R. v. Ominayak (R.D.), (2007) 443 A.R. 1 (QB)

• Judge: Topolniski, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: June 29, 2007
• Citations: (2007), 443 A.R. 1 (QB);2007 ABQB 442

R. v. Ominayak (R.D.) (2007), 443 A.R. 1 (QB)

MLB headnote and full text

Temp. Cite: [2008] A.R. TBEd. MY.031

Her Majesty The Queen v. Russell Dean Ominayak (030692297Q1; 030692297Q2; 2007 ABQB 442)

Indexed As: R. v. Ominayak (R.D.)

Alberta Court of Queen's Bench

Judicial District of Edmonton

Topolniski, J.

June 29, 2007.

Summary:

After the accused was convicted of aggravated sexual assault, sexual interference, unlawful confinement (two counts), inviting sexual touching, robbery, mischief, and break and enter (four counts), the Crown applied to have him found to be a dangerous offender.

The Alberta Court of Queen's Bench found the accused to be a dangerous offender and sentenced him to an indeterminate period of detention.

Criminal Law - Topic 6503.2

Dangerous or long-term offenders - Detention - General - Dangerous offender and long-term offender distinguished - The Alberta Court of Queen's Bench stated that "there is a residual discretion under s. 753(1) not to designate a person as a dangerous offender even though the statutory criteria are met. An indeterminate sentence is to be imposed only where there is not a less restrictive alternative that will reduce the threat to the life, safety or physical or mental well-being of other persons to an acceptable degree. ... the sentencing judge is to take into consideration the long-term offender provisions prior to declaring an offender dangerous and imposing an indeterminate sentence. If the long-term offender options are sufficient to reduce the threat to the necessary extent, the offender cannot properly be declared a dangerous offender, even if all of the statutory criteria are met. What this means in practical terms is that if a long-term offender disposition will involve a sufficient duration of actual custody to address the concerns of public protection, and if it can presently be seen to be reasonably possible that at the end of that time the risk represented by the offender can be controlled in the community, the court should not choose a disposition which would mean the offender would be unnecessarily detained." - See paragraphs 26 to 27.

Criminal Law - Topic 6553

Dangerous or long-term offenders - Detention - Protection of the public - Brutality of predicate offence - After the accused was convicted of aggravated sexual assault, sexual interference, unlawful confinement (two counts), inviting sexual touching, robbery, mischief and break and enter (four counts), the Crown applied to have him found to be a dangerous offender - The Alberta Court of Queen's Bench found the accused to be a dangerous offender under s. 752(1)(a)(iii) of the Criminal Code (brutal nature of offence) - The accused was guilty of conduct which was "coarse, savage and cruel and which is capable of inflicting severe psychological damage on the victim" - He had an extensive criminal record as a youth and young adult for mostly break and enters and thefts, the proceeds of which funded his alcohol and drug addictions - He was on parole when the predicate offences were committed - He was sporadically employed because he was consistently incarcerated - The court found that the accused "is properly diagnosed with having antisocial personality disorder, polysubstance abuse, and a possible but yet undiagnosed paraphilia. [The accused] had an unfortunate upbringing, but that does not alter the reality of who he is: a callous, mainly unemphathic, narcissistic and remorseless individual with a well entrenched set of antisocial values who is highly impulsive, blames others for almost all of his problems, and who had a long track record of irresponsibility in a number of domains in his life. ... [the accused] is statistically among the highest risk group of offenders and that he is likely to re-offend violently over the long term" - The accused's conduct was substantially or pathologically intractable and he constituted a threat to the life, safety and physical or mental well-being of other persons - The court declined to exercise its discretion to designate the accused as a long-term offender rather than a dangerous offender, as there was no reasonable possibility that the risk the accused posed could eventually be controlled in the community.

Criminal Law - Topic 6560

Dangerous or long-term offenders - Detention - Protection of the public - Personal injury offences - Section 752(a)(i) and (ii) defined "serious personal injury offence" as "the use or attempted use of violence against any person" or "conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage on another person" - The Alberta Court of Queen's Bench stated that "the violence or attempted violence ... and the endangerment ... in terms of the acts constituting the predicate offence must be objectively serious ... Significant injuries need not have been suffered by the victim for an offence to be objectively serious ... and the predicate offence itself does not have to be the worst offence committed by the offender as part of the offender's pattern of behaviour" - The court referred to four factors in determining whether injuries were objectively serious: "(1) it would be inconsistent with Parliament's purpose in enacting the dangerous offender legislation to include offences where the violence is not serious; (2) the constitutionality of the legislation is premised on the predicate offence showing conduct that would tend to cause severe physical danger or severe psychological injury to other persons; (3) the pattern requirement in s. 753(1)(a)(i) or (ii) would be diluted to an unacceptable degree if the seriousness of the violence was not assessed; (4) application of an objective standard of seriousness to the predicate offence recognizes that the offence is 'the last straw', justifying the Crown involving the dangerous offender proceedings." - See paragraphs 7 to 8.

Cases Noticed:

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. 6].

