Decision Content
In the Court of Appeal for the Northwest Territories
Citation: R v Melanson, 2018 NWTCA 8
Date: 20181105
Her Majesty the Queen
Respondent
John Murray Melanson
Appellant
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The Court:
The Honourable Mr. Justice Peter Costigan
The Honourable Madam Justice Barbara Lea Veldhuis
The Honourable Mr. Justice Thomas W. Wakeling
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The Honourable Madam Justice L.A. Charbonneau
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The Court:
Background
[1] The appellant pled guilty to two counts of sexual assault against two boys who were 4 and 5 years old. These offences occurred in 2006 – 2007. The appellant admitted to sexually assaulting two other boys in 1987; three more boys the same year and another boy in 1999 and 2000. In 2006 he was convicted of possessing and distributing child pornography. Some of these offences were committed while the appellant was on bail and subject to conditions prohibiting contact with children. The appellant gained access to some of the children by befriending their parents. After committing some of the offences, the appellant moved to another province where he reoffended.
[2] The sentencing judge declared the appellant a dangerous offender and sentenced him to an indeterminate term of imprisonment. She agreed with trial counsel that the applicable dangerous offender provisions were those in place at the time of the offences. The appellant appeals the indeterminate sentence. He does not take issue with the judge’s finding that he met the criteria for consideration as a dangerous offender. However, he submits that the sentencing judge erred in declining to designate him a long-term offender. He argues that the sentencing judge applied the wrong test in considering whether to find him a long-term offender and erred in not considering some of the amendments to the dangerous offender legislation in force at the time of sentencing.
[3] Because the appellant does not take issue with the finding that he met the test for consideration as a dangerous offender, it is unnecessary to review the background facts in detail. It is sufficient to note that the appellant’s criminal history displayed both a pattern of repetitive behaviour showing a failure to restrain his behaviour with a likelihood of causing injury or damage to other persons by a future failure to restrain his behaviour, as required by s 753(1)(a) of the Criminal Code, and failure to control his sexual impulses and a likelihood of causing injury, pain or other evil to other persons in the future, as required by s 753(1)(b) of the Criminal Code. The appellant breached every probation order that was imposed on him and repeatedly ignored conditions that were designed to assist him in avoiding high-risk situations: AB vol III 35/5 – 8.
Expert Evidence
[4] The Crown led uncontradicted evidence from a psychiatrist, Dr. Woodside. In his opinion, the appellant suffers from two disorders. The first disorder, pedophilia, is focussed on prepubescent males. There is no cure for this disorder; rather, the focus is on managing the disorder. The second disorder, personality disorder not otherwise specified with antisocial traits, describes a person who is living a more criminally oriented lifestyle and who is not concerned with the impact of his behaviour on others. Using various assessment tools, Dr. Woodside concluded that the appellant presented a high risk for sexually violent recidivism. The combination of the personality disorder and pedophilia increased the risk factor. In his opinion, there was a likelihood that the appellant would cause harm to others through failure to control his future behaviour.
[5] The appellant had access to programs and therapy during previous sentences, including the intensive sexual offender program, and had undergone numerous assessments. In Dr. Woodside’s opinion, the appellant’s disorders were difficult to treat. One option that had not been tried on the appellant was the administration of sex drive reduction medication. In his opinion, medication was the most effective method to manage the risk. Dr. Woodside testified that the appellant would have to consent to use of the medication. The medication may have side effects, such as feminization, although it was not possible to know in advance which, if any, side effects would manifest. The appellant would have to take the medication for the rest of his life. If a person stops taking the medication, the person’s sexual impulses return. It was Dr. Woodside’s experience that most offenders do not continue with the medication once their period of supervision is over. Although sexual offenders are subject to burnout, that is, the decrease in offending behaviour after a certain age, in Dr. Woodside’s opinion, the decrease is less marked for pedophiles than for other sexual offenders. Dr. Woodside also recommended the use of an ankle bracelet to monitor the appellant’s movements. However, ankle bracelets were not available at the time of sentencing. With the administration of medication and the use of an ankle bracelet, Dr. Woodside said there was modest optimism regarding the appellant’s future manageability within the community.
Trial Judgment
[6] The sentencing judge agreed with counsel that the dangerous offender regime in place at the time of sentencing was more restrictive than the regime in place at the time of the offences. She noted that this conclusion was consistent with the case law that had examined both regimes. She found the Crown had proven beyond a reasonable doubt that the statutory criteria for a dangerous offender designation were met. However, the sentencing judge acknowledged that the Court retained the discretion whether to impose the designation. She concluded that the designation was warranted in these circumstances but that a determinate sentence was not appropriate. She went on to consider the alternative of a long-term offender designation. The sentencing judge set out the criteria for a long-term offender designation: (a) the offence could give rise to an imprisonment sentence of two years or more; (b) there is a substantial risk that the offender will reoffend; and (c) there is a reasonable possibility of eventual control of the risk in the community. She found that the first two criteria were met so the issue was whether the third criteria could be met.
