COURT OF APPEAL FOR ONTARIO
DATE: 20010705 DOCKET: C30158 and C30207
McMURTRY C.J.O., CATZMAN and CHARRON JJ.A.
B E T W E E N :
Anil Kapoor,
HER MAJESTY THE QUEEN
for the appellant Higginbottom
Respondent
- and -
Howard Leibovich,
for the respondent Crown
CHRISTOPHER HIGGINBOTTOM
Appellant
Heard: June 22, 2001
A N D B E T W E E N :
HER MAJESTY THE QUEEN
Applicant/
Appellant
- and -
CHRISTOPHER HIGGINBOTTOM
Respondent
On appeal by Mr. Higginbottom from his conviction by Justice L. Beaulieu, sitting alone, on April 10, 1997 and on appeal by the Crown from the sentence imposed on June 30, 1998
CHARRON J.A.:
[1] Christopher Higginbottom was convicted on April 10, 1997 by Beaulieu J., sitting without a jury, of sexual assault, invitation to sexual touching and possession of child pornography. On June 30, 1998, Mr. Higginbottom was declared a dangerous offender and sentenced to a determinate sentence totaling eleven years’ imprisonment in addition to the time he spent in pre-trial and pre-disposition custody. His parole eligibility was fixed by the trial judge at a minimum of one-half of his sentence and prohibition orders under s.100 and s.161 of the Criminal Code, R.S.C. 1985, C. C-46 were imposed for life. Mr. Higginbottom appeals against the conviction. The Crown appeals against sentence. I will deal with each appeal in turn.
1. Higginbottom’s appeal against the convictions
[2] The evidence at trial can be briefly summarized.
[3] On March 18, 1996, the appellant met the complainant, age 12, and two of the complainant's friends in Taylor Creek Park in Toronto and brought them beer, as he had promised when he met them the day before. The complainant asked the appellant if he could borrow $10 for cigarettes. The complainant went with the appellant to an instant bank machine. The appellant withdrew $100 and bought the complainant some candy. The appellant then told the complainant that he would give him $10 if the complainant “sucked his dick”. The complainant refused and the appellant punched him in the jaw, knocking him off his bike. The complainant swore at the appellant and rode away. After the incident with the complainant, the appellant approached the complainant’s friends, exposed his penis, and masturbated in front of them.
[4] The appellant's apartment was subsequently searched and a number of videos and writings were found. It was conceded by the defence at trial that the videos met the definition of child pornography.
[5] At trial, after a voir dire, the Crown was permitted to introduce evidence of prior discreditable conduct that consisted of three sexual assaults to which the appellant had pleaded guilty. The evidence was introduced by means of the transcripts from the guilty plea. The evidence is summarized in the Crown’s factum as follows:
On December 6, 1987, the victim Jed, a 14 year old boy was walking home in Hamilton at 8:00 p.m. The appellant stopped his car and waited for the victim to walk towards him. When the victim was near, the appellant jumped out and asked Jed if he wanted to make $10. The victim said yes. The appellant then said that he wanted to take pictures of him for $10. The victim declined. The appellant grabbed the victim by the arms, pulled him down some steps, into the city yard and placed him on the ground. The appellant pulled his pants down and pulled the victim's pants down. He then laid on top of the victim and simulated intercourse by rubbing his penis against Jed. After a few minutes the appellant ejaculated into the ground. The victim asked why he was doing this. The appellant said that he liked boys over girls.
On April 16, 1988, at 5:30 p.m., the victim, Cary, a 12 year old boy and his friend, were playing in a field in Oakville. The appellant approached them with a Polaroid camera and made "small talk". He then asked whether they would allow him to photograph them with their pants off for $10. Both boys refused. They were afraid. The appellant grabbed Cary and forced him to the ground, held him down and started to kiss his lips. The victim struggled but he could not get away. The appellant tried to place his hands down the front of the victim's pants but was unsuccessful. The friend tried to push the appellant off but was unable to. He then threw the appellant's camera away, allowing them to run away when the appellant retrieved it.
