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R. v. Kelly

2003 SCC 50 [2003] 2 SCR 400 Court SCC Decision date 2003-09-26 Docket 29140 English

PartiesHer Majesty The Queen Appellant·Michael Edward Kelly Respondent·Attorney General of Canada Intervener

Judges McLachlin, Beverley; Gonthier, Charles Doherty; Iacobucci, Frank; Major, John C.; Bastarache, Michel; Binnie, William Ian Corneil; Arbour, Louise; LeBel, Louis; Deschamps, Marie

Delivered by Iacobucci and Arbour JJ.

On appeal from British Columbia

Subjects Criminal law

Contents

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. Edgar, [2003] 2 S.C.R. 388, 2003 SCC 47, R. v. Smith, [2003] 2 S.C.R. 392, 2003 SCC 48, and R. v. Mitchell, [2003] 2 S.C.R. 396, 2003 SCC 49, involves an appeal against a sentencing judge’s decision to declare an offender dangerous and sentence him to an indeterminate period of detention. 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, a sentencing judge must consider the possibility of a long-term offender designation prior to declaring an offender dangerous. 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 concluded that the long-term offender provisions were available. In the absence of a full inquiry into the suitability of the long-term offender provisions, 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.

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