Her Majesty the Queen - v. -, 2021 SKPC 39

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2021 SKPC 39 Date: July 29, 2021 Information: 991054758 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Gabriel Curtis Roy Appearing: K.L. Grier, QC For the Crown M.D. Nolin For the Accused DECISION ON APPLICATION TO OPEN LONG-TERM OFFENDER HEARING Q.D. AGNEW , J [ 1 ] On January 7, 2021, I issued a decision with respect to the Crown’s application to have the offender, Mr. Roy, declared a long-term offender ( R v Roy , 2021 SKPC 4 [ Roy ]). I did not sentence Mr.

Roy at that time: I held that he would not be designated a long-term offender, and both Crown and defence had asked to be allowed to make further sentencing submissions in the event that this was my decision. [ 2 ] Before those further submissions could be scheduled Mr. Roy, through his counsel, indicated his intention to apply to have his guilty pleas in this matter expunged. Before that application proceeded, Mr. Roy’s instructions apparently changed again: he decided that he would abandon his expungement application and instead apply to re-open the long-term offender application in order to call evidence.

This is the decision on that application.

[ 3 ] First, for context, some history. [ 4 ] On March 19, 2019, Mr. Roy pled guilty to charges that he did, on or about February 3, 2018 at or near Saskatoon, Saskatchewan: 1. have in his possession child pornography, contrary to s. 163.1(4) of the Criminal Code ; 2. being then bound by a recognizance under s. 810.1(1) of the Criminal Code , breach that recognizance by failing to comply with the condition that he not access, possess or view any pornography of any kind, contrary to s. 811 of the Criminal Code . [ 5 ] On that same date, the Crown applied under

Part XXIV of the Criminal Code for an assessment of Mr. Roy pursuant to s. 752.1 of the Code , to determine whether or not to bring an application to have him declared a dangerous offender. Following that assessment, the Crown by notice dated January 10, 2020 applied to have Mr. Roy declared a long-term offender (LTO) instead. That process has been ongoing ever since, with evidence being taken August 10 - 13, 2020 and argument on October 5, 2020. As noted above, I gave my decision on the LTO designation on January 7, 2021, following which Mr.

Roy first raised the question of expungement and now his application to call defence evidence with respect to the LTO designation. [ 6 ] Counsel for Mr. Roy stated that he had not originally intended to call evidence at the LTO hearing. Crown and defence had agreed, early in the LTO process, that they would jointly recommend a finding of a long-term offender designation. On that basis, defence counsel did not feel it necessary to call evidence.

My conclusions, firstly that a LTO designation could not be the subject of a joint submission within the terms of R v Anthony-Cook , 2016 SCC 43 , [2016] 2 SCR 204 [ Anthony-Cook ], and secondly that Mr. Roy did not meet the statutory requirements for such a designation, prompted Mr. Roy’s reactions. As noted above, those reactions were initially to seek to expunge his guilty pleas, and thereafter to seek to re-open the LTO hearing in order to call evidence of his own in support of a LTO designation.

Defence counsel candidly acknowledged that he did not have such evidence at this point, and that he did not know if it exists: if this application is successful, defence will seek an opinion regarding Mr. Roy from a specific professional. At this point, it is not known whether such opinion will support an LTO designation or not. [ 7 ] As noted in the LTO decision regarding Mr. Roy, the assessor’s report was not encouraging. Briefly summarizing Dr. Hook’s report and testimony (see Roy , paras. 33 and 34 ), prospects for treatment are poor, Mr.

Roy’s interest in treatment is questionable and he has in the past actively worked against managing his risk factors in order to gratify his sexual appetites regarding young children. Although the report was delivered July 10, 2019 and Dr. Hook’s viva voce evidence was given August 12, 2020, Mr. Roy did not seek to bring forward contrary evidence at that time, relying on the belief that the strength of a joint submission would be sufficient to overcome the evidence. [ 8 ] The Crown is not opposed to Mr. Roy’s current application.

Its position, as set out in its written submissions of July 5, 2021, is that had there not been a joint submission, defence would likely have requested an independent assessment of Mr. Roy, and that with the Court’s rejection of the joint submission, fundamental fairness requires that this now be permitted. The Crown cites Anthony-Cook in support of this position.

I will address this submission below. [ 9 ] I have not located any cases in which a determination had been made on the issue of LTO or dangerous-offender status and the court was subsequently asked to re-open that question, whether for further argument or for further evidence. The Issues [ 10 ] There are two questions before me: 1. Is the Court now functus officio with respect to the LTO designation? That is, do I have the power to do what defence is requesting?

2. If the Court is not functus officio, is it appropriate to re-open the hearing and allow defence to call evidence? 1. Is the Court functus officio? [11] The phrase “functus officio” means, “having performed [or discharged] [their] office”. It refers to the situation in which thefunction of an official has been performed, and their authority to continue to act has therefore ended.

In judicial terms, it means that thejudge no longer has the power to consider something, having decided it already. [12] The doctrine is far from absolute: a. a ruling made in the course of a trial is not final, and can be reconsidered as required, for example if circumstances change: R vAdams, (SCC), [1995] 4 SCR 707 at para 30; b. after a verdict is given in a judge-alone trial, but before sentence is imposed, the judge retains the power to re-open the trial andreconsider the verdict: R v Head, (SCC), [1986] 2 SCR 684 at para 25 [Head]; R v Plehanov, 2019 BCCA 462 at para 22,383 CCC (3d) 473; R v Sualim, 2017 ONCA 178 at paras 28 - 29, 135 OR (3d) 81.

However, an acquittal is final, and cannot bereconsidered: R v Henderson (2004), (ON CA), 189 CCC (3d) 447 at para 29 [Henderson]; R v Lessard (1976), (ON CA), 30 CCC (2d) 70 at para 16; c. in a jury trial, after the jury has been discharged the court is functus: Head, paras 14 and 26.

However, a limited power remainswith the court to recall the jury in the event of alleged error, provided that this does not involve a reconsideration by the jury of itsverdict: R v Burke, 2002 SCC 55 at paras 52 and 53, [2002] 2 SCR 857; d. the Court retains the power to correct an error in order to give effect to its manifest intention: R v Vader, 2019 ABCA 191 at para62, [2020] 1 WWR 130; e. after imposing sentence, a limited power remains to correct an oversight or cure a manifest error: R v D.A., 2019 ONCA 310; R. v.Hasiu, 2018 ONCA 24 at para 30, 358 CCC (3d) 503. [13] There are two reasons for the principle of functus officio. [14] The first reason is to bring finality to proceedings.

The parties must know that they are done, and that a decision has beenreached: It is essential to the administration of justice to have a clear stopping place, a point of no turning back; otherwise, there would no end tothe case, nor any beginning of enforcement.

The law of functus officio, together with the law of res judicata (Latin for "a thingadjudged"), defines what constitutes a valid and final decision, from which point the parties and the decision- maker are bound andenforcement may be had . . . (Anna SP Wong, “Doctrine of Functus Officio: The Changing Face of Finality's Old Guard”, (2020) 98-3 Can Bar Rev 543 at para 8) Such finality also lets the decision-maker know that their work is concluded. Files can be closed, considerations ended, and effortsdirected to the next matter. That is, the matter ends and no further court time need be occupied by it.

The successful party knows that ithas been successful: it does not need to be concerned that the losing party will make another attempt, with different arguments or newevidence. Similarly, the losing party knows that it is fruitless to continue to try to litigate the same issues. [15] The argument from finality thus addresses the notion that a party does not get to keep coming back to court until that partyachieves the result they seek.

The policy of our legal system is that a matter is heard once: the parties put forward their evidence andmake their arguments; the Court decides the issue; the matter is concluded. Both efficiency and fairness demand that, as a general rule,an unsuccessful party does not get to return to court to re-litigate its case. In this way, the doctrines of res judicata and functus officiowork together: The need for finality, apart from being pragmatic, is universal. Every legal system around the world has rules that grant estoppel effect toits judgments, and forbid those judgments from being readily unraveled.

In Canada, those rules come in the form of res judicata, abuseof process, and the rule against collateral attack, all of which restrict litigants to only one bite at the cherry, and functus officio, which

imposes the same restriction on decision-makers. (Wong, para 14) [16] The second reason is to allow meaningful appellate review. Unless there is finality, it would be impossible for an appealcourt to know that the decision it was reviewing was still the outstanding decision. If the decision is no longer the last, or “valid”,decision, then any appeal becomes moot: Preclusion from changing a decision is necessary to ensure a stable basis for appeal and judicial review.