The appellant approached the victim, Paul, a 10 year old boy, on August 21,1988 and asked him for directions. Paul was on his bike in Burlington. It was 8:15 am. The appellant then grabbed his handlebars, took him around a dumpster and told Paul he would pay him to take a picture and lick his genitals. Paul told him to stop. The appellant placed Paul on his back and got on top of him. He pulled down Paul's pants and fondled his genitals and buttocks for a few minutes. Paul yelled no. The victim yelled louder, the appellant let go and the victim drove away. Paul looked back and saw the appellant exposing himself.
[6] On a second voir dire, the defence challenged the constitutionality of the search and seizure of Mr. Higginbottom’s apartment pursuant to sections 8 and 24(2) of the Charter. The search was made pursuant to a search warrant that itemized various items in eighteen paragraphs. Paragraph 18, which listed items described as "pedophile material", resulted in the seizure of the material that forms the subject-matter of one of the convictions. The trial judge found that paragraph 18 lacked specificity and that section 8 of the Charter had been violated to that extent. He concluded, however, that the police had acted in good faith and that the warrant was executed in a professional manner. He further found that since the offences were serious, admitting the evidence would not bring the administration of justice into disrepute. Consequently, he ruled that the evidence should not be excluded under s.24(2) of the Charter.
[7] The appellant raises three main grounds of appeal. He submits that the trial judge erred, first, in admitting the evidence of prior discreditable conduct under the similar fact rule, second, in finding that the assault was sexual in nature, and third, in failing to exclude the pornographic material seized from his apartment. The appellant argues further that the verdict is unreasonable.
[8] I would not give effect to any of the grounds of appeal. My reasons can be stated briefly as follows.
[9] A trial judge’s decision on the admissibility of evidence of prior discreditable conduct involves a delicate balancing of the probative value of the evidence against its prejudicial effect and is entitled to a high degree of deference upon appellate review: see R. v. B.(C.R.), 1990 142 (SCC), [1990] 1 S.C.R. 717 at 733-34. It is apparent from the trial judge’s reasons that he viewed the proposed evidence as sufficiently similar to be probative on the question whether the assault that formed the subject-matter of the charge before the court was sexual in nature. He was also alive to the potential prejudice arising from this kind of evidence. In my view, the trial judge’s assessment of the evidence and his conclusion that its probative value exceeded its potential prejudicial effect were reasonable. I see no reason to interfere with the exercise of his discretion in admitting the evidence at trial. In any event, I note that it does not appear from the trial judge’s reasons that he placed much weight, if any, on the evidence of prior discreditable conduct in arriving at his verdict on the sexual offences.
[10] More importantly, it is my view that it was entirely open to the trial judge to conclude that the assault in question in this case was sexual in nature based solely on the evidence relating to the charge before the court. The words spoken by the appellant when he invited the complainant to perform fellatio on him were clearly sexual in nature. These words, coupled with the intentional application of force upon the complainant immediately following the complainant’s refusal to comply, constitute a sufficient basis for the trial judge’s finding that the assault was sexual in nature: see R. v. Chase (1987), 1987 23 (SCC), 37 C.C.C. (3d) 97 (S.C.C.); and Bernard v. The Queen (1988), 1988 22 (SCC), 45 C.C.C. (3d) 1 (S.C.C.).
[11] In R. v. Chase, the Supreme Court of Canada defined sexual assault as follows (at 103):
Sexual assault is an assault within any one of the definitions of that concept in s. 244(1) of the Criminal Code which is committed in circumstances of a sexual nature, such that the sexual integrity of the victim is violated. The test to be applied in determining whether the impugned conduct has the requisite sexual nature is an objective one: "Viewed in the light of all the circumstances, is the sexual or carnal context of the assault visible to a reasonable observer?" … The part of the body touched, the nature of the contact, the situation in which it occurred, the words and gestures accompanying the act, and all other circumstances surrounding the conduct, including threats which may or may not be accompanied by force, will be relevant: see S.J. Usprich"A New Crime in Old Battles: Definitional Problems with Sexual Assault", 29 Crim. L.Q. 200 at p. 204. The intent or purpose of the person committing the act, to the extent that this may appear from the evidence, may also be a factor in considering whether the conduct is sexual. If the motive of the accused is sexual gratification, to the extent that this may appear from the evidence it may be a factor in determining whether the conduct is sexual. It must be emphasized, however, that the existence of such a motive is simply one of many factors to be considered, the importance of which will vary depending on the circumstances. [Emphasis added]
[12] Wilson J. in Bernard v. The Queen described sexual assault in the following terms (at 39):
Sexual assault is a crime of violence. There is no requirement of an intent or purpose beyond the intentional application of force. It is first and foremost an assault. It is sexual in nature only because, objectively viewed, it is related to sex either on account of the area of the body to which the violence is applied or on account of words accompanying the violence.
