R. v. McLean (A.D.), (2008) 262 N.S.R.(2d) 234 (SC)

• Judge: Hood, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: October 15, 2007
• Jurisdiction: Nova Scotia
• Citations: (2008), 262 N.S.R.(2d) 234 (SC);2008 NSSC 54

R. v. McLean (A.D.) (2008), 262 N.S.R.(2d) 234 (SC);

    839 A.P.R. 234

MLB headnote and full text

Temp. Cite: [2008] N.S.R.(2d) TBEd. FE.031

Her Majesty The Queen v. Alexander Dean McLean

(CR. H. 257643; 2008 NSSC 54)

Indexed As: R. v. McLean (A.D.)

Nova Scotia Supreme Court

Hood, J.

January 16, 2008.

Summary:

The 47 year old accused pleaded guilty to aggravated assault. Given the nature of the predicate offence and his history of convictions over 30 years, the Crown sought to have the accused designated as either a dangerous offender or a long-term offender.

The Nova Scotia Supreme Court declined to designate the accused as a dangerous offender or a long-term offender. The court sentenced the accused to six years' imprisonment, less double credit for two years and 2.5 months' pre-trial custody, leaving a sentence of 19 months' imprisonment to be served.

Criminal Law - Topic 5938

Sentence - Aggravated assault - The 47 year old accused, while an inmate, committed an aggravated assault against another inmate - The inmate suffered a fractured eye socket, a gash in his cheek, a broken palate and 16 missing teeth - The accused had a lengthy criminal record dating back 30 years, including property offences (theft, break and enter, arson), sexual offences (indecent exposure, sexual harassment, sexual assaults), offences against the person (assaulting police officer, attempted murder) and obstruction of a police officer and carrying a concealed weapon - The accused was not found to be a dangerous offender or a long-term offender - The accused displayed a low level of intellectual and social functioning - The defence psychiatrist who had been treating the accused opined that with continued counselling and drugs there was an increased chance of reducing future risk of violence - The Nova Scotia Supreme Court sentenced the accused to six years' imprisonment, less double credit for two years and 2.5 months' pre-trial custody, leaving a sentence of 19 months' imprisonment to be served.

Criminal Law - Topic 6503.1

Dangerous or long-term offenders - Detention - General - Long-term offender - Defined - [See Criminal Law - Topic 6552 ].

Criminal Law - Topic 6512

Dangerous or long-term offenders - Detention - General - Evidence and proof - The Nova Scotia Supreme Court referred to the following considerations in weighing psychiatric evidence in a dangerous offender application: "1. the qualifications and practice of the psychiatrist; 2. the opportunity the psychiatrist had to assess the person, including: length of personal contact, place of contact, role with ongoing treatment, and involvement with the institution in which the person is a patient or prisoner; 3. the unique features of the doctor-patient relationship, such as hostility or fear by the patient (or the psychiatrist) arising from the personalities, the circumstances of the contact, and the role of the psychiatrist; 4. specifically and precisely what documents the psychiatrist had available and reviewed, for example, from earlier court proceedings, institutional records, other medical consultations, or treatment; 5. the nature and scope of consultations (this could include: personal contact with third parties, information from other health care professionals, prison authorities, police, lawyers, family); 6. specifically and precisely what the psychiatrist relies on in coming to an opinion; and 7. the strengths and weaknesses of the information and material that is relied on." - See paragraph 77.

Criminal Law - Topic 6512

Dangerous or long-term offenders - Detention - General - Evidence and proof - The Nova Scotia Supreme Court held that on a dangerous offender application the Crown had the burden of proving disputed facts beyond a reasonable doubt - However, since a dangerous offender application was a sentencing hearing, the strict rules of evidence at trial did not apply - Hearsay evidence was admissible, with its weight to be determined by the trial judge - See paragraphs 28 to 29.

