DATE: 20010629
DOCKET: C32522
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STANFORD EDWARDS |
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Dirk Derstine, for the |
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Heard: March 7, 2001 |
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On appeal from the sentence imposed by Justice Kenneth A. Langdon, sitting without a jury, dated June 18, 1999
ROSENBERG J.A.:
[1] This Crown appeal concerns the admissibility and use of evidence of other criminal acts in determining the sentence to be imposed upon an accused. The appeal appears to represent a clash between two principles of sentencing. On the one hand, a sentencing court may not punish an offender for other untried offences. On the other hand, this and other appellate courts have held that a sentencing court may take into account evidence of other criminal acts as that evidence may shed light on the background or character of the accused or explain the circumstances of the offence.
[2] The appeal also involves consideration of two other principles of sentencing. The Crown sought to justify imposition of the life sentence in this case on the basis of the so‑called Hill principle (R. v. Hill (1974), 15 C.C.C. (2d) 145 (Ont. C.A.); affirmed, [1977] 1 S.C.R. 827). That principle sanctions the imposition of a life sentence for offenders who have committed a very serious offence and who appear to represent a continuing danger to the community. Finally, this appeal involves the scope of appellate intervention on a Crown appeal in light of the position taken at trial by Crown counsel.
[3] The respondent pleaded guilty to the attempted murder of his common-law spouse. Before the trial judge, the Crown sought to prove a pattern of conduct by the respondent towards this victim and his other partners that would justify imposition of a life sentence. The trial judge ruled most of the evidence inadmissible. The Crown conceded that if it could not establish this pattern of conduct, an appropriate sentence would be ten years' imprisonment less credit for pre-trial custody. The trial judge therefore imposed a sentence of eight years' imprisonment taking into account approximately nine months of pre-trial custody.
[4] For the reasons that follow, I would dismiss this appeal. In summary, I would resolve the issues of principle as follows:
1. Evidence of uncharged and untried offences is admissible for the limited purpose of showing the background and character of the offender.
2. The trial judge has a discretion to refuse to admit evidence of other uncharged and untried offences.
3. Where it would not be disproportionate to the gravity of the offence and the degree of responsibility of the offender, the court may, in application of the Hill principle, impose a life sentence where the offence is part of a pattern of violent behaviour that threatens the physical safety of others.
4. Ordinarily, the pattern of violent behaviour will be demonstrated by convictions. If it cannot be demonstrated in that way, and the Crown seeks an indeterminate sentence, the Crown should generally resort to the dangerous offender provisions of Part XXIV of the Criminal Code.
5. The trial judge in this case did not err in refusing to admit some of the evidence of untried and uncharged offences.
6. The failure to admit the other evidence did not affect the validity of the sentence in view of the Crown’s position at trial.
7. In light of the Crown’s position at trial, the judge did not err in imposing the eight-year sentence and this court should not interfere with the sentence.
THE FACTS
The facts of the attempted murder
[5] The following facts were read into the record on June 14, 1999, following the respondent’s plea of guilty to attempted murder. The victim Glenna Firth was 35 years of age at the time of the plea. She first met the respondent in Edmonton when she was 19 years of age. She and the respondent had one child, Jamal, who was ten years of age at the time of the plea. Ms. Firth had a daughter, Charmaine who was 18 years of age, from another relationship. The relationship between the victim and the respondent was described as “rocky”. It began to seriously deteriorate in August 1998, after Ms. Firth returned from a trip to Jamaica. She resolved to end the relationship with the respondent. He refused to accept this. He became despondent and on August 24, 1998, he attempted to commit suicide by taking an overdose of medication. Charmaine found the respondent and he was taken to the hospital. He was released a few hours later. When he returned to the home, the respondent pleaded with Ms. Firth not to leave him.
[6] The following day, the police were called to the home of Ms. Firth and the respondent because of a verbal argument. The respondent agreed to move out of the house for two months to give Ms. Firth an opportunity to find alternative accommodation. A week later, Ms. Firth brought an ex parte application for a restraining order and for custody of Jamal.
[7] About two weeks later, on September 11, 1998, the respondent returned to the house while Ms. Firth and a friend were planning a birthday party for one of their friends. The respondent eventually left but returned at 6:30 p.m. and took Ms. Firth, Jamal and two of Jamal’s friends to a local restaurant. The respondent behaved strangely. He did not eat and just stared at his food. On the way back from the restaurant, the respondent kept telling Ms. Firth that they had to go to Guelph and that Jamal would be staying at his friend’s house. Ms. Firth did not understand the reference to Guelph. She had no reason to go there.
[8] At the house, Ms. Firth went to the master bedroom to get some things and when she turned around the respondent was in the room. He grabbed her neck, called her a “fucking bitch” and poked at her eyes. Ms. Firth tried to fight him off and told him that she loved him. The respondent continued to choke Ms. Firth until she became unconscious. When she regained consciousness, Ms. Firth realized that she was bleeding. She looked in the mirror and saw that one of her eyes was hanging out of its socket. Eventually, Ms. Firth made her way to a neighbour’s and then to the hospital. Her eye was removed at the hospital. Ms. Firth had also sustained injuries to her neck.
[9] In the meantime, the respondent had left the house. He called a friend and told her that he had killed Ms. Firth by strangling her. He told his friend to call the police. She did so. A few hours later, the respondent approached a police officer and surrendered.
[10] After pleading guilty, the respondent acknowledged that these facts were correct although he claimed that he did not remember all of the events of the evening of the offence. Based on these facts, the trial judge entered a finding of guilt for attempted murder. On consent, the case was remanded to June 18, 1999.
The pre-trial negotiations
[11] It is apparent from the transcript of the proceedings before the trial judge that there had been negotiations between Crown counsel, not Ms. Ficek, and counsel for the respondent. As I understand the arrangement, if the Crown could bring a witness from Jamaica to Canada by June 18, 1999, the Crown would seek to have her evidence admitted. Then, based on that and other evidence, the Crown would argue that a life sentence was warranted because of a “pattern of conduct” on the part of the respondent. The Crown agreed that if it could not prove a “pattern of conduct”, a ten-year sentence less credit for pre-sentence custody was appropriate.
The sentence hearing of June 18, 1999
[12] With considerable effort, the Crown was able to get the Jamaican witness, Rose Powell, to court on June 18th. Counsel for the respondent argued that this evidence was inadmissible. Crown counsel summarized his argument for admission of the evidence in these terms:
The fact [is] that this offence is part of a pattern that the Crown submits warrants a life sentence. The facts themselves in the case, the Court may find amount to an offence of “stark horror”. You have heard the facts of the case and that would be a decision wholly for Your Honour, of course, to decide if that is a valid basis upon which to consider a life sentence.
… in order to prove that [this offence] is not an event that is isolated, … that does form a pattern of conduct of violence, the Crown has to look at the character and background of the accused.
[13] In the course of his submissions, Crown counsel gave the trial judge only a very sketchy indication of the evidence he sought to call. He stated that based on the evidence of Ms. Powell, the respondent’s first spouse, and admissions made by the respondent to Ms. Firth, he could prove that when the respondent’s relationship with Ms. Powell ended, the respondent hired someone to throw acid in her face. This incident occurred about eighteen years earlier in Jamaica. The respondent was never convicted of any offence in relation to that incident.
