James Peter Sipos Appellant v. Her Majesty The Queen, 2014 SCC 47

SUPREME COURT OF CANADA Citation: R. v. Sipos, 2014 SCC 47, [2014] 2 S.C.R. 423 Date: 20140710 Docket: 35310 Between: James Peter Sipos Appellant and Her Majesty The Queen Respondent - and - Criminal Lawyers’ Association (Ontario) Intervener Coram: LeBel, Abella, Rothstein, Cromwell, Moldaver, Karakatsanis and Wagner JJ. Reasons for Judgment: (paras. 1 to 51) Cromwell J. (LeBel, Abella, Rothstein, Moldaver, Karakatsanis and Wagner JJ. concurring) r. v. sipos, 2014 SCC 47, [2014] 2 S.C.R. 423 James Peter Sipos Appellant v. Her Majesty The Queen Respondent and Criminal Lawyers’ Association (Ontario) Intervener Indexed as: R. v. Sipos 2014 SCC 47 File No.: 35310. 2014: April 15; 2014: July 10.

Present: LeBel, Abella, Rothstein, Cromwell, Moldaver, Karakatsanis and Wagner JJ. on appeal from the court of appeal for ontario Criminal law — Appeals — Dangerous offenders — Courts — Curative powers — Fresh evidence — Trial judge declaringaccused to be dangerous offender without considering long-term offender designation — Whether trial judge committed error of law —Whether Court of Appeal erred by using curative powers and upholding dangerous offender designation — Role of fresh evidence indangerous offender designation appeals — Criminal Code, R.S.C. 1985, c. C-46, ss. 753, 759.

In 1996, a jury convicted the accused of multiple sexual offences and physical assaults. In 1998, the accused was declared adangerous offender and given an indeterminate sentence. Between the time of the convictions and the decision on the dangerousoffender proceeding, the Criminal Code was amended to add a new designation of long-term offenders. The sentencing judge did notconsider a long-term offender designation before declaring the accused to be a dangerous offender. In 2012, the Court of Appeal heardan appeal from the sentence.

The accused filed fresh evidence consisting of a risk assessment created in 2010 and information about hisperformance in sexual offender programs while in custody. A psychiatrist opined that the accused continued to meet the standard forbeing found a dangerous offender but also that some factors suggested suitability for release in 2016 with 10 years long-termsupervision. The Court of Appeal admitted the fresh evidence. It held that the sentencing judge committed a legal error by notconsidering the long-term offender provisions.

However, it applied its curative powers and upheld the dangerous offender designation. Held: The appeal should be dismissed. An offender may appeal a dangerous offender designation on any ground of law or fact or mixed law and fact. Appellatereview is concerned with legal errors and whether the designation was reasonable. An appellate court may exercise its curative powerdespite a legal error if there is no reasonable possibility that the verdict would have been different had the error not been made. Ondangerous offender appeals, the test set out in Palmer v.

The Queen, (SCC), [1980] 1 S.C.R. 759, governs theadmissibility of fresh evidence. Fresh evidence addressing events between the time of sentencing and the time of the appeal raisescompeting values. Changes cannot be ignored but routinely deciding sentence appeals on the basis of after-the-fact developments couldjeopardize the integrity of the criminal process by undermining its finality and could surpass the appropriate bounds of appellate review. The appellate process should be both responsive to the demands of justice and respectful of the limits of appellate review.

Fresh evidence generally has little role to play when determining whether the curative power should be exercised. Indangerous offender appeals, an appellate court may use its curative power only where there is no reasonable possibility that the resultwould have been different had the error not been made. The exercise is necessarily focused on the record before the sentencing judgebecause the question concerns what that judge might have done had he or she applied correct legal principles.

The appellate court mustconsider whether the legal error may have resulted in exclusion of evidence that ought to have been admitted or otherwise affected theevidentiary record or the judge’s assessment of it. Fresh evidence meeting the Palmer test might be admitted but where new evidence hasnothing to do with the possible impact of the legal error on the sentencing decision, it should not be considered. In this case, the fresh evidence has nothing to do with the impact of the legal error made by the sentencing judge. Thesentencing judge’s only realistic option was a dangerous offender designation.

There is no suggestion that the failure to consider along-term offender designation affected the evidentiary record. The correct focus is on the possible impact of the error on the sentencingjudge’s decision, not on the accused’s current prospects for control in the community. On the other hand, an offender may appeal a dangerous offender designation on the basis that it is unreasonable. There is awider role for fresh evidence in appellate review on this basis. The appellate court may review the sentence in light of the whole record,including admissible fresh evidence.

