R. v. Langevin, (1984) 3 O.A.C. 110 (CA)

• Judge: Martin, Lacourcière and Goodman, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: April 13, 1984
• Jurisdiction: Ontario
• Citations: (1984), 3 O.A.C. 110 (CA);1984 CanLII 1914 (NS CA);1984 CanLII 1914 (ON CA);45 OR (2d) 705;8 DLR (4th) 485;11 CCC (3d) 336;39 CR (3d) 333;[1984] OJ No 357 (QL);3 OAC 110;9 CRR 16

R. v. Langevin (1984), 3 O.A.C. 110 (CA)

MLB headnote and full text

R. v. Langevin

Indexed As: R. v. Langevin

Ontario Court of Appeal

Martin, Lacourcière and Goodman, JJ.A.

April 13, 1984.

Summary:

An accused pleaded guilty to rape contrary to s. 144 of the Criminal Code of Canada. Thereafter, the Crown applied to have the accused declared a dangerous offender pursuant to s. 688 of the Code. The Ontario County Court found that the accused was a dangerous offender and sentenced him to an indeterminate period of detention. The accused appealed the sentence and challenged the constitutional validity of s. 688 of the Code, arguing that the section violated several sections of the Canadian Charter of Rights and Freedoms, namely, that his detention:

1. resulted in the deprivation of liberty not in accordance with the principles of fundamental justice (ss. 7 and 11(c));

2. resulted in arbitrary detention for imprisonment (s. 9);

3. denied the offender the right to a trial by jury (s. 11(f)); and

4. constituted cruel and unusual treatment or punishment (s. 12).

The Ontario Court of Appeal in dismissing the accused's appeal, held that the indeterminate sentence was a fit sentence and that s. 688 was not contrary to nor did it violate the sections of the Charter invoked by the accused.

Civil Rights - Topic 686

Liberty - Principles of fundamental justice - Deprivation of liberty - What constitutes - Indeterminate detention - An accused was declared to be a dangerous offender under s. 688 of the Criminal Code and sentenced to an indeterminate period of detention - The accused appealed on the ground, inter alia, that his detention under s. 688 was a deprivation of liberty not in accordance with the principles of fundamental justice contrary to s. 7 of the Canadian Charter of Rights and Freedoms - The Ontario Court of Appeal held that the accused's detention did not violate s. 7 of the Charter - See paragraphs 46 to 64.

Civil Rights - Topic 3603

Detention and imprisonment - Detention - Arbitrary detention - What constitutes - Indeterminate detention - An accused was declared to be a dangerous offender under s. 688 of the Criminal Code and was sentenced to an indeterminate period of detention - The accused appealed the sentence on the ground, inter alia, that his detention resulted in arbitrary detention or imprisonment contrary to s. 9 of the Canadian Charter of Rights and Freedoms - The Ontario Court of Appeal held that the accused's detention did not violate s. 9 of the Charter - See paragraphs 65 to 67.

Civil Rights - Topic 3826

Cruel and unusual punishment - What constitutes - Indeterminate detention - An accused was declared to be a dangerous offender under s. 688 of the Criminal Code and was sentenced to an indeterminate period of detention - The accused appealed the sentence on the ground, inter alia, that the sentence constituted cruel and unusual punishment contrary to s. 12 of the Canadian Charter of Rights and Freedoms - The Ontario Court of Appeal held that the indeterminate sentence under s. 688 was not contrary to s. 12 of the Charter - See paragraphs 71 to 87.

Civil Rights - Topic 4376

Protection against self-incrimination - Incriminating conditions of the body - General - The Ontario Court of Appeal stated that the protection against self-incrimination guaranteed by s. 11(c) of the Canadian Charter of Rights and Freedoms does not extend to incrimination by bodily reactions, substances or secretions - See paragraph 63.

Civil Rights - Topic 4421

Protection against self-incrimination - Proceedings to which protection applies - Section 11(c) of the Canadian Charter of Rights and Freedoms provided that any person charged with an offence has the right "not to be compelled to be a witness in proceedings against that person in respect of the offence" - The Ontario Court of Appeal stated that s. 11(c) was designed to protect an accused against compelled testimonial self-incrimination, but that the section did not extend to incrimination by bodily reactions, substances, secretions or by out of court statements - See paragraph 63.

