R v Scrivens, 2018 ABQB 1027

Court of Queen’s Bench of Alberta Citation: R v Scrivens, 2018 ABQB 1027 Date: 20181217 Docket: 160243630Q1 Registry: Edmonton Between: Her Majesty the Queen Crown - and - Joseph Richard Scrivens Offender _______________________________________________________ Reasons for Decision of the Honourable Mr. Justice W.N. Renke _______________________________________________________ [ 1 ] On November 20, 2017, the Crown applied to have Joseph Richard Scrivens declared to be a dangerous offender or a long- term offender. On November 20, 2017, I granted an order for the assessment of Mr.

Scrivens under s. 752.1 of the Criminal Code (the Order). Clause 2 of the Order provided that Mr.

Scrivens was to be remanded for the purposes of assessment for a period not exceeding 60 days from the date of the order, “in any event, no later than January 29, 2018.” Clause 4 of the Order provided that the assessment report shall be filed and provided to counsel not later than 30 days after the end of the assessment period, “in any event, no later than February 28, 2018.” [ 2 ] The periods of time for the assessment remand and the filing and distribution of the assessment report are set by ss. 752.1(1) and (2) of the Criminal Code : 752.1

(1) On application by the prosecutor, if the court is of the opinion that there are reasonable grounds to believe that an offender who is convicted of a serious personal injury offence or an offence referred to in paragraph 753.1(2)(

a) might be found to be a dangerous offender under

section 753 or a long-term offender under

section 753.1, the court shall, by order in writing, before sentence is imposed, remand the offender, for a period not exceeding 60 days , to the custody of a person designated by the court who can perform an assessment or have an assessment performed by experts for use as evidence in an application under

section 753 or 753.1.

(2) The person to whom the offender is remanded shall file a report of the assessment with the court not later than 30 days after the end of the assessment period and make copies of it available to the prosecutor and counsel for the offender. [emphasis added]

[ 3 ] Two assessments of Mr. Scrivens were conducted. One was not completed until January 31, 2018. The other was completed by January 12, 2018. One report was filed on February 28, 2018. There is an issue as to whether the second report was “filed,” but if it were, it would have been filed no earlier than February 28, 2018. [ 4 ] The Crown’s office determined that the Order contained two erroneous dates. First, to comply with s. 752.1(1), Mr. Scrivens’ assessment should have been completed by January 19, 2018, not January 29, 2018. One assessment was not completed within this time.

Second, to comply with s. 752.1(2), the reports should have been filed with the Court and distributed to counsel by February 18, 2018, not February 28, 2018. Neither report was filed and distributed by February 18, 2018. [ 5 ] Forthwith upon discovering the errors, the Crown brought the errors to the attention of Mr. Scrivens’ Counsel and the Court. [ 6 ] Mr. Scrivens has applied for a declaration that “these proceedings” are a “nullity” or that the Crown is “precluded from pursuing an application to have [Mr.

Scrivens] designated a dangerous offender” (Defence Brief at paras 2 and 43). [ 7 ] To determine whether a declaration terminating dangerous offender or long-term offender proceedings against Mr. Scrivens should be granted, I shall (

I) review the factual background to the application and address (II) some preliminary issues, before addressing (III-VI) considerations bearing on Mr. Scrivens’ application. Contents I. Background . 4 II. Preliminary Issues . 6 A. Filing . 6 1. The Meaning of “File” . 6 2. Filed in Accordance with the Order? . 6 B. The Declaration Sought 7 C. Approach to the Authorities . 8 1. Authorities from Other Provinces . 8 2. Alberta Queen’s Bench Decisions . 8 D. Elements of the Argument 10 III. The Meaning of “Shall” and the Effect of Non-Compliance . 10 A. The Meaning of “Shall” . 10 B. The Effect of Non-Compliance with an Imperative Time-Limitation . 11 IV. The

Interpretation of Penal Statutes . 13 A. Strict Construction: The Traditional Rule for

Interpretation of Penal Statutes . 13 B.

Section 752.1 as a “Penal Statute” . 15 C. Purposive

Interpretation . 16 1. The Purposive Approach and Penal Legislation . 16 2. Purposive Readings of Penal Statutes . 18 V. The Implications of s. 752.1(3) 19 A. Implications of s. 752.1(3) for the s. 752.1(2) Timelines . 19 B. Subsection 752.1(3) does not Determine the Consequences of Non-Compliance . 20 VI. The Consequences of Non-Compliance with s. 752.1 Timelines . 21 A. The Purpose of s. 752.1 . 22 1. Public Protection . 22 2. Information Gathering . 23 3. Standardization and Regularization of Procedure . 24 4. Purposes of s. 752.1 . 25

B. The Purpose of s. 752.1 and Non-Compliance with Timelines . 25 1. Public Protection . 26 2. Information Gathering . 27 3. Standardization and Regularization of Procedure . 28 4. Discretionary Authorization to Exceed Timelines . 29 C. Other Criminal Code Provisions . 30 1. Related Criminal Code Provisions . 30 2. Contrary Authority? Doucet and s. 672.47 . 31 D. The Role of a Court Order 34 E. The Present Case . 35 VII. Conclusion . 38 I. Background [ 8 ] Mr. Scrivens was to be tried on a 19-count Indictment. [ 9 ] On November 20, 2017, Mr.

Scrivens pleaded guilty to six counts set out in that Indictment – sexual interference (count 2), breach of recognizance under s. 145(3) (count 3), and four counts of breach of a s. 810 recognizance (counts 4, 5, 9, and 10). [ 10 ] An Agreed Statement of Facts establishing the foundation for these offences was signed by Mr. Scrivens and filed with the Court. [ 11 ] Mr.

Scrivens admitted that there were reasonable grounds to believe that he might be found to be a dangerous offender under s. 753 or a long-term offender under s. 753.1 of the Criminal Code . [ 12 ] On application by the Crown, on November 20, 2017, I granted the Order . The Order provided as follows: 1. The Offender shall forthwith be remanded for a period not exceeding 60 days, to the custody of the physician in charge of the Northern Alberta Forensic Psychiatry Services who can perform an assessment or have an assessment performed by experts to use as evidence in an application under

section 753 or

section 753.1 of the Criminal Code of Canada . 2. The Offender is to remain in the custody of the Remand Facility nearest the Alberta Hospital Edmonton, EXCEPT the Offender is to be delivered by Peace Officers into the custody of the Alberta Hospital Edmonton when requested by the physician in charge of the Northern Alberta Forensic Psychiatry Services. His directions in that respect shall have the same force and effect as if they were a part of this Order , and shall be complied with by the said Peace Officers.

The Offender shall remain there as required for the assessment for a period of time not exceeding 60 days from the date of this Order, in any event, no later than January 29, 2018 .… 4.

The physician in charge of the Northern Alberta Forensic Psychiatry Services who can perform an assessment or have an assessment performed by experts shall file a report of the assessment with the Court not later than thirty (30) days after the end of the assessment period and make copies of it available to the prosecutor and counsel for the Offender, in any event, no later than February 28, 2018. [ 13 ] Clause 5 of the Order confirmed that “[t]he Offender is to remain in custody, bail not spoken to, deferred at the request of defence ,” [emphasis added] and set out the date when Mr.

Scrivens would be brought back before the Court, March 2, 2018. [ 14 ] The Order was signed by Crown Counsel and Counsel for Mr. Scrivens, “approved as the Order made.” [ 15 ] Mr. Scrivens remains in custody, judicial interim release not having been spoken to. [ 16 ] Dr. Lenka Zedkova, a forensic psychiatrist, interviewed Mr. Scrivens between January 17 and 31, 2018. On January 30, 2018, Dr. Zedkova had requested permission from Crown counsel formerly assigned to this matter for a meeting with Mr.

Scrivens on January 31, 2018: Affidavit of Shawna Hathaway of October 16, 2018 at para 4; tab 2 of the Crown’s Brief (Hathaway Affidavit). This date fell outside the period that Dr. Zedkova understood was available for assessment. Crown Counsel “forwarded that request to counsel for the Offender, who advised that, ‘if Mr. Scrivens is agreeable then I take no issue with it’ [i.e., with the request]”: Crown Brief at para 6; Hathaway Affidavit at para 4 and Exhibit A. [ 17 ] I accept that neither Mr.