In dangerous offender appeals, appellate courts are frequently confronted with evidence about anoffender’s rehabilitation efforts and prospects. Appellate courts generally take a very cautious approach to intervening solely on thebasis of evidence of this nature but in exceptional and proper cases, in which the evidence is sufficiently compelling, they may interveneon the basis of after-the-fact evidence. The focus is still on the impact of the new evidence on the sentencing proceeding, viewed in thecontext of the whole record.

The accused’s fresh evidence indicates a reasonable possibility of eventual control of the risk in the community if he werereleased from incarceration in about 2016 with a further period of 10 years long-term supervision, subject to many qualifications. However, viewed in light of the full record before the sentencing judge, the fresh evidence falls considerably short of showing that thedangerous offender designation was unreasonable.

Placing ourselves in the position of the sentencing judge with the added informationfrom the fresh evidence, there is no reasonable possibility that the result of the dangerous offender proceedings would have beendifferent. The evidence does not show that the dangerous offender designation was unreasonable and this is not a case that demandsappellate intervention. Cases Cited Referred to: R. v. Johnson, 2003 SCC 46, [2003] 2 S.C.R. 357; R. v. Currie, (SCC), [1997] 2 S.C.R. 260;R. v. M. (C.A.), (SCC), [1996] 1 S.C.R. 500; R. v.

Shropshire, (SCC), [1995] 4 S.C.R. 227; R. v.McDonnell, (SCC), [1997] 1 S.C.R. 948; R. v. Lévesque, 2000 SCC 47, [2000] 2 S.C.R. 487; Palmer v. The Queen, (SCC), [1980] 1 S.C.R. 759; R. v. Angelillo, 2006 SCC 55, [2006] 2 S.C.R. 728; R. v. Hamilton (2004), (ON CA), 72 O.R. (3d) 1; R. v. Smith (2005), 2005 ABCA 404 , 376 A.R. 389; R. v. Riley (1996), 1996 NSCA 112, 150 N.S.R. (2d) 390; R. v. Faid (1984), 1984 ABCA 116 , 52 A.R. 338; R. v. Jimmie, 2009 BCCA 215, 270 B.C.A.C.301; R. v. Halliday, 2012 ONCA 351 ; R. v. N.A.S., 2007 MBCA 97, 220 Man. R. (2d) 43; R. v. Martin, 2012 QCCA 2223; R. v.

Williamson, 2003 BCCA 673, 191 B.C.A.C. 208; R. v. Ferguson (2005), (ON CA), 207 O.A.C. 380;R. v. B.J.M., 2007 ONCA 221 ; R. v. T.L., 2008 ONCA 766 ; R. v. Mason (2001), (ON CA), 147O.A.C. 388; R. v. Henry, 2002 BCCA 575, 174 B.C.A.C. 238; R. v. Armistead, 2003 BCCA 699, 192 B.C.A.C. 227. Statutes and Regulations Cited

Criminal Code , R.S.C. 1985, c. C-46, ss. 675(1)( b ), 683(1) , 687 ,

Part XXIV, 752, 753 [ad. 1997, c. 17, s. 4], 753.1(1) [ idem ], 759(1), (3) ( a ), (7). Tackling Violent Crime Act , S.C. 2008, c. 6. Authors Cited Ruby, Clayton C., Gerald J. Chan and Nader R. Hasan. Sentencing , 8th ed. Markham, Ont.: LexisNexis, 2012. APPEAL from a judgment of the Ontario Court of Appeal (Doherty, Watt and Pepall JJ.A.), 2012 ONCA 751 , 298 O.A.C. 233, 297 C.C.C. (3d) 22, [2012] O.J. No. 5212 (QL), 2012 CarswellOnt 13907, affirming a sentencing decision of Lofchik J. (1998), 54 O.T.C. 241, [1998] O.J. No. 985 (QL), 1998 CarswellOnt 1219 . Appeal dismissed.

Michael Dineen and Jonathan Dawe , for the appellant. Roger A. Pinnock , for the respondent. Nader R. Hasan and Gerald Chan , for the intervener. The judgment of the Court was delivered by Cromwell J. — I. Introduction [ 1 ] This appeal poses two related questions about appellate review of a dangerous offender designation. The first is whether the sentencing judge’s legal error in the course of imposing the designation on the appellant, Mr. Sipos, was “harmless” in the sense that it had no impact on the ultimate decision.

A related question concerns the role on the appeal of fresh evidence about the offender’s current treatment and prospects. [ 2 ] The Ontario Court of Appeal held that an error is harmless if there is no reasonable possibility that the sentencing judge’s decision would have been different had he not made the legal error. Where there is fresh evidence, this standard is applied as if the sentencing judge had access to it at the time of the original sentencing. Approaching the matter in this way, the Court of Appeal dismissed Mr. Sipos’ appeal. The Court of Appeal rejected Mr.

