| Citation: |
R. v. Leopold |
Date: 20010528 |
|
|
2001 BCCA 396 |
Docket: |
CA027580 |
|
Registry: Vancouver |
COURT OF APPEAL FOR
BRITISH COLUMBIA
|
ORAL REASONS FOR JUDGMENT
|
| Before: |
| The Honourable Mr. Justice
Hollinrake |
May 28, 2001 |
|
| The Honourable Madam Justice
Huddart |
|
|
| The Honourable Mr. Justice Low |
|
|
|
Vancouver, B.C. |
|
|
| BETWEEN: |
|
REGINA |
|
PLAINTIFF
(APPELLANT) |
| AND: |
|
MICHAEL STEPHEN LEOPOLD |
|
DEFENDANT
(RESPONDENT) |
| G.D. McKinnon, Q.C. |
appearing for the Appellant |
| L.J. Mackoff |
appearing for the Respondent |
[1]
HUDDART, J.A.: On 21 July 2000, a Provincial Court judge
refused to designate the respondent a dangerous offender.
Counsel had agreed the provisions of the former s. 753(a)(iii)
of the Criminal
Code governed the Crown’s application. The Crown is
of the view the judge erred by interpreting and applying that
provision too narrowly. In the Crown’s view, the respondent’s
conduct was such as to require a dangerous offender designation
and an indeterminate sentence.
[2] The
case has an unusual history. On 17 September 1996, three days
after a 33-year old prostitute was seriously assaulted, the
respondent surrendered himself into custody. The following day
he was charged with aggravated sexual assault. He remained in
custody until he was released on surety bail on 19 December
1996. His trial was set for 6 October 1997 in Provincial Court.
[3] On
17 July 1997, a forensic psychiatrist, Dr. O’Shaughnessy, saw
the respondent for 90 minutes at the request of his counsel for
the purpose of preparing a pre-sentence psychiatric assessment.
The next day, Dr. O’Shaughnessy advised counsel his client was a
dangerous individual who would, more likely than not, commit
further offences unless he received sufficient treatment.
[4] On
24 September 1997, the respondent pleaded guilty to the included
offence of aggravated assault. In doing so, he anticipated Crown
counsel would seek a sentence of two years less one day and
three years’ probation. However, Crown counsel was not bound if
“something surprising” were revealed in the pre-sentence report
or a psychiatric assessment. Sentencing was adjourned to 18
November 1997 for a Pre-Sentence Report. The respondent’s
counsel opposed a psychiatric assessment.
[5]
When Dr. O’Shaughnessy learned his concerns about the respondent
were not going to be raised at the forthcoming sentence hearing,
he commenced an action in the Supreme Court for a declaration as
to whether he was under a duty to disclose to the authorities
the information the respondent had given him in the July
interview about his dangerous tendencies. Justice Henderson
ordered Dr. O’Shaughnessy to disclose the respondent’s
statements to police and the Crown. He also issued a warrant for
the respondent’s arrest. The respondent again surrendered
himself into custody.
[6] The
Court of Appeal upheld the order of Justice Henderson, replacing
the term requiring Dr. O’Shaughnessy to disclose the information
to Crown counsel and the police with a term permitting him to do
so (Smith v. Jones, 1998, [1999] 8 W.W.R. 394 (B.C.C.A.)).
The Supreme Court of Canada affirmed that order on 25 March 1999
and removed the ban on publication at the same time (Smith
v. Jones
[1999] 1 S.C.R. 455).
[7] To
accommodate Dr. O’Shaughnessy’s proceeding, the sentencing
hearing had been adjourned from time to time on the respondent’s
request. After the release of the reasons of the Supreme Court,
the Crown applied to have the respondent remanded for assessment
under the dangerous offender provisions of the Criminal
Code. The respondent’s request to withdraw his
guilty plea was denied on 11 June 1999.
[8] On
18 June 1999, Crown counsel read into the record the
circumstances of the aggravated assault and indicated that he
would be calling Dr. O’Shaughnessy at a later date to adduce
those portions of Dr. O’Shaughnessy’s interview with the
respondent “touching on his conduct with the complainant during
the assault and what he intended to do with the complainant.”
The next day, the sentencing judge granted the Crown’s request
for a remand for a psychiatric assessment under s. 752.1 of the
Criminal Code.
Dr. Reimer, a psychologist, performed the assessment and
prepared a written report dated 10 September, 1997 and an
addendum to that report dated 22 October 1997.
