R. v. D.V.B., 2010 ONCA 291

• Jurisdiction: Ontario
• Judge: Moldaver, Cronk and Armstrong, JJ.A.
• Neutral Citation: 2010 ONCA 291
• Citation: 2010 ONCA 291,(2010), 260 O.A.C. 329 (CA),100 OR (3d) 736,254 CCC (3d) 221,[2010] OJ No 1577 (QL),260 OAC 329,[2010] O.J. No 1577 (QL),260 O.A.C. 329,100 O.R. (3d) 736,(2010), 260 OAC 329 (CA)
• Date: 17 February 2010
• Court: Court of Appeal (Ontario)

R. v. D.V.B. (2010), 260 O.A.C. 329 (CA)

MLB headnote and full text

Temp. Cite: [2010] O.A.C. TBEd. AP.063

Her Majesty the Queen (respondent) v. D.V.B. (appellant)

(C37727; 2010 ONCA 291)

Indexed As: R. v. D.V.B.

Ontario Court of Appeal

Moldaver, Cronk and Armstrong, JJ.A.

April 20, 2010.

Summary:

In 1999, the appellant pled guilty to one count of sexual assault and one count of breach of probation. The Crown applied under s. 753 of the Criminal Code to have the appellant declared a dangerous offender. The sentencing judge found the appellant to be a dangerous offender and sentenced him to an indeterminate period of detention in a penitentiary. More than 10 years later, the appellant appealed from that decision. The appellant submitted that he should not have been declared a dangerous offender and he sought to be re-designated as a long-term offender. The grounds of appeal were: (1) the sentencing judge erred in holding that the requirements of s. 753.1(1)(c) of the Criminal Code would only be met if he were satisfied that it was reasonably possible to control the risk posed by the appellant within the duration of a long-term offender sentence, such that upon its completion, the appellant would pose an acceptable level of risk in the community; (2) in imposing an indeterminate sentence of imprisonment, the sentencing judge failed to give adequate weight to the principle of proportionality; and (3) the dangerous offender finding should be set aside as unreasonable.

The Ontario Court of Appeal dismissed the appeal.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Criminal Law - Topic 6502

Dangerous or long-term offenders - Detention - General - Considerations and conditions precedent - [See Criminal Law - Topic 6508.1 ].

Criminal Law - Topic 6503

Dangerous or long-term offenders - Detention - General - Dangerous offender - Defined - [See Criminal Law - Topic 6508.1 ].

Criminal Law - Topic 6503.1

Dangerous or long-term offenders - Detention - General - Long-term offender - Defined - [See Criminal Law - Topic 6508.1 ].

Criminal Law - Topic 6508.1

Dangerous or long-term offenders - Detention - General - Long-term offender - Legislation - Interpretation and application - In 1999, the appellant pled guilty to sexual assault and breach of probation - The sentencing judge found the appellant to be a dangerous offender and imposed an indeterminate sentence - More than 10 years later, the appellant appealed from that decision - The appellant submitted that he should not have been declared a dangerous offender and he sought to be re-designated as a long-term offender - The appellant argued that the sentencing judge erred in holding that the requirements of s. 753.1(1)(c) of the Criminal Code would only be met if he were satisfied that it was reasonably possible to control the risk posed by the appellant within the duration of a long-term offender sentence, such that upon its completion, the appellant would pose an acceptable level of risk in the community - According to the appellant, to meet the requirements of s. 753.1(1)(c), there need only be a reasonable possibility that the risk he posed would be controlled during the currency of the long-term sentence - If the risk of reoffending thereafter were to revert back to a substantial risk, s. 810.2 of the Code (recognizance where fear of serious personal injury offence) was the mechanism chosen by Parliament to address the problem - The Ontario Court of Appeal dismissed this ground of appeal - The court rejected the appellant's interpretation of s. 753.1(1)(c) - It also referred to the limited role that s. 810.2 of the Code was meant to play in dangerous offender/long-term offender proceedings - See paragraphs 40 to 64.

Criminal Law - Topic 6558

Dangerous or long-term offenders - Detention - Protection of the public - Dangerous sexual offender - [See Criminal Law - Topic 6574 ].

Criminal Law - Topic 6560

Dangerous or long-term offenders - Detention - Protection of the public - Personal injury offences - [See Criminal Law - Topic 6574 ].

Criminal Law - Topic 6574

Dangerous or long-term offenders - Detention - Sentencing - Considerations - In 1999, the appellant pled guilty to sexual assault involving a four year old girl and breach of probation - He had prior convictions for sexual assault and indecent assault, also involving children - The Crown applied to have the appellant declared a dangerous offender - The sentencing judge found the appellant to be a dangerous offender and imposed an indeterminate sentence - More than 10 years later, the appellant appealed from that decision - The appellant argued that the sentencing judge failed to give sufficient weight to the principle of proportionality and that if he had done so he would have sentenced the appellant as a long-term offender - The appellant argued that an indeterminate sentence was manifestly excessive and disproportionate to the nature and seriousness of his crimes and his degree of moral culpability - He submitted, inter alia, that his crimes had been restricted to touching and fondling and that as a pedophile he was unable, through no fault of his own, to control his sexual urges toward children - The Ontario Court of Appeal dismissed this ground of appeal - The sentencing judge did not mischaracterize the nature and seriousness of the predicate offence or the appellant's degree of moral blameworthiness - Parliament had defined the term "serious personal injury offence" as including the offence of sexual assault - It did not draw a distinction between forced intercourse at knife point and mere fondling or touching - Every sexual assault was to be treated as serious and doubly so where the victims were helpless children - As for the appellant's degree of moral blameworthiness, the court did not see the characteristics that made the appellant "less blameworthy" as having much impact on the dangerous offender application - The focus of such an application was on future dangerousness and the protection of society - See paragraphs 65 to 82.

Criminal Law - Topic 6576

Dangerous or long-term offenders - Detention - Sentencing - Indeterminate vs. determinate sentence - [See Criminal Law - Topic 6574 ].

Criminal Law - Topic 6781

Recognizances and undertakings - Preventative recognizances where fear of sexual, serious personal injury or criminal organization offences - General - [See Criminal Law - Topic 6508.1 ].

Cases Noticed:

R. v. Goodwin (J.V.) (2002), 173 B.C.A.C. 35; 283 W.A.C. 35; 168 C.C.C.(3d) 14; 2002 BCCA 513, consd. [para. 41].

R. v. Little (G.) (2007), 226 O.A.C. 148; 225 C.C.C.(3d) 20 (C.A.), refd to. [para. 58].

R. v. T.R.S. (2009), 274 B.C.A.C. 178; 463 W.A.C. 178; 2009 BCCA 345, consd. [para. 61].

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. 65].

R. v. Currie (R.O.R.), [1997] 2 S.C.R. 260; 211 N.R. 321; 100 O.A.C. 161, refd to. [para. 79].

R. v. Lévesque (R.), [2000] 2 S.C.R. 487; 260 N.R. 165; 148 C.C.C.(3d) 193; 2000 SCC 47, refd to. [para. 97].

R. v. Palmer, [1980] 1 S.C.R. 759; 30 N.R. 181; 50 C.C.C.(2d) 193, refd to. [para. 97].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 753.1(1), sect. 810.2, sect. 811 [para. 9].

Counsel:

John Norris and Brydie Bethell, for the appellant;

Shelley Hallett, for the respondent.

This appeal was heard on February 17, 2010, before Moldaver, Cronk and Armstrong, JJ.A., of the Ontario Court of Appeal. The following judgment of the Court of Appeal was delivered by Moldaver, J.A., and was released on April 20, 2010.