Scrivens nor his counsel waived his entitlement to raise any issues respecting the completion of the assessments or the filing of the reports. At this point, no one was aware that the Order contained incorrect dates. [ 18 ] Dr. Zedkova’s report was filed with the court on February 28, 2018. [ 19 ] A report was also prepared by Dr. Theresa Van Domselaar, a forensic psychologist. The assessments relating to her report

were completed between December 20, 2017 and January 12, 2018. Whether the report was faxed to the Court and faxed to Counsel for Mr. Scrivens on February 28, 2018 has not yet been established on the evidence. [ 20 ] In the course of ensuring that reports were filed, the Crown’s office determined that the Order contained two erroneous dates: Hathaway Affidavit at para 6. First, Mr. Scrivens’ assessment should have been completed by January 19, 2018, not January 29, 2018. Dr. Zedkova’s interviews were not completed by January 19, 2018. Dr. Van Domselaar’s assessments were completed within the time set by statute.

Second, the reports should have been filed with the Court and distributed to counsel by February 18, 2018, not February 28, 2018. Neither Dr. Zedkova’s report nor Dr. Van Domselaar’s report was filed and distributed by February 18, 2018. Dr. Zedkova’s report was fax filed with the Court on February 28, 2018: Hathaway Affidavit at para 8 and Exhibit B. Dr. VanDomsellar’s report was reported to have been sent by fax to the Court and counsel on February 28, 2018: Hathaway Affidavit at paras 10 and 11 and Exhibit C.

Again, whether the report was sent that day cannot be determined on the record at this time. [ 21 ] I note that Counsel for Mr. Scrivens had contended that the report deadline was February 15, 2018 not February 18, 2018, because February 18 was a holiday: Defence Brief at para 11. February 18, 2018 was a Sunday; February 19 was Family Day. The actual deadline, then, was February 20, 2018, as dictated by s. 26 of the

Interpretation Act : “Where the time limited for the doing of a thing expires or falls on a holiday, the thing may be done on the day next following that is not a holiday.” This timing issue was conceded by Defence Counsel in submissions. Whether the report deadline was February 15, 18, or 20 makes no difference. [ 22 ] The Crown did not apply for an extension of the assessment period or the report filing period prior to February 28, 2018.

In its written submissions, the Crown did apply for an extension of time to file the reports, if I were to find that one or both reports had not yet been filed. [ 23 ] As indicated above, upon learning that the Order contained erroneous dates, the Crown alerted Counsel for Mr. Scrivens and the Court of the errors. Following discussions, dates were set for submission of written argument and for oral argument respecting the impact of the errors on Mr. Scrivens’ dangerous offender or long-term offender proceedings. II. Preliminary Issues A. Filing 1.

The Meaning of “File” [ 24 ] Subsection 752.1(2) provides that The person to whom the offender is remanded shall file a report of the assessment with the court not later than 30 days after the end of the assessment period and make copies of it available to the prosecutor and counsel for the offender. Clause 4 of the Order provided that 4.

The physician in charge of the Northern Alberta Forensic Psychiatry Services who can perform an assessment or have an assessment performed by experts shall file a report of the assessment with the Court not later than thirty (30) days after the end of the assessment period and make copies of it available to the prosecutor and counsel for the Offender, in any event, no later than February 28, 2018. [ 25 ] Dr.

Van Domselaar’s report was not filed by February 18 or 20 but it was reported to have been sent on February 28, 2018. [ 26 ] Setting aside the late submission of this report based on a proper date calculation, and acknowledging that if the fax submission constituted “filing” the report would have been filed on the last day permitted by the Order , would sending the report by telefax to the Court and Mr. Scrivens’ counsel constitute “filing” for the purposes of s. 752.1(2) ? [ 27 ] Documents are frequently “fax-filed” with the Court.

In my opinion, for s. 752.1(2) purposes “to file” means “to deliver to,” “to submit to,” “to transmit to,” or “to leave with” the Clerk of the Court. Filing, though, does require actual receipt or successful delivery or transmission to the destination. Filing does not require the further acts of stamping the document and placing it on a Court file. I agree with the

interpretation of “file” adopted by Justice Ryan in R v Small , 2000 BCCA 433 at para 27 : [27] I am of the view that the ordinary definition of the verb “file” rather than the “primitive meaning” of the word more properly reflects the intention of Parliament in creating s. 752.1(2). The person to whom the offender is remanded has no ability to direct the actions of the court registry. Once the author of the assessment report delivers it to the court registry, he or she has completed the obligation imposed upon them by the subsection.

It would, in fact, be unreasonable to require the person to whom the offender is remanded to do anything more. 2. Filed in Accordance with the Order? [ 28 ] Paragraphs 10 and 11 of the Hathaway Affidavit provide as follows: 10. …. I determined that on February 28, 2018, Carol Gibb, Administrative Assistant at Forensic Assessment & Community Services (FACS) emailed me and Ms. McKinnon [a paralegal in the High Risk Offender Unit] the report of Dr. Van Domselaar together with an unsigned copy of a letter to the Clerk of the Court, both dated February 28, 2018.

The letter to the Clerk of the Court indicates “Sent via Fax: (780) 422-3458” …. 11. On March 1, 2018, Ms. McKinnon emailed Ms. Gibb asking her to confirm that Dr. Van Domselaar’s assessment report was filed

with the Court the day prior (referring to February 28, 2018). Ms. Gibb confirmed that she did fax the Court of Queen’s Bench as well asdefence counsel …. Ms.Gibbs’ e-mail and cover letter were exhibited to the affidavit, as was the e-mail conversation. [29] The evidence of Ms. Gibb is hearsay. Ms. Gibb has not provided an affidavit of her own. [30] The further process, if any, respecting Dr. Van Domselaar’s report will be determined at a later date. I will defer any furtherfindings or determinations respecting Dr.

Van Domselaar’s report until I have ruled on any further process and until any additionalpermitted evidence respecting the report has been entered. [This paragraph reflects developments arising in the course of submissions.] B. The Declaration Sought [31] At para 2 of the Defence Brief, it was urged that non-compliance with ss. 752.1(1) and (2) meant that the dangerous offenderproceedings were a “nullity.” At para 43, it was urged that the Crown should be precluded from pursuing an application to have Mr.Scrivens designated a dangerous offender.

The effect of the two contentions would be similar, since in neither case could Mr. Scrivens bedesignated a dangerous offender or long-term offender in these proceedings. The two contentions, though, are analytically distinct. [32] A difficulty with the use of the term “nullity” is that it is imprecise. The term masks the legal effect or lack of legal effect ofparticular acts unauthorized by statute.

See the decision of the majority of the High Court of Australia in State of New South Wales vKable, 252 CLR 118 (2013), 298 ALR 144, [2013] HCA 26 at para 21: 21 It is necessary to exercise great care in using words like “void”, “voidable”, “irregularity” and “nullity” in connection with theissues that arise in this matter. Each word was used in Mr. Kable’s argument in this appeal to state a conclusion about the legal effect ofthe order of Levine J.

More often than not, each word was used in a way which expressly or impliedly sought to convey a meaningidentified by its opposition to another word (void versus voidable, nullity versus irregularity). Used in that way, each of the words, void,voidable, nullity and irregularity, suggests that the whole of the relevant universe can be divided between two realms whose borders aresharply defined and completely closed. None is used in a way which admits (or readily appears to admit) of the possibility that the legaleffect to be given to

an act affected by some want of power may require a more elaborate description which takes account not only ofwho may complain about the want of power, but also of what remedy may be given in response to the complaint. See also Mazepa v Embree, 2014 ABCA 438 at para 11 and Doucet v Adult Forensic Psychiatric Services and AGBC, 2000 BCCA195, Lambert JA at para 8, Rowles JA at para 66. [33] I will return to the issue of “nullity” below. For now, I will assume that the second type of declaration is pursued.

Theargument would be that because the deadlines in ss. 752.1(1) and (2) were exceeded, the assessments and reports cannot, under s.752.1(1), be “use[d] as evidence in an application under s. 753.” Without the assessments and reports, a s. 753 application could not goforward. Subsection 753(1) requires that an “assessment report” have been filed: “On application made under this Part after anassessment report is filed under subsection 752.1(2), the court shall find the offender to be a dangerous offender if it is satisfied ….”[emphasis added] See R v Boutilier, 2017 SCC 64 at para 39.

Since the offending assessments and reports could not be relied on, noapplication could follow. C. Approach to the Authorities [34] The authorities are divided. On the one side are decisions from courts outside Alberta that, directly or indirectly, support theconclusion that a failure to abide by ss. 752.1(1) and (2) timelines is not, by itself or without more, fatal to a dangerous offender or long-term offender application. On the other side is Justice Ouellette’s decision in R v Gow, 2010 ABQB 564.