But for a rule like functusofficio that dictates finality and forbids decisions from being easily undone, decision-makers could change their decisions as they like, asmany times as they like. With a record for appeal (or judicial review, as the case may be) that could shift like shifting sand, it is hard toimagine how there could be effective review. Indeed, the appeal process itself could drag on indefinitely.

Every time that the decisionunder appeal is adjusted or supplemented, the appeal may need to be reconsidered, and the appeal decision revisited, assuming thatappellate reconsideration is not itself barred by functus officio. The appellate process itself will become a never-closing door throughwhich appellants have indefinite entry, coming through whenever the underlying decision is changed. (Wong, para 9) [17] These, then, are the reasons for the principle. As noted above, however, the law recognizes that, in some circumstances, therigidity of the rule must be relaxed.

The question is whether or not this is one of those circumstances. [18] Head dealt with a jury trial in which the jury had found the accused not guilty of the crime for which he had been charged,were then discharged by the trial judge, and then indicated that they still wanted to address lesser included offences. That is of coursenot the situation before me. However, the Supreme Court in Head also spoke to situations in which the accused was found guilty: Following a finding of guilt, however, the judge's duties are not spent until after a sentence is imposed.

The trial judge can, inexceptional circumstances and before the imposition of the sentence, reopen the case to permit the accused to tender further evidence.This principle, stated over one hundred years ago in R. v. Clouter & Heath (1859), 8 Cox C.C. 237 has recently been reaffirmed inCanada [citations omitted] (para 25) [19] The matter before me is therefore most like that described in the quoted

section from Head, arising as it does after the verdictbut before sentencing has been concluded. The LTO process in fact occurs precisely within that interval, between conviction andsentence. The fact that it is usually very long and detailed does not change that fact. Mr. Roy was convicted, by his guilty pleas, onMarch 19, 2019. The Crown subsequently brought its

Part XXIV application, which has been ongoing since then, and as a result Mr. Roy still awaits sentencing for those offences. [20] The situation is somewhat different from the Head scenario, however. The quoted

section from Head contemplates a trial, averdict of guilty, and a reconsideration of that verdict before sentencing. The application before me is not to reconsider the issue of Mr.Roy’s guilt. None the less, the caselaw is clear that

Part XXIV proceedings are part of the sentencing process: R v Johnson, 2003 SCC46, [2003] 2 SCR 357; R v Jones, (SCC), [1994] 2 SCR 229 at paras 103 and 106; R v Lyons, (SCC),[1987] 2 SCR 309 at para 71; R v Boutilier, 2017 SCC 64 at para 53, [2017] 2 SCR 936. This suggests that, notwithstanding thedifferences between the Head situation and the present, I should conclude that I am not functus. [21] Militating against this conclusion is the argument from finality, the first of the reasons for the principle of functus officio asoutlined above.

The LTO proceeding, which took just under two years, came to a conclusion. It was roughly five months after thatconclusion that Mr. Roy applied to call new evidence. [22] The argument from finality is, in the present case, somewhat undercut by the fact that all parties recognized that the processwas not in fact finalized. Although there was, as of January 7, 2021, no known intention on the part of Mr. Roy to attempt to set asidethe LTO decision, it was clear that the sentencing process was not over.

Had I accepted counsels' position, I would have declared Mr.Roy to be a long-term offender on that date and imposed the sentence they proposed. That would have put the process clearly beyondHead. Counsel, however, had previously requested that, were I not to accept that position, they be given an opportunity to make furthersubmissions, and I had agreed to do that. Accordingly, it was known in advance that the matter might not end on January 7. In thatsense, the decision that Mr.

Roy was not a long-term offender was more in the nature of an interim decision: although determinative of asignificant issue, it was not and was not intended to be the final resolution of the process. [23] This analogy also indicates why the second reason for the principle, meaningful appellate review, does not apply. Appeal

courts do not typically hear appeals of interim rulings. [24] The argument from finality cannot, in my view, stand against the Head line of authority. Although

Part XXIV is notaddressed in Head or any of the cases that flow from it, the fact remains that sentencing has not yet concluded for Mr. Roy. A finding ofguilt is a more significant finding than an LTO designation; that is, a finding of guilt occupies a higher position in the hierarchy ofdecisions which courts make. This is illustrated by the fact that the contrary finding, an acquittal, cannot be re-opened (Henderson).