Civil Rights - Topic 4441

Protection against self-incrimination - Proceedings to which protection does not apply - General - Section 11(c) of the Canadian Charter of Rights and Freedoms provided that any person charged with an offence has the right "not to be compelled to be a witness in proceedings against that person in respect of the offence" - The Ontario Court of Appeal stated that s. 11(c) was designed to protect an accused against compelled testimonial self-incrimination, but that the section did not extend to incrimination by bodily reactions, substances, secretions or by out of court statements - See paragraph 63.

Civil Rights - Topic 4451

Protection against self-incrimination - Where inapplicable - Pretrial psychiatric tests - An accused was declared to be a dangerous offender under s. 688 of the Criminal Code and was sentenced to an indeterminate period of detention - The accused appealed the sentence, arguing that reliance by the court on a pretrial psychiatric examination violated his right to be protected against self-incrimination under s. 11(c) of the Canadian Charter of Rights and Freedoms, because he was not cautioned that the results of the examination could be used on a dangerous offender application - The Ontario Court of Appeal held that the accused's rights under s. 11(c) were not violated - See paragraphs 57 to 62.

Civil Rights - Topic 8363

Canadian Charter of Rights and Freedoms - Denial of rights - Jurisdiction - Court of competent jurisdiction - An accused was declared to be a dangerous offender under s. 688 of the Criminal Code and was sentenced to an indeterminate period of detention - The accused appealed the sentence, arguing that s. 688 was unconstitutional because it violated the Charter - The Ontario Court of Appeal rejected the Crown's argument that the Court of Appeal was not a "court of competent jurisdiction" to hear Charter arguments respecting the matter on appeal - See paragraphs 38 to 45.

Civil Rights - Topic 8408

Canadian Charter of Rights and Freedoms - Criminal proceedings - Jury trial - Re indeterminate detention - The Criminal Code, s. 689(2), provided that an application to have an accused declared to be a dangerous offender and sentenced to an indeterminate period of detention should be heard by a court without a jury - The Ontario Court of Appeal held that s. 689(2) did not violate s. 11(f) of the Charter, which guaranteed persons charged with an offence the right to a trial by jury where the maximum punishment for the offence was five years or more - The court stated that s. 11(f) did not apply to the sentencing process - See paragraphs 68 to 70.

Civil Rights - Topic 8547

Canadian Charter of Rights and Freedoms - Interpretation - Particular phrases - Principles of fundamental justice - The Ontario Court of Appeal discussed the meaning of the phrase "fundamental justice" as it appeared in s. 7 of the Canadian Charter of Rights and Freedoms - See paragraphs 54 to 56.

Criminal Law - Topic 6201

Sentencing - Appeals - Variation of sentence - Powers of appeal court - Respecting indeterminate sentence - The Ontario Court of Appeal discussed the procedure and the powers of the court on an appeal against a sentence of indeterminate detention after a finding that an accused was a dangerous offender - See paragraphs 3 to 8.

Criminal Law - Topic 6558

Dangerous offenders - Protection of the public - Dangerous sexual offender - The Criminal Code of Canada, s. 688(a)(i), permitted the court to find an accused, who was convicted of a serious personal injury offence, to be a dangerous offender and impose a sentence of indeterminate duration where, inter alia, the evidence established a "pattern of repetitive behavior" - The Ontario Court of Appeal held that an accused who was convicted of two remarkably similar sexual offences demonstrated a "pattern of repetitive behavior" within the meaning of s. 688(a)(i) - see paragraphs 28, 29.

Criminal Law - Topic 6558

Dangerous offenders - Protection of the public - Dangerous sexual offender - An accused pleaded guilty to a charge of raping a 12 year old girl - He was previously convicted of indecently assaulting a 16 year old girl - Upon his rape conviction, the Crown successfully had the accused declared to be a dangerous offender and he was sentenced to an indeterminate period - In dismissing the accused's appeal against the sentence, the Ontario Court of Appeal stated that it would not interfere with the finding that this accused was a dangerous offender and held that the indeterminate sentence was a fit sentence - See paragraphs 26 to 37.

