Décision

[1]                Mr. Guilbeault appeals from a judgment rendered on March 4, 2020, by the Court of Québec, Criminal and Penal Division, District of Montreal (the Honourable Mélanie Hébert). The judgment designates him a dangerous offender and imposes an indeterminate sentence.

[2]                For the reasons of Cournoyer, J.A., with which Gagné and Cotnam, JJ.A., concur, THE COURT:

[3]                ALLOWS the appeal;

[4]                SETS ASIDE the dangerous offender designation and the indeterminate sentence imposed;

[5]                ORDERS a new hearing under Part XXIV of the Criminal Code on count 2 in file number 500-01-146666-166 and counts 6 and 7 in file number 500-01-146506-164.

[6]                The dangerous offender criteria in s. 753(1) of the Criminal Code “carefully define a very small group of offenders whose personal characteristics and particular circumstances militate strenuously in favour of preventive incarceration.”[1] It is “confined in its application to those habitual criminals who are dangerous to others.”[2] An offender must be so “dangerous” as to render the “clearest and most extreme form” of preventive sentence a rational means to achieve the purpose of public safety.”[3] To achieve the purpose of limiting “the availability of an indeterminate detention under s. 753(4) and (4.1) to a narrow group of offenders that are dangerous per se,”[4] the designation criteria is “narrow and precise.”[5]

[7]                Whether the appellant is such an offender was the debate in first instance. Whether the process and the findings support that conclusion are the subject of this appeal.

[8]                Given the potential for grave impact on the appellant’s liberty, he benefits from a somewhat more intrusive standard of appellate review than that applied on an ordinary sentence appeal.[6] While it does not call for a completely fresh look and the appellate court must give some deference to the findings of the sentencing judge, it is nevertheless somewhat more robust.[7]

I.  Overview of the Appeal

[9]                The appellant appeals his designation as a dangerous offender and the imposition of an indeterminate sentence.[8]

[10]           The overview contained in the sentencing judgment provides a succinct and appropriate summary of the background of the appeal:

[1] In June 2013, Mr. Guilbeault was sentenced to five years of imprisonment for aggravated assault. He was also designated a long-term offender and a long-term surveillance order (“LSO”) was imposed for an additional five years.

[2] In July 2016, the LSO began. Residing at a Correctional Community Center (“CCC”) and returning there every night was one of his surveillance conditions. In September 2016, Mr. Guilbeault failed to return to the CCC by curfew. A warrant for his arrest was issued.

[3] A month later, Mr. Guilbeault assaulted a former girlfriend with a weapon and stole her car. The next day, he was arrested at the wheel of the stolen car, after committing numerous offenses. At the time of his arrest, drugs were found on him and he had been illegally at large for a month.

[4] Mr. Guilbeault pled guilty to the following offenses: assaulting his former girlfriend with a weapon, stealing her car and possessing drugs at the time of his arrest. The Court found him guilty of the following offenses: one count for the dangerous operation of a motor vehicle; two counts for his failure to stop at the scene of an accident; one count for fleeing while being pursued by a police officer; one count of assault with a weapon against a police officer; one count of assault with a weapon and one count for obstructing a police officer in the execution of his or her duties. The Court also found him guilty of breaching the conditions of his LSO because he did not return to the CCC and because he did not obey the law and keep the peace.

[5] The Court must now sentence Mr. Guilbeault for all of these offenses. The Prosecution is asking the Court to designate Mr. Guilbeault as a dangerous offender and to sentence him to an indeterminate detention period. The Prosecution’s position relies on the expert opinion of Dr. Morissette, a forensic psychiatrist. Dr. Morissette’s conclusions are twofold: Mr. Guilbeault is at high risk of reoffending by committing a violent crime; and, the risk posed by Mr. Guilbeault cannot be managed in the community.

[6] The Defence is asking the Court to designate Mr. Guilbeault as a long-term offender, to sentence him to a total imprisonment of six years, less the preventive custody of a little over five years, and to impose a LSO for an additional five-year period. The Defence’s position relies on the expert opinion of Dr. Stephenson, a forensic psychologist. Dr. Stephenson’s conclusions are twofold: Mr. Guilbeault is at high risk of reoffending by committing a violent crime; but, this risk can be managed in the community.

[Emphasis added]

[11]           At the outset, it is crucial to emphasize an important finding by the sentencing judge: “[b]oth experts have the same opinion: the risk that Mr. Guilbeault will reoffend by committing a violent offense is high.”[9]

[12]           The appellant was 27 years old when judgment was rendered. He is at a crossroads. He is considered a high-risk offender and he has already been designated a long-term offender.

[13]           The salient question before the sentencing judge was whether there was a reasonable expectation that a sentence less than a sentence of indeterminate detention would adequately protect the public against the appellant’s violent recidivism? Would “a composite sentence consisting of a term of imprisonment of at least two years, followed by an LTSO for not more than ten years”[10] adequately protect society?

[14]           Other issues stemmed from or were intertwined with that core issue. The admissibility of hearsay evidence emanating from documentation of the Correctional Service; whether the pattern requirement under s. 753 was satisfied; if so, whether the pattern of violent conduct was intractable; and finally, whether the imposition of an indeterminate sentence was unreasonable.

[15]           In particular, the issue admissibility of the hearsay evidence acquired an overwhelming importance after the prosecution was permitted to reopen its case, for a second time, the case had already been taken under advisement. At the end of the dangerous offender proceedings, the prosecution filed an assessment report about a violent incident concerning other inmates in which the appellant had apparently been involved and which resulted in the appellant’s transfer to another correctional facility.

[16]           The hearsay evidence presented by the prosecution was admissible. The appellant accepted the filing of much of the documentation presented by the prosecution without the need for live testimony to be heard. Still, the appellant clearly disputed many facts and was especially adamant in this respect about the transfer assessment report and the opinion expressed therein, which was filed late in the proceedings.

[17]           The sentencing judge relied quite heavily on the assessment report in her judgment, particularly in concluding that there was a lack of introspection on the appellant’s part and that an indeterminate sentence was necessary.

[18]           There was testimonial evidence from an experienced Correctional Service of Canada (CSC) psychoeducator regarding substantial and notable progress made by the appellant during a stay at the Regional Mental Health Centre (RMHC), which could support a conclusion of treatability that extended beyond speculative hope. Nevertheless, the findings made by the judge, based partly but importantly on the assessment report, precluded any possibility of considering any sentence other than an indeterminate one.

[19]           Hence, the weighing of the assessment report and the application of the appropriate standard of proof were pivotal to the outcome of this case.

[20]           In my view, since the appellant disputed the aggravating facts contained in the assessment report and the opinion expressed therein, it was incumbent on the prosecution to establish their existence beyond a reasonable doubt. Yet, beyond filing its motion, the report and a perfunctory submission, the prosecution did not attempt to do so and, further, appeared oblivious to the need to meet the stringent burden of proof beyond a reasonable doubt.

[21]           The judgment contains no specific findings on the disputed aggravating facts.

[22]           Flexibility in relation to the admissibility of evidence at sentencing should not be construed as somehow lessening the prosecution’s burden: all aggravating factors must be proven beyond a reasonable doubt.

[23]           Further, the judge should have made specific findings on the evidence that indicated progress by the appellant, an offender suffering from mental health issues which drove him to a suicide attempt during his incarceration and multiple episodes of self-mutilation.

[24]           In my view, the judgment cannot be upheld. A new hearing should be ordered. This is the only fair resolution for both the appellant and the prosecution.

II.            The Facts

[25]           In December 2010, the appellant randomly stabbed a young man in the neck. He was detained at the Rivière-Des-Prairies Detention Centre, where he was involved in nine incidents involving violent conduct, the possession of weapons and alcohol. He thereafter completed 10 of the 12 sessions of the Vivre sans violence (Living without violence) program.

[26]           In February 2012, the appellant pled guilty to counts of robbery and conspiracy to commit theft, for events that had occurred prior to his December 2010 arrest. He was handed a 9-month custodial sentence.

[27]           In March 2012, he pled guilty to one count of aggravated assault in relation to the 2010 stabbing. During the sentencing process, the appellant was assessed by forensic psychiatrist Dr. France Proulx. She evaluated the appellant using the Psychopathy Check List Revised (“PCL-R”) and determined that he was at the upper limit of a mixed personality disorder. She observed that he had a limited capacity for introspection, as well as difficulty managing his emotions. Dr. Proulx therefore concluded that the appellant was at high risk of reoffending violently.

[28]           Relying on the opinion of Dr. Proulx, the prosecution requested that the appellant be designated a long-term offender.

[29]           In June 2013, the appellant was sentenced to five years of imprisonment for aggravated assault, was designated a long-term offender, and was subject to a long-term surveillance order (“LSO”) for an additional five years following his release.[11]

[30]           He was sent to the Donnacona Penitentiary, where multiple disciplinary sanctions were imposed on him stemming from several incidents. These included fighting with other inmates, attempting to damage a security camera, and possessing a 6” shank (pic artisanal).

[31]           In July 2016, after the appellant’s sentence had been served, the LSO began. Of note, the LSO required that the appellant reside at a Correctional Community Centre (“CCC”) and obey a nightly curfew.[12]

[32]           However, on September 24, the appellant failed to report to the CCC and a warrant for his arrest was consequently issued.[13]

[33]           On October 25, the appellant assaulted his former girlfriend with a weapon and stole her car.[14]

[34]           The following day, the appellant was stopped by police while at the wheel of a stolen vehicle. The arresting officers attempted to prevent him from driving away by placing their vehicle behind his own. However, instead of exiting his vehicle as ordered, the appellant sped off, colliding with two parked vehicles. Undeterred, he then drove toward a nearby alley, where an unmarked police car and two plainclothes officers were blocking the appellant’s route of escape.

[35]           Using his car as a weapon, the appellant drove toward them at full speed. One of the plainclothes officers, caught between his own vehicle and that of the appellant’s, was forced to discharge his firearm. Though he aimed for the stolen vehicle’s tires, the officer inadvertently struck the appellant’s passenger.

