “just deserts” rationale based on the reasoning that in a given case, the nature of the crime and the circumstances of the offender call for the elevation of the goal of protection of the public over the other purposes of sentencing. La Forest J. confirmed, at p. 339, that the legislation was designed “to carefully define a very small group of offenders whose personal characteristics and particular circumstances militate strenuously in favour of preventive incarceration”.
20 Indeterminate detention under the dangerous offender regime is warranted only insofar as it actually serves the purpose of protecting the public. As we discuss more thoroughly below, there may be circumstances in which an offender meets the statutory criteria for a dangerous offender designation but the goal of protecting the public can be achieved without indeterminate detention. An interpretation of the dangerous offender provisions that would require a sentencing judge to declare an offender dangerous and sentence him or her to an indeterminate period of detention in each instance in which the statutory criteria for a dangerous offender designation have been satisfied would introduce an unnecessary rigidity into the process and overshoot the public protection purpose of the dangerous offender regime.
21 Nor is there anything in the purposes of the sentencing regime as a whole, as set out both in the decisions of this Court and in ss. 718 to 718.2 of the Criminal Code, which would indicate a duty to find an offender dangerous in each circumstance in which the statutory criteria are met. On the contrary, the underlying objectives of the sentencing regime, of which the dangerous offender provisions form a part, indicate a discretion to impose a just and fit sentence in the circumstances of the individual case.
22 In R. v. Proulx, [2000] 1 S.C.R. 61, 2000 SCC 5, Lamer C.J., writing for the Court, emphasized, at para. 82, that “sentencing is an individualized process, in which the trial judge has considerable discretion in fashioning a fit sentence”. The rationale flows from the principles of sentencing set out in the Criminal Code, including s. 718.1, which states that a sentence “must be proportionate to the gravity of the offence and the degree of responsibility of the offender”, and s. 718.2(d), which states that an offender “should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances”.
23 This Court has previously confirmed that dangerous offender proceedings form part of the sentencing process: see for example R. v. Jones, [1994] 2 S.C.R. 229, at pp. 279-80 and 294-95, and Lyons, supra, at p. 350. As such, their interpretation must be guided by the fundamental purpose and principles of sentencing contained in ss. 718 to 718.2. The role played by the purpose and principles of sentencing in guiding the interpretation of the dangerous offender provisions is reflected in the comments of La Forest J., in Lyons, at p. 329, that preventive detention “simply represents a judgment that the relative importance of the objectives of rehabilitation, deterrence and retribution are greatly attenuated in the circumstances of the individual case, and that of prevention, correspondingly increased”.
24 The proposition that a court is under a duty to declare an offender dangerous in each circumstance in which the statutory criteria are satisfied is in direct conflict with the underlying principle that the sentence must be appropriate in the circumstances of the individual case. A rigid rule that each offender who satisfies the statutory criteria in s. 753(1) must be declared dangerous and sentenced to an indeterminate period of detention undermines a sentencing judge’s capacity to fashion a sentence that fits the individual circumstances of a given case. Thus, rather than suggesting that a sentencing judge is under an obligation to find an offender dangerous once the statutory criteria are met, the principles and purposes underlying the Criminal Code’s sentencing provisions actually favour a sentencing judge’s discretion whether to declare an offender dangerous who has met the statutory criteria in s. 753(1).
25 The Crown has pointed to a line of lower court judgments, beginning with R. v. Moore (1985), 16 C.C.C. (3d) 328 (Ont. C.A.), which say that a sentencing judge must designate an offender dangerous once the statutory criteria for the designation have been satisfied: see also R. v. Boutilier (1995), 144 N.S.R. (2d) 293 (C.A.); R. v. Dow (1999), 120 B.C.A.C. 16, 1999 BCCA 177, decided under the previous legislation; R. v. J.T.H. (2002), 209 N.S.R. (2d) 302, 2002 NSCA 138; R. v. D.W.M., [2001] A.J. No. 165 (QL), 2001 ABPC 5, decided under the current regime. There is also a contrary line of cases affirming the court’s discretion to decline to make the designation which relies on Lyons: see for example R. v. N. (L.) (1999), 71 Alta. L.R. (3d) 92, 1999 ABCA 206, decided under the current and previous legislation; R. v. Driver, [2000] B.C.J. No. 63 (QL), 2000 BCSC 69, decided under the previous legislation; R. v. O.G., [2001] O.J. No. 1964 (QL) (C.J.); R. v. Tremblay (2000), 87 Alta. L.R. (3d) 229, 2000 ABQB 551; and R. v. Roy, [1999] Q.J. No. 5648 (QL) (Sup. Ct.), rev’d on a different issue (2002), 167 C.C.C. (3d) 203 (Que. C.A.), decided under the current regime. Other courts have expressed uncertainty as to which line of cases to follow: see for example R. v. F.W.M., [2001] O.J. No. 4591 (QL) (S.C.J.); R. v. Morin (1998), 173 Sask. R. 101 (Q.B.); R. v. R.C. (1996), 145 Nfld. & P.E.I.R. 271 (Nfld. C.A.).
