In the Court of Appeal of Alberta

Citation: R. v Teskey, 2014 ABCA 287

Date: 20140910
Docket: 1003-0243-A
Registry: Edmonton


Between:

Her Majesty the Queen

Respondent

- and -

Leo Matthew Teskey

Appellant




_______________________________________________________

The Court:
The Honourable Mr. Justice Ronald Berger
The Honourable Mr. Justice Frans Slatter
The Honourable Mr. Justice Thomas W. Wakeling
_______________________________________________________


Memorandum of Judgment


Appeal from the Sentence by
The Honourable J udge E.W. Peterson
Dated the 23rd day of J uly, 2010
(2010 ABPC 252, Docket: 006980551P1)


_______________________________________________________

Memorandum of Judgment
_______________________________________________________

The Court:

[1] The appellant appeals the finding that he is a dangerous offender, and the resulting
indeterminate sentence for aggravated assault: R. v Teskey, 2010 ABPC 252. The standard of
review is reasonableness: R. v Sipos, 2014 SCC 47 at paras. 23, 26; R. v Currie, [1997] 2 SCR 260
at paras. 33, 40.
[2] The circumstances are unusual, because the offence occurred in November 2000, but the
appellant was not sentenced until J uly 2010. The 9 years and 7 months that passed can be explained
partly by a successful intermediate appeal to the Supreme Court of Canada, which resulted in a new
trial being ordered: R. v Teskey, 2007 SCC 25, [2007] 2 SCR 267.
[3] At the sentencing the trial judge concluded that all of the provisions of s. 753(1)(a)(iii) of the
Criminal Code were met (reasons, para. 105). He concluded that the offence was one of brutality
(reasons, para. 20), that the appellant was virtually untreatable (reasons, paras. 131-3), and that the
appellant presented a substantial risk to reoffend, with no possibility of controlling his risk in the
community through treatment or court sanction (reasons, para. 135).
[4] The sentencing judge was aware of the option of finding the appellant to be a dangerous
offender, a long-term offender, or of imposing a determinate sentence (reasons, paras. 5, 140-1).
Assuming that the appellant received the then usual 2-for-1 credit for remand time, any determinate
sentence would already be served, resulting in his immediate release (reasons, para. 116). The
sentencing judge did not find that result to be a fit and proper sentence (reasons, para. 140).
[5] The appellant argues on appeal that the trial judge erred in assuming he would receive
2-for-1 credit for remand time. If he was only to receive 1-for-1 credit (or less) for remand time, the
appellant argues that he would still have time to serve on a determinate sentence. When that was
combined with his age, and the burnout factor for older offenders, a determinate sentence would
still have been possible.
[6] The sentencing judge, however, considered the prospect of burnout, and also the
appellants age (reasons, paras. 136-7). Having concluded that the appellant was a continuing risk,
and that he was untreatable, the trial judge was not satisfied that burnout was a realistic prospect
for the appellant. The sentencing judge was clearly of the view that the appellant was too dangerous
to be released into the community, and there is no basis for concluding that he would have imposed
a determinate sentence, if only less credit had been given for remand time: R. v Severight, 2014
ABCA 25 at para. 35, 93 Alta LR (5th) 356, leave refused J uly 17, 2014, SCC No. 35859. The
finding that the appellant is a dangerous offender is reasonable. It is amply supported on the
evidentiary record before the Court which satisfies the test in R. v Johnson, 2003 SCC 46 at para.
44, [2003] 2 SCR 357: . . . [A] sentencing judge should declare the offender dangerous and impose

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an indeterminate period of detention if, and only if, an indeterminate sentence is the least restrictive
means by which to reduce the public threat posed by the offender to an acceptable level. . . .
[7] The appellant also seeks a stay as a Charter remedy, arguing that he has not been tried and
sentenced within a reasonable time. He relies on the admittedly lengthy period of time that has
passed since the offence. The appellant does not identify any particular conduct of the Crown, or a
period of delay leading up to the sentencing. In unreported reasons, the sentencing judge carefully
reviewed the history of the proceedings, and all of the periods of delay, and concluded that a stay
was not appropriate. As the sentencing judge noted, the entire matter, and the trial itself, were
complex. There is nothing unreasonable about that analysis.
[8] Much of the pre-sentencing delay was a result of time inherently required by the courts
processes, particularly the appeal to the Supreme Court of Canada. That sort of inherent delay does
not generally generate a Charter remedy: R. v Potvin, [1993] 2 SCR 880 at pp. 895-6, 898-9, 911-2.
Further, the Supreme Court granted a new trial because the original trial judge rendered his decision
after reserving for four months, and then produced written reasons for decision 11 months later. In
one sense the new trial was a remedy for those events and the consequent delay.
[9] The appellant argues that he has suffered prejudice from the delay, because the expert
witnesses who testified as to his psychological profile had more time to observe him, conduct tests,
and form their opinions about his dangerousness. This, he argues, gave the Crown an unfair
advantage. There is, however, no evidence that the appellants psychological profile changed during
the period of delay, nor is there any indication on this record that he would not have been found to
be dangerous if only the sentencing hearing had been held earlier in time. Since the appellant has
been sentenced to an indefinite term of imprisonment, any prejudice he may have suffered from not
being given that sentence even earlier is not obvious.
[10] The delay between the filing of this sentence appeal in 2010, and the eventual hearing of the
appeal has not been shown to be the responsibility of the Crown. There is no basis on this record for
granting a stay.
[11] The appeal is dismissed.
Appeal heard on September 5, 2014

Memorandum filed at Edmonton, Alberta
this 10th day of September, 2014


Authorized to sign for: Berger J .A.


Slatter J .A.


Wakeling J .A.

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Appearances:

S.D. Hughson, Q.C.
for the Respondent

G.E. Allen
for the Appellant