[13] The facts of this case are very similar to those considered recently by the Quebec Court of Appeal in R. v. Alceus (2000), 2000 9443 (QC CA), 151 C.C.C. (3d) 91. In that case, the accused struck the complainant, with whom he was then having a sexual encounter in his bed, for refusing to perform fellatio on him. The trial judge acquitted him of sexual assault and convicted him of assault simpliciter. The Quebec Court of Appeal allowed an appeal by the Crown and substituted a conviction for sexual assault, finding that the striking of the complainant upon her refusal to perform oral sex constituted “a violation of her sexual integrity”. The court held (at 96):
When a denial of sexual gratification is punished by physical harm, the sexual integrity of the victim is no less violated than when compliance is secured by force.
[14] Based on these principles, it is my view that the trial judge did not err in concluding that, in the circumstances of this case, the assault upon the complainant was sexual in nature.
[15] The appeal against conviction on the charge of possession of pornographic material turns on whether the trial judge erred in refusing to exclude the evidence under s.24(2) of the Charter. In particular, the appellant takes issue with the finding that the police acted in good faith. The trial judge accepted the police officer’s testimony that identity was an issue at the time the warrant was issued and that he believed that the impugned material would assist in that regard.
[16] In my view, it was open to the trial judge to make this finding. The officer was relying on evidence that the appellant was in the habit of making diaries with respect to his sexual encounters. Paragraph 18, in part, targeted the appellant’s own writings. Although paragraph 18 in its totality was far too wide in scope, which the trial judge recognized in finding that the search was unreasonable, that fact, in and of itself, does not detract from the reasonableness of the trial judge’s finding on the good faith of the officer as contended by counsel. The trial judge’s findings are entitled to deference and should not be interfered with on appellate review absent an error in principle or an unreasonable finding. I see no reason to interfere with the trial judge’s exercise of discretion in admitting the evidence of pornographic material.
[17] I see no merit to the appellant’s further contention that the verdict was unreasonable. The convictions on all three offences were reasonable and entirely supported by the evidence.
[18] For these reasons, I would dismiss Mr. Higginbottom’s appeal against the convictions.
2. The Crown’s appeal against sentence
[19] The evidence on the dangerous offender application was extensive and overwhelmingly in support of the trial judge’s finding that Mr. Higginbottom is a dangerous offender. Indeed, at the conclusion of the dangerous offender hearing, counsel for Mr. Higginbottom conceded that his client was a dangerous offender and that finding is not an issue on this appeal. The sole issue is whether the trial judge erred in imposing a determinate sentence rather than an indeterminate one.
[20] It is not disputed that, on the basis of the Criminal Code provisions that were in force at the time, the trial judge had a residual discretion to impose a determinate sentence. He chose to exercise this discretion for the following reasons:
In the case at bar, given that Mr. Higginbottom has not been previously incarcerated in a Federal penitentiary, I am inclined to agree with Dr. Ben Aron that it is premature to say that Mr. Higginbottom is an untreatable dangerous offender.
Perhaps a penitentiary treatment program will be a conducive environment to help him overcome his denial and accept responsibility for his behavior, as well as help him to recognize the damaging effects his behavior has on young boys.
On all the evidence a dangerous offender finding is obviously appropriate. However, it is simply too soon to say that Mr. Higginbottom is untreatable in light of Dr. Barberry's testimony that denial can be treated quite successfully in 80% of the cases. Given Dr. Barberry's evidence, there is reason to be less skeptical that Mr. Higginbottom will, in fact, have little or no access to the treatment necessary to ensure both his potential rehabilitation and protect society's future interests.
This will be the accused's first penitentiary term. The emotional and psychological repercussions to his victims were clearly obvious in this courtroom. Fortunately for the accused the concomitant physical violence often seen in other situations of this nature was not present to a significant degree. Given all of these particular circumstances, I am inclined to the view that this is an exceptional case which merits a determinate sentence at this time.