At para 89 Justice Ouelletteheld that “[t]he effect of non-compliance with the assessment period results in a nullity of the proceedings ….” 1. Authorities from Other Provinces [35] “No court at any level in one province is bound to follow a decision of a court in another province:” William Ehrcke (laterJustice Ehrcke of the BCSC), “Stare Decisis” (1995), The Advocate 847 at 850, quoted with approval in R v Vu, 2004 BCCA 230,Donald JA at para 26.

I am not bound by the decisions of courts from outside Alberta, although “there are many compelling reasons whya Judge of first instance in this Province ought to try to conform with the decisions of other provincial appellate Courts:” R v Beaney, (ON SC), [1970] 1 CCC 48 (Ont Co Ct), Matheson Co Ct J at 53-54; quoted by (Justice) Ehrcke as reported in Vu atpara 26. 2.

Alberta Queen’s Bench Decisions [36] In The Owners, Strata Plan BCS 4006 v Jameson House Ventures Ltd, 2017 BCSC 1988 at paras 63-65, Justice Donegandescribed the principle of “judicial comity” that applies respecting decisions of other judges of the same level of court. Justice Doneganwrote as follows at para 64: [64] In R. v. Blackmore, 2017 BCSC 1288, I considered the principle of judicial comity as set out in Re Hansard Spruce Mills Ltd., (BC SC), [1954] 4 D.L.R. 590 (B.C.S.C.) at paras. 222-225: …. [223] … Mr.

Justice Wilson (as he then was) explained the duty of a trial judge to follow the decision of another judge of the samecourt, except in certain limited circumstances. In this regard, he held at 592: ...I think...the proper discretionary duty of a trial judge, is more limited...I have no power to overrule a brother Judge, I can only differfrom him, and the effect of my doing so is not to settle but rather to unsettle the law, because, following such difference of opinion, the

unhappy litigant is confronted with conflicting opinions emanating from the same Court and therefore of the same legal weight. This is a state of affairs which cannot develop in the Court of Appeal. Therefore … I will only go against a judgment of another Judge of this Court if: (a) [s]ubsequent decisions have affected the validity of the impugned judgment; (

b) it is demonstrated that some binding authority in case law, or some relevant statute was not considered; (

c) the judgment was unconsidered, a nisi prius judgment given in circumstances familiar to all trial Judges, where the exigencies of the trial require an immediate decision without opportunity to fully [consult] authority. …. [225] Mr. Justice Smart described the approach outlined in Re Hansard Spruce Mills Ltd. this way in R. v. Sipes , 2009 BCSC 285 at paras. 10-15 : …. [11] In my view, both the rule in Re Hansard Spruce Mills and the exceptions to it are based on common sense and a consideration of the interests of justice.

At all times, the application of the rule should advance the interests of justice, not undermine them.

It is for this reason that I am also of the view that the determination as to whether to follow a decision of another judge of the same court should not begin and end with a rote application of Re Hansard Spruce Mills ; instead, that determination should also be informed by all relevant factors that bear upon whether it is in the best interests of justice in the context of the particular case at hand to do so …. [13] Would it be in the interests of justice for a trial judge in proceedings of this nature to follow the decision of another judge of the same court on a pivotal issue that could result in a successful appeal and an order for a new trial if he or she were firmly of the view that the decision had been incorrectly decided?

Would doing so enhance public confidence in the administration of justice or would it have the contrary effect? [14] Surely blind adherence to another judge’s decision would not be warranted in such circumstances …. See also R v Kelly , 2016 SKQB 43 , McMurtry J at para 16 and R v Laliberte , 2014 SKQB 242 , Scherman J at paras 11-12. [ 37 ] The Crown urged me to depart from the decision of Justice Ouellette in Gow . I have taken into account that consistency, certainty, and judicial comity militate strongly against such a departure.

I am not sitting as a court of appeal, and I do not have the advantages that an appellate process might yield. But I have also taken into account that the case before me may turn on facts crucially different than the facts in Gow . Further, there have been some judicial consideration of Gow and some developments in the law since Gow was decided (such as R v Alex , 2017 SCC 37 , Moldaver J at paras 31-36). I am acutely aware that judicial decision-making relies on issues and submissions put before a judge by counsel.

Finally, I look to the consequences of this application: the consequences are of extreme importance both to Mr. Scrivens and to the public. In my opinion, I am bound to consider all relevant factors bearing on Mr. Scrivens’ application in determining whether it is in the best interests of justice, even if that means departing from the decision of a respected colleague. I therefore consider my exploration of the issues to be warranted. [ 38 ] I embark on my analysis conscious that it is for the Court of Appeal to resolve any uncertainty that my decision might engender.

If and to the extent that I may come to conclusions differing from those in Gow , I can hope that the appellate process will benefit to some degree from my exposition. D. Elements of the Argument [ 39 ] The argument that the missed timelines were fatal to further dangerous offender proceedings against Mr. Scrivens turned on four main sets of considerations: the imperative nature of the term “shall” in s. 752.1 ; the requirement for a “strict construction” of s. 752.1 as it is a “penal statute;” the implications of s. 752.1(3); and the

interpretation of an analogous Criminal Code provision by Justice Lambert in Doucet . [ 40 ] I will address the first three sets of considerations in the sections that follow, returning to Doucet later in these reasons. III. The Meaning of “Shall” and the Effect of Non-Compliance [ 41 ]

Section 752.1 uses the term “shall” in establishing timelines for completion of assessments and filing of assessment reports. [ 42 ] The first plank of the argument that non-compliance with the s. 752.1 timelines results in termination of proceedings is that the term “shall” in s. 752.1 is imperative and is not permissive. It does not confer a discretion on those authorized to assess and report; it does not establish mere guidelines. I accept that the term “shall” in s. 752.1 signals imperative not permissive timelines. However, I do not accept that this

interpretation of “shall,” by itself, determines the consequences of non-compliance with the timelines. A. The Meaning of “Shall”

[43]

Section 11 of the

Interpretation Act establishes the meaning of the term “shall:” “The expression ‘shall’ is to be construed asimperative and the expression ‘may’ as permissive.” “Shall” does not mean “may.” “Shall” imposes a requirement. It does not confer adiscretion. Thus, Professor Sullivan wrote as follows in Sullivan on the Construction of Statutes, 6th ed (LexisNexis: Markham, Ontario,2014) at §§4.80, 4.81 (Construction of Statutes): §4.80 “Shall” / “must”. When “shall” and “must” are used in legislation to impose an obligation or create a prohibition, they are alwaysimperative.

A person who “shall” or “must” do something has no discretion to decline …. §4.81 …. “Shall” and “must” are always imperative (binding); neither ever confers discretion. [44] Hence, the term “shall” occurring in s. 752.1(1) (“the court shall, by order in writing, before sentence is imposed, remand theoffender, for a period not exceeding 60 days”) and s. 752.1(2) (“[t]he person to whom the offender is remanded shall file a report of theassessment with the court not later than 30 days after the end of the assessment period”) denotes an imperative; fixed dates, not dates thatmay or may not be exceeded.

See Gow at paras 49-50; 65-66; R v Johnson, 2003 SCC 46 at para 16. [45] Justice Ouellette also pointed out at para 67 of Gow that [67]

Section 12 of the

Interpretation Act is also applicable in determining whether s. 752.1(1) is mandatory. The

Interpretation Actstates that the

section be given fair, large and liberal

interpretation to best ensure the attainment of its objects. In this case, the entirety ofs. 752.1, including subsections 752.1(1), 752.1(2) and 752.1(3), must be looked at as a whole. Parliament chose in those sections to usewords such as, “shall” and “for a period not exceeding 60 days” in 752.1(1), “shall” and “not later than 30 days” in 752.1(2) and “must befiled by a maximum of 30 days” in 752.1(3). The terminology used by Parliament in those three sub-sections is not ambiguous and canlead to no other

interpretation than the sections are imperative or mandatory. I recognize that the concluding words “or mandatory” point to the crucial issue. B. The Effect of Non-Compliance with an Imperative Time-Limitation [46] The determination of the imperative nature of “shall” settles one issue, but it leaves open another: what is the consequence ofnon-compliance with an imperative time-limitation? Sometimes the consequence of non-compliance is spelled out by statute.

In thisinstance, it is not. [47] If a statute does not spell out the consequences of non-compliance with imperative language, even if the imperative force restson the term “shall,” the consequences of non-compliance are a matter of statutory

interpretation. “Shall” is not self-interpreting.Parliament left the consequences to be worked out by the Courts.

