R. v. MacNeil (G.W.), (1998) 164 N.S.R.(2d) 380 (ProvCt)

• Judge: Sherar, P.C.J.
• Court: Provincial Court of Nova Scotia (Canada)
• Case Date: January 15, 1998
• Jurisdiction: Nova Scotia
• Citations: (1998), 164 N.S.R.(2d) 380 (ProvCt)

R. v. MacNeil (G.W.) (1998), 164 N.S.R.(2d) 380 (ProvCt);

    491 A.P.R. 380

MLB headnote and full text

Temp. Cite: [1998] N.S.R.(2d) TBEd. FE.021

Her Majesty The Queen v. Gary Wayne MacNeil

(Case No. 672667)

Indexed As: R. v. MacNeil (G.W.)

Nova Scotia Provincial Court

Sherar, P.C.J.

January 15, 1998.

Summary:

The accused was found guilty of touching a boy under the age of 14 for a sexual pur­pose contrary to s. 151 of the Criminal Code. The Crown applied under s. 753 for a declaration that the accused was a dangerous offender and should be sentenced to an indeterminate period of incarceration.

The Nova Scotia Provincial Court found the accused to be a dangerous offender and sentenced him to an indeterminate period of detention.

Criminal Law - Topic 5950

Sentence - Sexual interference with young person - [See Criminal Law - Topic 6558 ].

Criminal Law - Topic 6552

Dangerous offenders - Detention - Pro­tection of the public - Pattern of repetitive behaviour - [See Criminal Law - Topic 6558 ].

Criminal Law - Topic 6558

Dangerous offenders - Detention - Pro­tection of the public - Dangerous sexual offender - The accused was found guilty of touching a young boy for a sexual purpose (Criminal Code, s. 151) - Accused 51 to 55 years of age - Abused as a child - Institutionalized most of his life - Functioned at "mentally deficient" range of intelligence - Accused a homo­sexual paedophile who preyed on young boys - Previous convictions for indecent assault, gross indecency, sexual assault, etc. - History of aggressive anti-social behaviour - Committed offence months after release from four years' incarceration for previous sexual assault on a boy - Accused refused treatment, denying that he had a problem - Two psychiatrists opined that there was little hope of controlling the accused's sexual tendencies - The Nova Scotia Provincial Court declared the accused to be a dangerous offender (Cri­minal Code, s. 753), given the pattern of repetitive behaviour of sexual offences against young boys and the present likeli­hood that he would reoffend and cause injury or psychological damage to others by failing to restrain his behaviour - The court imposed an indeterminate period of detention where the accused could not be properly treated within a determinate period authorized by law.

Criminal Law - Topic 6575

Dangerous offenders - Detention - Sen­tencing - Sentence - The Nova Scotia Provincial Court, in discussing whether a dangerous offender should be sentenced to a determinate or indeterminate period of detention, stated that "first, if it is reason­ably anticipated, based upon present infor­mation, that a program of sanction and treatment within a particular time frame authorized by law for the predicate offence will prevent the repetition of the pattern of anti-social behaviour by the dangerous offender, then a definite sentence ought to be imposed. If, and only if, the first con­sideration cannot be justified, then the court should impose an indeterminate sentence of imprisonment." - See para­graph 58.

Criminal Law - Topic 6575

Dangerous offenders - Detention - Sen­tencing - Sentence - [See Criminal Law - Topic 6558 ].

Cases Noticed:

R. v. Henderson (1992), 109 N.S.R.(2d) 349; 297 A.P.R. 349 (C.A.), refd to. [para. 21].

R. v. Jackson (1981), 46 N.S.R.(2d) 92; 89 A.P.R. 92; 23 C.R.(3d) 4; 61 C.C.C.(2d) 540 (C.A.), refd to. [para. 34].

R. v. Lyons (1987), 80 N.R. 161; 82 N.S.R.(2d) 271; 207 A.P.R. 271; 37 C.C.C.(3d) 1 (S.C.C.), refd to. [para. 35].

R. v. Knight (1975), 27 C.C.C.(2d) 343 (Ont. H.C.), refd to. [para. 43].

R. v. R.R.W. (1991), 14 W.C.B.(2d) 54 (Ont. Gen. Div.), refd to. [para. 55].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 752, sect. 753(a)(i), sect. 753(a)(ii) [para. 33].

Counsel:

Darrell H. Martin, for the prosecution;

D. Brian Newton, Q.C., for the defence.

This application was heard on January 15, 1998, at Halifax, N.S., before Sherar, P.C.J., of the Nova Scotia Provincial Court, who delivered the following judgment on January 15, 1998.