2014 QCCA 303, 2014 QCCA 303

Unofficial English Translation LSJPA — 146 2014 QCCA 303 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-08-000330-094 , 500-08-000331-092 and 500-10-004510-093 (525-03-037949-070), (525-03-038012-076) and (500-01-004354-079) DATE: February 17, 2014 CORAM: THE HONOURABLE MARIE-FRANCE BICH, J.A. GUY GAGNON, J.A. MANON SAVARD, J.A. X APPELLANT – Accused v.

HER MAJESTY THE QUEEN RESPONDENT – Prosecutrix JUDGMENT The Court renews the order made at trial prohibiting the publication or disclosure of information that could identify the person described in the indictment. [ 1 ] The appellant appeals from the convictions entered against him on May 8, 2008, (the Honourable Judge Patrice Hurtubise) on charges of being a party to a sexual assault with other persons (paragraph 272(1)(

d) Cr. C. ) and forcible confinement of his victim (subsection 279(2) Cr. C. ) . [ 2 ] He also appeals the decisions made on September 30, 2009 and October 15, 2009, respectively (the Honourable Judges Patrice Hurtubise and Serge Boisvert), declaring him to be a dangerous offender. [ 3 ] For the reasons of Gagnon, J.A., with which Bich and Savard, JJ.A. agree; THE COURT: [ 4 ] DISMISSES the appeal from the convictions entered against the appellant on May 8, 2008; [ 5 ] DISMISSES the appeals from the decisions dated September 30, 2009, and October 15, 2009, declaring the appellant to be a dangerous offender.

MARIE-FRANCE BICH, J.A. GUY GAGNON, J.A. MANON SAVARD, J.A. Mtre Laurent Carignan Monterosso et associés For the appellant Mtre Sylvie Lemieux

Criminal and penal Prosecutor For the respondent Date of hearing: October 8, 2013 REASONS OF GAGNON, J.A. [ 6 ] On May 8, 2008, a judge of the Court of Quebec, Youth Division (the Honourable Judge Patrice Hurtubise), convicted the appellant of being a party to a sexual assault with other persons (paragraph 272(1)(

d) Cr. C. ) and of forcibly confining his victim (subsection 279(2) Cr. C. ) . [1] The judge also found that the evidence showed beyond any reasonable doubt that, on that occasion, the appellant had uttered threats.

He stayed proceedings regarding this charge, however, considering that it and the forcible confinement were part of the same transaction. [2] The appellant appeals from these convictions. [ 7 ] The same day, he was found guilty of two other sexual assaults on two other minor victims and also of having threatened one of them with bodily harm. [3] He is not, however, appealing from those convictions. [ 8 ] On September 30, 2009, Hurtubise J.C.Q. declared the appellant a dangerous offender . [4] He also appeals from this sentence. [ 9 ] On September 28, 2008, a judge of the Court of Quebec, Criminal Division (the Honourable Judge Serge Boisvert), declared the appellant guilty of breaking and entering a dwelling-house and committing a sexual assault therein (paragraphs 348(1)( b )(

d) Cr. C. ). On the same occasion, he found him guilty of forcible confinement (paragraph 279(2)(

a) Cr. C. ). [5] On October 15, 2009, Boisvert J.C.Q. also declared the appellant a dangerous offender. [6] The appellant appeals only from this designation.

I) Convictions on May 8, 2008 [ 10 ] The appellant criticizes the trial judge for failing to actually apply the warning he himself gave regarding identification evidence. He maintains that the judge increased the probative value of this evidence relying mainly on the credibility and good faith of the victim. He adds that the judge made improper and unreasonable deductions from the version given by this witness. [ 11 ] The appellant’s guilt was largely based on identification evidence given by the victim. In this respect, the trial judge did not fail to guard against the inherent weaknesses of eyewitness evidence.

Since the appellant was not tried before a jury, this precaution did not have to be marked by the same formality as would a judge’s instructions to a jury when the identification of an accused by visual observation is contested. [ 12 ] A careful reading of the judgment indicates that the trial judge exercised caution when addressing the identification evidence and deciding this issue in light of the facts of the case.