[9] The
circumstances of the assault were egregious. The respondent
picked the complainant up in his car. She agreed to provide him
with oral sex for $25.00. After she performed oral sex on him in
the back seat of his car, the respondent punched her repeatedly
in the head with his fist. He shoved a rubber ball into her
mouth, but she was able to extract it. After one failed escape
attempt, the complainant managed to slide out from under the
respondent and get out of the vehicle. The respondent followed
her, banged her head on the pavement a number of times, and
again attempted to shove the ball into her mouth. He dragged her
back into the car and attempted to tie her arms behind her back.
The struggle continued for some time, the complainant attempting
to escape, the respondent continuing to beat her, she continuing
to scream for help. People heard the screaming and arrived at
the scene. The respondent got back into his vehicle and drove
off without being apprehended.
[10] The circumstances were such that
only s. 753(a)(iii) of the dangerous offender provision applied.
While the complainant suffered emotional distress, cuts to her
head and face, abrasions to her arms, and the loss of some teeth
sufficient to satisfy the requirement of a “serious personal
injury offence” in s. 753(a), there was no suggestion of sexual
assault during the struggle and beating. Thus, s. 753(b) did not
apply. The respondent’s criminal record does not include any
assault, sexual or otherwise, so neither s. 753(a)(i) or (ii)
were applicable.
[11] The dangerous offender
hearingtook place during three days in July 2000. The Crown
relied on the aggravated assault conviction and the facts
supporting it, Dr. O’Shaughnessy’s testimony about his interview
with the respondent on 17 July 1997, and Dr. Reimer’s Assessment
Report and his testimony. The respondent did not call any
evidence. Psychiatric evidence is admissible under s. 755 of the
Criminal Code,
as is evidence of character and repute under s. 757.
[12] The respondent told Dr.
O’Shaughnessy he had selected the complainant to be his first
victim on a “trial run” to act out a fantasy. While he was
concerned that he might not be able to kill her, he felt that by
then he might have been so deeply involved in fulfilling his
fantasy that he would not have any alternative. To assist in his
plan to carry out his fantasy, the respondent took with him
rope, duct tape, and a small blue ball. He did not wear gloves,
but took other steps to conceal his identity. From the
interview, Dr. O’Shaughnessy concluded the respondent was at the
severe end of the scale of the sexual sadistic. He recommended
to the respondent that he take anti-androgens.
[13] Dr. Reimer gave a similar
history. The respondent told him that he was attempting to
abduct the complainant, that “I was going to take her home . . .
confine her . . . restrain her . . . rape her . . . and if I had
the stomach for it, to kill her.” He also told Dr. Reimer that
he had not accounted for the woman’s resistance. He said that
while he was assaulting her it was “for damage control . . . it
was not like in the fantasy.” The respondent also told Dr.
Reimer that he had previously achieved sexual satisfaction by
hiring a prostitute who agreed that he could put his fist into
her vagina while she performed oral sex upon him. Like Dr.
O’Shaughnessy, Dr. Reimer was of the opinion the respondent
suffered from sexual sadism, but he was of the opinion that
therapeutic treatment ought to be attempted before chemical
treatment and that with treatment the respondent’s risk to women
could be reduced from the high-moderate to high risk to
re-offend in a sexually violent way to the low-moderate range.
[14] The sentencing judge noted the
requirements of s. 753 as they were summarized by Justice La
Forest in R. v. Lyons (1987), 37 C.C.C. (3d) at
para. 43:
First, the legislation applies only to persons convicted of a
“serious personal injury offence” as defined in s. 687. These
offences all relate to conduct tending to cause severe physical
danger or severe psychological injury to other persons.
Significantly, the maximum penalty for all these offences must
be at least ten years’ imprisonment. Secondly, it must be
established to the satisfaction of the court that the offence
for which the person has been convicted is not an isolated
occurrence, but part of a pattern of behaviour which has
involved violence, aggressive or brutal conduct, or a failure to
control sexual impulses. Thirdly, it must be established that
the patter of conduct is very likely to continue and to result
in the kind of suffering against which the section seeks to
protect, namely, conduct endangering the life, safety or
physical well-being of others or, in the case of sexual
offences, conduct causing injury, pain or other evil to other
persons. Also explicit in one form or another in each
subparagraph of s. 687 is the requirement that the court must be
satisfied that the pattern of conduct is substantially or
pathologically intractable. Finally, the court has the
discretion not to designate the offender as dangerous or to
impose an indeterminate sentence, even in circumstances where
all of these criteria are met.
