R. v. McLean (A.D.), (2009) 272 N.S.R.(2d) 379 (CA)

• Judge: Bateman, Hamilton and Fichaud, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: January 08, 2009
• Jurisdiction: Nova Scotia
• Citations: (2009), 272 N.S.R.(2d) 379 (CA);2009 NSCA 1

R. v. McLean (A.D.) (2009), 272 N.S.R.(2d) 379 (CA);

      869 A.P.R. 379

MLB headnote and full text

Temp. Cite: [2009] N.S.R.(2d) TBEd. JA.010

Her Majesty The Queen (appellant) v. Alexander Dean McLean (respondent)

(CAC 292129; 2009 NSCA 1)

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

Nova Scotia Court of Appeal

Bateman, Hamilton and Fichaud, JJ.A.

January 8, 2009.

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, in a judgment reported (2008), 262 N.S.R.(2d) 234; 839 A.P.R. 234, 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. The Crown appealed.

The Nova Scotia Court of Appeal allowed the appeal. The trial judge erred in failing to find the accused to be a long-term offender subject to 10 years' supervision upon his release. Notwithstanding the error, the court imposed the same six year sentence imposed by the trial judge.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

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 trial judge 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 - The Nova Scotia Court of Appeal held that the trial judge erred in failing to declare the accused to be a long-term offender - However, the court affirmed the sentence imposed by the trial judge.

Criminal Law - Topic 6503.1

Dangerous or long-term offenders - Detention - General - Long-term offender - Defined - 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 trial judge held that the accused was neither a dangerous offender nor a long-term offender - The Crown appealed, submitting that the trial judge erred, after finding that the accused failed to meet the definition of a long-term offender under s. 753.1(2), in failing to consider whether he was a long-term offender under s. 753.1(1) - The Nova Scotia Court of Appeal held that the accused should have been declared to be a long-term offender under s. 753.1(1), where a sentence of two years' imprisonment or more was appropriate, the evidence clearly established a substantial risk of re-offending, and there was a reasonable possibility of eventual control of the risk in the community - The medical evidence was that the accused was a moderately high risk to re-offend violently and a high risk to re-offend sexually - The accused conceded that he presented of substantial risk of re-offending if he was not medicated - See paragraphs 1 to 42.

Criminal Law - Topic 6503.1

Dangerous or long-term offenders - Detention - General - Long-term offender - Defined - Section 753.1(1) of the Criminal Code provided that the court "may" find an accused to be a long-term offender if a sentence of two years or more was appropriate, there was a substantial risk that the offender would re-offend and there was a reasonable possibility of eventual control of the risk in the community - Section 753.1(2) provided, in part, that the court "shall" be satisfied that there is a substantial risk of re-offending if the predicate offence was one of the listed sexual offences - The trial judge determined that an accused convicted of aggravated assault (not a listed sexual offence) who could not be found to be a long-term offender under s. 753.1(2) could also not be a long-term offender under s. 753.1(1) - The Nova Scotia Court of Appeal held that a finding that an accused was not deemed to present a substantial risk of re-offending under s. 753.1(2), because no sexual offence was involved, did not preclude the Crown from proving a substantial risk of re-offending under s. 753.1(1) - Section 753.1(2) did not restrict the scope of s. 753.1(1) to apply only to accused convicted of one or more of the sexual offences listed in s. 753.1(2)(a) - Parliament clearly did not limit the designation of long-term offender to persons convicted of sexual offences - See paragraphs 13 to 19.

Criminal Law - Topic 6508.1

Dangerous or long-term offenders - Detention - General - Long-term offender - Legislation - Interpretation and application - [See second Criminal Law - Topic 6503.1 ].

Cases Noticed:

R. v. McLeod (T.J.) (1999), 125 B.C.A.C. 59; 204 W.A.C. 59; 136 C.C.C.(3d) 492; 1999 BCCA 347, refd to. [para. 14].

R. v. Weasel (E.R.) (2003), 241 Sask.R. 161; 313 W.A.C. 161; 181 C.C.C.(3d) 358 (C.A.), refd to. [para. 16].

R. v. K.R.S. (2004), 254 Sask.R. 221; 336 W.A.C. 221 (C.A.), refd to. [para. 16].

R. v. D.D. (2006), 221 C.C.C.(3d) 57; 2006 CarswellQue 8947 (C.A.), refd to. [para. 17].

R. v. R.N., [2002] O.A.C. Uned. 200 (C.A.), refd to. [para. 17].

R. v. Nikolovski (A.) (2005), 194 O.A.C. 258 (C.A.), refd to. [para. 17].

R. v. L.M., [2008] 2 S.C.R. 163; 374 N.R. 351; 2008 SCC 31, refd to. [para. 18].

R. v. Wormell (W.J.) (2005), 213 B.C.A.C. 223; 352 W.A.C. 223 (C.A.), refd to. [para. 43].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 753.1 [para. 11].

Counsel:

Mark Scott, for the appellant;

Luke A. Craggs, for the respondent.

This appeal was heard on December 9, 2008, at Halifax, N.S., before Bateman, Hamilton and Fichaud, JJ.A., of the Nova Scotia Court of Appeal.

On January 8, 2009, Bateman, J.A., delivered the following judgment for the Court of Appeal.