He did not confuse the sincerity and credibility of the victim with the reliability of her version. [7] While he gave a good explanation of his reasons for considering the witness’s testimony to be credible and why he believed her to be sincere, he also took care to make a distinction between this part of his assessment and the part dealing with the accuracy of the identification of the appellant. [ 13 ] The evidence shows that, at the time of the assault and in its circumstances, there were no obstacles that could have reduced the victim’s ability to observe, to the point of decreasing the probative value of her version.

The judge retained the following facts which, in his opinion, ensured the reliability of the identification: 1. Shortly before the events, the victim noticed a group of individuals board the same bus she was on; they then followed her when she got off the bus. 2. It was a member of this group who, at knifepoint, forced her to follow these individuals into a schoolyard. She estimated that the group was about eight people strong. 3. Even though the victim acknowledged that it was dark at the time of the events, she nonetheless stated that she was [ translation] “ able to see”. 4.

During the assault, while she was being held by a member of the group, she was forced to face her assailant, who made her kiss him and watch him masturbate. 5. One month after the events, the complainant recognized her assailant in a group of individuals walking through a shopping centre. She said: [ translation] “… I knew for sure it was him, …”. 6.

On that occasion, the appellant said to her: [ translation] “you took off fast the other time”, thereby acknowledging that he had been at the place of the assault and thereby corroborating the version of the victim, who said that she managed to flee from the place where she was being held. 7. She gave the police a description of her assailant that matched the physical characteristics of the appellant and which, according to the evidence accepted by the judge, was not based on her unexpected encounter with him at the shopping centre. 8.

The victim furthermore identified her assailant at the first opportunity in a photo lineup presented by the police. [ 14 ] Issues regarding the credibility of eyewitnesses fall within the exclusive purview of the trier of facts . [8] In the present case, the victim’s version had enough solid bases that it could be given sufficient probative value to support an inference of guilt beyond any

reasonable doubt for the acts alleged against the appellant. [9] [ 15 ] Based on the evidence accepted by the trial judge, not only was the victim able to formally identify the appellant during the assault, but there is no indication that she was mistaken the other times she recognized him. [ 16 ] It should also be noted that the appellant chose not to offer any evidence in his defence.

Even if he did not have the obligation to assign witnesses or make himself heard, it nonetheless remains that the victim’s testimony, which could have been contradicted, was not. [10] [ 17 ] As for the argument regarding police procedure during the photo lineup, there is no indication that the victim was under any external influence or that her judgment was weakened by the interference of a person in authority. [11] [ 18 ] Furthermore, the judge also considered the possibility that the photo identified by the victim was that of the person she met at a shopping centre rather than her actual assailant.

In this respect, the judge wrote: [ translation] One must not go to the other extreme and set aside this evidence simply because the two saw each other again after the assault. [12] [ 19 ] Regarding the victim’s identification of the appellant at trial, this evidence did not play a determining role among all the considerations accepted by the judge to find him guilty. [ 20 ] Finally, the appellant criticizes the trial judge for not providing sufficient reasons for his decision.

Yet, when the reasoning that led to the convictions is carefully analyzed, it appears that the judge endeavoured, albeit succinctly, to respond to the appellant’s arguments. His reasons are intelligible and relate with adequate clarity the reasons supporting the verdicts. [13] Moreover, their content makes it easy to subject them to a meaningful appellate review. [ 21 ] In short, the appellant has not convinced me that the judge committed a reviewable error of law in applying the principles inherent to identification evidence.

II) The dangerous offender designations [ 22 ] The appellant wishes the dangerous offender orders made against him in two Court of Quebec judgments to be quashed. 1) Judgment of the Court of Quebec, Youth Division, of September 30, 2009 [ 23 ] At the outset, Hurtubise J.C.Q. was careful to point out that the application to make the appellant subject to an adult sentence was not contested, thereby making Parts XXIII and XXIV of the Criminal Code [14] applicable to his situation . [ 24 ] Next, from the testimony of the probation officer charged with supervising the appellant from February of 2006 until his arrest in April of 2007, he found that the appellant had shown no interest in changing his deviant sexual behaviour during that time. [ 25 ] The judge then considered the testimony of the psychiatrist Louis Morissette, who was tasked with preparing the assessment report under

section 752.1 Cr. C. This expert considered the appellant to be a sexual predator with narcissistic and antisocial traits, suffering from sexual sadism toward women.

