R v St. Cyr, 2021 SKCA 169

Court of Appeal for Saskatchewan Docket: CACR3198 Citation: R v St. Cyr , 2021 SKCA 169 Date: 2021-12-28 Between: Joseph Richard St. Cyr Appellant And Her Majesty the Queen Respondent Before: Caldwell, Barrington-Foote and Tholl JJ.A. Disposition: Appeal dismissed Written reasons by: The Honourable Mr. Justice Caldwell In concurrence: The Honourable Mr. Justice Barrington-Foote The Honourable Mr. Justice Tholl On appeal from: 2018 SKQB 295 , Regina Appeal heard: October 21, 2021 Counsel: Christopher Funt for the Appellant Pouria Tabrizi-Reardigan for the Respondent Caldwell J.A. [ 1 ] Joseph Richard St. Cyr has been designated a dangerous offender pursuant to

Part XXIV of the Criminal Code ( R v St. Cyr , 2018 SKQB 295 ). He appeals only against the indeterminate sentence imposed on him pursuant to ss. 753(4) (

a) and (4.1) of the Criminal Code . He does not appeal against his designation as a dangerous offender but nonetheless seeks a new hearing under

Part XXIV on the issues of designation and sentence. [ 2 ] In respect of sentence, Mr. St. Cyr submits that the sentencing judge mis-instructed himself on the law, misapprehended relevant expert evidence and misapplied the law to the facts when assessing his risk of reoffending violently in the community. Mr. St.

Cyr particularly submits that the judge failed to consider whether imposing an “enhanced determinant sentence”—by which I understand him to mean a fixed sentence of 20 years or more imposed pursuant to s. 753(4) (c)—would adequately protect the public from his commission of murder or a serious personal injury offence. All told, Mr. St. Cyr says the alleged errors led the judge to unreasonably conclude that no measure other than an indeterminate sentence would adequately protect the public. He therefore asks this Court to set aside the indeterminate sentence.

I would, however, dismiss his appeal. [ 3 ] Under s. 753(4.1) of the Criminal Code , a sentencing court must impose an indeterminate sentence upon finding an individual to be a dangerous offender unless it is satisfied by the evidence at a

Part XXIV hearing that there is a reasonable expectation that a lesser measure under s. 753(4) (

b) or (

c) will adequately protect the public against the commission by the offender of murder or a serious personal injury offence. This discretion is properly exercised when the sentencing court imposes the least restrictive sentence necessary to protect the public, after a thorough inquiry into the evidence to determine the fittest sentence for the dangerous offender (see R v Boutilier , 2017 SCC 64 , [2017] 2 SCR 936). [ 4 ] In his written decision, the judge reviewed the applicable law, including R v Boutilier , and correctly set out what it required him to consider in the Crown’s

Part XXIV application. The record, including the report and testimony of the psychiatrist who had assessed Mr. St. Cyr for the purposes of that application, fully supports the factual conclusions drawn by the judge. His findings of fact are reasonable. [ 5 ] When applying the facts to the law under the first phase of the application (i.e., when determining whether an offender is a dangerous offender), the judge found beyond a reasonable doubt that: (a) “Mr. St. Cyr has indeed committed a serious personal injury offence” (at para 46); (b) “the requisite pattern of repetitive and of persistent aggressive behavior contemplated by ss. 753(1)(a)(

i) and 753(1)(a)(ii) have both been positively established” (at para 78); (c) “Mr. St. Cyr poses a high likelihood of harmful recidivism” (at para 91); and (d) “Mr. St. Cyr’s violent conduct is intractable” (at para 93). The judge therefore declared Mr. St. Cyr to be a dangerous offender. Mr. St. Cyr has not appealed against the judge’s designation of him as such but, if his appeal against his indeterminate sentence meets with success, he seeks a fresh inquiry into whether he should be designated as a dangerous offender. [ 6 ] Having so designated Mr. St.

