NOVA SCOTIA COURT OF APPEAL
Citation: R. v. McLean, 2009 NSCA 1
Date: 20090108
Docket: CAC 292129
Registry: Halifax
Between:
Her Majesty the Queen
Appellant
v.
Alexander Dean McLean
Respondent
Restriction on publication: pursuant to s. 486(4) of the Criminal Code.
Judges: Bateman, Hamilton and Fichaud, JJ.A.
Appeal Heard: December 9, 2008, in Halifax, Nova Scotia
Held: Appeal allowed per reasons for judgment of Bateman, J.A.; Hamilton and Fichaud, JJ.A. concurring.
Counsel: Mark Scott, for the appellant
Luke A. Craggs, for the respondent
486.4 (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
( a) any of the following offences:
(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,
(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C‑34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or
(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step‑daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C‑34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or
Reasons for judgment:
[1] This is a crown appeal from a decision of Justice Suzanne Hood of the Nova Scotia Supreme Court declining an application to declare the respondent a long term offender.
BACKGROUND
[2] The facts leading to the application are described in the appellant’s factum:
1. While serving a period of incarceration of sixteen months for convictions of sexual assault and indecent acts, Alexander Dean McLean, in protective custody, assaulted J. L. while the latter was playing cards. After an exchange of words between the two, Mr. McLean retired to his cell, returned, grabbed a shower broom, and struck Mr. L. once in the side of the face. Mr. L.'s cheek was lacerated and significant structural damage to his face resulted. Reconstructive surgery, costing approximately $61,000.00, was required.
2. While Mr. McLean pleaded guilty to the above offence [aggravated assault], the evidence against him was overwhelming. The eyewitnesses were corroborative of each other, and the assault was recorded on the surveillance/security system.
3. Based on Mr. McLean's prior record for violence and sex offences, including two sexual assaults and attempted murder, the Crown instituted dangerous offender/long‑term offender proceedings. . . . At the hearing, the Court received evidence of Mr. McLean's troubled and turbulent upbringing, his varied and lengthy criminal record, his overall history through Correctional Services Canada, and assessments of risk, as ordered by the Court. Despite diligence towards education upgrading and some employment while in the federal Correctional Institutions, Mr. McLean continued to be a moderate to high risk to reoffend violently and a high risk to reoffend sexually upon release. This finding was echoed by the psychiatric professionals who produced reports on behalf of the Crown for the said application. The primary divergent opinion advanced by the defence was that Mr. McLean was otherwise treatable through medication in order to quell his impulsive behaviour.
4. In dismissing the Crown's application to have Mr. McLean declared a dangerous offender, Justice S. Hood was neither satisfied that the Crown had proven a pattern of behaviour nor had proven the requisite brutality within the predicate offence to carry further with the inquiry. Turning to the long‑term offender application, Justice Hood interpreted the provisions to require that the predicate offence be a sexual one before a designation could be made. Whereas there were no sexual connotations to the actions of Mr. McLean in striking Mr. L., the application was dismissed; and regular sentence proceedings transpired.
[3] The judge found a fit sentence to be a period of incarceration of six years which, after two for one credit for remand time, resulted in a remaining sentence of one year and seven months. That was to be followed by a probationary period of three years, containing statutory conditions and those agreed upon by counsel. The Court imposed a DNA order as well.
ISSUES
[4] The Crown had applied to have Mr. McLean designated a dangerous offender (Criminal Code Part XXIV). The judge dismissed the dangerous offender application, but, pursuant to s.753(5), considered whether the respondent should be declared a long term offender. She found that the Crown had not established that Mr. McLean should be designated a long-term offender. The grounds of appeal are limited to the disposition on the long-term offender issue. The Crown submits:
1. The Supreme Court judge erred in law in her interpretation of the long-term offender provisions (s.753.1) of the Criminal Code.
2. The Supreme Court judge erred in law in ruling that the availability of the long‑term offender provisions of Part XXIV of the Criminal Code was conditional on the requirement that the predicate offence have a sexual component.
STANDARD OF REVIEW
[5] A Crown appeal from a decision made under Part XXIV (Dangerous and Long Term Offenders) is limited to a question of law (s.759(2) Criminal Code).
[6] In the context of the limited issues arising on this appeal we may, if we allow the appeal, find that the offender is a long‑term offender or order a new hearing (s.759(3)).