26 However, this Court confirmed in Lyons, supra, that the phrase “the court may find the offender to be a dangerous offender” denotes a discretion. In support of the Court’s conclusion that the dangerous offender regime did not violate the prohibition on cruel and unusual punishment, La Forest J. stated, at p. 338, that “the court has the discretion not to designate the offender as dangerous or to impose an indeterminate sentence, even in circumstances where all of these criteria are met” (emphasis added). He reiterated the point at p. 362, stating that a sentencing judge “does retain a discretion whether or not to impose the designation or indeterminate sentence, or both” (emphasis added). Insofar as Moore and its progeny suggest that sentencing judges must declare an offender dangerous if the statutory criteria have been satisfied, they have been overruled by Lyons.
27 Having determined that the phrase “[t]he court may . . . find the offender to be a dangerous offender” denotes a discretion, the next issue that falls to be considered is the legal principles and factors that a sentencing judge must consider in the exercise of that discretion. For the reasons that follow, it is our conclusion that one factor that a sentencing judge must consider is the possibility that the sanctions available pursuant to the long-term offender provisions would be sufficient to achieve the objectives that the dangerous offender provisions seek to advance.
(2) The Exercise of Discretion
28 Like all discretion exercised in the sentencing context, a judge’s discretion whether to declare an offender dangerous must be guided by the relevant principles of sentencing contained in ss. 718 to 718.2 of the Criminal Code. As mentioned above, these include the fundamental principle of proportionality contained in s. 718.1 and, most relevant to the central issue in the present appeal, the principle of restraint enunciated in paras. (d) and (e) of s. 718.2, which provide as follows:
718.2 A court that imposes a sentence shall also take into consideration the following principles:
. . .
(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and
(e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.
The joint effect of these principles is that a sentencing judge must consider the possibility that a less restrictive sanction would attain the same sentencing objectives that a more restrictive sanction seeks to attain.
29 In this case, the sentencing objective in question is public protection: see for example Lyons, supra, at p. 329, and Hatchwell v. The Queen, [1976] 1 S.C.R. 39, in which Dickson J. (as he then was) wrote, at p. 43, that the dominant purpose of preventive detention is “to protect the public when the past conduct of the criminal demonstrates a propensity for crimes of violence against the person, and there is a real and present danger to life or limb”. Absent such a danger, there is no basis on which to sentence an offender otherwise than in accordance with the ordinary principles of sentencing. The principles of sentencing thus dictate that a judge ought to impose an indeterminate sentence only in those instances in which there does not exist less restrictive means by which to protect the public adequately from the threat of harm, i.e., where a definite sentence or long-term offender designation are insufficient. The essential question to be determined, then, is whether the sentencing sanctions available pursuant to the long-term offender provisions are sufficient to reduce this threat to an acceptable level, despite the fact that the statutory criteria in s. 753(1) have been met.
30 In order for the sentencing sanctions available pursuant to the long-term offender provisions to reduce the threat associated with an offender who satisfies the dangerous offender criteria to an acceptable level, it must be possible for the same offender to satisfy both the dangerous offender criteria and the long-term offender criteria. To repeat, the three criteria that must be established on a long-term offender application are: (i) it must be appropriate to impose a sentence of imprisonment of two or more years in respect of the predicate offence; (ii) there must be a substantial risk that the offender will reoffend; and (iii) there must be a reasonable possibility of eventual control of the risk in the community. On a dangerous offender application, the sentencing judge must be satisfied that the offender constitutes a threat to the life, safety or physical or mental well-being of other persons, on the basis of a pattern of repetitive or persistent aggressive behaviour, brutal behaviour, or sexual misconduct described in s. 753(1)(a) and (b).
