R v Daniels, 2017 SKCA 94

Court of Appeal for Saskatchewan Docket: CACR3032 Citation: R v Daniels , 2017 SKCA 94 Date: 2017-11-01 Between: Neil Wilbert Daniels Applicant/Proposed Appellant And Her Majesty the Queen Respondent/Proposed Respondent Before: Herauf J.A. (in Chambers) Disposition: Application denied Written reasons by: The Honourable Mr. Justice Herauf On Application From: 2013 SKQB 324 , Saskatoon Application Heard: October 25, 2017 Counsel: Neil Daniels appearing on his own behalf Dean Sinclair, Q.C. for the Respondent Herauf J.A. [ 1 ] Mr.

Daniels was convicted of sexual assault, designated a dangerous offender and sentenced to an indeterminate sentence of imprisonment. He now seeks an extension of time to appeal both the dangerous offender designation and the indeterminate sentence. [ 2 ] The relevant time periods to this application are as follows: • May 9, 2010 – Date of the offence for sexual assault under s. 271 of the Criminal Code , RSC 1985, c C-46. • June 24, 2011 – Date of conviction for sexual assault. • September 5, 2013 – Date of sentencing.

Found to be a dangerous offender and indeterminate sentence imposed. • October 17, 2017 – Application for an extension of time to appeal the dangerous offender designation and the indeterminate sentence filed with this Court. • October 19, 2017 – The Crown advised it would not consent to late filing. • October 25, 2017 – Application to extend argued in Chambers and reserved. [ 3 ] Section 678(2) of the Criminal Code is the governing legislative provision.

It reads as follows: 678(2) The court of appeal or a judge thereof may at any time extend the time within which notice of appeal or notice of an application for leave to appeal may be given. [ 4 ] Rule 7(2) of The Court of Appeal Criminal Appeal Rules (Saskatchewan) is also relevant. It reads as follows: 7

(2) The court or a judge may enlarge or abridge the time periods fixed by these rules or by order on such terms as the case may require, and the order enlarging or abridging the time may be made before or after the fixed period has expired. [ 5 ] There is significant authority from this Court that identifies the criteria a judge takes into account when considering whether to extend the time for appealing.

The most recent decision is R v Walker , 2017 SKCA 91 , where Jackson J.A. stated at paras 2 and 3, the following: [2] The usual criteria guiding a judge’s discretion when determining whether an extension of time should granted are as follows (see R v Morin , 2005 SKCA 37 at 6, 195 CCC (3d) 190 [ Morin ]): (

a) whether the applicant has shown a bona fide intention to appeal within the appeal period; (

b) whether the applicant has accounted for or explained the delay; (

c) whether the Crown would be unduly prejudiced by the extension of time; (

d) whether there is merit to the proposed appeal in the sense that there is a reasonably arguable ground of appeal; and (

e) whether the interests of justice weigh in favour of extending the time to appeal. [3] The fifth criterion from Morin is applied as an overarching consideration [citations omitted]. These authorities also demonstrate that the Morin factors are a guide to the exercise of a discretionary power. Depending on the circumstances of any given case, other factors may be relevant and one or more factor may assume a more dominant role.

See also R v Dustyhorn , 2017 SKCA 82 at paras 4–6 ; R v Smith , 2017 SKCA 81 at para 38 ; R v Roberge , 2005 SCC 48 at para 6 , [2005] 2 SCR 469. [ 6 ] In his affidavit filed in support of the application, Mr. Daniels states that after the decision came down designating him as a dangerous offender and imposing an indeterminate sentence, he immediately instructed his Legal Aid counsel to appeal both the designation and the sentence. Mr.

Daniels also swears that he continued to press this matter with Legal Aid and was eventually advised that he would have to reapply for Legal Aid in order to ascertain if Legal Aid would undertake an appeal. He also states that he provided Legal Aid with the required forms. His affidavit does not outline what transpired after that. The bottom line is clear; Mr. Daniels did not file a notice of appeal within the 30 day appeal period, nor did he communicate his intention to appeal to the Crown. [ 7 ] Mr. Daniels represented himself on this application.