Sipos’ position that the appeal should be allowed if the fresh evidence raises any reasonable possibility that the outcome of a new dangerous offender proceeding could be different from the original one. [ 3 ] Mr. Sipos appeals by leave of the Court. He submits that the Court of Appeal was wrong in two respects. First, he says that the Court of Appeal was wrong to dismiss his appeal in light of the fresh evidence suggesting that there is a reasonable possibility that a new dangerous offender hearing might produce a different result from that reached at the original hearing.

He further submits that the Court of Appeal erred by holding that the record in this case met the high standard required to conclude that the sentencing judge’s legal error was harmless. The appellant’s submissions are best considered by addressing the role of fresh evidence when the Court of Appeal is asked to use its curative powers in relation to dangerous offender appeals and by reviewing whether the Court of Appeal erred in using those curative powers in this case. [ 4 ] I agree with the result reached by the Court of Appeal and would dismiss the appeal.

However, as I will explain, I take a somewhat narrower view of the role of fresh evidence in relation to the question of whether the sentencing judge’s legal error was harmless. II. Overview of the Facts and Proceedings A. Procedural History [ 5 ] The appeal has followed a long and complicated path before arriving here. This is a result of the intersection of developments in the legislation and case law coupled with very long delays in moving the appeal forward. I say this not to attribute fault to anyone, but to underline the unusual circumstances before us.

The result is that the Court of Appeal in 2012 had before it a dangerous offender designation made in 1998, roughly 14 years earlier, and fresh evidence created in 2010, roughly 12 years after the conclusion of the proceedings before the sentencing judge. [ 6 ] The beginning of the most relevant part of the story takes us back to April of 1996. Lofchik J. sitting with a jury convicted Mr. Sipos of multiple sexual offences and physical assaults against three women committed from the mid-1970s to the mid- 1980s.

The convictions included attempted buggery, indecent assault, rape, sexual assault, assault causing bodily harm and common assault. Mr. Sipos also had a considerable record of other offences of violence against women between the late 1970s and the mid- 1980s. [ 7 ] Nearly two years after his conviction at trial, that is, in March of 1998, the judge found that Mr. Sipos was a dangerous offender and imposed an indeterminate sentence ( [1998] O.J.

No. 985 (QL) ). [ 8 ] Between the time of the convictions and the ultimate decision nearly two years later on the dangerous offender proceeding, new legislation that is important to the case intervened. The Criminal Code , R.S.C. 1985, c. C-46, was amended to add a new designation of long-term offenders (S.C. 1997, c. 17, s. 4). These new provisions were in force at the time Mr. Sipos was found to be a dangerous offender but the judge did not consider them in reaching his decision. There are many differences in both substance and procedure between the two designations.

But the main one is that in order to be found to be a long-term offender, the judge must be satisfied that “there is a reasonable possibility of eventual control of the risk in the community”: s. 753.1(1)( c ). [ 9 ] Mr. Sipos appealed from the convictions and sentence, but indicated that his sentence appeal was contingent on his

convictions appeal being at least partially successful. The Court of Appeal dismissed the convictions appeal and did not deal with thesentence appeal ( ). The judgment of the Court of Appeal was delivered in May of 2001 but, as noted, Mr. Sipos’sentence appeal remained outstanding and undecided. [10] The next relevant event came about five years after Mr. Sipos’ dangerous offender designation. In 2003, this Courtreleased its decision in R. v. Johnson, 2003 SCC 46, [2003] 2 S.C.R. 357.

It decided that in dangerous offender proceedings thatoccurred after the new long-term offender provisions came into force — in other words, in cases like Mr. Sipos’ — judges must considerthe option of a long-term offender designation, which may lead to a determinate sentence followed by long-term community supervision,before declaring a defendant to be a dangerous offender and imposing an indeterminate sentence.

Failure to do this is a legal error, oftenreferred to as a “Johnson error”. [11] As noted, the judge in 1998 did not consider the recently enacted long-term offender provisions and, with the benefitof hindsight, this constituted a legal error in light of the 2003 judgment in Johnson. On the basis of this error and other considerations,the Court of Appeal granted leave to reopen Mr. Sipos’ unresolved sentence appeal (2008 ONCA 325, 235 O.A.C. 277).

But it took morethan four years for this occur, so that the appeal was reopened only in late April of 2008. [12] There was a further long delay: the appeal on the merits was not heard for more than four years, in August of 2012(2012 ONCA 751, 298 O.A.C. 233). With the Crown’s consent, Mr. Sipos filed fresh evidence in the appeal proceedings. The freshevidence consisted of a risk assessment, prepared by Dr.