[14] Crown counsel also made brief reference to the facts underlying previous convictions for assault and threatening for which the respondent received a sentence of two years' imprisonment. Crown counsel told the trial judge that he would prove that the accused attacked the victim of that offence with a fork in an attempt to disfigure her. Crown counsel stated that this too was part of his pattern of trying to disfigure his former partners when his relationship with them ends—a pattern of “if I can’t have you, no one can”.
[15] The trial judge initially ruled only on the admissibility of the evidence concerning Ms. Powell. He held that if evidence is adduced “at the trial” of a pattern of violent or dangerous conduct, it may be taken into account on sentencing. However, the Crown cannot “manufacture” a criminal record at sentencing by leading evidence of untried and contested crimes. The trial judge held that this would deprive the accused of all the procedural safeguards of a trial, “especially where the collateral crime is committed in a foreign country, an accused would be at a substantial disadvantage of finding or calling evidence to defend himself”. The trial judge also said that the danger exists of deflecting the court’s attention from the sentencing issues and creating the undesirable situation of embarking on a trial within a trial. Finally, the trial judge asked, “Is not the accused entitled to a jury’s verdict before it can later be said of him, in aggravation of sentence, that he has earlier committed a serious indictable offence or a serious indictable offence that formed part of a pattern extending back eighteen years? Is this court to deprive an accused of a defence he may have in the foreign country?”
[16] In the result, the trial judge ruled that the evidence was inadmissible. Crown counsel then sought to call Ms. Powell on a voir dire to preserve her evidence for use at a possible appeal. It seemed that Ms. Powell was a reluctant witness and counsel was concerned that he would not be able to secure her attendance in Canada in the future. The trial judge refused to permit this procedure. He did, however, permit Crown counsel to file a videotape of a statement Ms. Powell had given to the police the night before. This statement was taken under oath and after Ms. Powell was warned of the consequences of giving a false statement. Following the trial, the police prepared a transcript of this statement, which was filed in this court.
[17] After the ruling concerning Ms. Powell, the Crown sought to call Ms. Firth to testify about the conduct of the respondent towards her during their fifteen-year relationship. Crown counsel gave very little indication of the contents of this proposed evidence. He simply stated that some of this conduct had led to charges but the charges had been withdrawn. Crown counsel seemed to concede that the trial judge’s ruling on Ms. Powell’s allegations might apply to this evidence. The trial judge ruled the evidence inadmissible. He stated that there was an additional reason for rejecting the evidence. He stated that one of the chief benefits of entering a plea of guilty is that “the facts are read before the Court and a great deal of evidence that might technically be admissible in a contested trial, a great deal of that evidence is simply not put in. It might well have been relevant at this trial to demonstrate the accused person had engaged in a pattern of violent or controlling conduct towards this individual, with a view to proving the motive for murder.” However, since the respondent had pleaded guilty to attempted murder the issue was moot. Thus, the proposed evidence was simply prior conduct involving untried and contested crimes. Again, the trial judge did permit the Crown to file a videotape and transcript of a statement Ms. Firth had given to police describing this conduct.
[18] Crown counsel filed documents relating to the respondent’s conviction in 1986 for assault and uttering threats. The victim was Veronica Johnson, the respondent’s second spouse. The material filed by the Crown indicated that the respondent had attacked Ms. Johnson in the face with a fork. Three months later, while on judicial interim release, the respondent made a death threat to Ms. Johnson. The respondent received a sentence of two years' imprisonment and three years' probation. This material seems to have been admitted without objection.
[19] Crown counsel also filed transcripts of tape recordings of telephone conversations between the respondent and Ms. Firth and the respondent and the friend he called after the attack on Ms. Firth. It seems that the respondent had made these recordings and no objection was taken to their admissibility.
[20] Crown counsel filed a victim impact statement from Ms. Firth. She described the fear and depression she experienced as a result of the attack and the loss of her eye. She also described her concern for the future and the counseling she and her son required to deal with the impact of the offence.
[21] After the various evidentiary rulings, Crown counsel conceded that without the excluded evidence, he could not establish a basis for a life sentence. He repeated that the appropriate sentence was ten years less credit for pre-sentence custody. In light of the Crown’s position, defence counsel stated he would not be calling any evidence. He provided very brief information about the respondent. The respondent was born in Jamaica in 1955. His mother is still alive and lives in the United States. He has four siblings. Two brothers live in Alberta. Two sisters live in the United States. They are all of good character. The respondent came to Canada in 1977 and lived in Alberta. He studied metallurgy and then trained as a welder. He had held full-time employment as a welder since then. He moved to Ontario in 1986. Defence counsel suggested that the mitigating circumstances were that the respondent had turned himself in to the police, never denied committing the offence, waived the preliminary inquiry and pleaded guilty. Defence counsel submitted that taking into account the pre-sentence custody, the appropriate sentence would be eight years.
[22] The trial judge gave very brief reasons for sentence explaining why he acceded to the submissions of both counsel. He stated that while the offence “could easily be classified as a crime of ‘stark horror’ attracting a maximum punishment”, the lesser punishment was justified in light of the fact that the respondent turned himself in to the police, waived the preliminary inquiry and most importantly did not require Ms. Firth to relive the attack by having to testify at trial. All this showed that the respondent was not without conscience and was remorseful. The trial judge therefore imposed the sentence of eight years' imprisonment and made a lifetime weapons prohibition order.
Rose Powell’s statement
[23] Ms. Powell began a relationship with the respondent in Jamaica in 1976, when she was sixteen years of age. She described five violent incidents over the course of the relationship, ending in August 1980. They may be summarized as follows:
(i) About a year after the relationship began, the respondent slapped Ms. Powell in the face. She could not remember the reason for this assault.
(ii) On another occasion, she was joking with the respondent and for no reason the respondent took a piece of broken glass and cut Ms. Powell on the bicep.
(iii) On another occasion, Ms. Powell went into the countryside and when she came back the respondent accused her of going to look for a man. The respondent then beat her up so badly that he nearly killed her. This attack left a scar on her face.
(iv) In the summer of 1980, the respondent returned to Jamaica from Canada. He took Ms. Powell to a movie and then they went to the guesthouse to sleep. When Ms. Powell returned from the bathroom, the respondent had a gun, which he pointed at her head. Ms. Powell ran away and the police later recovered the gun. Ms. Powell believed the respondent wanted to kill her because he was jealous that she was seeing another man. However, they reconciled and the respondent returned to Canada.
(v) About three weeks later in August 1980, the respondent returned to Jamaica and visited Ms. Powell at her mother’s house. He was looking around her room and saw the name of a man on a piece of paper. The respondent asked her whether she was seeing another man. He said he was going to return to Canada on August 25th. On that day, three men and a woman came to her mother’s home and asked for “Rose” and mentioned the man whose name had been on the piece of paper. The woman then threw acid at Ms. Powell’s face. Ms. Powell suffered burns to her face and shoulder and required skin grafts. She was in hospital for about a month.
