W A R N I N G
The President of the panel hearing this appeal directs that the following should be attached to the file:
An order restricting publication in this proceeding under ss. 486.4(1), (2), (3) or (4) or 486.6(1) or (2)
of the Criminal Code shall continue. These sections of the Criminal Code provide:
486.4 (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences:
(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,
(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or
(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).
(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and
(b) on application made by the complainant, the prosecutor or any such witness, make the order.
(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.
(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b).
486.6 (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.
CITATION: R. v. R.M., 2007 ONCA 872
DATE: 20071212
DOCKET: C44976
COURT OF APPEAL FOR ONTARIO
SIMMONS, ARMSTRONG and LANG JJ.A.
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
And
R. M.
Appellant
Marc E. Schiffer and Donald M. Powell for the appellant
Lisa Joyal for the respondent
Heard: September 11 and 13, 2007
On appeal from the convictions entered by Justice Anne Molloy of the Superior Court of Justice on July 6, 2004 and from the sentence imposed on November 22, 2005.
BY THE COURT:
[1] The appellant was charged with six counts of sexual assault, six counts of sexual interference and one count of possession of child pornography occurring between 2001 and 2003. At trial, the appellant pleaded guilty to the child pornography charge (count 13) and not guilty to the remaining charges. Following a trial before Molloy J., sitting without a jury, findings of guilt were made in relation to two counts of sexual assault (counts 9 and 11) and one count of sexual interference (count 10). However, count 9 was stayed in accordance with the Kienapple[^1] principle. After a further hearing, the trial judge designated the appellant a dangerous offender and sentenced him to an indeterminate period of imprisonment. The appellant appeals from the convictions and from the finding that he is a dangerous offender.
CONVICTION APPEAL
[2] The complainant in counts 1 to 12 is the appellant's stepson who was born on September 20, 1989 and was twelve and thirteen years old at the time of the abuse alleged in the indictment. The boy disclosed the sexual abuse to his mother on November 18, 2003. That same day, he provided a videotaped statement to police. His testimony at trial, which was in all material respects essentially the same as his evidence on the videotape, disclosed six separate incidents of sexual abuse.
[3] According to the complainant, the six incidents of sexual abuse occurred in specific time frames between December 2001 and August 2003 and consisted of the following conduct:
(i) Counts 1 and 2 – December 2001 – the appellant fondled the boy's penis while in the shower and forced the boy to fondle his (the appellant's) erect penis;
(ii) Counts 3 and 4 – January 1, 2002 to June 30, 2002 – the appellant forced the boy's hand down his (the appellant's) pants; kissed the boy on the lips using his tongue; rubbed his erect penis on the boy and ejaculated on the boy's back;
(iii) Counts 5 and 6 – March 1, 2002 to August 31, 2002 – the appellant performed fellatio on the boy in the boy's bedroom;
(iv) Counts 7 and 8 – April 1, 2002 to September 30, 2002 – while the boy was staying at the appellant's apartment the appellant put a pornographic videotape in his VCR and told the boy to watch it. He began kissing the boy. The appellant then lay naked on top of the boy and ejaculated on the boy's stomach;
(v) Counts 9 and 10 – May 1, 2003 to August 31, 2003 – the appellant set up a computer in the boy's room and showed him pornographic pictures. After this incident the appellant forced the boy onto the floor, fondled his genitalia and had anal intercourse with him. (A forensic computer expert recovered 2,481 pornographic images from the computer, including approximately 500 images of child pornography); and
(vi) Counts 11 and 12 – August 2003 – while the appellant was looking at pornographic pictures on the computer he forced the boy to masturbate him.
[4] At trial, the appellant admitted to engaging in two sexual acts with his stepson during which he ejaculated on the boy's body. The appellant also admitted to three or four acts of fellatio on the boy. He claimed that the sexual activity did not begin until after his stepson turned fourteen in September 2003 and that all incidents were consensual. The appellant's admission of sexual activity with the boy was also set out in two separate letters to his wife written in January 2004. In both letters, the appellant repeatedly asserted that the incidents were consensual but was not specific with respect to timing.
