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REGINA v LEOPOLD

 
 
Citation: R. v. Leopold, 2001 BCCA 396
Date: 2001-05-28
Docket: CA027580
URL: http://www.canlii.org/bc/cas/bcca/2001/2001bcca396.html

 

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

 

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Updated: August 21, 2016