[36]           Despite this, the appellant nonetheless managed to reach the other street and continued his flight. He was only apprehended when an officer intentionally caused a collision, bringing the appellant’s vehicle to a halt. Upon arrest, the appellant was found to be in possession of cocaine and hashish.[15]

[37]           He was subsequently transferred to the Archambault Penitentiary.[16] The appellant pled guilty to “assaulting his former girlfriend with a weapon, stealing her car and possessing drugs at the time of his arrest”.[17]

[38]           Between October 31, 2016, and May 3, 2017, he was subject to disciplinary sanctions on multiple occasions,[18] notably for smoking in his cell, delaying an official count, having a shank and a lighter in his possession, as well as hashish.

[39]           In June 2017, while detained at Donnacona Penitentiary, the appellant was reported for assaulting two correctional officers.[19] He was thereafter placed in protective segregation, which led to the deterioration of his mental health.[20]

[40]           In February 2018, the appellant was transferred to the Regional Mental Health Centre (“RMHC”). Upon arrival, he displayed a “vengeful” attitude towards authority figures at the RMHC and disobeyed the order of a correctional officer. He also fought with another inmate and was thereupon placed in administrative segregation before being discharged from the RMHC on April 11, 2018. His mental health rapidly deteriorated, however, such that his transfer from the RMHC was postponed.[21]

[41]           In June 2018, the appellant signed a good behaviour bond, the breaching of which would lead to his transfer to Donnacona Penitentiary. From then on, the appellant’s behaviour improved, and he demonstrated a willingness to change, even participating in therapy and group activities.[22]

[42]           However, in December 2019, the appellant was involved in a fight during which he assaulted two inmates. Upon review, it was ascertained that he had in fact not changed and continued to present a high risk for the security of other inmates. He was therefore transferred from the RMHC to the Regional Reception Centre.

III.            The Proceedings

[43]           In an oral judgment rendered on July 27, 2017, the appellant was found guilty of the following offences in relation to the events of September and October 2016: 1) one count for the dangerous operation of a conveyance; 2) two counts for failing to stop after a road accident; 3) one count for fleeing while being pursued by a police officer; 4) one count of assault with a weapon against a police officer; 5) one count of assault with a weapon; and 6) one count of obstructing a police officer in the execution of their duties.

[44]           The Court also found him guilty of breaching the conditions of his LSO as he had not returned to the CCC in accordance with his curfew and because he failed to obey the law and keep the peace.[23]

[45]           On September 1, 2017, psychiatrist Dr. Louis Morissette delivered a court-ordered psychiatric assessment of the appellant. In his assessment, Dr. Morissette concluded that the appellant has an antisocial personality disorder and is at high risk of general and violent recidivism, notably because he lacks empathy, has limited capacity for self-criticism, and is at the lower threshold of the psychopathic personality type. In Dr. Morissette’s view, the risk posed by the appellant cannot be adequately managed in the community because he is incapable of introspection.

[46]           The psychologist retained by the defence, Dr. Randolph Stephenson, likewise concluded that the appellant is at high risk of recidivism. He opined, however, that this risk could be sufficiently managed in the community if the appellant were to participate in the High-Intensity Multi-Target Program offered by Correctional Service for a period of three (3) to four (4) years.

[47]           On October 23, 2017, the prosecution filed an application seeking to have the appellant designated as a dangerous offender pursuant to s. 753(1) Cr.C. and to impose an indeterminate sentence. The sentencing phase lasted ten (10) days.

[48]           On March 4, 2020, the judge designated the appellant a dangerous offender and imposed an indeterminate sentence.[24]

IV.            The Judgment Under Appeal

[49]           The appellant was sentenced to an indeterminate period of detention for three offences: one count of assault with a weapon (against his ex-girlfriend) and two counts of assault with a weapon against a peace officer.[25]

[50]           The sentencing judge held, however, that the dangerous offender provisions did not apply to all of the offences committed by the appellant and, as such, regular sentencing principles were applicable to the latter.[26]

[51]           For the offences falling outside the scope of the dangerous offender provisions, she handed down the following custodial sentences: twenty-four (24) months imprisonment for one count of breaching the conditions of his LSO by failing to reside at the CCC between September 24 and October 25, 2016.[27] A further twelve (12) months’ imprisonment for the second count of breaching the conditions of his LSO on October 26, 2016, when he refused to obey the law and keep the peace.[28] Six (6) months imprisonment for the theft of his former girlfriend’s car.[29] Another twelve (12) months for the dangerous operation of a conveyance. Six (6) months for each of the two counts of failing to stop at the scene of an accident and, finally, six (6) months for fleeing while being pursued by a police officer.[30]

[52]           The total duration of the sentence imposed for these offences was 54 months.[31] Because the appellant had been detained since October 26, 2016, the judge held that time had been served in relation to all the offences that were not subject to the dangerous offender provisions.[32]

[53]           In relation to the dangerous offender designation, she began by reviewing the relevant facts and instructing herself regarding the applicable law.[33] She also reviewed the submissions made by both the prosecution and the appellant.[34]

[54]           She noted that a two-step analysis is required when determining if an indeterminate sentence is to be handed down. Therefore, it was first necessary to determine whether the appellant ought to be designated a dangerous offender. Secondly, it had to then be determined if an indeterminate sentence was warranted in the circumstances.[35]

[55]           In the first step of her analysis, the judge instructed herself in relation to the burden of proof, i.e., that two elements must be proven by the prosecution if the appellant is to be designated a dangerous offender.

[56]           First, it was necessary to determine whether the offences committed by the appellant fell within the scope of “serious personal injury offences” as contemplated by s. 752 Cr.C.[36] The judge noted that the offences of assault with a weapon and assault with a weapon against a peace officer were serious personal injury offences.[37]

[57]           Secondly, it had to be proven that the appellant represented a threat to the life, safety, or physical or mental well-being of other persons. For such a finding to be made, s. 753(1)(a) Cr. C. provides that the evidence must establish at least one of the three patterns of violent conduct that are contemplated at subparagraphs (i) through (iii).[38]

[58]           The sentencing judge concluded that the appellant had exhibited violent and impulsive behaviour since his youth and that this tendency had not abated.[39] In particular, she highlighted the offences that led to the present period of incarceration,[40] as well as the various violent altercations that the appellant had instigated with correctional officers and inmates while in custody in 2016, 2017, and 2019.[41]

[59]           She also underscored the fact that the appellant suffers from an antisocial personality disorder and that he tends to minimize his actions and blame others for them. Furthermore, these traits were exhibited during the appellant’s testimony and, as such, were likely to remain an ingrained part of his personality into the future.[42] She concurred with Dr. Morrissette’s opinion that the appellant remained at high risk of violent reoffending,[43] that treatment programs were only effective if an offender was capable of introspection, and that, as such, “treatment prospects cannot attenuate the future risk posed by Mr. Guilbeault.”[44]

[60]           Hence, she concluded that the prosecution had proven beyond a reasonable doubt that the appellant represented a threat to the life, safety or physical or mental well-being of other persons. She further found that the prosecution had established beyond a reasonable doubt that the appellant displayed two of the patterns of conduct contemplated by s. 753(1)(a) Cr.C., namely, patterns of (i) repetitive behaviour and (ii) persistent aggressive behaviour.[45] She also found that the appellant’s conduct is intractable.[46] The appellant was therefore designated a dangerous offender.[47]

[61]           Then turning her mind to the second step of the analysis, she noted that the general sentencing principles found at ss. 718 et seq. Cr.C. continue to apply in relation to determining whether an indeterminate period of incarceration is a fit sentence.[48] She further noted that, as a rule, indeterminate sentences should not be imposed where the objective of public protection can be achieved through other means.[49]

[62]           Nonetheless, in the case at bar, three serious personal injury offences were involved[50] and their objective gravity was moderate.[51] The seriousness of these offences was further compounded by the appellant’s prior convictions for violent crimes and his designation as a long-term offender.[52] Several other aggravating factors were identified in relation to the three offences, which resulted in a high degree of subjective gravity.[53]

[63]           The judge recognized that although the appellant’s violent behaviour may be deemed intractable, a sentence other than an indeterminate period of detention may be imposed where the risk posed by the appellant can be managed.[54] However, she determined that the appellant’s inability to demonstrate introspection rendered treatment prospects wholly illusory. Therefore, the risk posed by the appellant could only be managed by an indeterminate sentence.[55]

[64]           To sum up, the sentencing judge considered the following evidence: 1) Mr. Guilbeault’s past behaviour and attitude; 2) the expert evidence relating to the risk that Mr. Guilbeault will reoffend by committing a violent offence; 3) the expert evidence relating to future treatment prospects; and 4) the character evidence presented by the appellant.

[65]           She also examined the timeline of the appellant’s past behaviour and attitude: 1) his childhood and adolescence; 2) his prior designation in 2013 as a long-term offender; 3) his detention after the 2013 designation as a long-term offender; 4) his release from detention in 2015; 5) the commission of the predicate offences in October 2016; 6) the appellant’s detention after the commission of the offences, including the period of detention at the Regional Mental Health Centre (“RMHC”).

[66]           Finally, she relied on an assessment report prepared by the Correctional Service which is the subject of the first ground of appeal. I reproduced her concluding findings:

[137]     In this regard, the opinion of Dr. Morissette on future treatment prospects is relevant. Dr. Morissette recognised that there are effective programs available, but underlined that these programs only work if the offender is capable of introspection. Dr. Morissette concluded that Mr. Guilbeault is not capable of introspection. He is still at a stage where he considers himself a victim. Thus, before being able to benefit from a treatment program, Mr. Guilbeault must learn to question himself and to develop abilities to handle his emotions, deceptions and frustrations in an institutional setting.

[138]     Dr. Morissette reached these conclusions in September 2017, before Mr. Guilbeault’s admission at the RMHC. Mr. Guilbeault’s testimony and his letter to the Court show that notwithstanding his detention at the RMHC, he still minimises his actions and blames others. He is still not capable of introspection. Therefore, treatment prospects are, in Mr. Guilbeault’s case, nothing more than an expression of hope. The risk posed by Mr. Guilbeault cannot be managed by a sentence other than an indeterminate sentence.

