R v Sipos: When to Exercise Curative Powers
In R v Sipos, 2014 SCC 47 [Sipos], the Supreme Court of Canada (“SCC”) unanimously concluded that the new evidence presented by James Peter Sipos to the Ontario Court of Appeal (“ONCA”) did not place the appeal “in that exceptional category in which the evidence is sufficiently compelling that it demands appellate intervention” (Sipos, para 49). As such, Cromwell J. dismissed the appeal and upheld the dangerous offender designation (para 50).
In upholding the decision of the trial judge (Lofchik J.), the SCC made important assertions about the curative powers of appellate courts and the role of fresh evidence in dangerous offender appeals.
Procedural History and Developments in Legislation
In April 1996, Lofchik J. convicted Mr. Sipos of multiple sexual offences and physical assaults against three women committed from the mid-1970s to the mid-1980s. In March 1998, Lofchik J. found that Mr. Sipos was a dangerous offender and imposed an indeterminate sentence ( OJ No 985 (QL)).
Between the time of the convictions and the dangerous offender proceeding, new legislation was created that impacted Mr. Sipos’ case. In 1997, the Criminal Code, RSC 1985, c C-46 was amended to add a new designation of long-term offenders where the court must be satisfied that “there is a reasonable possibility of eventual control of the risk in the community” (SC 1997, c 17, s 4). While the new provisions, particularly s. 253.1(1)(c), were in effect at the time Mr. Sipos was found to be a dangerous offender, Lofchik J. failed to consider the provisions in formulating his decision.
Mr. Sipos appealed from both the convictions and sentence. In May 2001, the Ontario Court of Appeal (ONCA) dismissed the convictions appeal and did not deal with the sentencing appeal (R v Sipos, 2001 CanLII 8541).
In 2003, the SCC released a decision in R v Johnson,  2 SCR 357 [Johnson], which is of significant relevance to Mr. Sipos’ appeal. According to Cromwell J., the SCC in Johnson found that,
in dangerous offender proceedings that occurred after the new long-term offender provisions came into force…judges must consider the option of a long-term offender designation, which may lead to a determinate sentence followed by a long-term community supervision, before declaring a defendant to be a dangerous offender and imposing an indeterminate sentence (Sipos, para 10, citing Johnson).
In failing to consider the recently enacted long-term offender provisions, Lofchik J.’s judgment constituted a legal error in light of the decision in Johnson. As such, in 2008, the ONCA granted leave to reopen Mr. Sipos’ unresolved sentence appeal (R v Sipos, 2008 ONCA 325).
The Fresh Evidence
In August 2012, the appeal on the merits was heard by the ONCA. Mr. Sipos filed fresh evidence which consisted of a risk assessment of Mr. Sipos’ psychiatric status, prepared by Dr. Jeff McMaster in 2010, and information about Mr. Sipos’ performance in sexual offender maintenance programs while in custody. While Dr. McMaster concluded that Mr. Sipos “continue[d] to meet the standard for being found a dangerous offender…” (Sipos, para 46), he suggested that Mr. Sipos was “now suitable for graduate release and reintegration into the community” (para 47).
The ONCA Judgment
On appeal, the ONCA concluded that Lofchik J. erred in not considering the long-term offender option, and as such, allowed the new evidence. However, the ONCA ultimately found that the new evidence did not cast any doubt that an indeterminate sentence was appropriate.
When Should an Appellate Court Exercise its Curative Powers?
When addressing a dangerous offender appeal, an appellate court may use its curative power to dismiss an appeal despite there being a legal error at first instance. According to Cromwell J., “[t]his power may be used only where the legal error was ‘harmless’ in the sense that there is no reasonable possibility that the result would have been different had the error not been made” (Sipos, para 35). To determine the impact of the error on the outcome, the appellate court may choose to admit fresh evidence. However, as stated by the SCC in R v Palmer,  1 SCR 759 [Palmer], “[t]he evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial” (Palmer, 775).
Cromwell J. concluded that there failed to be a connection between the fresh evidence and the legal error made by Lofchik J. Additionally, Cromwell J. found that “[t]here is no suggestion that the judge’s failure to consider a long-term offender designation in any way affected the evidentiary record before him or that he might have weighed the evidence differently if he had considered the long-term offender option” (Sipos, para 38). As such, it was appropriate for the ONCA to exercise its curative powers and dismiss the appeal despite the existence of an error of law.
The SCC’s analysis of this issue is of particular importance as it demonstrates how flawed an alternative approach to exercising curative powers could be. On appeal, Mr. Sipos proposed a new approach and maintained that “every legal error made by the sentencing judge requires the appellate court to direct a new hearing if there is any reasonable possibility that a different sentence would now be imposed” (Cromwell J. paraphrasing Mr. Sipos in Sipos, para 39). According to Cromwell J., an alternative such as this would depart from the correct focus of when to exercise the curative powers and instead, wrongly focuses on the “offender’s current prospects for control in the community” (para 39).
Additionally, losing the true focus of the curative powers in turn would create a low threshold for obtaining a new sentencing hearing. On these grounds, according to Cromwell J., “any legal error, even though it could have had no conceivable impact on the sentencing judge’s decision, would require a new hearing unless the same result would almost inevitable be reached now” (para 39). This would result in the appellate review process for legal error being converted into a process for sentencing by instalment (para 39).
After completing his analysis regarding fresh evidence and curative powers, Cromwell J. concluded that there was no role for fresh evidence in relation to the curative powers of appellate courts in the present case.
Was the Dangerous Offender Designation Unreasonable?
As stated by the SCC in R v Currie,  2 SCR 260 [Currie], “the role of an appellate court is to determine if the dangerous offender designation was reasonable” (Currie, para 33). According to Cromwell J., in determining the reasonableness or unreasonableness of the trial judge’s decision to implement a dangerous offender designation, “the appellate court may review the sentence in light of the whole record, including any admissible fresh evidence” (Sipos, para 42).
The four part test outlined in R v Lévesque,  2 SCR 487 (para 35) and R v Angelillo,  2 SCR 728 (para 13), sets out the applicable framework for admitting evidence of an offender’s rehabilitation efforts and prospects after the original sentencing. However, appellate courts have rarely agreed to intervene in matters solely based on evidence of this nature: see R v TL, 2008 ONCA 766; and R v Mason (2001), 147 OAC 388 (ONCA).
On these grounds, Cromwell J. concluded that, “Dr. McMaster’s report, viewed in light of the full record before the sentencing judge, falls considerably short of showing that the dangerous offender designation was unreasonable” (Sipos, para 48). Additionally, Cromwell J. agreed with Doherty J.A. that, had Lofchnik J. had access to the new evidence at the time of the dangerous offender designation ruling, “there is no reasonable possibility that the result would have been different” (para 48). Therefore, there was insufficient evidence to show that the dangerous offender designation was unreasonable.