See Gow at para 52; Doucet, Rowles JA at para 45 (“Imperativeprovisions must be complied with, that is, performance is not at the discretion of the tribunal, but the consequences of the failure tocomply will vary depending on the statutory context”); R v McDonald, 2014 BCSC 2131, Fitch J, as he then was, at para 50. [48] The issue is whether the statutory language should be regarded as “mandatory” or “directory,” or perhaps better, whether theconsequence of non-compliance follows necessarily, without any further consideration of circumstances, or whether the consequence ofnon-compliance must be determined in the circumstances.

Again Professor Sullivan in Construction of Statutes at §§4.80, 4.81: §4.80 “Shall” / “must”. …. The issue that arises in connection with “shall” and “must” is not whether they are imperative, but theconsequences that flow from a failure to comply. In some legislation, the consequences are clearly set out, as in the Criminal Code orlegislation that regulates through licensing or prohibition.

In other contexts the legislation is silent and it is left to the courts to determinewhether non-compliance can be cured. §4.81 If breaching an obligation or requirement imposed by “shall” entails invalidity or a nullity, the provision is said to be mandatory; ifthe breach can be fixed or disregarded, the provision is said to be directory. The term “directory” is unfortunate in so far as it implies that“shall” is sometimes not imperative, that it sometimes has the force of a mere suggestion.

The confusion is compounded when“mandatory” and “imperative” are used interchangeably — that is, when “mandatory” is used to indicate that a provision is binding or“imperative”. These are distinct concepts. “Shall” and “must” are always imperative (binding); neither ever confers discretion. But theymay or may not be mandatory; that is, breach of a binding obligation or requirement may or may not lead to nullity. The mandatory-directory distinction reflects the fact that there is more than one way to enforce an obligation. [emphasis added].

See Gow at para 54; Doucet, Rowles JA at paras 46-49. [49] Justice Fitch described the classic approach to the directory/mandatory analysis in McDonald at para 51: [51] In Montreal Street Railway Co. v. Normandin, (UK JCPC), [1917] A.C. 170 (P.C.), it was said that no generalrule can be laid down as to whether the provisions in a statute are directory or mandatory and that in every case the object of the statutemust be looked at.

In determining whether the provisions of a statute relating to the performance of the public duty are directory ormandatory, it is important to consider: (1) whether holding null and void acts or omissions in neglect of this duty would cause an injustice to a party who has no control overthose entrusted with the duty; and (2) whether characterizing the provision as mandatory would frustrate achievement of the objectives of the legislation.

Where these conditions are met, it is open to a court to characterize the provision as directory only and hold that the neglect of them doesnot affect the validity of acts done. As I understand the law, much depends on context. [50] In R v Howdle, 2002 SKQB 440, affd 2004 SKCA 39, leave app SCC refd 2004 CarswellSask 770, Justice Laing wrote as

follows at para 12 (QB): [12] Pierre-André Côté in his text The

Interpretation of Legislation in Canada, 2d ed. (Montreal: Les Éditions Yvon Blais, Inc., 1991)at 204-05 makes the following observations: In the absence of express provisions, several elements may indicate whether the legislator intended nullity as the consequence of an errorin form. On this question it has been said that no general rule can be laid down, and that in every case the object of the statute must belooked at.

Three factors appear to influence the courts: the prejudice caused by non-compliance with formalities, the potential consequences of acourt finding of nullity, and the subject matter of the legislation …. The courts are particularly concerned with the prejudice that will result from non-compliance with formalities, or the prejudice that willresult from a declaration of nullity …. [51] Professor Sullivan referred to additional authorities in Construction of Statutes at §4.82: More recently, in British Columbia (Attorney General) v.

Canada (Attorney General) [ (SCC), [1994] 2 SCR 41 at 123],Iacobucci J. wrote: [T]he court which decides what is mandatory, and what is directory, brings no special tools to bear upon the decision. The decision isinformed by the usual process of statutory

interpretation. But the process perhaps evokes a special concern for “inconvenient” effects,both public and private, which will emanate from the interpretative result. In Blueberry River Indian Band v.

Canada [ (SCC), [1995] 4 SCR 344 at para 42], citing the passage just quoted,Gonthier J. wrote: This Court has … held that the object of the statute, and the effect of ruling one way or the other, are the most important considerationsin determining whether a directive is mandatory or directory. [52] When faced with the issue of the consequences of non-compliance with imperative statutory language, as in s. 752.1, theauthorities urge consideration of statutory purpose, whether the claimed consequences for non-compliance would promote or subvertstatutory purpose, and whether the claimed consequences for non-compliance would cause prejudice or harm to those affected by thestatute. [53] I will consider whether consideration of these matters is pre-empted by a rule of

interpretation of penal statutes. IV. The

Interpretation of Penal Statutes [54] The second plank of the argument that non-compliance with the s. 752.1 timelines results in termination of proceedings is thatpenal statutes such as s. 752.1 should be interpreted “strictly,” that is, in favour of an accused or an offender. As the

interpretation of s.752.1 most favourable to Mr. Scrivens is that non-compliance with the s. 752.1 timelines precludes reliance on a late assessment orreport, that is the

interpretation that should be adopted. I accept that s. 752.1 should be understood to be a “penal statute,” but I do notaccept that the “strict construction” doctrine precludes consideration of statutory purpose and interpretive effects. A. Strict Construction: The Traditional Rule for

Interpretation of Penal Statutes [55] A traditional judicial interpretative approach is to interpret penal statutes strictly. See Gow at paras 55 and 56, 68. ProfessorSullivan outlined the distinction between strict and liberal construction, corresponding to the distinction between penal and remediallegislation in Construction of Statutes at §15.17 as follows: §15.17 Traditional distinction. Under the doctrine of strict and liberal construction, statutes are regarded as falling into one of twoclasses: penal or remedial.

Historically, penal statutes were broadly defined as statutes that curtailed liberty or took away property orotherwise interfered with the rights of subjects. To protect individuals from the superior power of the state, penal statutes received a strictconstruction. The concept of remedial statutes was less sharply defined. This category included statutes designed to cure mischief,advance religion or confer public benefits. In keeping with their benevolent purpose, remedial statutes were liberally construed [footnotesomitted].

Professor Sullivan elaborated on the nature of “penal statutes” and the rationale for strict construction at §§15.24-27: §15.24 The strict construction rule. Penal legislation is legislation that creates offences punishable by fine, imprisonment or forfeitureof a right or privilege …. §15.25 Because of the potential for serious consequences, penal legislation is strictly construed. In Marcotte v.

Canada (Deputy A.G.),Dickson J. wrote: No authority is needed for the proposition that if real ambiguities are found, or doubts of substance arise, in the construction andapplication of a statute affecting the liberty of a subject, then that statute should be applied in such a manner as to favour the personagainst whom it is sought to be enforced. If one is to be incarcerated, one should at least know that some Act of Parliament requires it inexpress terms, and not, at most, by implication. In R. v. McLaughlin, Laskin C.J. wrote:

[T]he general rule [is] that in construing criminal statutes they should, where there is uncertainty or ambiguity of meaning, be construed in favour of rather than against an accused. In short, he must be brought fully within the statute and cannot be held guilty of a violation if it is only applicable in part. … In R. v. McIntosh , Lamer J. wrote: … the overriding principle governing the

interpretation of penal provisions is that ambiguity should be resolved in a manner most favourable to accused persons. … The Criminal Code … is qualitatively different from most other legislative enactments because of its direct and potentially profound impact on the personal liberty of citizens. The special nature of the Criminal Code requires an interpretive approach which is sensitive to liberty interests.

Therefore, an ambiguous penal provision must be interpreted in the manner most favourable to accused persons, and in the manner most likely to provide clarity and certainty in the criminal law [footnotes omitted]. §15.26 As Lamer J. indicates, there are two distinct concerns underlying this application of the strict construction rule. The first is the draconian character of criminal law. It not only imposes limitations on an individual’s freedom to act as he or she sees fit, but also enforces those limitations with the threat of punishment. This aspect of the rule is explored by Wilson J. in R. v.

Paré : The doctrine [of strict construction] is one of ancient lineage. It reached its pinnacle of importance in a former age when the death penalty attached to a vast array of offences. … Over the past two centuries criminal law penalties have become far less severe. Criminal law remains, however, the most dramatic and important incursion that the state makes into individual liberty.