If itwould still be open to the Court to reconsider a guilty verdict, including re-opening the evidence, at any point until sentencing isconcluded, then it must logically be open to the Court to re-open the LTO hearing, which by definition occurs prior to the conclusion ofsentencing. Any concerns with respect to delay should be addressed under the next heading, namely whether or not in this particularcase I should allow the application; they do not go to the question of whether or not I have jurisdiction to do so. 2.

Is it appropriate to re-open the hearing and allow defence to call evidence? [25] The test for admitting new evidence (albeit in the context of a conviction, not a LTO hearing) was recently reiterated by theSaskatchewan Court of Appeal in R v Dirksen, 2021 SKCA 6 at para 21, 398 CCC (3d) 411: The criteria for the admission of fresh evidence, both at trial and on appeal, was recently summarized by Jackson J.A. in R v Parfitt,2019 SKCA 55, 378 CCC (3d) 490: [25] In Palmer v The Queen, (SCC), [1980] 1 SCR 759 [Palmer], the Supreme Court set out the principles governing theadmission of fresh evidence on an appeal from a conviction.

After emphasizing that the overriding consideration must be "the interests ofjustice", in accordance with the wording of what is now s. 683 of the Criminal Code, McIntyre J. set out the applicable principles (at775):

(1) The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this generalprinciple will not be applied as strictly in a criminal case as in civil cases (McMartin v. The Queen [ (SCC), [1964] SCR484]).

(2) The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial.

(3) The evidence must be credible in the sense that it is reasonably capable of belief, and

(4) It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affectedthe result. [26] R v Palmer, (SCC), [1980] 1 SCR 759 [Palmer]also emphasizes that the fundamental question is whether ornot it is in the interests of justice that the evidence be admitted.

However, that portion of the test is statutory and specific to appealcourts, coming as it does from the introductory words of s. 610 (now s. 683) of the Criminal Code: ". . . the court of appeal may, whereit considers it in the interests of justice . . ." Perhaps as a result, subsequent use of the Palmer test post-conviction has mentioned onlythe four enumerated factors, not the overarching "interests of justice": see, for example, R v Kowall (1996), (ON CA),108 CCC (3d) 481 at paras 31 – 32 (Ont CA) [Kowall - CA], leave to appeal refused [1996] SCCA No 487 (SCC); R v Gauthier, 2021BCSC 968; R v Wasserman, 2018 MBQB 151. [27] Kowall - CA also added a further criterion: [32] . . .whether the application to reopen is in reality an attempt to reverse a tactical decision made at trial.

Counsel must make tacticaldecisions in every case. Assuming those decisions are within the boundaries of competence, an accused must ordinarily live with theconsequences of those decisions. [28] In many cases, this separate criterion will likely be subsumed in the first of the four Palmer criteria, since in order to make atactical decision about the evidence, counsel must be aware of its existence or the possibility that it would be found if searched for. [29] There is an obvious difficulty in applying the Palmer criteria to the case before me: even now, the evidence does not exist. Inessence, Mr.

Roy has brought this application in order to seek an expert opinion which he hopes will support the position he is nowtaking, namely a LTO designation. As the opinion has not yet been sought or obtained, it is not known whether it will assist Mr. Roy inhis objectives. It is typical, in cases where a party seeks to admit fresh evidence, that such evidence is placed before the Court so that itcan be evaluated; that is not the case here.

[ 30 ] Accordingly, the analysis of Mr. Roy's application based on the Palmer criteria is as follows: (

a) Could the evidence have been provided at the LTO hearing? [ 31 ] Clearly, the answer is "yes", in the sense that it was open to Mr. Roy to bring forward evidence in the hearing. Beyond that trite statement, however, the answer is murkier. [ 32 ] Mr. Roy's counsel believed, as did Crown counsel, that their joint submission for a LTO designation would fall under the Anthony-Cook rules, making it highly likely that I would find him to be a LTO.

I recognize that there is a significant expense associated with LTO reports, and with their authors testifying; it may well have seemed reasonable not to incur that expense for evidence in support of the joint submission. [ 33 ] Prior to the LTO hearing, however, counsel had the report of Dr. Hook; a report which, as I noted in Roy , is not favourable toward a LTO finding. Still Mr. Roy chose not to seek a different opinion. [ 34 ] At the LTO hearing, Dr. Hook testified. Again, her testimony is summarized in Roy and, again, it was not favourable toward a LTO finding. This was the opportunity for Mr.

