R. v. Boutilier (J.H.), (1995) 144 N.S.R.(2d) 293 (CA)

• Judge: Chipman, Pugsley and Flinn, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: September 05, 1995
• Jurisdiction: Nova Scotia
• Citations: (1995), 144 N.S.R.(2d) 293 (CA)

R. v. Boutilier (J.H.) (1995), 144 N.S.R.(2d) 293 (CA);

  416 A.P.R. 293

MLB headnote and full text

Joseph Harold Boutilier (appellant) v. Her Majesty The Queen (respondent)

(C.A.C. No. 104252)

Indexed As: R. v. Boutilier (J.H.)

Nova Scotia Court of Appeal

Chipman, Pugsley and Flinn, JJ.A.

September 5, 1995.

Summary:

The 32 year old accused, a heterosexual paedophile, pleaded guilty to sexually as­saulting an 11 year old girl. Before sentenc­ing, the Crown applied to have the accused declared a dangerous offender under s. 753(b) of the Criminal Code.

The Nova Scotia Provincial Court, in a judgment not reported in this series of reports, found the accused to be a dangerous offender and sentenced him to an indetermi­nate period of detention. The accused appealed both the finding that he was a dangerous offender and the indeterminate sentence.

The Nova Scotia Court of Appeal dis­missed the appeal.

Criminal Law - Topic 6503

Dangerous offenders - Detention - Dan­gerous offender defined - The 32 year old accused paedophile pleaded guilty to sex­ually assaulting an 11 year old girl - Previous convictions for making indecent, sexually explicit phone calls to girls aged four to 12 - The accused's diary (1981-1991) referred to his sexual conquests, conduct and fantasies, his alcohol and drug abuse, his admitted paedophilia and his inability to control his sexual impulses - Diagnosed with narcissistic personality disorder - Psychiatrists opined that he could not control his sexual impulses and was a high risk to commit further sexual offences - The Nova Scotia Court of Appeal held that the trial judge did not err in finding the accused to be a dangerous offender under s. 753(b) of the Criminal Code - The accused failed to control his sexual impulses and was likely to cause injury, pain or other evil to other persons through his failure in the future to control his sexual impulses - See paragraphs 9 to 108.

Criminal Law - Topic 6512

Dangerous offenders - Detention - Evi­dence - Section 755(1) of the Criminal Code permitted admission of "relevant" evidence on a dangerous offender applica­tion - Section 757 provided that "evidence of character and repute may, if the court thinks fit, be admitted on the question whether the offender is or is not a danger­ous offender" - The Nova Scotia Court of Appeal discussed the nature of evidence which was admissible on a dangerous offender application - Evidence of conduct which did not result in a conviction could be admitted - The court admitted evidence which was relevant but prejudicial, where its relevance far outweighed any prejudi­cial effect - See paragraphs 94 to 106.

Criminal Law - Topic 6516

Dangerous offenders - Detention - Appeals - Scope of - The accused appealed a finding that he was a dangerous offender and the indeterminate sentence imposed - The Nova Scotia Court of Appeal stated that s. 759 of the Criminal Code gave the accused an appeal as of right from the indeterminate detention - There was no express right to appeal the dangerous offender finding, nor any power to quash that finding - However, the court stated that since an indeterminate sentence was inextricably bound up with the dan­gerous offender finding, the court had to review the dangerous offender finding to adequately review the sentence - The court stated that "if that review determines that the finding of dangerous offender is not justified, this court can quash the sentence of indeterminate detention and impose a sentence for the predicate offence, or order a new hearing" - See paragraphs 4 to 8.

Criminal Law - Topic 6558

Dangerous offenders - Detention - Pro­tec­tion of the public - Dangerous sexual offender - [See Criminal Law - Topic 6575 ].

Criminal Law - Topic 6575

Dangerous offenders - Detention - Sen­tencing - Sentence - Indeterminate deten­tion - The accused paedophile pleaded guilty to sexually assaulting an 11 year old girl, was found to be a dangerous offender and was sentenced to indeterminate deten­tion - The trial judge was not satisfied that the accused would submit to treatment or, if he did, that it would be successful - The Nova Scotia Court of Appeal held that the trial judge did not err in imposing a period of indeterminate detention - There was ample evidence to support the conclusion that there was no probability of a cure within a determinate time and that the accused was a threat to society - See paragraphs 109 to 138.

