Appeal court assesses dangerous offender designation

Law360 Canada (August 6, 2024, 12:59 PM EDT) --

John L. Hill

An accused person referred to as A.M. had no prior criminal record until he violently assaulted two different women on three separate occasions with escalating violence and brutality. He was convicted of two sexual assaults, two common assaults, assault with a weapon, breaking and entering a dwelling house, intent to overcome resistance by choking, sexual assault causing bodily harm, uttering a threat, assault on a peace officer and possession of cannabis for the purpose of trafficking.

The Crown successfully had A.M. designated as a dangerous offender and imposed an indeterminate sentence (R. v. A.M., 2019 ONSC 5065). A.M. appealed both the designation and the indeterminate sentence. The Ontario Court of Appeal gave reasons to uphold the sentence on July 25, 2024, (R. v. A.M., 2024 ONCA 587).

The Court of Appeal noted different routes a trial judge can take to designate a guilty party as a “dangerous offender” (R. v. Francis, 2023 ONCA 760). Each of the four routes shares common elements: (a) the index offence involves serious personal injury, (b) there is a broader pattern of violence of which the index offence forms a part, (c) the behaviour is intractable and (d) there is a likelihood of harmful recidivism (R. v. Hason, 2024 ONCA 369; R. v. Lyons, [1987] 2 S.C.R. 309; R. v. Boutilier, 2017 SCC 64).

Once these threshold tests are met and a designation is made, a sentencing judge must decide on the least restrictive means to reduce the public threat to an acceptable level (R. v. Johnson, 2003 SCC 46). Boutilier pointed out that imposing an indeterminate sentence when there are less restrictive alternatives “would overshoot the public protection purpose of the dangerous offender regime.”

It was conceded that A.M.’s behaviour involved a serious personal injury offence that endangered the physical or mental well-being of others. The defence maintained there was no pattern of violence. The appeal court held otherwise. It noted that a pattern could be established by as few as two similar incidents (R. v. Gibson, 2011 ONCA 530; R. v. Hogg, 2011 ONCA 840; R. v. Byers, 2017 ONCA 639). Here, there are similarities. In each of the assaults on the women, he forced them to perform fellatio and choked the victims. The incident recorded on his cellphone camera in subsequent attacks was an escalation. He punched a police officer when placed under arrest and was involved in assaulting another inmate while being held in custody. These demonstrate that A.M. exhibited a pattern of repetitive behaviour, brutality and a failure to control his sexual impulses.

The appeal court concluded, “There was ample evidence to support the sentencing judge’s conclusion that the appellant’s behaviour demonstrates a failure to restrain his conduct and is intractable.”

In determining if the appellant was likely to reoffend, the court looked to the evidence provided by Dr. Philip Klassen. Even though A.M. was not co-operative during his interview with the psychiatrist, Klassen was able to diagnose A.M. as having a paraphiliac disorder, likely sexual sadism. Sexual sadism is a chronic paraphilia that will typically escalate. A.M. was 28 years old when convicted. The psychiatrist estimated there was a 50 per cent chance he would reoffend and that he would need “external controls” until he was at least 50 years old. The sentencing judge relied on A.M.’s testimony, where he denied any sexual deviance. He told Klassen he would engage in rehabilitative therapy only if his appeal failed. He did not feel he needed treatment.

This justified the trial judge’s finding that “without some insight into his paraphilia and without a meaningful commitment to change his conduct in the future through participation in treatment programs. There is no hope that [his] conduct will change in future.” The trial judge was correct in finding that A.M. “is highly likely to reoffend.”

With this finding, the defence position that an indeterminate sentence is contrary to the principles of restraint and proportionality is impossible to accept.

In reaching this decision, the Ontario Court of Appeal set forth a road map for determining what is reasonable in dangerous offender applications, especially in cases where there is no previous record to consider. It certainly does not close all doors for future rehabilitation. Quite the opposite; it reinforces offenders’ incentive to participate in treatment to convince a parole board that they will be a manageable risk if released.

John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and an LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books) and The Rest of the (True Crime) Story (AOS Publishing). Contact him at johnlornehill@hotmail.com.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, Law360 Canada, LexisNexis Canada or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.   

Interested in writing for us? To learn more about how you can add your voice to Law360 Canada, contact Analysis Editor Peter Carter at peter.carter@lexisnexis.ca or call 647-776-6740.