Jeff McMaster in 2010, and information about his performance in sexualoffender maintenance programs while in custody. [13] This is how the Court of Appeal came to address in 2012 a dangerous offender designation that had been maderoughly 14 years earlier and had evidence before it that was created in 2010, roughly 12 years after the designation. B. Judgment of the Court of Appeal [14] The Court of Appeal concluded that, in light of Johnson, there was clearly a legal error in not considering the long-term offender option before designating Mr. Sipos as a dangerous offender.

The Court of Appeal noted, however, that this error does notautomatically compel a new dangerous offender hearing. Rather, the appellate court has a curative power: it may dismiss the appeal ifpersuaded that there is no reasonable possibility that the sentence would have been different had the legal error not been made (seeJohnson, at paras. 47-50). [15] Putting aside the fresh evidence, the Court of Appeal concluded that there was no such reasonable possibility, notingthat Mr. Sipos did not contend otherwise.

The sentencing judge, in comprehensive reasons, found that the evidence before him did notsupport the view that, at some determinate point in the future, the risk that Mr. Sipos posed to society could be reduced to an acceptablelevel if he were to be allowed to live in the community.

The sentencing judge’s analysis of the evidence would have inevitably led him toreject a long-term offender designation for the same reasons that he rejected the determinate sentence option: sentencing judge’s reasons,at paras. 199-207; Court of Appeal reasons, at para. 29. [16] The question then arose as to how the Court of Appeal should use the new evidence in considering whether toexercise this curative power. The new evidence suggests that there is now a possibility that the risk that Mr. Sipos poses can becontrolled in the community by 2016 with appropriate supervision.

The Court of Appeal held that, while the new evidence must beconsidered, appellate review is fundamentally an error-correcting exercise that looks backward to the decision under appeal, in order todetermine whether the court below fell into reversible error when it made the decision being reviewed. It held that the possibility that adifferent decision might be made if a new dangerous offender hearing were held now is irrelevant.

The question on appeal was whether,having regard to the evidence before the sentencing judge, and the fresh evidence admitted on appeal, there was any reasonablepossibility that the result of the dangerous offender hearing would have been any different had the judge considered the long-termoffender provisions. [17] The Court of Appeal answered this question in the negative. The court noted that the new evidence from Dr.McMaster consisted of his assessment as of 2010 and pertained to whether Mr. Sipos could meet the criteria for a long-term offender.Even on Dr.

McMaster’s “‘best case’ scenario”, his potential release into the community was at least some 18 years away in 1998 (para.34). Considering the report in light of the other evidence before the sentencing judge, the Court of Appeal concluded that Dr.McMaster’s risk assessment did not cast any doubt on the sentencing judge’s conclusion that as of 1998, an indeterminate sentence wasappropriate. III. Analysis [18] Before returning to the two issues in detail, it will be helpful to place them in their proper legal framework.

That, inturn, requires a brief review of the difference between long-term offender and dangerous offender status, this Court’s decision inJohnson, the nature of appellate review and the powers of the court of appeal on dangerous offender appeals. A. Legal Framework

(1) The Two Regimes [19] The dangerous offender and long-term offender provisions found in

Part XXIV of the Criminal Code are bothexamples of preventive sanctions. While they may only come into play once the offender has been convicted of offences of a certaindegree of seriousness, their focus is on imposing special measures on the offender in order to address an elevated risk of future offending.A dangerous offender may be sentenced to an indeterminate sentence of imprisonment; this is preventive detention in its clearest andmost extreme form. A long-term offender may be sentenced for the underlying offence and, in addition, to a long-term supervision ordernot to exceed 10 years.

This is a preventive sanction that is finite in length and built on supervision in the community. [20] For the purposes of this appeal, s. 753(1)(

b) is the relevant provision in relation to Mr. Sipos’ designation as a

dangerous offender. Before the designation may be imposed, the offence for which the offender has been convicted must be a “seriouspersonal injury offence”. Serious personal injury offences include offences involving the use or attempted use of violence for which theoffender may be sentenced to imprisonment for at least 10 years and a number of specified sexual offences: s. 752. There is no questionthat Mr. Sipos’ convictions qualify. The remaining elements required for the designation are both retrospective and prospective.

Theoffender must be shown to have failed in the past “to control his or her sexual impulses” and, in the future, that there is “a likelihood ofcausing injury, pain or other evil to other persons through failure in the future to control his or her sexual impulses”: s. 753(1)(b). [21] The long-term offender provisions permit the court to impose a sentence for the offence for which the offender hasbeen convicted and order that he or she be subject to long-term supervision for a period that does not exceed 10 years: s. 753.1(3).

Inorder to make a long-term offender designation, the court must be satisfied that it would be appropriate to impose a sentence ofimprisonment of at least two years for the offence for which the offender has been convicted, that there is a substantial risk that theoffender will reoffend, and that there is a reasonable possibility of eventual control of the risk in the community: s. 753.1(1).

