Citation: R. v. Bakker Date: 19990210
1999 BCCA 0084 Docket: CA020476
Registry: Vancouver
COURT OF APPEAL FOR BRITISH COLUMBIA
BETWEEN:
REGINA
APPELLANT
AND:
MARTIN OMKE BAKKER
RESPONDENT
Before: The Honourable Mr. Justice Goldie
The Honourable Madam Justice Ryan
The Honourable Mr. Justice Mackenzie
Ravi R. Hira, Q.C. Counsel for the Appellant
George J. Wool Counsel for the Respondent
Place and Date of Hearing Vancouver, British Columbia
November 23, 1998
Place and Date of Judgment Vancouver, British Columbia
February 10, 1999
Written Reasons by:
The Honourable Mr. Justice Goldie
Concurred in by:
The Honourable Mr. Justice Mackenzie
Concurring Reasons by:
The Honourable Madam Justice Ryan
Reasons for Judgment of the Honourable Mr. Justice Goldie:
[1] On 16 May 1995, Mr. Justice Paris dismissed the Crown's
application under Part XXIV of the Criminal Code of Canada for
an order that the respondent be found to be a dangerous
offender liable to an indeterminate custodial sentence. We
dismissed the appeal from this application with reasons to
follow. These are my reasons for concurring in this result.
[2] On 19 August 1994 after a 54-day trial the respondent was
found guilty by a jury on 23 counts charging him with a variety
of sexual offences. Acting under the provisions of Part XXIV
of the Criminal Code Crown counsel applied on 15 November 1994
for an order that Mr. Justice Paris, the trial judge, find the
respondent to be a dangerous offender and thereupon impose an
indeterminate sentence on him. The appendix to these reasons
sets out the counts on which the respondent was found guilty.
[3] The application came on before Mr. Justice Paris on 23
January 1995. After a lengthy hearing he dismissed the
application and on 16 May 1995 imposed a combination of
concurrent and consecutive sentences totalling eight years. On
charges of failing to appear and breach of recognizance the
respondent was convicted and sentenced to a one year term on
each, concurrent to one another, but consecutive to the sexual
assault convictions. This added one year to the totality of
eight years. At the time of sentencing the respondent had been
in custody since February, 1991.
[4] A notice of appeal under s. 759 of the Code was filed by
the Attorney General on 14 June 1995. By virtue of s-s. (2) of
s. 759 the Attorney General's right of appeal is limited to
grounds of law alone.
[5] The respondent's appeal against conviction was dismissed
by this Court on 28 February 1998.
[6] The nature of the offences, which occurred between 1975
and 1991 and involved six victims ranging in age from eight to
15 years at the time of their commission, can be summarized as
follows:
a) buggery;
b) attempted buggery;
c) gross indecency;
d) three counts of gross indecency, to wit, fellatio;
e) four counts of gross indecency, to wit, masturbation;
f) four counts of indecent assault;
g) six counts of sexual assault; and
h) three counts of touching for a sexual purpose.
[7] These are all offences upon which the dangerous offender
proceeding can be predicated. They are serious personal injury
offences as that phrase is defined in s. 752 of the Code. They
occurred over a long period of time and one case involved
multiple assaults of the same victim. In respect of four
victims related to the respondent he was a figure clothed with
another source of authority in whom they were doubly justified
in placing their trust. All victims suffered psychological
injury.
