R. v. Dillon (D.), (2014) 442 Sask.R. 185 (CA)

• Judge: Lane, Herauf and Whitmore, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: June 27, 2014
• Jurisdiction: Saskatchewan
• Citations: (2014), 442 Sask.R. 185 (CA);2014 SKCA 83

R. v. Dillon (D.) (2014), 442 Sask.R. 185 (CA);

    616 W.A.C. 185

MLB headnote and full text

Temp. Cite: [2014] Sask.R. TBEd. SE.012

Dwight Dayton Dillon (appellant) v. Her Majesty the Queen (respondent)

(CACR1978; 2014 SKCA 83)

Indexed As: R. v. Dillon (D.)

Saskatchewan Court of Appeal

Lane, Herauf and Whitmore, JJ.A.

August 26, 2014.

Summary:

The accused was charged with sexual assault. The Crown applied under Part XXIV of the Criminal Code for an order designating the accused to be a dangerous offender.

The Saskatchewan Provincial Court, in a decision reported at [2011] Sask.R. Uned. 206, designated the accused a dangerous offender and sentenced him to an indeterminate sentence. The accused appealed.

The Saskatchewan Court of Appeal dismissed the appeal.

Criminal Law - Topic 5846.1

Sentencing - Considerations - Aboriginal offenders - [See second Criminal Law - Topic 6502 ].

Criminal Law - Topic 6502

Dangerous or long-term offenders - Detention - General - Considerations and conditions precedent - The accused was charged with sexual assault of his female co-worker - 41 year old male aboriginal - Suffered from some mental disorder - Definitely cognitively impaired - Long-standing alcohol abuse problem - Had a history of committing violent acts and acts of a sexual nature (26 to 34 offences starting when he was eight years old) - A Provincial Court judge designated the accused a dangerous offender under Part XXIV of the Criminal Code and sentenced him to an indeterminate sentence - The accused appealed, asserting that the judge erred by imposing an incorrect standard in law in that he required evidence of reasonable "probability" that the risk of the accused re-offending could be controlled in the community rather than a reasonable "possibility" of same - The Saskatchewan Court of Appeal dismissed the appeal - The judge expressly stated the correct test in instructing himself at paragraph 102 of his decision - As he stated the correct test, the references to "reasonable probability" was a slip of the pen rather than an articulation of an incorrect standard - This slip of the pen did not pervade or taint the judgment - The accused did not establish that the judge applied the wrong test - Further, the judge accepted the expert evidence that there was no reasonable possibility of eventual control of the accused's risk to reoffend - Therefore, even if the judge's misstatement were to amount to an error in law, the decision would have been the same - See paragraphs 18 to 24.

Criminal Law - Topic 6502

Dangerous or long-term offenders - Detention - General - Considerations and conditions precedent - The accused was charged with sexual assault of his female co-worker - 41 year old male aboriginal - Suffered from some mental disorder - Definitely cognitively impaired - Long-standing alcohol abuse problem - Had a history of committing violent acts and acts of a sexual nature (26 to 34 offences starting when he was eight years old) - A Provincial Court judge designated the accused a dangerous offender under Part XXIV of the Criminal Code and sentenced him to an indeterminate sentence - The accused appealed, asserting that the judge erred by failing to apply and give sufficient consideration to the principles in R. v. Gladue (J.T.) (SCC 1999) - The Saskatchewan Court of Appeal dismissed the appeal - The trial judge described and discussed at length the accused's background and upbringing, including the factors that would give rise to consideration of the principles in Gladue - Because the judge found there was no reasonable possibility of reducing the risk of the accused re-offending, any further consideration of the Gladue factors would not have given rise to a different result - See paragraphs 25 to 28.

Criminal Law - Topic 6502

Dangerous or long-term offenders - Detention - General - Considerations and conditions precedent - The accused was charged with sexual assault of his female co-worker - 41 year old male aboriginal - Suffered from some mental disorder - Definitely cognitively impaired - Long-standing alcohol abuse problem - Had a history of committing violent acts and acts of a sexual nature (26 to 34 offences starting when he was eight years old) - A Provincial Court judge designated the accused a dangerous offender under Part XXIV of the Criminal Code and sentenced him to an indeterminate sentence - The accused appealed, asserting that the judge erred by failing to give adequate consideration and weight to all the evidence before him relating to, inter alia, the evidence of Dr. Holden - The accused submitted that as Dr. Holden was not familiar with the programming the accused had participated in nor what programs were available, his evidence should not be relied upon - The Saskatchewan Court of Appeal dismissed the appeal - The judge was entitled to accept or reject as much of Dr. Holden's evidence as he reasonably saw fit - He did not act improperly by accepting much of Dr. Holden's evidence - The accused's claim that Dr. Holden was unfamiliar with current treatment programs and was therefore not in a position to evaluate the accused was not correct - Dr. Holden was qualified as an expert and was knowledgeable about cognitive behaviour treatment - Evidence was presented as to the programs the accused had taken and how well he had done in those programs - The judge considered that evidence - See paragraphs 29 to 32.

