Gagné, Cotnam, Cournoyer

Appeal from a judgment of the Court of Québec designating the appellant a dangerous offender and imposing an indeterminate sentence. Allowed.

In 2013, the appellant was sentence to 5 years of imprisonment for aggravated assault and designated a “dangerous offender”. A long-term surveillance order was also imposed for an additional 5 years. After the surveillance order had begun, the appellant was arrested and subsequently pleaded guilty to a series of offences, including some that are subject to the dangerous offender provisions of the Criminal Code (R.S.C. 1985, c. C-46). When sentencing these offences, the trial judge held that there was no reasonable possibility that the appellant’s risk of recidivism could be controlled in the community, which led to the order for an indeterminate sentence of imprisonment that is the subject of this appeal.

To reach her conclusion, the judge heavily relied on hearsay evidence, that is the contents of a correctional services assessment report adduced into evidence after the reopening of the case. The documentation from that report must be handled with the same caution as that recommended , in R. v. Williams (ONCA 2018-05-10), 2018 ONCA 437, SOQUIJ AZ-51493134, about police synopses. Since the appellant disputed the aggravating factors contained in that report and the opinion expressed therein, it was incumbent upon the prosecution to establish their existence beyond a reasonable doubt. Yet, beyond filing its motion, the report and a perfunctory submission, the prosecution did not attempt to do so and, further, appeared oblivious to the need to meet the stringent burden of proof. The judgment under appeal contains no specific findings on the disputed aggravating factors.  F Flexibility in relation to the admissibility of evidence at sentencing should not be construed as somehow lessening the prosecution’s burden: all aggravating factors must be proven beyond a reasonable doubt. Further, the judge should have made specific findings on the evidence that indicated progress by the appellant, an offender suffering from mental health issues which drove him to a suicide attempt during his incarceration and multiple episodes of self-mutilation. In such a context, the judgment cannot be upheld. A new hearing must be ordered. This is the only fair resolution for the appellant and the prosecution.

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