Cyr, the judge moved on to consider the fittest sentence for him. Referring to R v Boutilier , the judge acknowledged that “it remains incumbent upon the application judge to consider all relevant sentencing principles when crafting a fit sentence” (at para 96). After revisiting the objectives and principles of sentencing set out under ss. 718 , 718.1 and 718.2 of the Criminal Code and reviewing the relevant evidence, the judge ruled out imposing a determinate sentence of imprisonment pursuant to either s. 753(4) (

b) or (c). Regarding the latter, the Crown had made no submissions on a fit sentence for the predicate offence and the judge rejected Mr. St. Cyr’s submission that a determinate sentence of six to eight years incarceration was fit in the circumstances. He found (at para 128) that “a global term of imprisonment in the range of between ten and twelve years, plus one to two years consecutive for the

use of a firearm” was warranted for the predicate offence, which involved a home invasion robbery during which a restricted firearm was discharged (see R v St. Cyr , 2017 SKQB 279 ). Regarding s. 753(4)(b), the judge stated that he was “unconvinced a significant determinate sentence followed by a long-term supervision order would adequately and effectively serve to reduce the public threat posed by Mr. St. Cyr to an acceptable level” (at para 130). In reaching his conclusions on sentence fitness, the judge made note of the psychiatric assessment of Mr. St. Cyr’s risk of violent recidivism as well as Mr. St.

Cyr’s “history of violent offending and of reoffending in many instances within months of his release, and his antipathy toward and failure to abide by conditions imposed upon him while in the community” (at para 129). [ 7 ] Given his correct statement of the law, his assessment of the relevant evidence, and his methodical approach to the exercise of his discretion under s. 753(4.1), I am persuaded that the judge appropriately considered whether either of the lesser measures under s. 753(4)(

b) or (

c) would adequately protect the public against the commission of murder or a serious personal injury offence by Mr. St. Cyr before he imposed the sentence of indeterminate imprisonment. [ 8 ] As to whether the judge considered imposing an enhanced conventional sentence for the predicate offence under s. 753(4)(c), I first observe that he was not asked to do so and received no submissions in that regard. Second, I am not persuaded that it would be appropriate to impose under s. 753(4)(

c) a sentence that does not comport with s. 718 of the Criminal Code , even if such a sentence would be lawful. I recognise that the Ontario Court of Appeal in R v Spilman , 2018 ONCA 551 at para 51 , was satisfied that, “when imposing a sentence under s. 753(4)(

b) or (c), a hearing judge may impose a fixed-term sentence that exceeds the appropriate range in the non-dangerous offender context”. However, the Court strongly caveated its conclusion by stating such a sentence must nevertheless be lawful, cannot be “entirely disconnected from the circumstances of the offence” (at para 53), and “must be responsive to evidence adduced at the hearing” (at para 54).

I need not decide whether I would adopt this reasoning, as it would not justify such a sentence in this case regardless. [ 9 ] Therefore, on the whole of it, I find the judge, responding to the evidence adduced before him, properly considered whether a proportionate conventional sentence—regardless of its duration—would adequately protect the public and he concluded it would not: [137] To date, Mr. St.

Cyr’s performance while in the community has been abysmal, and aside from his candid admission that he is motivated to avoid spending the rest of his life in custody pursuant to an indeterminate sentence, there is simply no tangible evidence upon which to conclude there is a reasonable expectation [that Mr. St. Cyr] will pose an acceptable risk to the community in the future. [138] In light of all of the evidence, the court is simply not satisfied there is a reasonable expectation that a lesser measure under [ss. 753(4)(

b) or (c)] will adequately protect the public against the commission by Mr. St. Cyr of murder or a serious personal injury offence. [ 10 ] Having regard for the whole of the judge’s decision, I am satisfied that he correctly oriented himself to the requirements of s. 753 and thoroughly inquired into and properly evaluated the evidence before him when determining whether any lesser measure than indeterminate detention would adequately protect the public from the commission by Mr. St. Cyr of murder or a serious personal injury offence.

Given the judge’s findings of fact, the imposition of a sentence of indeterminate detention in this case was reasonable. [ 11 ] I would dismiss this appeal. “Caldwell J.A.” Caldwell J.A. I concur. “Barrington-Foote J.A.” Barrington-Foote J.A. I concur. “Tholl J.A.” Tholl J.A.