[24] It seems that no charges were laid in connection with any of these events. In any event, the respondent was not convicted of any offences involving Ms. Powell.
Glenna Firth’s statement
[25] Ms. Firth met the respondent in Edmonton when she was nineteen. At the time, the respondent was married and when this woman found out about the relationship she left the respondent. He then came to live with Ms. Firth and her daughter. About a month after the relationship began, the respondent tried to burn her with an iron. Ms. Firth escaped and arranged to move out. When she returned for her clothes, she found that they had been cut up. She called the police and charges were laid. However, she reconciled with the respondent and the charges were withdrawn when she did not attend court.
[26] In 1984, Ms. Firth moved to Toronto to join the respondent. The respondent became jealous of Ms. Firth’s relationship with her sister and he took away her clothes and left her naked and locked in her room. She eventually was able to get out of the room and call her sister. She stayed at a hotel for about a week and then they reconciled.
[27] After the respondent was released on parole on the sentence for assaulting Ms. Johnson, he and Ms. Firth resumed their relationship and Jamal was born. Some time later, Ms. Firth found out that the respondent was having an affair. She confronted him and he slapped her. This was about five years prior to the attempted murder. She decided that their relationship was over and she tried to end it. She attempted to get help from a friend, Leroy, and when the respondent learned of his identity he made threatening telephone calls to him.
[28] In 1993, the respondent moved back to Edmonton. He then returned to Toronto and convinced Ms. Firth to come back with him to Edmonton. After staying with him for six months, Ms. Firth returned to Ontario. She described the respondent as obsessed with her and she was afraid. In 1994, there was another encounter with the respondent when he hit her in the head and threatened to shoot her. She managed to escape and go to a police station. The police laid charges but they were withdrawn when she and the respondent reconciled and she failed to appear in court.
[29] In 1996, Ms. Firth left the respondent again. In March 1997 there was another incident. The respondent had come to her place and demanded that they have sex. She refused and the respondent hit her. The respondent was charged with assault. He was released on bail and they again reconciled and moved back together. She did not attend court and the assault charge was withdrawn. This was the last incident before the events leading to the attempted murder charge.
ANALYSIS
[30] As I indicated above, this appeal first requires the court to reconcile two principles of sentencing:
(i) A sentencing court may not punish an offender for other untried offences.
(ii) A sentencing court may take into account evidence that sheds light on the background or character of the accused or explains the circumstances of the offence.
[31] Put another way, in what circumstances can a sentencing court admit and rely upon evidence of untried offences? And, more particularly in this case, in what circumstances may a sentencing court admit evidence of untried offences to demonstrate a pattern of violent behaviour so as to justify a life sentence on the Hill principle. I intend to approach these issues by considering the applicable statutory provisions and the case law concerning use of untried offences at sentencing generally. I will then explain how, in my view, those legal principles should apply to the special problem of the Hill principle.
Statutory provisions
(i) Sentencing for untried offences
[32] There are several provisions of the Criminal Code that govern the sentencing of an offender for untried offences. Section 6 sets out in statutory form the fundamental principle of our criminal justice system—the presumption of innocence. Generally speaking, our system knows of only one way to overcome the presumption of innocence. A charge must be laid and the accused found guilty either by a plea of guilty or by the adducing of evidence meeting the standard of proof beyond a reasonable doubt. This principle has, of course, obtained constitutional protection in s. 11(d) of the Canadian Charter of Rights and Freedoms.
[33] There are nevertheless certain statutory provisions that contemplate the use of untried offences at the sentencing stage. Those provisions also set the limits on the use of such evidence and contain important safeguards for the offender. The most important is s. 725. Because of its importance to resolve the issues in this case I have set the section out in full:
725. (1) In determining the sentence, a court
(a) shall consider, if it is possible and appropriate to do so, any other offences of which the offender was found guilty by the same court, and shall determine the sentence to be imposed for each of those offences;
(b) shall consider, if the Attorney General and the offender consent, any outstanding charges against the offender to which the offender consents to plead guilty and pleads guilty, if the court has jurisdiction to try those charges, and shall determine the sentence to be imposed for each charge unless the court is of the opinion that a separate prosecution for the other offence is necessary in the public interest;
(b.1) shall consider any outstanding charges against the offender, unless the court is of the opinion that a separate prosecution for one or more of the other offences is necessary in the public interest, subject to the following conditions:
(i) the Attorney General and the offender consent,
(ii) the court has jurisdiction to try each charge,
(iii) each charge has been described in open court,
(iv) the offender has agreed with the facts asserted in the description of each charge, and
(v) the offender has acknowledged having committed the offence described in each charge; and
(c) may consider any facts forming part of the circumstances of the offence that could constitute the basis for a separate charge. [Emphasis added.]
(1.1) For the purpose of paragraphs (1)(b) and (b.1), the Attorney General shall take the public interest into account before consenting.
(2) The court shall, on the information or indictment, note
(a) any outstanding charges considered in determining the sentence under paragraph (1)(b.1), and
(b) any facts considered in determining the sentence under paragraph (1)(c),
and no further proceedings may be taken with respect to any offence described in those charges or disclosed by those facts unless the conviction for the offence of which the offender has been found guilty is set aside or quashed on appeal. [Emphasis added.]
[34] The parts of s. 725 that are of particular relevance in this case are paragraphs (1)(b.1), (c) and subsection (2). In summary, paras. (1)(b.1) and (2) allow a sentencing court to take into account outstanding charges only if, among other things, the offender has agreed with the facts asserted by the prosecution and admitted his or her guilt in relation to those offences. This part of s. 725 is consistent with the principle of the presumption of innocence, since the court may only take these facts into consideration in imposing a sentence for the predicate offence if a charge exists and the accused admits liability. Further, if this procedure has been followed, the offender is protected from double jeopardy because those offences are noted on the information and no other proceedings may be taken in relation to such offences, unless the conviction for the predicate offence is set aside. This part of s. 725 was not invoked in this case.
[35] Section 725(1)(c) gives the court a discretion to take into account conduct that is part of the circumstances of the offence, even though that conduct could form the basis of a separate charge. This provision recognizes the common-sense proposition that conduct does not always fit neatly into the offences as described in the Criminal Code. It encourages the prosecution to lay only those charges that most nearly describe the conduct. The offender is protected from double jeopardy because no further proceedings may be taken with respect to any offence disclosed by those facts unless the conviction for the predicate offence is set aside. Unlike the para. (1)(b.1) procedure, the offender’s consent or admission of liability is not required to invoke this procedure. However, the occasions on which this procedure may be invoked are carefully circumscribed by the requirement that the facts form part of the circumstances of the predicate offence. To take a simple example, in sentencing an offender for dangerous driving causing death, the court may take into account as an aggravating factor that at the time of the offence the offender’s blood alcohol level exceeded .08. R. v. Gourgon (1981), 58 C.C.C. (2d) 193 (B.C.C.A.) provides an example of application of this principle. In that case, in setting the period of parole ineligibility for murder, the trial judge took into account a number of circumstances including the stabbing, during the confinement and murder of the victim, of two other occupants of the home. As the court said at p. 201:
It would be a very limited, and indeed questionable, consideration that ignored anything material that had happened. The nature of the murder would be meaningless without a consideration of all that happened at the time and place immediately prior to and following the crime. It is all part of the res gestae. It is true that normally on sentencing other offences on which there have been no convictions are not considered, but that is an entirely different situation from the Judge not considering everything that happened at the scene and time when he was reviewing, as he must, the nature and circumstances surrounding the murder for which he was imposing sentence. Whether they constituted other possible charges or offences, was immaterial. [Emphasis added.]