V.            Issues on Appeal

[67]           As outlined earlier, the appeal raises four (4) issues: (1) the admissibility of reports and other documentation from the Correctional Service; (2) whether the appellant’s past conduct satisfies the pattern requirement under s. 753 Cr.C.; (3) whether the pattern of violent conduct justifying a dangerous offender designation existed and, if so, was intractable; (4) whether the imposition of an indeterminate detention sentence was unreasonable. Intertwined with each of those grounds of appeal is a common challenge that the reasons are insufficient.

***

[68]           Before discussing the different grounds of appeal raised, it is important to touch upon the applicable standards of review. It is unclear whether the parties agree about them.[56]

[69]           In Boutilier, Côté J. described the applicable standards:

Section 759 of the Criminal Code regulates the right to appeal in such cases. On the basis of the broad language of this section, this Court has stated that “appellate review of a dangerous offender designation is somewhat more robust” than regular appellate review of a sentence: Sipos, at para. 26. Nonetheless, the appellate court must give some deference to the findings of the sentencing judge. In sum, errors of law will be reviewed on a correctness standard, while errors of fact will be reviewed on a reasonableness standard: Neuberger, at p. 9-2.[57]

[70]           In T.L.P.,[58] Fitch J.A. of the British Columbia Court of Appeal conveniently summarized the law as follows:

The Applicable Standards of Review

(a) Appeal from the Dangerous Offender Designation

[71] The standard of review applicable to an appeal from a dangerous offender

designation was recently restated in R. v. Garnot, 2019 BCCA 404 at para. 47:

[47] Under s. 759(1) of the Criminal Code, a person who is found to be a dangerous offender may appeal on any ground of law or fact or mixed law and fact. This court has stated that the appellate review of a dangerous offender designation is “somewhat more robust” than “regular” appellate review of a sentence, although some deference is still owed to the sentencing judge’s findings of fact and credibility. As observed in R. v. Malakpour 2018 BCCA 254, the standard for errors of law is correctness and for errors of fact, reasonableness. (At para. 47, citing R. v. Sipos 2014 SCC 47 at para. 26; R. v. Boutilier, 2017 SCC 64 at para. 81; and R. v. Walsh 2017 BCCA 195 at para. 23.)

Absent a material error of law, a dangerous offender designation and findings essential to it, including the assessment of an offender’s future risk and amenability to treatment, engage questions of fact to which deference is owed. The role of an appellate court is to ensure that the law was applied correctly and, if it was, to decide whether the designation is reasonable: Boutilier (SCC) at paras. 81, 85–88.

(b) Appeal from the Determinate Sentence

[72] The standard of review on an appeal challenging the fitness of a determinate sentence is deferential. Absent an error in principle shown to have a material impact on the sentence, an appellate court may not vary the sentence unless it is shown to be demonstrably unfit: R. v. M. (C.A.), 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500 at para. 90; R. v. Lacasse, 2015 SCC 64 at para. 11; Friesen at para. 26; R. v. Agin, 2018 BCCA 133 at paras. 52, 56–57.

[71]           The standards outlined above have been applied by this Court in multiple decisions.[59]

***

[72]           I will discuss the grounds of appeal in the following order: A. the admissibility of the Assessment Report; B. the remaining grounds of appeal.

A. The Admissibility of the Assessment Report

[73]           It is logical to deal with the admissibility of the records from the Correctional Service in general and, particularly, the assessment report. It has a considerable impact on the other grounds raised by the appellant. The appellant’s criticism of the report relates to its admissibility, its weight, the standard of proof attached to the disputed facts and the adequacy of the reasons provided.

1.     The Issue in Dispute and Submissions in First Instance

[74]           To understand the appellant’s challenge, I must first describe the proceedings leading to the admission of the assessment report, the submissions made and the content of the report itself.

[75]           The prosecution twice sought to reopen its case.

[76]           The first motion concerned the evidence of a security officer to which the appellant objected. In her judgment, the judge disregarded that evidence:

The Defence argued that the evidence relating to Mr. Guilbeault’s involvement in contraband and relating to his threatening behavior should not be considered by the Court in rendering its decision because it has no probative value and is highly prejudicial. The Court agrees with the Defence. The probative value of the evidence is weakened by the fact that it relies exclusively on informants, whose credibility and reliability could not be tested. Moreover, as information was retracted from the reports that were filed, it was difficult for Mr. Guilbeault to challenge this evidence. Yet, this evidence is highly prejudicial. As a result, the Court will disregard the allegations relating to Mr. Guilbeault being involved in contraband and uttering threats to others.[60]

***

[77]           On February 6, 2020, while the case was under advisement, the prosecution presented a second motion to reopen its case.

[78]           The judge granted the motion. She authorized the prosecution to file an assessment report dated December 19, 2019, which was prepared following an altercation between the appellant and two other inmates in early December 2019 as the dangerous offender proceedings were taking place.

[79]           When the prosecution’s motion was presented, the appellant objected to the filing of the report in the following terms:[61]

Écoutez, je vais être assez brève. Simplement souligner le fait que la preuve a déjà été rouverte. Je trouve qu’on s’engage ici sur une pente glissante. À mon sens, c’est comme…l’analogie qui doit être faite, c’est un peu comme si, à chaque fois que monsieur Guibeault faisait quelque chose de positif, on demandait également de rouvrir la preuve. À mon sens, la preuve, comme je vous dis, était close. La situation de monsieur Guilbeault était à jour au moment où le dossier a été pris en délibéré. Dans les critères que mon collègue vous soumet, on indique qu’il faut que la déposition doit être pertinente en ce sens qu’elle soit sur une question décisive. À mon sens, le fait que monsieur Guilbeault se soit ou non impliqué dans une bagarre n’est pas un point décisif dans le présent dossier. On doit amener la peine d’abord sur le comportement qu’il a eu en communauté et non sur le comportement en établissement. Ça aurait pu être un élément qui aurait amené quelque chose, mais par rapport à la force probante, à la valeur probante d’un document qui va être déposé pour lequel on n’a aucune vidéo, on n’aura pas de témoignage, ça reflète… le document reflète l’opinion d’une seule personne. Donc à ce stade-ci, je vois pas en quoi ça devient essentiel puis que c’est une question décisive. Encore une fois par rapport au fait que ce soit plausible, comme je vous l’ai dit, ça demeure l’opinion d’une seule personne qui a rédigé le rapport. L’incident aurait été enregistré, aurait été filmé. On n’a pas les caméras. On n’a pas la version des autres individus, des personnes qui ont été impliquées dans tout ça, donc à mon sens, c’est assez limité, ce qu’on peut amener à ce document. Le fait que Monsieur se retrouve plus au CRSM ne veut pas dire… il y a d’autres unités en santé mentale dans d’autres provinces, donc il y a encore des possibilités qu’il se retrouve dans d’autres unités. Donc à ce stade-ci, je vois pas ce que ça va venir amener de plus au débat et en quoi de rouvrir la preuve serait pertinent. Puis peut-être rappeler également qu’il y a d’autres dossiers dans lesquels Monsieur va recevoir une peine. Il y a deux (2) autres dossiers présentement, un à Québec, un à Montréal. Donc si jamais on devait prendre ça en considération, ça sera pris en considération de toute façon dans l’imposition des autres peines à venir dans les deux (2) autres dossiers.

[80]           The sentencing judge granted the prosecution’s motion and allowed the filing of the assessment report. She states:

There’s two (2) issues. There’s the relevance versus the weight to be given to the evidence. In this case, the evidence is relevant, per say, as it relates to an incident that occurred after the case was taken under advisement. It is relevant by the nature of the incident and by the possible consequences attached to that new evidence. There is also no notion of … as this is not… what I’m going to say, is this is not a case where the Crown forgot to introduce something in evidence. This is something that occurred after the fact. And obviously the weight that the Tribunal will give to that factual element has not been decided yet and I’m saying this for monsieur Guilbeault. Saying that it is relevant does not mean that it is convincing. I just want to make sure that you understand that. The additional criteria which I have to look at according to the case law is the fact that it is… I guess it’s more than just a threshold of relevance. It is a threshold of not being necessarily essential but essential to the debate as it is put before me, essential to… essential… it raised an essential question of the debate of the Defense’s position, of the Crown’s position. For these reasons, I will allow the reopening of the Crown’s case for this new evidence.

[81]           After the ruling, appellant’s counsel proceeded to make additional arguments on the weight to be ascribed to the assessment report:

PAR LA DÉFENSE

Mais simplement ajouter aux commentaires que j’ai fait tantôt le fait qu’il y ait pas eu d’accusations au criminel qui ont été portées. Il y a pas eu non plus de rapport disciplinaire qui a été donnée à monsieur Guilbeault, du moins c’est pas ce qui est en preuve. On parle dans le document de blessures. Il y a aucune non plus preuve de ces blessures-là ou quoi que ce soit. On peut pas non plus rien inférer du document en ce sens que, comme je vous dis, il y a des démarches présentement pour que monsieur Guilbeault soit dans un autre centre de traitement en santé mentale. Donc c’est pas parce qu’il est plus dans celui-là qu’il pourra pas aller dans un autre. Puis il y a pas eu non plus d’augmentation de cote sécuritaire qui a découlé de ça. Il était déjà considéré comme étant avec une cote sécuritaire maximum. Donc la cote est restée la même également.

PAR LA COUR

Okay.

PAR LA DÉFENSE

Puis comme je vous ai dit tantôt, au niveau de la valeur à accorder à tout ça, ça demeure l’opinion d’un seul individu qui rapporte des faits qui ont été rapportés par d’autres personnes, observés par d’autres personnes. On n’a pas la version des principaux protagonistes de l’incident puis on n’a pas non plus les enregistrements vidéo qui nous permettraient de peut-être avoir une meilleure compréhension de ce qui s’est passé.

[…]

[82]           The prosecution argued that hearsay evidence was admissible to a certain extent and that the judge was called upon to assess its weight:

The only thing I’ve got to say is that it is the same… you have to decide the weight you will be giving to that document and it is the same idea for all the documents that are filed in that kind of motion which I have to recall to the Court that hearsay is available to a certain extent and you have to decide what kind of weight you will give to that specific document too. But I don’t have any more arguments. That was pointed out in the document to the Court, in the motion.

