The appellant in the case, Steven Forster, pleaded guilty to numerous sexual offences in February 1988, and was subsequently named a dangerous offender (DO) and an indeterminate sentence was imposed on him. In the ensuing years, he has challenged both his conviction and sentence unsuccessfully, including applications for writs of habeas corpus — although none of those applications were conclusively determined.
An Ontario Superior Court judge denied Forster’s most recent attempt to get a writ of habeas corpus in 2020. But now Ontario Court of Appeal Justice Lorne Sossin has overturned that ruling, stating the application judge erred in finding Forster’s trial judge had legal authority for the psychiatric remand leading to the DO designation and indeterminate sentence.
“As this case demonstrates, the discretion under s. 21 of the [Mental Health Act] for a psychiatric remand requires the judge to consider the bases for the request, even if consented to by counsel for the subject individual, and to make an independent determination that there is ‘reason to believe’ that the person subject to the remand order suffers from a mental disorder,” he wrote.
There is no indication that such an analysis was done by the trial judge prior to ordering the remand, Justice Sossin wrote.
“Rather, the exchange between counsel and [judge] about the joint recommendation for a psychiatric remand concerned the length of the requested remand and the question of authority for it in the Criminal Code,” he wrote. “The fact that such a psychiatric remand could — and in this case, did — lead to the basis of a DO application only heightens the importance of a sentencing judge conducting this independent analysis of the grounds and whether the ‘reason to believe’ threshold was met in the circumstances.”
Forster also argued the trial judge had been wrong in concluding that he had no choice but to impose the dangerous offender designation — a determination shared by Justice Sossin, who noted there was no dispute that the trial judge had failed to take into consideration the Supreme Court’s then-recent decision in R. v. Lyons, [1987] 2 SCR 309.
Justice Sossin noted Lyons set out the proper process to follow in the determination of a DO designation, concluding that a judge retained the discretion over whether to find or designate a person to be a DO, and further discretion over whether, in light of that finding or designation, to impose an indeterminate sentence.
“In my view, [the trial judge’s] fettering of his discretion renders the outcome of that initial DO proceeding unreasonable, whether or not there was more than sufficient evidence for him to have exercised his discretion in favour of granting the DO designation,” he wrote. “The application judge concluded that this error did not entitle the appellant to habeas corpus because the error had no practical effect. However, in a habeas corpus application, unlike an appeal, there is no applicable curative provision to affirm incarceration notwithstanding an error.”
As a result of his findings, Justice Sossin granted Forster’s request for a writ of habeas corpus and removed the original dangerous offender designation — which meant that the indeterminate sentence Forster received was no longer valid. But Justice Sossin also wrote what happens next is “less clear.”
“We are not in a position to make a determination of the appropriate sentence for the appellant in the absence of a full and updated record. There does not appear to be any updated assessment of the appellant or the danger he might still pose to the public,” he wrote. “What is needed is a fresh proceeding to determine the appropriate sentence based on any evidence the parties wish at this point to put forward. That question should be remitted back to a different judge of the Superior Court to determine, with the appellant remaining in custody pending the outcome of that proceeding, and I would so order.”
Justice Sossin was joined by Justices Sarah Pepall and Alison Harvison Young in his ruling (Forster v. Canada (Correctional Service), 2025 ONCA 40).
Paul Quick, a staff lawyer with the prison law clinic at Queen’s University in Kingston, Ont., called the decision an important one that “affirms the role of habeas corpus as an essential remedy for upholding the rule of law and safeguarding liberty interests when all else has failed.”
“The court affirmed both the remedial power and flexibility of habeas corpus, clearly releasing the appellant from his unlawful dangerous offender designation, while directing a new sentencing hearing before the Superior Court to examine and address the potential risks to public safety that might flow from the appellant’s sudden release without supervision, and ordering his interim detention pending this new hearing,” said Quick, who was not involved in the case.
The court implicitly left the potential scope of this fresh sentencing hearing to the parties and the Superior Court, said Quick.
“Given the unusual procedural history of this case, it will be interesting to see how the sentencing court carries out that role in circumstances where the offences at issue are now many decades in the past and the elderly individual now being sentenced has, in effect, served over 36 years of dead time,” he said.
A spokesperson for the Correctional Service of Canada (CSC) said the decision is being reviewed and the service could not provide further comment.
“The designation of a dangerous offender is determined by the courts,” the spokesperson said. “The CSC administers these determinate or indeterminate sentences in the same manner as all federal sentences handed down by the courts.”
Counsel for Forster did not respond to a request for comment.
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