Criminal Law - Topic 6552

Dangerous or long-term offenders - Detention - Protection of the public - Pattern of repetitive behaviour - The 47 year old accused, while an inmate, committed an aggravated assault against another inmate - The inmate suffered a fractured eye socket, a gash in his cheek, a broken palate and 16 missing teeth - The accused had a lengthy criminal record dating back 30 years, including property offences (theft, break and enter, arson), sexual offences (indecent exposure, sexual harassment, sexual assaults), offences against the person (assaulting police officer, attempted murder) and obstruction of a police officer and carrying a concealed weapon - The Crown applied to have the accused designated as a dangerous offender or a long-term offender - The accused displayed a low level of intellectual and social functioning - The defence psychiatrist who had been treating the accused opined that with continued counselling and drugs there was an increased chance of reducing future risk of violence - The Nova Scotia Supreme Court held that the accused was neither a dangerous offender nor a long-term offender - The Crown failed to prove a "pattern of repetitive behaviour" or "pattern of persistent aggressive behaviour" (Criminal Code, s. 753(1)(a)(i) and (ii)) - There was no evidence of past behaviour except for the criminal record - The rape and attempted murder were the only other violent offences and they bore little or no similarity - The Crown also failed to establish that the accused's behaviour associated with the predicate offence was so brutal as to compel the conclusion that the accused's future behaviour was unlikely to be inhibited by normal standards of behaviour restraint (s. 753(1)(a)(iii)) - The victim was struck with a single blow from a wooden handle - Although extremely violent, the accused's conduct was not "brutal" (i.e., not coarse, savage or cruel) - Although an accused found not to be a dangerous offender could still be designated a long-term offender under s. 753.1(1), the Crown failed to prove the applicability of that section - See paragraphs 1 to 151.

Criminal Law - Topic 6553

Dangerous or long-term offenders - Detention - Protection of the public - Brutality of predicate offence - [See Criminal Law - Topic 6552 ].

Criminal Law - Topic 6562

Dangerous or long-term offenders - Detention - Protection of the public - Persistent aggressive behaviour - [See Criminal Law - Topic 6552 ].

Cases Noticed:

R. v. Lyons, [1987] 2 S.C.R. 309; 80 N.R. 161; 82 N.S.R.(2d) 271; 207 A.P.R. 271, refd to. [para. 22].

R. v. Hatchwell, [1976] 1 S.C.R. 39; 3 N.R. 571, refd to. [para. 23].

R. v. Johnson (J.J.) (2003), 308 N.R. 333; 186 B.C.A.C. 161; 306 W.A.C. 161 (S.C.C.), refd to. [para. 25].

R. v. Gardiner (1982), 43 N.R. 361; 68 C.C.C.(2d) 477 (S.C.C.), refd to. [para. 28].

R. v. Jones (S.) (1994), 166 N.R. 321; 43 B.C.A.C. 241; 69 W.A.C. 241; 89 C.C.C.(3d) 353 (S.C.C.), refd to. [para. 29].

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. 32].

R. v. Dow (D.R.) (1999), 120 B.C.A.C. 16; 196 W.A.C. 16 (C.A.), refd to. [para. 38].

R. v. Schwartz (D.L.), [2000] B.C.T.C. 4 (S.C.), refd to. [para. 48].

R. v. Langevin (1984), 3 O.A.C. 110; 11 C.C.C.(3d) 336 (C.A.), refd to. [para. 50].

R. v. P.M.C., [1998] B.C.T.C. Uned. J56 (S.C.), refd to. [para. 51].

R. v. Jackson (1981), 46 N.S.R.(2d) 92; 89 A.P.R. 92; 61 C.C.C.(2d) 540 (C.A.), refd to. [para. 54].

R. v. F.E.D. (2007), 222 O.A.C. 253; 2007 CarswellOnt 1971 (C.A.), refd to. [para. 55].

R. v. Shrubsall (W.C.) (2000), 182 N.S.R.(2d) 351; 563 A.P.R. 351 (S.C.), refd to. [para. 56].

R. v. Antonius (M.A.), [2000] B.C.T.C. 1086 (S.C.), refd to. [para. 124].

R. v. Hill (1974), 15 C.C.C.(2d) 145 (Ont. C.A.), refd to. [para. 127].

R. v. Pontello (1977), 38 C.C.C.(2d) 262 (Ont. C.A.), refd to. [para. 127].

R. v. Roberts (R.) (2007), 220 O.A.C. 46 (C.A.), refd to. [para. 154].

R. v. Vickerson (W.) (2005), 200 O.A.C. 87 (C.A.), refd to. [para. 155].

R. v. Neshinapaise (N.H.) (2005), 198 Man.R.(2d) 309 (Q.B.), refd to. [para. 156].

R. v. Sparks (A.) (2007), 251 N.S.R.(2d) 181; 802 A.P.R. 181 (Prov. Ct.), refd to. [para. 157].

R. v. Fajcsik, [2005] B.C.J. No. 201 (Prov. Ct.), refd to. [para. 158].

R. v. Nelson, [2006] B.C.J. No. 662 (Prov. Ct.), refd to. [para. 159].

R. v. Deperry, [2004] O.J. No. 5483 (Prov. Ct.), refd to. [para. 159].

Counsel:

Eric G. Taylor, for the Crown;

Luke A. Craggs, for the accused.

This matter was heard between October 15, 2007, and January 16, 2008, at Halifax, N.S., before Hood, J., of the Nova Scotia Supreme Court, whose following oral judgment of January 16, 2008, was delivered in writing on February 22, 2008.