R. v. Neve (L.C.), (1999) 237 A.R. 201 (CA)

• Judge: Fraser, C.J.A., Conrad and Picard, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: June 29, 1999
• Citations: (1999), 237 A.R. 201 (CA);1999 ABCA 206;[1999] 11 WWR 649;237 AR 201;71 Alta LR (3d) 92;137 CCC (3d) 97;[1999] CarswellAlta 595;[1999] AJ No 753 (QL)

R. v. Neve (L.C.) (1999), 237 A.R. 201 (CA);

    197 W.A.C. 201

MLB headnote and full text

Temp. Cite: [1999] A.R. TBEd. JL.010

Her Majesty The Queen (respondent) v. Lisa Colleen Neve (appellant)

(Appeal No. 9403-0881-A)

Indexed As: R. v. Neve (L.C.)

Alberta Court of Appeal

Fraser, C.J.A., Conrad and Picard, JJ.A.

June 29, 1999.

Summary:

The accused was convicted of robbery and assault with a weapon, contrary to ss. 344 and 267(1)(a) of the Criminal Code. The latter charge was stayed. The Crown applied under s. 753(a) of the Criminal Code to have the accused found to be a dangerous offender and sentenced accordingly.

The Alberta Court of Queen's Bench, in a judgment reported 160 A.R. 255, declared the accused to be a dangerous offender and sentenced her to an indeterminate period of detention. The accused appealed the convic­tion and the dangerous offender designation.

The Alberta Court of Appeal dismissed the conviction appeal, but allowed the dangerous offender designation appeal (accused not a dangerous offender) and substituted a sen­tence of three years' imprisonment, consecu­tive to any other sentence being served. On the evidence, it was not reasonable to desig­nate the accused as a dangerous offender.

Criminal Law - Topic 1644

Theft - Elements - Taking by fraud - Sec­tion 322(1) of the Criminal Code defined theft as a person taking the prop­erty of another "fraudulently and without colour of right" - The accused took the victim's clothes by removing them from her using a knife - The accused submitted that absent deceit, falsehood or trickery, the clothes were not taken "fraudulently" and there was no theft (required element for robbery) - The Alberta Court of Appeal held that property was taken "fraudulently" for the purpose of s. 322(1) where the taking was done intentionally, under no mistake and with knowledge that the thing taken was the property of another - See paragraphs 25 to 31.

Criminal Law - Topic 1645

Theft - Elements - Intention or mens rea - The accused prostitute was convicted of robbery when another prostitute was driven to a secluded area, was removed of her clothes with the use of a knife and left there naked - The accused submitted that there was no theft absent an intention to deprive the victim of her clothes (i.e., clothes left at the scene) - The Alberta Court of Appeal held that a theft did not require an intention to permanently deprive the owner of property - A temporary depri­vation was sufficient to ground a convic­tion for theft - The accused com­mitted a theft where she took the victim's clothes, even if only for a brief time - See para­graphs 32 to 34.

Criminal Law - Topic 1665

Theft - Defences - Prank, frolic or joke - The accused prostitute was convicted of robbery when another prostitute was driven to a secluded area, was removed of her clothes with the use of a knife and left there naked - The motive was to get even with the victim for something she did to one of the accused's acquaintances - The accused submitted that the incident was merely a "prank" - The Alberta Court of Appeal recognized that not every improper dealing with property was a theft - How­ever, "a prank is a practical joke. What happened here does not fit that description. It was a taking for the purpose of depriv­ing the victim, albeit not for the benefit of the taker. It was not a joke and motive does not change the character of the act if the property was taken for the purpose of depriving the owner." - See paragraph 31.

Criminal Law - Topic 4853

Appeals - Indictable offences - Grounds of appeal - Grounds raised for the first time on appeal - The accused appealed her robbery conviction on the ground that her s. 7 Charter right to be advised of her right to remain silent was violated - The issue was not raised at trial - The Alberta Court of Appeal held that it was not now open for the accused to raise the issue on appeal for the first time - The Crown was deprived of an opportunity to fully explore the implications of the failure to warn or caution as well as the question of whether the evidence should, in any event, be excluded under s. 24 of the Charter - This was not a case where the interests of jus­tice justified considering the issue for the first time on appeal - See paragraph 24.