[7] The sentencing judge said:
Before turning to the evidence that bears on that issue, it is important to be clear about what the notion of “reasonable possibility” of eventual control means. There are helpful comments in the jurisprudence about this.
First, I agree with the conclusions reached in cases like R. v. R.J.R., [2001] O.J. No. 5015 (S.C.J.) and R. v. L.C.W., [2000] S.J. No. 422 (Q.B.) that what Parliament contemplated in this provision is that the person will be rehabilitated and no longer pose a risk by the time the period of long-term supervision is over. In other words, the Court must be satisfied that by the time the person is back in the community unsupervised, the risk has been effectively managed and the offender no longer poses a substantial risk to reoffend.
Another important point about what “reasonable possibility” means is that the possibility has to be grounded and anchored in a realistic management scenario that can be implemented. (emphasis added) (AB vol III 40/20 – 41/16)
[8] In considering whether there was a reasonable possibility of the risk being controlled, the sentencing judge started by considering the programs and assessments to which the appellant had been exposed in the past and his history of breaching parole and probation orders. She concluded that there were many things that had not been effective in controlling the risk posed by the appellant. She then went on to consider the expert evidence to determine whether there were things that could be effective in controlling the risk within a fixed period of time if the appellant were declared a long-term offender and subjected to a further jail term and a period of supervision. She noted that there were two essential pillars to Dr. Woodside’s modest optimism: medication and ankle bracelet monitoring. She noted that the prospect of treatment with medication was dependent on the appellant being willing to take the medication, being able to continue the medication, choosing to continue despite side-effects, and being willing to continue for the rest of his life even at the end of the period of long-term supervision. That prospect caused her some concern. Although the appellant had not taken the medication in the past, he had not demonstrated a willingness to follow relatively basic conditions that were designed to keep him away from situations of risk. So it was not clear that he would voluntarily continue to take the medication for the rest of his life.
[9] The sentencing judge considered the second pillar of Dr. Woodside’s optimism, which was to force the appellant to stop moving and to establish some stability in his life. However, she concluded that electronic monitoring was not available at the time. She noted that Dr. Woodside suggested several other conditions that should be placed on the appellant in perpetuity such as no contact with individuals under the age of 16 and no computers or internet access. She concluded that if a combination of external controls were required for the rest of the appellant’s life to manage the risk, that could only be done through an indeterminate sentence and not through a long-term offender designation. She found that what she was left with was modest optimism that rested on foundations which could not be strongly supported through the long-term offender framework. She held that the overriding consideration was the protection of the public, and based on the evidence she was not satisfied that there was a reasonable prospect of eventual control of the risk in the community.
Standard of Review
[10] Dangerous offender appeals are subject to a somewhat more robust review than a regular sentence appeal. Errors of law are reviewed on a correctness standard and errors of fact are reviewed on a reasonableness standard. Absent a material error of law, a dangerous offender designation is a question of fact: R v Boutilier, 2017 SCC 64 at paras 81 and 85, [2017] 2 SCR 936.
Analysis
1. The Long-Term Offender Test
[11] The appellant says the sentencing judge erred in law by saying that a reasonable possibility of eventual control meant that the person will be rehabilitated and no longer pose a risk by the time the period of long-term supervision is over. He argues that the sentencing judge articulated a test that would be impossible to meet. In other words, the sentencing judge applied a test of certainty rather than of reasonable possibility. The appellant says that if the proper test was applied, the evidence demonstrated a reasonable possibility that the risk posed by the appellant would eventually be controlled through the imposition of a lengthy prison term followed by a lengthy period of supervision. In support of this submission, the appellant relies on the evidence of treatment options suggested by Dr. Woodside and the appellant’s stated willingness to engage in treatment. He says the sentencing judge dwelt on the possibility of side effects of the medication which were unknown. He argues that correctional authorities can require a person under a long-term supervision order to follow psychiatric recommendations. Moreover, there were other aspects of the evidence such as the need for additional psychological treatment and programming, establishing stability and the possibility of burnout that should have led to the conclusion that there was a reasonable possibility the risk would eventually be controlled. He argues that the degree of supervision and immediacy of consequences for breaching a long-term supervision order are almost identical to the consequences of a breach while on parole and were certain enough to provide an incentive to obey. He says it is not every risk of offence that must be controlled but only the risk of sexual offences.
