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. 486.5(1), (2), (3), (4), (5), (6), (7), (8) or (9) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:
486.5 (1) Unless an order is made under section 486.4, on application of the prosecutor, a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of justice.
(2) On application of a justice system participant who is involved in proceedings in respect of an offence referred to in subsection 486.2(5) or of the prosecutor in those proceedings, a judge or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of justice.
(3) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice if it is not the purpose of the disclosure to make the information known in the community.
(4) An applicant for an order shall
(a) apply in writing to the presiding judge or justice or, if the judge or justice has not been determined, to a judge of a superior court of criminal jurisdiction in the judicial district where the proceedings will take place; and
(b) provide notice of the application to the prosecutor, the accused and any other person affected by the order that the judge or justice specifies.
(5) An applicant for an order shall set out the grounds on which the applicant relies to establish that the order is necessary for the proper administration of justice.
(6) The judge or justice may hold a hearing to determine whether an order should be made, and the hearing may be in private.
(7) In determining whether to make an order, the judge or justice shall consider
(a) the right to a fair and public hearing;
(b) whether there is a real and substantial risk that the victim, witness or justice system participant would suffer significant harm if their identity were disclosed;
(c) whether the victim, witness or justice system participant needs the order for their security or to protect them from intimidation or retaliation;
(d) society’s interest in encouraging the reporting of offences and the participation of victims, witnesses and justice system participants in the criminal justice process;
(e) whether effective alternatives are available to protect the identity of the victim, witness or justice system participant;
(f) the salutary and deleterious effects of the proposed order;
(g) the impact of the proposed order on the freedom of expression of those affected by it; and
(h) any other factor that the judge or justice considers relevant.
(8) An order may be subject to any conditions that the judge or justice thinks fit.
(9) Unless the judge or justice refuses to make an order, no person shall publish in any document or broadcast or transmit in any way
(a) the contents of an application;
(b) any evidence taken, information given or submissions made at a hearing under subsection (6); or
(c) any other information that could identify the person to whom the application relates as a victim, witness or justice system participant in the proceedings. 2005, c. 32, s. 15.
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. 205, c. 32, s. 15.
CITATION: R. v. Hopkins, 2008 ONCA 818
DATE: 20081203
DOCKET: C44288
COURT OF APPEAL FOR ONTARIO
Simmons, Cronk and Watt JJ.A.
BETWEEN:
Her Majesty the Queen
Respondent
and
James Milton Hopkins
Appellant
James Stribopoulos and Lindsay Daviau for the Appellant
John McInnes for the Crown
Heard: November 13, 2008
On appeal from the conviction entered on December 12, 2003 and the sentence imposed on September 16, 2005 by Justice Paul F. Lalonde of the Superior Court of Justice.
By the Court:
1Following a trial before Lalonde J., the appellant was acquitted of unlawful confinement and sexual touching, but convicted of unlawfully enticing away a person under the age of 14 years with intent to deprive a parent of possession of that person, contrary to s. 281 of the Criminal Code, R.S.C. 1985, c. C-46. The appellant was subsequently declared a dangerous offender and sentenced to an indeterminate period in custody. The appellant appeals his conviction as well as the dangerous offender designation and indeterminate period of incarceration.
Background
2On June 29, 2003, the 10-year-old complainant in the predicate offence was playing with two friends down the street from her home. The 45-year-old appellant lived in an apartment across the road from where the girls were playing. He overheard the complainant saying that her mother had some puppies for sale. He called out to the complainant from his apartment and asked her to give him her mother's telephone number.
3In a videotaped statement given to the police later the same day, the complainant said that after she told the appellant that she was not allowed to give out her telephone number, he asked her to come to his apartment so he could give her his telephone number.
4According to her videotaped statement, the complainant went up to the appellant's apartment and he closed and locked the door. The complainant said that while she was in the apartment, the appellant showed her some pornographic pictures on his computer, asked her to show him her "boobs", and promised to give her two dollars if she did so. She refused. The appellant gave her his telephone number on a piece of paper and two dollars. He promised to take her to another man who would give her $500 for showing her boobs. When the complainant declined, the appellant told her not to tell anyone about the incident, said he would hurt her if she did so, and let her out of the apartment.
5The complainant reported the encounter immediately to her friends, to the grandmother of one of her friends and to a police officer. Everyone who saw her following the incident described the complainant as being visibly upset.
The Conviction Appeal
6The appellant raises two issues on his conviction appeal.
7First, the appellant submits that the trial judge's reasons are inadequate because they fail to reconcile conflicting evidence concerning the “enticing” element of the offence, an aspect of the actus reus.
8The appellant contends that the term “enticing” requires that an accused be proactive in inducing a child to accompany him or her, such that the conduct of the accused amounts effectively to “taking” the child in question. In this case, the complainant's own evidence concerning how she arrived at the appellant's apartment is conflicting. Although she said in her videotaped statement to the police, which she adopted at trial, that the appellant asked her to come up to his apartment to get his telephone number, during cross-examination at trial she said that the appellant did not say anything to her about coming to his apartment and she could not remember why she did so. The appellant submits that, in these circumstances, the trial judge committed reversible error by failing to reconcile the conflicting evidence and any potentially conflicting interpretations of the term “enticing”.
9We do not accept this submission.