Looking at his application in the most favourable light may provide a reason for the delay within the appeal period, however, there is absolutely nothing in his material to explain what transpired in the four plus years from the expiration of the appeal period to the date of application. [ 8 ] In oral submissions to the Court, Mr. Daniels contends he is unfamiliar with the law and it has taken him four years to undertake the research relating to the application and prepare the necessary documentation to file with the Court.

He submits that he never gave up his intention to appeal. [ 9 ] I am inclined to agree with the Crown that Mr. Daniels may have formed the intention to appeal during the appeal period, had discussions with Legal Aid, and subsequently abandoned his intention. This circumstance was noted by Saunders J.A. in R v Wilson , 2015 BCCA 270 at para 17 , where she stated: I turn then to the issue of Mr. Wilson’s intention. This is generally stated as concerning the formation of an intention to appeal during the period limited for appeal.

It is a requirement that addresses the diligence of the appellant and, depending on the circumstances, may not fully describe the underlying concern of the court. For example, a person may form an intention to appeal but not act for such a long time that, absent a compelling explanation, one fairly may infer the intention to appeal has been so inconstant or has lapsed altogether such that one may say it was abandoned and that the diligence criteria is not established. [ 10 ] In my view, Mr. Daniels did abandon his intention to appeal.

In addition, there has been no satisfactory explanation for the 50 month delay post-appeal period. While I appreciate Mr. Daniels is not versed in the law and being incarcerated may make the task to apply for an extension more difficult, it cannot justify an extension where the appeal period expired on October 5 or 6 of 2013. [ 11 ] The Crown acknowledges that there is no prejudice if an extension was granted. [ 12 ] The final criteria to consider relates to the merits of the appeal. To put this matter into context, it is necessary to set out the proposed grounds of appeal as submitted by Mr. Daniels.

The three grounds are as follows: 1. Justice Neil Gabrielson considered the Gladue principles but did not apply the Gladue principles as relevant and effective to me, Neil Daniels. 2. In his written decision, Justice Neil Gabrielson dismisses the Gladue principles as not applicable in my defence due to my religious orientation and beliefs. 3. I also submit that Justice Neil Gabrielson is biased and unfair in his decision to have sentenced I, Neil Daniels to an indefinate [ sic ] period of incarceration that is not consistent, not fit with the fundamental principle of proportionality.

R. v Ipeelee , 2012 SCC 13 , [2012] 1 S.C.R. 433, para. 7 , line 6–8. [ 13 ] I prefer to deal with the proposed grounds as they relate to the dangerous offender designation and the indeterminate sentence separately. [ 14 ] The sentencing judge set out at paragraph 7 of his judgment the sexual offences, including the predicate offence, that Mr. Daniels had been convicted of: ... (

a) On November 25, 1980, Daniels was sentenced for the offence of sexual intercourse with a female not his wife and under 14 years of age contrary to s. 146(1) (

c) of the Criminal Code . The victim in that case was the 11-year-old younger sister of Daniels’ spouse, Cecile. The victim had been babysitting for them. Daniels choked the victim into submission and forced vaginal intercourse upon her. After the assault, the victim’s vagina was bleeding to the point where medical attention was required. Daniels was sentenced to 18 months in prison. (

b) On September 1, 1987, Daniels was sentenced for the offence of sexual assault upon his daughter. The offence involved several sexual assaults, beginning when she was approximately age six and continuing until she was age nine. The sexual assaults included both sexual touching and sexual intercourse. Daniels was sentenced to six years in a penitentiary and remained in prison until six weeks before his warrant expiry in 1993. (

c) On April 4, 1995, Daniels was sentenced for the offence of a sexual assault of his niece, who was 15 years of age at the time of the offence. The offence consisted of sexual touching. He was sentenced to 18 months in prison. (

d) On September 9, 2003, Daniels was sentenced for the offence of sexual assault of his six-year-old niece. The offence involved sexual touching, including digital penetration. Daniels received a three-year penitentiary sentence in addition to the four months he was on remand. Daniels remained in custody until the expiration of his warrant. (

e) On June 24, 2011, Daniels was convicted by me of the predicate offence of the sexual assault of a nine-year-old friend of his

daughter. In my decision, I found that Daniels had placed his hand inside the victim’s clothing and moved his hand so that his index finger was touching her vagina. Daniels has been on remand for this offence since the day of the offence, May 9, 2010. [ 15 ] In addition, during the