[83]           Appellant’s counsel then added the following important caveat:

Simplement ajouter une petite chose par rapport au document. Le contenu de plusieurs documents a été admis, mais c’est pas le cas pour cela, bien entendu. Donc je pense qu’il y a quand même une distinction à faire.

2.     The Assessment Report

[84]           In order to consider the challenge raised by the appellant, it is also necessary to reproduce the most pertinent excerpts of the report:

En contrepartie, bien que certains progrès fu[rent] notés au niveau de la gestion du stress et de ses émotions, monsieur s’est parallèlement impliqué dans des activités illicites en établissement en plus d’adopter des comportements violents et intimidants tout au long de son séjour au CRSM. Or, nous sommes à même de constater les grandes difficultés du justiciable au niveau de l'adaptation en établissement. En moins de trois ans à l'intérieur des murs, il fut impliqué dans près d'une vingtaine d'évènements violents et ce, tant à l'endroit de codétenus que de membres du personnel. Visiblement, monsieur tend à reproduire à l'intérieur des murs cette même dynamique violente à laquelle il avait recours en collectivité, nécessitant un haut niveau d'encadrement. Ceci met donc le ton sur les motivations du justiciable à se prendre en main. Notons que monsieur Guilbeault nie être impliqué dans quoique ce soit (magouille institutionnelle) indiquant qu’il s’agit d’un complot pour le faire transférer d’établissement. Concernant les derniers comportements violents, il admet les gestes considérant que le tout a été filmé par les caméras. Pour notre part, malgré ses propos, nous ne pouvons faire abstraction des informations sécuritaires qui nous amène à évaluer avec prudence son adaptation en établissement[62]. Ainsi, les récents évènements nous démontrent à nouveau qu’il n’est pas prêt de changer et que les valeurs criminelles et violentes sont toujours présentes dans son cas.

M. Guilbeault a bénéficié de services de santé mentale. Depuis son admission au CRSM, il a reçu des services en lien avec une problématique au niveau de comportements automutilatoires en situations stressantes. En contrepartie, ses comportements en établissement démontrent une dangerosité non négligeable et son comportement ne peut être toléré dans un centre de traitement tel que le CRSM mettant en danger la sécurité des autres détenus.

En somme, nous évaluons que la situation survenue récemment est majeure. L’extériorisation de comportements violents n’est acceptable dans aucun établissement et dans aucune situation. Monsieur a un travail de longue haleine à faire afin de nous prouver qu’il désire réellement changer et modifier son cycle de délinquance. Ainsi, le détenu continue à manifester des difficultés majeures qui lui ont causé de graves problèmes d'adaptation à l'établissement et ont nécessité une intervention pour gérer le cas. Par conséquent, nous estimons que les risques reliés à l'adaptation en établissement se situent toujours à élevés.

[Emphasis added]

[85]           The author’s report then addresses the appellant’s modus operandi:

Dans les faits, M. Guilbeault a été victime de violence et intimidation dans sa jeunesse et depuis, il semble préconiser la violence pour obtenir ce qu’il désire. Ses interactions sociales sont souvent basées sur un mode relationnel de dominant/dominé et ses valeurs, son mode de vie, son empathie, son impulsivité et son immaturité demeurent à travailler. D’ici là, ses facteurs dynamiques seront maintenus à besoin élevé d’intervention, par opposition à sa motivation, jugée faible.

[86]           She then conveyed her opinion that the appellant lacked the required introspection conducive to a change of behaviour:

De plus, il faut tenir compte de la particularité du CRSM et de sa population. En fait, ce n’est pas la première fois que le sujet est impliqué dans ce genre de comportement dans les dernières années et celui-ci connaît parfaitement les conséquences qu’engendrent une telle conduite. Ceci dit, monsieur possède encore des valeurs élastiques et il n'est pas [près] de modifier son mode de vie. De plus, le côté manipulatoire de monsieur nous amène à la prudence puisque sa conduite fut contradictoire à son implication dans une démarche thérapeutique qui s'avère toujours questionnable aujourd'hui.

[87]           In his brief, the appellant expresses the following observation:

The latest Correctional Service report alleging that the Appellant had been the initiator of a fight that led to his transfer to the Regional Reception Center appears to have had a particularly significant weight in the analysis.

[88]           I agree with the appellant’s assertion. The assessment report was influential and relied upon by the sentencing judge in her overall analysis, as evidenced by multiple references to the report in footnotes.

[89]           It is against this backdrop that the appellant’s appeal must be considered.

3.     The Parties’ Submissions

[90]           From the appellant’s point of view, where disputed hearsay evidence is proffered as proof of an important fact in the context of dangerous offender proceedings, and the offender offers non-hearsay evidence disputing those facts, it should be extremely rare that such evidence will be capable of establishing beyond a reasonable doubt an important element of a dangerous offender designation.

[91]           He further argues in his brief that a lax approach to contested hearsay evidence adduced by the prosecution in dangerous offender applications operates unfairly towards the offender.

[92]           The appellant also submits that the hearsay evidence of his conduct while in custody played a significant role in the trial judge’s analysis, and yet this evidence was either of little probative value or was expressly disputed.

[93]           For both these reasons, he contends that the evidence should not have been given much, if any, weight because the disputed facts and the opinion contained in the assessment report were not established beyond reasonable doubt.

[94]           He also argues that the sentencing judge did not undertake any analysis in order to explain the value she ascribed to the documentation produced by the prosecution and the facts and opinion reported therein.

[95]           As I understand it, the appellant posits that the Correctional Service is not a disinterested party. Its custodial relationship with the offender is adversarial and there is a self-serving interest in justifying any measures taken regarding the offender. Hence, the reliability and trustworthiness of its documentation based upon hearsay should be questioned and should not be relied upon or, only rarely relied upon, during a dangerous offender application.

[96]           The prosecution takes the position that hearsay evidence is admissible during a sentencing hearing and that the sentencing judge could rely upon it. It also argues that, contrary to the appellant’s position, he actually admitted the facts to the author of the assessment report.[63]

[97]           The appellant’s submissions are broad, at times overbroad, and all-encompassing.

[98]           On the other hand, the prosecution’s submissions too readily gloss over the applicable standard of proof where the aggravating facts are disputed. The parties have developed starkly different approaches.

[99]           Before examining the applicable rules of evidence, it is important to note that earlier in the proceedings various reports from the Correctional Service were filed without the need to hear from the actual witnesses with firsthand knowledge of the facts. The appellant simply waived that requirement while he disputed the facts.

[100]      The appellant again confirmed this position when the debate about the admissibility of the assessment report arose[64]. However, he signalled that the facts in the assessment report were disputed.

[101]      While this Court has briefly discussed the admissibility and the weight of documentation prepared by the Correctional Service in the past,[65] I believe that the substantive challenge mounted by the appellant on the admissibility of the Correctional Service records is such that it deserves a complete and comprehensive analysis.

4.     Analysis

[102]      At the outset, it is appropriate to recall the four requirements of a dangerous offender designation and the seriousness of a such a designation.

[103]      In Boutilier, Côté J. reaffirmed the four criteria outlined by LaForest J. in Lyons[66]: “(1) the offender has been convicted of, and has to be sentenced for, a ‘serious personal injury offence’; (2) this predicate offence is part of a broader pattern of violence; (3) there is a high likelihood of harmful recidivism; and (4) the violent conduct is intractable (p. 338).”[67]

[104]      Further, she also clarified the applicable standards:

While the Crown must prove every dangerousness criterion beyond a reasonable doubt (R. v. Gardiner, [1982] 2 S.C.R. 368; R. v. Jones, [1994] 2 S.C.R. 229), what must be proven beyond a reasonable doubt with respect to these two prospective criteria is not their certainty, but their likelihood: Currie, at para. 42. This is so because “as a matter of practicality, the most that can be established in a future context is a likelihood of certain events occurring”: Lyons, at p. 364.[68]

[105]      In this case, the appellant is disputing the pattern requirement and the findings about the intractability of his conduct. He is also arguing that the sentence is unreasonable.

[106]      It is worth repeating and it must be underscored that the dangerous offender provisions “authorize the most extreme and clearest form of preventive sentence that can be imposed on an offender, indeterminate detention, in order to protect the public from a small group of persistent criminals with a propensity for committing violent crimes against the person”.[69]

[107]      These provisions are “clearly designed to segregate a small group of highly dangerous criminals posing threats to the physical or mental well‑being of their victims.”[70]

[108]      So much so, that pursuant s. 754 of the Criminal Code, the Attorney General must consent to such an application.[71]

[109]      I must stress that I do not doubt for a moment that the sentencing judge was fully aware of the importance of her decision,[72] a fact evidenced by the general meticulousness of her judgment. At the same time, this is one of those cases where we must conclude that “[a] judge who knows the law may still make mistakes in a particular case.”[73]

***

[110]      In this case and in many dangerous offender applications, the Correctional Service records provide an important source of information about the offender.

[111]      Now, what are the specific rules of evidence governing the admissibility of the documentation of the Correctional Service during a dangerous offender proceeding?

[112]      Dangerous offender proceedings are sentencing proceedings.[74] But they distinguish themselves in one aspect because s. 757 Cr.C. provides that “[c]haracter evidence is specifically admissible in dangerous offender and long-term offender hearings. Although considered prejudicial during trial, character evidence is necessary to determine the dangerous behaviour of the offender, as well as the possibility of community control of the risk posed.”[75]

[113]      In Boutilier, Côté J. made the following observations regarding s. 757 Cr.C.:

[40] Third, s. 757(a) provides that “evidence of character and repute may be admitted on the question of whether the offender is or is not a dangerous offender”. Such evidence, while grounded in past conduct, is future-oriented — it speaks to the likelihood of harmful recidivism and the intractability of the violent pattern of conduct. If a dangerousness finding could be made without any prospective assessment of risk, this type of reputational evidence would be irrelevant to the designation, since it tends to show the offender’s propensity for future bad acts. Indeed, it is not highly probative of past conduct, which is better proven by evidence of the prior bad acts themselves. Thus, by making evidence of character and repute relevant to the designation, this provision strongly suggests that a prospective assessment of future risk is part of the inquiry.