Criminal Law - Topic 5045

Appeals - Indictable offences - Dismissal of appeal if no prejudice, substantial wrong or miscarriage results - What constitutes a substantial wrong or miscarriage of justice - The accused prostitute was convicted of robbery when another prostitute was driven to a secluded area, was removed of her clothes with the use of a knife and left there naked - The victim knew the accused and directed police to where she could be found - The accused admitted to the inci­dent to get even with the victim - The accused submitted that the trial judge erred in finding the statement freely and volun­tarily given - The Alberta Court of Appeal held that even if the statement was not voluntarily given, the court would invoke s. 686(1)(b)(iii) of the Criminal Code to dismiss the appeal, where there was no reasonable possibility that the verdict would have been different had the error not been made - The statements were relevant only to identity and motive - Identity was not in issue (victim knew the accused) and motive was irrelevant - See paragraphs 21 to 24.

Criminal Law - Topic 6503

Dangerous offenders - Detention - Dan­gerous offender defined - The Crown applied under s. 753(a) of the Criminal Code to have a 22 year old accused con­victed of robbery found to be a dangerous offender - The accused was a substance abuser who fantasized about killing people - She had been a juvenile prostitute since age 12 - Three of four psychiatrists labelled her a psychopath, but the trial judge declined to find her to be a psycho­path - The trial judge found the accused to be a dangerous offender, stating that she had "a severe antisocial personality dis­order which manifests itself in evil, violent and sadistic thoughts, utterances and actions", a history of inability to restrain her behaviour and there was a likelihood she would commit further violent offences - Accordingly, the trial judge imposed an indeterminate period of detention - The Alberta Court of Appeal held that assum­ing the statutory criteria for dangerous offenders were met, the trial judge erred in exercising his residual discretion to desig­nate the accused a dangerous offender - After examining the appropriate consider­ations (treatment prospects, relative degree of seriousness of criminal conduct and moral blameworthiness, and the accused's personal circumstances), it was unreason­able to find that the accused fell within that "very small group of offenders whose personal characteristics and particular circumstances militate strenuously in favour of preventative detention" - The court substituted a sentence of three years' imprisonment for the predicate offence (robbery) - See paragraphs 227 to 293.

Criminal Law - Topic 6508

Dangerous offenders - Detention - Legis­lation - Interpretation and application - The Alberta Court of Appeal discussed the purpose of dangerous offender legislation, stating that, inter alia, "the legislation is targeted to apply to 'a very small group of offenders whose personal characteristics and particular circumstances militate stren­uously in favour of preventative incarcera­tion'" - See paragraphs 53 to 62.

Criminal Law - Topic 6513

Dangerous offenders - Detention - Gen­eral - Psychiatric evidence - The Alberta Court of Appeal held that psychiatric evidence was admissible at all stages of a s. 753 dangerous offender application (pattern assessment, threat assessment and residual dangerousness assessment) - The court discussed the purpose and limits of psy­chiatric evidence in dangerous offender proceedings and the considerations affec­ting the court's weighing of psychiatric evidence - See paragraphs 180 to 224.

Criminal Law - Topic 6516

Dangerous offenders - Detention - Appeals - Scope of - The Alberta Court of Appeal discussed the scope of an appeal from a dangerous offender designation - The court stated that "a more robust ap­pellate review is required particularly vis-à-vis a danger­ous offender designation than that which applies to a review of sentencing generally" - The court referred to a Supreme Court of Canada statement that "I do not find the 'manifestly wrong' or 'demonstrably unfit' general sentencing standards ... to be applicable to this situ­ation. However, it is equally true that s. 759 cannot be interpreted as calling for the equivalent of a trial de novo on the dan­gerous offender application. Some defer­ence to the findings of a trial judge is warranted." - See paragraphs 50 to 51.

