R. v. Dwyer, (1977) 3 A.R. 96 (CA)

• Judge: Clement, Lieberman and Morrow, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: March 22, 1977
• Citations: (1977), 3 A.R. 96 (CA)

R. v. Dwyer (1977), 3 A.R. 96 (CA)

MLB headnote and full text

R. v. Dwyer

Indexed As: R. v. Dwyer

Alberta Supreme Court

Appellate Division

Clement, Lieberman and Morrow, JJ.A.

March 22, 1977.

Summary:

This case arose out of an application by the Crown under s. 689 of the Criminal Code of Canada, R.S.C. 1970, c. C-34, for the preventive detention of the appellant. The appellant had a criminal record of nine convictions for indecent assault on nine boys ranging in age from 11 to 17 over a period of nine years. None of the boys were physically hurt. The Crown applied to the Alberta District Court for the preventive detention of the accused as a dangerous sexual offender within the meaning of s. 687 of the Criminal Code. Psychiatric testimony was to the effect that there was not likely to be lasting psychological damage to a boy involved in such an incident. The appellant, who was a paedophiliac and a homosexual, was likely to continue his behaviour, if released. The District Court found that the appellant was a dangerous sexual offender and sentenced him to preventive detention. The appellant appealed.

The Alberta Court of Appeal dismissed the appeal and affirmed the findings of the District Court.

Criminal Law - Topic 6512

Preventive detention - Protection of public - Evidence and proof - Burden of proof of likelihood that a person will "cause injury, pain or other evil to any person" within the meaning of the definition of "dangerous sexual offender" in s. 687 of the Criminal Code of Canada, R.S.C. 1970, c. C-34 - The Alberta Court of Appeal stated that the determination of whether a person was a "dangerous sexual offender" for the purpose of preventive detention was a matter of sentencing, not of an offence, and that it was not necessary to find beyond a reasonable doubt that other sexual offences would be committed by the accused in future - See paragraph 20.

Criminal Law - Topic 6558

Preventive detention - Protection of public - Dangerous sexual offender - General principles - Criminal Code of Canada, R.S.C. 1970, c. C-34, ss. 687 and 689 - The appellant had a criminal record of nine convictions for indecent assault on nine boys ranging in age from 11 to 17 over a period of nine years - None of the boys were physically hurt and psychiatric testimony was to the effect that there was not likely to be lasting psychological damage to a boy involved in such an incident - The appellant, who was a paedophiliac and a homosexual, was likely to continue his behaviour, if released - The Alberta Court of Appeal affirmed the sentence of the accused by the District Court to preventive detention as a dangerous sexual offender - The Alberta Court of Appeal held that the acts of the accused caused "evil" to the victims - See paragraphs 1 to 22.

Statutes - Topic 2414

Interpretation of words and phrases - Disjunctive words - "Or" - Meaning of the word "or" as found in the clause "who is likely to cause injury, pain or other evil to any person" in the definition of "dangerous sexual offender" in s. 687 of the Criminal Code of Canada, R.S.C. 1970, c. C-34 - The Alberta Court of Appeal held that "or" should be read disjunctively - See paragraph 14.

Words and Phrases

Evil - The Alberta Court of Appeal discussed the meaning of the word "evil" as found in the clause "who is likely to cause injury, pain or other evil to any person" in the definition of "dangerous sexual offender" in s. 687 of the Criminal Code of Canada, R.S.C. 1970, c. C-34 - See paragraph 16.

Cases Noticed:

R. v. Klippert, [1967] S.C.R. 822, appld. [para. 14].

R. v. Wilband (1966), 2 C.R.N.S. 29, refd to. [para. 15].

R. v. McAmmond (1969), 7 C.R.N.S. 210, consd. [para. 18].

R. v. Knight (1975), 27 C.C.C.(2d) 343, appld. [para. 19].

Statutes Noticed:

Criminal Code of Canada, R.S.C. 1970, c. C-34, sect. 687 [para. 14]; sect. 689 [para. 1]; sect. 690(2) [para. 15].

Counsel:

R.H. Davidson, for the appellant;

M.G. Allen, for the Crown.

This case was heard before CLEMENT, LIEBERMAN and MORROW, JJ.A., of the Alberta Supreme Court, Appellate Division.

On March 22, 1977, CLEMENT, J.A., delivered the following judgment of the Appellate Division: