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DANGEROUS AND LONG-TERM OFFENDERS - Dangerous offender designation - Protection of the public

Tuesday, March 02, 2021 @ 6:14 AM  

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Appeal by the Crown from a determinate sentence imposed on the accused, Blackplume, in the context of a dangerous offender proceeding. The accused, age 29, was an Indigenous transgendered person who functioned at a child’s cognitive level, likely due to Fetal Alcohol Spectrum Disorder. The accused displayed features of psychopathy, suicidal ideation and various personality disorders. She suffered a traumatic childhood that included abuse by her parents and others. The accused had virtually no work experience and required a high level of real-time support. The accused pleaded guilty to sexual assault with a weapon and assault causing bodily harm. The accused’s record included several prior convictions including convictions for a similar offence. Attempts at treatment and therapy had no positive impact. The Crown sought a dangerous offender designation and indeterminate sentence. The sentencing judge designated the accused as a dangerous defender and imposed a 10-year sentence followed by a 10-year long-term supervision order. The judge found that although the accused met the public protection criterion for an indeterminate sentence, such disposition would constitute cruel and unusual punishment in the accused’s particular circumstances. The Crown appealed.

HELD: Appeal allowed. The sentencing judge concluded an indeterminate sentence was required to provide adequate protection of the public. Given that finding, the sentencing judge erred in substance in finding cruel and unusual circumstances in the accused’s case and by declining to apply s. 753(4.1) of the Criminal Code. The facts did not present meaningfully different circumstances than those considered in the applicable jurisprudence, as many dangerous offenders had similar treatment-resistant characteristics. The distinguishing feature of the accused’s gender transition was not a focus of the evidence and was not heavily relied upon as a basis for the sentencing judge’s decision. The impact of the sentencing judge’s errors was to impermissibly grant the accused a constitutional exemption from the operation of s. 753(4.1). The accused’s personal characteristics did not outweigh the public protection requirements. Consequently, an indeterminate sentence was imposed.

R. v. Blackplume, [2021] A.J. No. 11, Alberta Court of Appeal, M.S. Paperny, F.F. Slatter and J. Antonio JJ.A., January 7, 2021. Digest No. TLD-March12021003