R. v. Ziegler (R.G.), (2012) 327 B.C.A.C. 53 (CA)

• Judge: Lowry, Neilson and Groberman, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: August 22, 2012
• Jurisdiction: British Columbia
• Citations: (2012), 327 B.C.A.C. 53 (CA);2012 BCCA 353

R. v. Ziegler (R.G.) (2012), 327 B.C.A.C. 53 (CA);

    556 W.A.C. 53

MLB headnote and full text

Temp. Cite: [2012] B.C.A.C. TBEd. AU.032

Regina (respondent) v. Ryan Glenn Ziegler (appellant)

(CA037842; 2012 BCCA 353)

Indexed As: R. v. Ziegler (R.G.)

British Columbia Court of Appeal

Lowry, Neilson and Groberman, JJ.A.

August 22, 2012.

Summary:

The accused was convicted of sexual assault. He had a lengthy criminal record, including two similar sexual assaults. The Crown applied under s. 753(1)(b) of the Criminal Code to have the accused declared to be a dangerous offender and sentenced to an indeterminate sentence.

The British Columbia Provincial Court declared the accused to be a dangerous offender. The accused appealed.

The British Columbia Court of Appeal dismissed the appeal.

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 5045

Appeals - Indictable offences - Dismissal of appeal if no prejudice, substantial wrong or miscarriage results - What constitutes a substantial wrong or miscarriage of justice - [See Criminal Law - Topic 6558 ].

Criminal Law - Topic 6512

Dangerous or long-term offenders - Detention - General - Evidence and proof - The Crown applied under s. 753(1)(b) of the Criminal Code to have the accused declared to be a dangerous offender on the basis of his past and future failure to control his sexual impulses - The British Columbia Court of Appeal stated that "the Crown may rely on the offender's criminal record, as well as the circumstances surrounding his prior offences, to establish past failure to control his sexual impulses. It need not prove the earlier convictions by calling the witnesses who testified at those trials, and may instead rely on hearsay evidence of the historical facts of previous offences from reliable and trustworthy sources such as court records ... Evidence of a conviction alone, however, may be insufficient to establish an offender's earlier conduct shows a failure to control his sexual impulses. It may be necessary for the Crown to lead evidence of the circumstances underlying the conviction as well, and it is open to the offender to adduce evidence showing a conviction did not have a sexual component or, if it did, it did not demonstrate a failure to control his sexual impulses ... The Crown may also rely on evidence of past conduct of the offender that was not the subject of charges, if it is admitted in accord with the normal rules of evidence. If these past events are denied, they must be proven beyond a reasonable doubt. ... The opinions of psychiatrists and psychologists as to future risk and treatment options often play a significant role in dangerous offender proceedings. While it is permissible for such experts to refer to second-hand information in formulating their view, the weight of their opinions may be diminished if they are based on unproven or unreliable information. A psychiatric opinion is not evidence of the facts upon which it is based. The court must be independently satisfied as to the truth of those facts." - See paragraphs 8 to 11.

Criminal Law - Topic 6558

Dangerous or long-term offenders - Detention - General - Dangerous sexual offender - The accused was convicted of sexual assault for groping a female ambulance attendant's breast - The accused was on probation after serving time for two similar sexual assaults (female corrections officer and police officer) - The trial judge declared the accused to be a dangerous offender under s. 753(1)(b) of the Criminal Code based on his failure to control his sexual impulses and a likelihood that his future failure to control his sexual impulses would cause injury, pain or other evil to other people - The judge determined that there was no reasonable possibility of eventual control of the risk in the community - The accused had 80 prior convictions, including 15 offences of an inherently sexual nature or which the Crown alleged had a sexual component - Further, the Crown called evidence of 14 incidents in correctional facilities which arguably showed a failure to control sexual impulses, but which did not lead to charges and/or convictions - He was assessed as having numerous indicators of psychopathy and in the high risk category of re-offending sexually regardless of the level of supervision and monitoring - The accused refused to acknowledge a problem with sexual offending and substance abuse - He steadfastly refused to submit to any treatment or counselling - The accused appealed, submitting that the trial judge erred in relying on inadmissible evidence of past conduct and in accepting expert evidence of the future risk of re-offending based on unproven allegations of past conduct - The British Columbia Court of Appeal dismissed the appeal notwithstanding that "the judge did err by relying too heavily on the Crown's summaries of convictions and non-criminal conduct without ensuring each incident has a relevant and reliable evidentiary foundation" (i.e., component of failing to control sexual impulses) - He also erred in failing to address the issue of the psychiatrists' partial reliance on those unproven allegations in reaching their opinions - However, even after excluding the unproven allegations, there remained a substantial body of evidence that supported the judge's conclusion that the accused was a dangerous offender and that there was no reasonable possibility, after expunging information which should not have been considered, that the result would have been different (i.e., no substantial wrong or miscarriage of justice) - See paragraphs 40 to 93.

Cases Noticed:

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; 2003 SCC 46, refd to. [para. 7].

R. v. Gardiner, [1982] 2 S.C.R. 368; 43 N.R. 361; 30 C.R.(3d) 289; 140 D.L.R.(3d) 612, refd to. [para. 7].

R. v. Ford (D.M.) (2010), 286 B.C.A.C. 261; 484 W.A.C. 261; 254 C.C.C.(3d) 442; 2010 BCCA 105, refd to. [para. 7].

R. v. Jack (T.P.) (1998), 104 B.C.A.C. 175; 170 W.A.C. 175 (C.A.), refd to. [para. 8].

R. v. Neve (L.C.) (1999), 237 A.R. 201; 197 W.A.C. 201; 137 C.C.C.(3d) 97; 1999 ABCA 206, refd to. [para. 8].

R. v. Dawson, [1970] 3 C.C.C. 212 (B.C.C.A.), refd to. [para. 9].

R. v. Read (L.G.) (1994), 47 B.C.A.C. 28; 76 W.A.C. 78 (C.A.), refd to. [para. 10].

R. v. Pike (J.A.) (2010), 292 B.C.A.C. 66; 493 W.A.C. 66; 266 C.C.C.(3d) 68; 2010 BCCA 401, refd to. [para. 10].

R. v. Wilband, [1967] S.C.R. 14, refd to. [para. 11].

R. v. Knight (1975), 27 C.C.C.(2d) 343 (Ont. C.J.), refd to. [para. 11].

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. 18].

R. v. Bedard (E.) (2009), 254 O.A.C. 314; 247 C.C.C.(3d) 275; 2009 ONCA 678, refd to. [para. 45].

R. v. J.K.L. (2012), 290 O.A.C. 207; 2012 ONCA 245, refd to. [para. 45].

R. v. Russel (W.I.) (2011), 277 O.A.C. 264; 270 C.C.C.(3d) 256; 2011 ONCA 303, refd to. [para. 50].

R. v. Hart (N.L.) (2009), 282 Nfld. & P.E.I.R. 346; 868 A.P.R. 346; 242 C.C.C.(3d) 31; 2009 NLCA 10, refd to. [para. 50].

Counsel:

J. Blazina, for the appellant;

S. Brown, for the respondent.

This appeal was heard on January 24, 2012, at Vancouver, B.C., before Lowry, Neilson and Groberman, JJ.A., of the British Columbia Court of Appeal.

On August 22, 2012, Neilson, J.A., delivered the following judgment.