[8] The relevant section in Part XXIV as it was at the time
the hearing took place in 1995 provided:
753. [688] Where, upon an application made under
this Part following the conviction of a person for an
offence but before the offender is sentenced
therefor, it is established to the satisfaction of
the court
(a) that the offence for which the offender has
been convicted is a serious personal injury
offence described in paragraph (a) of the
definition of that expression in section 752 and
the offender constitutes a threat to the life,
safety or physical or mental well-being of other
persons on the basis of evidence establishing
(i) a pattern of repetitive behaviour by
the offender, of which the offence for
which he has been convicted forms a part,
showing a failure to restrain his behaviour
and a likelihood of his causing death or
injury to other persons, or inflicting
severe psychological damage on other
persons, through failure in the future to
restrain his behaviour,
(ii) a pattern of persistent aggressive
behaviour by the offender, of which the
offence for which he 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
behaviour, or
(iii) any behaviour by the offender,
associated with the offence for which he
has been convicted, that is of such a
brutal nature as to compel the conclusion
that his behaviour in the future is
unlikely to be inhibited by normal
standards of behavioural restraint, or
(b) that the offence for which the offender has
been convicted is a serious personal injury
offence described in paragraph (b) of the
definition of that expression in section 752 and
the offender, by his conduct in any sexual
matter including that involved in the commission
of the offence for which he has been convicted,
has shown a failure to control his sexual
impulses and a likelihood of his causing injury,
pain or other evil to other persons through
failure in the future to control his sexual
impulses,
the court may find the offender to be a dangerous
offender and may thereupon impose a sentence of
detention in a penitentiary for an indeterminate
period, in lieu of any other sentence that might be
imposed for the offence for which the offender has
been convicted.
ISSUES
1. Whether the trial judge misdirected himself in
considering the likelihood of future conduct in finding
the respondent was not a dangerous offender.
2. Whether the trial judge erred in his interpretation
of s. 753 of the Code.
3. Whether, if the respondent is a dangerous offender,
this Court ought to impose an indeterminate sentence or
remit the proceeding to the Supreme Court to impose
sentence.
Issue 1
[9] On behalf of the Crown Mr. Hira, Q.C., contended the trial
judge was in error under both s-s. (b) and paragraphs (i) and
(ii) of s-s. (a) of s. 753. He agreed that if the trial judge
erred under s-s. (b) it was not necessary to consider s-s. (a).
Parenthetically I might say here I was not persuaded the
evidence in the case at bar could reasonably support the
finding required under s-s. (a) of s. 753.
[10] The error in the trial judge's analysis is said to occur
in the following passage at page 12 of his reasons:
To repeat, the crux of the matter on the facts
of this case is whether the Crown has proven beyond a
reasonable doubt that it is likely that in future the
offender will fail to control his sexual impulses and
thereby cause injury, pain or other evil to other
persons. It seems to me that in this case
especially, the extent of that likelihood is best
judged by considering the pattern of his previous
offences, of course, giving due weight to the
assistance afforded by the psychiatric evidence. In
that process, it is important to consider whether the
same factors, conditions and opportunities for
reoffending will exist in the future.
[Emphasis added]
[11] Mr. Hira contends, and authority supports him, that the
required finding under s-s. 753(b) of a "likelihood in ... the
future" of harm must be derived from past conduct.
[12] In R. v. Currie (1997), 115 C.C.C. (3d) 205 (S.C.C.) the
Supreme Court of Canada had before it a Crown appeal from a
judgment of the Ontario Court of Appeal allowing the offender's
appeal from an indeterminate sentence. Upon the offender's
conviction on three counts of sexual assault involving the
sexual touching of three young girls on 5 November 1988 the
Crown applied under s. 753(b) of the Code. The trial judge
took into account a serious record of sexual assaults
commencing with a conviction in 1976 on counts of indecent
assault, rape, and possession of a weapon followed by a history
of deviant sexual activity. The psychiatric opinion he
accepted was to the effect the offender was a very dangerous
person to society who was not open to treatment and a risk to
women and female children. As well, the offender had made
damaging post incident admissions while in a mental health
centre.
[13] The Ontario Court of Appeal allowed the offender's appeal,
primarily, it appears, on the failure of the trial judge to
give the proper weight to the relatively less serious nature of
the predicate offences. (It should be noted that s-s. 759(1)
of the Code allows an offender to appeal an indeterminate
sentence on any ground of law or mixed law and fact. The
issues in the Supreme Court of Canada therefore included the
question of whether the indeterminate sentence was reasonably
supported by the evidence.) In the course of demonstrating the
Court of Appeal erred in finding fault with the trial judge's
reasons the Supreme Court closely examined s-s. 753(b).
[14] Speaking for the Court the Chief Justice of Canada made it
clear a trial judge need not focus on the objective seriousness
of a predicate offence in order to conclude a dangerous
offender designation was warranted. Of the scheme of s-s.