ANALYSIS
[7] It was the Crown’s position that the respondent satisfied the conditions for finding him to be a dangerous offender as prescribed in s. 753(1)(a):
753. (1) On application made under this Part after an assessment report is filed under subsection 752.1(2), the court shall find the offender to be a dangerous offender if it is satisfied
(a) that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (a) of the definition of that expression in section 752 and the offender constitutes a threat to the life, safety or physical or mental well‑being of other persons on the basis of evidence establishing
(i) a pattern of repetitive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a failure to restrain his or her behaviour and a likelihood of causing death or injury to other persons, or inflicting severe psychological damage on other persons, through failure in the future to restrain his or her behaviour,
(ii) a pattern of persistent aggressive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a substantial degree of indifference on the part of the offender respecting the reasonably foreseeable consequences to other persons of his or her behaviour, or
(iii) any behaviour by the offender, associated with the offence for which he or she has been convicted, that is of such a brutal nature as to compel the conclusion that the offender’s behaviour in the future is unlikely to be inhibited by normal standards of behavioural restraint;
. . .
[8] There was no question that the respondent had committed a serious personal injury offence which is defined in s.752 of the Code:
"serious personal injury offence" means
(a) an indictable offence, other than high treason, treason, first degree murder or second degree murder, involving
(i) the use or attempted use of violence against another person, or
(ii) conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage on another person,
and for which the offender may be sentenced to imprisonment for ten years or more, or
(b) an offence or attempt to commit an offence mentioned in section 271 (sexual assault), 272 (sexual assault with a weapon, threats to a third party or causing bodily harm) or 273 (aggravated sexual assault).
[9] However, the judge was neither satisfied that the Crown had established the requisite pattern of behaviour (s.753(1)(a)(i) or (ii)), nor persuaded that the offence for which he had been convicted (the predicate offence) was “brutal” in nature (s.753(1)(a)(iii)) as that term has been defined in the case law.
[10] Pursuant to s.753(5), a judge who dismisses the dangerous offender application may, in the alternative, determine whether the offender should be declared a long-term offender:
(5) If the court does not find an offender to be a dangerous offender,
(a) the court may treat the application as an application to find the offender to be a long‑term offender, section 753.1 applies to the application and the court may either find that the offender is a long‑term offender or hold another hearing for that purpose; or
(b) the court may impose sentence for the offence for which the offender has been convicted.
[11] The criteria for a long-term offender designation are set out in s.753.1(1) of the Code:
753.1 (1) The court may, on application made under this Part following the filing of an assessment report under subsection 752.1(2), find an offender to be a long‑term offender if it is satisfied that
(a) it would be appropriate to impose a sentence of imprisonment of two years or more for the offence for which the offender has been convicted;
(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.
(2) The court shall be satisfied that there is a substantial risk that the offender will reoffend if
(a) the offender has been convicted of an offence under section 151 (sexual interference), 152 (invitation to sexual touching) or 153 (sexual exploitation), subsection 163.1(2) (making child pornography), subsection 163.1(3) (distribution, etc., of child pornography), subsection 163.1(4) (possession of child pornography), subsection 163.1(4.1) (accessing child pornography), section 172.1 (luring a child), subsection 173(2) (exposure) or section 271 (sexual assault), 272 (sexual assault with a weapon) or 273 (aggravated sexual assault), or has engaged in serious conduct of a sexual nature in the commission of another offence of which the offender has been convicted; and
(b) the offender
(i) has shown a pattern of repetitive behaviour, of which the offence for which he or she has been convicted forms a part, that shows a likelihood of the offender’s causing death or injury to other persons or inflicting severe psychological damage on other persons, or
(ii) by conduct in any sexual matter including that involved in the commission of the offence for which the offender has been convicted, has shown a likelihood of causing injury, pain or other evil to other persons in the future through similar offences.
(Emphasis added)
[12] In dismissing the long-term offender application the judge restricted her analysis of substantial risk to reoffend to 753.1(2). She said:
[146] With respect to (2)(a), Mr. McLean has been convicted of two sexual assaults so that requirement is met.
[147] With respect to (b) I have concluded above that no pattern has been established, so (i) under (b) is not applicable. The alternative is (ii). It refers to conduct in any sexual matter, including that involved in the commission of the offence for which the offender has been convicted. In my view, that wording contemplates that the predicate offence is a sexual offence. The words are "sexual matter, including" the predicate offence.
[148] Since the predicate offence is not a sexual offence and did not involve conduct in a sexual matter, I conclude the requirements for Mr. McLean to be found to be a long‑term offender are not established.
