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DANGEROUS AND LONG-TERM OFFENDERS - Long-term offender designation - Eventual control of risk in community

Friday, May 05, 2017 @ 8:39 AM  


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Appeal by the Crown from a decision dismissing its application to designate Hess as a dangerous offender. Hess, an aboriginal person, had amassed a lengthy criminal record, which included violent offences. During his time in prison, Hess caused three puncture wounds in a jail guard’s neck, and subsequently spent a long period in segregation. After he was released from prison, he stabbed his uncle in the neck. Hess was placed in a psychiatric hospital within a correctional setting, and began receiving treatment for schizophrenia, major depression and post-traumatic stress disorder. Hess’ psychiatrist testified that Hess responded to treatment well and had gained insight into his illness and behaviour. The sentencing judge concluded that the progression of Hess’ improvement was evidence of his treatability, and that there was a very high degree of probability that the release plan proposed by his psychiatrist would be successful and protect the public. The sentencing judge imposed a total jail term of two years less one day on the predicate offence of aggravated assault. The judge gave Hess seven years’ and ten months’ credit for pre-sentence custody, for an effective sentence of nine years and 10 months. Hess was also placed on a five-year Long Term Supervision Order (LTSO) commencing upon his release after serving the two years less one day term of imprisonment. In total, the sentence imposed provided for seven years of incarceration/supervision of the respondent from the date of sentence. The Crown submitted that the sentencing judge’s fact-finding process was tainted by several errors of law.

HELD: Appeal dismissed. The sentencing judge’s conclusion that there was a reasonable possibility of eventual control of Hess’ risk in the community was not tainted by legal error and was reasonable and entitled to deference. The sentencing judge properly instructed himself that any decision that a lesser measure than an indeterminate sentence could control the offender must be based on evidence introduced during the course of the hearing. The sentencing judge was entitled to accept the evidence of Hess’ psychiatrist and prefer it over the evidence of the forensic psychiatrists. There was concrete evidence of treatability over the nearly four years Hess was at the psychiatric hospital. The key components of the release plan were enforceable through the LTSO and fell within the control of the Parole Board and Correctional Services Canada (CSC). There was no error in the sentencing judge considering possible use of treatment and reintegration options not directly provided by CSC in assessing the possibility of controlling Hess’ risk. The sentencing judge was entitled to consider the proposed release plan in concluding that there was a reasonable possibility of eventual control of Hess in the community.

R. v. Hess, [2017] O.J. No. 1373, Ontario Court of Appeal, A. Hoy A.C.J.O., D.H. Doherty and B. Miller JJ.A., March 20, 2017. Digest No. TLD-May12017012