753(b) he said at 217:
[26] Parliament has thus created a standard of
preventive detention that measures an accused's
present condition according to past behaviour and
patterns of conduct.
[Emphasis added]
[15] We were referred to other authorities to the same effect.
I acknowledge that the operation of s. 753 requires two steps
or analytical stages. But, as will be seen, I have concluded
this does not require a trial judge to treat these stages in
isolation.
[16] The trial judge in the case at bar expressed the law
correctly in the first sentence of the extract of his reasons
quoted in paragraph [10] above. However, the concern is that
the second and emphasized sentence reveals a possible
impermissible modification of the statutory standard of past
behaviour and patterns of conduct.
[17] Mr. Hira says this occurred in three instances and
constituted misdirection, an error of law. He contends that in
the result a determinate sentence was imposed which ran counter
to the trial judge's findings that the respondent was an
untreatable paedophile whose behaviour was deeply entrenched.
These instances were, in Mr. Hira's submission, the following:
(a) The Offender will not have the opportunity to
re-offend against children;
(b) The Offender would not be able to use his
position of authority to gain access to
children;
(c) There was a possibility that aging, or "burn-
out", reduced the risk of re-offending in the
future.
[18] Of these, item (c) should more properly be referred to
simply as "age", as the respondent was in his 65th year at the
time of sentencing. As such, it and the other two items are
matters which Mr. Hira conceded the trial judge could take into
consideration in deciding whether, as a dangerous offender, the
protection of the public could be better served with a
determinate rather than indeterminate sentence. But, as he
forcefully contends, these considerations have no place in
determining whether the respondent is a dangerous offender.
[19] We were referred to R. v. Moore (1985) 16 C.C.C. (3d) 328
(Ont. C.A.) where it was held the trial judge erred in finding
he had a discretion not to find the respondent a dangerous
offender even when the statutory criteria, namely, a threat to
the life, safety or physical well being of other persons, had
been met.
[20] The trial judge in the case at bar did not purport to
exercise a discretion in concluding the respondent was not a
dangerous offender.
[21] I concluded the trial judge did not make the error
alleged. Instead of treating the two step process called for
under s-s. 753(b) in watertight compartments he treated it in a
manner which simply followed the structure of s. 753.
[22] Section 753 consists of one long sentence. The
introductory clause defines when and under what circumstance
the section may be invoked. Subsections (a) and (b), each self
contained, set out elements. If these, in either, are
established to the trial judge's satisfaction he or she is
authorized in the last clause of the section to impose the
status of dangerous offender on the convicted person. The same
last clause confers on the trial judge a discretion in respect
of the sentence.
[23] Section 753 provides a sentencing direction which in my
view the experienced trial judge applied in a straightforward
sequential manner as appears from his introductory observation
at page 2 of his reasons:
Section 753(b) is the provision in Part 24 of
the Code aimed specifically at sexual offenders.
To demonstrate that the offender is a dangerous
offender pursuant to that subsection, the Crown must
prove beyond a reasonable doubt that, one, he has
been convicted of a serious personal injury offence
as defined by Section 752 of the Code. Two, he has
by his past conduct shown a failure to control his
sexual impulses. Three, by his past conduct he has
shown a likelihood of failure in the future to
control his sexual impulses. Four, failure in the
future to control his sexual impulses will cause
injury, pain, or other evil to other persons.
Should the Crown succeed in that regard, the
court may then impose an indeterminate sentence, that
is, it may exercise its discretion to do so or not do
so.
[24] Then followed a passage in which the following sentence
appears:
. . . But in any event, the crux of this case on its
facts is whether the Crown has proven beyond a
reasonable doubt that there is a likelihood that in
the future the offender will fail to control his
sexual impulses.
[25] The trial judge here correctly states the burden of proof
on the Crown. See: R. v. Currie, supra, at 216.
[26] The dangerous offender hearing occupied some 20 days.
Most of the evidence of the victims had been heard during the
54 day trial of the predicate offences. There was of course
new evidence in the form of victim impact statements and, most
importantly, in the evidence of three psychiatrists, two of
whom testified at the sentencing hearing. Seven pages of the
trial judge's 16 page sentencing judgment are devoted to the
psychiatric evidence.