[149] This is consistent in my view with the focus of section 752(2)(a) on sexual offences. Subsection (b) gives two alternatives for a long‑term offender designation. One because of sexual behaviour and the other where there is a pattern of behaviour of which the predicate offence is a part showing a likelihood of causing death or injury or severe psychological damage. Subsection (b)(i) is tied to the predicate offence. In my view (b)(ii) must be read so as to connect the conduct in the sexual matter to the predicate offence as well.
[150] Accordingly, I do not need to address the final requirement under this section, which is a reasonable possibility of eventual control of risk in the community. However, if I were to do so, I would prefer the evidence of Dr. Kronfli over that of Dr. Neilson. He has been treating Mr. McLean for almost three years and in my view the clinical override would prevail over the actuarial evidence of risk of re‑offence. Accordingly I would have concluded that there is a reasonable possibility of eventual control of risk in the community.
[151] Since I am unable to designate Mr. McLean a dangerous offender or a long‑term offender I must sentence him for the offence of aggravated assault.
[13] The appellant says the judge erred in wrongly assuming that the criteria in s. 753.1(2) must be met in order to find that there is a substantial risk that the offender will reoffend and therefore find that Mr. McLean is a long-term offender. In other words, although the judge found that the respondent did not meet the criteria for “substantial risk” set out in s.753.1(2), the Crown says she should have also considered whether there was a substantial risk the respondent would reoffend within the meaning of s.753.1(1)(b). It is the Crown’s submission that s.753.1(2) is simply a deeming provision, meaning that a court must find that the offender presents a substantial risk to reoffend if the criteria in s.753.1(2) are met. However, even if the offender and the nature of the offence do not meet the criteria of the deeming provision, the court may find him to be a long-term offender under s.753.1(1). This approach is consistent with the weight of authority.
[14] In R. v. McLeod, 1999 BCCA 347; (1999), 136 C.C.C. (3d) 492 the appellant argued that the judge had erred in designating him a long-term offender because the long-term offender provisions of the Code are only applicable to sexual offenders who have been convicted of an offence listed in s. 753.1(2)(a). He had pled guilty to assault causing bodily harm and possession of a weapon for a purpose dangerous to the public peace, obviously, not sexual offences.
[15] Rejecting that interpretation, Prowse, J.A. wrote, for the Court:
[26] In my view, the meaning of 753.1 is straightforward, whether read separately or in the larger context of Part XXIV of the Code. It provides that a court may find an offender to be a long‑term offender if the three conditions set out in s‑ss. 753.1(1)(a) to (c) are met:
(a) it would be appropriate to impose a sentence of imprisonment of two years or more for the offence for which the offender has been convicted;
(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.
Subsection 753.1(2)(a) simply provides that the court must find ("shall be satisfied") that there is a substantial risk the offender will reoffend if the conditions set out in that subsection are met. One of those conditions is that the offender has been convicted of the sexual offences set out in that subsection (which include sexual offences of a less serious nature than those caught within the definition of "serious personal injury offence" in s. 752). Thus, if an offender is convicted of one of the sexual offences delineated in s. 753.1(2)(a), the court must find that there is a substantial risk that the offender will reoffend; that is, that the second condition in s. 753.1(1)(b) has been met. Before the court can designate the offender a long‑term offender, however, the court must still determine whether the other two conditions in s. 753.1(1)(a) and (c) have been satisfied.
[27] I do not agree with the submission on behalf of Mr. McLeod that the effect of s. 753.1(2)(a) is to restrict the scope of s. 753.1(1) to apply only to offenders who are convicted of one or more of the sexual offences listed in s. 753.1(2)(a). If Parliament had intended to limit the designation of long‑term offender to those convicted of sexual offences, it could have done so by simply adding that as a fourth condition to be satisfied under s. 753.1(1). Counsel for Mr. McLeod is, in effect, asking us to read a fourth condition into that subsection which does not otherwise exist.
