A Decrease of Judicial Discretion In Action: R v Szostak
The Supreme Court of Canada (“SCC”) recently denied leave to appeal from the decision of the Court of Appeal for Ontario (“ONCA”) in R v Szostak, 2014 ONCA 15. In this case Mr. Szostak appealed from his sentence of 6 years imprisonment, while the Crown appealed the decision of the trial judge to not impose the “dangerous offender” declaration onto Mr. Szostak. Mr. Szostak was convicted of assault causing bodily harm, aggravated assault, assault with a weapon, possession of a weapon for a purpose dangerous to the public, uttering threats, obstruction of justice and seven counts of breach of probation. The ONCA dismissed the conviction appeal and allowed the Crown sentence appeal to find that Mr. Szostak was a dangerous offender.
Mr. Szostak submitted that the trial judge erred in not properly applying the approach to credibility in R v W (D),  1 S.C.R. 742, and also in not providing adequate reasons. However, Mr. Szostak did not raise a constitutional argument in opposing the dangerous offender legislation.
The ONCA found that the trial judge had properly addressed credibility in weighing the testimony of the complainant. The ONCA also noted that the Crown appeal is limited to questions of law alone, in accordance with s. 759(2) of the Criminal Code, R.S.C., 1985, c. C-46.
On the issue of the sentence appeal by the Crown, the Court considered the appellant’s history of violent crimes and incarceration, beginning when Szostak was 17 years old and was convicted of robbery in an incident where he punched a boy and stole his bicycle. From there, Mr. Szostak’s involvement with crime escalated, a factor that the Crown relied on in argument that Mr. Szostak should be labelled a dangerous offender.
At the dangerous offender hearing a psychologist and a psychiatrist testified to Mr. Szostak having an anti-social personality disorder. Both of the experts gave the opinion that Mr. Szostak fit the criteria for a dangerous offender under s. 753(1)(a)(i) and (ii), however, with treatment he could live in the community.
The trial judge took note of the seriousness of the offences of assault causing bodily harm and aggravated assault under s. 752 but concluded that Mr. Szostak was not a dangerous offender as the offences did not fit a pattern as required by 753(1)(a)(i) or (ii). The trial judge noted that there had been four offences that had been committed over four years and all but one occurred when Mr. Szostak was consuming alcohol or drugs.
The trial judge questioned the application of the title and cited case law that favoured limiting the dangerous offender designation to a section of offenders who pose an “unacceptable risk to public safety.” The trial judge went on to reason that “not all violent offenders are Dangerous Offenders within the meaning of the Criminal Code,” thus suggesting the designation should be limited to particularly egregious crimes with a danger of repetition. Finding that Mr. Szostak did not fit this categorization, the trial judge sentenced him to six years in prison with three years credit for custody pre-sentencing.
The ONCA disagreed with this approach in acknowledging the change in the dangerous offender legislation. The history of dangerous offender legislation was noted, particularly in terms of the narrowing of judicial discretion to not apply the dangerous offender designation to a person who fits the definition. However, discretion was also seen to be broadening in terms of the sentencing options open to the judge under this designation.
Does the label “dangerous offender” turn into a self-fulfilling prophecy? Is it a label that is too readily applied to someone who has already been found guilty of a crime?
The leading case of R v Lyons,  2 R.C.S. was discussed as that which dealt with the dangerous offender legislation in 1977, and one in which a challenge to the legislation under ss. 7, 9, 11 and 12 of the Canadian Charter of Rights and Freedoms was raised and rejected by the Supreme Court in that case. The legislation was found to not be arbitrary nor represent cruel and unusual punishment. It was also determined that the legislation would apply to a limited group.
Significantly it was highlighted by the Court of Appeal that the main difference in the wording of the legislation from that time until the present was adopted in 2008. The 2008 change in the legislation represented the narrowing of judicial discretion with the change in the important word of “may” to “shall,”—a word which signifies “must” in legal language.
Thus Mr. Szostek was seen to fit the “dangerous offender” definition under s. 752, having committed a serious personal injury offence listed in the section. Further, the ONCA found that the trial judge erred in law in not finding that the pattern of offences required by s. 753(1)(a)(i) or (ii) existed in the case.
The ONCA agreed with the Crown in holding that Mr. Szostak exhibited
i) a pattern of repetitive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a failure to restrain his or her behaviour and a likelihood of causing death or injury to other persons, or inflicting severe psychological damage on other persons, through failure in the future to restrain his or her behaviour,
ii) a pattern of persistent aggressive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a substantial degree of indifference on the part of the offender respecting the reasonably foreseeable consequences to other persons of his or her behaviour
The ONCA held that the trial judge erred in finding that the pattern of behaviour criteria was not made out because the incidents were spontaneous and did not demonstrate intractability.
The shift in the dangerous offender legislation in 2008 represents one of the instances of conservative legislation to limit judicial discretion in sentencing. The change in the wording from “may” to “shall” in the dangerous offender legislation means that the number of people who will be included under this category will grow.
Although a constitutional challenge of the legislation was not present in this case, elements of the dangerous offender legislation have been challenged in this way in other lower level courts, both in British Columbia and Ontario.
The legislation shifts the onus onto the offender to demonstrate that he or she his not a dangerous offender. But does it make sense to automatically categorize more and more criminals with the likes of Paul Bernardo and Robert Pickton when they have not committed crimes on these levels? Is it really a helpful designation to lump assault in with far more serious crimes? How can this possibly help offenders to become law-abiding members of the community?
It will be interesting to watch for more cases that do raise these questions in constitutional argument reach the Supreme Court level as it is not clear that this legislation provides anything other than an expanded scope of criminality and imprisonment and a reduced opportunity for judicial discretion.