Court of Appeal of Quebec

Élizée c. R.

Savard, Marcotte, Gagné

Appeal from a judgment of the Superior Court dismissing an application for a reduction in the period of long-term supervision. Allowed.

The appellant was declared a long-term offender in 2007, after having been sentence to a total term of imprisonment of 5 years. The long-term supervision order (10 years) will end in April 2023. In 2018, he presented an application seeking a reduction in the period of long-term supervision. That application was dismissed by the Superior Court on the ground that the appellant had not met his burden of proving that he no longer presented a substantial risk of reoffending.

The criterion applicable to an application seeking to reduce or terminate the period of long-term supervision, which is set out in s. 753.2(3) of the Criminal Code (R.S.C. 1985, c. C-46), is that of a substantial risk of reoffending violently. The offender must prove that he no longer presents a substantial risk of committing a serious personal injury offence or an offence referred to in s. 753.1(2)(a) Cr.C. He does not need to convince the court that he no longer presents a substantial risk of reoffending in general. The purpose of s. 753.2(3) Cr.C. is to ensure that the surveillance period does not exceed the time necessary to prevent the risk of reoffending and to ensure the protection of the public. The decreased risk may result from progress made by the offender and the positive evolution of his situation since the long-term supervision order was rendered.

The trial judge did not apply the right criterion in her analysis and she erred in refusing to nuance the PCL-R and VRAG test results.  Although the judge was not bound by the experts’ assessments of the risk of reoffending, it was not open to her to substitute her own weighing of the test results for theirs, without further support in the evidence. The judge also committed a reviewable error in inferring from the report of one of the experts that he was not recommending the termination of the long-term supervision without any follow-up, when he had not expressed any opinion on this subject. She did not explain why she rejected the experts’ assessments of the risk of reoffending, which shows that she misinterpreted the expert evidence “in a way that affected [her] conclusion” (Housen v. Nikolaisen (S.C. Can., 2002-03-28), 2002 SCC 33, SOQUIJ AZ-50118043, J.E. 2002-617, [2002] 2 S.C.R. 235 at paras. 39 and 72, citing Van de Perre v. Edwards (S.C. Can., 2001-09-28), 2001 SCC 60, SOQUIJ AZ-50100984, J.E. 2001-1799, [2001] 2 S.C.R. 1014 at para. 15).

Last, the judge gave undue weight to the Parole Board of Canada’s decision that the appellant still presented a substantial risk of violence. That decision was rendered on the basis of a psychological assessment report that was over 10 years old and did not consider the appellant’s progress. With respect to the decision to be made, s. 759(3)(a) Cr.C. allows the court of appeal to render the order that should have been rendered or order a new hearing. In this case, the evidence as a whole supports the conclusion that the appellant no longer presents a substantial risk of reoffending violently and therefore is no longer a danger to the community. The long-term supervision should be terminated.

Legislation interpreted: s. 753.2 (3) Cr.C.

Text of the decision: http://citoyens.soquij.qc.ca

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