Iacobucci and Arbour JJ.
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.
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.
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.
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.
Cases cited
- R. v. Johnson 2003 SCC 46 ¶ 1
- R. v. Smith 2003 SCC 48 ¶ 1
- R. v. Mitchell 2003 SCC 49 ¶ 1
- R. v. Kelly 2003 SCC 50 ¶ 1
- Johnson Johnson ¶ 1, ¶ 2, ¶ 4
- Mitchell Mitchell ¶ 1
- Smith Smith ¶ 1