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DANGEROUS AND LONG-TERM OFFENDERS - Dangerous offender designation

Tuesday, March 26, 2019 @ 8:50 AM  

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Appeal by Roper, an Indigenous person, from a finding that he was a dangerous offender and from the imposition of an indeterminate sentence. The appellant had been convicted of forcible confinement, intentionally discharging a firearm, possession of a prohibited weapon, and aggravated assault. He had an extensive criminal record, including previous convictions for assaults against former domestic partners. He had longstanding substance abuse issues and antisocial and psychopathic personality traits. He was considered a high risk to violently re-offend. After several days of evidence had been heard in the dangerous offender hearing, the judge became unable to continue and another judge took over. The replacement judge ruled it was permissible for him to consider the transcripts of the evidence heard by the original judge. He gave the appellant the right to demand that witnesses be recalled. In accordance with the practice in British Columbia at the time, the judge postponed consideration of the appellant’s treatability until the disposition stage of the proceedings, after he had determined the appellant was a dangerous offender.

HELD: Appeal dismissed. The replacement judge was not required to recommence the dangerous offender hearing as if no evidence had been heard. He had jurisdiction to make the procedural directions he made, within his discretion under s. 669.2(2) of the Criminal Code. The directions he gave were appropriate and served to completely protect the appellant’s interests. The failure to consider the appellant’s treatability at the designation stage of analysis did not constitute a reversible error as it did not result in any substantial wrong or miscarriage of justice. It was clear that if the judge had had the benefit of the Supreme Court of Canada’s decision in R. v. Boutilier and had not treated the two stages of the inquiry as entirely distinct, he would have reached the same conclusion. The judge did not place undue weight on the psychiatric evidence. It was apparent the judge fully understood the nature of the various dispositions available to him under the dangerous offender procedure. Sentence: Indeterminate imprisonment.

R. v. Roper, [2019] B.C.J. No. 270, British Columbia Court of Appeal, H. Groberman, L.A. Fenlon and G.J. Fitch JJ.A., February 26, 2019. Digest No. TLD-March252019003