[5] After reviewing the evidence, the trial judge acquitted the appellant on counts 1 to 8. In doing so she said:
On the whole of the evidence I have difficulty accepting [the complainant's] evidence that there were only six separate and isolated incidents of sexual assault as he has described. It may be that these were incidents which particularly stood out and that sexual abuse was ongoing for this whole period. However, that is not what he said in his testimony. Given the discrepancies in [the complainant's] testimony, I simply cannot be sure that the incidents alleged in 2001 and 2002 occurred. I will go so far as to say it is likely or probable they occurred at some point during this time period, but I am simply not satisfied beyond a reasonable doubt. I am therefore acquitting [the accused] of counts 1 through 8.
[6] The trial judge then considered the charges from 2003 – counts 9, 10, 11, 12 and 13. She rejected the appellant's denial of the charges and concluded that there was sexual abuse in the summer of 2003. In doing so, she said:
Given the extent of the abuse and the number of incidents, which even [the appellant] concedes, it is not plausible that they all occurred in the short period of time between September 19 and November 17…There would not have been five or six occasions in that timeframe when [the appellant] and [the boy] were alone in that apartment for a sufficient period of time.
[7] Later in her reasons, the trial judge stated:
I do not believe [the appellant's] testimony at trial that the sexual contact only started after [the boy's] 14th birthday. Further, his evidence does not even cause me to have a reasonable doubt about that. I am certain there was sexual abuse during the summer of 2003. It is probable the abuse had been ongoing well before the summer of 2003, likely for years. However, I am not satisfied beyond a reasonable doubt as to that. I am satisfied beyond a reasonable doubt, however, that there was more than one incident of sexual touching during the summer of 2003, prior to [the boy's] 14th birthday.
Having determined that the sexual acts constituting such touching for a sexual purpose took place while [the boy] was under the age of 14, the offences charged in the counts relating to 2003 are proven.
[8] The trial judge concluded her reasons on conviction by referring to the sexual conduct that the appellant admitted took place in the period following the boy's fourteenth birthday up to the time of his arrest – September 19, 2003 to November 19, 2003:
Finally, [the appellant] has admitted to having engaged in sexual activity with [the complainant] between September 19, 2003, and November 19th, 2003. He acknowledges he knew this was wrong because [the complainant] is his stepson. He acknowledges he is the only father [the complainant] has ever known and he has been a prominent figure in [the complainant's] life from the age of 5 with the exception of some period of time in 2002. [The complainant] called him Dad. He was clearly a person with authority over [the complainant] and in a position of trust. In this context, all of the elements of sexual exploitation under s. 153 of the Criminal Code are met, even though there is no charge under that section in the indictment.
Further, in my view, the evidence clearly establishes an offence under s. 271 of the Criminal Code, the offence of sexual assault. [The appellant] asserts that [the complainant] "consented" to the sexual activity. [The complainant] was a vulnerable child, whether he was 13 or 14. [The appellant] was his stepfather and knew this conduct was wrong. The despicable conduct over many months in respect of pornography can properly be seen as a process of "grooming" or desensitizing [the complainant] to what was to follow. In this context it was not necessary for [the complainant] to fight back or to refuse to engage in this sexual contact with his stepfather. [The appellant] was in a position of trust and authority and he abused that position of trust to further his own perverted desires.
During periods of court ordered access, he exposed [the complainant] to disgusting pornographic material and ultimately led him into overt sexual activity with his own stepfather. Even if [the complainant] failed to struggle in that situation, this cannot be characterized as "consent". The power balance in that relationship was such that [the appellant] cannot rely on [the complainant's] acquiescence as a true consent to sexual activity. That would be precluded in my view under s. 273.1(2)(c) of the Criminal Code.
[9] The trial judge then said that she would be convicting the appellant on "some counts" and invited both counsel to make submissions on which counts she should register convictions. The court adjourned for twenty minutes. On the return to court, the Crown Attorney, Mr. Ball, said:
MR. BALL: It seems to me that based on your findings that sexual activity occurred both before [the complainant's] 14th birthday, that is in the summer of 2003, and after [the complainant's] birthday in the narrow gap between the birthday and the arrest.
THE COURT: That is right.