(2) Johnson and the “Johnson Error” [22] The two regimes must be considered together. At the time of the sentencing judge’s decision, the version of s. 753 inforce was the same as the one interpreted by this Court in Johnson.

The Court held that if a sentencing judge is satisfied that the long-term offender provisions are sufficient to reduce the risk to the life, safety or physical or mental well-being of other persons to anacceptable level, the judge “cannot properly declare an offender dangerous and thereupon impose an indeterminate sentence, even if allof the statutory criteria have been satisfied”: Johnson, at para. 40. Failure to consider these options became known as the “Johnsonerror”.

There is no dispute between the parties that the sentencing judge made it in this case and it has not been suggested that the 2008amendments to the provisions (S.C. 2008, c. 6) affect that conclusion in this case.

(3) Dangerous Offender Appeals [23] A person who has been found to be a dangerous offender may appeal to the court of appeal on any ground of law orfact or mixed law and fact: s. 759(1). The appellate court has the statutory power to dismiss the appeal or to allow it. If the court allowsthe appeal, it may find that the offender is not a dangerous offender or a long-term offender, make an order that the trial court couldmake or order a new hearing: s. 759(3)(a). There is no explicit reference to appellate review of the fitness of the designation.

This Courthas determined that appellate review is concerned with legal errors and whether the dangerous offender designation was reasonable: R. v.Currie, (SCC), [1997] 2 S.C.R. 260, at para. 33. [24] Consistent with this broad understanding of the appellate court’s review of the sentence, this Court in Johnsoninterpreted the power to dismiss an appeal as including the power to do so even in the face of a legal error, provided that the erroroccasioned no substantial wrong or miscarriage of justice. The Court emphasized, however, that this will be so “in only the rarest ofcircumstances, if any”: para. 50.

For the court to exercise this curative power, the Crown must show that there is “no reasonablepossibility that the verdict would have been any different had the error of law not been made”: para. 49. [25] It is worth pausing here to contrast appellate review of a dangerous offender designation with that of what I willrefer to as “regular” sentence appeals. In indictable matters, the offender may appeal the sentence passed by the trial court unless thesentence is one fixed by law: s. 675(1)(b).

On the appeal, the court of appeal is to “consider the fitness of the sentence” and may “onsuch evidence, if any, as it thinks fit to require or to receive”, vary the sentence or dismiss the appeal: s. 687(1). This allows for appellatereview for error in principle and for whether the sentence is demonstrably unfit or manifestly wrong. This is a highly deferentialstandard of review. As Lamer C.J. put it in R. v.

M. (C.A.), (SCC), [1996] 1 S.C.R. 500, at para. 90: . . . absent an error in principle, failure to consider a relevant factor, or an overemphasis of the appropriate factors, a court of appealshould only intervene to vary a sentence imposed at trial if the sentence is demonstrably unfit. (See also R. v. Shropshire, (SCC), [1995] 4 S.C.R. 227, at paras. 45-50; R. v.

McDonnell, (SCC),[1997] 1 S.C.R. 948, at paras. 14-17.) [26] The Court in Currie held that appellate review of a dangerous offender designation is somewhat more robust.Nonetheless, this does not call for a completely fresh look on appeal at the designation (or as lawyers say, a de novo assessment).

Theappellate court must give some deference to the findings of the sentencing judge: Currie, at para. 33. [27] Unlike dangerous offender appeals, there is no curative power on “regular” sentence appeals and the predominantview is that there is no authority in the court of appeal to remit the matter to the trial judge for a new sentencing hearing. On a regularsentence appeal, the appellate court’s role is to determine the legality and fitness of the sentence imposed at trial.

If the court of appealfinds that there are grounds requiring its intervention, it imposes a fit sentence in what amounts to a new sentencing hearing: CriminalCode, s. 687.

(4) Fresh Evidence on Sentence Appeals [28] On sentence appeals in indictable offences, the court may consider “such evidence, if any, as it thinks fit to require orto receive”: s. 687(1). There is no parallel provision in relation to appeals of dangerous offender designations. However, on thoseappeals, the court of appeal may admit fresh evidence when it is in the interests of justice to do so: s. 759(7) and s. 683(1). [29] The Court established in R. v.

Lévesque, 2000 SCC 47, [2000] 2 S.C.R. 487, that while the sources and types of newevidence are more flexible in relation to sentence appeals, the well-known “Palmer” test governs admissibility of fresh evidence. Thattest, as is well known, sets out four criteria concerned with due diligence, relevance, credibility and impact on the result: Palmer v. TheQueen, (SCC), [1980] 1 S.C.R. 759, at p. 775. Generally, fresh evidence should not be received if it could have beenobtained at trial by exercising due diligence, although this criterion is not strictly applied in criminal matters when it would be contrary to

the interests of justice to do so. The evidence must be relevant in the sense that it relates to a potentially decisive issue and reasonablyworthy of belief. Finally, the evidence, if accepted, must reasonably be expected to have affected the result when considered along withthe trial evidence. As Charron J. explained in R. v.