According to this witness, the appellant was at high risk of reoffending and unlikely to be controlled in the community as long as he denied that there was any problem and refused any treatment to correct his deviancy. [ 26 ] The appellant’s mother and brother also testified that they intended to support the appellant and give him the necessary supervision upon his release. [15] They seemed to be completely unaware, however, of the deficiencies in the appellant’s personality. [ 27 ] The judge then considered the appellant’s testimony, and drew attention to its brevity.

He considered the appellant’s half- hearted remorse and noted that he admitted to not cooperating with the expert during his remand for assessment. [16] [ 28 ] Finally, he examined the report of the appellant’s psychiatrist, Doctor Serge Gauthier. This expert also found that his client suffered from paraphilia, but when under the influence of alcohol. [17] [ 29 ] The psychiatrist Dr. Gauthier acknowledged the need for a long period of detention before the appellant could safely re-enter society.

In the meantime, to help correct his serious behavioural deficiencies, he suggested taking medication for an attention deficit disorder diagnosed in his client after a ninety minute interview. The appellant also required therapy for this deficit which, in the expert’s opinion, could take several years before yielding any positive results. Successful therapy for this disorder would be a precondition to starting any other therapy for sexual deviance.

In addition to this therapeutic cocktail, treatment would be necessary for dealing with the appellant’s consumption problems. [ 30 ] The judge considered that the problem related to alcohol abuse had not been proved. As for the appellant’s family and his probation officer, they knew nothing about this condition. With respect to the attention deficit diagnosis, the judge considered this disorder to be unrelated to the appellant’s basic problem, namely, his paraphilia.

In this regard, he preferred the opinion of the expert Morissette, while pointing out that the two experts agreed on the seriousness of the deficiencies that characterized the offender’s personality and his high risk of reoffending. [ 31 ] Ultimately, the judge accepted that the appellant had repeatedly committed serious personal injury offences against several victims and that his pathology, which he refused to acknowledge, made him unable to control his intractable sexual impulses.

The expert evidence agreed on his high risk of reoffending, which made it necessary, in the judge’s opinion, to protect the public by imposing an indeterminate sentence (paragraph 752 (

b) Cr. C. ). 2) Judgment of the Court of Quebec, Criminal Division, of October 15, 2009

[32] Like his Youth Division colleague, Boisvert J.C.Q. considered that only a dangerous offender designation could adequatelyprotect the public from the risk of additional serious personal injury offences. [33] It is true that this decision is fairly brief, but it should be said, however, that the appellant, who had already been declared adangerous offender since the judgment of Hurtubise J.C.Q. rendered on September 30, 2009, chose to rely on the discretion of BoisvertJ.C.Q. regarding the suitability of making another such designation.[18] Analysis 1) The standard of intervention regarding dangerous offender designations [34] There are basically two types of errors of law likely to require the intervention of an appellate court with respect to dangerousoffender orders.

First, there are unjustified inferences drawn by the court that are not based on the evidence or that may result, in veryrare cases it should be said, from an illogical reasoning process.[19] Also, at the time,[20] failure to take into account the long-termoffender provisions prior to inquiring into the suitability of declaring an offender dangerous could lead to the cancellation of such anorder.[21] [35] It is also the mission of appellate courts in these matters to verify whether a dangerous offender designation is reasonablysupported by the evidence.

Unlike an error of law, the standard of intervention applicable here imposes a measure of deferencerespecting the findings of fact accepted by the court that is also responsible for assessing the credibility of witnesses and judging theprobative value of the expert reports submitted by the parties.[22] [36] A finding establishing the offender’s dangerousness[23] and a finding that there is no real possibility that the risk the offenderrepresents will ever be controlled in the community through the application of the long-term offender provisions of the CriminalCode[24] are findings of fact respecting which our Court must show deference.[25] When the issue on appeal addresses these matters,the role of the Court must be limited to deciding whether these determinations are reasonable: In this respect, the role of an appellate court is to determine if the dangerous offender designation was reasonable.