31 Almost every offender who satisfies the dangerous offender criteria will satisfy the first two criteria in the long-term offender provisions. In virtually every instance in which an offender is declared dangerous, it would have been appropriate to impose a sentence of imprisonment of two or more years in respect of the predicate offence and there will be a substantial risk that the offender will reoffend. In a certain percentage of those cases there will also be a reasonable possibility of eventual control of the risk in the community. In those instances in which the offender currently constitutes a threat to the life, safety or physical or mental well-being of other persons yet there is a reasonable possibility of eventual control of the risk in the community, an offender will satisfy the criteria in both the dangerous offender and long-term offender provisions.
32 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. Under s. 753.1(3), long-term offenders are sentenced to a definite term of imprisonment followed by a long-term community supervision order of a maximum of ten years in accordance with the Corrections and Conditional Release Act. Supervision conditions under s. 134.1(2) of the Act may include those that are “reasonable and necessary in order to protect society”. 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 through 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.
33 The Crown refutes the conclusion that the long-term offender provisions must be considered before a dangerous offender designation is made with reference to R. v. Carleton (1981), 32 A.R. 181 (C.A.), affirmed by this Court in brief oral reasons, [1983] 2 S.C.R. 58. In that case, the Court of Appeal considered whether, prior to the 1997 amendments, prospects of cure or treatment ought to be considered on a dangerous offender application and, if so, at which stage. McGillivray C.J.A. for the majority, held that treatment prospects were irrelevant to the question of whether an offender is a dangerous offender, but that such prospects may be taken into account in determining whether to impose a determinate or indeterminate sentence. The Crown relies on Carleton in support of its proposition that it is improper to consider prospective factors, including the possibility of eventual control of the risk in the community, in determining whether an offender is a dangerous offender.
34 However, there is some question as to whether Carleton correctly determined that prospective factors were irrelevant at the designation stage. The Court of Appeal’s analysis was based on the assumption that once the statutory criteria were satisfied, the sentencing judge first had to consider whether to declare the offender dangerous, and then had to consider whether to impose an indeterminate sentence. But it is unclear that this two-step approach is the proper one. First, the purpose of the dangerous offender provisions is not to designate offenders as dangerous for the sake of designating offenders dangerous, but to protect the public. No sentencing objective is advanced by declaring an offender dangerous and then imposing a determinate sentence. Moreover, the two-stage approach is inconsistent with the French text, which provides that once the statutory criteria in s. 753 are satisfied, the court “peut déclarer qu’il s’agit là d’un délinquant dangereux et lui imposer, au lieu de toute autre peine qui pourrait être imposée pour l’infraction dont il vient d’être déclaré coupable, une peine de détention dans un pénitencier pour une période indéterminée”. This clearly suggests that Parliament intended that a sentencing judge would ask but one question: whether it would be appropriate, in the circumstances of the case, to declare the offender dangerous and thereby impose a period of indeterminate detention.
35 Carleton thus provides little support for the proposition that a sentencing judge cannot consider treatment prospects at the designation stage. After all, the Court of Appeal was unanimous in Carleton that treatment prospects must be considered at some point prior to imposing an indeterminate sentence. If the court had recognized that following a determination that the statutory criteria have been satisfied there is but one question to be asked — whether to declare the offender dangerous and thereupon impose an indeterminate period of detention — it is far from clear that it would subsequently have reached the same conclusion in respect of the relevance of treatment prospects in determining whether to designate an offender dangerous. On the one-stage approach that we have proposed, the Court of Appeal’s concurrent findings that the treatment prospects cannot be considered at the designation stage yet must be considered prior to imposing an indeterminate sentence are incompatible.
36 But even if Carleton correctly concluded that under the pre-1997 provisions, prospective factors, including the reasonable possibility of eventual control of the risk in the community, could not properly be considered at the stage of designating an offender dangerous, this is no longer the case under the amended provisions. Lyons held, at pp. 337-38, that a sentencing judge’s discretion not to impose an indeterminate sentence, even where all of the statutory criteria are met, helped ensure proportionality between the goal of protecting the public on the one hand and the serious effect of indeterminate detention on the accused on the other. Consequently, the discretion helped ensure the dangerous offender provisions’ constitutionality. In other words, as we state elsewhere in these reasons, the imposition of an indeterminate sentence is justifiable only insofar as it actually serves the objective of protecting society. Now that it is clear that a sentencing judge has but one discretion to exercise, prospective factors, including the possibility of eventual control of the risk in the community, must be considered at some point leading up to a dangerous offender designation. This is necessary to ensure that an indeterminate sentence is imposed only in those circumstances in which the objective of public protection truly requires indeterminate detention. Consequently, under this analysis, Carleton, which was decided prior to the 1997 amendments, has no bearing on the above analysis.