Criminal Law - Topic 6552

Dangerous offenders - Detention - Pro­tection of the public - Pattern of repetitive behaviour - If the Crown established that the predicate offence was a serious per­sonal injury offence, then the issue under s. 753(a) of the Criminal Code was whether the accused constituted a threat to the life, safety or physical or mental well-being of others on the basis of evidence of past behaviour - The Alberta Court of Appeal stated that no threat could be found without proof of past behaviour meeting at least one of the three separate thresholds under s. 753(a)(i), (ii) or (iii) (e.g., pattern of repetitive unrestrained behaviour, per­sistent aggressive behaviour or brutal predicate offence) - Only past criminal behaviour was relevant - Anti-social behaviour which was not criminal was not relevant - The court stated that "the import of these requirements is that the evidence must show a pattern of repetitive violent behaviour or persistent aggressive behav­iour by the offender, including the predi­cate offence, and from that behaviour, it must be possible to conclude that the offender represents a serious risk to others" - See paragraphs 93 to 120.

Criminal Law - Topic 6552

Dangerous offenders - Detention - Pro­tection of the public - Pattern of repetitive behaviour - If the Crown established that the predicate offence was a serious per­sonal injury offence, then the issue under s. 753(a) of the Criminal Code was whether the accused constituted a threat to the life, safety or physical or mental well-being of others on the basis of evidence of a pattern of past violent or aggressive behaviour - The Alberta Court of Appeal held that there were three areas of admiss­ible evidence to assess the accused's "pat­tern of behaviour": (1) past criminal acts and criminal record; (2) extrinsic evidence relevant to those acts and the circum­stances surrounding them; and (3) psy­chiatric reports respecting that conduct - The court discussed what evidence was irrelevant to the assessment of a "pattern" - The trial judge improperly considered, inter alia, the accused's diary entries re­specting her thoughts and feelings (uncon­nected with any conduct), criminal behav­iour not subject to charges, previous con­victions for carrying a concealed weapon, break and enter and uttering threats and an incident where the accused tied up another prostitute - See paragraphs 121 to 179.

Criminal Law - Topic 6560

Dangerous offenders - Detention - Pro­tection of the public - Personal injury offences - Section 752(a) of the Criminal Code required, to bring an application for a dangerous offender designation, that the triggering or predicate offence was a "seri­ous personal injury offence" - A "serious personal injury offence" required the "use or attempted use of violence" or conduct "endangering or likely to endanger" others - The Alberta Court of Appeal discussed the requirement that the violence or endangerment contemplated by s. 752(a) must be "objectively" serious - The court held that the trial judge erred in finding that the violence used in a robbery was sufficient to make it a serious personal injury offence without determining the issue of seriousness objectively - See paragraphs 64 to 92.

Criminal Law - Topic 6562

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

Criminal Law - Topic 6575

Dangerous offenders - Sentencing - Sen­tence - [See Criminal Law - Topic 6503 ].

Cases Noticed:

R. v. Kienapple, [1975] 1 S.C.R. 729; 1 N.R. 322; 15 C.C.C.(2d) 524; 26 C.R.N.S. 1; 44 D.L.R.(3d) 351, refd to. [para. 20].

R. v. Bevan and Griffith, [1993] 2 S.C.R. 599; 154 N.R. 245; 64 O.A.C. 165; 104 D.L.R.(4th) 180; 82 C.C.C.(3d) 310; 21 C.R.(4th) 277, refd to. [para. 22].

R. v. Jacquard (C.O.), [1997] 1 S.C.R. 314; 207 N.R. 246; 157 N.S.R.(2d) 161; 462 A.P.R. 161; 113 C.C.C.(3d) 1, refd to. [para. 22].

R. v. Haughton (D.), [1994] 3 S.C.R. 516; 179 N.R. 1; 79 O.A.C. 319; 93 C.C.C.(3d) 99, refd to. [para. 22].

Colpitts v. R., [1965] S.C.R. 739, refd to. [para. 22].