[114]      Moreover, documentary evidence containing hearsay evidence may be admissible if it is credible and trustworthy.[76]

[115]      The decision of the Manitoba Court of Appeal in Gregoire[77] is of particular interest since it is one of the earliest detailed discussions of the admissibility of documentation from the Correctional Service during a dangerous offender hearing.

[116]      The Court described the documentary evidence presented through the testimony of many correctional officers who had firsthand knowledge of the offender:

[52] During the sentencing proceedings the Crown introduced numerous documents from the files of the Correctional Service of Canada, including the National Parole Board, covering the extensive time during which the accused was in custody. These documents were tendered through the testimony of Ray Gawryluk, Laurette Burch, Connie Johannson, and Steven Geiger, whose experience within the prison/parole system and knowledge of the accused have already been extensively reviewed.

[53] All of these witnesses had worked within the penal system where the accused had spent most of his adult life. They were, as the trial judge found, "well acquainted with the accused and very familiar with his character and reputation in the corrections system, if not on the street".

[54] The extensive documents admitted in evidence through them were compiled as part of their regular duties and responsibilities within the correctional system. They were prepared for the purpose of recording the progress and problems experienced by the various inmates and include, in some instances, the opinions and recommendations of the authors. Their sources include the accused, other inmates, and other staff members. They are replete with hearsay statements about the accused based on the observations of others within the corrections system.[78]

[117]      The Court noted the admissibility of character evidence under s. 757 Cr.C. and underlined the fact that “the trial judge placed strong reliance on this documentary evidence, together with the evidence and opinions of the above-noted witnesses and the expert testimony […].”[79]

[118]      The Court then concluded that the evidence was admissible pursuant to s. 30 of the Canada Evidence Act as well as under the Ares v. Venner[80] exception to the hearsay rule, i.e., the entry or record should be received in evidence as prima facie proof of the stated facts:

[63] In our opinion, the documentary information in question was admissible in evidence not only pursuant to the provisions of s. 30(1) of the Canada Evidence Act, as concluded in R. v. Martin and many other cases, but at common law by virtue of the Supreme Court decision in Ares v. Venner earlier referred to and the extensive body of jurisprudence that has since followed and applied it. In that case, a civil medical malpractice case, the Supreme Court held at p. 626 that:

Hospital records, including nurses' notes, made contemporaneously by someone having a personal knowledge of the matters then being recorded and under a duty to make the entry or record should be received in evidence as prima facie proof of the facts stated therein. This should, in no way, preclude a party wishing to challenge the accuracy of the records or entries from doing so. Had the respondent here wanted to challenge the accuracy of the nurses' notes, the nurses were present in court and available to be called as witnesses if the respondent had so wished.

[64] This has now developed into a well-recognized exception to the hearsay rule and is applicable to the facts of this case. All of the authors of the documentary evidence had extensive personal knowledge of the accused because it was part of their job to acquire such information. It was also part of their job to make reports about the accused's activities and progress within the prison system that became part of the official record for the purposes of parole and prison discipline. They are clearly admissible as an exception to the hearsay rule.

[65] Having concluded that the documentary information was admissible as an exception to the hearsay rule, we find it unnecessary to consider its admissibility as hearsay evidence.[81]

[119]      While I do not disagree with the outcome in Gregoire, I much prefer to address the appellant’s challenge to the admissibility of hearsay evidence during a dangerous offender proceeding from a different perspective.

[120]      First, the tempting analogy to hospital records, nurses’ notes, and business records must yield to the qualitatively different role of the Correctional Service, which is distinct from that of a hospital or a business.

[121]      Criminal law is a “blunt instrument,”[82] and is the “most serious interference by the state with peoples’ lives and liberties.”[83] In particular, a sentence of “[i]mprisonment means the denial of freedom of movement and the segregation or isolation of an inmate from society.”[84] Consequently, “the deprivation of personal liberty is one of the harshest penalties society can impose.”[85] Even more so in the case of an indeterminate sentence.

[122]      Furthermore, as noted by LeBel J. in May v. Ferndale Institution,[86] the Supreme Court “abandoned the ‘hands‑off’ doctrine and extended judicial review to the decision-making process of prison officials by which prisoners were deprived of their residual liberty”[87] because of the potential danger “to plac[ing] prison officials in a position of virtual invulnerability and absolute power over the persons committed to their institutions.”[88]

[123]      Secondly, contrary to hospital records, nurses’ notes or business records, not all Correctional Service documents, reports or records are made contemporaneously by someone who has firsthand knowledge of the facts. Inevitably, the records will sometimes contain a varied level of hearsay, sometimes double, and even triple hearsay.

[124]      Thirdly, by its nature, some of the documentation prepared by the Correctional Service will contain assertions of fact, opinion evidence by correctional staff or a mix of the two.[89]

[125]      However, pursuant to s. 24 of the Corrections and Conditional Release Act (“CCRA”),[90] the Correctional Service has a duty to compile accurate and up-to-date information about an offender:

Accuracy, etc., of information

24 (1) The Service shall take all reasonable steps to ensure that any information about an offender that it uses is as accurate, up to date and complete as possible.

Marginal note: Correction of information

(2) Where an offender who has been given access to information by the Service pursuant to subsection 23(2) believes that there is an error or omission therein,

(a) the offender may request the Service to correct that information; and

(b) where the request is refused, the Service shall attach to the information a notation indicating that the offender has requested a correction and setting out the correction requested.

[126]      In Ewert, Wagner J. (as he then was) examined the extent of that statutory duty of accuracy in the context of the admissibility of psychological and actuarial assessment tools, which are not at issue in this case. He wrote:

[42] I accordingly reject the Crown’s argument that the obligation in s. 24(1) relates only to information-gathering and record-keeping — that is, that the CSC’s obligation extends only to ensuring that information about an offender is accurately recorded. Had Parliament so intended, it would have been simple enough to provide that the obligation was “to take all reasonable steps to ensure that any information the CSC uses is accurately recorded”. Moreover, an obligation to ensure accurate record-keeping would be relatively easy for the CSC to meet. The obligation s. 24(1) actually creates with respect to ensuring accuracy is qualified: what is required is that “all reasonable steps” be taken to ensure that information is “as accurate . . . as possible”. The fact that Parliament considered these qualifications necessary suggests that s. 24(1) requires more than simply good record-keeping.[91]

[Emphasis added]

[127]      While s. 24 of the CCRA is not determinative, I think that it goes a long way to support the conclusion that the documentation of the Correctional Service can be considered credible and trustworthy under the criteria identified in Gardiner[92].

[128]      It is also important to point out that an offender has a right pursuant to s. 24(2) of the CCRA to request the correction of any error in the information collected by the Correctional Service.

[129]      Yet, one must acknowledge that while the review of the relevant records is performed at the behest of the offender, it is nonetheless performed by prison authorities in relation to their own internal records.[93]

[130]      To be clear, the right to request a correction of a record does not lead to the conclusion that, in the absence of an offender’s request, all records are presumed accurate and trustworthy. Such a presumption would be totally unrealistic and incompatible with the rules of evidence with respect to aggravating factors, which I will discuss shortly.

[131]      In my view, it is highly preferable to address the admissibility of the Correctional Service documentation through the lens of the general rules of evidence at a sentencing hearing, as laid down in Gardiner by Dickson C.J.C. and subsequently codified at ss. 723 and 724 of the Criminal Code:

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.

It is a commonplace that the strict rules which govern at trial do not apply at a sentencing hearing and it would be undesirable to have the formalities and technicalities characteristic of the normal adversary proceeding prevail. The hearsay rule does not govern the sentencing hearing. Hearsay evidence may be accepted where found to be credible and trustworthy. 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.[94]

[Emphasis added]

[132]      Clearly, under Gardiner if the facts are “undisputed, the procedure can be very informal.”[95]

[133]      However, Gardiner contains an important caveat with respect to disputed facts, one which is occasionally disregarded or neglected when discussing its holding. Dickson C.J.C. explained that disputed facts should be proven beyond a reasonable doubt:

If the facts are contested the issue should be resolved by ordinary legal principles governing criminal proceedings including resolving relevant doubt in favour of the offender. To my mind, the facts which justify the sanction are no less important than the facts which justify the conviction; both should be subject to the same burden of proof. Crime and punishment are inextricably linked.

[…]

[B]oth the informality of the sentencing procedure as to the admissibility of evidence and the wide discretion given to the trial judge in imposing sentence are factors militating in favour of the retention of the criminal standard of proof beyond a reasonable doubt at sentencing.[96]

[Emphasis in the original]

[134]      This principle has never been abandoned and was legislatively enshrined as Charron J. explains in McIvor:

[12] […] When an aggravated fact is disputed at a sentence hearing, s. 724 of the Criminal Code provides that the Crown must establish its existence by proof beyond a reasonable doubt and the offender has the right to cross-examine any witness called for that purpose. […].[97]

[135]      Unsurprisingly, this approach is also applicable to dangerous offender proceedings as stated by the British Columbia Court of Appeal in Ziegler:

[7] A dangerous offender hearing is guided by the same evidentiary principles and objectives as other sentencing proceedings: R. v. Johnson, 2003 SCC 46, [2003] 2 S.C.R. 357 at para. 23. The Crown may submit hearsay evidence if it is reliable and credible. If an aggravating fact is challenged by the offender, however, the Crown must prove the disputed facts beyond a reasonable doubt in accord with the general principles that govern criminal proceedings, including resolution of any doubt in favour of the offender: R. v. Gardiner, [1982] 2 S.C.R. 368 at 414-415, 140 D.L.R. (3d) 612. The offender must, however, challenge any fact clearly and unequivocally: R. v. Ford, 2010 BCCA 105 at para. 59, 254 C.C.C. (3d) 442.[98]

[Emphasis added]

[136]      Therefore, the admissibility of reliable hearsay must not be confused with its probative value, nor should it be forgotten that the standard relating to disputed aggravating facts is the standard of proof beyond a reasonable doubt.

[137]      In St-Coeur, Fish J.A. (as he then was) wrote the following observations on this very issue:

As Justice Dickson makes clear, the trial judge, in considering sentence, need not invariably proceed in accordance with the procedural and evidentiary rules applicable before verdict. Judges have always enjoyed considerable latitude as to the sources and types of evidence to be admitted at the stage of sentence: Gardiner, supra, p. 514. They must take care, however, not to consider as aggravating factors any allegations which are neither clearly admitted nor proved by reliable evidence beyond a reasonable doubt.[99]

[Emphasis added]

[138]      The Ontario Court of Appeal came to a similar conclusion in Williams, a case relied upon by both parties.