This standard ofreasonableness is similar to the traditional standard employed by appellate courts in their review of verdicts under s. 686 (1)(a)(

i) of theCriminal Code. Reasonableness is the appropriate standard of review in this case because, as much as dangerous offender status is a partof the post-conviction process, the application of general standards of sentence review is not warranted given the broad language ofs. 759. … Given this provision, I do not find the “manifestly wrong” or “demonstrably unfit” general sentencing standards developedand applied in cases such as R. v. Shropshire, (SCC), [1995] 4 S.C.R. 227, R. v. M. (V.A.), (SCC),[1996] 1 S.C.R. 500, or R. v. McDonnell, (SCC), [1997] 1 S.C.R. 948, to be applicable to this situation.

However, it isequally true that s. 759 cannot be interpreted as calling for the equivalent of a trial de novo on the dangerous offender application. Somedeference to the findings of a trial judge is warranted. After all, credibility (sic) should be assessed and findings of fact should be madeby the trier of fact.

The trier of fact is present when the testimony is being given and has the contemporaneous ability to assess eachwitness. … Accordingly, absent an error of law (which I discuss below), the crucial question on appeal is whether the trial judge’s findings werereasonable.[26] [Emphasis added.] [37] In Currie, the Supreme Court also addresses the standard of intervention for expert evidence accepted by the court when a long-term offender order or a dangerous offender order is made.

Lamer C.J. writes on behalf of the Court: 38 In my opinion, therefore, it was entirely open to the trial judge to prefer the evidence of Dr. McDonald to that of Dr. Orchard. Itwas not, however, similarly open to the Court of Appeal to re-evaluate the psychiatric evidence and overturn the dangerous offenderdesignation because of a mere difference of opinion. I cannot overemphasize the point that no appellate court should lightly disturb afinding of dangerousness which is so heavily dependent upon the relative credibility of expert witnesses. In saying this, I have notforgotten the broad language of s. 759.

However, having observed both experts and evaluated their reports, Tobias J. simply found theopinion of Dr. McDonald to be more credible. It was a reasonable conclusion amply supported by the evidence. It should not have beendisturbed by the Court of Appeal.[27] [Emphasis added.] [38] In support of his claims, the appellant does not allege any error in law likely to call for our intervention.

His criticism isessentially directed at questions of the assessment of the evidence accepted by the trial judges, such that the rest of my analysis will belimited to the reasonableness of their determinations. 2) Reasonableness of the dangerous offender designation [39] The appellant maintains that the dangerous offender orders made against him are premature when analyzed in light of the reportfrom his expert, the psychiatrist Serge Gauthier. [40] More specifically, he submits that if he were offered appropriate treatment, it would help contain his impulses to the point thathis risk of reoffending could be controlled in the community.

Under these conditions, he should have received a determinate sentencealong with long-term offender designation. [41] When imposing a penitentiary measure such as a dangerous offender designation, the offender’s criminal history is a

determining factor. Below is the appellant’s criminal history, as presented to the trial judges.

i) Similar criminal conduct by the appellant November 25, 2003 [ 42 ] At his school, the appellant touched a young girl’s private parts, without her consent, while threatening and bullying her. [28] [ 43 ] On September 30, 2004, given the appellant’s young age, the prosecution merely made him enter into a recognizance to keep the peace (section 810(3) Cr.

C. ). [29] November 26, 2004 [ 44 ] While under this recognizance, the appellant sexually assaulted a young girl (with penetration). [30] His criminal conduct resulted in a placement of eight (8) months [31] under the Youth Criminal Justice Act . [32] [ 45 ] This sentence was accompanied by a period of monitored probation from February of 2006 to April of 2007. [33] It was during this period that the appellant committed all the sexual assaults that led to the dangerous offender designations being contested. August 2006 [ 46 ] In August of 2006, the victim (Y, aged 13) was returning home after seeing a movie.

When she got off the bus, a group of young individuals (about eight of them) forced her to follow them to a schoolyard. To ensure that she would comply, one of them threatened her at knifepoint. [ 47 ] The individuals made a circle around her and one of them held her arms back. The appellant made her kiss him and asked her to masturbate him. When she refused to do so, he masturbated in front of her, and then asked her for her cell phone. He examined it and then gave it back to her. Seizing on their momentary inattention, she fled and while running, she heard the appellant shout: “Hey!