(Emphasis added)
[16] In R. v Weasel, [2003] S.J. No. 854 (C.A.) (Q.L.); (2004), 181 C.C.C. (3d) 358 where the predicate offences were assault causing bodily harm and common assault, Cameron, J.A., writing for the Court, expanded upon the analysis in R. v. MacLeod, supra, reached the same conclusion and succinctly stated the result:
56 . . . we are of the opinion s. 753.1 extends to an offender convicted of either a serious personal injury offence, as defined in section 752, or an offence referred to in s. 753.1(2)(a). That being so, s-s. (2) is to not to be seen as defining the term "substantial risk" appearing in s. 753.1. Rather, it is to be seen as creating a conclusive presumption of "substantial risk" in those circumstances to which paragraphs (a) and (b) of the subsection are addressed, leaving the issue of such risk in other circumstances to be determined without the aid of the presumption.
(See also R. v. K.R.S., [2004] S.J. No. 591 (Q.L.)(C.A.).
[17] I would agree with this interpretation as do all other provincial appellate courts that have considered this issue (see, for example, R. v. D.D., 2006 CarswellQue 8947, 221 C.C.C. (3d) 57 (Que.C.A.) (predicate offence - attempted murder)). In R. v. Nash, [2002] O.J. No. 3394 (Q.L.)(Ont. C.A.) the long-term offender designation (made pursuant to s.753.1(1)) was upheld on appeal in relation to an appellant who had been convicted of assault, assault with a weapon, threatening death, unlawful confinement and breach of undertaking. In R. v. Nikolovski, [2005] O.J. No. 494 (Q.L.)(Ont. C.A.) the long-term offender designation was upheld where the predicate offence was bank robbery.
[18] The respondent has cited no authority for his submission that the long-term offender provisions are limited to sexual offenders. Recently the Supreme Court of Canada, in R. v. L.M., 2008 SCC 31, [2008] 2 S.C.R. 163 considered, among other issues, the relationship between sentencing and the procedure for finding a person a long-term offender. In introducing this issue, LeBel J., for the majority of the Court, summarized the conditions which must be met before a judge may grant an application for a long-term supervision order (at para. 40). His summary of the provisions of s.753.1 of the Code and, in particular the relationship between s.753.1(1) and s.753.1(2) are, with respect, somewhat unclear. However, in referring to the exceptional nature of a long-term offender finding, he noted that most, but not all of those persons currently designated long-term offenders, had committed sexual offences (at para. 39). This is implicit recognition that the long-term offender provisions are not restricted to those who have committed an offence listed in s.753.1(2)(a).
[19] Consequently, I would respectfully find that the judge erred in approaching the issue as if s.753.1(2) was exhaustive and therefore failing to consider whether the respondent should be declared a long-term offender pursuant to s.753.1(1). In fairness, it appears Crown counsel was of the view that the respondent met the criteria within s.753.1(2) resulting in a mandatory designation and did not make any submission on the discretionary designation under s.753.1(1) nor clearly invite an alternative finding under ss.753.1(1)(b).
[20] Counsel agree that should we find that the judge erred it would be appropriate for this Court to determine whether the respondent should be declared a long-term offender, rather than remitting the matter for a new hearing. There is some question whether this Court could remit the matter for a new hearing on the long-term offender application alone (see R. v. K.R.S., supra at para. 42). In view of counsel’s agreement, it is unnecessary to further explore that issue. Section s:759(3)(a) provides:
(3) The court of appeal may
(a) allow the appeal and
(i) find that an offender is or is not a dangerous offender or a long‑term offender or impose a sentence that may be imposed or an order that may be made by the trial court under this Part, or
(ii) order a new hearing, with any directions that the court considers appropriate; . . .
[21] I am satisfied that here the record is sufficiently complete to allow us to consider whether the respondent should be declared a long-term offender (see R. v. K.R.S., supra at paras. 42 and 43).
[22] For convenience I repeat the long-term offender criteria from s.753.1(1):
(a) it would be appropriate to impose a sentence of imprisonment of two years or more for the offence for which the offender has been convicted;
(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.
[23] The gateway to the long-term offender application here was through the dangerous offender provision s.753(1)(a) (see para. 7 above) which required that the offender be convicted of a “serious personal injury offence” as defined in s.752. There was no dispute that the respondent had met this threshold criteria. The judge was further satisfied that it would be appropriate to impose a sentence of two years or more and neither party takes issue with that determination. The judge further noted in her reasons that if she had found that there was a substantial risk that the respondent would reoffend, (applying s.753.1(2)), she was satisfied that there is a possibility of eventual control of the risk in the community (at para. 150, reasons for judgment). Having found reviewable error, we are not bound by this determination by the judge. However, the Crown appeals only the long-term offender issue. It is, therefore, implicit that the Crown accepts that if Mr. McLean presents a substantial risk to reoffend, there is a reasonable possibility of control of that risk (s.753.1(1)(c)).