[36] This provision was not invoked in this case and, in any event, it had no application. In my view, even Ms. Firth’s description of her relationship with the respondent in the years prior to the attempted murder did not form part of the circumstances of that offence in the sense contemplated by para. (1)(c). Those incidents were not, to use the language from Gourgon, part of the res gestae.
[37] The other provisions of the Criminal Code that explicitly deal with the use of evidence of untried offences are found in Part XXIV dealing with dangerous and long-term offenders. For example, a basis for finding that an offender is a dangerous offender includes evidence showing a “pattern of repetitive behaviour by the offender, of which the [predicate offence] forms a part”. The special procedure in that Part was not invoked in this case. Moreover, even where the court is asked to find the accused to be a dangerous offender and to impose a sentence of indeterminate detention, that designation and sentence are imposed for the predicate offence, not the previous untried offences. The Supreme Court has held that otherwise the procedure would violate s. 7 of the Canadian Charter of Rights and Freedoms: R. v. Lyons (1987), 37 C.C.C. (3d) 1 (S.C.C.) at 21-2.
[38] To summarize, it is only in special circumstances, as set out in s. 725, that a court may punish or sentence an offender for untried offences. Those provisions were not invoked in this case.
(ii) Use of character evidence on sentencing
[39] There are statutory provisions that do permit the use of evidence about the offender, even though that evidence also discloses the commission of other crimes. First, s. 718(c) and (d) of the Criminal Code set out as two of the objectives of sentencing:
(c) to separate offenders from society, where necessary;
(d) to assist in rehabilitating offenders
[40] Neither of these objectives can be fairly achieved through sentencing without knowing something, and perhaps quite a bit, about the background and character of the offender. The Crown, in this case, in effect put its case for admission of this evidence on the need to separate this respondent from society.
[41] The procedural provisions of the Criminal Code sentencing regime support the admission and use of evidence about the offender’s background and character. For example, under s. 721, unless otherwise ordered, a pre-sentence report “must, wherever possible” contain information of the offender’s “character, behaviour, attitude and willingness to make amends”, and the history of previous findings of guilt. Section 723 provides that the court “shall” hear any relevant evidence presented by the prosecutor or the offender. It seems to me that this must include evidence relevant to the offender’s character or behaviour and that the admission of such evidence cannot be dependent upon its being placed in a pre-sentence report. Under s. 724, where there is a dispute about any aggravating fact that is relevant to the determination of a sentence, the prosecutor must establish the fact by proof beyond a reasonable doubt.
[42] Section 743.6, which permits a court to set a minimum period of parole ineligibility, also supports admission of evidence about the offender’s character. Under that section, the court is directed to have regard to the “character and circumstances of the offender”. That section was not invoked in this case.
[43] There is a very important limit on the use of evidence of the offender’s character or background. In addition to the limitation implicit in s. 725 that prohibits punishing an offender for untried offences, s. 718.1 sets out the fundamental principle of proportionality in sentencing:
718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [Emphasis added.]
[44] Below, I will consider how that section applies in this case. I simply point out at this juncture that “the offence” referred to must be the offence of which the respondent was convicted, not the various other offences allegedly committed against Ms. Firth and Ms. Powell. Similarly, it seems to me that the “degree of responsibility of the offender” must mean responsibility for “the offence”, not some other untried offences, absent resort to s. 725. I will turn now to the case law concerning the use of evidence of untried offences at the sentencing stage.
The case law on use of evidence of untried offences
[45] Most of the decisions to which we were referred on this issue were made prior to the enactment of the present sentencing regime. Nevertheless, they may be of assistance in resolving this issue because the principles outlined in the statutory provisions have largely been part of the common law of sentencing in this country. For example, parts of s. 725 codify, to a certain extent, the procedure set out in R. v. Garcia and Silva, [1970] 3 C.C.C. 124 (Ont. C.A.), for taking other charges into account.
(i) Cases supporting admissibility of evidence of untried offences
[46] Consistent with the statutory provisions that I have set out above dealing with the pre-sentence report and admission of evidence, the courts have recognized that a sentencing judge has a broad discretion concerning the admission of evidence at a sentence hearing. As Dickson J. said in R. v. Gardiner (1982), 68 C.C.C. (2d) 477 (S.C.C.) at 513-14:
One of the hardest tasks confronting a trial judge is sentencing. The stakes are high for society and for the individual. Sentencing is the critical stage of the criminal justice system, and it is manifest that the judge should not be denied an opportunity to obtain relevant information by the imposition of all the restrictive evidential rules common to a trial. Yet the obtaining and weighing of such evidence should be fair. A substantial liberty interest of the offender is involved and the information obtained should be accurate and reliable.
…The judge traditionally has had wide latitude as to the sources and types of evidence upon which to base his sentence. He must have the fullest possible information concerning the background of the accused if he is to fit the sentence to the offender rather than to the crime. [Emphasis added.]
[47] In R. v. Jones (1994), 89 C.C.C. (3d) 353 (S.C.C.) at 398, a case dealing with admissibility of evidence on a dangerous-offender application, Gonthier J. spoke about sentencing generally and reiterated the need for the judge to have at his or her disposal “the broadest possible range of information”. He noted that the sentencing stage places “a stronger emphasis on societal interests and more narrowly defines the procedural protection accorded to the offender”.
[48] The Crown particularly relies upon the decision of this court in R. v. Roud and Roud (1981), 58 C.C.C. (2d) 226. Mr. and Mrs. Roud were tried and convicted of attempted murder. The victim of the offence was one of their sons. At trial, the Crown led evidence of other acts of abuse, especially by Mr. Roud, against the victim and the other children of the marriage. This evidence was admitted as similar fact evidence being relevant to intent. At sentencing, the prosecution led further evidence of abuse by Mr. Roud against the victim and evidence of abuse by Mr. Roud against his son from a previous relationship. This evidence concerned events that had taken place at least fifteen years earlier. Trial counsel did not object to the admission of any of this evidence. The trial judge imposed a sentence of fifteen years' imprisonment.
[49] On appeal, it was argued that the trial judge erred in taking this evidence into account in determining the sentence. A fair reading of the reasons of Brooke J.A. speaking for the court at p. 242 indicates that all the evidence, including the evidence of the fifteen-year-old events, was admissible:
Nothing could be more prejudicial to an accused on the issue of sentence than evidence which tends to be general and perhaps more so if examples are injected in the general setting. How can a convicted man defend himself from what is said in such circumstances? Yet in such a case as this one on the issue of sentence, where the question of individual deterrence and rehabilitation of the convicted man are central issues along with the question of the protection of the public, it seems logical that such evidence must be dealt with, for the background and character of the accused man are necessary information for the sentencing Court. The accused must be given every opportunity to cross-examine and to call whatever evidence he chooses.