R. v. Neve (L.C.) (1999), 237 A.R. 201; 197 W.A.C. 201; 1999 ABCA 206, refd to. [para. 7].

R. v. Francis (E.C.), [2006] A.R. Uned. 703; 2006 ABQB 803, refd to. [para. 7].

R. v. Currie (R.O.R.), [1997] 2 S.C.R. 260; 211 N.R. 321; 100 O.A.C. 161, refd to. [para. 7].

R. v. Langevin (1984), 3 O.A.C. 110; 11 C.C.C.(3d) 336 (C.A.), refd to. [para. 13].

R. v. Poole (S.) (2000), 142 B.C.A.C. 151; 233 W.A.C. 151 (C.A.), leave to appeal denied (2001), 268 N.R. 394 (S.C.C.), refd to. [para. 13].

R. v. Lewis (1984), 4 O.A.C. 98; 12 C.C.C.(3d) 353 (C.A.), refd to. [para. 16].

R. v. Shortreed (1990), 37 O.A.C. 144; 54 C.C.C.(3d) 292 (C.A.), refd to. [para. 17].

R. v. Hall (M.B.) (2004), 185 O.A.C. 319; 186 C.C.C.(3d) 62 (C.A.), refd to. [para. 20].

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. 21].

R. v. Nepoose (R.J.) (1997), 200 A.R. 273; 146 W.A.C. 273; 118 C.C.C.(3d) 570 (C.A.), refd to. [para. 25].

R. v. F.E.D. (2007), 222 O.A.C. 253; 2007 ONCA 246, refd to. [para. 25].

R. v. Johnson (J.J.), [2003] 2 S.C.R. 357; 308 N.R. 333; 186 B.C.A.C. 161; 306 W.A.C. 161; 2002 SCC 46, refd to. [para. 26].

R. v. Wormell (W.J.) (2005), 213 B.C.A.C. 223; 352 W.A.C. 223; 198 C.C.C.(3d) 252; 2005 BCCA 328, leave to appeal denied (2006), 350 N.R. 196 (S.C.C.), refd to. [para. 29].

R. v. Boyer (2006), 42 C.R.(6th) 140; 2006 QCCA 1091, refd to. [para. 29].

R. v. J.J.M. (2006), 297 N.B.R.(2d) 355; 771 A.P.R. 355; 208 C.C.C.(3d) 312; 2006 NBCA 39, leave to appeal denied (2006), 361 N.R. 389 (S.C.C.), refd to. [para. 30].

R. v. Berikoff (R.C.), [2007] B.C.A.C. Uned. 14; 2007 BCCA 31, refd to. [para. 31].

R. v. Howell, [2006] O.J. No. 383 (C.A.), refd to. [para. 31].

R. v. Herbert (W.D.) (2006), 207 O.A.C. 337 (C.A.), refd to. [para. 31].

R. v. English (T.), [2006] O.A.C. Uned. 222 (C.A.), refd to. [para. 31].

R. v. Essery, [2006] O.J. No. 4941 (C.A.), refd to. [para. 31].

R. v. Grayer (D.) (2007), 219 O.A.C. 114; 215 C.C.C.(3d) 505; 2007 ONCA 13, refd to. [para. 32].

R. v. Allen (R.C.), 2007 ONCA 421, refd to. [para. 32].

R. v. Saddlemire (S.R.) (2007), 219 O.A.C. 259; 216 C.C.C.(3d) 119; 2007 ONCA 36, refd to. [para. 32].

R. v. Dagenais (R.A.) (2003), 339 A.R. 132; 312 W.A.C. 132; 2003 ABCA 376, leave to appeal denied (2004), 333 N.R. 397 (S.C.C.), refd to. [para. 33].

R. v. Gladue (J.T.), [1999] 1 S.C.R. 688; 238 N.R. 1; 121 B.C.A.C. 161; 198 W.A.C. 161, refd to. [para. 45].

R. v. Dow (D.R.) (1999), 120 B.C.A.C. 16; 196 W.A.C. 16; 134 C.C.C.(3d) 323; 1999 BCCA 177, refd to. [para. 188].

R. v. Melanson (J.) (2001), 142 O.A.C. 184; 152 C.C.C.(3d) 375 (C.A.), leave to appeal refused (2001), 284 N.R. 196; 158 O.A.C. 200 (S.C.C.), refd to. [para. 194].

R. v. Latham (1987), 47 Man.R.(2d) 81 (Q.B.), refd to. [para. 209].

R. v. Milne (1982), 66 C.C.C.(2d) 544 (B.C.C.A.), refd to. [para. 209].

R. v. Laboucan (A.F.) (2002), 170 B.C.A.C. 118; 279 W.A.C. 118; 166 C.C.C.(3d) 280; 2002 BCCA 376, refd to. [para. 209].

R. v. J.T.H. (2002), 209 N.S.R.(2d) 302; 656 A.P.R. 302; 170 C.C.C.(3d) 405; 2002 NSCA 138, refd to. [para. 223].

R. v. Mousseau (T.M.) (2003), 351 A.R. 23; 2003 ABQB 621, refd to. [para. 224].

R. v. Dwyer (1977), 3 A.R. 96 (C.A.), leave to appeal denied (1977), 6 A.R. 625 (S.C.C.), refd to. [para. 224].

R. v. D.R.A., [2001] A.R. Uned. 437; 2001 ABQB 1106, refd to. [para. 233].

R. v. Laberge (K.K.) (1995), 165 A.R. 375; 89 W.A.C. 375 (C.A.), refd to. [para. 236].

Counsel:

Mark Huyser-Wierenga, for the Crown;

Laurie Wood, for the accused.

This application was heard on January 9-10, September 25-29 and October 2-12, 2006, and April 5 and 12-13, 2007, before Topolniski, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following judgment on June 29, 2007.