[139]      The Court considered the admissibility and proper use of police synopses in a dangerous offender application under s. 753 Cr.C.[100] Rouleau J.A. wrote:

[49] As with any sentencing hearing, hearsay evidence is admissible so long as it is found to be “credible and trustworthy”: Gardiner, at p. 414. This common law principle is codified in s. 723(5) of the Criminal Code. Character evidence is also specifically admissible in a dangerous offender proceeding pursuant to s. 757 of the Criminal Code.

[140]      In Williams, the Court concluded “that while [police] synopses are generally admissible, they must be treated with caution.”[101]

[141]      Rouleau J.A. explained the proper approach to the use and assessment of police synopses in a dangerous offender proceeding:

[53] Despite the broad approach to admissibility at the sentencing stage, it is not the case that the offender is deprived of all protections: Jones, at p. 292. The Crown must prove disputed aggravating facts beyond a reasonable doubt: Jones, at p. 292, quoting Gardiner, at p. 414; see also s. 724(3)(e) of the Criminal Code. The corollary to this principle in a dangerous offender proceeding is that the Crown must prove the statutory elements of dangerousness beyond a reasonable doubt: Joseph A. Neuberger, Assessing Dangerousness: Guide to the Dangerous Offender Application Process, loose-leaf (Toronto: Thomson Reuters Canada, 2017), at pp. 6-5 to 6-6; Boutilier, at para. 36, n. 1; R. v. Jackson (1981), 61 C.C.C. (2d) 540 (N.S.C.A.), at p. 544, leave to appeal refused, [1982] S.C.C.A. No. 423; Ziegler, at para. 6.

[54] As described above, the sentencing judge accepted the entire contents of the police synopses as proven beyond a reasonable doubt. In my view, this was an error. The sentencing judge ought not to have treated this as an all or nothing decision. The synopses were properly admitted but the contents had to be considered carefully before being relied upon. Some basic facts set out in the synopses can be used for the purposes of establishing details such as dates and ages: Gibson (admissibility ruling), at para. 8; Gibson (dangerous offender designation), at para. 34. Other facts, where support can be found in other parts of the record, can likewise be relied upon: Gibson (dangerous offender designation), at para. 34. This does not, however, lead to the conclusion that the entire contents of the document can be taken as proven beyond a reasonable doubt.

[55] Due to the evidentiary frailties inherent in the nature of a police synopsis, caution is required when the sentencing judge is considering whether the contents of those records can, along with the rest of the record, provide the basis for a finding that the statutory elements of dangerousness have been proven beyond a reasonable doubt. The incidents set out in the synopses must be considered in light of all of the evidence led at the hearing. Certain parts of a synopsis may find support and confirmation, either directly or by reasonable inference, in other parts of the record. If so, it is open to the sentencing judge to rely on those incidents as evidence in support of a finding that the statutory elements of dangerousness, such as the requisite pattern of behaviour, are made out.

[Emphasis added]

[142]      The generous approach to admissibility is warranted because “[i]n the case of dangerous offender proceedings, it is all the more important that the court be given access to the widest possible range of information in order to determine whether there is a serious risk to public safety.”[102]

[143]      While Rouleau J.A. recognized that “the court must take a generous approach to admissibility in a dangerous offender proceeding”, he stressed that “once the evidence has been admitted, the court must then grapple with the appropriate weight to be accorded to the information contained within the synopses.”[103]

[144]      In my view, the recognized need for caution in Williams about police synopses is also apposite in regard to Correctional Service documentation. Furthermore, as with the testimony of live witnesses, there is no presumption of credibility or reliability attached to documentation.[104]

[145]      In the recent case of Auguste, this Court was asked to determine the admissibility of evidence concerning (1) the disciplinary correctional offences of an inmate and (2) pending criminal charges in dangerous offender proceeding. The Court articulated the applicable principles derived from s. 757 Cr.C.:

[10] L’appelant conteste l’admissibilité de la preuve de ses manquements carcéraux et de certaines causes pendantes.

[11] En sus des articles 723 et 724 du Code criminel, la procédure entourant la déclaration de délinquant dangereux ou à contrôler comporte une disposition spécifique concernant la preuve de moralité (« character ») qui peut être présentée. L’article 757 prévoit :

[12] Ce régime de preuve s’explique aisément par la nécessité de présenter une preuve tant sur les éléments rétrospectifs que prospectifs propres à l’évaluation requise avant de prononcer une déclaration de délinquant dangereux. En cette matière, « [p]our pouvoir faire l'évaluation exacte du délinquant qui est nécessaire pour fixer une peine appropriée, le juge chargé de déterminer la peine doit disposer de la plus grande gamme possible de renseignements ».

[13] Toutefois, la prudence s’impose à l’égard des condamnations disciplinaires dans les établissements correctionnels, mais cette information est pertinente et permet de tracer le portrait et la personnalité du délinquant. Rien n’indique que les juges n’ont pas respecté cette exigence.[105]

[146]      In Auguste, the Court relied on its prior decision in Bazile[106] where Vauclair J.A. warned of the need to be cautious with respect to the admissibility of correctional information:

[47] En matière de détermination de la peine, les rapports carcéraux ne devraient être utilisés qu'avec parcimonie et, encore plus rarement, sous forme de ouï-dire, ce qui exacerbe leur caractère préjudiciable inhérent, particulièrement lorsqu’on prétend y retrouver les aveux du délinquant. La vie en établissement de détention n'est pas de connaissance judiciaire. Elle fait aussi l’objet de stéréotypes tenaces. Les juges ne sont pas particulièrement bien équipés pour saisir pleinement la signification de manquements disciplinaires sans une preuve adéquate. Ces rapports doivent être interprétés avec prudence et à la lumière d’une preuve complète. Par conséquent, ils risquent de prolonger les débats sur des questions souvent très collatérales avec, à la clé, une faible valeur probante.

[147]      I must finally discuss a short endorsement from the Ontario Court of Appeal in Nguyen[107] invoked by both parties.

[148]      In Montour[108], my colleague Mainville J.A. quoted authors adopting the very passage of Nguyen alluded to by the parties:

[49] En effet, bien que le ouï-dire puisse constituer une preuve admissible lors de la détermination de la peine, le juge conserve une large discrétion tant en regard de l’admissibilité d’une telle preuve qu’au poids qui peut y être conféré. Comme le signalent les auteurs Robitaille et Winocur :

Hearsay evidence is admissible at the sentencing hearing. However, the judge has discretion regarding whether to accept the hearsay evidence, and the weight (if any) to be placed on it. The judge may require a witness with personal knowledge of the matter to come and testify. Accordingly, where counsel wish to establish a disputed fact, it may be rely on hearsay alone. In the words of the Ontario Court of Appeal [R. c. Nguyen, 2012 ONCA 534]:

The trial judge is entitled to rely on hearsay to make findings of fact on sentence even if the facts are disputed: s. 723(5). Of course, the party relying on the disputed fact carries the onus: s. 724(3)(b). we see no legal impediment to a party discharging that burden with disputed hearsay evidence, although trial judges will, quite properly, often decline to rely on hearsay evidence to prove facts in dispute.

[149]      I agree with Nguyen. A sentencing judge must certainly be prudent before concluding that disputed hearsay evidence establishes beyond a reasonable doubt disputed aggravating factors and “will, quite properly, often decline” to do so. Yet, a judge may do so.

[150]      Given the stringent standard of proof applicable to aggravating factors, one would expect that the judge’s reasons would articulate how the contradictory evidence on such a key issue, were resolved.[109] The deficiency in the judge’s reasons may preclude an appellate court from being satisfied that the fundamental principle of proof beyond a reasonable has been properly applied.[110] The deficiency may be such as to prevent meaningful appellate review of the correctness of the decision.[111]

***

[151]      As I have endeavoured to demonstrate, an important principle derived from Gardiner is that disputed aggravating facts must be proven by the prosecution beyond a reasonable doubt.

[152]      Unfortunately, as far as can be gathered from the submissions presented by the parties during sentencing, and before us, there seems to remain some outstanding uncertainty as to the relationship between the admissibility of reliable hearsay evidence and the process required to settle the debate about disputed facts.

[153]      Whenever disputed facts exist, they must be resolved. The fact that the reliable hearsay evidence is admissible does not and cannot resolve the issue of whether disputed facts have been proven beyond a reasonable doubt. Such findings must be explicitly made where the disputed facts are aggravating factors.

[154]      Obviously, the offender must challenge the disputed fact or facts clearly and unequivocally. And once such a challenge is made, the parties must discuss the matter with the sentencing judge and determine how they propose to resolve the disputed facts.

[155]      The prosecution may decide to rely on the evidence as presented in its documentary reliable hearsay form and only make submissions, or present the evidence through a witness or witnesses, or simply offer witnesses for cross-examination. The offender may also choose to resolve the disputed facts based on submissions, request that a witness with firsthand knowledge of the facts be heard, cross-examine witnesses or a combination of these options.

[156]      It is therefore incumbent upon all involved in a sentencing hearing, the judge and the parties, to clarify the true state of affairs and avoid, in advance, any misunderstanding about the disputed facts and their resolution.

[157]      The excerpts quoted earlier attest that the appellant presented detailed submissions with a view to convincing the judge to reject the hearsay evidence. Moreover, as the record clearly demonstrates, the appellant undeniably disputed the assessment report, the aggravating facts contained in it, and the opinion expressed therein. While appellant’s counsel did not refer to Gardiner or to s. 724 Cr.C. as such, no one could possibly be confused about the appellant’s position.

[158]      It may very well be that this important feature of the case remained largely inconspicuous because it arose late in the context of a long proceeding, following a second motion to reopen the prosecution’s case.