[27] Section 755 of Part XXIV required the evidence of not less
than two psychiatrists be heard at the dangerous offender
hearing; one nominated by the offender and one by the Crown.
The respondent refused to exercise his right of nomination.
The trial judge appointed a well qualified and highly
experienced forensic psychiatrist on his behalf. The
respondent refused to speak to the two appointed psychiatrists.
He was remanded in custody for examination under s. 756 of the
Code. There he was observed by, amongst others, the third
psychiatrist. While somewhat more forthcoming in general terms
with her he did not admit guilt or exhibit remorse. It should
be noted a remand for assessment now requires an order of the
court.
[28] While it is true an accused person cannot be compelled to
testify on sentencing neither can he or she obtain any
advantage from silence. The psychiatrists acknowledged the
respondent's attitude made their task more difficult.
[29] The trial judge's conclusion with respect to whether the
respondent was a dangerous offender rested on the evidence at
trial as well as that tendered at the sentencing hearing and
was expressed in these terms at page 13 of his reasons::
Having considered all the evidence I heard both
at trial and during the sentencing proceedings, and
bearing in mind the factors I have just reviewed, I
find I am not satisfied beyond a reasonable doubt
that it is likely that the offender will reoffend in
the future.
[30] It is appropriate to turn now to the evidence upon which
Mr. Hira relies in contending the trial judge looked to the
future.
[31] There were two matters which were existing facts at the
time of sentencing in May 1995: the appellant had ceased to
hold the offices of Assistant Deputy Regional Director of Court
Services and a District Registrar of the Supreme Court of
British Columbia as of February 1991 and he was within four
months of his 65th birthday.
[32] As to the first, there was evidence from some of the
victims the appellant had used these offices in recruiting and
impressing prospective victims; in coercing acquiescence in
sexual activity, and in threatening retaliation if complaint
was made of the activity.
[33] I am not persuaded the trial judge's reference to this
fact and its future consequence constituted reversible error.
[34] The example of a man whose behaviour merited a finding he
was a dangerous offender but who before sentence was so injured
as to render him incapable of re-offending was put to Mr. Hira.
He contended such a person should be declared a dangerous
offender before the trial judge exercised his discretion in
refusing to impose an indeterminate sentence. This would
designate the person as a dangerous offender when the
evidentiary basis for the likelihood of re-offending has been
removed. The possibility for prejudice arising from such a
designation would persist when any reason for such persistence
had disappeared.
[35] In the case at bar, the relationship between the
respondent's misuse of the ostensible authority of his offices
and the termination of these offices were relevant factors in
determining the risk of re-offending. So too, although to a
lesser extent, is the relevance of age at the likely
termination of a determinate sentence.
[36] Mr. Hira directed our attention to the following
observation by the trial judge at page 13 of his reasons:
I also note again that I am not satisfied that
he is the compulsive or out of control worst type of
pedophile that have come before the courts. That may
make his conduct in that regard seem morally more
offensive, but I think it makes him less dangerous.
Mr. Hira contended this indicated a failure to understand that
every sexual assault falls within the category of "serious
personal injury offence". In my view, the observation was
relevant to the issue of whether the sentence should be
determinate or non-determinate.
[37] I think the phrase "out of control" must refer to the kind
of past behaviour found in R. v. Currie, supra. There the
offender had engaged in flagrant and obsessive behaviour while
under surveillance and when apprehended said that he could not
help it. In the case at bar, one of the psychiatrists said of
the respondent:
. . . I am assuming he will receive a lengthy
sentence, such that by the time he leaves prison,
even if sentenced in a conventional manner, he will
be quite advanced in age. Although advanced age does
not eliminate potential for reoffence, it certainly
reduces the risk considerably, but unfortunately we
cannot make an accurate prediction as to the extent
of this reduction. The final issue to consider is
the extent of supervision in the community if and
when he may be released from prison. This is the
kind of man who you would obviously wish to supervise
and would likely be able to refrain from offending
under close supervision. The reasons for this
primarily focus on excluding his abilities to assault
children from his position of trust. He would
obviously need to be prevented from associating with
people who in turn have younger children, and in
particular from acting as a parent-surrogate as he
has previously done. Taking these non-treatment
factors into consideration, it is my opinion that Mr.