In my respectful view, the evidence was relevant and admissible and I do not think the learned trial Judge erred in the use he made of it. He did not, as he must not do, punish the appellant for past acts, but on the other hand I think he properly sought to understand the appellant in determining the quantum of sentence appropriate for the offence of which he had been convicted by the jury He had a duty to the public, and he had a duty to the appellant. I do not see how he could have discharged either without fairly complete information as to the appellant, his background and his character. [Emphasis added.]
[50] As to the use that the trial judge made of the evidence, at pp. 240-41 Brooke J.A. quoted the following passage from the reasons:
This is a tragic and horrible case involving a course of separate and joint acts of abuse and mistreatment of one’s own child with elements of brutality in which you, Mr. Roud, were the prime mover and played a more serious role and you, Mrs. Roud, a lesser role, but an active participant, which conduct culminated in the shooting of Gary with very serious injuries being inflicted on this helpless, defenseless child.
Society has a special responsibility for children and others who are unable fully to look after themselves and those who take advantage of such a person unable to protect themselves are particularly vicious.
This is about as grave and ugly an offence as one could see, a senseless, brutal attack by parents upon their own innocent child, in their own home, who did nothing to provoke in any way such vicious conduct; unable to remove himself from such an environment; unable to protect himself. The Court must take adequate measures to show that this is the sort of crime which society looks upon with horror, and also to do justice. [Emphasis added.]
[51] As indicated in the passage previously quoted, Brooke J.A. held that the trial judge did not misuse the evidence. It seems to me that the primary thrust of the evidence, at least as it related to the contemporaneous acts of abuse, was to show the relative blameworthiness of the two accused and that the act of attempted murder was not an isolated event but part of a course of conduct of abuse. However, it is also relatively clear that in the end the trial judge focused on the circumstances of the particular act, which he described as a senseless, brutal unprovoked attack on a vulnerable child. It is not clear from the reasons of this court what, if any, use the trial judge made of the fifteen‑year-old allegations.
[52] Roud is obviously a very important case in this area. However, I wish to make very brief reference to some of the other decisions. An application of the Roud principle in circumstances similar to this case can be found in R. v. Inwood (1989), 48 C.C.C. (3d) 173 (Ont. C.A.) where on the sentencing of the accused for assault on his wife and infant son, the Crown was permitted to lead evidence of the accused’s abusive relationship with five other women over a seven-year period. Speaking for the court at p. 179, Howland C.J.O. held that the trial judge had made proper use of the evidence: “The trial judge clearly recognized that Inwood could not be given a greater sentence because of any acts of abuse against any of these women as he had not been charged or convicted in respect of such acts. These incidents were simply evidence of his abusive character toward women. He could only be sentenced for the actual assaults committed on [his wife] and [his son].”
[53] In Lees v. The Queen (1979), 46 C.C.C. (2d) 385 (S.C.C.), the offender had pleaded guilty to robbery. At sentencing, he led expert and other evidence to show that he was not violent, was of good character and was unlikely to commit further offences. In response, the Crown adduced evidence that when the accused had been arrested, a year after the robbery, he was in possession of paraphernalia for use in a further robbery and had stated that he was intending to commit a further robbery because the money from the first one was running out. The court held, at p. 389, that this evidence was properly admitted on the issue of the offender’s “character, conduct and attitude, all proper factors to be taken into consideration on sentencing”. It was particularly relevant in light of the expert evidence of good character introduced by the offender. The court was satisfied that the trial judge had not placed undue reliance upon the evidence. It is implicit that the Supreme Court was satisfied that the trial judge had not increased the sentence because of uncharged or unproved offences.
[54] Lees was applied by the British Columbia Court of Appeal in R. v. Jordan (1991), 69 C.C.C. (3d) 356 where it was held that in imposing sentence for manslaughter, the trial judge was entitled to take into account similar fact evidence led by the Crown at the trial. This evidence concerned the offender’s conduct with six other women. The court said this, at p. 363:
Of course, if the similar fact evidence was evidence of conduct which had not led to a conviction, it should not be treated as if it had. It is evidence of character, not evidence of a criminal past.
(ii) Cases casting doubt on the admissibility of evidence of untried offences
[55] A line of authority that at first blush seems to be inconsistent with Roud, Lees and Jordan and that the trial judge seems to have applied in this case is founded upon the following statement in Nadin-Davis, Sentencing in Canada (1982), vol. 1, p. 196:
The general rule, well established by precedent, is that the court must always exclude evidence of controverted, untried charges from adjudication upon sentence for a particular offence.
[56] If this statement means that evidence of prior conduct that sheds light on the offender’s character or the circumstances of the offence can never be adduced on sentencing when the facts are contested or have not led to a conviction then, in my view, it goes too far. At the very least, it would seem inconsistent with the decisions of the Supreme Court in Lees and, probably, Jones.
[57] One of the cases to refer to Nadin-Davis is R. v. Pelletier (1989), 52 C.C.C. (3d) 340 (Que. C.A.). LeBel J.A., speaking for the court, referred to Nadin-Davis and then said this, at p. 346:
While the accused’s character may be shown, and his previous criminal record established, the sentencing process must not become the occasion for indirectly punishing the accused for offences which have not been established by the normal means of proof and procedure, or that one did not wish to bring.
[58] In Pelletier, a police officer testified about various uncharged offences allegedly committed by the accused. LeBel J.A. held that this evidence was inadmissible. He also referred, apparently with approval, to a decision of the Newfoundland Court of Appeal in R. v. J.C.L. (1987), 36 C.C.C. (3d) 32. In that case, the accused had pleaded guilty to a single act of sexual assault of his stepdaughter. However, on sentencing the Crown adduced evidence from the victim and other family members designed to show that the accused had repeatedly sexually assaulted the victim. O’Neill J.A. held that the evidence should not have been admitted. He discussed at length the various cases bearing on this issue and he was critical of the course taken by this court in Roud. Thus, after referring to the passage from Roud that I have quoted above, O’Neill J.A. said at p. 41 that the objectives of individual deterrence and rehabilitation cannot be used as “a justification to introduce evidence which is otherwise improper”.
[59] In argument and in the factums we were referred to a number of other cases. However, I do not think it necessary to review them further other than to say that there are a number of authorities in Canada and England tending to favour the position of LeBel J.A. in Pelletier and casting doubt on the admissibility and use of evidence of untried offences to show the offender’s character and background.
[60] I will now attempt to summarize what I understand the law to be in this province, bearing in mind, of course, that Roud is a decision of this court.
Summary on the use of evidence of untried offences
[61] Notwithstanding this court’s decision in Roud, the starting point for determining the admissibility and use of evidence of untried offences must be the Criminal Code. When Roud was decided, the Code provisions reviewed above had not been enacted. To the extent that some of the language in Roud may appear inconsistent with the Criminal Code, the Code must prevail. However, I think it is possible to reconcile the Code provisions with the earlier decisions in Roud, Lees, Jones and many of the other decisions.