Criminal Law - Topic 6558

Dangerous offenders - Protection of the public - Dangerous sexual offender - The Criminal Code of Canada, s. 688(a)(iii), permitted the court to find an accused, who was convicted of a serious personal injury offence, to be a dangerous offender and impose a sentence of indeterminate duration where, inter alia, the accused's behavior was of a "brutal nature" - The Ontario Court of Appeal discussed what type of behavior would be considered to be of a "brutal nature" - See paragraphs 33, 34.

Words and Phrases

Arbitrary detention and imprisonment - The Ontario Court of Appeal held that an indeterminate sentence following a finding that an accused was a dangerous offender under s. 688 of the Criminal Code, did not constitute "arbitrary detention and imprisonment" within the meaning of the phrase as it was used in s. 9 of the Canadian Charter of Rights and Freedoms - See paragraphs 65 to 67.

Words and Phrases

Brutal nature - The Ontario Court of Appeal discussed the type of behavior which would be considered to be of a "brutal nature" within the meaning of the phrase as used in s. 688(a)(iii) of the Criminal Code respecting dangerous offences - See paragraphs 33, 34.

Words and Phrases

Court of competent jurisdiction - The Ontario Court of Appeal held that it was a "court of competent jurisdiction" within the meaning of s. 24(1) of the Canadian Charter of Rights and Freedoms to hear Charter arguments on an appeal by an accused from a sentence of indeterminate detention under the dangerous offender provisions (s. 688) of the Criminal Code - See paragraphs 38 to 45.

Words and Phrases

Cruel and unusual punishment - The Ontario Court of Appeal held that an indeterminate sentence imposed under s. 688 of the Criminal Code after a finding that an accused was a dangerous offender did not constitute "cruel and unusual punishment" within the meaning of s. 12 of the Canadian Charter of Rights and Freedoms - See paragraphs 71 to 87.

Words and Phrases

Fundamental justice - The Ontario Court of Appeal discussed the meaning of the phrase "fundamental justice" as it appeared in s. 7 of the Canadian Charter of Rights and Freedoms - See paragraphs 54 to 56.

Words and Phrases

Pattern of repetitive behavior - The Ontario Court of Appeal discussed the meaning of the phrase "a pattern of repetitive behavior" as it appeared in s. 688(a)(i) of the Criminal Code concerning dangerous offenders - See paragraphs 28, 29.

Cases Noticed:

R. v. Carleton (1982), 32 A.R. 181; 23 C.R.(3d) 129; 69 C.C.C.(2d) 1, aff'd (1983) 47 A.R. 160; 52 N.R. 293; 6 C.C.C.(3d) 480, ref'd to. [para. 31].

R. v. Hill (1974), 15 C.C.C.(2d) 145, ref'd to. [para. 33].

R. v. Pontello (1977), 38 C.C.C.(2d) 262, ref'd to. [para. 33].

R. v. Keefe (1978), 6 C.R.(3d) s-35, ref'd to. [para. 36].

R. v. Crate (1983), 27 Alta. L.R.(2d) 214, not folld. [para. 42].

R. v. Antoine (1983), 5 C.C.C.(3d) 97, ref'd to. [para. 44].

People v. Murtishaw (1981), 175 Cal.Rptr. 738, ref'd to. [para. 48].

Barefoot v. Estelle (1983), 101 S.Ct. 3383, ref'd to. [para. 49].

Duke v. R. (1972), 7 C.C.C.(2d) 474, ref'd to. [para. 54].

Re Potma and R. (1983), 41 O.R.(2d) 43, ref'd to. [para. 55].

Van Droogenbroeck v. Belgium (1982), 4 E.H.R.R. 443, ref'd to. [para. 56].

Estelle, Corrections Director v. Smith (1981), 451 U.S. 454, ref'd to. [para. 57].

R. v. Johnston, [1965] 3 C.C.C. 42 (Man. C.A.), ref'd to. [para. 60].

Wilband v. R., [1967] 2 C.C.C. 6, ref'd to. [para. 61].

R. v. Simon (1982), 38 A.R. 377; 68 C.C.C.(2d) 86, folld. [para. 66].

Ex parte Matticks (1972), 10 C.C.C.(2d) 438, ref'd to. [para. 69].

