R. v. Partridge, 2011 NUCA 02

In the Court of Appeal of Nunavut Citation: R. v. Partridge, 2011 NUCA 02 Date: 2011-05-17 Docket: 08-09-009- CAS Registry: Iqaluit Between: Jimmy Partridge Appellant -and- Her Majesty The Queen Respondent _______________________________________________________ The Court: The Honourable Justice E.D. Johnson Memorandum of Judgment Application regarding an appeal on the judgment by the Honourable Mr. Justice R. Kilpatrick I. INTRODUCTION

[ 1 ] The Appellant seeks leave to extend the time to appeal the Judgment of Kilpatrick J. in R v Partridge, 2009 NUCJ 13 , [2009] NuJ No 13 [Partridge]. The Crown opposes the application. II. FACTS [ 2 ] The Appellant is a treatment-resistant schizophrenic pedophile who has repeatedly sexually molested young children. Kilpatrick J. found beyond a reasonable doubt that he was a dangerous offender (D.O.) under s. 753 of the Criminal Code (Code). [ 3 ] Kilpatrick J. made the following findings of fact: [29] Despite his history of sexual offences, Mr.

Partridge has not engaged in any sustained psychosocial therapy for his sexual offending. This type of therapy was available to him while serving a lengthy penitentiary sentence for earlier sexual offences involving prepubescent boys. He declined to participate. Lengthy probation orders have also required that he participate in sex offender counselling. [30] Mr. Partridge has been historically very defensive about his violation of sexual norms. He has been consistently reluctant to discuss his sexual offending with treatment authorities. To date he has shown no real insight into his criminality.

He has shown no real remorse. [31] Mr. Partridge has a history of child approach and child grooming behaviours committed by him while under court orders prohibiting contact with children. This behaviour is not directly attributable to periods of psychiatric instability or active psychosis. [32] Expert evidence confirms that while Mr. Partridge's propensity for non-sexual interpersonal violence and property offences will likely show an age-related decline in frequency, the same does not hold true for his potential for sexual violence. The evidence suggests that Mr.

Partridge will remain at significant risk for "child molestation" for considerably more than the next decade. The active symptoms of Mr. Partridge's major mental illness and their "energizing or disinhibiting" effect may militate against any age related decline in his sexual offending behaviours. [ 4 ] Based on this evidence, Kilpatrick J. found the Appellant would remain a significant risk for reoffending for the foreseeable future and that there was no reasonable possibility of eventual control in the community. III. PROCEDURAL HISTORY [ 5 ] The original Notice of Appeal was filed on August 1, 2009.

It was filed late without supporting documentation. On December 9, I voided the Notice but granted counsel leave to re-file with proper documentation. [ 6 ] The Notice of Appeal under consideration in this application was filed on June 2, 2010, and supported by affidavits from trial counsel and Peter Harte. The affidavits indicated that the delay was caused by problems with the Legal Aid policy for funding appeals. [ 7 ] On August 12, 2010, the matter came before Sharkey J. on the Court of Appeal Chambers list.

He directed that counsel file briefs and set it down for special criminal chambers. [ 8 ] The Crown filed a factum but counsel for the Appellant did not. As a result, I heard argument from the Crown first with a brief oral reply from counsel for the Appellant. [ 9 ] The application was argued on January 26 and I reserved judgment.

IV. ARGUMENTS A. Crown [10] The Crown noted that in R v Lyta, 2008 NUCJ 28, [2008] NuJ No 28 [Lyta], this court adopted the framework of analysis forapplications to extend the time to file an appeal articulated by MacPherson J. A. in R v Antonangeli, (ON CA), [2000]OJ No 1870, 146 CCC (3d) 90 [Antonangeli], and Goudge J.A. in R v Watkins (ON CA), [1999] OJ No 2314, 42WCB (2d) 526 [Watkins]. [11] The test set out in those cases considers five factors as follows: (

a) a bona fide intention to appeal was formed within the limitation period (

b) due diligence was exercised in serving the appeal (

c) undue prejudice would befall the respondent as a result of the delay (

d) there is an arguable appeal (

e) overall the interests of justice would be served by the extension of time [12] Although the Crown relied on arguments under (a), (

d) and (e), it did rely not heavily on the first factor and conceded there wouldbe no prejudice. [13] The Crown notes that the Appellant proposes to argue that the Criminal Code should contain an option to designate an individual a“lifetime long term offender” [LTO] and that the absence of such a possibility contravenes

section 7 of the Canadian Charter of Rightsand Freedoms (Charter). [14] Relying on para 44 of R v Johnson, 2003 SCC 46 , [2003] 2 SCR 357, 177 CCC (3d) 97 [Johnson], the Crown argues theappeal is doomed to fail because the law already contains the LTO option. In the Appellant’s case, the length of the available LTO wasnot the issue.