Thus, while the original justification for the doctrine has been substantially eroded, the seriousness of imposing criminal penalties of any sort demands that reasonable doubts be resolved in favour of the accused [footnote omitted]. §15.27 The other concern underlying the strict construction rule is the need to give fair notice to the public of what acts or omissions are liable to be punished. In R. v. Kelly , McLachlin J. wrote: It is a fundamental proposition of the criminal law that the law be certain and definitive.

This is essential, given the fact that what is at stake is the potential deprivation of a person of his or her liberty and his or her subjection to the sanction and opprobrium of criminal conviction. This principle has been enshrined in the common law for centuries, encapsulated in the maxim nullum crimen sine lege, nulla poena sine lege — there must be no crime or punishment except in accordance with law which is fixed and certain … [footnote omitted]. B.

Section 752.1 as a “Penal Statute” [ 56 ] One might argue that s. 752.1 is not, properly speaking, penal legislation. [ 57 ]

Section 752.1 does not create an offence. It does not establish the criteria for a determination that an individual is a dangerous offender or long-term offender and it does not describe the consequences of being designated as a dangerous offender or long-term offender. [ 58 ]

Section 752.1 does affect the liberty of the subject by setting a period of remand, but if a dangerous offender application were contemplated, it would be unlikely that the offender would be at large on judicial interim release pending resolution of the dangerous offender proceedings. Typically, at least, the remand would affect the place of custody but not whether the offender would be in custody. [ 59 ]

Section 752.1 is arguably administrative or procedural legislation that sets timelines for the collection of evidence relevant to dangerous offender or long-term offender proceedings. [ 60 ] However, while it is true that s. 752.1 sets timelines and that is a procedural matter, the

section is a form of or is in aid of statutory authorization of non-consensual information gathering from the offender.

Section 752.1 sets the terms for the acquisition of the evidence essential to a dangerous offender or long-term offender application. While the

section has a procedural aspect, the procedure facilitates compulsory State process and information-gathering, in turn used in proceedings that contemplate extraordinary restrictions of liberty and the profoundly stigmatic effects of designation. These features of s. 752.1 should leave the

section in the realm of penal statutes. Moreover, regardless of the “typical” remand effects of an order under s. 752.1(1), by designating the place and nature of remand, it limits the liberty interests of an offender. [ 61 ] I shall proceed on the basis that s. 752.1 is a “penal statute” (as did Justice Fitch in McDonald at para 61 ). C. Purposive

Interpretation [ 62 ] There are, nonetheless, two reasons why the “strict construction” approach to s. 752.1 may not be appropriate. [ 63 ] First, the strict construction approach is deployed only if a statutory provision is ambiguous, only if the statute supports (at least) two incompatible

interpretations. The ambiguity is resolved by the rule that the

interpretation favourable to the accused or offender governs. That is, a “tie” goes to the accused or offender. If, however, the

interpretation of a statutory provision does not result in ambiguity, in the equal availability of (at least) two incompatible

interpretations, the strict construction rule does not apply. A statute is not to be interpreted to favour an accused or offender just because the favourable

interpretation is possible. [ 64 ] Second, the primary interpretative approach, employed to determine whether or not a statutory provision is ambiguous, is the purposive approach to statutory

interpretation – and this approach applies even to penal legislation.

[65]

Section 12 of the

Interpretation Act provides as follows: 12 Every enactment is deemed remedial, and shall be given such fair, large and liberal construction and

interpretation as best ensures theattainment of its objects.

Section 12 applies to “every enactment,” not “every enactment except the Criminal Code.” Hence, a remedial interpretive approach, aninterpretive approach that promotes a statute’s “objects,” a purposive approach, should be used for all statutes. Criminal statutes are notexempt. 1. The Purposive Approach and Penal Legislation [66] Justice Cory explained the relationship between strict construction and purposive

interpretation in R v Hasselwander, (SCC), [1993] 2 SCR 398 at 411-13: We are dealing here with the Criminal Code. In days gone by it was a fundamental principle of statutory

interpretation that penalenactments should be strictly construed so that any uncertainty as to the meaning or the scope of the law would be resolved in favour ofthe accused …. This rule has been modified and indeed transformed over the last fifty years. In his book, The

Interpretation ofLegislation in Canada (2nd ed. 1991), Pierre-André Côté provides a helpful historical analysis of this rule. On pages 397-98, thefollowing appears: Historically, the rule of strict construction drew its justification from a time when courts had to temper extremely severe penal legislation…. The nineteenth century witnessed a relaxation of penal legislation, and the death penalty ceased being the standard punishment forserious crimes. The reinforced presumption was relegated to a subsidiary one ….

As early as the beginning of this century, Justice Lyman Duff, at that time a member of the Supreme Court of British Columbia,observed that “the rule of strict construction, as applied to penal statutes, has been much relaxed” (in recent years) (McGregor v.Canadian Consolidated Mines Ltd. (1906), 12 B.C.R. 116 (S.C.), 117). …. The apparent conflict between a strict construction of a penal statute and the remedial

interpretation required by s. 12 of theInterpretation Act was resolved by according the rule of strict construction of penal statutes a subsidiary role. In Bélanger v. The Queen, (SCC), [1970] S.C.R. 567, Cartwright C.J. harmonized these opposing principles. In so doing he cited with approvalthe following words of Maxwell, The

Interpretation of Statutes (7th ed. 1929), p. 244) at p. 573: Where an equivocal word or ambiguous sentence leaves a reasonable doubt of its meaning which the canons of

interpretation fail tosolve, the benefit of the doubt should be given to the subject and against the Legislature which has failed to explain itself. More recently, Martin J.A., writing for the Ontario Court of Appeal in R. v. Goulis (1981), (ON CA), 125 D.L.R. (3d)137, employed this approach in interpreting the meaning of a word in the Criminal Code. He stated at pp. 141-42: This Court has on many occasions applied the well-known rule of statutory construction that if a penal provision is reasonably capable oftwo

interpretations, that

interpretation which is the more favourable to the accused must be adopted: see, for example, R. v. Cheetham(1980), (ON CA), 53 C.C.C. (2d) 109, 17 C.R. (3d) 1; R. v. Negridge (1980), (ON CA), 54 C.C.C.(2d) 304, 17 C.R. (3d) 14, 6 M.V.R. 255. I do not think, however, that this principle always requires a word which has two acceptedmeanings to be given the more restrictive meaning. Where a word used in a statute has two accepted meanings, then either or bothmeanings may apply. The Court is first required to endeavour to determine the sense in which Parliament used the word from thecontext in which it appears.

It is only in the case of an ambiguity which still exists after the full context is considered, where it isuncertain in which sense Parliament used the word, that the above rule of statutory construction requires the

interpretation which is themore favourable to the defendant to be adopted. [Emphasis added (by Cory J).] Thus, the rule of strict construction becomes applicable only when attempts at the neutral

interpretation suggested by s. 12 of theInterpretation Act still leave reasonable doubt as to the meaning or scope of the text of the statute. As Professor Côté has pointed out,this means that even with penal statutes, the real intention of the legislature must be sought, and the meaning compatible with its goalsapplied …. See also R v Heywood, (SCC), [1994] 3 SCR 761 at 784; R v Adams, (SCC), [1995] 4 SCR 707 at para23; R v Hinchey, (SCC), [1996] 3 SCR 1128 at paras 12 and 94. 2. Purposive Readings of Penal Statutes [67] The Supreme Court has adopted purposive readings of penal statutes,

interpretations that support statutory purpose rather thaninterpretations that most favour the accused. For example: [68] In Alex, the Supreme Court considered whether the availability of the evidentiary shortcuts in s. 258 of the Criminal Code,premised on breath sample provided after a “demand” under s. 254(3), required that the demand have been “lawful,” i.e. whether theofficer making the demand had reasonable grounds for making the demand and made the demand as soon as practicable as required bythe terms of s. 254(3). Justice Moldaver found that the demand need not have been “lawful” to engage the presumptions. As a matter ofstatutory

interpretation, recourse to the presumptions was not precluded by a demand non-compliant with s. 254(3). That did not leave anaccused without remedy. The accused could urge the exclusion of the breath sample evidence through a Charter application. That is,there is no automatic statutory invalidation of the demand and consequent breath sample. The accused must show, in the circumstances,that the failure to comply with s. 254(3) violated his or her Charter rights and that exclusion is warranted under s. 24(2). JusticeMoldaver began his statutory

interpretation analysis at para 24 by confirming that

[24] The modern approach to statutory

interpretation is now well established. It requires that the words of a provision be read “intheir entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and theintention of Parliament”: Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42 , [2002] 2 S.C.R. 559, at para. 26, quoting E.A. Driedger, Construction of Statutes (2nd ed. 1983), at p. 87. A statutory provision may support a reading favouring an accused. That is not the decisive interpretative consideration. Justice Moldaverwrote as follows at paras 31-33: [31] This Court has repeatedly observed that plain meaning alone is not determinative and a statutory