[159]      Whatever the reason, the appellant is right to point out that the judgment contains only one passage dealing with the assessment report:

The Defence argued that the Court should exclude this evidence because it has no probative value and is highly prejudicial. The Court disagrees with the Defence. As a matter of principle, hearsay is admissible at the sentencing stage, if it is reliable. The events that occurred were documented by CSC personal, consigned in Mr. Guilbeault’s file and eventually acted upon. In this case, the probative value of the evidence outweighs its prejudicial effects.[112]

[160]      There is indeed no other passage in the decision that discusses his specific submissions, nor any discussion with respect to the disputed facts. Furthermore, the judge discussed solely the admissibility of the evidence, but not its weight nor whether the disputed facts were established beyond a reasonable doubt.

[161]      The fact that the information was acted upon by the Correctional Service does not answer the appellant’s submissions.

[162]      While the prosecution did not concede the argument raised by the appellant, it recognized that the above-quoted excerpt is the only one specifically discussing the assessment report.

[163]      Naturally, “[a] trial judge is not required to refer to every item of evidence considered or to detail the way each item of evidence was assessed”[113] but the reasons should be “responsive to the case’s live issues and the parties’ key arguments”[114] even if “[t]heir sufficiency should be measured not in the abstract, but as they respond to the substance of what was in issue.”[115] The appellant is on solid ground when he argues that the judge did not weigh his submissions in her judgment.

[164]      Lest there be any doubt, I accept that the multiple references in footnotes to the assessment report clearly show that the judge was influenced by the report and its conclusions. However, whether she concluded that the disputed facts were established beyond a reasonable doubt is impossible to ascertain. There is no discussion which would demonstrate that the judge adverted to the requirement that the disputed facts be proven beyond a reasonable doubt[116]. Obviously, the rule established in Gardiner requiring proof beyond reasonable doubt is subject to the presumption of the correct application of the law. Yet, despite clear submissions by the appellant, I find that the reasons are conclusory.[117] The judge provided her conclusion, but not her reasons for doing so.[118]

[165]      Articulating clear and cogent reasons was particularly critical in this case because there was credible evidence of the appellant’s progress proffered by an experienced psychoeducator of the Correctional Service. She had the most extensive interactions with the appellant and the most developed professional relationship, far beyond anyone else’s involvement with him. This includes the prosecution’s psychiatrist who, at the time of his testimony, had no knowledge of the appellant’s progress and whose report was quite dated.

[166]      The judge’s reasons[119] do not explain to the appellant why she rejected the evidence about his progress beyond a somewhat brief conclusion that the appellant’s “positive experience at the RMHC was thus only a brief positive interlude”[120] and a finding that the “treatment prospects are, in Mr. Guilbeault’s case, nothing more than an expression of hope.”[121] Given the consequences of her decision, the trial judge had to engage with the substance of the evidence. Failure and relapse are to be expected from an offender affected by mental illness issues and do not necessarily preclude a conclusion of reasonable expectation of manageability.

[167]      Further, the Supreme Court accepted in Bertrand Marchand that “the conditions of confinement can be disproportionately harsh on individuals with mental disorders. The carceral setting can induce or augment disordered symptoms and, in turn, these symptoms may be met with security-driven interventions that exacerbate mental health issues in offenders.[122] Therefore, the context of the offences that were the subject of the assessment report cannot be ignored.

[168]      In short, a conclusion about intractability could only be made if the disputed facts were proven beyond reasonable doubt. Considering the testimony of the psychoeducator and the fact that the psychiatrist retained by the prosecution who was unaware of the appellant’s progress at the time of his testimony and whose expertise was out-of-date, I believe that the appellant was entitled to know why the trial judge was left with no reasonable doubt about treatability despite substantial progress.[123] I am mindful of the fact that “[a] failure to explain the rejection of a submission does not make the reasons deficient if the reasons demonstrate the acceptance of contrary evidence.”[124] But in this case and given the favorable evidence presented, more was required before an indeterminate sentence was imposed.

[169]      As this Court emphasized in Bolduc, the alternatives to an indeterminate sentence must be considered broadly and generously.[125] While the evidence of the psychoeducator could have been rejected, it was also capable of raising a reasonable doubt with respect to intractability. Again, an indeterminate sentence is exceptional[126] and is tantamount to giving up on the offender.[127]

[170]      The situation in this case is somewhat similar to the case of Mallette where the testimony of a correctional officer was rejected without sufficient reasons despite the fact that he was better acquainted with the offender than other witnesses and provided the most contemporaneous evidence.[128]

[171]      The presumption of correct application of the law cannot overcome the absence of any analysis of the submissions made by appellant’s counsel on the assessment report when the prosecution was allowed to reopen its case, particularly on clearly disputed facts.

[172]      The prosecution also argued that the appellant admitted the facts contained in the assessment report to the author of the report. This is true, but since the report was challenged, so was the appellant’s admission that was found therein.[129] Additionally, the report does not contain the context in which the admission was made and whether any explanations were given to the author.

[173]      I am fully aware that the appellant chose not to testify after the reopening of the prosecution’s case and that he did not seek to cross-examine the author’s report. Still, during the sentencing phase, he could, as he can during the trial phase,[130] challenge the prosecution’s case on the disputed facts and he did. At the sentencing stage, he was also entitled to the benefit of the doubt.[131]

[174]      The distinction between the admissibility of reliable hearsay during sentencing and its use where aggravating facts are disputed by the offender is important. Where the need to differentiate between the two is forgotten or overlooked, significant findings of fact are omitted which can, as it is the case here, unfortunately result in the need of holding a new hearing.

B. The Remaining Grounds of Appeal

[175]      The other grounds of appeal are all dependent on the evidence accepted by the trial judge and relevant to the intractability of the appellant’s conduct and its treatability.

[176]      I hesitate to delve deeply into these issues, but it is useful to briefly canvass them here, as this underscores of the need for a new hearing.

[177]      The appellant submits that two errors were made by the sentencing judge in the identification of the pattern. First, the pattern is based on the appellant’s personality traits, rather than on his criminal behaviour, contrary to accepted principles.[132]

[178]      Secondly, he posits that the reasons do not reveal any analysis of the link between the predicate offence, past criminal conduct and the assessment of future risk,[133] nor is there any evaluation of the identified pattern.

[179]      It is true that the sentencing judge did not analyze the existing case law with respect to the pattern requirement.[134] Rather she outlined her finding in a general fashion:

[18] The serious personal injury offenses committed by Mr. Guilbeault are part of a broader violent pattern that began when he was young. This pattern shows that Mr. Guilbeault has a tendency to perceive his environment as being hostile, has difficulty managing his emotions and reacts with impulsivity and aggressiveness. He has limited introspection capacities, no empathy for his victims and as a result, easily justifies the use of violence or blames others for his actions. The relevant evidence is summarised below.

[180]      In addition, the appellant faults the judge for not evaluating the incident described in the assessment report having in mind its correctional context.[135]

[181]      He suggests that the persistent and/or the repetitive pattern[136] must be determined by the sentencing judge[137] and not rely solely on a psychiatrist’s opinion.[138] Particularly where, in his view, as here, the contrary evidence that could raise a reasonable doubt is not appropriately weighed and marshalled.

[182]      While the assessment report was relevant to the treatability and manageability of the appellant’s behaviour[139], the outcome much depended on the disputed facts which were accepted by the judge.

[183]      The appellant also argues that the dangerous offender designation and/or the indeterminate sentence were unreasonable. As was the case in Aragon, I believe that “[w]e do not have the benefit of a settled record upon which to make this determination”[140] and those required by the other two grounds of appeal. In the circumstances, I prefer not to answer the two other grounds of appeal because they will need to be addressed at the new hearing.

[184]      Even if it wasn’t argued by the prosecution, I want to make clear that given the exacting standard applicable, this is not a rare case where the errors were harmless. There is a reasonable possibility that the outcome would have been different if the error had not been made.[141]

[185]      I would add this. A new and up-to-date report will be needed. In order to avoid unnecessary pitfalls, the parties are encouraged to identify the relevant documentary evidence to be submitted to the expert or experts in preparation for the new reports and the new hearing. They should also determine whether there is any disputed evidence and the witnesses that should be heard to resolve them.

[186]      For these reasons, I suggest that pursuant s. 759(3)(a)(ii) of the Criminal Code, the Court grants the appeal and orders a new hearing on both the designation and the sentence imposed on count 2 in file number 500-01-146666-166 and counts 6 and 7 in file number 500-01-146506-164.

[1]  R. v. Lyons, [1987] 2 S.C.R. 309, at 339 quoted in R. v. Boutilier, 2017 SCC 64, [2017] 2 S.C.R. 936, para. 28.

[2]  R. v. Boutilier, 2017 SCC 64, [2017] 2 S.C.R. 936, para. 34 quoting Lyons.

[3]  Id.

[4]  Id., para. 75.

[5]  Id., para. 28.

[6]  R. v. Natomagan, 2022 ABCA 48, para. 83.

[7]  R. v. Boutilier, 2017 SCC 64, [2017] 2 S.C.R. 936, para. 81.

[8]  R. c. Guilbeault, 2020 QCCQ 973 [Judgment under appeal].

[9]  Id., para. 82.

[10]  R. v. Straub, 2022 ONCA 47, para. 57.

[11]  Judgment under appeal, para. 1.

[12]  Id., para. 2.

[13]  Id., para. 56.

[14]  Id., para. 57.

[15]  Id., paras. 58-62.

[16]  Id., para. 63.

[17]  Id., para. 4.

[18]  Id., para. 66.

[19]  Id., para. 66.

[20]  Id., para. 68.

[21]  Id., paras. 73-74.

[22]  Id., paras. 77-80.

[23]  Judgment under appeal, para. 4.

[24]  Id., paras. 121, 139.

[25]  Id., para. 139.

[26]  Id., para. 8.

[27]  Id., paras. 142, 145.

[28]  Id., paras. 142, 147.

[29]  Id., paras. 148, 150.

[30]  Id., para. 154.

[31]  Id., para. 156.

[32]  Id., paras. 157-158.

[33]  Id., paras. 1-4.

[34]  Id., paras. 5-6.

[35]  Id., paras. 7-10.

[36]  Id., para. 12.

[37]  Id., para. 13.

[38]  Id., para. 14.

[39]  Id., paras. 115-117.

[40]  Id., para. 116.

[41]  Id., para. 117.

[42]  Id., para. 118.