Bakker's relative risks to offend following a lengthy
sentencing, elimination of any position of trust and
adequate supervision in the community would be
relatively low although not totally eliminated.
[38] The trial judge examined the risk of re-offending in light
of past behaviour but with the knowledge of present facts as
interpreted by skilled professionals. In my view the Crown
failed to demonstrate that in so doing he misdirected himself
in law.
Issue 2
[39] Mr. Hira contended that since the trial judge found on the
evidence that
(a) the respondent was a paedophile;
(b) he was untreatable;
(c) his paedophilic behaviour was deeply entrenched;
he was bound to find the respondent a dangerous offender. This
involves consideration of the finding required in determining
whether or not a person is a dangerous offender.
[40] In R. v. Currie, supra, the Court, in upholding the trial
judge, said at 214 a finding that a convicted person is a
dangerous offender is a finding of fact, frequently based on
the competing credibility of experts. As long as it is
reasonable, it is a finding which should not be lightly
overturned.
[41] Mr. Hira relied upon the judgment of the Ontario Court of
Appeal in R. v. Poutsoungas (1989), 49 C.C.C. (3d) 388. In
that case the accused, found to be a dangerous offender, was
nevertheless sentenced to a fixed term as the trial judge
considered the offender could probably be cured within the term
of the sentence he imposed. The finding the convicted person
was a dangerous offender was not in issue.
[42] In my view, this case has no application to the case at
bar. The Ontario Court of Appeal declined to express a general
view on the scope of the discretion conferred by s. 688 of the
Code, the predecessor to s. 753. Its judgment was grounded on
the absence of any evidence supporting the trial judge's
conclusion. Where this happens the result is an error of law.
In the case at bar the trial judge decided on the whole of
evidence that he was not convinced beyond a reasonable doubt
that the respondent would not offend. Nothing was demonstrated
to us that would permit me to substitute my opinion for his.
See: R. v. Currie, supra.
Issue 3
[43] Mr. Hira urged us to treat the sentencing regime in s. 753
as unlike any other. That may be so but in my opinion the
trial judge's discretion under the final clause of s. 753 makes
it unnecessary to provide a definitive answer to this
submission except to this extent: beyond the adoption of
statutory criteria in determining whether a person is a
dangerous offender I do not see in s. 753 an intention on the
part of Parliament to abandon consideration of all the
principles of sentencing. It would have been easy to say upon
a person being found to be a dangerous offender he or she shall
thereupon be sentenced to an indeterminate term of
imprisonment. This would leave the review of the offender's
progress or lack of it wholly in the hands of the National
Parole Board under the review provisions found in s. 761 of the
Code. Parliament did not do this: it empowered the sentencing
judge to exercise a discretion. In the case at bar I concluded
that discretion was judicially exercised.
[44] Subsection (4) of s. 759 permits this Court, if it allows
a Crown appeal, to set aside the sentence imposed below and to
substitute an indeterminate sentence. In the alternative, a
new sentencing hearing could be ordered.
[45] We rejected the alternative of allowing the appeal and
substituting an indeterminate sentence as we concluded the
lengthy determinate sentence that was imposed fully reconciled
the principles of protection of the public and retribution with
the respondent's circumstances. That being so, we saw no
utility in ordering a new sentencing hearing.
[46] The foregoing constitute my reasons for concurring in the
dismissal of this appeal on behalf of the Attorney General.
"The Honourable Mr. Justice Goldie"
I AGREE:
"The Honourable Mr. Justice Mackenzie"
APPENDIX
Count 5:
Martin Omke BAKKER also known as Mark BAKKER, a male
person, between the 30th day of June, 1975 and the
lst day of September, 1975, at Surrey in the Province
of British Columbia, did indecently assault J.L.N., a
male child, contrary to Section 156 of the Criminal
Code of Canada, R.S.C. 1970, c. C-34.
