In the case of R. v. Sipos, the accused was convicted of multiple sexual offences and physical assaults in 1996. In 1998, he was declared a dangerous offender under s. 753 of the Criminal Code and given an indeterminate sentence. Between the time of his convictions and his designation as a dangerous offender, the Criminal Code was amended to add the designation of long-term offender, which allows for the imposition of a supervision order not exceeding ten years. The sentencing judge did not consider the long-term offender designation before designating Mr. Sipos a dangerous offender. Mr. Sipos appealed his sentence and filed fresh evidence about his post-conviction conduct. On July 10, 2014, the Supreme Court of Canada released its decision in R. v. Sipos, in which Cromwell J. addressed the appeal of a dangerous offender designation and the role of fresh evidence.
Cromwell J. explained that an offender may appeal a dangerous offender designation on any ground of law or fact or mixed fact and law. Although there is no reference in the Criminal Code to appellate review of the fitness of the designation, Cromwell J. noted that the Court has determined that “appellate review is concerned with legal errors and whether the dangerous offender designation was reasonable” (para. 23).
On the first question of whether the sentencing judge committed a legal error, Cromwell J. held that:
the appellate court may use its curative power to dismiss an appeal even though there was a legal error at first instance. This power may be used only where the legal error was “harmless” in the sense that there is no reasonable possibility that the result would have been different had the error not been made (para. 35).
Cromwell J. further held that fresh evidence generally plays no role in determining whether a sentencing judge committed a legal error in imposing a dangerous offender designation because the appellate review is concerned with what the judge might have done had he applied the correct legal principles. However, Cromwell J. observed that:
the appellate court must also consider whether the judge’s legal error may have resulted in exclusion of evidence that ought to have been admitted or otherwise affected the state of the evidentiary record or the judge’s assessment of it… In cases of that nature, fresh evidence meeting the Palmer test might be admitted so that the appellate court can properly consider the impact of the error on the outcome. But generally speaking, where proposed new evidence has nothing to do with the possible impact of the legal error on the sentencing judge’s decision, it should not be considered in relation to the use of the curative power. This is nothing more than application of the second Palmer criterion: that the evidence be relevant in the sense that it bears upon a decisive or potentially decisive issue relating to the sentence (para. 36).
On the second question of whether the dangerous offender designation was unreasonable, Cromwell J. held that there is “potentially a wider role” for fresh evidence in relation to appellate review on that basis. He stated that while the new evidence must satisfy the Palmer criteria, the appellate court may review the sentence in light of the whole record, including any admissible fresh evidence. However, in the case of review on this basis, the onus is on the offender” (para. 42).