R. v. Young (G.) (No. 4), (1994) 121 Nfld. & P.E.I.R. 210 (NFTD)

• Judge: Mercer, J.
• Court: Supreme Court of Newfoundland and Labrador (Canada)
• Case Date: June 16, 1994
• Jurisdiction: Newfoundland and Labrador
• Citations: (1994), 121 Nfld. & P.E.I.R. 210 (NFTD)

R. v. Young (G.) (1994), 121 Nfld. & P.E.I.R. 210 (NFTD);

    377 A.P.R. 210

MLB headnote and full text

Her Majesty The Queen v. Garrett Young

(1992 S.J. No. 2625)

Indexed As: R. v. Young (G.) (No. 4)

Newfoundland Supreme Court

Trial Division

Mercer, J.

June 16, 1994.

Summary:

An accused was charged with 19 counts which included sexual and nonsexual assaults and related charges involving eight complainants.

The Newfoundland Supreme Court, Trial Division, in a decision reported at 113 Nfld. & P.E.I.R. 219; 353 A.P.R. 219, convicted the accused of 15 of the 19 counts, involving seven victims. The Crown applied under s. 753 of the Criminal Code seeking a decla­ration that the accused was a dangerous offender and the imposition of a sentence of detention in a penitentiary for an indetermi­nate period in lieu of any other sentences.

The Newfoundland Supreme Court, Trial Division, dismissed the application.

For related decisions involving the same accused see 112 Nfld. & P.E.I.R. 271; 350 A.P.R. 271, 112 Nfld. & P.E.I.R. 283; 350 A.P.R. 283, and 121 Nfld. & P.E.I.R. 227; 377 A.P.R. 227.

Criminal Law - Topic 6504

Dangerous offenders - Detention - Gen­eral - Procedure - The Crown applied to have an accused declared a dangerous offender - The Newfoundland Supreme Court, Trial Division, reviewed the appli­cable procedural requirements - See para­graphs 6, 7.

Criminal Law - Topic 6512

Dangerous offenders - Detention - Pro­tection of the public - Evidence and proof - The Crown applied to have a 37 year old accused declared a dangerous offender - The Newfoundland Supreme Court, Trial Division, stated that "[t]he burden of proof is the usual one of proof beyond reason­able doubt. ... One of the elements to be established by the Crown is the 'likelihood' of the offender causing death or injury to other persons through a failure in the future to restrain his behaviour or control his sexual impulses. It is not required that the Crown establish beyond a reasonable doubt that an offender will act in a par­ticular way. The term 'likelihood' required that the offender be proven beyond rea­sonable doubt to constitute a threat to society." - See paragraph 8.

Criminal Law - Topic 6512

Dangerous offenders - Detention - Gen­eral - Evidence - The Crown applied to have an accused declared a dangerous offender - Sections 753(a)(i) and 753(a)(ii) of the Criminal Code required the Crown to establish a pattern of behav­iour "... of which the offence for which he has been convicted forms a part" - The Newfound­land Supreme Court, Trial Divi­sion, con­cluded that the Crown must "pro­vide evi­dence of behaviour additional to the predi­cate offences. That additional evidence must establish a pattern consist­ent with the offence behaviour." - See paragraph 42.

Criminal Law - Topic 6512

Dangerous offenders - Detention - Gen­eral - Evidence - The Crown applied to have an accused declared a dangerous offender - Section 753(b) of the Criminal Code required the Crown to establish that the offender "... by his conduct in any sexual matter including that involved in the commission of the offence ... has shown a failure to control his sexual impulses ..." - The Newfoundland Supreme Court, Trial Division, concluded that under s. 753(b) sexual conduct in the predicate offences may be sufficient proof to satisfy the dangerous offender criteria - See paragraph 44.

Criminal Law - Topic 6558

Dangerous offenders - Detention - Pro­tection of the public - Dangerous sexual offender - The Crown applied to have a 37 year old accused declared a dangerous offender - The application related to 14 offences which occurred on nine separate occasions and involved seven victims - Offences included sexual assault, sexual assault causing bodily harm and use of a weapon in the commission of a sexual assault - No pattern of behaviour addi­tional to the offences - The accused adhered to strict bail conditions for three years - Starting to accept responsibility and express remorse - No criminal record - Contradictory expert evidence - The Newfoundland Supreme Court, Trial Divi­sion, dismissed the application, concluding that expert evidence had raised a reason­able doubt that the accused was likely to fail to control his sexual impulses in the future.

Cases Noticed:

R. v. Newman (1994), 115 Nfld. & P.E.I.R. 197; 360 A.P.R. 197 (Nfld. C.A.), consd. [para. 5].

R. v. Lewis (1984), 4 O.A.C. 98; 12 C.C.C.(3d) 353 (C.A.), refd to. [para. 5].

R. v. Benoit (A.J.) (1987), 64 Nfld. & P.E.I.R. 130; 197 A.P.R. 130 (Nfld. C.A.), refd to. [para. 6].

R. v. Fleming (1981), 33 Nfld. & P.E.I.R. 425; 93 A.P.R. 425; 61 C.C.C.(2d) 348 (Nfld. T.D.), refd to. [para. 6].

R. v. Jackson (1981), 46 N.S.R.(2d) 92; 89 A.P.R. 92; 61 C.C.C.(2d) 540 (C.A.), refd to. [para. 8].

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, consd. [para. 29].

R. v. Sowa (1991), 72 Man.R.(2d) 15 (Q.B.), refd to. [para. 30].

R. v. Langevin (1984), 3 O.A.C. 110; 11 C.C.C.(3d) 336 (C.A.), consd. [para. 32].

R. v. Shortreed (1990), 37 O.A.C. 144; 54 C.C.C.(3d) 292 (C.A.), consd. [para. 34].

R. v. Carleton (1981), 32 A.R. 181; 69 C.C.C.(2d) 1 (C.A.), consd. [para. 48].

R. v. Knight (1975), 27 C.C.C.(2d) 343 (Ont. H.C.), refd to. [para. 51].

R. v. Clancey (1991), 14 W.C.B.(2d) 43, refd to. [para. 51].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 735 [para. 14]; sect. 752 [para. 7]; sect. 753 [paras. 1 et seq.]; sect. 753(a) [paras. 4, 27, 76]; sect. 753(a)(i), sect. 753(a)(ii) [para. 4 et seq.]; sect. 753(a)(iii) [paras. 36, 40, 41]; sect. 753(b) [para. 4 et seq.]; sect. 754(1)(a), sect. 754(1)(b), sect. 754(1)(c) [para. 7]; sect. 755 [paras. 7, 47]; sect. 755(1) [para. 10]; sect. 756 [para. 7].

Counsel:

Kathleen Healey, for the Crown;

Wayne Jennings, for Garrett Young.

This application was heard on May 3, 4, 5, 6 and 12, 1994, before Mercer, J., of the Newfoundland Supreme Court, Trial Divi­sion, who delivered judgment on June 16, 1994, which was filed on the same date.