Criminal Law - Topic 6502

Dangerous or long-term offenders - Detention - General - Considerations and conditions precedent - The accused was charged with sexual assault of his female co-worker - 41 year old male aboriginal - Suffered from some mental disorder - Definitely cognitively impaired - Long-standing alcohol abuse problem - Had a history of committing violent acts and acts of a sexual nature (26 to 34 offences starting when he was eight years old) - A Provincial Court judge designated the accused a dangerous offender under Part XXIV of the Criminal Code and sentenced him to an indeterminate sentence - The accused appealed, asserting that the judge erred by failing to give adequate consideration and weight to all the evidence before him relating to, inter alia, the evidence of Dr. Nicholaichuk - The accused submitted that the judge read the evidence of Dr. Nicholaichuk too narrowly and thus rejected it in error - The Saskatchewan Court of Appeal dismissed the appeal - The judge did not reject the evidence of Dr. Nicholaichuk in its entirety - Rather, he expressed concerns with certain aspects of the report - It was open to the judge to make this assessment - The judge was not required to rely on expert testimony when he could arrive at the necessary conclusions without so doing - The trial judge did not reject Dr. Nicholaichuk's evidence in full so it could not be said that a narrow reading of the expert's report led him to reject the evidence - See paragraphs 33 to 37.

Criminal Law - Topic 6502

Dangerous or long-term offenders - Detention - General - Considerations and conditions precedent - The accused was charged with sexual assault of his female co-worker - 41 year old male aboriginal - Suffered from some mental disorder - Definitely cognitively impaired - Long-standing alcohol abuse problem - Had a history of committing violent acts and acts of a sexual nature (26 to 34 offences starting when he was eight years old) - A Provincial Court judge designated the accused a dangerous offender under Part XXIV of the Criminal Code and sentenced him to an indeterminate sentence - The accused appealed, asserting that the judge erred by failing to give adequate consideration and weight to all the evidence before him relating to, inter alia, the accused's past treatment and programming - The accused submitted the trial judge did not put enough emphasis on the evidence that he did well in programming while he was at the Regional Psychiatric Centre - The Saskatchewan Court of Appeal dismissed the appeal - The judge went through the accused's many negative responses to programming and acknowledged his positive response to programming at the Regional Psychiatric Centre - The trial judge understood the accused did well in treatment, but the effects wore off - This was a reasonable finding supported by the evidence - See paragraphs 38 to 40.

Criminal Law - Topic 6502

Dangerous or long-term offenders - Detention - General - Considerations and conditions precedent - The accused was charged with sexual assault of his female co-worker - 41 year old male aboriginal - Suffered from some mental disorder - Definitely cognitively impaired - Long-standing alcohol abuse problem - Had a history of committing violent acts and acts of a sexual nature (26 to 34 offences starting when he was eight years old) - A Provincial Court judge designated the accused a dangerous offender under Part XXIV of the Criminal Code and sentenced him to an indeterminate sentence - The accused appealed, asserting that the judge erred by failing to give adequate consideration and weight to all the evidence before him relating to, inter alia, the evidence of the accused's level of intellectual functioning and his prospects of benefiting from treatment - The Saskatchewan Court of Appeal dismissed the appeal - The accused did suffer from a low intellectual functioning, but it did not appear that the judge put too much emphasis on this one factor in considering his overall treatability - The judge expressly considered a number of factors and did not overemphasize any one factor - See paragraphs 41 to 45.

Criminal Law - Topic 6503

Dangerous or long-term offenders - Detention (incl. common law preventive detention) - General - Dangerous offender - Defined - [See first Criminal Law - Topic 6502 ].

Criminal Law - Topic 6503

Dangerous or long-term offenders - Detention (incl. common law preventive detention) - General - Dangerous offender - Defined - The accused was charged with sexual assault of his female co-worker - 41 year old male Aboriginal - Suffered from some mental disorder - Definitely cognitively impaired - Long-standing alcohol abuse problem - Had a history of committing violent acts and acts of a sexual nature (26 to 34 offences starting when he was eight years old) - A Provincial Court judge designated the accused a dangerous offender under Part XXIV of the Criminal Code and sentenced him to an indeterminate sentence - The accused appealed, asserting that the dangerous offender designation was not reasonable - The Saskatchewan Court of Appeal dismissed the appeal - The accused met the criteria for a dangerous offender designation - The judge considered the expert evidence - Based on this evidence, the judge concluded that there was no reasonable possibility of eventual control of the risk - There was ample evidence for the judge's conclusion, and the conclusion was reasonable - In fact, based upon the evidence before him, it was the only conclusion available - See paragraphs 59 and 60.

Criminal Law - Topic 6512

Dangerous or long-term offenders - Detention - General - Evidence and proof - [See first, third, fourth, fifth and sixth Criminal Law - Topic 6502 ].