interpretation analysis isincomplete without considering the context, purpose and relevant legal norms: McLean v. British Columbia (Securities Commission),2013 SCC 67 , [2013] 3 S.C.R. 895, at para. 43; ATCO Gas and Pipelines Ltd. v. Alberta (Energy and Utilities Board), 2006SCC 4 , [2006] 1 S.C.R. 140, at para. 48; Rizzo & Rizzo Shoes Ltd. (Re), (SCC), [1998] 1 S.C.R. 27, at paras.20-41 …. [32] Ruth Sullivan makes a similar point in Sullivan on the Construction of Statutes (6th ed. 2014), at § 2.9: At the end of the day . . . the court must adopt an

interpretation that is appropriate. An appropriate

interpretation is one that can bejustified in terms of (

a) its plausibility, that is, its compliance with the legislative text; (

b) its efficacy, that is, its promotion of legislativeintent; and (

c) its acceptability, that is, the outcome complies with accepted legal norms; it is reasonable and just. [33] In sum, while Mr. Alex’s

interpretation may be an arguable reading of the opening words, it cannot prevail if it is at odds withthe purpose and context of the provisions. [69] In R v Paré, (SCC), [1987] 2 SCR 618, Justice Wilson considered the

interpretation of s. 214(5) [now 231(5)]of the Criminal Code, designating murder as first-degree murder when death was caused “while committing” or attempting to commitcertain offences. Justice Wilson rejected a literal meaning favouring an accused. Justice Wilson confirmed the “continued vitality” of thestrict construction doctrine, but did not terminate the statutory

interpretation analysis because a reading favouring the accused wasavailable. Justice Wilson wrote as follows at 631: …. This, however, does not end the question. We still have to determine whether the narrow

interpretation of “while committing” is areasonable one, given the scheme and purpose of the legislation. In my view, the construction that counsel for the respondent would have us place on these words is not one that could reasonably beattributed to Parliament. Justice Wilson adopted an interpretive approach to the subsection that “it seems to me, best expresses the policy considerations thatunderlie the provision.” [70] The interpretive starting point, then, is the determination of the purpose of s. 752.1. I shall address this issue below.

At thispoint, my conclusion is only that further exploration of the significance of non-compliance with the s. 752.1 timelines is not foreclosedby the strict construction interpretive doctrine. Before addressing the statutory purpose, I will address the potential implications of s.752.1(3). V. The Implications of s. 752.1(3) A. Implications of s. 752.1(3) for the s. 752.1(2) Timelines [71] The third plank of the argument that non-compliance with the s. 752.1 timelines results in termination of proceedings is theset of implications argued to be drawn from s. 752.1(3). [72]

Section 752.1 should be read as a whole. Earlier versions of s. 752.1 lacked s. 752.1(3). That provision was added by s. 41 ofSC 2008 c. 6, the Tackling Violent Crime Act. This amending provision also extended the initial report-filing period in s. 752.1(2) from15 to 30 days. Did the inclusion of s. 752.1(3) indicate Parliament’s intention that the timelines in s. 752.1(1) be interpreted as“mandatory,” such that failure to abide by the timelines entails that the dangerous offender process must be at an end? [73] Subsection 752.1(3) provides as follows:

(3) On application by the prosecutor, the court may extend the period within which the report must be filed by a maximum of 30 days ifthe court is satisfied that there are reasonable grounds to do so. Three implications may be argued to follow. First, a late report may be saved only if an application is made for an extension. In this case,no such application was made within the stated statutory timelines and the reports were filed after the time specified in s. 752.1(2) (if theVan Domelsaar report was “filed” at all).

Since a mechanism is provided to save late reports, that mechanism must be used or the reportcannot be used in further proceedings. The enactment of s. 752.1(3) shows that, without an extension provision, the report could not be avalid basis for further proceedings. Subsection 752.1(3) was necessary to preserve the “validity” of the report. [74] Second, s. 752.1(3) allows for an extension only for the filing of the report. It does not permit an extension of the time tocomplete the assessment.

Parliament, then, countenanced only a delay in filing a report, not saving a late-completed assessment.Parliament provided a cure for a report that cannot be filed on time, but no cure for an assessment that was not completed on time. Sincethere is no statutory mechanism for saving a late-completed assessment, but there is a mechanism for obtaining permission to file a reportafter the initial deadline, Parliament must be taken to have intended that a late-completed assessment could not be saved, could not becured. A late-completed assessment, then, cannot be used in further dangerous offender proceedings.

Hence, Parliament “intended 60

days to mean 60 days,” and no more: Gow at para 72. This is an “expressio unius” or implied exclusion inference. To express one thing isto exclude another: see Sullivan, Construction of Statutes at §8.89. [75] Third, if assessments could be completed late and reports filed late without an extension under s. 752.1(3), this subsectionwould be “meaningless,” in the sense that it would serve no purpose. It could be safely ignored. It would be superfluous. Extensionswould be available without reliance on it.

But Parliament must be presumed not to enact meaningless or purposeless legislation.Professor Sullivan, Construction of Statutes at §8.23: §8.23 Governing principle. It is presumed that the legislature avoids superfluous or meaningless words, that it does not pointlesslyrepeat itself or speak in vain …. Every word in a statute is presumed to make sense and to have a specific role to play in advancing thelegislative purpose [footnotes omitted]. See Gow at para 69.

A connected argument is this: Prior to the 2008 amendments, courts were granting extensions without an expressstatutory provision authorizing the granting of extensions. If the purpose of s. 752.1(3) were not to supplant this judicial practice, s.752.1(3) would be unnecessary: Gow at para 71. B. Subsection 752.1(3) does not Determine the Consequences of Non-Compliance [76] These claimed implications of s. 752.1(3) are relevant to the

interpretation of s. 752.1. However, reliance on theseimplications has the same weakness as reliance on strict construction. What s. 752.1(3) means, as much as what ss. 752.1(1) and (2)mean, is a function of statutory purpose. The purpose of the statute must be determined – in light, of course, of statutory context – so thatthe role of the subsections can be properly understood. [77] Subsection 752.1(3) does not by itself (without presupposing its function, that is to say the purpose it serves) advance thedetermination of whether the imperative language in s. 752.1 is mandatory or directory.

The subsection does not spell out theconsequences of non-compliance. The subsection simply adds a procedural option and an additional timeline.

The significance of failingto resort to s. 752.1(3) and the significance of non-compliance with the s. 752.1(3) timeline are as much open questions as thesignificance of non-compliance with ss. 752.1(1) and (2). [78] As for the expressio unius form of argument implicit in at least the second implication of the enactment of s. 752.1(3), JusticeCameron wrote as follows in Dorval v Dorval, 2006 SKCA 21 at paras 13-15: [13] Still, the maxim expressio unius est exclusio alterius is only an aid to statutory construction.

As Laskin C.J. noted in Jones v.A.G. of New Brunswick, (SCC), [1975] 2 S.C.R. 182, “This maxim provides at the most merely a guide tointerpretation; it does not pre-ordain conclusions.” And its application calls for a considerable measure of caution lest too much be madeof it, a point developed in detail in P.-A. Côté, The

Interpretation of Legislation in Canada, 3rd ed. (Scarborough: Carswell, 2000) at pp.337-339. As Côté observes at p. 337: A contrario [reasoning], especially in the form expressio unius est exclusio alterius, is widely used. But of all the interpretive arguments,it is among those which must be used with the utmost caution. The courts have often declared it an unreliable tool, and, as we shall see, itis frequently rejected. [14] In significant part, these observations are grounded in what was said of expressio unius in Turgeon v.

Dominion Bank, (SCC), [1930] S.C.R. 67, per Newcombe J. at pp.70-71, and Alliance des Professeurs Catholiques de Montréal v. QuébecLabour Relations Board, (SCC), [1953] 2 S.C.R. 140, per Rinfret C.J. at pp. 154, citing Farwell L.J. in Re Lowe v.Darling & Son, [1906] 2 K.B. 772. What was there said of this guide to

interpretation is that caution is required in its application andthat, while it can be a valuable servant, it can be a dangerous master to follow for a number of reasons. First, much depends on context,including the particular subject-matter. Second, express reference to a matter may have been unnecessary and been made only out ofabundant caution. Third, the lack of express reference may have been the product of inadvertence. Fourth, the express and the tacit,incongruous as they may be, must still be such as to make it clear they were not intended to coexist.

