R. v. Nadolnick (M.P.), (2013) 557 A.R. 230 (PC)

• Judge: Fradsham, P.C.J.
• Court: Provincial Court of Alberta (Canada)
• Case Date: February 07, 2013
• Citations: (2013), 557 A.R. 230 (PC);2013 ABPC 33

R. v. Nadolnick (M.P.) (2013), 557 A.R. 230 (PC)

MLB headnote and full text

Temp. Cite: [2013] A.R. TBEd. AP.135

Her Majesty the Queen v. Michael Peter Nadolnick (090255563P1; 111318762P1; 2013 ABPC 33)

Indexed As: R. v. Nadolnick (M.P.)

Alberta Provincial Court

Fradsham, P.C.J.

February 7, 2013.

Summary:

In 2008, the accused pleaded guilty to sexual assault with an imitation weapon, kidnapping with an imitation weapon (two counts), break and enter with intent, robbery (three counts) and possession of a weapon for a purpose dangerous to the public peace. The Crown brought a dangerous offender application under s. 753 of the Criminal Code. In 2011, during the course of the s. 753 proceeding, the accused committed three more offences in an attempt to escape custody (assault causing bodily harm to an officer in the execution of his duty, unlawful escape from custody, and robbery). The Crown brought a second and concurrent s. 753 application based on the second set of offences. At issue was "(1) Which of the offences to which [the accused] has entered a guilty plea may be considered in the Crown's section 753 dangerous offender applications?; (2) May the Crown rely upon the presumption set out in section 753(1.1) in respect of either or both of its dangerous offender applications?; (3) If [the accused] is found to be a dangerous offender, should the sentences be indeterminate, or determinate with a Long Term Supervision Order (LTSO) to follow?; (4) What are the appropriate sentences for those offences not subject to a section 753 dangerous offender designation?; (5) Should the sentences be served concurrently or consecutively?".

Respecting the 2008 offences (other than break and enter and the weapons offence), the Alberta Provincial Court found the accused to be a dangerous offender. The criteria under ss. 753(1)(a)(i) (pattern of repetitive behaviour), s. 753(1)(a)(ii) (persistent aggressive behaviour) and s. 753(1)(b) (failure to control sexual impulses) were satisfied. Respecting the 2011 offences (other than escaping lawful custody), the accused was found to be a dangerous offender under ss. 753(1)(a)(i) and (ii). The court imposed an indeterminate sentence on the dangerous offender application offences and sentenced the accused to terms of imprisonment on the remaining three offences.

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 5803

Sentencing - General - Consecutive sentences - The accused was convicted of a number of offences which were the basis of a dangerous offender application (Criminal Code, s. 753) - He was found to be a dangerous offender and an indeterminate sentence was imposed - The accused was also sentenced for a number of offences not included in the dangerous offender application - The Alberta Provincial Court held that those sentences could not be consecutive to an indeterminate sentence, much the same as a sentence could not be consecutive to a term of life imprisonment - The court imposed concurrent sentences - See paragraphs 115 to 119.

Criminal Law - Topic 5830

Sentencing - Considerations on imposing sentence - General (incl. "step" or "jump" principle) - The accused was being sentenced for break and enter with intent - He had 15 prior break and enter convictions - The Alberta Provincial Court stated that "where an offender has been sentenced for similar offences, the 'jump' or 'step' principle calls for incremental sentencing. ... where the record demonstrates that sentencing for previous offences has had little apparent deterrent effect, the jump principle will have limited mitigating effect. ... Characterized as 'one of the least significant mitigating factors in sentencing', the jump principle tends to apply more readily 'where offenders are at the relatively less serious end of the criminal conduct spectrum' ... In cases where an accused has 'jumped ... himself into an entirely new and much more culpable and serious sphere of criminal activity' the principle may not apply at all" - See paragraph 170.

