R. v. J.T.H., (2002) 209 N.S.R.(2d) 302 (CA)

• Judge: Roscoe, Freeman and Oland, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: November 08, 2002
• Jurisdiction: Nova Scotia
• Citations: (2002), 209 N.S.R.(2d) 302 (CA);2002 NSCA 138

R. v. J.T.H. (2002), 209 N.S.R.(2d) 302 (CA);

 656 A.P.R. 302

MLB headnote and full text

Temp. Cite: [2002] N.S.R.(2d) TBEd. DE.005

J.T.H. (appellant) v. Her Majesty The Queen (respondent)

(C.A.C. 174547; 2002 NSCA 138)

Indexed As: R. v. J.T.H.

Nova Scotia Court of Appeal

Roscoe, Freeman and Oland, JJ.A.

November 8, 2002.

Summary:

The 60 year old accused pleaded guilty to two counts of sexual assault and two counts of indecent assault. The victims were two daughters, a niece and a family friend, all adolescents. The Crown applied to have the accused declared to be a dangerous offender in respect of the sexual assaults.

The Nova Scotia Provincial Court, in a judgment not reported in this series of reports, found the accused to be a dangerous offender and imposed an indeterminate sentence. The accused was also sentenced to concurrent four year terms of imprisonment for the indecent assaults. The accused appealed.

The Nova Scotia Court of Appeal allowed the appeal, substituting a finding that the accused was a long-term offender. The ac­cused was sentenced to concurrent four year terms of imprisonment (concurrent with the four year sentences currently being served for indecent assault) and four years of com­munity supervision upon release.

Criminal Law - Topic 6503

Dangerous or long-term offenders - Deten­tion - General - Dangerous offender de­fined - The 60 year old accused volun­tarily came forward and confessed to sexually as­saulting his two daughters (between 1983 and 1996) and indecently assaulting a niece and family friend - He had a 1993 convic­tion for indecently as­saulting two other adolescent girls between 1970 and 1976 - The accused was an admitted heterosexual paedophile - The Crown applied under s. 753(1)(b) of the Criminal Code to have the accused declared a dangerous offender - The trial judge, erring by applying the consider­ations under s. 753(1)(a), allowed the application and imposed an indetermi­nate period of detention - The Nova Scotia Court of Appeal substituted a declaration that the accused was a long-term offender and imposed a determinate sentence of four years' imprisonment, concurrent to the four year concurrent sentences being served for the indecent assaults - The court imposed a four year community super­vision order - The psychiatric assessment evidence disclosed a moderate risk (less than 50%) of a future failure to control his sexual impulses - The trial judge erred in finding the evidence established a "likeli­hood" of reoffending - The accused's "con­dition" was treatable with appropriate treat­ment (which he had not previously re­ceived), the offences were at the low end of the scale of seriousness and the accused voluntarily took responsibility and sought treatment.

Criminal Law - Topic 6503.1

Dangerous or long-term offenders - Deten­tion - General - Long-term offender de­fined - [See Criminal Law - Topic 6503 ].

Criminal Law - Topic 6513

Dangerous or long-term offenders - Deten­tion - General - Psychiatric evidence - [See Criminal Law - Topic 6503 ].

Criminal Law - Topic 6558

Dangerous or long-term offenders - Deten­tion - Protection of the public - Dangerous sexual offender - [See Criminal Law - Topic 6503 ].

Criminal Law - Topic 6577

Dangerous or long-term offenders - Deten­tion - Sentencing - Community or long-term supervision order - [See Criminal Law - Topic 6503 ].

Cases Noticed:

R. v. Shrubsall (W.C.) (2001), 199 N.S.R.(2d) 314; 623 A.P.R. 314 (S.C.), refd to. [para. 8].

R. v. Neve (L.C.) (1999), 237 A.R. 201; 197 W.A.C. 201; 137 C.C.C.(3d) 97 (C.A.), refd to. [para. 41].

R. v. Boutilier (J.H.) (1995), 144 N.S.R.(2d) 293; 416 A.P.R. 293; 101 C.C.C.(3d) 1 (C.A.), refd to. [para. 44].

R. v. Dow (D.R.) (1999), 120 B.C.A.C. 16; 196 W.A.C. 16; 134 C.C.C.(3d) 323 (C.A.), refd to. [para. 45].

R. v. Currie (R.O.R.), [1997] 2 S.C.R. 260; 211 N.R. 321; 100 O.A.C. 161; 146 D.L.R.(4th) 688, refd to. [para. 50].

R. v. Langevin (1984), 3 O.A.C. 110; 11 C.C.C.(3d) 336 (C.A.), refd to. [para. 51].

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. 51].

R. v. Stockwood (1980), 83 Nfld. & P.E.I.R. 91; 260 A.P.R. 91 (Nfld. T.D.), refd to. [para. 90].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 753(1)(b) [para. 7].

Counsel:

James White, for the appellant;

James Gumpert, Q.C., for the respondent.

This appeal was heard on October 9, 2002, at Halifax, N.S., before Roscoe, Freeman and Oland, JJ.A., of the Nova Scotia Court of Appeal.

On November 8, 2002, Freeman, J.A., de­livered the following judgment for the Court of Appeal.