[62] As is the case with evidence generally, admissibility depends upon the purpose for which the evidence is adduced. In this case, the Crown was not entitled to lead the evidence of Ms. Powell and Ms. Firth for the purpose of increasing the punishment that would otherwise be appropriate for the offence of attempted murder. To do so would offend the provisions of ss. 718.1 (proportionality) and 725 (taking other offences into account). The prosecution was also not entitled to lead this evidence to attempt to extract some punishment for those untried and uncharged offences. That would offend the presumption of innocence and s. 725. It is no answer to say that the Crown should be able to use the evidence for those purposes if it proves the conduct beyond a reasonable doubt. Such reasoning undermines the basic tenet of our system that, absent compliance with s. 725, an offender can only be sentenced for crimes that have been properly charged and proved at a trial of those offences.
[63] In my view, evidence that discloses the commission by the offender of other untried offences is admissible for the purpose of showing the offender’s background and character as that background and character may be relevant to the objectives of sentencing. That being said, the trial judge must have a discretion to refuse to admit the evidence where necessary to ensure that the accused has a fair hearing.
[64] I would suggest that in deciding whether to exclude evidence that discloses untried offences the trial judge, in addition to considering the proposed use of the evidence, might consider some of the following:
(i) the nexus between the evidence and the offence for which the offender was convicted—the closer the connection the more likely the evidence will shed light on the circumstances of the charged offence;
(ii) the similarity between the evidence and the offence for which the offender was convicted;
(iii) the difficulty the offender may encounter in properly defending against the allegations in the proposed evidence;
(iv) the danger that the sentence hearing will be unduly prolonged;
(v) the danger that the focus of the sentence hearing will appear to be diverted from the true purpose of imposing a fit sentence for the charged offence that is proportionate to the gravity of the offence and the degree of responsibility of the offender in accordance with s. 718.1;
(vi) whether, as in Lees, the offender has adduced evidence of good character; and
(vii) the cogency of the proposed evidence.
[65] This is not intended to be an exhaustive list and, as different cases present themselves involving different issues, no doubt other factors will have to be taken into account. Before applying these factors to this case, I will consider the proposed use of the evidence of untried offences. This depends, in part, on application of the Hill principle and I will turn to that question now.
The use of the evidence: The Hill principle
[66] The proper use of the proposed evidence from Ms. Powell and Ms. Firth was to show the character and background of the respondent and the circumstances of the offence. The respondent’s character and background were of particular importance in considering the sentencing objectives of rehabilitation and the need to separate the respondent from society. The Crown submits that the sentence of life imprisonment is required because of the evidence of the respondent’s background. This submission is based on the decisions of this court grounded on the principle in R. v. Hill, supra.
[67] In R. v. Hill, this court imposed a sentence of life imprisonment on an offender who had pleaded guilty to rape and wounding. The facts of the offences were horrific. The offender broke into a home, raped the 14-year-old victim, beat her with his fists and then repeatedly stabbed her in the face, eyes and throat until the knife broke. The offender had no relevant criminal record. Extensive psychiatric evidence was led at sentencing and indicated that the 26-year-old offender suffered from a personality disorder and would represent a continuing danger to the public for a very long time (at least until some time in his fifties when he might start to burn out). There was some suggestion in the evidence that alcohol was a trigger for the violent behaviour and that if the offender could overcome his problem of alcohol abuse it would be safe to release him somewhat earlier. Speaking for the court at pp. 147-48, Jessup J.A. explained the rationale for imposing a life sentence in these circumstances:
When an accused has been convicted of a serious crime in itself calling for a substantial sentence and when he suffers from some mental or personality disorder rendering him a danger to the community but not subjecting him to confinement in a mental institution and when it is uncertain when, if ever, the accused will be cured of his affliction, in my opinion the appropriate sentence is one of life. Such a sentence, in such circumstances, amounts to an indefinite sentence under which the parole board can release him to the community when it is satisfied, upon adequate psychiatric examination, it is in the interest of the accused and of the community for him to return to society. [Emphasis added.]
[68] The accused appealed to the Supreme Court of Canada. The issue on that appeal was whether the Court of Appeal had jurisdiction to increase a sentence on an appeal by the accused, in the absence of a Crown appeal. (Hill had originally received a sentence of twelve years' imprisonment.) A majority of the Court held that the Court of Appeal had the jurisdiction to do so in certain circumstances. In the course of giving his reasons, Ritchie J. said the following at p. 859:
The deterrent effect which the sentence may have on others and to some extent the standards which have been established in other cases of a like kind, are also relevant and in the present case the stark horror of the crime itself would of necessity be compelling consideration. [Emphasis added.]
[69] In subsequent decisions, this particular application of the Hill principle has often been characterized as involving cases of “stark horror”. See, for example, R. v. Mesgun (1997), 121 C.C.C. (3d) 439 (Ont. C.A.), R. v. Simpson (No. 3) (1981), 58 C.C.C. (2d) 308 (Ont. C.A.), R. v. Horvath (1982), 2 C.C.C. (3d) 196 (Ont. C.A.), R. v. Everingham, [1976] O.J. No. 634 (C.A.), and R. v. Marwick, [1977] O.J. No. 611 (C.A.). The dominant feature in these cases is the horrific nature of the very offence for which the accused is being sentenced. Often, there is also some expert evidence demonstrating that the offender suffers from a mental disorder that shows he or she represents a continuing danger to the public and that there is little likelihood of successful treatment during the course of a fixed sentence. In these cases, the life sentence is justified on the theory that the parole board will be in the best position to decide when to release the very dangerous offender who is capable of inflicting the gravest type of harm and where at the time of sentencing the possibility of successful rehabilitation is at least uncertain and at best lies many years in the future.
[70] While the circumstances of the attempted murder in this case are very serious, the Crown did not press the case as being one within the stark-horror branch of the Hill principle. At this point in the process, I would not disagree with that position. I also consider that the absence of expert evidence as to the prognosis of successful rehabilitation of the respondent tells against the imposition of a life sentence on the “stark horror” principle. See R. v. Hatton (1978), 39 C.C.C. (2d) 281 (Ont. C.A.) at 302-04.