Criminal Law - Topic 5846.1

Sentencing - Considerations on imposing sentence - Aboriginal offenders - The accused was found to be a dangerous offender respecting a number of offences and sentenced on other offences which were not included in the dangerous offender application - The accused was of Métis heritage - At issue was the effect of s. 718.2(e) of the Criminal Code (sentencing aboriginal offenders) on whether the accused should be sentenced to an indeterminate or determinate sentence and the sentences to be imposed for the other offences - The Alberta Provincial Court stated that "the violent nature of [the accused's] crimes makes the protection of the public the paramount consideration." - The court adopted the following comments as applicable: "[the accused] was found to be a dangerous offender. The protection of the community is the paramount consideration, whatever the race or ethnicity of the offender. There is no automatic sentencing discount, in such circumstances, merely because the offender is of aboriginal descent" - See paragraph 164.

Criminal Law - Topic 6512

Dangerous or long-term offenders - Detention (incl. common law preventive detention) - General - Evidence and proof - Section 753(1.1) of the Criminal Code provided that the conditions for finding an accused to be a dangerous offender under s. 753(1)(a) (pattern of repetitive behaviour, pattern of persistent aggressive behaviour or brutal behaviour) and s. 753(1)(b) (failure to control sexual impulses) were presumed to have been met unless the accused proved the contrary on a balance of probabilities - The presumption applied where the current offences were "primary designated offences", a sentence of two or more years' imprisonment was appropriate and the accused had at least twice before been convicted of primary designated offences and sentenced on them to two or more years' imprisonment - The Alberta Provincial Court stated that "in relation to offences referred to in subsection (a) of the section 752 definition of 'serious personal injury offence', in order for an offender to rebut the section 753(1.1) presumption, the offender must prove on a balance of probabilities that the offender does not constitute a threat to the life, safety or physical or mental well-being of other persons. In order to do that, the offender must prove, on a balance of probabilities, that none of sections 753(1)(a)(i)-(iii) apply to the offender because section 753(1)(a) provides that it is the establishment of those sets of facts which will satisfy the court that the offender constitutes a threat to the life, safety or physical or mental well-being of other persons. In respect of an offence which constitutes a 'serious personal injury offence' as that term is defined under section 752(b), the presumption which arises, if the conditions set out in section 753(1.1) are met, is that the offender 'has shown a failure to control his or her sexual impulses and a likelihood of causing injury, pain or other evil to other persons through failure in the future to control his or her sexual impulses.' To rebut that presumption, the offender must prove on a balance of probabilities that (1) the offender's conduct in any sexual matter including that involved in the commission of the offence for which the offender has been convicted does not show a failure to control the offender's sexual impulses, or (2) that there is not a likelihood that any failure in the future to control sexual impulses will cause injury, pain or other evil to other persons." - See paragraphs 18 to 24.

Criminal Law - Topic 6512

Dangerous or long-term offenders - Detention (incl. common law preventive detention) - General - Evidence and proof - In 2008, the now 46 year old accused pleaded guilty to sexual assault with an imitation weapon, kidnapping with an imitation weapon (two counts), break and enter with intent, robbery (three counts) and possession of a weapon for a purpose dangerous to the public peace - The Crown brought a dangerous offender application under s. 753 of the Criminal Code - Section 753(1.1) provided that the conditions for finding an accused to be a dangerous offender under s. 753(1)(a) (pattern of repetitive behaviour, pattern of persistent aggressive behaviour or brutal behaviour) and s. 753(1)(b) (failure to control sexual impulses) were presumed to have been met unless the accused proved the contrary on a balance of probabilities - The presumption applied where the current offences were "primary designated offences", a sentence of two or more years' imprisonment was appropriate and the accused had at least twice before been convicted of primary designated offences and sentenced on them to two or more years' imprisonment - In 2011, during the course of the s. 753 proceeding, the remanded accused committed three more offences while being transported for a medical appointment (assault causing bodily harm (corrections officer), unlawful escape from custody, and robbery) - The Crown brought a second and concurrent s. 753 application based on the second set of offences - The accused was a substance abuser diagnosed with anti-personality disorder and psychopathic traits - He had a lengthy record of property offences and offences of violence dating from age 19 - He was assessed as a high risk to re-offend generally and sexually - Notwithstanding substantial past treatment, the level of violence increased over time - Respecting the 2008 offences (other than break and enter and the weapons offence), the Alberta Provincial Court found the accused to be a dangerous offender on the ground that the presumption in s. 753(1.1) had not been rebutted - The evidence established merely a "hope" that with appropriate treatment there was a possibility of controlling the risk the accused presented to the community - A "hope" was insufficient to rebut the presumption - See paragraphs 64 to 67.