MR. BALL: That a reasonable way to deal with counts 9 to 12 would be the following, that findings of guilt can reasonably follow on counts 9 and 10 relating to the period before the 14th birthday. That a finding of guilt can apply to count 11 based on Your Honour's finding that even once he turned 14 he was not in a position to give meaningful consent, given the provisions of the Code relating to persons in authority. If we take count 12 to relate to the period after the 14th birthday, then count 12 does not apply because sexual interference is clearly limited to complainants under 14. For that reason I would suggest that the indictment could be marked findings of guilt on counts 9, 10, 11 and 13, which Your Honour has already commented on, and to which [the appellant] pled guilty. And regarding counts 9 and 10, since they relate to the same delict, Kienapple does come into play, and I would ask that you enter a stay on count 9 so that we have convictions on counts 10, 11 and 13.
THE COURT: What about the time alleged in count 11? It says August of 2003.
MR. BALL: Yes. And as I understand it, Your Honour, the timing is not an essential averment except when it becomes an essential element of the offence. It is not an essential element of the sexual assault and that's why I suggest that count 12 --
THE COURT: Okay.
MR. BALL: --could be registered as a not guilty just on the basis that the last sexual contact happened after [the complainant] had turned 14, as you found, and therefore sexual touching does not apply.
[10] Counsel for the appellant at trial, when questioned by the trial judge, indicated that he had "no opposition to what was said." Counsel for the appellant on appeal submits that the trial judge erred in finding the appellant guilty on count 11 by relying on a transaction different from the transaction that was alleged to form the subject matter of the count.
[11] We agree that it was not appropriate for the trial judge to enter a conviction against the appellant on count 11 in relation to conduct that occurred after the boy's fourteenth birthday.
[12] As a general rule, neither the dates specified in an indictment nor the specific particulars of sexual acts alleged by a complainant are material matters in charges of sexual assault but are considered mere surplusage R. v. B.(G.), 1990 CanLII 7308 (SCC), [1990] 2 S.C.R. 30 at 53. However, that general rule does not apply where the occurrence of specific events and specific dates are matters critical to the preparation of the defence and where regarding them as surplusage would prejudice the accused. See R. v. Vézina 1986 CanLII 93 (SCC), [1986] 1 S.C.R. 2 at 28.
[13] In this case, the fact that the allegations predated the boy's fourteenth birthday was critical because the case against the appellant related solely to pre-fourteenth-birthday conduct and did not involve any issues relating to consent. In particular, since no count in the indictment, and none of the prior testimony at trial, related to sexual misconduct occurring after the important date of the boy's fourteenth birthday, it was unnecessary for the appellant to make a choice concerning how to defend allegations that he sexually assaulted the boy after that date. In our view, the appellant suffered prejudice akin to that occasioned by the effective nullification of an alibi defence in response to a specific date in the indictment. See R. v. Parkin (1922), 1922 CanLII 417 (MB CA), 37 C.C.C. 35 (Man. C.A.). Had the appellant appreciated that he could be convicted for events after the boy's fourteenth birthday, he might have prepared his defence differently.
[14] Nevertheless, the trial judge's findings fully support a finding of guilt on count 11 as it was originally framed for events that took place before the boy's fourteenth birthday. In particular, the trial judge made a specific finding that "there was more than one incident of sexual touching during the summer of 2003" and that "the offences charged in the counts relating to 2003 are proven." Further, as the trial was conducted on the basis of count 11 as it was originally framed, we see no basis for concluding that appellant was misled or would in any way be prejudiced if convicted of count 11 as originally framed.
[15] Counsel for the appellant also submits that the findings of guilt on counts 9 and 10 are unreasonable in that they are not supported by the evidence, are inadequately explained and are inconsistent with the acquittals on counts 3 to 6. We disagree. In our view, there was more than sufficient evidence to support the findings of guilt on counts 9 and 10. These counts involved sexual abuse of the boy in the summer of 2003. There was evidence that fully supported both the timing and the nature and character of the allegations. We do not accept the submission that the trial judge failed to explain the convictions. Nor do we agree that the findings are inconsistent with the acquittals on counts 3 to 6.