[71] The second type of case where a life sentence has been justified on the Hill principle can be described as the pattern-of-violent-behaviour case. Such cases involve the repeated commission of crimes of very serious violence that do not, however, reach the level of stark horror. There is often expert evidence about the offender’s continued dangerousness, but the repeated commission of these very serious crimes itself will often provide the court with the information necessary to find that the offender represents a continuing danger. See R. v. J.E.A., [1999] B.C.J. No. 1661 (C.A.) at para. 53. There are several examples of this kind of case. In R. v. Haig (1974), 26 C.R.N.S. 247 (Ont. C.A.) the offender, while on parole for rape, committed two further rapes and expert evidence showed that he was a continuing danger to women. In R. v. Pontello (1977), 38 C.C.C. (2d) 262 (Ont. C.A.), the accused committed three offences within about a month and a half. The first two involved rape of the victims at knife point. On the last occasion, the accused was prevented from raping the victim because a police cruiser happened along. The accused had stabbed the victim before the police intervened. The accused had no prior record but expert evidence showed that he represented a continuing danger to women and was likely untreatable. At p. 268, MacKinnon J.A. explained the rationale for the life sentence in this type of case:
In a case of rape unaccompanied by acts of unusual violence, brutality or cruelty, the evidence of a psychiatrist, however eminent, with respect to the accused’s continuing or potential danger to the physical safety of others, would not justify a Court in categorizing the offence as one calling for a sentence outside the usual range of sentence for such offences. However, in this case, the cumulative effect of three separate attacks, the use of a knife and the appellant’s readiness to inflict injury with it to achieve his purposes, clearly indicate a serious personality disorder which required the expert opinion evidence to be taken into consideration at arriving at an appropriate sentence. [Emphasis added.]
[72] So far as I can tell, this branch of the Hill principle has been applied where the pattern of behaviour has been demonstrated by actual convictions or perhaps through resort to the s. 725-type procedure. See for example, R. v. Kempton (1980), 53 C.C.C. (2d) 176 (Alta. C.A.).
[73] A concern with this type of case is that imposing a life sentence for the most recent offence may offend the proportionality principle. In R. v. Hastings (1985), 19 C.C.C. (3d) 86 (Alta. C.A.) at 89-90, Kerans J.A. seemed to acknowledge this possibility; he would insist on this sentence being imposed only where there is compelling, usually expert, evidence of future dangerousness. As he said at p. 90:
I acknowledge that there must be and are stringent limits on the rule simply because it involves going beyond what is fit for the crime. It is invoked only when the accused is dangerous, and not just when he is incorrigible. Also, of necessity, he must be guilty of a crime sufficiently grave that a life sentence is available because when the maximum sentence is a term of years this does not permit true preventive detention. Dangerousness is a factor in sentencing only when a true sentence of preventive detention can be made. The authorities add that a finding of dangerousness is usually not made unless there is some evidence of “mental disorder” supported by a record of violent crime… I do not rule out cases where a finding could be made without such a record, for that is essentially a matter of evidence and weight of evidence: see, for example, R. v. Sinitoski, [1983] 6 W.W.R. 247, 46 A.R. 206, 27 Alta. L.R. (2d) 141. What is settled is that such a sentence should not be resorted to unless there is clear evidence that the offender’s return to society would put the innocent to substantial and violent risk. [Emphasis added.]
[74] Perhaps because application of the Hill principle in the pattern of violent behaviour cases is problematic where imposition of a life sentence may appear inconsistent with the proportionality principle, this court has on several occasions stated that the Hill principle is not a substitute for the strictures and safeguards of the dangerous offender procedure. For example, in R. v. Horvath, at p. 205, Martin J.A. said this:
The subsequent decisions of this court have emphasized that the principle enunciated in R. v. Hill, supra, was not to be used as an alternative to invoking the former dangerous sexual offender provisions and the present dangerous offender provision of the Code, and that a life sentence should be imposed only where the circumstances of the offence are such as to justify a sentence of life imprisonment. Those circumstances may exist where the offence has been accompanied by unusual features of brutality or cruelty, or where the offence is part of a pattern of violent behaviour which threatens the physical safety of others. Mr. Justice Ritchie’s graphic phrase “the stark horror of the crime” has been used to broadly describe offences falling within the first category, although it does not constitute an exclusive definition. [Emphasis added.]
[75] Similarly, in R. v. Pontello at p. 269, MacKinnon J.A. said:
In R. v. Marwick (unreported as yet), Brooke, J.A., pointed out that Hill v. The Queen (No. 2) (1975), 25 C.C.C. (2d) 6, 62 D.L.R. (3d) 193, [1977] 1 S.C.R. 827, was not a sanction by the Courts of an end-run by the Crown around the protective provisions of s. 689 of the Criminal Code dealing with dangerous sexual offenders (as the section was then entitled). With that proposition I entirely agree. [Emphasis added.]
Also see R. v. Crosby (1982), 1 C.C.C. (3d) 233 (Ont. C.A.) at 240.
[76] On two occasions, the Supreme Court of Canada in obiter has expressed some doubt about the use of the Hill principle to avoid the difficulties of complying with the dangerous offender regime. Lamer C.J.C. summarized this concern in R. v. M. (C.A.) (1996), 105 C.C.C. (3d) 327 (S.C.C.) at 372:
In Lyons, supra, I was in substantial agreement with the majority judgment of La Forest J. that there may indeed be circumstances where a life sentence, motivated in large part by the dangerousness of the offender, may be undesirable in light of Parliament’s creation of a separate and distinct dangerous offenders regime. Prior to Lyons, a number of appellate court decisions, most notably R. v. Hill (1974), 15 C.C.C. (2d) 145 (Ont. C.A.); affirmed 25 C.C.C. (2d) 6, 62 D.L.R. (3d) 193, [1977] 1 S.C.R. 827, had suggested that a trial judge should exercise his or her discretion to impose a sentence of life imprisonment (if available) when faced with a patently dangerous offender who enjoys no prospects for rehabilitation. …
In Lyons, however, this court cast serious doubt on the continuing validity of the Hill principle. As La Forest J. stated, at p. 23:
It is true that the Hill principle, which amounts to judge-made dangerous offender law, has clearly been limited by subsequent decisions. However, the basis of the retrenchment has not been a rejection of the principle of indeterminate detention for dangerous offenders. Rather, it has been the concern that the Hill principle not be used to circumvent the provisions of Part XXI [now Part XXIV] with its attendant safeguards for the offender. [Emphasis added.]
[77] In R. v. Robinson (1997), 121 C.C.C. (3d) 240 (B.C.C.A.) at 253, Esson J.A. suggested that in light of Lyons and M. (C.A.) one circumstance where imposition of a life sentence would circumvent the protections of Part XXIV is where the accused had no prior record but where there was some psychiatric or psychological evidence indicating future dangerousness. He did not think use of a life sentence would circumvent Part XXIV, however, “where the prior criminal record, considered along with the facts of the offence for which sentence is being imposed”, would support a conclusion that a life sentence is called for in order to protect society. Similarly, I think that, in general, imposition of a life sentence on the Hill principle would tend to circumvent Part XXIV where the pattern of behaviour is sought to be proved primarily on untried offences, particularly in light of s. 753 of the Code, which appears to expressly contemplate admission of evidence of untried conduct as a basis for finding that the accused is a dangerous offender.
