R. v. Edgar, [2003] 2 S.C.R. 388, 2003 SCC 47
Her Majesty The Queen Appellant
v.
Daniel George Edgar Respondent
and
Attorney General of Canada and Attorney General of Alberta Interveners
Indexed as: R. v. Edgar
Neutral citation: 2003 SCC 47.
File No.: 28946.
2003: January 16; 2003: September 26.
Present: McLachlin C.J. and Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour, LeBel and Deschamps JJ.
on appeal from the court of appeal for british columbia
Criminal law — Sentencing — Dangerous offenders and long‑term offenders — Accused declared to be dangerous offender and sentenced to indeterminate prison term — Predicate offence occurring prior to enactment in Criminal Code of long‑term offender provisions — Whether sentencing judge should have considered long‑term offender provisions prior to declaring offender dangerous — If so, whether sentencing judge’s failure to do so constituted error of law — Criminal Code, R.S.C. 1985, c. C‑46, ss. 753(1), 753.1, 759(3)(b) — Canadian Charter of Rights and Freedoms, s. 11(i).
The accused was convicted of sexual assault and, at the sentencing hearing, was found to be a dangerous offender and sentenced to an indeterminate period of detention. The acts constituting the sexual assault occurred prior to the enactment in the Criminal Code of the long‑term offender provisions. In finding the accused to be a dangerous offender, the sentencing judge held that the accused was not entitled to the benefit of the long‑term offender provisions. The Court of Appeal allowed the accused’s appeal and ordered a new sentencing hearing.
Held: The appeal should be dismissed.
For the reasons set out in R. v. Johnson, [2003] 2 S.C.R. 357, 2003 SCC 46, the sentencing judge was required to consider the possibility of a long‑term offender designation prior to declaring the accused a dangerous offender, even though the predicate offence was committed prior to the 1997 enactment of the long‑term offender provisions. In the absence of a full inquiry into the suitability of the long‑term offender designation, it would be improper to reinstate the sentencing judge’s finding that the accused is properly classified as a dangerous offender.
Cases Cited
Applied: R. v. Johnson, [2003] 2 S.C.R. 357, 2003 SCC 46; referred to: R. v. Smith, [2003] 2 S.C.R. 392, 2003 SCC 48; R. v. Mitchell, [2003] 2 S.C.R. 396, 2003 SCC 49; R. v. Kelly, [2003] 2 S.C.R. 400, 2003 SCC 50.
Statutes and Regulations Cited
Criminal Code, R.S.C. 1985, c. C‑46.
APPEAL from a judgment of the British Columbia Court of Appeal (2001), 158 C.C.C. (3d) 212, 159 B.C.A.C. 312, 259 W.A.C. 312, [2001] B.C.J. No. 2022 (QL), 2001 BCCA 457, reversing a decision of the Provincial Court. Appeal dismissed.
William F. Ehrcke, Q.C., and Beverly MacLean, for the appellant.
Gil D. McKinnon, Q.C., and James I. S. Sutherland, for the respondent.
Robert J. Frater and David Schermbrucker, for the intervener the Attorney General of Canada.
Goran Tomljanovic, for the intervener the Attorney General of Alberta.
The judgment of the Court was delivered by
1 Iacobucci and Arbour JJ. — This case, which was heard at the same time as R. v. Johnson, [2003] 2 S.C.R. 357, 2003 SCC 46, R. v. Smith, [2003] 2 S.C.R. 392, 2003 SCC 48, R. v. Mitchell, [2003] 2 S.C.R. 396, 2003 SCC 49, and R. v. Kelly, [2003] 2 S.C.R. 400, 2003 SCC 50, involves an appeal against a sentencing judge’s decision to declare an offender dangerous and sentence him to an indeterminate period of detention. As in Johnson, Mitchell and Smith, the predicate offence was committed prior to the 1997 enactment of the long-term offender provisions in the Criminal Code, R.S.C. 1985, c. C-46, while the sentencing hearing took place after the long-term offender provisions came into force. The question that this appeal raises is whether the sentencing judge’s failure to consider the possibility of a long-term offender designation constituted an error of law.
2 For the reasons set out in Johnson, the sentencing judge was required to consider the possibility of a long-term offender designation prior to declaring the offender dangerous, even though the predicate offence was committed prior to the 1997 enactment of the long-term offender provisions. If an offender satisfies the criteria set out in the long-term offender provisions and the sentencing judge is satisfied that a determinate sentence followed by a long-term supervision order would reduce the threat to the life, safety or physical or mental well-being of other persons to an acceptable level, the sentencing judge cannot properly declare the offender dangerous and thereupon impose an indeterminate sentence.
3 In this case, the record discloses insufficient evidence to conclude that there is no reasonable possibility that the respondent would have been declared a long-term offender if the sentencing judge had considered the long-term offender provisions when determining whether to declare the offender dangerous. In the absence of a full inquiry into the suitability of the long-term offender designation, it would be improper to reinstate the sentencing judge’s finding that the respondent is properly classified as a dangerous offender.
4 In the result, the appeal is dismissed. We confirm the Court of Appeal’s decision to order a new sentencing hearing, to be determined in accordance with the principles set out in Johnson.
Appeal dismissed.
Solicitor for the appellant: Ministry of Attorney General, Vancouver.
Solicitors for the respondent: Gil D. McKinnon, and James I. S. Sutherland, Vancouver.
Solicitor for the intervener the Attorney General of Canada: Attorney General of Canada, Ottawa.
Solicitor for the intervener the Attorney General of Alberta: Attorney General of Alberta, Calgary.