R. v. Bedard (E.), (2009) 254 O.A.C. 314 (CA)

• Judge: Laskin, Blair and Watt, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: March 02, 2009
• Jurisdiction: Ontario
• Citations: (2009), 254 O.A.C. 314 (CA);2009 ONCA 678

R. v. Bedard (E.) (2009), 254 O.A.C. 314 (CA)

MLB headnote and full text

Temp. Cite: [2009] O.A.C. TBEd. SE.049

Her Majesty the Queen (respondent) v. Emmanuel Bedard (appellant)

(C44846; 2009 ONCA 678)

Indexed As: R. v. Bedard (E.)

Ontario Court of Appeal

Laskin, Blair and Watt, JJ.A.

September 24, 2009.

Summary:

The accused was subject to a custodial disposition (i.e., not criminally responsible on account of a mental disorder) and was being held in a psychiatric facility under the authority of the Ontario Review Board. He was convicted of assault causing bodily harm involving another patient and sentenced to 12 months in a provincial reformatory, thus making him a dual status offender. While in provincial reformatory he was involved in the killing of an inmate and convicted of manslaughter. The Crown applied to have the accused declared a dangerous offender. The sentencing judge granted the application. The accused appealed, arguing that the sentencing judge erred in failing to take into account the Ontario Review Board's authority over the accused as a mental disorder detainee in deciding whether to exercise his residual discretion to decline the dangerous offender application, despite satisfaction of the statutory requirements of the Criminal Code.

The Ontario Court of Appeal dismissed the appeal.

Criminal Law - Topic 5035

Appeals - Indictable offences - Dismissal of appeal if no prejudice, substantial wrong or miscarriage results - General - The Ontario Court of Appeal held that the curative proviso in s. 686(1)(b)(iii) applied to an appeal from a sentence of detention in a penitentiary for an indeterminate period (i.e., an appeal could be dismissed under s. 759(3)(b) of the Criminal Code if an error in law had caused the appellant no substantial wrong or miscarriage of justice) - The court stated that "As in other instances, the application of the curative proviso is limited to those circumstances in which there is no reasonable possibility that the verdict would have been any different had the error in law not been made ... A failure to consider the availability of the long-term offender provisions, for example, would only rarely be forgiven by the application of the proviso ..." - See paragraphs 102 to 104.

Criminal Law - Topic 6502

Dangerous or long-term offenders - Detention - Considerations and conditions precedent - Dual status offenders - The Ontario Court of Appeal reviewed the principles governing dual status offenders - The court stated that "Section 672.67 establishes the order of precedence between sentences of imprisonment under Part XXIII [sentencing] and custodial dispositions under Part XX.I [mental disorders] in the case of dual status offenders. The order prevails pending any placement decision of the Review Board under s. 672.68 of the Criminal Code" - The court then examined whether a custodial sentence or the supervisory authority exercised by a Review Board had any influence on the residual discretion provided to sentencing judges under part XXIV (dangerous offender provisions) to decline to declare an accused to be a dangerous offender despite satisfaction of the essential criteria - See paragraphs 100 and 115.

Criminal Law - Topic 6502

Dangerous or long-term offenders - Detention - Considerations and conditions precedent - Dual status offenders - The accused was subject to a custodial disposition (i.e., not criminally responsible on account of a mental disorder) and was being held in a psychiatric facility under the authority of the Ontario Review Board - He was convicted of assault causing bodily harm involving another patient and sentenced to 12 months in a provincial reformatory, thus making him a dual status offender - While in provincial reformatory he was involved in the killing of an inmate and convicted of manslaughter - The Crown applied to have the accused declared a dangerous offender - The sentencing judge granted the application - The accused appealed, arguing that the sentencing judge erred in failing to take into account the Ontario Review Board's authority over the accused as a mental disorder detainee in deciding whether to exercise his residual discretion to decline the dangerous offender application, despite satisfaction of the statutory requirements of the Criminal Code - The Ontario Court of Appeal dismissed the appeal - The court discussed whether the custodial disposition had any effect on the residual discretion of a sentencing judge in the dangerous offender context - However, the court did not have to come to a firm conclusion on this issue, because in this case, the there was no reasonable possibility that the conclusion reached would have been any different had the scheme of Part XX.1 (Mental disorders) been taken into account - See paragraphs 79 to 116.

Criminal Law - Topic 6503

Dangerous or long-term offenders - Detention - Dangerous offender - Defined - The accused was subject to a custodial disposition (i.e., not criminally responsible on account of a mental disorder) and was being held in a psychiatric facility under the authority of the Ontario Review Board - He was convicted of assault causing bodily harm involving another patient and sentenced to 12 months in a provincial reformatory, thus making him a dual status offender - While in provincial reformatory he was involved in the killing of an inmate and convicted of manslaughter - The Crown applied to have the accused declared a dangerous offender - The sentencing judge granted the application and sentenced him to penitentiary for an indeterminate period - The accused appealed - The Ontario Court of Appeal dismissed the appeal - The court stated that "The appellant is a very dangerous man. Violent. A recidivist. Violent recidivism next best to a sure thing. A severe antisocial personality disorder. No known treatment. No known cure. Requires a highly-structured setting and, even there, as the history plainly establishes, an unremitting management problem and repeated acts of violence. The designation 'dangerous offender' fits, unfortunately all too well" - See paragraphs 1 to 117.