R. v. Buttar, [1989] 2 S.C.R. 1429; 102 N.R. 150, refd to. [para. 24].

R. v. Fertal (G.D.) (1993), 145 A.R. 225; 55 W.A.C. 225; 85 C.C.C.(3d) 411 (C.A.), refd to. [para. 24].

R. v. Vidulich (1989), 37 B.C.L.R.(2d) 391 (C.A.), refd to. [para. 24].

R. v. Skalbania (N.M.), [1997] 3 S.C.R. 995; 220 N.R. 349; 99 B.C.A.C. 81; 162 W.A.C. 81, refd to. [para. 27].

R. v. Lafrance, [1975] 2 S.C.R. 201, refd to. [para. 28].

R. v. Williams, [1953] 1 Q.B. 660 (C.A.), refd to. [para. 28].

R. v. Kerr, [1965] 4 C.C.C. 37 (Man. C.A.), refd to. [para. 31].

R. v. Smith (E.) (1989), 74 Nfld. & P.E.I.R. 280; 231 A.P.R. 280 (Nfld. T.D.), refd to. [para. 31].

R. v. Théroux (R.), [1993] 2 S.C.R. 5; 151 N.R. 104; 54 Q.A.C. 184; 79 C.C.C.(3d) 449; 19 C.R.(4th) 194; 100 D.L.R.(4th) 624, refd to. [para. 31].

Bogner v. R. (1975), 33 C.R.N.S. 348 (Que. C.A.), refd to. [para. 31].

R. v. Van der Peet (D.M.), [1996] 2 S.C.R. 507; 200 N.R. 1; 80 B.C.A.C. 81; 130 W.A.C. 81, refd to. [para. 34].

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. 40].

R. v. Oliver (D.E.) (1997), 193 A.R. 241; 135 W.A.C. 241 (C.A.), refd to. [para. 40].

R. v. Langevin (1984), 3 O.A.C. 110; 11 C.C.C.(3d) 336 (C.A.), refd to. [para. 40].

R. v. Boutilier (J.H.) (1995), 144 N.S.R.(2d) 293; 416 A.P.R. 293; 101 C.C.C.(3d) 1 (C.A.), refd to. [para. 40].

R. v. Dunn (J.), [1995] 1 S.C.R. 226; 176 N.R. 375; 79 O.A.C. 161; 95 C.C.C.(3d) 289, refd to. [para. 41].

R. v. Young (G.) (1998), 159 Nfld. & P.E.I.R. 136; 492 A.P.R. 136 (Nfld. C.A.), leave to appeal refused (1998), 229 N.R. 400; 167 Nfld. & P.E.I.R. 358; 513 A.P.R. 358 (S.C.C.), refd to. [para. 41].

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; 61 C.R.(3d) 1; 44 D.L.R.(4th) 193, refd to. [para. 51].

R. v. Hydro-Quebec, [1997] 3 S.C.R. 213; 217 N.R. 241, refd to. [para. 53].

R. v. Lewis (A.J.) et al., [1996] 1 S.C.R. 921; 196 N.R. 165; 75 B.C.A.C. 1; 123 W.A.C. 1, refd to. [para. 53].

R. v. Brady (J.R.) (1998), 209 A.R. 321; 160 W.A.C. 321; 121 C.C.C.(3d) 504 (C.A.), refd to. [para. 54].

Milne v. Canada et al., [1987] 2 S.C.R. 512; 81 N.R. 36; 25 O.A.C. 100, refd to. [para. 60].

Da­vidson v. Slaight Communi­cations Inc., [1989] 1 S.C.R. 1038; 93 N.R. 183; 59 D.L.R.(4th) 416; 26 C.C.E.L. 85; 89 C.L.L.C. 14,031; 40 C.R.R. 100, refd to. [para. 62].

Hills v. Canada (Attorney General), [1988] 1 S.C.R. 513; 84 N.R. 86; 48 D.L.R.(4th) 193; 88 C.L.L.C. 14,011, refd to. [para. 62].

R. v. J.Y. (1996), 141 Sask.R. 132; 114 W.A.C. 132; 104 C.C.C.(3d) 512 (C.A.), refd to. [para. 67].

Pitters v. Criminal Injuries Compensation Board (Ont.) (1996), 95 O.A.C. 325 (Div. Ct.), refd to. [para. 74].