[43]  Id., paras. 91-92.

[44]  Id., para. 119 in fine.

[45]  Id., para. 120.

[46]  Id., para. 121.

[47]  Id., para. 121.

[48]  Id., para. 122.

[49]  Id., para. 123.

[50]  Id., para. 125.

[51]  Id., para. 125.

[52]  Id., paras. 126-127, 133.

[53]  Id., para. 133.

[54]  Id., paras. 134-135.

[55]  Id., paras. 137-139.

[56]  The appellant relied on R. v. Garnot, 2019 BCCA 404, and the prosecution does not specifically mention the applicable standards.

[57]  R. v. Boutilier, 2017 SCC 64, [2017] 2 S.C.R. 936, para. 81.

[58]  2021 BCCA 36. See also R. v. Sohal, 2023 BCCA 256, paras. 98-99.

[59]  See the numerous decisions from our Court: Ouellet c. R., 2023 QCCA 106, para. 8; Élizée c. R., 2022 QCCA 852, para. 47; Duperron c. R., 2021 QCCA 832, para. 43; Morin c. R., 2019 QCCA 176, para. 13; Francoeur c. R., 2018 QCCA 1988, paras. 12, 30-33.

[60]  R. c. Guilbeault, 2020 QCCQ 973, para. 79, footnote 90.

[61]  The proceedings were conducted in both French and English. The Appellant testified in English.

[62]  The trial judge rejected the evidence from the security officer.

[63]  The prosecution is referring to the following sentence in the report: “Concernant les derniers comportements violents, il admet les gestes considérant que le tout a été filmé par les caméras”.

[64]  RE-1. The Assessment Report is dated December 19, 2019. The exhibit is sometimes referred wrongly as RI-1.

[65]  Bazile c. R., 2022 QCCA 1009, paras. 45-47; Auguste c. R., 2023 QCCA 20.

[66]  R. v. Lyons, [1987] 2 S.C.R. 309.

[67]  R. v. Boutilier, 2017 SCC 64, [2017] 2 S.C.R. 936, para. 26.

[68]  Id., para. 36, footnote 1. See R. v. Williams, 2018 ONCA 437, para. 53; R. v. Wong, 2023 ONCA 118, para. 66.

[69]  R. v. Boutilier, 2017 SCC 64, [2017] 2 S.C.R. 936, para. 3; Bolduc c. R., 2021 QCCA 257, para. 8; Auguste c. R., 2023 QCCA 20, para. 18.

[70]  R. v. Lyons, [1987] 2 S.C.R. 309, p. 347; Bolduc c. R., 2021 QCCA 257, paras. 8-10.

[71]  R. v. Lyons, [1987] 2 S.C.R. 309, p. 325; Joseph A. Neuberger, Assessing Dangerousness: Guide to the Dangerous Offender Application Process, loose-leaf (Release #2, 12/2022), Thomson Reuters, § 3:21-3:23.

[72]  2020 QCCQ 973, para. 7.

[73]  R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, para. 54.

[74]  R. v. Boutilier, 2017 SCC 64, [2017] 2 S.C.R. 936, para. 53.

[75]  Joseph A. Neuberger, Assessing Dangerousness: Guide to the Dangerous Offender Application Process, loose-leaf (Release #2, 12/2022), Thomson Reuters, § 6:18.

[76]  R. v. Gardiner, [1982] 2 S.C.R. 368, p. 414.

[77]  R. v. Gregoire (1998), 130 C.C.C. (3d) 65 (Man. C.A.).

[78]  R. v. Gregoire (1998), 130 C.C.C. (3d) 65 (Man. C.A.).

[79]  Id., para. 55.

[80]  [1970] S.C.R. 608.

[81]  R. v. Gregoire (1998), 130 C.C.C. (3d) 65 (Man. C.A).

[82]  R. v. Hutchinson, 2014 SCC 19, [2014] 1 S.C.R. 346, para. 18.

[83]  Id.

[84]  R. v. Shubley, [1990] 1 S.C.R. 3, pp. 10-11 (Cory J. dissenting).

[85]  National Research Council, The Growth of Incarceration in the United States: Exploring Causes and Consequences, Washington D.C., The National Academies Press, 2014, pp. 7-8.

[86]  2005 SCC 82, [2005] 3 S.C.R. 809.

[87]  Id., para. 25.

[88]  Id., para. 24, citing M. Jackson, Prisoners of Isolation: Solitary Confinement in Canada, University of Toronto Press, 1983, p. 82.

[89]  In R. v. Casemore, 2011 SKCA 14, at para. 5, the Court described as follows “the ‘prison records’ introduced by the prosecution through the correctional services officials who were called […] Generally speaking, they consist of prison intake reports, security assessments, psychological evaluations, program performance reviews, prison transfer decisions, prison incident reports, and so on. As such, they contained assertions of fact in some instances, opinions in others, and commentary in still others” [Emphasis added].

[90]   S.C. 1992, c. 20.

[91]  Ewert v. Canada, 2018 SCC 30, [2018] 2 S.C.R. 165.

[92]  R. v. Gardiner, [1982] 2 S.C.R. 368, p. 414; R. v. Smith, 2023 ONCA 575, para. 83.

[93]  See May v. Ferndale Institution, 2005 SCC 82, [2005] 3 S.C.R. 809, para. 63.

[94]  R. v. Gardiner, [1982] 2 S.C.R. 368, p. 414-415.

[95]  R. v. Gardiner, [1982] 2 S.C.R. 368, p. 414-415.

[96]  Id., p. 415.

[97]  R. v. McIvor, 2008 SCC 11, [2008] 1 S.C.R. 285, para. 12.

[98]  R. v. Ziegler, 2012 BCCA 353.

[99]  R. v. St-Coeur (1991), 69 C.C.C. (3d) 348 (Qué. C.A.), pp. 353-354.

[100]  R. v. Williams, 2018 ONCA 437.

[101]  Id., para. 1.

[102]  R. v. Jones, [1994] 2 S.C.R. 229, p. 290; Auguste c. R., 2023 QCCA 20, para. 12; R. v. Williams, 2018 ONCA 437, para. 48; R. v. Smith, 2023 ONCA 575, para. 38; R. v. Wong, 2023 ONCA 118, para. 58.

[103]  R. v. Williams, 2018 ONCA 437, para. 45.

[104]  Foomani c. R., 2023 QCCA 232, para. 70.

[105]  Auguste c. R., 2023 QCCA 20.

[106]  Bazile c. R., 2022 QCCA 1009.

[107] R. v. Nguyen, 2012 ONCA 534.

[108]  Montour c. R., 2020 QCCA 1648.

[109]  R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, paras. 43 and 55, sixth proposition.

[110]  Id., para. 43

[111]  Id., paras. 28 and 46; R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, paras. 52-53; D'Amours c. R., 2011 QCCA 1632, para. 58.

[112]  Judgment under appeal, para. 80, footnote 94.

[113]  R. v. J.M.H., 2011 SCC 45, [2011] 3 S.C.R. 197, para. 32.

[114]  R. v. Walker, 2008 SCC 34, [2008] 2 S.C.R. 245, para. 20.

[115]  R. v. Walker, 2008 SCC 34, [2008] 2 S.C.R. 245, para. 20.

[116]  On one aspect of her judgment, the judge alluded to the standard of proof (see footnote 113).

[117]  R. v. Maharaj (2004), 186 C.C.C. (3d) 247, (Ont. C.A.), para. 23 (leave to appeal denied [2005] 1 S.C.R. xiv): “Sheppard warns against conclusory reasons, that is, conclusions without explanations for them.”

[118]  R. v. Feeney, [1997] 2 S.C.R. 13, para. 32; Foomani c. R., 2023 QCCA 232, para. 101, footnote 75.

[119]  Judgment under appeal, paras. 138-139.

[120]  Id., para. 117.

[121]  Id., para. 138.

[122]  R. v. Bertrand Marchand, 2023 SCC 26, para. 149.

[123]  R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, para. 26; R. v. Gagnon, [2006] 1 S.C.R. 621, 2006 SCC 17, para. 21.

[124]  R. v. Jutras, 2023 ONCA 678, para. 8.

[125]  Bolduc c. R., 2021 QCCA 257, paras. 23-25.

[126]  Bolduc c. R., 2021 QCCA 257, para. 25.

[127]  Id., para. 7.

[128]  Mallette c. R., 2021 QCCA 1961, para. 17.

[129]  I am not expressing any opinion on the need to establish the admission through a full voir-dire. The issue was not debated in the appeal. See R. v. Campbell, [2003] OJ No 4085 (QL) (Ont. S.C.); R. c. Ste-Marie, 2021 QCCS 1911, paras. 15-16.

[130]  R. v. Gunning, 2005 SCC 27, [2005] 1 S.C.R. 627, para. 30.

[131]  R. v. Gardiner, [1982] 2 S.C.R. 368, pp. 415-416.

[132]  See R. v. Neve (1999), 137 C.C.C. (3d) 97 (Alta. C.A.).

[133]  R. v. Patel, 2020 BCCA 92, para 219.

[134]  See for example: R. v. Neve (1999), 137 C.C.C. (3d) 97 (Alta. C.A.); R. v. Dow, 1999 BCCA 177; R. v. Pike, 2010 BCCA 401 R. v. Hogg, 2011 ONCA 840; R. v. Walsh, 2017 BCCA 195; Courtemanche c. R., 2016 QCCA 881, para. 23.

[135]  R. v. Walsh, 2017 BCCA 195, para. 36.

[136]  See the recent case of R. v. Smith, 2023 ONCA 575 on the subtle distinction between the two.

[137]  R. v. Neve (1999), 137 C.C.C. (3d) 97 (Alta. C.A.), para. 199.

[138]  R. v. Walsh, 2017 BCCA 195, para 34.

[139]  R. v. Straub, 2022 ONCA 47, paras. 43 and 63-64.

[140]  R. v. Aragon, 2022 ONCA 244, para. 170.

[141]  R. v. Boutilier, 2017 SCC 64, [2017] 2 S.C.R. 936, para. 82; R. v. Sipos, 2014 SCC 47, [2014] 2 S.C.R. 423, para. 35; R. v. Aragon, 2022 ONCA 244, para. 172.