Rather, the trial judge found as a fact that there was no reasonable possibility of eventual control in the community.Granting of an LTO order is premised on the possibility that the offender’s risk may be manageable. [15] As the sentencing judge correctly noted, LTO orders, of any length, are predicated on the possibility that the accused’s ‘treatability’is achievable within the parameters of the proposed long-term supervision order.

This Appellant is not treatable, nor is eventualmanagement of the risk he poses to children in the community foreseeable. [16] The Crown argues the Appellant precisely meets criteria for a dangerous offender designation. Kilpatrick J. held there is presentlyno prospect of eventual control in the community and that finding was not challenged in the proposed appeal.

As a result, even if theAppellant were to somehow succeed on the proposed Charter challenge, he himself would not benefit from that result because KilpatrickJ. was compelled by the facts in this case to make the dangerous offender finding. [17] The Crown notes that while a D.O. designation is indefinite, incarceration under it is not necessarily permanent because of s. 761(1)of the Code. Since the Appellant becomes eligible for parole three years from the date on which he was taken into custody, it ismandatory that he be released if public safety concerns are addressed.

If the Parole Board is ever satisfied that the threat posed by adangerous offender has been ameliorated sufficiently to make control in the community possible at an acceptable level of risk, he will bereleased on such terms as are appropriate at that time, and in his specific circumstances. [18] In upholding the constitutionality of the dangerous offender provision in R v Lyons, (SCC), [1987] 2 SCR 309, 37CCC (3d) 1 [Lyons], the Supreme Court of Canada noted at paras 49-50 the importance of the possibility of parole in the dangerousoffender regime.

This is exactly the same process under which a long-term offender is supervised upon release. For all intents and

purposes, once the circumstances of a dangerous offender have changed to make him releasable, he is subject to the exact samerestrictions on his liberty as a similarly-situated long term offender. [19] In other words, if the Appellant ever becomes a manageable risk, he will be in exactly the same position as a “lifetime long-termoffender” would.

The only difference between the proposed “lifetime LTO” order and the Appellant’s dangerous offender designation isthat, under his present sentence, he must show that the risk he poses can reasonably be managed in the community before being released. [20] It cannot be a principle of fundamental justice that someone whose risk cannot be acceptably managed in the community is entitledto be released. Preventing this from happening is the very essence and raison d’être of the dangerous offender regime.

That regime wasreviewed by the Supreme Court in Lyons and found constitutionally sound. [21] If the Appellant ever meets the criteria for an LTO, he will find himself in the same position as a long-term offender, for the samelength of period as is proposed in his appeal (namely for life). As a result, there is no deprivation of liberty to which he can point as thebasis of a s.7 infringement. [22] The extent to which his liberty is restricted under either the present sentence, or the proposed “lifetime LTO”, is purely a functionof whether and when his risk to the community becomes manageable.

That is both fair and just. [23] On the fifth factor, the Crown argues litigating Charter issues for the first time on appeal is an undesirable practice, to be avoidedwhenever possible. As the Supreme Court stated in R v Brown, (SCC), [1993] 2 SCR 918, 83 CCC (3d) 129 [Brown],courts have generally frowned on the practice of raising new arguments on appeal. In this case, an evidentiary record, focused on theoperation of the dangerous offender and long-term offender regimes, would be required.

No such evidence was called at trial, and thusthe Court would be faced with having to arrange for the adducement of viva voce evidence as part of the appellate process. While not aninsurmountable obstacle, the logistic difficulties involved in this process militate against hearing this constitutional challenge, especiallyin a case where the Appellant himself is unlikely to derive any benefit from the result. B. Defence [24] Counsel for the Appellant did not take issue with the submissions of the Crown. He simply argues that the use of 10 years isarbitrary. V.

CONCLUSION [25] I am satisfied that the Crown arguments are compelling. While the threshold for the merit factor is low, I am satisfied there is nochance of success on the proposed appeal. Granting leave to appeal would be contrary to the overall interests of justice and wouldunnecessarily consume the already stretched resources of this Court. [26] The application is dismissed. Reasons for Judgment filed at Iqaluit, Nunavut this 17th day of May, 2011 ______________________ Earl D. Johnson J.A. Appearances:

Andrew Mahar for the Appellant Nicholas Devlin for the Respondent