(3) Section 753(5)
37 The Crown submits that s. 753(5) precludes a sentencing judge from considering the long-term offender provisions until after he or she has already determined that the offender is not a dangerous offender. Section 753(5) provides as follows:
If the court does not find an offender to be a dangerous offender,
(a) the court may treat the application as an application to find the offender to be a long‑term offender, section 753.1 applies to the application and the court may either find that the offender is a long‑term offender or hold another hearing for that purpose; or
(b) the court may impose sentence for the offence for which the offender has been convicted.
38 It is our view that s. 753(5) has no such effect. The sole purpose of s. 753(5) is to ensure that the Crown need not bring one application for a declaration that an offender is a dangerous offender and then, should that first application fail, a separate application seeking a declaration that an offender is a long-term offender. Section 753(5) thus increases the efficiency of the court system and preserves judicial resources by providing for a substantial degree of procedural integration between the two designations. It does not, however, limit the scope of factors that a sentencing judge might properly take into account when determining whether or not to declare an offender dangerous.
39 Furthermore, s. 759(3)(a) provides that a court of appeal may allow an appeal against a finding that an offender is a dangerous offender and find that the offender is a long-term offender. If a court of appeal has the power to consider the possibility of a long-term offender designation on an appeal, a sentencing judge must have the same power on the initial application. This supports the conclusion that Parliament did not intend the dangerous offender provisions and the long-term offender provisions to be considered in isolation of one another. On a dangerous offender application, a sentencing judge may consider the possibility that a long-term offender designation is appropriate.
(4) Conclusion
40 For the above reasons, the British Columbia Court of Appeal was correct to conclude that a sentencing judge must take into account the long-term offender provisions prior to declaring an offender dangerous and imposing an indeterminate sentence. 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.
B. Predicate Offences Committed Prior to the 1997 Amendments
41 As a general matter, persons accused of criminal conduct are to be charged and sentenced under the criminal law provisions in place at the time that the offence allegedly was committed. The Charter aside, the four respondents convicted of offences committed prior to the 1997 amendments are properly sentenced under the former regime. However, s. 11(i) of the Charter provides that any person charged with an offence has the right “if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment”.
42 Under the former regime, a dangerous offender application results in one of two sentences: (i) a determinate sentence; or (ii) an indeterminate sentence. In those instances in which an offender would receive a determinate sentence, there is no lesser punishment that the offender might receive under the current regime. If the proper sentence under the former regime is a determinate sentence, the offender must receive a determinate sentence. But in each of the four cases where pre-1997 provisions were in issue, the sentencing judge concluded that the proper sentence was an indeterminate sentence. The question that this appeal raises is whether it is possible that an offender properly sentenced to an indeterminate period of detention under the prior regime would receive a lesser punishment under the current regime.
43 As the Crown correctly observes, the statutory criteria that must be satisfied under the former s. 753 are precisely the same as the statutory criteria that must be satisfied under the current s. 753(1). The logical inference is that each offender who satisfies the criteria set out in s. 753 must also satisfy the criteria set out in s. 753(1). But it does not thereby follow that every person declared a dangerous offender and sentenced to an indeterminate period of detention under the former regime would continue to be declared a dangerous offender and sentenced to an indeterminate period of detention under the current regime.
44 As we have discussed, a sentencing judge should declare the offender dangerous and 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. The introduction of the long-term offender provisions expands the range of sentencing options available to a sentencing judge who is satisfied that the dangerous offender criteria have been met. Under the current regime, a sentencing judge is no longer faced with the stark choice between an indeterminate sentence and a determinate sentence. Rather, a sentencing judge may consider the additional possibility that a determinate sentence followed by a period of supervision in the community might adequately protect the public. The result is that some offenders who may have been declared dangerous under the former provisions could benefit from the long-term offender designation available under the current provisions.