I’ve got your phone number and I’ll find you”. September 9, 2006 [ 48 ] The victim (Z, aged 16) was in the … metro station. She chanced upon the appellant, whom she did not know. He tried to seduce her. He sat down with her on a park bench while waiting for the bus. He kissed her neck and paid her compliments. The victim wanted to leave. He then threw her on the ground, touched her breasts, pulled down his pants and penetrated her. November 3–4, 2006 [ 49 ] The victim (A, aged 13) met up with friends at the … metro station, including the appellant, whom she had met the previous week.

The group went to a friend’s place, where they listened to music. During the evening, the appellant took the girl aside and made her sit in a pick-up truck. Despite her protests, he kissed her neck and lips and removed her sweater so he could fondle her breasts. [34] [ 50 ] The victim was crying. The appellant threatened to hit her, grabbing her by the throat. He removed her pants and touched her buttocks.

He used his finger to penetrate her, threatening her with physical violence if she spoke too loudly. [ 51 ] Taking advantage of the unexpected appearance of a third party, the victim managed to get up and run away. Chased by the appellant, who hurled insults at her non-stop, calling her names, she climbed over a fence and ended up in a street where a good samaritan came to her aid. February 16, 2007 [ 52 ] The victim (B, aged 16) went to the … metro to meet a friend, who unfortunately arrived late for their meeting.

She criticized him for his tardiness in front of four individuals, including the appellant, who happened to be there during the verbal altercation. Two of the individuals got involved and bullied the victim’s friend. Disappointed with her friend’s attitude, the victim decided to follow the group to an apartment. [ 53 ] Once there, the victim drank a number of beers. The appellant then tried to take advantage of the situation. She refused his advances despite his insistence.

He then decided to take her to a bedroom, grabbed her by force, kissed her and tried to pull down her pants while punching her in the body and face and continuing to threaten her. She managed to wrestle free and get out through a bathroom window, barefoot, in the middle of February.

She finally found refuge at a neighbour’s place. ii) The appellant is a dangerous offender [ 54 ] The judge who finds that the offender has been convicted of a ″serious personal injury offence” must, in the second part of his or her analysis on the suitability of making a dangerous offender order, be satisfied beyond any reasonable doubt that there is a likelihood that the offender will reoffend in the future. [35] [ 55 ] Since 2008, Parliament has put an end to the discretionary power of trial judges on this question by making the application of

section 753 Cr. C. mandatory as soon as an offender meets the criteria listed in this provision. [ 56 ] Since these amendments came into force between the time that the appellant committed the offences and his sentencing, however, the appellant is therefore entitled, according to

section 11(

i) of the Canadian Charter , [36] to benefit from the more favourable legal system, which in this case was that applicable at the time of the offences. [37] [ 57 ] That said, there is no doubt that the offences of which the appellant has been convicted constitute “serious personal injury

offences” within the meaning of

section 752 Cr. C. In this particular case, the appellant admits that given the nature of his criminality, a sentence of at least two years was required. [ 58 ] As for his degree of dangerousness, trial judges were accustomed, for decision-making purposes, to having information about the circumstances surrounding the appellant’s criminality.

This enabled them to discover the appellant’s true personality, discern a form of persistent pathology through his criminal conduct, and with the added insight offered by this evidence, assess the various expert reports presented by the parties to finally decide, for purposes of prevention, if the proved deviancy was likely to include a risk of reoffending. [ 59 ] This was a prognosis made by the Court as to the appellant’s future conduct, based on past and present fact evidence, supported by expert evidence establishing the appellant’s great propensity to behave in a dangerous manner.

For a dangerous offender designation to be imposed, it was enough that the expert evidence accepted by the judge made it likely that the appellant posed a high risk of reoffending. [38] That is the case here. [ 60 ] With respect for the contrary view, I cannot see on which aspect of the evidence the trial judges may have been so mistaken that it would make their decision unreasonable.

In my opinion, their decision to declare the appellant a dangerous offender was based on solid grounds and cannot be easily disputed. [ 61 ] The expert Morissette, after having identified the pathology afflicting the appellant, pointed out that the appellant refused to admit his sexual deviancy. For this expert, this state of denial made impossible any treatment that could ensure that the risk could be controlled in the community.

