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| John Hill |
These offences were committed while Drake was on probation; his criminal record was lengthy, including past convictions for violent offences. At sentencing, the Crown asked for a dangerous offender application. It was granted.
The designation of “dangerous offender” is reserved for the most violent offenders coming before the courts. It is sought when a Crown attorney can show a high risk of future violent behaviour. To be successful, the court must conclude there is a pattern of repetitive dangerous behaviour and that the offender’s inability to restrain violent conduct in the past suggests a likelihood that such behaviour will continue in the future.
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He posited that Drake’s prognosis for successful treatment to reduce risk was poor, that Drake’s expression of remorse was unhelpful in determining if he would benefit from treatment or supervision, that Drake had not benefitted from prior attempts at treatment or supervision, and that Drake had minimal community supports to deter him from future criminal activity.
The sentencing judge held:
But the law is clear: a hope that the risk might be controlled in the community is not enough: Boutilier, [[2017] 2 S.C.R.936] at paras. 83 and 86; R. v. Sawyer, [2015] O.J. No. 4652] at para. 37. The evidence adduced at the hearing overwhelmingly establishes that taking a chance on Mr. Drake would mean putting individuals in our community at risk of serious personal injury or death. As stated by Cronk J.A. in R. v. G.L. 2007 ONCA 548, para. 70, “in a contest between an individual offender’s interest in invoking the long-term offender provisions of the Code and the protection of the public, the latter must prevail.”
A dangerous offender order was imposed. Drake appealed.
On Jan. 2, the Ontario Court of Appeal decision in R. v. Drake 2024 ONCA 4 was released. In a brief 15-paragraph judgment, the appeal was dismissed. Unfortunately, when the Appeal Court issues decisions sparse on reasoning, the criminal bar is at a loss to understand the principles that may be determinative in future cases.
For example, is the Court of Appeal advising that the dust has settled on Dr. Scott Woodside’s evidence after being criticized judicially by Superior Court Justice Laura Bird in the dangerous offender application of Caleb Nettleton (R. v. Nettleton [2023] O.J. No. 2888)? According to a Toronto Star report, Dr. Woodside has produced 160 court-ordered reports. A finding made by Justice Bird could jeopardize the reputation of the noted psychiatrist unless the Appeal Court rehabilitates trust in his analyses.
Of further concern is the lack of attention that the Appeal Court gave in light of the decision in R. v. Johnson, 2003 SCC 46. That case held that a judge’s discretion on declaring an offender dangerous must be guided by the relevant sentencing principles contained in ss. 718 to 718.2 of the Code. These include the principles of proportionality and restraint. A sentencing judge must consider the possibility that a less restrictive sanction would attain the same sentencing objectives as a more restrictive option.
The weighing of the DO and the LTO options is hardly touched upon in either the trial or appeal decisions. To ensure public protection, a sentencing judge must be satisfied that the sentencing options available under the long-term offender provisions are sufficient to 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 an offender dangerous and thereupon impose an indeterminate sentence, even if all the statutory criteria have been satisfied. Parliament did not intend the dangerous offender provisions and the long-term offender provisions to be considered in isolation from one another.
The case will be of importance in determining Quinnton Drake’s future, but it will have limited value in determining how other dangerous offender appeals may be reasoned.
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). Contact him at johnlornehill@hotmail.com.
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