R. v. Simon (No. 2) (1982), 38 A.R. 390; 69 C.C.C.(2d) 478, ref'd to. [para. 69].

R. v. Roestad (1971), 5 C.C.C.(2d) 564, ref'd to. [para. 74].

R. v. Miller and Cockriell (1976), 11 N.R. 386; 31 C.C.C.(2d) 177, ref'd to. [para. 75].

R. v. Shand (1976), 30 C.C.C.(2d) 23, ref'd to. [para. 75].

Hatchwell v. R. (1974), 3 N.R. 571; 21 C.C.C.(2d) 201, ref'd to. [para. 76].

R. v. Simon (No. 3) (1982), 38 A.R. 393; 69 C.C.C.(2d) 557, ref'd to. [para. 76].

People v. Feagley (1975), 535 P.2d 373, not folld. [para. 79].

Solem, Warden, v. Helm, 51 L.W. 5019, ref'd to. [para. 84].

Rummel v. Estelle (1980), 100 S.Ct. 1133, ref'd to. [para. 85].

Statutes Noticed:

Canadian Bill of Rights, R.S.C. 1970, App. III, sect. 2(b) [para. 74]; sect. 2(e) [para. 54].

Canadian Charter of Rights and Freedoms, sect. 7 [paras. 46 to 64]; sect. 9 [paras. 65 to 67]; sect. 11(c) [paras. 57 to 64]; sect. 11(f) [paras. 68 to 70]; sect. 12 [paras. 71 to 87]; sect. 24(1) [para. 40].

Criminal Code of Canada, R.S.C. 1970, c. C-34, sect. 602, sect. 603 [para. 42]; sect. 9(3), sect. 603(1)(b), sect. 614 [para 7]; sect. 688 [para. 26 et seq.]; sect. 688(a)(i) [paras. 28 to 32]; sect. 688(a)(iii) [paras. 33, 34]; sect. 688(b) [para. 35]; sect. 689(2) [para. 68]; sect. 690 [para. 59]; sect. 694(1) [paras. 4, 40]; sect. 694(3) [paras. 5, 41]; sect. 694(7) [paras. 7, 43]; sect. 695 [para. 82].

Authors and Works Noticed:

Tarnopolsky, Just Deserts or Cruel and Unusual Punishment? Where Do We Look For Guidance? (1978), 10:1 Ottawa L.R. 1 [para. 72].

Webster and Dickens, Deciding Dangerousness: Policy Alternatives for Dangerous Offenders, generally [para. 50]; p. 106 [para. 51].

Monahan, Predicting Violent Behaviour: An Assessment of Clinical Techniques (1981) [Appendix A].

Cocozza and Steadman, The Failure of Psychiatric Predictions of Dangerousness: Clear and Convincing Evidence (1976), 29 Rutgers L.R. 1084 [Appendix A].

Diamond, The Psychiatric Prediction of Dangerousness (1974), 123 U. Penn. L.R. [Appendix A].

Pfohl, Predicting Dangerousness: The Social Construction of Psychiatric Reality, (1978) [Appendix A].

Lion, Review of Predicting Dangerousness (1979), 136 Am. J. Psychiat. 1007 [Appendix A].

Schneider, Review of Monahan's Predicting Violent Behaviour (1982), 24 Can. J. Crim. 355 [Appendix A].

Foucault, About the Concept of the 'Dangerous Individual' in the 19th Century Legal Psychiatry (1978), 1 Int. J. Law and Psychiatry 1 [Appendix A].

Ennis and Litwack, Psychiatry and the Presumption of Expertise: Flipping Coins in the Courtroom (1974), 62 Calif. L. Rev. 693 [Appendix A].

Wenk, Robinson and Smith, Can Violence Be Predicted:, 18 Crim. and Delinq. 393 [Appendix A].

Hirsch, Prediction of Criminal Conduct and Preventive Confinement of Convicted Persons (1972), 21 Buffalo L. Rev. 717 [Appendix A].

Dershowitz, Chapter 2, Preventive Detention and the Prediction of Dangerousness, - The Law of Dangerousness: Some Fictions about Predictions (1970), 23 J. Legal Education 24 [Appendix A].

Counsel:

Alan D. Gold, for Langevin;

Damian Frost, for Attorney General of Ontario;

B.R. Evernden, for the Attorney General of Canada.

This appeal was heard before Martin, Lacourcière and Goodman, JJ.A., of the Ontario Court of Appeal on February 7, 1984.

The following judgment of the Court of Appeal was delivered by Lacourcière, J.A., and released on April 13, 1984.