[12] We are satisfied that the sentencing judge did not apply the wrong test nor did she equate a possibility with a certainty. The passage of the judgment on which the appellant relies for his argument that the judge articulated the wrong test, is one sentence in a lengthy judgment. The sentencing judge’s reasons must be read as a whole and individual passages should not be read in isolation: R v Vuradin, 2013 SCC 38 at para 12, [2013] 2 SCR 639; R v Gagnon, 2006 SCC 17 at para 19, [2006] 1 SCR 621. In the balance of the judgment, the judge repeatedly cites the requirement of a possibility of control. In the sentence following the impugned sentence, the judge said: “In other words, the Court must be satisfied that by the time the person is back in the community unsupervised, the risk has been effectively managed.” (emphasis added). She did not say the Court had to be certain. In the balance of her reasons, the judge repeatedly cites the requirement of a possibility of control. In her conclusion she said “I am simply not satisfied on the whole of the evidence that at this time there is a reasonable possibility of eventual control of the risk in the community.” This passage, in combination with other passages in the reasons, demonstrates that she was well aware that the test was a reasonable possibility not a certainty. We agree with the Crown that in the impugned passage, the judge was simply acknowledging that the long-term offender provision was aimed at eventual rehabilitation.
[13] The balance of the appellant’s arguments under this ground of appeal amount to an effort to re-argue the case. We are satisfied after a robust review, that the evidence amply supported the sentencing judge’s conclusion that there was not a reasonable possibility of eventual control in the community of the appellant’s risk to commit similar sexual offences. Given the uncontradicted evidence that the appellant would have to voluntarily take medication for the rest of his life and the appellant’s history of failing to comply with court-imposed restrictions, it was reasonable to conclude that a long-term supervision order was not appropriate. This ground of appeal cannot succeed.
2. The Sentencing Regime
[14] Contrary to the position taken by his counsel at trial, the appellant argues on appeal that certain aspects of the dangerous offender regime in place at the time of sentencing were more potentially beneficial to the appellant than the regime in place at the time of the offences and should have been considered. In particular, the appellant argues that the following provisions of the regime in place at the time of sentencing should have been considered:
753 (4) If the court finds an offender to be a dangerous offender, it shall
(a) impose a sentence of detention in a penitentiary for an indeterminate period;
(b) impose a sentence for the offence for which the offender has been convicted – which must be a minimum punishment of imprisonment for a term of two years – and order that the offender be subject to long-term supervision for a period that does not exceed 10 years; or
(c) impose a sentence for the offence for which the offender has been convicted.
(4.1) The court shall impose a sentence of detention in a penitentiary for an indeterminate period unless it is satisfied by the evidence adduced during the hearing of the application that there is a reasonable expectation that a lesser measure under paragraph (4)(b) or (c) will adequately protect the public against the commission by the offender of murder or a serious personal injury offence.
[15] The appellant argues s 753(4.1) gives a discretion to consider whether a very long but still determinate sentence of imprisonment combined with a ten-year long-term supervision order would have adequately protected the public. He argues that the sentencing judge could have considered imposing a sentence of 20 years, 10 years for each offence, followed by a long-term supervision order. He says if such a sentence were imposed, the result of a breach of the supervision order could include a sentence of indeterminate imprisonment for the breach, which might have addressed the judge’s concerns about the appellant’s willingness or ability to obey orders.
[16] It is clear that the appellant was entitled to any benefit that might have arisen under the sentencing regime in place at the time of sentencing. However, we do not agree that the regime provided any beneficial options that were not available to the sentencing judge under the previous regime. Under the previous regime, the sentencing options were a determinate sentence; a determinate sentence and a long-term supervision order; or an indeterminate sentence: R v Johnson, 2003 SCC 46 at paras 29 – 32, [2003] 2 SCR 357. These are the same sentencing options as those available under s 753(4). There is nothing in the wording of s 753(4) or s 753(4.1) to suggest a more beneficial approach to the consideration of these options. Indeed, the regime in place at the time of sentencing was less favourable. The legislative intent of that regime was to provide harsher, rather than more favourable treatment to an offender: R v Ominayak, 2012 ABCA 337 at para 53, 539 AR 88. In this case, the sentencing judge specifically considered each of the sentencing options available under either regime. This ground of appeal cannot succeed.
Conclusion
[17] The appeal is dismissed.
Appeal heard on October 23, 2018
Memorandum filed at Yellowknife, Northwest Territories
Costigan J.A.
Veldhuis J.A.
Wakeling J.A.
S. Boucher
for the Respondent
C. Davison
for the Appellant
A1-AP-2011-000 016
IN THE COURT OF APPEAL
FOR THE NORTHWEST TERRITORIES
Between:
Her Majesty the Queen
Respondent
- and -
John Murray Melanson
Appellant
MEMORANDUM OF JUDGMENT
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