[24] Consequently, the criteria in (a) and (c) of s.753.1(1) are satisfied. Thus, the only remaining issue is whether there is a substantial risk that the respondent will reoffend (s.753.1(1)(b)).
[25] As indicated above, the judge’s consideration of the long-term offender application was cut short when she held that he did not meet the criteria in s.753.1(2). Accordingly, she did not opine upon whether Mr. McLean posed a substantial risk to reoffend within the meaning of s.753.1(1)(b).
[26] The judge had before her a comprehensive assessment report ordered pursuant to by 752.1 of the Code. The report had been prepared by Dr. Grainne Neilson and Dr. Roger Brown and was referred to by the judge as the Neilson Report, as it was Dr. Neilson who testified at the hearing. The authors of that assessment had concluded that Mr. McLean was in a moderately-high risk to reoffend violently and a high risk to reoffend sexually. They had concluded that there was a low prospect of controlling the risk in the community.
[27] The respondent’s treating psychiatrist, Dr. Risk Kronfli, also filed a report which was not a risk assessment but directed only to the prospect of controlling the risk within the community. Dr. Kronfli testified at the hearing. He did not appear to disagree with the Neilson assessment of risk, but was of the opinion that the risk presented by the respondent could be controlled using a combination of psychotherapy and medication and that the respondent was likely to be compliant with such a regime. The judge accepted that such was the case.
[28] The finding of “substantial risk to reoffend” must be made on the whole of the evidence pertaining to that issue. This will include the contents of the s.752 assessment report which are relevant to recidivism as well as the offender’s history of offending (R. v. K.R.S., supra at para. 51; R. v. D.D., supra, paras. 32 to 34.)
[29] Mr. MacLean was born November 4, 1960. His record of criminal convictions commences in 1978 with obstruction and assault of a police officer. From 1981 to 1983 there is a conviction for carrying a concealed weapon and multiple convictions for theft and break and enter. From 1984 to 2003 there are multiple convictions for sexual assault, sexual harassment, indecent acts as well as a conviction for sexual assault coupled with attempted murder. The final offence on his record is the aggravated assault in 2005 which is the predicate offence for the dangerous offender/long term offender application.
[30] Most of the sexual and indecent assaults involve Mr. McLean lewdly propositioning; sexually touching and/or exposing his genitals. The victims were generally females unknown to him whom he encountered in public places. The 1985 sexual assault, gross indecency and attempted murder offences were particularly egregious. The victim, who knew Mr. McLean, went with him to a wooded area to discuss problems she was having in her marriage. Mr. McLean, threatening violence, forced her to have vaginal intercourse and oral sex. He then choked her into unconsciousness, stabbed her in the throat area several times and bashed her head against a rock. He left her unconscious and bleeding.
[31] The record depicts convictions escalating from property offences to crimes of violence. The offending is continuous but for the break between the 1986 and 1996 convictions. This interruption would be explained, at least in part, by the ten year sentence he received in 1986 for the sexual assault/attempted murder. Even with early release there would have been a substantial period of monitoring in the community. Notwithstanding the significant sentence imposed for those offences, Mr. McLean resumed repeatedly sexually offending until the most recent aggravated assault, resulting in serious injury to the victim. It is particularly concerning that that offence was committed while Mr. McLean was incarcerated. Past attempts to remediate his criminal propensity have failed to deter him.
[32] The Neilson risk assessment is described in the Report as a structured professional judgment guided by consideration of various actuarial risk assessment instruments and a consideration of case specific and dynamic factors that may impact risk.
[33] One of the case specific factors is Mr. McLean’s history with the criminal justice system, outlined above, about which the authors of the Report conclude:
. . .Mr. McLean's criminal history spans his entire adulthood, essentially without disruption, and demonstrates considerable criminal versatility including non‑violent, violent, and sexually violent crimes, including offences while incarcerated. He denies a considerable number of the documented offences despite having entered guilty pleas. For many offences, (including the current offence for which he is awaiting sentencing), he fails to accept personal responsibility, either by justification of his actions, minimization of their seriousness, or displacing blame onto the victim(s). Two of the offences involved a high level of aggression and use of weapons.... The sexual offences are a mixture of "hands on" (e.g. sexual assault) and "hands off" (e.g. indecent exposure) offences. There appears to be a pattern of escalation developing inasmuch as incarceration / external controls seem no longer sufficient to deter him from offending in a violent or a sexually violent manner. Mr. McLean's description of the events seemed to reveal a certain cavalier attitude toward the consequences of his criminal behaviour both to himself and to his victims. None of the sexual offences were against children under the age of 14, and none of the victims were related to Mr. McLean. Advancing age does not appear to be moderating his offending behaviour.
