James Sipos is a dangerous offender. He was so designated by a court in 1998. Some 12 years later his appeal was before the Ontario Court of Appeal where he presented fresh evidence; that evidence indicated that he had made much progress in his treatment – “progress that was not foreseen at the time of his sentencing in 1998” [para 48]. His appeal was dismissed by the ONCA and he appealed to the Supreme Court. On appeal it was admitted and recognized that the sentencing judge committed the Johnson error. What remained, however, was whether a new hearing was warranted due to this error and/or as a result of the proposed fresh evidence. Cromwell J concluded that there was “no role for the fresh evidence in relation to the curative power” on appeal [para 41] and dismissed the appeal: 2014 SCC 47.
In addressing the appeal Cromwell J began by noting:
In dangerous offender appeals, the appellate court may use its curative power to dismiss an appeal even though there was a legal error at first instance. This power may be used only where the legal error was “harmless” in the sense that there is no reasonable possibility that the result would have been different had the error not been made. It follows that a legal error does not necessarily require reconsideration of the sentence. The appellate court must consider whether the error had any impact on the result. But there is a heavy onus on the Crown: it must show that there is no reasonable possibility that the result would have been different had the error not been made. [Para 35].
In the present case, in relation to the proposed fresh evidence, Cromwell J held that there must be some connection between the “fresh evidence and the sentencing judge’s legal error” [para 37]. In this case, the fresh evidence related to the rehabilitative prospects of the offender. Cromwell J’s conclusion on this point:
In this case, the fresh evidence has nothing to do with the impact of the legal error made by the sentencing judge. There is no dispute that, on the record before the sentencing judge, the only realistic option was a dangerous offender designation [para 38].
In coming to this conclusion, Cromwell J held, contrary to the offender’s position – that the issue is what the “outcome might conceivably be today [with the fresh evidence]” – that the issue is “whether the past decision would have been the same notwithstanding the error” [para 40]. Recognizing that it is possible that “after-the-fact evidence” may influence a court on sentencing, Cromwell J noted that “post-sentencing rehabilitative efforts and prospects will only exceptionally” meet the test for intervention and that “generally speaking [these are] matters for the correctional authorities to consider” [para 43].
Cromwell J concluded [at para 48], in relation to the proposed fresh evidence:
This evidence shows that Mr. Sipos has made commendable progress in recent years, progress that was not foreseen at the time of his sentencing in 1998. However, Dr. McMaster’s report, viewed in light of the full record before the sentencing judge, falls considerably short of showing that the dangerous offender designation was unreasonable. I agree with Doherty J.A. that, placing ourselves in the position of the sentencing judge with the added information from Dr. McMaster’s assessment, there is no reasonable possibility that the result would have been different. It follows that there is also insufficient evidence to show that the sentencing judge’s decision, even had he had the benefit of Dr. McMaster’s report, was unreasonable. As Doherty J.A. put it:
I do not think that Dr. McMaster’s risk assessment casts any doubt on the trial judge’s assessment that as of 1998, an indeterminate sentence was the appropriate sentence. Despite the positive treatment developments, Dr. McMaster still viewed the appellant’s potential release into the community as about six years distant. We now know, with the benefit of hindsight, and accepting Dr. McMaster’s opinion, that on a “best case” scenario, the appellant’s potential for release into the community was at least some 18 years away in 1998. [Emphasis added; para. 34.]
A final notable point raised by Cromwell J in dismissing the appeal was that “[r]outinely deciding sentence appeals on the basis of after-the-fact developments could both jeopardize the integrity of the criminal process by undermining its finality and surpass the appropriate bounds of appellate review” [para 30].