Roy to seek a different opinion, even though it would have required him seeking an adjournment at that point. He chose not to do so. [ 35 ] Also at the LTO hearing, Mr. Roy spoke on his own behalf. His comments were thoughtful and reasoned, and I refer to them in detail in Roy . His statement is perhaps instructive as to why he did not seek a second expert's opinion: Mr. Roy did not want a LTO designation, but rather wished to remain in jail. As I stated in Roy , his remarks were not defiant but appeared to have been carefully thought out. [ 36 ] It was, and remains, unclear to me when Mr. Roy formed this desire.

I accept that defence counsel was acting on Mr. Roy's instructions when the guilty pleas were entered, and I certainly have no reason to think that Mr. Roy was not kept apprised of negotiations between Crown and defence that culminated in the joint recommendation for a LTO designation; yet it appears that, at some point, his desires and his instructions to counsel diverged, since at the same hearing Mr. Roy expressed a desire not to have a LTO designation, his counsel was arguing in favour of it. [ 37 ] Even after I gave my decision on January 7, 2021 that Mr.

Roy did not meet the requirements for a LTO designation, he did not seek to bring this application, but instead indicated his intention to attempt to expunge his guilty pleas. That intention was abandoned before it was argued, and it was only then that the application to re-open the hearing and call evidence was made. [ 38 ] So far as I can determine, then, the evidence could not have been put forward at the LTO hearing: firstly, because it did not exist; secondly because it is not clear that Mr.

Roy even wanted it to be put forward at that time - I do not know when he formed the desire not to be designated a LTO. (

b) Is the evidence relevant? [ 39 ] Typically on an application to open up a verdict and introduce new evidence, the evidence in question is put before the court. That enables the judge to evaluate its relevance. Here, the evidence does not yet exist. Mr. Roy has expressed, through his counsel, a desire to have an independent assessment done with respect to his LTO factors. That assessment may or may not be favourable to whatever outcome Mr. Roy is hoping for by the time it is delivered. As this assessment would be defence evidence, it would be up to Mr. Roy to decide whether or not to present it.

In other words, not only does the evidence not exist, and defence not know what the evidence will be, there is no certainty that the Court will ever see it. [ 40 ] In the event that the evidence were to be presented, it presumably would be directed to the central issue of the LTO hearing, namely whether or not Mr. Roy meets the requirements of a LTO designation. In that sense, it would be relevant. However, without

seeing the evidence, it is impossible for me to determine whether or not it will actually be of any assistance: that is, whether or not it will in fact speak to any issue which I have to decide in this matter. The most I can do is presume that, if defence in fact decides to put forward the report (and viva voce testimony, if any), it will be because defence at least believes it to be relevant. [ 41 ] That is obviously not the same as the Court drawing this conclusion for itself.

The best I can do is assume that, if defence puts forward this evidence, it will be on the central point and will address at least some of the issues at play in determining whether or not Mr. Roy meets the tests for designation as a LTO. I note that this approach is not supported by the caselaw: the Court is not supposed to have to assume what the evidence will be. (

c) Is the evidence credible? [ 42 ] In the absence of the evidence, it is impossible to answer this question definitively. I can assume that defence will utilize an expert who he believes to be credible: defence counsel is well-experienced in

Part XXIV matters, and has specified to the Court the person who he would like to use for the report. There is of course no guarantee that such person will ultimately be the report writer - that person may be or become unavailable, for example. [ 43 ] Once again, the best I can do is assume that, if Mr. Roy chooses to put forward the evidence, the witness he uses will be of such standing and background that they are likely to have at least some credibility.

This assumption-based approach is, again, not supported by the caselaw. [ 44 ] In addition to the credibility of the witness, I have to consider the reliability of the witness' evidence. My concern here is not with respect to the witness themselves, but the information they obtain from Mr. Roy. As noted in Roy (para. 31 ), Mr. Roy was at times not co-operative with Dr. Hook, and at one point told her that everything he had told her the previous day had been a lie. Given that history, and Mr.