Count 6:
Martin Omke BAKKER also known as Mark BAKKER, between
the 30th day of June, 1975 and the lst day of
September, 1975, at Surrey in the Province of British
Columbia, did commit an act of gross indecency with
J.L.N., a male child, to wit fellatio, contrary to
Section 157 of the Criminal Code of Canada, R.S.C.
1970, c. C-34.
Count 7:
Martin Omke BAKKER also known as Mark BAKKER, between
the 30th day of June, 1975 and the lst day of
September, 1975, at Surrey in the Province of British
Columbia, did commit an act of gross indecency with
J.L.N., a male child to wit masturbation, contrary to
Section 157 of the Criminal Code of Canada, R.S.C.
1970, c. C-34.
Count 8:
Martin Omke BAKKER also known as Mark BAKKER, between
the 30th day of June, 1975 and the 3lst day of
December, 1975, at or near Smithers, Vanderhoof and
elsewhere in the Province of British Columbia, did
commit buggery with J.L.N., a male child, contrary to
Section 155 of the Criminal Code of Canada, R.S.C.
1970, c. C-34.
Count 10:
Martin Omke BAKKER also known as Mark BAKKER, between
the 30th day of June, 1975 and the 3lst day of
December, 1975, at or near Smithers, Vanderhoof and
elsewhere in the Province of British Columbia, did
indecently assault J.L.N., a male child, contrary to
Section 156 of the Criminal Code of Canada, R.S.C.
1970, c. C-34.
Count 11:
Martin Omke BAKKER also known as Mark BAKKER, between
the 30th day of June, 1975 and the 3lst day of
December, 1975, at or near Smithers, Vanderhoof and
elsewhere in the Province of British Columbia, did
commit an act of gross indecency with J.L.N., a male
child, to wit fellatio, contrary to Section 157 of
the Criminal Code of Canada, R.S.C. 1970, c. C-34.
Count 12:
Martin Omke BAKKER also known as Mark BAKKER, between
the 30th day of June, 1975 and the 3lst day of
December, 1975, at or near Smithers, Vanderhoof and
elsewhere in the Province of British Columbia, did
commit an act of gross indecency with J.L.N., a male
child, to wit masturbation contrary to Section 157 of
the Criminal Code of Canada, R.S.C. 1970, c. C-34.
Count 14:
Martin Omke BAKKER also known as Mark BAKKER, a male
person, between the lst day of January, 1975 and the
3lst day of December, 1976, at Surrey, in the
Province of British Columbia, did assault J.L.N., a
male child, with intent to commit buggery, contrary
to Section 156 of the Criminal Code of Canada, R.S.C.
1970, c. C-34.
Count 15:
Martin Omke BAKKER also known as Mark BAKKER, a male
person, between the lst day of January, 1975 and the
3lst day of December, 1976, at Surrey, in the
Province of British Columbia, did indecently assault
J.L.N., a male child, contrary to Section 156 of the
Criminal Code of Canada, R.S.C. 1970, c. C-34.
Count 16:
Martin Omke BAKKER also known as Mark BAKKER, between
the lst day of January, 1975 and the 3lst day of
December, 1976, at Surrey, in the Province of British
Columbia, did commit an act of gross indecency with
J.L.N., a male child, to wit fellatio, contrary to
Section 157 of the Criminal Code of Canada, R.S.C.
1970, c. C-34.
Count 17:
Martin Omke BAKKER also known as Mark BAKKER, between
the lst day of January, 1975 and the 3lst day of
December, 1976, at Surrey, in the Province of British
Columbia, did commit an act of gross indecency with
J.L.N., a male child, to wit masturbation, contrary
to Section 157 of the Criminal Code of Canada, R.S.C.
1970, c. C-34.
Count 18:
Martin Omke BAKKER also known as Mark BAKKER, between
the 3lst day of December, 1980 and the lst day of
January, 1982, at or near New Westminster, in the
Province of British Columbia, did indecently assault
J.M., a female person, contrary to Section 149 of the
Criminal Code of Canada, R.S.C. 1970, c. C-34.
Count 19:
Martin Omke BAKKER also known as Mark BAKKER, between
the 3lst day of December, 1980 and the lst day of
January, 1982, at or near New Westminster, in the
Province of British Columbia, did commit an act of
gross indecency with J.M., a female person, to wit
masturbation, contrary to Section 157 of the Criminal
Code of Canada, R.S.C. 1970, c. C-34.