He even considered that the appellant posed a higher risk of reoffending than the average federal inmate and did not hesitate to categorize this offender as a sexual predator. [ 62 ] The expert Gauthier considered that the appellant’s problem lay elsewhere. He estimated that the appellant’s sexual deficiencies were exacerbated by an excessive consumption of alcohol.

As for his numerous failed therapeutic treatments, which were submitted to him to date, they could be the result of an attention deficit disorder that must be treated first. [ 63 ] Assessing the weight of expert evidence essentially falls within the purview of the trial judge. Hurtubise and Boisvert, JJ.C.Q. accepted the opinion of the expert Morissette. The appellant has not shown that in so doing, they committed a reviewable error. Here is why. [ 64 ] The points on which both experts agree are, in my opinion, sufficient to justify maintaining the existing sentences.

They are: • The appellant suffers from paraphilia.

The Larousse dictionary defines this pathology as [ translation] “sexual deviancy, marked by the choice of the object of desire or a corruption of the sexual act ”; [39] • The appellant has narcissistic and antisocial personality traits; [40] • There is a high risk that the appellant will reoffend; [41] • As long as the appellant fails to acknowledge his sexual deviance, no therapy can reduce the risk of reoffending. [42] The offender has still not formally acknowledged this problem; [43] • The appellant’s remorse might be calculated rather than sincere. [44] This was in fact the finding of Hurtubise J.C.Q.; [45] • The expert Gauthier admits that young sexual assailants present a higher risk of reoffending. [46] [ 65 ] The only point on which there was no consensus between the experts concerned Dr.

Gauthier’s expectation of a favourable outcome as a result of treatments to rehabilitate his client.

His reasoning is based primarily on the idea that the appellant’s sexual deviance is exacerbated by an excessive consumption of alcohol. [ 66 ] To reach this conclusion, the expert considered only his client’s version, without deeming it useful first to verify these claims by attempting to establish a consumption model specific to a condition alleged only by the appellant. [ 67 ] Except for his assertion concerning an alleged problem with alcohol, which he uses to explain his criminal conduct, the record does not show any evidence that the deviant behaviours for which the appellant was convicted occurred when he was under the influence of alcohol.

At the risk of repetition, neither his probation officer nor his immediate family had ever detected any signs indicating that this might be a problem. [ 68 ] Regarding this issue, it was therefore open to Hurtubise J.C.Q. to prefer the opinion of the expert Morissette to that of the expert Gauthier and to decide that the alcohol issue was not part of the equation in determining whether or not the appellant should be declared a dangerous offender. [ 69 ] The expert Gauthier insisted, however, on the need to first treat the appellant’s attention deficit disorder, before addressing his other problem, the paraphilia.

According to Dr. Gauthier, the therapies to control his client’s sexual deviancy would depend on the effectiveness of the treatments contemplated for a possible attention deficit disorder diagnosis. [47] He estimated the chances of successful treatment to be 70%.

In contrast, he decided against rating the probability of success for the therapies required to control the risk related to the appellant’s sexual problem, stating simply that [ translation] “there is a possibility” of success. [48] [ 70 ] This expert, however, did not go so far as to state that the appellant’s paraphilia arises from his attention deficit disorder. In fact, the expert Morissette does not see any scientific link between these two pathologies. [ 71 ] The other difficulty raised by the testimony of Dr.

Gauthier concerns his statement that the appellant’s paraphilia disorder cannot be treated effectively unless the appellant acknowledges his sexually deviant behaviour. Dr. Morissette’s opinion on this

possibility leaves no room for doubt. He is unequivocally of the opinion that the appellant does not see himself as having any problem of this type and that he is furthermore close-minded about treatment to correct his deviancy. Dr. Gauthier did not contradict this opinion. [ 72 ] In

summary, the findings of the expert Gauthier merely point to a hypothetical success rate based on a mere [ translation] “possibility” whose realistic prospect cannot be verified in reading his report or his testimony. As my colleague Doyon J.A. wrote in Boyer on this question: [ translation] “a mere hope is not enough; the evidence must indicate that there is ‘a realistic prospect of management of the risk in the community’.” [49] [ 73 ] These reasons, by themselves, were enough to justify the two Court of Quebec judges to set aside Dr. Gauthier’s report.