Angelillo, 2006 SCC 55, [2006] 2 S.C.R. 728, at para. 15: In accordance with the last three of the Palmer criteria, an appellate court can therefore admit evidence only if it is relevant andcredible and if it could reasonably be expected to have affected the result had it been adduced at trial together with the other evidence.[Emphasis added.] [30] Fresh evidence addressing events that have occurred between the time of sentencing and the time of the appeal mayraise difficult issues which bring competing values into sharp relief.

On one hand, we must recognize, as Doherty J.A. put it in R. v.Hamilton (2004), (ON CA), 72 O.R. (3d) 1, at para. 166, that “[a]ppeals take time. Lives go on. Things change. Thesehuman realities cannot be ignored when the Court of Appeal is called upon to impose sentences well after the event.” However, we mustequally pay attention to the institutional limitations of appellate courts and the important value of finality.

Routinely deciding sentenceappeals on the basis of after-the-fact developments could both jeopardize the integrity of the criminal process by undermining its finalityand surpass the appropriate bounds of appellate review: Lévesque, at para. 20; R. v. Smith (2005), 2005 ABCA 404 , 376 A.R.389 (C.A.), at paras. 21-25. [31] Given the almost infinite variety of circumstances that may arise, it is neither desirable nor possible to formulate anyhard and fast, detailed rules about the sorts of after-the-fact evidence that should or should not be considered in all cases.

The abundantappellate jurisprudence cannot be reduced to a tidy set of rules, but rather reflects the courts’ attempts to balance these at timescompeting values in light of particular and widely varying sets of circumstances: see, e.g., R. v. Riley (1996), 1996 NSCA 112 ,150 N.S.R. (2d) 390 (C.A.); R. v. Faid (1984), 1984 ABCA 116 , 52 A.R. 338 (C.A.); R. v. Jimmie, 2009 BCCA 215, 270B.C.A.C. 301; R. v. Halliday, 2012 ONCA 351 ; and generally, C. C. Ruby, G. J. Chan and N. R. Hasan, Sentencing (8th ed.2012), at §§ 4.49 ff.; R. v. N.A.S., 2007 MBCA 97, 220 Man. R. (2d) 43; R. v. Martin, 2012 QCCA 2223 .

At the level ofprinciple, the approach set out in Lévesque and Angelillo strikes the balance between the competing values and, when appliedthoughtfully to the particular circumstances before the court, provides sufficient flexibility to ensure that the appellate process is bothresponsive to the demands of justice and respectful of the proper limits of appellate review. [32] With this legal framework in mind, I now return to the issues raised on appeal by Mr. Sipos. B.

Did the Court of Appeal Err by Using Its Curative Powers? [33] The appellant’s basic point is that the Court of Appeal’s error was to limit the application of its curative power byasking whether there was a reasonable possibility that the result at the original hearing would have been different but for the legal error.Instead, the appellant submits that the Court of Appeal ought to have followed what he says is the usual practice on sentence appeals ofconsidering what would be a fit sentence at the time of the appeal: A.F., at paras. 16-17.

This position, in my respectful view, isfundamentally flawed. [34] The appellant’s submission in my view confuses appellate review for legal error with appellate review for thereasonableness of the designation. Whether the curative power should be exercised is part of appellate review for legal error. Thequestion essentially involves considering what impact, if any, the legal error had on the outcome. In considering that question, freshevidence generally has little role to play.

On the other hand, whether the designation is reasonable is a more searching form of appellatereview and fresh evidence that meets the Palmer criterion potentially has a greater role to play in that context.

(1) The Curative Power and Fresh Evidence [35] In dangerous offender appeals, the appellate court may use its curative power to dismiss an appeal even though therewas a legal error at first instance. This power may be used only where the legal error was “harmless” in the sense that there is noreasonable possibility that the result would have been different had the error not been made. It follows that a legal error does notnecessarily require reconsideration of the sentence. The appellate court must consider whether the error had any impact on the result.

Butthere is a heavy onus on the Crown: it must show that there is no reasonable possibility that the result would have been different had theerror not been made. [36] This exercise is necessarily focused on the record before the sentencing judge because the question concerns whatthat judge might have done had he or she applied correct legal principles. Of course, the appellate court must also consider whether thejudge’s legal error may have resulted in exclusion of evidence that ought to have been admitted or otherwise affected the state of theevidentiary record or the judge’s assessment of it: see, e.g., R. v.