Count 21:
Martin Omke BAKKER also known as Mark BAKKER, between
the 3rd day of January, 1983 and the 13th day of
December, 1988, at or near Chilliwack and New
Westminster, and at Vancouver, in the Province of
British Columbia, did commit sexual assault on
D.R.M., contrary to Section 246.1 of the Criminal
Code of Canada, R.S.C. 1970, c. C-34.
Count 22:
Martin Omke BAKKER also known as Mark BAKKER, between
the 1st day of January, 1982 and the lst of January,
1988, at or near Chilliwack and New Westminster, and
at Vancouver, in the Province of British Columbia,
did commit gross indecency with D.R.M., contrary to
Section 157 of the Criminal Code of Canada, R.S.C.
1970, c. C-34.
Count 23:
Martin Omke BAKKER also known as Mark BAKKER, between
the 11th day of December, 1988, and the lst of
January, 1990, at or near Chilliwack and Vancouver,
in the Province of British Columbia, did commit
sexual assault on D.R.M., contrary to Section 271 of
the Criminal Code of Canada, R.S.C. 1970, c. C-34.
Count 24:
Martin Omke BAKKER also known as Mark BAKKER, between
the 11th day of December, 1988, and the lst of
January, 1990, at or near Chilliwack and Vancouver,
in the Province of British Columbia, being in a
position of trust or authority towards D.R.M., a
young person, did for a sexual purpose touch D.R.M.
with his hand, contrary to Section 153 of the
Criminal Code of Canada, R.S.C. 1970, c. C-34.
Count 25:
Martin Omke BAKKER also known as Mark BAKKER, between
the 11th day of December, 1988, and the lst of
January, 1990, at or near Chilliwack and Vancouver,
in the Province of British Columbia, being in a
position of trust or authority towards D.R.M., a
young person, did for a sexual purpose invite D.R.M.
to touch with his hand, the body of Martin Omke
BAKKER also known as Mark BAKKER, contrary to Section
153 of the Criminal Code of Canada, R.S.C. 1970, c.
C-34.
Count 26:
Martin Omke BAKKER also known as Mark BAKKER, between
the 30th day of June, 1986, and the lst of September,
1986, at or near Chilliwack, in the Province of
British Columbia, did commit a sexual assault on
D.M., contrary to Section 246.1 of the Criminal Code
of Canada, R.S.C. 1970, c. C-34.
Count 27:
Martin Omke BAKKER also known as Mark BAKKER, on or
about the 18th day of January, 1991, at or near
Vancouver, in the Province of British Columbia, did
commit sexual assault on P.O., contrary to Section
271 of the Criminal Code of Canada, R.S.C. 1970, c.
C-34.
Count 28:
Martin Omke BAKKER also known as Mark BAKKER, on or
about the 18th day of January, 1991, between
Chilliwack and Vancouver, in the Province of British
Columbia, did commit sexual assault on P.O., contrary
to Section 271 of the Criminal Code of Canada, R.S.C.
1970, c. C-34.
Count 31:
Martin Omke BAKKER also known as Mark BAKKER, between
the lst day of January, 1991, and the 31st day of
January, 1991, at or near Chilliwack, in the Province
of British Columbia, did commit sexual assault on
D.M., contrary to Section 271 of the Criminal Code of
Canada, R.S.C. 1970, c. C-34.
Count 32:
Martin Omke BAKKER also known as Mark BAKKER, between
the lst day of January, 1991, and the 31st day of
January, 1991, at or near Chilliwack, in the Province
of British Columbia, being in a position of trust or
authority towards D.M., a young person, did for a
sexual purpose touch D.M., a young person, with his
hand, contrary to Section 153 of the Criminal Code of
Canada, R.S.C. 1970, c. C-34.
Reasons for Judgment of the Honourable Madam Justice Ryan:
[47] I agree with my colleagues that this appeal must be
dismissed. But my understanding of the dangerous offender
legislation in force at the time that Mr. Bakker was sentenced
differs from that of my colleagues. Since the legislation was
subsequently amended these reasons will likely affect only the
respondent's case. For that reason I will keep my reasons
brief.
