The Court of Appeal of Yukon has granted a time extension to a man intending to appeal his dangerous offender status.

Justice Gregory Fitch issued his written decision on March 6. His decision means James William Smarch’s extension, to allow for his appeal, would last two weeks from the date of the decision.

This choice was unanimous with Justices Bruce Butler and Daphne Smith agreeing.

Fitch gave some background before getting to his reasons.

He said Smarch was declared a dangerous offender on Oct. 23, 2014. He received a 16-month determinate sentence as well as a three-year probation.

Smarch’s criminal activity includes a sexual assault on a woman in a public park. The woman was unconscious and he was drunk.

The Crown applied for the designation to be made during that proceeding.

Smarch had been convicted twice of breaking into a residence and sexually assaulting the occupant. This was during his youth. As an adult, he was convicted of sexual exploitation, assault and uttering threats.

An assessment report was done by forensic psychiatrist Dr. Shabreham Lohrasbe. He found that Smarch suffers from Fetal Alcohol Spectrum Disorder (FASD) and Antisocial Personality Disorder.

He concluded that Smarch was a risk and had a strong chance of reoffending.

“He (Dr. Lohrasbe) concluded that the prospect of reducing the risk of re-offence through treatment interventions was unknown,” Fitch said in the decision.

Smarch indicated, in an affidavit, that he did not know he could contest this designation. He added he was unsure what an appeal was.

Fitch said this designation will have a significant effect on Smarch.

“As a result of being designated a dangerous offender, the applicant is subject to lifelong consequences,” Fitch said.

He next evaluated if the court had the jurisdiction to grant the extension.

He explained a convicted person is usually only able to file an appeal while he or she is still in the system. There is a 30-day appeal period.

The panel would have to determine if an extension would be in the interests of justice.

This includes evaluating if Smarch has a genuine intent to appeal.

In this case, the appeal period expired four years ago.

“It is common ground that the applicant did not form an intention to appeal within the 30-day period,” Fitch said in the decision.

The justice explained he was not prepared to give this the consideration he ordinarily would. He made two considerations.

Firstly, he pointed out that at the time the dangerous offender status was made, the law stated there could not be anything considered other than treatment prospects. He said this means everyone involved in the case had to follow the case law that existed at the time.

Smarch was unable to launch an appeal on his own. He relied solely on Legal Aid. Fitch said it was apparent that Legal Aid would not have provided a certificate for an appeal, even if Smarch had made a timely fashion.

In his second consideration, Fitch said Smarch could be at a disadvantage.

He explained that Smarch may not have been aware that a Dec. 21, 2017 Supreme Court of Canada decision that profoundly impacted dangerous offender applications. The justice said Smarch was solely “relying on his own resources.”

He adds Legal Aid performed a review between December 2017 and April 2018 of all dangerous offender designations imposed after 2008. This was done to determine if any of these cases had grounds for appeal.

Smarch’s case was identified as the only one that should be appealed.

Fitch said the Crown says it will not be prejudiced if the extension is granted. The Crown may ask for a new dangerous offender hearing or have the current designation confirmed.

“The Crown concedes that it will not be prejudiced in remounting the application should that be required,” Fitch said in the decision.

He next addressed the merits of the proposed appeal. He felt Smarch had presented a reasonable argument based on the fact that the judge used sentencing principles that are now outdated, despite that not being the case at the time.

Fitch explained the panel did not have to determine if the case was strong or likely to succeed. All it has to do is determine if the appeal has reasonable grounds.

“He has, in my view, met this threshold,” Fitch said in the decision.

He next addressed the interests of justice. He explained this means Smarch’s interests need to be weighed against the public interest. Balancing these interests can be difficult, and context is necessary.

Fitch said Smarch is a young man who has trouble controlling his impulses and suffers from some cognitive issues. This is a result of his suffering from FASD.

The judge, who imposed the dangerous offender status, felt Smarch did not need long-term supervision or an intermediate sentence was needed.

Fitch found it was unreasonable to assume Smarch would live the rest of his life without getting into further conflict.

With that, he felt the time extension was reasonable, and saw no reason to deny it.

“At the end of the day, the applicant seeks only the opportunity to argue that the dangerous offender designation to which he is subject is the product of error in principle,” Fitch said in the decision.

“He only seeks to appeal this aspect of the sentence, not his conviction.”