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| John L. Hill |
The exception is that the dangerous offender provisions of the Code strive to protect the public from future harm. Obviously, our judges are not fortune-tellers. How are we assured that some accused are not dealt with unjustly?
The recent decision of R. v. Wong 2023 ONCA 118 provides a roadmap on how the court has approached determining if the designation of dangerous offender should be applied when dealing with inadequate resources to read the crystal ball with precision.
Nicholas Wong came from what most people would consider an underprivileged background. Born in 1986, he was raised by his mother. His father was incarcerated and deported when Wong was 10 years old. He had behavioural and attendance issues at school leading to his dropping out in grade nine.
Even though such a background should have alerted child protection authorities of the necessity of intervention, the only state involvement was punishment meted out for 22 convictions he rang up both as a youthful offender and as an adult. On April 10, 2010, in a drug deal gone wrong, Wong shot two men and faced charges of attempted murder with a firearm and other related offences. A jury found Wong guilty. Thereupon, the Crown sought a dangerous offender designation and an indeterminate term of imprisonment.
A designation of dangerous offender needs more than a criminal record to satisfy the requirements of s. 753(1) of the Code. Not only must there be a conviction for a serious personal injury offence, it must also establish a propensity for violence by showing a pattern of repetitive behaviour demonstrating an inability to restrain impulses or a pattern of persistent and aggressive behaviour showing indifference to the consequences on others. Ordinarily the Crown will ask for a psychological assessment and be granted an order for such an evaluation.
In Wong’s case, the assessment was conducted by Dr. Scott Woodside without Wong’s participation. Not surprisingly, the resulting report was an unconfirmed diagnosis of anti-social personality disorder leading Woodside to speculate that Wong was at high risk for violent reoffence.
Prior to the hearing, defence arranged for another assessment; this one performed by psychologist Dr. George E. Ilacqua. The report stated Wong was not “inherently dangerous” and risks could be managed with a determinate sentence and community supervision. The report, however, was problematic in that it failed to express an opinion on whether Wong met the criteria for dangerous offender set out in ss 753(1)(a)(i) and(ii) of the Code.
The lack of evidence on these criteria allowed the sentencing judge to conclude they had been met. Similarly, with no adequate plan in place as to how behaviour could be managed, the sentencing judge imposed the indeterminate order. The Appeal Court saw no error in law allowing it to intervene and modify the sentence or order a new trial.
One wonders if the result would have been different if Wong had chosen to participate in an interview with Woodside and allowed him to express a professional opinion other than what could be gleaned from an atrocious criminal record and police reports. Would circumstances be different had Wong demanded a report from Ilacqua that addressed itself specifically to the criteria in the Code that spelled out requirements to be adjudged as a dangerous offender.
Compare Wong with the Saskatchewan case of R. v. Ross 2022 SKCA 149 where the dangerous offender designation was maintained, but the indeterminate sentence imposed by the trial judge was replaced by a determinate sentence and long term supervision order based on a fulsome psychiatric report that painted a picture of a person who need not spend the rest of his days in penitentiary. That court further acknowledged the principle of restraint in sentencing.
No one can predict the future. We leave it to psychiatry to make the best guess possible. When the psychiatric and psychological reports are inadequate, can we expect a judgment to be anything more? Maybe we are asking too much of our judges in the task of prognostication. Maybe if we intervened much earlier to provide the resources we spend on jails in the treatment and guidance of troubled youth, we could avoid wasted lives.
John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books), which was published Sept. 1. Contact him at johnlornehill@hotmail.com.
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