And, finally, the indiscriminateapplication of expressio unius to the particular subject-matter may lead to inconsistency or injustice. [15] In the light of considerations such as these, Côté, goes on to observe at p. 339: Since it is only a guide to the legislature’s intent, a contrario reasoning should certainly be set aside if other indications reveal that itsconsequences go against the statute’s purpose, are manifestly absurd, or lead to incoherence and injustice. [footnotes omitted]. [79] Again, my conclusion at this point is only that further exploration of the significance of non-compliance with the s. 752.1timelines has not been foreclosed by the addition of s. 752.1(3).

Statutory purpose must be considered. I turn now to that task. VI. The Consequences of Non-Compliance with s. 752.1Timelines [80]

Section 752.1 uses imperative language. The question is whether that language should be interpreted as mandatory ordirectory. Put another way, the question is whether or not non-compliance with the statutory timelines by itself or without moreprecludes further proceedings. The answer to the question begins with the purpose of s. 752.1. A. The Purpose of s. 752.1

1. Public Protection [81] The dangerous offender provisions serve the ultimate end of preserving public safety or of protecting the public from aparticular type of offender who represents a particular type of risk. Justice Macklin wrote as follows in R v Blanchard, 2018 ABQB 43 atpara 9: [9] Therefore, the primary purpose of the dangerous offender regime is the protection of the public: R v Johnson, 2003 SCC 46 atpara 19, [2003] 2 SCR 357. In R v Steele, 2014 SCC 61, [2014] 3 SCR 138, the Court said: 29 The primary rationale for both indeterminate detention and long-term supervision under

Part XXIV is public protection. Bothsentences advance the “dominant purpose” of preventive detention identified by Dickson J. in Hatchwell v. The Queen, (SCC), [1976] 1 S.C.R. 39, at p. 43, namely “to protect the public when the past conduct of the criminal demonstrates a propensity forcrimes of violence against the person, and there is a real and present danger to life or limb” (I note that the

preamble to the Tackling Violent Crime Act provides, in part, that “Whereas dangerous and high risk offenders pose asignificant threat to the public.”) The dangerous offender regime is to apply to the small subset of offenders whose dangerousness cannotbe adequately addressed through the ordinary sentencing system: Lyons v The Queen, (SCC), [1987] 2 SCR 309 at 339and 347. [82] The overarching purpose of the dangerous offender provisions aligns with the “fundamental purpose” of sentencing set out ins. 718 of the Criminal Code, “to protect society and to contribute … to … the maintenance of a just, peaceful and safe society byimposing just sanctions ….” Dangerous offender and long-term offender proceedings are sentencing proceedings and the principles andobjectives of sentencing apply in these proceedings: Boutilier at para 53.

However, as Justice LaForest stated in Lyons at 329: Preventive detention in the context of

Part XXI, however, simply represents a judgment that the relative importance of the objectives ofrehabilitation, deterrence and retribution are greatly attenuated in the circumstances of the individual case, and that of prevention,correspondingly increased.

Part XXI merely enables the court to accommodate its sentence to the common sense reality that the presentcondition of the offender is such that he or she is not inhibited by normal standards of behavioural restraint so that future violent acts canquite confidently be expected of that person. In such circumstances it would be folly not to tailor the sentence accordingly. Dangerous offender proceedings emphasize public safety: Boutilier at para 56.

A “preventive sanction can be imposed only uponoffenders for whom segregation from society is a rational means to achieve the overriding purpose of public safety:” Boutilier at para33. [83] A feature of this means of promoting public safety in both dangerous offender and long-term offender proceedings is that theproceedings focus on evidence of risk to the public demonstrated by an offender: R v Sipos, 2014 SCC 47 at para 19. Unlike ordinarysentencing proceedings, the dangerous offender and long-term offender proceedings require a redistribution of risk. Justice LaForestwrote as follows in Lyons at 368-69: ….

Similarly, Floud and Young, supra, reject the notion that in enacting dangerous offender legislation Parliament unfairly sacrificesinnocent persons in favour of the public good (at pp. 48-49): …. The question is not “how many innocent persons are to sacrifice their liberty for the extra protection that special sentences for dangerousoffenders will provide?” but “what is the moral choice between the alternative risks: the risk of harm to potential victims or the risk ofunnecessarily detaining offenders judged to be dangerous”?

The essential nature of the problem of preventing wilful harm is misrepresented by talk of balancing individual and social costs. Theproblem is to make a just redistribution of risk in circumstances that do not permit of its being reduced. There is a risk of harm toinnocent persons at the hands of an offender who is judged likely to inflict it intentionally or recklessly--in any case culpably--indefiance or disregard of the usual constraints.

His being in the wrong by virtue of the risk he represents is what entitles us to considerimposing on him the risk of unnecessary measures to save the risk of harm to innocent victims. [Emphasis added (by LaForest J)] I agree with this reasoning …. [84] The timing provisions in s. 752.1 do not immediately promote public safety. These provisions promote subordinate purposes.But those subordinate purposes take their significance from the primary purpose of the dangerous offender and long-term offenderregime.

That purpose, public protection or the preservation of public safety from the narrow subset of offenders who demonstrate a highlevel of risk of harm to the public, informs each aspect of statutory process. The particular provisions of

Part XXIV would not exist ontheir own. The provisions exist because they have a function: they contribute to achieving the overall purpose of the dangerous offenderlegislation. See McDonald at para 15. 2.

Information Gathering [85] To ensure that the court is in a position to determine whether an offender should be designated a dangerous offender, to makethe required “just redistribution of risk,” to protect the public on the one hand and to minimize the impact on the liberty interests of theoffender on the other, the court must be “given access to the widest possible range of information in order to determine whether there isa serious risk to public safety:” R v Jones, (SCC), [1994] 2 SCR 229, Gonthier J at 290.

Justice Gonthier continued: If there is [a serious risk to public safety], the dangerous offender sentencing allows the justice system to more precisely tailor the actualtime served by the offender to the threat that he poses to society. The overriding aim is not the punishment of the offender but theprevention of future violence through the imposition of an indeterminate sentence. An indeterminate sentence is not an unlimitedsentence …. The offender faces incarceration only for the period of time that he poses a serious risk to the safety of society.

In theinterim, it is hoped that he will receive treatment that will assist him in controlling his conduct. To release a dangerous offender while he

remains unable to control his actions serves neither the interests of the offender nor those of society. See McDonald at para 18 . [ 86 ]

Section 752.1 furthers the objective of acquiring the information the judge needs to decide a dangerous offender or long-term offender application by authorizing the remand for assessment, the assessment, and the assessment report: Howdle at para 14 (CA); R v Schwartz , 2002 BCCA 616 , leave app SCC refd 2004 CarswellBC 454 at para 44 (CA) ; R v Albert , 2001 SKCA 57 at para 3 . This information-production objective serves not only public protection but the offender’s interest in ensuring the decision about him or her is properly evidence-based: McDonald at para 20 . 3. Standardization and Regularization of Procedure [ 87 ]

Section 752.1 does not deal with the criteria for designation as a dangerous offender or with the consequences of being designated a dangerous offender. Rather, s. 752.1 establishes a process by which evidence is collected and reported for the purposes of an application under s. 753 . [ 88 ]

Section 752.1 thereby serves public protection through establishing a procedure authorizing the collection of crucial evidence. It also serves the offender’s interests by regulating the interference with liberty through the remand and the provision of information derived from the assessment.

Section 752.1 provides a standardized protocol for information gathering, a regularized process for information gathering, to permit the court to have the evidence it needs to make the “just redistribution of risk.” [ 89 ] The standardization or regularization of s. 752.1 provides the timelines for information gathering. It sets out the maximum period that an offender can expect to be subjected to assessment and it sets out the maximum period in which the offender and the Crown can expect to receive conclusions embodied in reports.

The standardization or regularization, then, serves a purpose of balancing the interests in information gathering and reporting with the interests of an offender in having known, finite timelines for compulsory procedure and the receipt of information. [ 90 ] In that standardization or regularization, the particular times used are conventional and have no inherent necessity. Periods of 60 and 30 days are used. Those periods could have been longer, e.g., 90 days and 45 days; or shorter, e.g. 45 days and 15 days.

The periods as set can be understood to provide a reasonable time to get the requisite work done while reasonably or not unnecessarily prolonging an offender’s participation, and reasonably or not unnecessarily delaying the provision of information gathered through the assessment, as embodied in a report: Small at para 20 ; R v Crowe , 2013 NSSC 212 , Robertson J at para 32. 4.