R. v. Newman (1994), 115 Nfld. & P.E.I.R. 197; 360 A.P.R. 197 (Nfld. C.A.), refd to. [para. 80].

R. v. Jones (S.), [1994] 2 S.C.R. 229; 166 N.R. 321; 43 B.C.A.C. 241; 69 W.A.C. 241; 89 C.C.C.(3d) 353, refd to. [para. 82].

R. v. Lew (1978), 40 C.C.C.(2d) 140 (Ont. C.A.), refd to. [para. 88].

R. v. Oakley (1986), 13 O.A.C. 141; 24 C.C.C.(3d) 351 (C.A.), refd to. [para. 88].

R. v. Trudel (1984), 12 C.C.C.(3d) 342 (Que. C.A.), refd to. [para. 88].

R. v. Pelletier (1992), 71 C.C.C.(3d) 438 (Que. C.A.), refd to. [para. 88].

R. v. Barrett (D.), [1995] 1 S.C.R. 752; 179 N.R. 68; 80 O.A.C. 1; 96 C.C.C.(3d) 319, refd to. [para. 95].

R. v. Burns (R.H.), [1994] 1 S.C.R. 656; 165 N.R. 374; 42 B.C.A.C. 161; 67 W.A.C. 161; 89 C.C.C.(3d) 193; 29 C.R.(4th) 113, refd to. [para. 95].

R. v. Smith (D.A.), [1990] 1 S.C.R. 991; 111 N.R. 144; 109 A.R. 160, affing. (1989), 95 A.R. 304 (C.A.), refd to. [para. 95].

R. v. Dow (D.R.) (1999), 120 B.C.A.C. 16; 196 W.A.C. 16 (C.A.), refd to. [para. 112].

R. v. Jones (J.F.) (1993), 63 O.A.C. 317 (C.A.), refd to. [para. 113].

R. v. Seaboyer and Gayme, [1991] 2 S.C.R. 577; 128 N.R. 81; 48 O.A.C. 81; 66 C.C.C.(3d) 321; 7 C.R.(4th) 117; 83 D.L.R.(4th) 193, refd to. [para. 126].

R. v. Watson (K.S.) (1996), 92 O.A.C. 131; 30 O.R.(3d) 161 (C.A.), refd to. [para. 126].

R. v. Jack (T.P.) (1998), 104 B.C.A.C. 175; 170 W.A.C. 175 (C.A.), refd to. [para. 132].

R. v. Latham (1987), 47 Man.R.(2d) 81 (Q.B.), leave to appeal refused (1988), 90 N.R. 318; 57 Man.R.(2d) 159 (S.C.C.), refd to. [para. 133].

R. v. Lewis (1984), 4 O.A.C. 98; 12 C.C.C.(3d) 353 (C.A.), appeal abandoned (1986), 62 N.R. 328; 11 O.A.C. 186; 25 C.C.C.(3d) 288 (S.C.C.) refd to. [para. 133].

R. v. Newman (1994), 115 Nfld. & P.E.I.R. 197; 360 A.P.R. 197 (Nfld. C.A.), refd to. [para. 133].

R. v. Jackson (1981), 46 N.S.R.(2d) 92; 89 A.P.R. 92; 61 C.C.C.(2d) 540 (C.A.), leave to appeal refused (1982), 30 C.R.(3d) xxix (S.C.C.), refd to. [para. 133].

R. v. Corbiere (H.E.) (1995), 80 O.A.C. 222 (C.A.), refd to. [para. 134].

Still v. Minister of National Revenue (1997), 221 N.R. 127; 154 D.L.R.(4th) 229 (F.C.A.), refd to. [para. 143].

Ouston v. Zurowski (1985), 63 B.C.L.R. 89 (C.A.), refd to. [para. 143].