Criminal Law - Topic 6574

Dangerous or long-term offenders - Detention (incl. common law preventive detention) - Sentencing - Considerations - The accused was charged with sexual assault of his female co-worker - 41 year old male Aboriginal - Suffered from some mental disorder - Definitely cognitively impaired - Long-standing alcohol abuse problem - Had a history of committing violent acts and acts of a sexual nature (26 to 34 offences starting when he was eight years old) - A Provincial Court judge designated the accused a dangerous offender under Part XXIV of the Criminal Code and sentenced him to an indeterminate sentence - The accused appealed, asserting that the judge erred by failing to adequately consider the effectiveness of a long-term supervision order - The Saskatchewan Court of Appeal dismissed the appeal - "In order to make a decision as to whether a dangerous offender or a long-term offender sentence is appropriate, the trial judge must 'give full consideration to both the carceral and the community supervision aspects of a long-term offender sentence'" - In addition, for a judge to determine whether a dangerous offender or a long-term offender sentence was appropriate, there had to be evidence of the programs that were offered in prison, which could be used to treat the accused, and evidence of the programs and controls that were available in the community, which could control the risk that the accused would present to the community when released - Furthermore, where the offender was an Aboriginal person, evidence regarding programs and services that were available to Aboriginal offenders had to be led - The judge did not err in law by failing to determine whether there were any other treatment programs that could reduce the risk of the accused in the community - The judge recognized his obligation to consider programs in the community in which the accused intended to reside - He then assessed the evidence relating to family support and programs available in the community, including evidence relating to "culturally sensitive addictions programming." - However, the judge found that the accused was untreatable and that there was no hope of controlling the risk posed by him in the community - See paragraphs 46 to 58.

Criminal Law - Topic 6577

Dangerous or long-term offenders - Detention (incl. common law preventive detention) - Sentencing - Community or long-term supervision order - [See Criminal Law - Topic 6574 ].

Cases Noticed:

R. v. Currie (R.O.R.), [1997] 2 S.C.R. 260; 211 N.R. 321; 100 O.A.C. 161, refd to. [para. 10].

R. v. Badger (S.D.) (2012), 405 Sask.R. 97; 563 W.A.C. 97; 2012 SKCA 119, refd to. [para. 10].

R. v. Natomagan (A.D.) (2012), 393 Sask.R. 130; 546 W.A.C. 130; 2012 SKCA 46, refd to. [para. 10].

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; 2003 SCC 46, refd to. [para. 16].

R. v. Ewenin (C.M.) (2013), 414 Sask.R. 171; 575 W.A.C. 171; 2013 SKCA 50, refd to. [para. 16].

R. v. J.L.A.G. - see R. v. Green (J.L.A.).

R. v. Green (J.L.A.) (2004), 254 Sask.R. 276; 336 W.A.C. 276; 189 C.C.C.(3d) 512; 2004 SKCA 126, refd to. [para. 16].

R. v. Gladue (J.T.), [1999] 1 S.C.R. 688; 238 N.R. 1; 121 B.C.A.C. 161; 198 W.A.C. 161; 171 D.L.R.(4th) 385, refd to. [para. 17].

R. v. Goforth (M.A.) (2007), 302 Sask.R. 265; 411 W.A.C. 265; 2007 SKCA 144, refd to. [para. 20].

F.H. v. McDougall, [2008] 3 S.C.R. 41; 380 N.R. 82; 260 B.C.A.C. 74; 439 W.A.C. 74; 2008 SCC 53, refd to. [para. 22].

R. v. Standingwater (J.R.), [2013] 10 W.W.R. 277; 417 Sask.R. 158; 580 W.A.C. 158; 2013 SKCA 78, refd to. [para. 24].

R. v. Montgrand (A.J.) (2014), 433 Sask.R. 248; 602 W.A.C. 248; 2014 SKCA 31, refd to. [para. 26].

R. v. Moosomin (L.W.), [2009] 1 W.W.R. 608; 320 Sask.R. 100; 444 W.A.C. 100; 2008 SKCA 169, refd to. [para. 29].

R. v. Keepness (G.D.) (2013), 435 Sask.R. 119; 2013 SKQB 441, refd to. [para. 41].

R. v. Otto (M.E.) (2006), 279 Sask.R. 182; 372 W.A.C. 182; 2006 SKCA 52, refd to. [para. 55].

R. v. McCallum (N.J.) (2005), 196 O.A.C. 101; 201 C.C.C.(3d) 541 (C.A.), refd to. [para. 55].

Counsel:

Cameron Schmunk, for the appellant;

W. Dean Sinclair, for the respondent.

This appeal was heard on June 27, 2014, by Lane, Herauf and Whitmore, JJ.A., of the Saskatchewan Court of Appeal. The following judgment of the Court of Appeal was delivered by Whitmore, J.A., on August 26, 2014.