[15] The sentencing judge found that
even with treatment, the respondent’s chances of ceasing to be a
sexual sadist were “doubtful”. However, he explained (at pp. 7
and 8) that
[h]e has, however, been able to deal with that condition in a
lawful manner by utilizing the services of prostitutes who agree
to engage in sexual acts knowing that physical pain would be
inflicted upon them. His conduct may be deplorable but, if it is
done with the consent of the prostitute then it remains conduct
that is consensual, and providing that it is not done contrary
to the provisions of the
Criminal Code,
it is not criminal conduct.
He concluded, at p. 8, that
[while the respondent’s behaviour] will likely remain
unchanged . . . it is not his future sexual behaviour that
governs this application. It is only if the behaviour associated
with the commission of the aggravated assault was of such a
brutal nature that I am compelled to conclude that his future
behaviour is unlikely to be inhibited by normal standards of
restraint, that I could consider declaring Leopold to be a
dangerous offender.
[16] In assessing whether the Crown
had established the brutality threshold, he refused to rely on
the opinions of Drs. O’Shaughnessy and Reimer because they dealt
with the respondent’s future behaviour as a sexual sadist rather
than with the behaviour associated with the commission of the
aggravated assault. At p. 9, he concluded:
... Notwithstanding the severity of the aggravated assault
committed by Leopold, the nature of the brutality he used in
committing it, coupled with all of the evidence of his possible
behaviour in the future is not of such a nature that I ought to
declare him to be a dangerous offender.
Section 753(a)(iii) provided:
Where, on application made under this Part following the
conviction of a person for an offence but before the offender is
sentenced therefor, it is established to the satisfaction of the
court
(a) that the offence for which the offender has been
convicted is a serious personal injury offence described
in paragraph (a) of the definition of that expression in section
752 and the offender constitutes a threat to the life, safety
or physical or mental well-being of other persons on the basis
of evidence establishing
...
(iii) any behavior by the offender, associated with the
offence for which he has been convicted, that is of such a
brutal nature as to compel the conclusion that his behavior in
the future is unlikely to be inhibited by normal standards of
behavioral restraint
the court may find the offender to be a dangerous
offender and may thereupon impose a sentence of detention
in a penitentiary for an indeterminate period, in lieu of any
other sentence that might be imposed for the offence for which
the offender has been convicted.
[emphasis added]
[17] The Crown accepts that its
appeal is limited to a question of law by s. 759(2) of theCriminal
Code. If this Court agrees the sentencing judge
erred in law in his interpretation of these provisions, s.
759(4) permits this Court to
(a) allow the appeal, set aside any sentence imposed in
respect of the offence for which the respondent was convicted
and impose a sentence of detention in a penitentiary for an
indeterminate period, or order a new hearing;
or
(b) dismiss the appeal.
[18] In R. v. Dow
(1999), 134 C.C.C. (3d) 323 (B.C.C.A.) at para. 37, Justice
Lambert outlined the procedure to be followed if this Court
finds an error in law.
I think the correct approach to the question of whether,
having identified the error in law, the Court should make a
finding that the offender is a dangerous offender must lie in
looking at the evidence and any relevant findings of fact by the
trial judge that are not contaminated by the error, and deciding
whether, on the evidence and on those findings of fact, it is
clear beyond a reasonable doubt that the offender met all the
conditions of one of the subparas. of para. 753(a) and was
therefore, under the authority of R.v. Moore, a
dangerous offender. In some cases that clarity will be present.
In others it may not. In those cases where it is not present a
new hearing would be required, as contemplated by s-s.
759(4)(a), in relation to the very first stage of the sentencing
process, namely, deciding whether the offender is a dangerous
offender.
[19] The Crown’s fundamental point on
this appeal is that the sentencing judge ignored Parliament’s
intent that all relevant evidence should be considered by the
fact-finder in determining as part of the sentencing process
whether a person is a dangerous offender. The Crown says the
sentencing judge erred when he found himself bound to consider
only the brutality of the physical acts at the actual time of
the aggravated assault. In the Crown’s view the evidence of the
respondent’s statements to Dr. O’Shaughnessy and Dr. Reimer and
their medical assessment of him explained the brutality of the
offence.