Criminal Law - Topic 6552

Dangerous or long-term offenders - Detention - Protection of the public - Pattern of repetitive behaviour - In 2008, the now 46 year old accused pleaded guilty to sexual assault with an imitation weapon, kidnapping with an imitation weapon (two counts), break and enter with intent, robbery (three counts) and possession of a weapon for a purpose dangerous to the public peace - The Crown brought a dangerous offender application under s. 753 of the Criminal Code - In 2011, during the course of the s. 753 proceeding, the remanded accused committed three more offences while being transported for a medical appointment (assault causing bodily harm (corrections officer), unlawful escape from custody, and robbery) - The Crown brought a second and concurrent s. 753 application based on the second set of offences - The accused was a substance abuser diagnosed with anti-personality disorder and psychopathic traits - He had a lengthy record of property offences and offences of violence dating from age 19 - He was assessed as a high risk to re-offend generally and sexually - Notwithstanding substantial past treatment, the level of violence increased over time - Respecting the 2008 offences (other than break and enter and the weapons offence), the Alberta Provincial Court found the accused to be a dangerous offender - The criteria under ss. 753(1)(a)(i) (pattern of repetitive behaviour), s. 753(1)(a)(ii) (persistent aggressive behaviour) and s. 753(1)(b) (failure to control sexual impulses) were satisfied - Respecting the 2011 offences, the accused was found to be a dangerous offender under ss. 753(1)(a)(i) and (ii) - The accused had failed to restrain his repetitive and aggressive behaviour and there was a likelihood that he would commit future offences causing physical and psychological injury to others - His behaviour also illustrated a substantial degree of indifference respecting the reasonable foreseeable consequences of his behaviour - The court imposed an indeterminate sentence rather than a determinate sentence combined with a long-term supervision order - There was no reasonable expectation of otherwise controlling the risk to the community to an acceptable level - See paragraphs 1 to 114.

Criminal Law - Topic 6558

Dangerous or long-term offenders - Detention - Protection of the public - Dangerous sexual offender - [See Criminal Law - Topic 6552 ].

Criminal Law - Topic 6560

Dangerous or long-term offenders - Detention (incl. common law preventive detention) - Protection of the public - Personal injury offences - At issue was whether the violence necessary to support a robbery conviction met the requirement for objectively serious violence under s. 752(a)(i) of the Criminal Code or endangerment under s. 752(a)(ii) - The Alberta Provincial Court stated that "not every robbery conviction will open the dangerous offender gate, and that it depended on the degree of violence used" - The accused's robbery conviction was based on his robbing the victim of her vehicle - The accused threw the victim out of her own vehicle and drove away - The victim suffered minor scrapes, a torn rotator cuff and whiplash type injuries - The court stated that "throwing [the victim] out of the vehicle constituted the exercise of physical force to inflict injury or damage to her and is sufficient to meet the definition of a 'serious personal injury offence'. Therefore, the robbery constitutes a serious personal injury offence because [the accused] used violence to gain access to the vehicle." - See paragraphs 145 to 149.

Criminal Law - Topic 6562

Dangerous or long-term offenders - Detention (incl. common law preventive detention) - Protection of the public - Persistent aggressive behaviour - [See Criminal Law - Topic 6552 ].