(Emphasis added)
[34] According to the assessors, certain psychopathic traits are also relevant to an individual’s propensity to “violate social norms and expectations”. Individuals rating highly in psychopathic traits have been shown to reoffend both violently and sexually at persistently higher rates than other offenders. The assessors found that Mr. McLean evidences a variety of traits associated with psychopathy:
In particular he evidenced the following traits to a large degree: grandiose sense of self worth; pathological lying; lack of remorse or guilt; shallow affect; callas/lack of empathy; poor behavioral controls; promiscuous sexual behavior, early behavioral problems, impulsivity; a failure to accept responsibility for his own actions, revocation of conditional release, and criminal versatility. He evidenced other traits to a lesser degree: glibness/superficial charm; need for stimulation/proneness to boredom; conning/manipulative; lack of realistic long-term goals; and many short-term marital relationships. He was not felt to evidence the remainder of the traits to a sufficient degree to warrant scoring.
[35] The Report concludes that an individual with Mr. McLean’s mix of psychopathic traits is seen to be at particular risk for violent recidivism.
[36] The authors of the Report discuss in detail thirteen areas relevant to the assessment of the risk of re-offence as they relate specifically to Mr. McLean: lack of victim empathy; psychopathic traits; poor treatment indicators; lack of long term plans; inadequate support system; history of childhood sexual abuse; inadequate relationship skills; deviant sexual interest; sexual orientation confusion; impulsivity; potential for renewed substance abuse; and non-compliance with remediation attempts.
[37] Weighing all of the above factors the writers conclude that Mr. McLean is at a moderately high risk to reoffend violently and a high risk to reoffend sexually.
[38] Counsel for the respondent does not dispute that, unmedicated, Mr. McLean presents a substantial risk to reoffend. However, it is his submission that, because there is a reasonable possibility that the respondent’s risk to reoffend can be controlled within the community through treatment and medication, we cannot conclude that there is a substantial risk that he will reoffend within the meaning of s.753.1(1)(b).
[39] I cannot accept this interpretation of “substantial risk”. It is counter to the clear wording of s.753.1(1). To accept this submission would render ss.753.1(1)(c) meaningless. Subsection 753.1(1)(c) speaks of eventual control of “the risk” which must refer back to the risk found to exist under ss.753.1(1)(b). Under the respondent’s interpretation the prospect of eventual control within the community is considered when assessing substantial risk to reoffend under ss.753.1(1)(b). Therefore, the judge would never need to consider s.753.1(1)(c).
[40] I would find that the Crown has established, beyond a reasonable doubt, based upon all of the evidence, that there is a substantial risk that Mr. McLean will reoffend.
[41] The alternative ground of appeal is that the judge erred when considering the requirements of s.753.1(2)(ii), in concluding that the predicate offence must be sexual in nature (see para. 147 of the sentencing judge’s reasons, reproduced above at para. 12). As I would find that Mr. McLean should be designated a long-term offender pursuant to s.753.1(1), it is unnecessary to consider this issue.
DISPOSITION
[42] Counsel have agreed that should the appeal be allowed and Mr. McLean declared a long-term offender, the appropriate period of supervision is ten years.
[43] Procedurally, it is not for the Court hearing the application to determine the terms of the long-term supervision order. That task falls to the National Parole Board. (R. v. Wormell ,[2005] B.C.J. No. 1289 (Q.L.)(C.A.) at paras. 27 and 28; Corrections and Conditional Release Act, S.C. 1992, c.20, ss.2.1 and 23). I would decline to make any recommendation for conditions.
[44] In summary, while I would allow the appeal, I would impose the same custodial sentence as that ordered by the sentencing judge - a period of six years, reduced by remand time to a sentence of one year and seven months. I would set aside the probationary period and order that Alexander Dean McLean be designated a long-term offender who, upon release from imprisonment shall be supervised in the community for a period of ten years in accordance with s.753.2 of the Criminal Code and the Corrections and Conditional Release Act.
Bateman, J.A.
Concurred in:
Hamilton, J.A.
Fichaud, J.A.