Purposes of s. 752.1 [ 91 ] Thus, s. 752.1 serves the following purposes, from the highest to the most immediate: protection of the public, as against serious risks posed by a special class of offenders; ensuring that courts have the information requisite to perform the “just redistribution of risk;” and standardizing and regularizing the information gathering and reporting process, thereby establishing a reasonable time for assessment and reporting and a reasonable time for the offender’s subjection to assessment and for receipt of report information. [ 92 ] The function of s. 752.1(3), a focus of earlier attention, thereby becomes clear.

It simply establishes a process whereby the Crown may apply for an extension for the filing of a report. Under s. 752.1(2), a report is to be filed within 30 days after the assessment period. That may not be sufficient time to complete the report. Before the 2008 amendments, the legislation did not set out a process to obtain the extension. The amendments corrected that deficiency, and incidentally increased the initial period for completion of the report. Subsection 752.1(3) was a procedural enhancement. It was not an implicit comment or direction on non-compliance consequences.

Indeed, the amendments in s. 41 of the Tackling Violent Crime Act did not address assessments at all. Only the report procedure was renovated. I therefore agree with the opinion of Justice Fitch in McDonald at para 59 : [59] … I cannot ascribe to the 2008 amendments the significance Gow does.

As noted earlier, the pre-2008 legislative scheme provided that the person to whom the offender is remanded “shall file a report of the assessment with the court not later than 15 days after the end of the assessment period…” Despite use of the word “shall” courts uniformly came to the conclusion that the time for filing the assessment report could, in appropriate circumstances, be extended. The effect of the amendments is simply to provide a mechanism through which the filing deadline for the assessment report may be extended by up to 30 days if the court is satisfied there are reasonable grounds to do so.

If an extension is granted, the report shall be filed by that date. If it is not, the court is, in my view, no more deprived of jurisdiction to extend time for filing the assessment report under the new legislative regime than it was under the old. B. The Purpose of s. 752.1 and Non-Compliance with Timelines [ 93 ] Would the purposes of s. 752.1 be served by treating late assessments and reports as “void” or “nullities,” or as not permitting further dangerous offender proceedings?

That is, should the consequence of non-compliance with the s. 752.1 timelines be that a late assessment or late report cannot be relied on in further proceedings, regardless of the circumstances? [ 94 ] Two contextual factors are relevant. First, the dangerous offender and long-term offender proceedings concern an individual who has been found guilty of an offence, whether at trial or by plea: Lyons at 328. The emphasis on the constitutional protection of the individual’s procedural interests is not as pronounced as when the individual was presumed innocent.

Justice Gonthier wrote in Jones at 291 that “[t]he sentencing stage places a stronger emphasis on societal interests and more narrowly defines the procedural protection accorded to the offender;” see 277-281 and 286. See also Howdle , Laing J at para 10 (QB); Small at para 19 . [ 95 ] Second, Justice LaForest commented in Lyons at 362 that “s. 7 of the Charter entitles the appellant to a fair hearing; it does not entitle him to the most favourable procedures that could possibly be imagined.” 1. Public Protection

[96] Under s. 752.1(1), the initiation of dangerous offender or long-term offender proceedings is premised on a finding “that thereare reasonable grounds to believe that an offender who is convicted of a serious personal injury offence or an offence referred to inparagraph 753.1(2)(

a) might be found to be a dangerous offender under

section 753 or a long-term offender under

section 753.1.” The“reasonable grounds” standard denotes a standard of credibly-based probability, although not satisfaction of the balance of probabilitiesstandard. While not based on a finding that the offender is a risk to the public, the proceedings are based on a finding of a reasonablelikelihood that the offender is a risk to the public.

The public interest in protection or safety is therefore legitimately engaged. [97] If non-compliance with s. 752.1(1) or (2) timelines precluded further dangerous offender proceedings, the interest in publicsafety, legitimately engaged by the finding of reasonable grounds for risk, would not be promoted. The proceedings designed to achievethe just redistribution of risk would be halted. In Justice Fitch’s estimation at para 55 of McDonald, giving the provisions the meaning ascribed to them by Mr. McDonald would defeat the important public safety objectives of thelegislation. The provisions in

Part XXIV as a whole are designed to protect the public from offenders who pose a demonstrated andunmanageable risk to the community. It cannot be the case that, contrary to the overall objectives of the legislation, Parliament intendedthe public to bear the risk to public safety that arises from innocent, non-prejudicial error that effectively frustrates compliance with thetimelines set out in s. 752.1 of the Code. [98] But may the interest in public safety nonetheless be promoted through ordinary sentencing? Ordinary sentencing does remainan option.

Justice Ouellette wrote the following in Gow at paras 84 and 85: [84] Even if the process becomes a nullity because of non-compliance with s. 752.1(1), the offender does not avoid the conviction orsentencing. The offender will still be sentenced. The sentence is likely to be a substantial jail term because, using the usual step-upprinciple, the sentence would be greater than 2 years.

This will almost certainly be the case because the application by the prosecutor forthe long-term offender designation can only be made if the offender has previously received at least 2 years of imprisonment (see s.752.01 of the Criminal Code). [85] Further, the court has the authority pursuant to s. 743.6(1) of the Criminal Code, to delay the offender’s eligibility for parole, ifcircumstances warrant.

The court can order that the offender must serve one half of the sentence, before he may be released on fullparole. [99] It would therefore be wrong to suggest that termination of dangerous offender or long-term offender proceedings leaves thepublic entirely at risk, with no measures available to address public safety. [100] However, the difficulty is that the dangerous offender provisions were designed to deal with the special risks posed by specialsubsets of offenders.

The availability of the dangerous offender and long-term offender regimes shows that the ordinary sentencingregime is not the most appropriate penal response to these special subsets of offenders. Ordinary sentencing would promote public safety.But public safety would not be promoted to the degree and in the manner contemplated by the dangerous offender and long-termoffender provisions.

As the Crown stated at para 62 of its Brief, at this point “there is evidence-based concern that these traditionalprinciples and sentences might be insufficient to mitigate the long term risk the offender poses to reoffend …. [I]t should be of littlecomfort to the court that an offender will likely receive a sentence of gaol in excess of two years, particularly when there are limitedmeans of supervision once the offender reaches warrant expiry.” Moreover, ordinary sentencing does not extend the same proceduralprotections to offenders as the dangerous offender and long-term offender processes.

In Lyons, Justice LaForest quoted Justice Martin’sdecision in R v Crosby (1982), (ON CA), 1 CCC (3d) 233, at 240: The Crown, in our view, properly invoked the dangerous offender legislation in this case.

This court has said on more than one occasionthat rather than sentence a person who has been convicted of a serious offence and who is a continuing danger to life imprisonment, theprosecution should proceed under the dangerous offender provisions, where the offender has greater protection. [101] In my opinion, blocking dangerous offender or long-term offender proceedings could leave the public exposed to risk – even atthis point risk for which only reasonable grounds have been established – that may not be compensated for through ordinary sentencing.At this point, sufficient information is not before the Court to permit that determination.

Furthermore, the offender would lose proceduralprotections. Blocking dangerous offender or long-term offender proceedings because of non-compliance with ss. 752.1(1) and (2)timelines would therefore fail to promote the objectives of the dangerous offender and long-term offender provisions. 2. Information Gathering [102] If non-compliance with the ss. 752.1(1) and (2) timelines blocked dangerous offender and long-term offender proceedings andprevented the use of late assessments or reports, the information required by the court for the purposes of the just redistribution of riskwould not be available.

As Justice Fitch wrote at para 53 of McDonald, [53] … characterizing the timelines in s. 752.1 as mandatory would defeat the important objectives animating the legislation as awhole - to enable an informed determination, based on the widest possible range of information, as to whether an offender poses aserious risk to public safety such as to warrant the initiation of a dangerous or long-term offender proceeding. Mr.

McDonald's argumentthat the provisions are mandatory would lead to unfair and unacceptable consequences. [103] Again, ordinary sentencing would not leave the court without information, such as, for example, FACS assessments or even riskassessments, but this information (generally) would not have – and should not have – the degree of breadth and depth that shouldcharacterize ss. 752.1(1) and (2) assessments and reports. Ordinary sentencing information suffices for ordinary sentencing, but again,the dangerous offender and long-term offender provisions are designed to deal with extraordinary circumstances.

To address thoseextraordinary circumstances properly, information additional to that deployed in ordinary sentencing is required. [104] Suppressing information in lat

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