[20] I agree that evidence
established the respondent’s underlying motive and ultimate plan
in committing the aggravated assault was to abduct a prostitute,
confine her, use her as a sexual slave, and, if necessary, to
kill her. The offence was the first step toward the fulfilment
of a fantasy that developed after years of engaging in
consensual “rough sex” with prostitutes where he paid to inflict
pain. Moreover, it established the respondent had taken further
steps toward fulfilling his fantasy: he made his basement into a
dungeon for his sex slave, put a special dead bolt on the door,
told friends he would be away for a week’s camping, and equipped
himself with the duct tape, rope and ball to assist in the
confinement. Finally, it established he was a sexual sadist
whose only sexual drive was deviant and required him to inflict
pain.
[21] Had he considered this evidence
the sentencing judge could not have concluded the respondent’s
past conduct was not of such a brutal nature as to compel the
conclusion his future behaviour is unlikely to be inhibited by
normal standards of restraint. The respondent is a threat to the
safety or well-being of women, even to their life, as the
sentencing judge found in sentencing him to the equivalent of
the maximum sentence of 14 years for aggravated assault.
[22] In his Reasons for Sentence of
25 August 2000, the sentencing judge found the respondent was a
sexual sadist at the severe end of the scale for such a
condition, who would require treatment over a prolonged period
of time before he could be considered for release into the
community and that his sadism was such that women in general and
prostitutes in particular were at risk of being victimized by
him in his pursuit of sexual satisfaction. What made the case
“so extremely serious” was the intent with which he assaulted
the complainant, to carry out a sexual fantasy.
[23] The essential question on this
appeal is whether the sentencing judge could ignore the evidence
of the respondent’s mental condition on which he relied to
impose the determinate sentence of 11 years because it was not
evidence of behaviour associated with the aggravated assault. As
Crown counsel noted in his factum, the crucial issue is whether
a sentencing judge “is restricted to a consideration of the
physical acts of the offence of Aggravated Assault or whether he
can consider the context in which that behavior occurred,
including the mental processes and condition of the offender,”
when he assesses whether the Crown has established the
requirements under s. 753(a)(iii).
[24] The common sense of an ordinary
person would agree with Dr. O’Shaughnessy’s testimony on
cross-examination that thoughts and behaviour are intertwined.
Most who observed or heard described what the respondent was
doing to his victim would question his mental condition. The
respondent’s conduct was not what one would normally associate
with an assault, however aggravated, as the presence of duct
tape and rope and an attempt to put a ball in a woman’s mouth
make only too evident. It was about an assault with a view to
confinement or abduction. Such conduct following upon consensual
paid oral sex calls out for an explanation of the mental
condition of the offender with a view to ascertaining his motive
or purpose in seeking to confine the complainant. The Crown
recognized the peril to others inherent in what the respondent
had done to the complainant when it reserved in the plea
bargaining its right to seek a different sentence at a time when
it was unaware of the statements the respondent had made to Dr.
O’Shaughnessy.
[25] Justice Ryan recognized the
importance of context in assessing past conduct in R. v.
Bakker (1999), 133 C.C.C. (3d) 75, where she wrote, at
para. 55:
...These cases stand for the proposition that past conduct
need not be assessed in a vacuum. Such matters as psychiatric
evidence, social background, and offender’s statements may give
context to, and assist the trial judge in assessing, past
conduct. But it is past conduct, not future events, which
determines dangerousness.
[26] Justice Ryan was considering s.
753(b) of the
Criminal Code. That provision relates specifically
to sexual matters and its wording differs significantly from the
provision with which we are concerned. That fact does not
detract, in my view, from the value of her comments about the
relevance of psychiatric evidence to an assessment of the
behaviour of an offender.
[27] This is the point the sentencing
judge missed. He saw the psychiatric evidence as relevant only
to the respondent’s “future behaviour as a sexual sadist.” Thus,
he excluded it from his assessment of the past conduct.
[28] Counsel were able to provide us
with only two authorities where s. 753(a)(iii) has been
considered and applied. Recently in R. v. Melanson
(2001), 152 C.C.C. (3d) 375, the Ontario Court of Appeal ordered
a new hearing because the trial judge fell into the error of
failing to consider evidence relevant to the dangerousness
enquiry. The ignored evidence was writings of the accused and
the contents of a duffle bag discovered a few weeks after an
attempted murder and aggravated sexual assault. The writings
presaged the offence. The duffel bag contained knives, rope and
black leather string. The trial judge’s failure to consider the
accused’s acts and the medical evidence in the context of these
writings and paraphernalia was held to be reversible error.