[48] I agree with counsel for the Crown, Mr. Hira, that s. 753
of the Criminal Code sets out a two-step process. At the first
stage the trial judge must determine whether the offender meets
the dangerous offender criteria. If so, the accused must be
declared to be a dangerous offender. If the offender is
declared to be a dangerous offender the trial judge must next
decide whether an indeterminate sentence ought to be imposed.
[49] Mr. Hira submitted that the trial judge fell into error in
this case by conflating the two steps. Mr. Hira submitted that
in determining dangerousness the trial judge ought to have
limited himself to an analysis of Mr. Bakker's past behaviour.
He ought not to have considered Mr. Bakker's likely access to
children on his release nor the effects of his advancing age.
[50] There is considerable support for this submission in the
case law. In R. v. Carleton (1981), 69 C.C.C. (2d) 1 (Alta.
C.A.) at p. 8, McGillvray C.J.A. said this:
Turning, then, to this case, one issue is
whether in finding an offender to be a dangerous
offender, a trial judge may look at the probability
of cure in the future, or whether the probability of
cure is something which goes only to the exercise of
the discretion as to the appropriate sentence.
For the reasons mentioned, I am of the opinion
that treatment or cure is not relevant in the
question of whether one is a dangerous offender.
That is a determination to be made on past conduct.
[Emphasis added]
[51] The Supreme Court of Canada affirmed the majority decision
in Carleton, [1983] 2 S.C.R. 58, stating:
We are all of the view that the appeal fails and
must be dismissed. We find no error in the judgment
of the majority in the Court of Appeal of Alberta.
[52] In R. v. Jack, [1998] B.C.J. No. 458 at para. 30, Esson
J.A. for the court, approved the passage from Carleton I have
reproduced at paragraph 50.
[53] In R. v. Currie (1997), 115 C.C.C. (3d) 205 (S.C.C.) Lamer
C.J.C. said at para. 26:
Parliament has thus created a standard of
preventive detention that measures an accused's
present condition according to past behaviour and
patterns of conduct.
[Emphasis added]
[54] Our attention was drawn to other cases which have
considered factors beyond past conduct in determining
dangerousness. In R. v. J.H.B. (1995), 101 C.C.C. (3d) 1
(N.S.C.A.), the court considered the offender's diary entries.
In R. v. Oliver (1997), 114 C.C.C. (3d) 50 (Alta. C.A.), the
court examined the offender's statements to a psychiatrist. In
R. v. George (1998), 126 C.C.C. (3d) 384, this Court examined
the past conduct of the offender against the backdrop of the
offender's aboriginal status and social situation. The Code
itself, by virtue of s. 755, requires a consideration of
psychiatric evidence. Section 757 allows the Crown to
introduce evidence of character and repute with respect to
whether or not the offender is a dangerous offender.
[55] In my view these cases and Code sections do not detract
from the notion that past conduct is the measure of the
offender's dangerousness. These cases stand for the
proposition that past conduct need not be assessed in a vacuum.
Such matters as psychiatric evidence, social background, and
offenders' statements may give context to, and assist the trial
judge in assessing, past conduct. But it is past conduct, not
future events, which determines dangerousness.
[56] In the case at bar the trial judge considered what effect
future events might have in modifying Mr. Bakker's present
condition. In my view this was an error.
[57] The trial judge found that the offender was an untreatable
paedophile whose behaviour was clearly entrenched. In my view
he ought to have concluded that Mr. Bakker was a dangerous
offender.
[58] Had he done so the trial judge would then have been
obliged to consider whether he ought to impose an indeterminate
sentence. It is at this stage of the proceedings that he was
entitled to consider the effects of aging and the fact that he
would not longer be in a position to have easy access to
children.
[59] I am not persuaded that had he approached his task in the
proper fashion the trial judge would have reached a different
conclusion. In other words, this error of law could not affect
the outcome. I am not persuaded that the imposition of a
determinate sentence was unreasonable.
[60] I agree with my colleagues that this appeal should be
dismissed.
"The Honourable Madam Justice Ryan"
Original Document
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