[16] We would dismiss the conviction appeal.
SENTENCE APPEAL
[17] Following the appellant's convictions, the Crown brought a Dangerous Offender application. For the purposes of this application, the appellant was assessed by two psychiatrists, Dr. Woodside for the Crown and Dr. Gojer for the defence. Dr. Woodside gave oral evidence at the hearing and his report was filed as an exhibit. With the Crown's consent, the defence filed Dr. Gojer's report as an exhibit. Although he testified at trial, the appellant did not testify on the Dangerous Offender application.
[18] In her reasons for sentence, the trial judge concluded that the criteria for designation as a dangerous offender had been satisfied and she rejected the appellant's submission that he should be designated as a long-term offender. In making these determinations, the trial judge reviewed the appellant's circumstances, including his extensive criminal record, which contained entries both for assault and for sexual assault (the most significant convictions were for sexual assault with a weapon and uttering threats in relation to his stepdaughter from a previous relationship, for which he received a total sentence of four and a half years' imprisonment).
[19] The trial judge also noted the appellant's "violent and explosive" temper, his difficulties with anger management, and his history of alcohol and drug abuse. In addition, she accepted the evidence of both psychiatrists that the appellant is a pedophile with a non-exclusive "sexually deviant preference for children, both male and female, and both pubescent and pre-pubescent" (meaning the appellant is properly diagnosed as having pedohebephilia) and their diagnosis of anti-social personality disorder.
[20] Further, after reviewing the case law and statutory provisions relating to long-term offenders and dangerous offenders, the trial judge considered the evidence regarding the appellant's risk of re-offence and the prospects of his eventual control in the community. She concluded that there "is a substantial likelihood [the appellant] will commit similarly harmful crimes in the future" and that he meets the criteria for designation as a dangerous offender.
[21] The trial judge then turned to the issue of whether the appellant meets the long-term offender criteria. While she concluded that the appellant meets the first two criteria, she found that there was not a reasonable possibility of eventual control of the risk in the community. To the extent that the evidence of the two psychiatrists could be interpreted as suggesting such a reasonable possibility, she rejected that opinion. After setting out her analysis of their evidence, she said:
Ultimately, the decision as to whether there is a "reasonable possibility of eventual control of the risk in the community" rests with me and must be based on my assessment of all of the evidence before me. Expert psychiatric evidence is of enormous assistance in cases of this nature. However, I am not bound to accept the opinions of the experts if I find them to be unpersuasive or unsupported by the evidence. I do not lightly discount the opinions of these two experts. However, for the reasons I have stated above, I am not persuaded I should adopt their opinions on this one issue.
[22] The appellant raises five issues on his sentence appeal.
[23] First, the appellant argues that the trial judge erred by misapprehending the risk management evidence that was presented at the hearing and the legal significance of that evidence. According to the appellant, the risk management evidence addressed both his treatment prospects and the availability and potential efficacy of treatment and supervision in the community. The appellant submits that the trial judge erred by focussing almost exclusively on the question of whether his (the appellant's) risk could be successfully reduced by treatment and either improperly discounted or ignored the evidence relating to the efficacy of supervision.
[24] In particular, the appellant claims that the trial judge erred by failing to make any reference to the evidence of Dr. Robin Wilson, Correctional Services Canada's chief psychologist for the Ontario Region. The appellant says that Dr. Wilson's evidence was the centrepiece of his defence and demonstrated, in conjunction with the evidence of other witnesses, that the appellant's risk could be adequately controlled through supervision.
[25] Dr. Wilson testified about both the treatment programs available for individuals such as the appellant while in the penitentiary and about the type of supervision that the appellant could expect under a long-term supervision order. Relevant to these issues, he provided empirical data demonstrating the effectiveness, from a risk management standpoint, of the community-based government treatment/supervision program he headed. In addition, Dr. Wilson spoke about the work of a community program called Circles of Support and Accountability, about the effects of being in a Circle and about the results of a study that demonstrated that "there is a significant difference in the actual rate of re-offending between those who were in a Circle and those who were not".
[26] The appellant contends that as the result of failing to either advert to or appreciate the significance of this evidence, the trial judge essentially overlooked the prospects of managing the appellant's risk through supervision.