R. v. Neve (L.C.) (1994), 157 A.R. 182; 77 W.A.C. 182 (C.A.), refd to. [para. 169].

R. v. Clemente (V.F.), [1994] 2 S.C.R. 758; 168 N.R. 310; 95 Man.R.(2d) 161; 70 W.A.C. 161, refd to. [para. 172].

R. v. McCraw, [1991] 3 S.C.R. 72; 128 N.R. 299; 49 O.A.C. 47; 66 C.C.C.(3d) 517, refd to. [para. 172].

R. v. Leblanc, [1989] 1 S.C.R. 1583; 96 N.R. 240; 99 N.B.R.(2d) 449; 250 A.P.R. 449, refd to. [para. 172].

R. v. Parkes, [1956] S.C.R. 768, refd to. [para. 182].

Wilband v. R., [1967] S.C.R. 14, refd to. [para. 187].

R. v. Kanester, [1968] 1 C.C.C. 351 (B.C.C.A.), refd to. [para. 187].

R. v. Boyd (1983), 8 C.C.C.(3d) 143 (B.C.C.A.), refd to. [para. 187].

R. v. Lavallee, [1990] 1 S.C.R. 852; 108 N.R. 321; 67 Man.R.(2d) 1; 55 C.C.C.(3d) 97; 76 C.R.(3d) 329; [1990] 4 W.W.R. 1, refd to. [para. 187].

R. v. Carleton (1981), 32 A.R. 181; 23 C.R.(3d) 129 (C.A.), affd. [1983] 2 S.C.R. 58; 52 N.R. 293; 47 A.R. 160, refd to. [para. 233].

R. v. Laberge (K.K.) (1995), 165 A.R. 375; 89 W.A.C. 375 (C.A.), refd to. [para. 256].

R. v. J.J.M., [1993] 2 S.C.R. 421; 152 N.R. 274; 85 Man.R.(2d) 161; 41 W.A.C. 161; 81 C.C.C.(3d) 487, refd to. [para. 259].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 322(1)(a) [para. 25]; sect. 752(a), sect. 753 [para. 42].

Authors and Works Noticed:

Badgley Report - see Canada, Report of the Committee on Sexual Offences Against Children and Youths, Sexual Offences Against Children.

Brannigan, A., Victimization of Prostitutes in Calgary and Winnipeg, Report for the Department of Justice of Canada (1994), p. 42 [para. 284].

Canada, Law Reform Commission Report, The Criminal Process and Mental Dis­order, Working Paper 14 (1975), pp. 19 [para. 183]; 57 [para. 184].

Canada, Report of the Committee on Sex­ual Offences Against Children and Youths, Sexual Offences Against Children (Badgley Report) (1984), vol. 2, pp. 1021, 1022 [para. 284]; 1027 [para. 250].

Canada, Special Committee on Pornogra­phy and Prostitution, Report of the Special Committee on Pornography and Prostitution (Fraser Report) (1985), vol. 2, generally [para. 249].

Côté, Pierre-André, Interpretation of Leg­is­lation in Canada (2nd Ed. 1991), gen­erally [para. 53].

Driedger, Elmer A., Construction of Stat­utes (3rd Ed. 1994), generally [para. 53].

Fraser Report - see Canada, Special Com­mittee on Pornography and Prostitution Report (1985).

Fridman, Gerald Henry Louis, The Law of Contract in Canada (3rd Ed. 1994), pp. 344, 345, 346 [para. 143].

Lowman, J., and Fraser, L., Violence Against Persons Who Prostitute: The Experience in British Columbia, Report for the Department of Justice of Canada (1996), generally [para. 249].

Oxford English Dictionary (2nd Ed. 1989), pp. 654, 655 [para. 73].

Sansfacon, D., Prostitution in Canada: A Research Review Report, Report for the Department of Justice of Canada (1984), p. 73 [para. 252].

Street Prostitution in Canada (1997), 17:2 Juristat 1, p. 8 [para. 251].

Webster's Third New International Dic­tionary of the English Language (1986), p. 2554 [para. 72].

Counsel:

K. Tjosvold, for the respondent;

B.A. Beresh, for the appellant.

This appeal was heard before Fraser, C.J.A., Conrad and Picard, JJ.A., of the Alberta Court of Appeal.

On June 29, 1999, the following judgment was delivered by the Court.