Practice - Topic 9031

Appeals - Evidence on appeal - Admis­sion of "new evidence" - An accused found to be a dangerous offender appealed his indeterminate detention - He applied to adduce fresh evidence on appeal to show recent changes and that he was a good candidate for rehabilitation - The evidence was in the form of an affidavit from a person stated to have attended Narcotics Anonymous with the accused - The affi­davit merely recited what the accused told the deponent about arranged psychological services and his full-time employment - The Nova Scotia Court of Appeal declined to admit the new evidence - The deponent was not available for cross-examination, so the credibility of the evidence could not be tested - The evidence could have been given by the accused directly (accused did not testify at the hearing) - Finally, the evidence would not have affected the result - See paragraphs 111 to 119.

Cases Noticed:

R. v. Langevin (1984), 3 O.A.C. 110; 11 C.C.C.(3d) 336 (C.A.), refd to. [para. 7].

R. v. Lyons (1985), 65 N.S.R.(2d) 29; 147 A.P.R. 29; 15 C.C.C.(3d) 129 (C.A.), refd to. [para. 7].

R. v. Jackson (1981), 46 N.S.R.(2d) 92; 89 A.P.R. 92; 61 C.C.C.(2d) 540 (C.A.), refd to. [para. 69].

R. v. Moore (1985), 7 O.A.C. 33; 16 C.C.C.(3d) 328 (C.A.), refd to. [para. 74].

R. v. Carleton (1981), 32 A.R. 181; 69 C.C.C.(2d) 1 (C.A.), refd to. [para. 74].

R. v. Sullivan (1988), 20 O.A.C. 323; 37 C.C.C.(3d) 143 (C.A.), refd to. [para. 80].

R. v. Lavallee, [1990] 1 S.C.R. 852; 108 N.R. 321; 67 Man.R.(2d) 1; 55 C.C.C.(3d) 97; 76 C.R.(3d) 329; [1990] 4 W.W.R. 1, refd to. [para. 83].

Wilband v. R. (1967), 2 C.C.C. 6 (S.C.C.), refd to. [para. 83].

R. v. Lyons, [1987] 2 S.C.R. 309; 80 N.R. 161; 82 N.S.R.(2d) 271; 207 A.P.R. 271; 37 C.C.C.(3d) 1, refd to. [para. 90].

R. v. MacInnis (J.R.) (1981), 49 N.S.R.(2d) 393; 96 A.P.R. 393 (C.A.), refd to. [para. 98]

R. v. Lewis (1984), 4 O.A.C. 98; 12 C.C.C.(3d) 353 (C.A.), refd to. [para. 100].

R. v. Palmer, [1980] 1 S.C.R. 759; 30 N.R. 181; 14 C.R.(3d) 22 (Eng.); 17 C.R.(3d) 34 (Fr.); 50 C.C.C.(2d) 193, refd to. [para. 116].

R. v. Noyes (1991), 1 B.C.A.C. 81; 1 W.A.C. 81 (C.A.), refd to. [para. 123].

R. v. Stockwood (1990), 83 Nfld. & P.E.I.R. 91; 260 A.P.R. 91 (Nfld. T.D.), refd to. [para. 125].

R. v. Poutsoungas (1989), 49 C.C.C.(3d) 368 (Ont. C.A.), refd to. [para. 132].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 372(2) [para. 21]; sect. 753(b) [para. 67]; sect. 755(1) [para. 96]; sect. 757 [para. 97]; sect. 759(1) [para. 4].

Counsel:

Peter D. Crowther, for the appellant;

Denise C. Smith, for the respondent.

This appeal was heard on May 23, 1995, before Chipman, Pugsley and Flinn, JJ.A., of the Nova Scotia Court of Appeal.

On September 5, 1995, Flinn, J.A., delivered the following judgment for the Court of Appeal.