[27] We do not accept this submission. In our view, the trial judge's reasons demonstrate that she was fully aware of Dr. Wilson's evidence in particular, as well as the other evidence that was presented concerning the scope of the available community supervision.
[28] In particular, the trial judge alluded to Dr. Wilson's evidence at four points in her reasons: first, in an overall list of the evidence presented at the hearing; second, when referring to the procedures that Corrections Canada would follow in dealing with the appellant; third, when outlining the graduated release program that would be available if the appellant were placed on a long-term supervision order; and fourth, when noting the very good track record of Circles of Support and Accountability. Accordingly, the trial judge was clearly alert to Dr. Wilson's evidence with respect to community supervision.
[29] Further, contrary to the appellant's submission, in our view, it was unnecessary that the trial judge focus on the empirical evidence presented by Dr. Wilson concerning the statistical successes of various programs. While that evidence was important in providing a backdrop to other evidence concerning the potential for effective supervision, in our view, it did not address the specific issue of the reasonable possibility of eventually controlling the risk presented by the appellant in the community. Dr. Wilson could not give that evidence because she had never met the appellant. Rather, the psychiatric evidence to which we have referred provided specific evidence concerning the prospects for eventually controlling the appellant's risk in the community—and the trial judge reviewed that evidence extensively. We would not give effect to this ground of appeal.
[30] Second, the appellant submits that the trial judge erred in basing her rejection of the appellant's release plan on her speculative fear that the supervision and support offered to the appellant by Circles of Support and Accountability might not be available to the appellant by the time of his release and on her assessment that the continued availability of that support was "uncertain."
[31] In particular, the appellant points out that the trial judge found there was no clear evidence that the support program currently offered by Circles of Support and Accountability would continue to be available upon the appellant's release after he served a determinate sentence of four to six years. As well, in making that finding, the trial judge noted that Circles, which is a community-run program, is dependent on the availability of both volunteers and government funding. The appellant submits that the trial judge was required to make her decision on the basis of currently available programs and was not permitted to speculate that those programs would not continue to receive adequate funding.
[32] We do not accept this submission. Even if the appellant is correct that the trial judge erred in questioning the continued viability of Circles, in our view, her finding in this respect was not critical to her analysis. In expressing her reservations about the program, the trial judge expressed specific concern about Circles' ability "to absorb the extreme demands that managing [the appellant] would require." In our view, it was this concern about Circles' inability to provide the necessary close supervision of the appellant that was relevant to the reasonable possibility of managing his risk in the community.
[33] Encompassed in the issue of the available scope of Circles' supervision is the question of its ability to monitor the appellant's recommended medication and his use of alcohol and drugs. On the issue of the scope of the necessary supervision, both experts (particularly Dr. Woodside) referred to the need for anti-androgen medication as part of the appellant's supervision plan. Indeed, Dr. Woodside gave the opinion that without such medication on a lifelong basis the appellant would be "very clearly unmanageable within the community."
[34] Anti-androgen medication would normally be administered by injection and monitored by extraction of blood samples. However, the evidence about the appellant's willingness to comply with this medication regime was that he would only agree to take the medication orally; he had a phobia about needles. While there was evidence that his phobia would be amenable to treatment, there was no evidence about the appellant's willingness to undergo that treatment or his ability to tolerate the medication. Toleration was an issue because the medication can adversely affect a patient's bones and the appellant suffered from a pre-existing back condition. In any event, even assuming the medication could be tolerated there remained the essential requirement of monitoring the appellant's compliance with the medication.
[35] On this issue, Elizabeth Henderson, Circles' Program Manager, testified that Circles' volunteers would not be in a position either to monitor the appellant's necessary daily ingestion of pills or to provide the random checks necessary to ensure his abstention from alcohol and drugs. As the trial judge said, Circles is "largely dependent upon the offender self-reporting breaches or upon finding out about breaches by coincidence." Further, the Circle volunteers "do not do random spot-checks to ensure the offender is compliant with his conditions."
[36] In addition, the trial judge was entitled to balance the appellant's profession that he would take the medication, at least orally, with his history of his deceitfulness and manipulation, spawned by his anti-social personality disorder.