Criminal Law - Topic 6506

Dangerous or long-term offenders - Detention - Application - Notice - The Ontario Court of Appeal reviewed the notice and consent (i.e., the Attorney General's consent) requirements for dangerous offender applications under the Criminal Code - The court stated that "The effect of s. 754(1) of the Criminal Code is to make the consent of the Attorney General and notice to the prospective dangerous offender conditions precedent to the hearing of a dangerous offender application ... Compliance with these statutory requirements is vital to the validity of the dangerous offender hearing. The consent of the Attorney General may be given either before or after the application to have the convicted person declared a dangerous offender, but, as s. 754(1) makes clear, the consent must precede the actual hearing. A hearing is a proceeding of some degree of formality with defined issues of fact or law to be tried and determined. It may, but does not always involve testimony or other forms of evidence from witnesses or others with knowledge of relevant matters, submissions from the parties and a decision or determination by the decision-maker. Discrete phases or aspects of a hearing often have specific and different rules governing conduct of them, but a hearing has a beginning and it has an end. And words like 'no such application shall be heard', in reference to a requirement that certain things be done, are likely to refer to the beginning of a hearing, not some intermediate or final stage or step in the hearing process" - See paragraphs 51 to 62.

Criminal Law - Topic 6506

Dangerous or long-term offenders - Detention - Application - Notice - Immediately after the accused was convicted of manslaughter in 2002, the prosecutor orally indicated his intention to have the accused declared a dangerous offender under the Criminal Code - On June 13, 2002, the prosecutor filed a notice of application for an assessment - On June 26, 2002, the Director of Crown Operations signed a consent "on behalf of the Attorney General" - The dangerous offender hearing began in May, 2003 - After the prosecutor concluded his case, the accused raised issues as to notice and consent - On January 13, 2005, the Attorney General signed a consent to dangerous offender "proceedings being instituted" - Thereafter, the sentencing judge concluded that the procedural requirements were met - The accused appealed - The Ontario Court of Appeal dismissed the appeal - As to notice, the accused was first orally notified in open court of the prosecutor's intention to have him declared a dangerous offender, which notice was confirmed by in the June 13, 2002, notice of application for an assessment, which included a description of the basis upon which a dangerous offender finding would be sought - As to the consent issue, the consent signed by the Director of Crown operations on June 26, 2002, although not well worded, provided the requisite consent (i.e., consent prior to the formal hearing of the application) - The court opined that the 2005 consent by the Attorney General was superfluous as it was not given prior to the hearing as required by the Criminal Code - See paragraphs 63 to 78.

Criminal Law - Topic 6506.1

Dangerous or long-term offenders - Detention - Application - Consent of Attorney General - [See both Criminal Law - Topic 6506 ].

Criminal Law - Topic 6510

Dangerous or long-term offenders - Detention - Powers of judge (incl. residual discretion) - The Ontario Court of Appeal reviewed the principles governing the exercise of the statutory discretion by a sentencing judge under Part XXIV of the Criminal Code, to decline to grant a designated offender designation where all the prerequisites to such a designation were satisfied - See paragraphs 90 to 96.

Criminal Law - Topic 6510

Dangerous or long-term offenders - Detention - Powers of judge (incl. residual discretion) - [See both Criminal Law - Topic 6502 ].

Criminal Law - Topic 6517

Dangerous or long-term offenders - Detention - General - Appeals - Dismissal of - Where no miscarriage of justice - [See Criminal Law - Topic 5035 ].

Cases Noticed:

R. v. Johnson (J.J.), [2003] 2 S.C.R. 357; 308 N.R. 333; 186 B.C.A.C. 161; 306 W.A.C. 161, refd to. [para. 31].

R. v. Currie (1984), 2 O.A.C. 78; 12 C.C.C.(3d) 28 (C.A.), refd to. [para. 58].

R. v. Corbiere (H.E.) (1995), 80 O.A.C. 222 (C.A.), refd to. [para. 59].

R. v. Pike, [2002] N.J. No. 193 (N.L.C.A.), refd to. [para. 60].

R. v. Hatchwell, [1976] 1 S.C.R. 39; 3 N.R. 571, refd to. [para. 95].

Winko v. Forensic Psychiatric Institute (B.C.) et al., [1999] 2 S.C.R. 625; 241 N.R. 1; 124 B.C.A.C. 1; 203 W.A.C. 1, refd to. [para. 98].

Penetanguishene Mental Health Centre et al. v. Ontario (Attorney General) et al., [2004] 1 S.C.R. 498; 318 N.R. 73; 185 O.A.C. 201, refd to. [para. 99].

R. v. Mitchell (S.K.) (2002), 162 B.C.A.C. 247; 264 W.A.C. 247; 161 C.C.C.(3d) 508 (C.A.), refd to. [para. 103].

R. v. Bevan and Griffith, [1993] 2 S.C.R. 599; 154 N.R. 245; 64 O.A.C. 165, refd to. [para. 104].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 672.67 [para. 101]; sect. 686(1)(b)(iii) [para. 103]; sect. 753(1) [para. 90]; sect. 754(1) [para. 54]; sect. 759.3(b) [para. 102].

Counsel:

Dirk Derstine and Mariya Yakusheva, for the appellant;

James K. Stewart, for the respondent.

This appeal was heard on March 2, 2009, before Laskin, Blair and Watt, JJ.A., of the Ontario Court of Appeal. Watt, J.A., delivered the following decision for the Court of Appeal on September 24, 2009.