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The Court of Appeal for Ontario dismissed an appeal from sentence, upholding an indeterminate sentence for dangerous offender findings based on violent history and unmanaged risk.
The Court of Appeal partly granted Ivan Henry’s application to extend his factum from 30 pages to 70 pages, finding the appeal complex but not requiring 91 pages.
The Ontario Court of Appeal dismissed Paul Kubesch’s sentence appeal, upholding the pre-sentence credit calculation and the fit sentence for breaches of his supervision orders.
The trial judge's findings on corroboration, credibility (including lack of embellishment and level of detail), and assessment of expert evidence on age-related attenuation were reasonable and supported by the record; there was no legal error in rejecting the applicability of burnout theory to this specific offender or in concluding a LTSO could not manage his risk, therefore the conviction and indeterminate sentence are upheld.
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The Federal Court dismissed judicial review of a parole denial, finding the Appeal Division’s decision reasonable and no breach of s. 12 of the Charter.
The Court dismissed the appeal: the trial judge's guilty verdict for sexual assault was reasonable based on the complainant's credible testimony and supporting evidence; the search warrant remained valid after excising inaccuracies because adequate grounds persisted; and the dangerous offender finding and indeterminate sentence were justified because the appellant presented a high, unmanageable risk to public safety.
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Motion to bifurcate dismissed because the appellant was largely responsible for procedural delay, there were not compelling reasons to separate the appeals, and a sentence appeal concerning a dangerous offender designation would require review of the predicate offences and trial record, creating inefficient duplication of work.
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The trial was fair in fact and appearance; the trial judge did not err in refusing to grant a mistrial or adjournment, in appointing an amicus curiae with the role he specified, or in failing to give a limiting instruction because the Crown did not rely on prior consistent statements to bolster credibility; appellant failed to demonstrate a miscarriage of justice.
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The sentencing judge comprehensively considered proportionality and less coercive measures and, on the evidence of persistent treatment refusal, cocaine use and expert risk assessments that external controls would be insufficient, properly imposed an indeterminate sentence to protect the public; the appellate court found no error and dismissed the appeal.
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The sentencing judge applied the correct legal principles, considered the appellant's remorse and willingness to rehabilitate, and reasonably relied on expert evidence showing a very poor prognosis and high ongoing risk, such that only an indeterminate dangerous offender sentence could protect the public; therefore the appeal was dismissed.
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