[37] In these circumstances, we see no error in the trial judge's conclusion that the promising work of Circles did not include the resources that were critical to the appellant's supervision in the community.
[38] Third, the appellant submits that the trial judge erred in rejecting the opinion expressed in Dr. Gojer's report without first alerting the defence to the fact that she had concerns about the opinion and without giving the defence an opportunity to address her concerns (by, for example, calling Dr. Gojer as a witness and having him give oral evidence).
[39] In this regard, the appellant points out that defence counsel at trial informed the trial judge that he and Crown counsel had agreed that Dr. Gojer's report could be filed and that the Crown did not require the opportunity to cross-examine Dr. Gojer. When asked if she required a copy of Dr. Gojer's curriculum vitae, the trial judge indicated she did not because she was familiar with Dr. Gojer's work. Further, when defence counsel referred to Dr. Gojer's report during the course of oral submissions, the trial judge commented simply, "I read it" and asked no questions and made no comments on the contents of his report.
[40] The appellant submits that the approach taken by the trial judge in failing to give the defence any warning of her intention to reject Dr. Gojer's report was fundamentally unfair. According to the appellant, the proper approach is the one commonly used when a sentencing judge is considering rejecting a joint submission—i.e., counsel are informed of the sentencing judge's concerns and given the opportunity to make further submissions.
[41] We do not accept these submissions. Defence counsel at trial was well aware of the Crown's position that a dangerous offender designation should be made. In such circumstances, it would have been obvious that the Crown contested Dr. Gojer's opinion concerning the possibility of eventually controlling the risk presented by the appellant in the community and that it would be for the trial judge to make a designation based on all of the evidence adduced. Just as with any other witness, it is open to a trial judge to accept some, all or none of an expert witness's evidence. In this case, it is apparent that the trial judge questioned certain assumptions contained in Dr. Gojer's report in light of other evidence adduced at the sentencing hearing. In any event, in our view, the record makes it clear that the defence decision not to call Dr. Gojer was a strategic one through which the defence obtained the advantage of not having Dr. Gojer challenged on cross-examination. We see no basis for holding that the trial judge was under an obligation to suggest that the appellant call Dr. Gojer to give viva voce evidence. Accordingly, we would not give effect to this ground of appeal.
[42] Fourth, the appellant argues that the trial judge improperly placed the onus on the defence to prove that there was a reasonable possibility of eventual control of the appellant's risk in the community and erred in assessing the psychiatric evidence on that basis. In support of his argument, the appellant cites the trial judge's reference to the defence "relying" on the experts' opinions and her statement that she was not "persuaded" that she should adopt the experts' opinions.
[43] We do not accept this argument. In our view, the trial judge's choice of language must be considered in its context of responding to the appellant's reference to the similar psychiatric opinions and does not reflect an impermissible shifting of the burden to the defence.
[44] Indeed, in her statutory analysis, the trial judge specifically noted that:
The burden remains on the Crown to prove beyond a reasonable doubt that the criteria for the dangerous offender designation have been met. This burden requires both proving the elements of the dangerous offender test and ruling out the appropriateness of the long-term offender designation. [Emphasis added.]
[45] R. v. F.E.D., 2007 ONCA 246, [2007] O.J. No. 1278 (Ont. C.A.) considered the burden of proof for the third criterion of the long-term offender designation. Simmons J.A., writing for this court, stated at para. 50:
In the context of a dangerous offender application, the issue is whether the sentencing judge should exercise the discretion not to declare an offender dangerous after the sentencing judge has found that the offender satisfies the statutory criteria for that designation. As I have explained, the sentencing judge may exercise that discretion where he or she is satisfied that the public threat can be reduced to an acceptable level through either the long-term offender provisions or a determinate sentence. This is not an issue that requires either party to satisfy a burden of proof; rather, it is an issue for the sentencing judge concerning whether to exercise his or her discretion based on the whole of the evidence adduced
Viewed in the context of the foregoing factors, I see no necessity or rationale for viewing the third criterion in s.753.1 as imposing a burden of proof. [Emphasis added.]