Roy's changing desires about the LTO designation, I would at least have to be concerned about his veracity with the witness, and thus the reliability of the witness' conclusions, just as I was with respect to Dr. Hook's evidence. (

d) Could the evidence reasonably be expected to affect the result? [ 45 ] Repetitively, this question too cannot be answered in the absence of the evidence. There may be no evidence: if Mr. Roy obtains his expert's report and finds it unfavourable, he presumably will not put it forward. If, however, he puts it forward it will be, I assume, evidence which he and his counsel believe will advance his cause. That is not helpful, firstly because Mr.

Roy's objectives have mutated over time and I therefore have no idea what cause he may be pursuing at any given moment, and secondly because presumably in every case of fresh evidence the party putting it forward expects it to affect the result, yet the caselaw is clear: the test is not the advancing party's belief, but the Court's conclusion. Conclusion [ 46 ] The four questions set out in Palmer must therefore be answered as follows: a. could the evidence have been provided at the LTO hearing? The answer is both yes and no. Nothing has happened with Mr.

Roy between then and now that suddenly makes this evidence available, nor has there been a change in his circumstances. At the same time, the reality is that such reports and testimony are expensive. I do not know how Mr. Roy's defence is being funded, but I am virtually certain that someone would have to pay for the report and testimony, and that entity would be understandably reluctant to incur those costs unnecessarily. Given counsels' understanding of their joint submission (although incorrect), it was arguably not unreasonable not to seek an alternate report and testimony.

However, that position placed a great deal of reliance on the power of the joint submission to overcome the clear evidence of Dr. Hook. Could the evidence have been provided at the LTO hearing? Yes. Was it reasonable that it not be? Perhaps; b. is the evidence relevant? It will depend on what the information is. It may be that the information is not presented at all. The onus is on the applicant to satisfy me, and he has failed to do so on this point; c. is the evidence credible? Again, this is difficult to determine in the absence of the evidence.

For the purposes of this application, however, I am willing to assume that any witness put forward by defence counsel on this point is likely to be credible enough to satisfy this criterion. Whether or not Mr. Roy participates will also play into the reliability of the evidence, and there is no way of knowing this at this point. Again, Mr. Roy has not met his onus;

d. would the evidence likely affect the result? As noted above, the best I can say is perhaps. [ 47 ] The final criterion, added by Kowall - CA , is whether or not the current application is an attempt to reverse a tactical decision. Arguably, this is so. Mr. Roy knew how unencouraging the contents of Dr. Hook's report were well before the hearing, but chose not to seek this additional evidence; he knew of the similar nature of Dr. Hook's viva voce testimony but did not request an adjournment in order to obtain this new evidence; even once the issue of the joint submission was decided, Mr.

Roy's first reaction was not to seek this evidence but rather to attempt to have his guilty pleas set aside: all of them tactical decisions, which he apparently now regrets. [ 48 ] The Crown has argued that Anthony-Cook supports the defence application: where the court is not satisfied with a joint submission, before proceeding with sentencing, "fundamental fairness dictates that an opportunity be afforded to counsel to make further submissions in an attempt to address the . . . judge's concerns before the sentence is imposed" (para. 58).

Of course, given that I found that a LTO designation could not be the subject of a joint submission, this statement from the Supreme Court is not directly relevant.

Furthermore, the quoted portion of Anthony-Cook was giving instructions to sentencing judges to allow counsel at the sentencing hearing an opportunity to make further submissions on sentence before imposing sentence; the situation before me is more akin to a situation in which a trial has been held, the accused found guilty, a sentence proposed and the offender, finding that his counsel's recommendation for sentence will not be accepted, seeks to re-open the trial and call further evidence which he hopes will result in an acquittal .

Anthony- Cook does not speak to that scenario, and accordingly I do not believe that it assists in the analysis of the present matter. [ 49 ] As the onus is on Mr. Roy to meet the specified criteria, and as he has failed to do so, the application must be dismissed. I do this in full recognition of the fact that the Crown supports Mr. Roy's application; nonetheless, the caselaw does not permit of any other conclusion. [ 50 ] The next step in this process will be for Mr. Roy's sentencing. Both Crown and defence have indicated a desire to make further submissions in that regard. It will be necessary to

schedule a hearing for those submissions. In the event that Mr. Roy obtains a LTO report before those submissions, or indeed at any point up until I make a final decision on sentencing, it will be open to him to renew his application. ____________________ Q. D. Agnew, J