[29] At para. 35 and 37, Justice
Carthy addressed the issue the Crown raises in this case:
There is a difference between the approach to sentencing and
arriving at a dangerous offender finding. On sentencing, the
jury’s express and implied factual findings must be taken as a
given. See R. v. Brown (1991), 66
C.C.C. (3d) 1 (S.C.C.). By contrast, the dangerous offender
application is concerned with a broader question of whether, on
all of the facts, a finding of future dangerousness can be
justified. The court is compelled by the Code to hear
from psychiatrists on this issue and they, in turn, form their
opinions using all medically relevant data. This may include the
accused'’ version of events that never reached the jury. A
psychiatrist can offer only a hypothetical opinion if a set of
assumption is dictated in advance. A trial judge is always in a
position to discount an opinion if the premises upon which it is
based appear questionable.
...
... Finally, at the hearing called to determine whether the
appellant was a present danger to others, all three
psychiatrists found the writings and paraphernalia to be of
extreme significance. It would defeat the purpose of the inquiry
to ignore what the psychiatrists in their findings determined to
be the most important evidence, or indicator, of potential
dangerousness.
[30] I am persuaded the sentencing
judge fell into the same error. He ignored extremely significant
evidence when he refused to consider the doctors’ evidence in
assessing the brutality of the respondent’s conduct. As he found
at the subsequent sentencing hearing, that evidence establishes
the mental condition that led the respondent to commit the
offence is intractable, such that he is a danger to women,
especially prostitutes. But the doctors’ evidence is also
relevant to the assessment of the respondent’s past conduct. It
established his preparation for the offence, earlier deviant
behaviour with prostitutes, and increasing difficulty in
managing his impulses. It provided the context for a
consideration of the physical acts themselves, the purpose with
which he perpetrated the assault on his carefully chosen victim
until deterred by her resistance and the response of members of
the public. The respondent’s statements to the doctors establish
the brutality of his offence, that it was based on unrestrained
animal instinct. When his past conduct is viewed in the light
provided by the psychiatric evidence, that conduct compels the
conclusion the respondent’s behaviour in the future is “unlikely
to be inhibited by normal standards of behavioural restraint.”
[31] I would declare the respondent a
dangerous offender, the evidence providing no reason not to do
so, if s. 753 leaves the residual discretion Justice La Forest
suggested in Lyons, supra.
[32] Having reached that conclusion,
I share the view Justice Lambert expressed inR. v. Dow,
supra, that in the circumstances of this offender the
protection of the public from the respondent is better left in
the hands of the National Parole Board through the device of an
indeterminate sentence than in that Board’s hands through the
long determinate sentence.
[33] Given the entrenched nature of
the respondent’s sexual sadism as part of his core values, there
is little prospect he can ever rid himself of this affliction or
fantasies. Dr. O’Shaughnessy testified the only effective
assistance he might receive would be from chemical castration,
an option the respondent declined. Although Dr. Reimer was
optimistic that behavioural therapy could provide some
assistance, he testified that the respondent’s fantasies,
“...will always be a strong contributing factor to his potential
for risk of re-offending,” that the “...possibility of
eradicating these fantasies is virtually non-existent,” and that
his fantasies are “...the one factor that certainly cannot be
monitored without his complete co-operation.” While recognizing
the respondent had shown signs of his willingness to work at
self-monitoring and to learn self-management strategies in order
not to act on his fantasies, Dr. Reimer gave an ominous warning:
The process of self-management will be a lifelong event, and
even giving in to the fantasies once could prove to be
disastrous results with a potential violation and death of a
human.
[34] It was precisely such a prospect
that led Dr. O’Shaughnessy to take the unusual step of seeking a
court order to permit the disclosure to the Crown of what the
respondent told him during a confidential interview. The
respondent is in an unfortunate situation. He has tried in the
past to self-manage his impulses by purchasing “rough sex” with
prostitutes. Self-management failed when it was no longer enough
to thrust his fist into the vagina of a person willing to suffer
pain for money. The fantasy took control of him. Unhappily, I am
persuaded the respondent is one of the unfortunate few from whom
a segment of the public requires protection for the indefinite
future.
[35] The sentencing judge concluded
the public needed protection from the respondent when he
sentenced him to 11 years in prison, at the age of 38. I would
allow the appeal, set aside that sentence, and impose an
indeterminate sentence.
[36] LOW, J.A.: I agree.
[37] HOLLINRAKE, J.A.: The
appeal is allowed. The respondent is found to be a dangerous
offender. The sentence in the Court below is set aside and an
indeterminate sentence is imposed.
____________________________________
The Honourable Madam Justice Huddart
_____________________________________
The Honourable Mr. Justice Hollinrake