[46] Since there is no onus on the Crown regarding the third criterion, it follows that the trial judge's statement of the burden actually operated to the appellant's benefit.
[47] In any event, the trial judge concluded her reasons by saying: "I am not satisfied that the requirements for a long-term offender designation have been met." In our view, the trial judge's reasons indicate that there was no impermissible shifting of the burden and this ground of appeal cannot succeed.
[48] Fifth, the appellant argues that the trial judge erred in rejecting the common opinions of the experts concerning the prospects of eventually controlling the risk presented by the appellant in the community. According to the appellant, the opinions of the experts were consistent on this pivotal issue. We reject this submission. Among other flaws in the appellant's argument is the assumption that the experts' opinions were both consistent and unequivocal. In the trial judge's view, they were not. We agree with the trial judge.
[49] While Dr. Gojer gave the opinion that there was a reasonable possibility of eventual control of the appellant's risk in the community, the trial judge had difficulty with that opinion, including the reasons given for this conclusion.
[50] Moreover, in giving his opinion that the appellant "resembles or more closely resembles what I would see as a long-term offender", Dr. Woodside raised specific concerns about both the appellant's potential for treatment and his supervision. In his view, the issue of the appellant's designation turned on the question of supervision. He considered this issue in the context of the appellant's past behaviour, recognizing that the appellant posed a higher risk to children under his supervision (such as his stepchildren) than to children in the larger community.
[51] Even though he recognized the risk was thus limited, Dr. Woodside qualified his opinion saying: "My hope would be that such an intensive level of supervision, while not eliminating the risk posed by Mr. M., might allow for intervention (i.e. breach) prior to his committing a further violent offence." [Emphasis added.] In the trial judge's words, this "is hardly a ringing endorsement" about the prospects of managing the appellant's risk in the community. More importantly, Dr. Woodside's "hope" was premised on a number of conditions that the trial judge was not satisfied would be met.
[52] The trial judge's concerns about the conditions that were critical to Dr. Woodside's hope included the efficacy of anti-androgen medication and the supervision available under the Circles program, both of which are discussed earlier in these reasons.
[53] In addition, in our view, the trial judge was entitled, and indeed obliged, to reach her own conclusion about the appellant's risk. Her determination of this issue was one she made after careful consideration of extensive evidence concerning the factual foundations that underlay the experts' opinions, including the seriousness of the appellant's criminal record for violent crimes, his history of predatory sexual conduct, the ineffectiveness of an earlier penitentiary sentence for an assault against another stepchild, the appellant's substance abuse and anger management problems, the appellant's minimization of his conduct and his potential for treatment and supervision in the community. The trial judge's findings on these issues are entitled to deference. In applying those findings to the legal question of the appropriate designation, the trial judge was entitled to distinguish between a reasonable possibility and a speculative one concerning the appellant's eventual control in the community.
[54] Accordingly, we reject this ground of appeal.
[55] Finally, the appellant contends that the trial judge's assessment of Dr. Woodside's evidence was tainted because she unfairly discounted Dr. Woodside's concession about eventual control and because she relied on his demeanour. We reject these submissions.
[56] The trial judge was clearly alive to the fact that Dr. Woodside was a Crown witness. In our view, the trial judge operated well within her obligation to weigh the evidence in concluding that Dr. Woodside's optimism about the appellant's risk could not safely be accepted based on his past conduct and the trial judge's lack of satisfaction about the conditions necessary to control his risk in the community. In this regard, the trial judge was also entitled to note the tentative quality of Dr. Woodside's evidence when he carefully chose his words about the appellant's potential risk if designated a long-term offender in contrast to Dr. Woodside's assured and confident testimony regarding the appellant's designation as a dangerous offender. The fact that Dr. Woodside was a Crown witness did not mean that the trial judge was obliged to accept an opinion that she saw as qualified in crucial respects. Accordingly, we do not accept this ground of appeal.
[57] For these reasons, we would dismiss the appeal.
RELEASED: December 12, 2007 "JS"
"Janet Simmons J.A."
"Robert Armstrong J.A."
"S.E. Lang J.A."
[^1]: R. v. Kienapple, 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729.