Part XXIV hearing, Mr. Daniels admitted he was a pedophile who was attracted to young girls. He also admitted that he had an alcohol problem that he could not control and sexual urges that he could not control. [ 16 ] Mr. Daniels’ self-admitted diagnosis as a pedophile was confirmed by Dr. Holden, the court-ordered assessor. Dr. Holden’s assessment of Mr. Daniels led to the following findings: (

a) Mr. Daniels was at a high risk to reoffend sexually violently in the future; (

b) Mr. Daniels was at a high risk to reoffend violently towards his partner; and (

c) Mr. Daniels was a moderate to high risk to reoffend physically violently in the future. [ 17 ] Finally, Dr. Holden’s evidence was that age (Mr. Daniels is now 61 years of age) does not necessarily equate with a drop in sexual urges as it relates to pedophiles. [ 18 ] Based upon this background, it is not surprising that Mr. Daniels instructed his counsel at the

Part XXIV hearing to admit to the following: [10] Counsel for Daniels indicated that Daniels admitted: (

a) that the predicate offence for which Daniels is to be sentenced is a serious personal injury offence as defined in s. 752 of the Criminal Code ; and (

b) that Daniels acknowledges that his series of five convictions for sexual offences meets the threshold to establish that he has engaged in a pattern of repetitive violent behaviour such that he meets the criteria of being designated a dangerous offender within the meaning of s. 753(1)(a)(

i) and/or (ii); and (

c) that the ancillary orders requested by the Crown are appropriate. ... [ 19 ] Based upon this background, there is absolutely no merit to Mr. Daniels’ proposed ground that he should not have been designated a dangerous offender. [ 20 ] This brings me to whether there is merit to Mr. Daniels’ contention that he should not have received an indefinite sentence. This issue was the focus of his “defence” at the

Part XXIV hearing. Mr. Daniels advocated that he should have received a determinate sentence of nine years (with three years credit for remand), followed by a long-term supervision order of ten years. Mr.

Daniels’ proposed grounds of appeal have more relevance to this aspect than to the finding that he was a dangerous offender. [ 21 ] The sentencing judge certainly identified his task at paragraphs 71 and 72 of his judgment as follows: [71] In the text Assessing Dangerousness: Guide to the Dangerous Offender Application Process , supra , at paragraph 7.1, the author states: Under the current legislation, a court is required to impose an indeterminate sentence following a finding of dangerousness unless it is satisfied by the evidence adduced during the application hearing that there is a reasonable expectation that a determinate sentence (with or without a long-term supervision order) will adequately protect the public against an offender committing murder or a serious personal injury offence. ... [72] I, therefore, start my analysis with the reminder that pursuant to s. 753(4.1), an indeterminate sentence is mandated by the legislation unless I am satisfied by the evidence that the public can be protected by some lesser measure against the commission by this offender of a serious personal injury offence. [ 22 ] To that end, the sentencing judge carefully considered the programming Mr.

Daniels had already received (including his admission that he took some of the programming “to get his release from prison”) and what additional programming and controls may be available in the community, especially since Mr. Daniels is an Aboriginal person. [ 23 ] The sentencing judge concluded his analysis with the following finding at paragraph 78: ...

I am not satisfied that any long-term supervision order which would require that Daniels take maintenance programming after he has completed any sentence I might give him, taken together with the programs which Daniels has already received or would receive during this period of incarceration, would be sufficient to adequately protect the public against him committing a further personal injury offence. By his own admission, Daniels is a pedophile and continues to have “urges”. He cannot control these urges, especially when under the influence of alcohol.

He has committed five sexual offences against children, and I cannot find that there is anything more than a “hope” that further treatment will allow him to control such urges. I therefore find that the appropriate sentence in this case is an indeterminate sentence. [ 24 ] Once again, in my view, there is no merit to Mr. Daniels’ proposed grounds of appeal of the indeterminate sentence. [ 25 ] After careful consideration and weighing of the relevant criteria, I conclude that it is not in the interests of justice to permit an extension of time to appeal. The application to extend the time to appeal is refused.

“Herauf J.A.” Herauf J.A.