Moreover, there was nothing in the evidence to seriously counter the probative value of the expert reports of Dr. Morissette, who after three meetings with the appellant and several hours of interviews with him, concluded on April 2, 2009: [ translation] Our opinion, however, is that the risk of reoffending is high given the attitude, style of social interaction, low acknowledgement and close-mindedness to date about the fantastical deviance.

At this time, I cannot state before the Court whether there is some possibility, a real possibility or reasonable possibility of eventual control of the risk of reoffending in the community. As a result, clinically, a “long-term offender” designation is not possible, and a regular sentence with a definite end does not seem sufficient to me to ensure the protection of the public. The reader will understand that I strongly disagree with Dr.

Gauthier, who states that during X’s incarceration, X needs only psychological services and programs to help him resolve his drug and alcohol consumption problems, as well as a social skills program. [ 74 ] In my opinion, the consensus reached by both experts on the basic points characterizing the appellant’s situation authorized the trial judges to set aside the real possibility that the risk posed by the appellant could be reduced to an acceptable level by applying Criminal Code provisions for long-term offenders and then be appropriately controlled in the community. [ 75 ] These findings were based on a reasonable understanding of the evidence in general and the expert evidence, in particular.

They are determinations largely dependent on the credibility given to the opinion of experts, hence the significant deference that must be shown by our Court with regard to determinations of this nature. [50] [ 76 ] That being said, I am aware of the exceptional nature of the situation.

It is not often – nor should it be – that a dangerous offender designation is imposed on a young adult whose delinquency occurred while he was a minor or barely an adult and who has never served a prison term in the past. [ 77 ] Furthermore, as regards sentencing, while the courts have always considered an offender’s age an important factor when applying the criteria of specific deterrence and rehabilitation, [51] the fact remains that Parliament did not exclude young adults from the application of Criminal Code provisions for dangerous offender or long-term offender designations.

Moreover, the appellant does not raise such an inability in point of law. [ 78 ] The evidence before the trial judges, however, gave them scarcely any choice other than the one they made here. Moreover, the particular weakness of the appellant’s evidence should be emphasized in this regard as it was based on an expert report whose bases were shown to be rather tenuous. [ 79 ] All things considered, the appellant’s situation should turn on its own facts, even though it is not unique. According to case law, a dangerous offender designation can be imposed on a young adult.

This was done by the Court of Appeal of New Brunswick in the case of a 21-year old offender, [52] and the Ontario Superior Court of Justice also came to the same conclusion for an offender who was 20 years old when the offences were committed [53] and had a similar profile to that of the appellant. [ 80 ] I am therefore of the view that the dangerous offender designations with regard to the appellant were reasonable in this case, and that our intervention cannot be sought in this matter.

CONCLUSIONS [ 81 ] The appellant has not convinced me that the judge erred when applying eyewitness evidence rules, which led to the appellant’s identification in the offences for which he was convicted by the judge of the Court of Quebec, Youth Division. [ 82 ] Nor has the appellant convinced me that the two judges of the Court of Quebec erred in law when they declared him a dangerous offender; furthermore, it was not demonstrated that these designations were unreasonable. [ 83 ] I would therefore dismiss the appeal concerning the convictions of the appellant rendered on May 8, 2008, and his appeals from the decisions declaring him a dangerous offender, rendered respectively on September 30 and October 15, 2009. [ 84 ] On a completely different note, it is well worth noting that the appeal case progressed rather slowly for various reasons such that this appeal was heard only four years after the judgments of Hurtubise and Boisvert, JJ.C.Q.

Without blaming anyone in particular, it is regrettable that the file did not proceed more quickly, given the circumstances. That said, if the appellant used this delay to finally undergo therapy and make the effort he previously refused to make, his lawyers did not attempt to prove it.

Admittedly, they did present a motion to adduce new evidence in April of 2012, but its purpose was to include evidence intended to undermine the credibility of the expert Morissette because of his reprehensible conduct in another case. [54] The Court dismissed that motion. [55] If the appellant has initiated rehabilitation since 2009, or now behaves in such a way as to disprove his prognosis, the Court has not been informed of it.

GUY GAGNON, J.A.