Criminal Law - Topic 6576

Dangerous or long-term offenders - Detention (incl. common law preventive detention) - Sentencing - Indeterminate vs. determinate sentence - [See Criminal Law - Topic 6552 ].

Cases Noticed:

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. 29].

R. v. Natomagan (A.D.) (2012), 393 Sask.R. 130; 546 W.A.C. 130 (C.A.), refd to. [para. 66].

R. v. Bitternose (C.L.), [2012] A.R. Uned. 794; 2012 ABPC 321, refd to. [para. 69].

R. v. Currie (R.O.R.), [1997] 2 S.C.R. 260; 211 N.R. 321; 100 O.A.C. 161; 115 C.C.C.(3d) 205, refd to. [para. 90, footnote 41].

R. v. Oliver (D.E.) (1997), 193 A.R. 241; 135 W.A.C. 241; 114 C.C.C.(3d) 50 (C.A.), refd to. [para. 91, footnote 42].

R. v. Lyons, [1987] 2 S.C.R. 309; 80 N.R. 161; 82 N.S.R.(2d) 271; 207 A.P.R. 271; 37 C.C.C.(3d) 1, refd to. [para. 94, footnote 48].

R. v. Mattson (G.E.), [2011] A.R. Uned. 640; 2011 ABPC 228, refd to. [para. 97, footnote 53].

R. v. McCallum (J.E.), [2011] B.C.T.C. Uned. 715; 2011 BCSC 715, refd to. [para. 105, footnote 61].

R. v. Toews (J.P.), [2012] A.R. Uned. 466; 2012 ABQB 283, refd to. [para. 108, footnote 76].

R. v. Downs (C.J.) (2012), 397 Sask.R. 83; 2012 SKQB 198, refd to. [para. 109, footnote 78].

R. v. Sinclair (1972), 6 C.C.C.(2d) 523 (Ont. C.A.), refd to. [para. 115, footnote 81].

R. v. Foy, 46 Cr. App. R. 290, refd to. [para. 115].

R. v. Martin (1982), 65 C.C.C.(2d) 376 (Que. C.A.), refd to. [para. 116, footnote 82].

R. v. Nichols (1978), 9 A.R. 203 (C.A.), refd to. [para. 117, footnote 84].

R. v. Robillard (1985), 22 C.C.C.(3d) 505 (Que. C.A.), refd to. [para. 118, footnote 85].

R. v. Ben (B.) (2011), 374 Sask.R. 165; 2011 SKPC 80, refd to. [para. 125, footnote 91].

R. v. Dow (D.R.) (1999), 120 B.C.A.C. 16; 196 W.A.C. 16 (C.A.), refd to. [para. 129].

R. v. D.E.A. (2004), 202 B.C.A.C. 307; 331 W.A.C. 307; 2004 BCCA 434, refd to. [para. 142, footnote 107].

R. v. Ackerman - see R. v. D.E.A.

R. v. Johnson (J.J.) (2001), 159 B.C.A.C. 255; 259 W.A.C. 255 (C.A.), affd. [2003] 2 S.C.R. 357; 308 N.R. 333; 186 B.C.A.C. 161; 306 W.A.C. 161; 2003 SCC 46, refd to. [para. 142, footnote 107].

R. v. Pearson (R.R.) (2012), 538 A.R. 236; 2012 ABQB 240, refd to. [para. 145, footnote 110].

R. v. Otter (C.G.), [2010] A.R. Uned. 557; 2010 ABPC 218, revd. [2012] A.R. Uned. 12; 2012 ABCA 33, refd to. [para. 145, footnote 110].

R. v. Crane (D.L.), [2008] A.R. Uned. 112; 2008 ABPC 13, refd to. [para. 146, footnote 111].

R. v. Crane (D.L.) (2010), 477 A.R. 172; 483 W.A.C. 172; 254 C.C.C.(3d) 542; 2010 ABCA 130, refd to. [para. 146, footnote 115].