Williamson, 2003 BCCA 673, 191 B.C.A.C. 208; R. v. Ferguson (2005), (ON CA), 207 O.A.C. 380; R. v. B.J.M., 2007 ONCA 221 . In cases of that nature, fresh evidence meetingthe Palmer test might be admitted so that the appellate court can properly consider the impact of the error on the outcome. But generallyspeaking, where proposed new evidence has nothing to do with the possible impact of the legal error on the sentencing judge’s decision,it should not be considered in relation to the use of the curative power.

This is nothing more than application of the second Palmercriterion: that the evidence be relevant in the sense that it bears upon a decisive or potentially decisive issue relating to the sentence.Evidence that is in no way linked to the legal error made by the sentencing judge is not relevant to the question of whether the curativepower should be used. [37] In this respect, I differ from the view of the Court of Appeal. It held that evidence of the offender’s currentrehabilitative prospects has a role to play in connection with applying the proviso.

In my view, absent some connection between the freshevidence and the sentencing judge’s legal error, it does not. [38] In this case, the fresh evidence has nothing to do with the impact of the legal error made by the sentencing judge.There is no dispute that, on the record before the sentencing judge, the only realistic option was a dangerous offender designation. Thereis no suggestion that the judge’s failure to consider a long-term offender designation in any way affected the evidentiary record before

him or that he might have weighed the evidence differently if he had considered the long-term offender option. [39] The appellant’s submission amounts to this: every legal error made by the sentencing judge requires the appellatecourt to direct a new hearing if there is any reasonable possibility that a different sentence would now be imposed. This approach, in myview, has two flaws. First, it loses entirely the correct focus when exercising the curative power. That focus is on the possible impact ofthe error on the sentencing judge’s decision, not on the offender’s current prospects for control in the community.

Second, losing thatfocus in effect creates a very low threshold for obtaining a new sentencing hearing. This, in my respectful view, turns the legalframework on its head. The appellate court would no longer be assessing the possible impact of the legal error on the result arrived at bythe sentencing judge, but would be using the error to trigger a complete assessment of the current appropriateness of the sentencingjudge’s decision.

In short, any legal error, even though it could have had no conceivable impact on the sentencing judge’s decision,would require a new hearing unless the same result would almost inevitably be reached now. This approach, if adopted, would convertappellate review for legal error into sentencing by instalment. [40] The issue for the appellate court is not, as the appellant contends, what the outcome might conceivably be today.Rather, the issue is whether the past decision would have been the same notwithstanding the error: R.F., at para. 51.

I respectfully agreewith Doherty J.A., writing for the Court of Appeal in this case, that on the appellant’s proposed approach, the claim is not that the appellant was wrongly sentenced to an indefinite period of incarceration because the trial judge made a legalerror, but that because the judge made a legal error the appellant should have his status reassessed as of the time of the appeal. . . . . . .

Where an offender’s real claim is that he has progressed to the point that his status should be reassessed, an appeal from theoriginal decision is not the appropriate mechanism by which to achieve that new assessment. [paras. 20 and 23] C. Should the Dangerous Offender Designation Nonetheless Be Set Aside? [41] As I have explained, my view is that the Court of Appeal took too expansive a view of the role of fresh evidence inrelation to exercising the court’s curative power.

As I see it, there is no role for the fresh evidence in relation to the curative power inthis appeal; the only remaining question is whether the dangerous offender designation should be set aside because it is unreasonable.This, in my respectful view, is the better lens through which to consider whether the Court of Appeal erred in its ultimate conclusion thatthe appeal should be dismissed. In my view, it did not. [42] The offender may appeal a dangerous offender designation on the basis that it is unreasonable: Currie.

There is thuspotentially a wider role for fresh evidence in relation to appellate review on this basis than there is when the appellate court isconsidering whether or not a legal error was harmless. While the new evidence must satisfy the Palmer criteria, the appellate court mayreview the sentence in light of the whole record, including any admissible fresh evidence.

However, in the case of review on this basis,the onus is on the offender. [43] In dangerous offender appeals, the appellate courts are frequently confronted, as we are in this appeal, with evidenceabout the offender’s rehabilitation efforts and prospects long after the initial sentencing. While the Lévesque/Angelillo test sets out theapplicable legal framework for admitting this sort of evidence, appellate courts generally take a very cautious approach to interveningsolely on the basis of evidence of this nature: see, e.g., R. v. T.L., 2008 ONCA 766 ; R. v. Mason (2001), (ONCA), 147 O.A.C. 388; Halliday; R. v.

Henry, 2002 BCCA 575, 174 B.C.A.C. 238; Jimmie. Appellate courts have also recognized that ina proper case, in which the evidence is sufficiently compelling, they may intervene on the basis of after-the-fact evidence: see, e.g.,Halliday, at para. 17; R. v. Armistead, 2003 BCCA 699, 192 B.C.A.C. 227. However, evidence about the offender’s post-sentencingrehabilitative efforts and prospects will only exceptionally meet the Lévesque/Angelillo test.

