R. v. Roberts (R.), (2007) 220 O.A.C. 46 (CA)

• Judge: Feldman, Simmons and Rouleau, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: September 21, 2006
• Jurisdiction: Ontario
• Citations: (2007), 220 O.A.C. 46 (CA)

R. v. Roberts (R.) (2007), 220 O.A.C. 46 (CA)

MLB headnote and full text

Temp. Cite: [2007] O.A.C. TBEd. FE.006

Her Majesty the Queen (appellant) v. Ronald Roberts (respondent)

(C41735)

Indexed As: R. v. Roberts (R.)

Ontario Court of Appeal

Feldman, Simmons and Rouleau, JJ.A.

January 31, 2007.

Summary:

The accused was convicted of aggravated assault. He had a lengthy criminal record, which included crimes of violence. The Crown brought a dangerous offender application. Following the hearing of evidence at the dangerous offender hearing, the sentencing judge decided that before a person could be declared a dangerous offender, the court had to determine that it would otherwise impose a minimum two year sentence for the predicate offence. The sentencing judge concluded that this was necessary in order to make the dangerous offender provision in s. 753(1) of the Criminal Code, consistent with the similar requirement that was specifically imposed by s. 753.1(1)(a) before a person could be declared a long-term offender. Although the accused had been in pre-sentence custody for three years and seven months, the sentencing judge determined that the appropriate sentence for the predicate offence was two years less a day, plus three years' probation. As a result, he found that the accused did not meet the criteria for designation as a dangerous or long-term offender. The sentencing judge imposed the sentence of two years less a day (which the accused had already served) plus three years' probation. The Crown appealed.

The Ontario Court of Appeal allowed the appeal. The court held that the sentencing judge erred in law by reading into the dangerous offender provision in s. 753(1), a requirement that a minimum sentence of two years would have been imposed for the predicate offence. The sentencing judge then failed to fully consider whether the accused met the statutory criteria for a dangerous or long-term offender designation and to exercise his discretion to determine whether to declare the accused a dangerous or long-term offender. He also erred in concluding that the appropriate sentence was two years less a day. The court set aside that sentence, designated the accused a long-term offender and imposed a sentence of five years and the four and one-half months of incarceration (the credit given for the pre-sentence custody) and two years and ten months of community supervision (which had already been served on the probation order) plus a further period of community supervision of seven years and two months.

Criminal Law - Topic 5848.2

Sentencing - Considerations on imposing sentence - Time already served - The accused spent three years and seven months in pre- sentence custody during a dangerous offender application process - The Ontario Court of Appeal stated that it would not accord credit for the pre-sentence custody on the full two-for-one basis because the accused was undergoing psychiatric testing at hospitals during part of that period - The court gave the accused credit on a two-for-one basis for one half of the period of pre-sentence custody, resulting in a credit of five years and four and one-half months - See paragraphs 67 to 68.

Criminal Law - Topic 5938

Sentence - Aggravated assault - The accused attacked a man in a bar with a pool cue, hitting him three times on the head, knocking him unconscious and causing bleeding as well as some after effects - The accused was convicted of aggravated assault - He had a lengthy record which included crimes of violence, including two sexual offences - He had spent three years and seven months in pre-sentence custody - Following the hearing of evidence at a dangerous offender hearing, the sentencing judge found that the accused did not meet the criteria for designation as a dangerous or long-term offender and he imposed a sentence of two years less a day (which had already been served) plus three years' probation - The Ontario Court of Appeal allowed a Crown appeal and set aside the sentence - The court designated the accused a long-term offender and imposed a sentence of five years and the four and one-half months of incarceration (the credit given for the pre-sentence custody) and two years and ten months of community supervision (which had already been served on the probation order) plus a further period of community supervision of seven years and two months - See paragraphs 53 to 70.

Criminal Law - Topic 6502

Dangerous or long-term offenders - Detention (incl. common law preventive detention) - Considerations and conditions precedent - The accused was convicted of aggravated assault - The Crown brought a dangerous offender application - The sentencing judge decided that before a person could be declared a dangerous offender, the court had to determine that it would otherwise impose a minimum two year sentence for the predicate offence - The sentencing judge concluded that this was necessary in order to make the dangerous offender provision in s. 753 of the Criminal Code consistent with the similar requirement that was specifically imposed by s. 753.1(1)(a) before a person could be declared a long-term offender - The sentencing judge determined that the appropriate sentence for the predicate offence was two years less a day, plus three years' probation - As a result, he found that the accused did not meet the criteria for designation as a dangerous or long-term offender - The Ontario Court of Appeal held that the sentencing judge erred in law by reading into the dangerous offender provision in s. 753(1) of the Code, a requirement that a minimum sentence of two years would have been imposed for the predicate offence - See paragraphs 24 to 48.

Criminal Law - Topic 6503.1

Dangerous or long-term offenders - Detention (incl. common law preventive detention) - Long-term offender - Defined - [See Criminal Law - Topic 5938 ].

Criminal Law - Topic 6508

Dangerous or long-term offenders - Detention (incl. common law preventive detention) - Dangerous offender legislation - Interpretation and application - [See Criminal Law - Topic 6502 ].

Cases Noticed:

R. v. Johnson (J.J.) (2003), 308 N.R. 333; 186 B.C.A.C. 161; 306 W.A.C. 161; 177 C.C.C.(3d) 97; 2003 SCC 46, consd. [para. 30].

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. 32].

R. v. Hall (M.B.) (2004), 185 O.A.C. 319; 186 C.C.C.(3d) 62 (C.A.), refd to. [para. 46].

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, consd. [para. 46].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 753(1) [para. 24].

Counsel:

Howard Leibovich, for the appellant;

Clayton Ruby and Daniel Brodsky, for the respondent.

This appeal was heard on September 21, 2006, before Feldman, Simmons and Rouleau, JJ.A., of the Ontario Court of Appeal. The following judgment of the Court of Appeal was delivered by Feldman, J.A., and was released on January 31, 2007.