[78] To conclude, in my view, imposition of a life sentence on the pattern-of-violent-behaviour branch of the Hill principle is justified where, in accordance with s. 718.1, the offence is sufficiently grave and the degree of responsibility of the offender is such that a life sentence would not be disproportionate and the offence is part of a pattern of conduct demonstrating that the offender represents a substantial risk for committing similar serious violent offences in the foreseeable future. Where the Crown seeks a life sentence on this basis it ought to provide expert evidence on risk. I am also of the view that to avoid conflict with the principle limiting use of evidence of untried offences to proof of background and character, the pattern of violent behaviour should be demonstrated in the offender’s criminal record or the very offences for which the life sentence is sought. While I would not rule out the use of untried offences for this purpose in all cases, it seems to me that those circumstances would be very rare. In such a case, resort to Part XXIV of the Criminal Code is called for if the Crown, in effect, is seeking a sentence of indeterminate detention. One case where resort to the Hill principle might be appropriate, although the prior conduct has not resulted in previous convictions, is where the offence for which the offender is convicted is not only serious in its own right, but represents the culmination of a pattern of similar serious conduct with this very victim. To insist that the Crown lay multiple charges representing each incident over a period of months or years might be redundant.
Application of the sentencing principles to this case
[79] As I have indicated, the Crown sought to justify admission of the evidence of untried acts on the pattern of violent behaviour branch of the Hill principle. Thus, in considering whether to exercise the discretion to exclude the evidence, the sentencing court would have to take into account the likely application of this principle to the facts of this case. I think it would have been preferable had the trial judge reviewed the nature of the proposed evidence as set out in the statements before ruling on its admissibility. In fairness to the trial judge, it is not clear to me that Crown counsel asked him to do so. Fortunately, because the Crown filed the transcripts of the police interview, this court is in a good position to make a preliminary assessment of the admissibility of the evidence.
[80] I will start with the proposed evidence of Ms. Powell. There were a number of factors, some of which were mentioned by the trial judge, that told against the admission of this evidence. It related to events some eighteen years earlier and while the relationship between the respondent and Ms. Powell was similar to the relationship between the respondent and the victim of the attempted murder, the conduct was different. The apparent hiring of someone else to assault the victim was a very different element. Most importantly, the respondent would encounter considerable difficulty in defending himself against allegations that related to conduct in another country many years earlier. A proper inquiry into whether the respondent committed all of the acts alleged against him, and particularly whether he was the person who initiated the acid attack, would also tend to divert the sentence hearing from its true purpose of determining a fit sentence for the attempted murder of Ms. Firth. The respondent for his part had not put his character in issue as in Lees. Finally, the admissibility of this evidence as showing a pattern of violent behaviour so as to invoke the Hill principle was, in my view, tenuous. These uncharged and untried allegations related to a different victim and the Crown apparently did not propose to call any expert evidence. Having regard to these considerations, especially the difficulty in the respondent defending himself against the allegations, I would not interfere with the trial judge’s decision to refuse to admit the evidence.
[81] The other evidence that the trial judge refused to admit was the allegations of earlier assaults by the respondent upon Ms. Firth. In some cases, charges were laid but were later withdrawn. While some of these assaults were serious, they did not demonstrate a pattern of violent behaviour that would justify a life sentence under the Hill principle. Since the evidence was not admissible for that purpose, which was the only purpose for which it was proffered, I do not see how the trial judge can be faulted for refusing to admit it. Having said that, in my view, the trial judge, if asked to do so, could have admitted this evidence, as in Roud, to show the background and character of the respondent. This evidence could properly be used to show that this latest incident was not an isolated one and indicated a pattern of violence and an attempt to control and manipulate Ms. Firth. I will return to the question of the use of the evidence under the heading of “The effect of the Crown's position at trial”.
[82] The final piece of evidence about the respondent’s prior conduct concerned the facts underlying his 1986 convictions for assault and threatening of Ms. Johnson. This evidence went in without objection, but was not referred to by the trial judge in his reasons for sentence. I will return to that issue below when I consider the effect of the Crown’s position at trial. As to its relevance on the Hill principle, even when combined with the evidence of the earlier assaults on Ms. Firth, it is doubtful that this conduct would be sufficient to justify a life sentence absent evidence of some mental or personality disorder rendering the respondent a continuing danger to the community, especially to other partners. The absence of any expert evidence to demonstrate the risk of dangerousness looms as a serious gap in the factual record. As Kerans J.A. said in R. v. Hastings at p. 90, a life sentence in the pattern of conduct case should not be resorted to “unless there is clear evidence that the offender’s return to society would put the innocent to substantial and violent risk”..
The effect of the Crown's position at trial
[83] This brings me to the final issue in this case. It seems to me that the Crown’s position at trial may have been misconceived. For the reasons I have expressed, the trial judge could properly, in the exercise of his discretion, exclude Ms. Powell's evidence. In any event, it could not be used to found a life sentence on the Hill principle. The Crown had, in a sense, bargained itself into a corner by conceding that if it could not prove a pattern of conduct, the appropriate sentence was ten years less time for pre-sentence custody. In light of the Crown’s position as to the length of sentence, the trial judge did not err in failing to mention the prior conviction involving Ms. Johnson. I also do not think that the failure of the trial judge to admit and consider the evidence of the other assaults on Ms. Firth was an error in principle. The Crown, in conceding that ten years was an appropriate sentence, must have had in mind s. 718.1 of the Criminal Code and been of the view that such a sentence was proportionate to the gravity of the offence and the degree of responsibility of the offender. Evidence of the respondent’s background and character could not elevate the sentence beyond what was proportionate without violating the principle that the offender cannot be punished for past untried acts. As Arbour J. said in R. v. Knoblauch (2000), 149 C.C.C. (3d) 1 (S.C.C.) at 13: “The limit of the reach of the criminal sanction is to address what offenders have done. At that stage, dangerousness is but one factor to be considered in the assessment of the appropriate sentence. Even extreme dangerousness cannot, in and of itself, justify imposing the maximum punishment in order to elevate the protection of society above all other considerations.”
[84] I am also of the view that the trial judge did not err in acceding to what became, in effect, a joint submission of ten years less time spent in pre-sentence custody. The trial judge could reject that submission if he was of the view that the ten-year sentence was unfit: R. v. Wood (1988), 43 C.C.C. (3d) 570 (Ont. C.A.). But, he could not do so without giving it serious consideration.
[85] Similarly, I do not think it appropriate for this court to increase the sentence in view of the Crown’s position at trial. We were not privy to the negotiations that went on in this case. We do not know why the Crown took the two extreme positions of either ten years or life. Generally speaking, on appeal the Crown will not be entitled to repudiate the position taken at trial: R. v. Wood, at p. 574. In fairness, I did not understand Ms. Ficek to be repudiating the position taken by Crown counsel. She argued this case on the point of principle based on the admissibility of the evidence of the prior acts, particularly Ms. Powell’s evidence. In those circumstances, I do not consider this an appropriate case to expound upon when, if ever, this court should permit the Crown to repudiate its position at trial, even though I am bound to say that the sentence of eight years was extremely lenient given the gravity of the conduct, the serious breach of trust, the respondent’s criminal record and his character and background as disclosed in the abusive nature of his relationship with Ms. Firth.
DISPOSITION
[86] Accordingly, while I would grant leave to appeal sentence, I would dismiss the appeal.
RELEASED: June 29, 2001
(signed) "M. Rosenberg J.A."
(signed) "I agree M. A. Catzman J.A."
(signed) "I agree K. M. Weiler J.A."