[21] The trial judge also made the following observation:
I have also considered the issue of the individual's potential incentive to accept and respond to the program offered. An indefinite sentence is not given the same priority as a determinate sentence where earlier access may assist in driving home the reality of a need to change and prepare for a responsible return to the community.
Indeed, as I recall the evidence of Dr. Barberry, the indeterminate sentence may mean that an inmate, subject to other vicissitudes of the penitentiary life would have no access to treatment for up to 17 years. [Emphasis added].
[22] It is common ground between the parties that the trial judge misapprehended the evidence in making the latter remark. Dr. Barberry testified that, on average, an offender who receives an indeterminate sentence is likely to serve 17 years in jail, not that he is likely to wait 17 years before receiving treatment. The Crown submits that the trial judge’s erroneous belief that Mr. Higginbottom, if sentenced to an indeterminate term, would not receive any treatment for 17 years may well have misled him in imposing a determinate sentence despite the fact that the evidence did not support the imposition of such.
[23] The trial judge made reference to two items of evidence in support of his conclusion that this was an exceptional case that warranted the imposition of a determinate sentence: Dr. Ben-Aron’s opinion that it was premature to say that Mr. Higginbottom was untreatable; and Dr. Barberry’s statement that denial can successfully be treated in 80% of the cases.
[24] In my view, this evidence cannot support the trial judge’s finding. When Dr. Ben-Aron’s opinion is considered in context, it is clear that he was simply expressing some hope for Mr. Higginbottom’s future treatment. While Dr. Ben-Aron disagreed that the hope of treating Mr. Higginbottom was negligible because he had demonstrated some control over his pedophilia from 1991 to 1996, he agreed that the fact that he had not reoffended over this five-year period was no guarantee for the future. Dr. Ben-Aron testified that Mr. Higginbottom’s biggest difficulty was the tenacity of his denial that he has a problem. Dr. Ben-Aron was of the view that until Mr. Higginbottom accepted that he has a problem, he would respond poorly to any future treatment effort.
[25] Dr. Barberry’s evidence about the treatability of persons in denial was general in nature and did not relate to Mr. Higginbottom’s situation. The trial judge’s reliance on this general statement as an indicator of Mr. Higginbottom’s chances at rehabilitation cannot be supported in light of the uncontradicted evidence, accepted by the trial judge, that Mr. Higginbottom had not even begun to recognize the seriousness of his condition. Dr. Klassen’s diagnosis, which was also uncontradicted, was that Mr. Higginbottom’s dominant condition consisted of pedohebephilia, an attraction to prepubescent and pubescent individuals. Dr. Klassen testified that Mr. Higginbottom showed signs of severe pedohebephilia as he appeared to be entirely overwhelmed by his pedohebephilic interests, having abandoned most normal activities of daily living in the service of pursuing paedophilia. Dr. Klassen further testified that Mr. Higginbottom had absorbed little from previous treatment, that there was no realistic prospect that he could be treated, and that any hope in this respect was negligible. His devotion to his deviant sexual impulses and that subculture made him a substantial risk to the community with the likelihood of re-offending approaching 100%.
[26] In my view, the trial judge erred in exercising his discretion to impose a determinate sentence in the absence of any evidence specific to Mr. Higginbottom that he could be rehabilitated within a fixed period of time. In fact, the evidence relating to the treatment possibilities overwhelmingly pointed to the opposite conclusion. Just as this court concluded in R. v. Poutsoungas, (1989), 1989 7104 (ON CA), 49 C.C.C. (3d) 388 (Ont. C.A.), it is my view that the trial judge’s error in law in the exercise of his discretion, on the facts of this case, has resulted in a failure to give effect to the basic purpose of the dangerous offender provisions in the Criminal Code, the protection of the public.
[27] I would therefore allow the appeal on sentence, set aside the determinate sentence, and in its place impose a sentence of detention in a penitentiary for an indeterminate period.
RELEASED: July 5, 2001
(signed) "Louise Charron J.A."
(signed) "I agree R. Roy McMurtry C.J.O."
(signed) "I agree M. A. Catzman J.A."