R. v. Howell

R. v. Howell Collection Decisions of the Court of Appeal Date 2006-02-03 Docket numbers C39096 Judges McMurtry, Roy; Goudge, Stephen Thomas; Borins, Stephen Subject Criminal Decision Content DATE: 20060203 DOCKET: C39096 COURT OF APPEAL FOR ONTARIO RE: HER MAJESTY THE QUEEN (Respondent) – and – JOSEPH FREDERICK HOWELL(Appellant) BEFORE: McMURTRY C.J.O., GOUDGE AND BORINS JJ.A. COUNSEL: Timothy E. Breen for the appellant Randy Schwartz for the respondent HEARD & RELEASED ORALLY: January 26, 2006 On appeal from the conviction by Justice Casey Hill for the Superior Court of Justice dated May 2, 2001 and from the sentence imposed by Justice Casey Hill dated January 18, 2002. ENDORSEMENT [1] Despite the fact that this case preceded R. v. Johnson, the appellant acknowledges that Justice Hill correctly anticipated and applied the legal approach mandated for dangerous offender applications by the Supreme Court of Canada in that case. [2] However, the appellant argues that the trial judge erred in applying this approach because he failed to consider whether the appellant could be safely controlled in the community through supervision rather than treatment. With respect, we do not read his reasons that way. [3] The trial judge begins his analysis of the reasonable possibility of eventual control in the community by expressly referring to the separate concepts of treatment and supervision. He acknowledges that in determining the proper disposition, he must take account of both “the treatability” of the offender and “whether with extrinsic control and management measures” there is a reasonable possibility of eventual control in the community. [4] The trial judge was thus clearly alive to the task of considering not just treatment, but also supervision, in deciding whether the appellant can be safely controlled in the community. [5] He found that at present there is no realistic prospect of responsive treatment for the appellant. If treatment is all he thought was necessary to consider, he would not have gone on as he did to address the various ways that the appellant in the past has demonstrated a reluctance to be restrained by orders or rules, in other words, to be supervised. [6] Ultimately, he concluded that there is not a realistic prospect of management of the risk in the community following a determinant custodial sentence. He reached this end point in light of his view of both the appellant’s treatability and the possibility of his being sufficiently supervised. Taking these into account, and on the basis of ample evidence, he found the risk posed by the appellant to be unacceptable. He did not err in doing so. [7] The appeal must be dismissed. “R. R. McMurtry C.J.O.” “S. T. Goudge J.A.” “S. Borins J.A.”