Those developments are generally speakingmatters for the correctional authorities to consider in the course of administering the offender’s indeterminate sentence. [44] While fresh evidence has a potentially larger role to play in this context, the focus is still to a degree retrospective.The focus is on the impact of the new evidence on the sentencing proceeding, viewed in the context of the whole record. [45] Mr.

Sipos highlights that the thrust of the sentencing judge’s reasons was that “[the latter] was unpersuaded on therecord before him that [he] would ever be a suitable candidate for release even if a very long determinate sentence were imposed”: A.F.,at para. 38 (emphasis in original). Mr. Sipos refers to the sentencing judge’s conclusion that there was “no hard evidence . . . supportingthe probability of a cure” during any determinate sentence that could be imposed: ibid., citing the sentencing judge’s reasons, at para.200.

The sentencing judge based this conclusion on the findings that the appellant refused drug therapy and that any positive commentson rehabilitation prospects were “islands of optimism in a sea of pathology”: sentencing judge’s reasons, at para. 201. Mr. Sipos submitsthat the new evidence from Dr. McMaster shows that the assessment at the time of the original sentencing hearing was undulypessimistic. [46] As the appellant’s case rests on Dr. McMaster’s report, it is useful to summarize its key elements and conclusions.Dr. McMaster produced a comprehensive report in 2010 assessing Mr. Sipos’ psychiatric status.

He was asked “whether Mr. Sipospresent[ed] with a substantial risk of re-offence [as of 2010] and if there [was] a reasonable possibility of eventual control of that risk inthe community”. Dr. McMaster concluded that Mr. Sipos “continue[d] to meet the standard for being found a dangerous offender(D.O.)”. [47] Dr. McMaster noted that some factors, which he reviewed in detail, suggested that Mr. Sipos was “now suitable forgradual release and reintegration into the community”.

These factors included “his increased age, his successful treatment at sex offenderand other groups, [his] successful treatment with sex drive reducing medication, and his plans which will assist him in adjusting to livingin the community”. Dr. McMaster noted, however, that it was “unclear” whether Mr. Sipos’ success in sex offender groups and lowerrisk would result in no recidivism in the “real world practical sense” and that any reintegration into the community should be undertakenin a “slow and step-wise fashion” using “extremely close monitoring and structure”.

He concluded that from a psychiatric perspective hewould not consider Mr. Sipos to be an assumable risk for the community until approximately the age of 60 with a further period of 10

years under a long-term supervision order “for safe measure”. In other words, Dr. McMaster thought there was a reasonable possibility of eventual control of the risk in the community if Mr. Sipos were released from incarceration in about 2016 and was subject to the maximum 10-year long-term supervision order. This opinion was subject to many qualifications in relation to such matters as whether Mr.

Sipos’ advancing age would in fact reduce the risk; whether he would continue to take medication reducing his sex drive; whether his motivation to engage in treatment would be decreased if he were released into the community and whether adequate supervision was available in a community setting. [ 48 ] This evidence shows that Mr. Sipos has made commendable progress in recent years, progress that was not foreseen at the time of his sentencing in 1998. However, Dr.

McMaster’s report, viewed in light of the full record before the sentencing judge, falls considerably short of showing that the dangerous offender designation was unreasonable. I agree with Doherty J.A. that, placing ourselves in the position of the sentencing judge with the added information from Dr. McMaster’s assessment, there is no reasonable possibility that the result would have been different. It follows that there is also insufficient evidence to show that the sentencing judge’s decision, even had he had the benefit of Dr. McMaster’s report, was unreasonable.

As Doherty J.A. put it: I do not think that Dr. McMaster’s risk assessment casts any doubt on the trial judge’s assessment that as of 1998, an indeterminate sentence was the appropriate sentence. Despite the positive treatment developments, Dr. McMaster still viewed the appellant’s potential release into the community as about six years distant. We now know, with the benefit of hindsight, and accepting Dr.

McMaster’s opinion, that on a “best case” scenario , the appellant’s potential for release into the community was at least some 18 years away in 1998. [Emphasis added; para. 34.] [ 49 ] Nor am I persuaded that this evidence places the appeal in that exceptional category in which the evidence is sufficiently compelling that it demands appellate intervention. [ 50 ] My view is that the Court of Appeal was correct to uphold the dangerous offender designation in this case. IV. Disposition [ 51 ] I would dismiss the appeal. Appeal dismissed. Solicitors for the appellant: Dawe & Dineen, Toronto.

Solicitor for the respondent: Attorney General of Ontario, Toronto. Solicitors for the intervener: Ruby Shiller Chan Hasan, Toronto.