45 It thus follows that the Court of Appeal was correct to conclude that the sentencing judges were required to consider the applicability of the long-term offender provisions. If the respondent satisfies the long-term offender criteria and there is a reasonable possibility that the harm could be reduced to an acceptable level under the long-term offender provisions, the proper sentence, under the current regime, is not an indeterminate period of detention, but, rather, a determinate period of detention followed by a long-term supervision order. If this is the case, s. 11(i) of the Charter dictates that the respondent is entitled to be sentenced to a period of determinate detention followed by a long-term supervision order.
46 Importantly, this does not mean that the respondent will, in the end, be sentenced in accordance with the current regime. Under the prior regime, the first parole hearing took place three years after the offender was taken into custody. Under the current regime, an offender sentenced to an indeterminate term is not entitled to a first parole review until the expiration of seven years. If the sentencing judge is not satisfied that the long-term offender criteria have been met, or finds that a determinate sentence followed by a long-term supervision order would not reduce the threat of harm to an acceptable level, the respondent retain the benefit of the early parole hearing.
C. The Availability of a Curative Proviso
47 The final issue to be considered in this appeal is the Crown’s submission that the Court should reinstate each of the dangerous offender designations on the basis that the sentencing judges’ failure to consider the applicability of the long-term offender provisions resulted in no substantial wrong or miscarriage of justice.
48 Prior to the amendments, s. 759(3)(b) provided that a court of appeal could dismiss an appeal against a sentence of detention in a penitentiary for an indeterminate period. The section now provides that a court of appeal may dismiss an appeal against a finding that an offender is a dangerous offender. Neither provision specifies the criteria that a court of appeal must consider. The Crown submits that the power is analogous to that provided for in s. 686(1)(b)(iii), which empowers a court of appeal to dismiss an appeal against a conviction on the basis that the trial court’s error of law has resulted in no substantial wrong or miscarriage of justice.
49 It is a reasonable assumption, in our view, that Parliament would not have intended that any error of law in the course of a dangerous offender application would necessitate a new hearing. As Prowse J.A. correctly concluded in the companion case, R. v. Mitchell (2002), 161 C.C.C. (3d) 508, 2002 BCCA 48, at para. 63:
. . . it would defy common sense to presume that Parliament intended to preclude the court of appeal from dismissing an appeal where a sentencing judge makes a trivial or immaterial error in the course of dangerous or long-term offender proceedings. While the court of appeal is given the power to order a new hearing, it is not bound to do so simply because the appellant is able to point to an error on the part of the sentencing judge. Rather, the court must assess the nature and effect of the error to determine whether it justifies the substitution of a different sentence, a new hearing or a dismissal of the appeal.
But if a court of appeal has the power to dismiss an appeal against a declaration that an offender is dangerous on the basis that the error of law has resulted in no substantial wrong or miscarriage of justice, that power may be exercised in only the rarest of circumstances. In R. v. Bevan, [1993] 2 S.C.R. 599, at p. 617, the Court concluded that the curative proviso contained in s. 686(1)(b)(iii) is to be applied in only those circumstances in which there is no reasonable possibility that the verdict would have been any different had the error of law not been made. The same high standard applies in the context of s. 759(3)(b).
50 Where the error of law consists of the sentencing judge’s 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.
51 In the case presently before the Court, the record discloses insufficient evidence to conclude that there is no reasonable possibility that the respondent would have been declared a long-term offender if the sentencing judge had considered the long-term offender provisions when determining whether to declare him dangerous. In the absence of a full inquiry into the suitability of the long-term offender provisions, it would be improper to reinstate the sentencing judge’s finding that the respondent is properly classified as a dangerous offender.
V. Disposition
52 In the result, the appeal is dismissed. We confirm the Court of Appeal’s decision to order a new sentencing hearing in accordance with the foregoing principles.
Appeal dismissed.
Solicitor for the appellant: Ministry of Attorney General, Vancouver.
Solicitors for the respondent: Gil D. McKinnon and James I. S. Sutherland, Vancouver.
Solicitor for the intervener the Attorney General of Canada: Attorney General of Canada, Ottawa.
Solicitor for the intervener the Attorney General of Ontario: Attorney General of Ontario, Toronto.
Solicitor for the intervener the Attorney General of Alberta: Attorney General of Alberta, Calgary.