R. v. Langevin (1984), 3 O.A.C. 110; 11 C.C.C.(3d) 336 (C.A.), refd to. [para. 151].

R. v. Gladue (J.T.) (1999), 238 N.R. 1; 121 B.C.A.C. 161; 198 W.A.C. 161; 23 C.R.(5th) 197 (S.C.C.), refd to. [para. 164].

R. v. Ipeelee (M.) (2012), 428 N.R. 1; 288 O.A.C. 224; 318 B.C.A.C. 1; 541 W.A.C. 1; 91 C.R.(6th) 1 (S.C.C.), refd to. [para. 164].

R. v. Ominayak (R.D.) (2012), 539 A.R. 88; 561 W.A.C. 88; 2012 ABCA 337, refd to. [para. 164].

R. v. Nadolnick (M.P.) et al. (2003), 339 A.R. 348; 312 W.A.C. 348; 2003 ABCA 363, refd to. [para. 167].

R. v. Muyser (C.N.) (2009), 457 A.R. 216; 457 W.A.C. 216; 2009 ABCA 116, refd to. [para. 170].

R. v. Kootenay (Q.V.) (2004), 357 A.R. 351; 334 W.A.C. 351; 2004 ABCA 416, refd to. [para. 170].

R. v. Lywood (C.R.), [2009] A.R. Uned. 885; 2010 ABCA 140, refd to. [para. 170].

R. v. Collins (K.D.) (1997), 209 A.R. 220; 160 W.A.C. 220 (C.A.), refd to. [para. 170].

R. v. Leasak (G.M.) (2007), 401 A.R. 282; 391 W.A.C. 282; 2007 ABCA 38, refd to. [para. 170].

R. v. Lemmon (J.D.) (2012), 524 A.R. 164; 545 W.A.C. 164; 2012 ABCA 103, refd to. [para. 171].

R. v. McNeil (T.) (2008), 441 A.R. 1; 2008 ABPC 30, refd to. [para. 177].

R. v. Dieter (M.C.), [2007] A.R. Uned. 152; 2007 ABCA 152, refd to. [para. 178].

R. v. Jacklin (T.J.) (1995), 170 A.R. 284 (Prov. Ct.), refd to. [para. 179].

R. v. Steele (A.) (2007), 365 N.R. 141; 244 B.C.A.C. 89; 403 W.A.C. 89; 2007 SCC 36, refd to. [para. 185].

R. v. Clarke (A.), [2012] O.T.C. Uned. 2776; 2012 ONSC 2776, refd to. [para. 187].

R. v. Joseph (N.), [2011] O.T.C. Uned. 4306; 2011 ONSC 4306, refd to. [para. 188].

R. v. Lake (D.J.) (2008), 429 A.R. 398; 421 W.A.C. 398; 2008 ABCA 204, refd to. [para. 189].

R. v. Desjarlais (1988), 86 A.R. 260; 59 Alta. L.R.(2d) 93 (C.A.), refd to. [para. 196].

R. v. S.J., 2011 ONCJ 111, refd to. [para. 198].

Statutes Noticed:

Criminal Code, R.S.C. 1946, c. C-46, sect. 752 [para. 17]; sect. 753(1) [para. 16]; sect. 753(1.1) [para. 18].

Authors and Works Noticed:

Ruby, Clayton C., Sentencing (5th Ed. 1999), paras. 22.295 to 22.299 [para. 177].

Ruby, Clayton C., and Hasan, N.R., Sentencing (8th Ed. 2013), paras. 23.480 [para. 177, footnote 122]; 23.671 [para. 184].

Counsel:

Beverly Bauer, Q.C., and Sarah Clive, for the Crown;

Margaret Keelaghan, for the accused.

This application was heard at Calgary, Alberta, before Fradsham, P.C.J., of the Alberta Provincial Court, who delivered the following judgment on February 7, 2013.