10Although the trial judge's reasons on this issue might have been clearer, he acknowledged, when setting out the Crown's position, that the defence contested the element of enticing. The trial judge noted the Crown's position that the enticing element was established by the appellant’s suggestion that the complainant come upstairs after she refused his request for her telephone number and that the invitation to come upstairs was confirmed by the evidence of the appellant's neighbour. Later in his reasons, the trial judge said that he accepted the neighbour's evidence, albeit without referring to this specific point.
11Subsequently, after reviewing the appellant’s submissions, which focussed on whether the appellant had the necessary mens rea for the offence, the trial judge made an explicit finding that the Crown had proven the enticing element of the offence.
12In our view, it is implicit in the trial judge's reasons that he accepted the complainant's evidence that the appellant invited her to his apartment based on the confirmatory evidence from the neighbour. Similarly, it is implicit that the trial judge accepted the Crown’s position that enticing was made out based on the totality of the exchange between the complainant and the appellant, during which the appellant invited the complainant to his apartment after she had declined his initial request for her telephone number. We see no error in the trial judge’s conclusion that the enticing element was satisfied and we would not give effect to this ground of appeal.
13The appellant's second argument on his conviction appeal is that the trial judge's reasons demonstrate that he erred in his interpretation and application of the mens rea requirement under s. 281. In particular, the appellant submits that the trial judge was unduly preoccupied with the appellant's motives, a danger the appellant says the Supreme Court of Canada cautioned against in R. v. Chartrand, 1994 CanLII 53 (SCC), [1994] 2 S.C.R. 864, and furthermore, that he failed to make an explicit finding that the appellant was subjectively aware that the consequences of his act would be to deprive the complainant's mother of possession of her child.
14We disagree. The trial judge’s reasons on this issue are as follows:
Finally, I fail to see how Mr. Hopkins, who brought [the complainant] into his apartment, would not think he was depriving [the complainant’s mother] of the control of her daughter. Mr. Hopkins did not have [the complainant’s mother’s] consent to have [the complainant] in his apartment and [the complainant] did not ask to go to his apartment.
I agree with Crown counsel that the depriving of [the complainant’s mother] of control of her child can be for a short period of time, and that no restraint is necessary. I infer from the facts Mr. Hopkins’ intention. He decided to deprive the mother of the control of the child to satisfy his needs. There was no justification for the taking. He was not playing at being a good Samaritan.
I agree with Madam Justice L’Heureux-Dube’s statement in R. v. Chartrand, “It will be rare indeed that the deprivation of a child from parents was not the intent of the impugned act”, saying it’s an inference for the trier of fact. Then, in the end, if the purpose of the section is to be achieved, foresight of the continuity or even certainty of the end result must be sufficient. Mr. Hopkins had to know his actions could only bring him trouble. [Emphasis added.]
15Although the trial judge referred to the appellant’s motives, he did so in the context of assessing the appellant’s subjective intention. Section 281 protects a parent’s right to possession of their child in the sense of their right to have care and control of their child. Enticing a child away from a parent to harm the child is inconsistent with the parent’s continuing care and control. The presence of a motive to harm is therefore a relevant factor in assessing whether the necessary subjective intent to deprive the parent of possession of the child exists. Read fairly, the trial judge’s reasons demonstrate that he was aware of the requirement of subjective foresight and made the necessary finding. We would not give effect to this ground of appeal.
16Based on the foregoing reasons, the conviction appeal is dismissed.
The Sentence Appeal
17The appellant raises three issues on his sentence appeal.
18First, he claims that the trial judge erred in finding that the predicate offence qualifies as a “serious personal injury offence” as that term is defined in s. 752 of the Criminal Code. As there was neither violence nor threats involved in the predicate offence, the appellant submits that the Crown was required to show that the predicate offence either endangered or was likely to endanger the complainant's “life or safety or was likely to inflict severe psychological damage on her”. Because the latter component of this test relates to psychological damage, the appellant submits that the safety component is restricted to physical safety and is therefore not applicable.
19Concerning the psychological component, Dr. Klassen testified that there is general consensus in the scientific community that 25% of child sexual abuse victims have significant ongoing psychiatric problems, 25% have moderate ongoing problems and 50% end up with minor problems or no problems at all. Given Dr. Klassen's testimony and the absence of expert evidence about the potential impact of the incident on the psychological well-being of the complainant, the appellant submits that the trial judge erred in holding that the predicate offence was a serious personal injury offence.
20We disagree. The appellant is a psychopath and a pedophile. Evidence at trial of the predicate offence indicated that, at the time that the appellant invited the complainant into his apartment, he was engaged in surfing the internet for pornography, some of which was extremely violent. The appellant not only showed the complainant pornography, he importuned her to disrobe. Evidence on the dangerous offender application established that the appellant has sexually abused a number of children. On these facts, we fail to see any reasonable basis for concluding that the complainant’s safety was not endangered by the appellant’s actions.
21The appellant’s second argument on his sentence appeal is that the trial judge committed reversible error by admitting evidence concerning alleged criminal conduct for which the appellant was previously prosecuted and acquitted, thereby offending the res judicata principle and the issue estoppel principle, and violating s. 11(h) of the Charter.
22We do not accept this submission. The impugned evidence related to an alleged sexual assault in 1992 on then 15 year-old J.R. We acknowledge that the appellant was tried and acquitted of this allegation and that the trial judge who presided over the sexual assault trial rejected J.R.’s evidence. However, although evidence about the sexual assault was adduced on the dangerous offender application, on a fair reading of the trial judge’s reasons, we are not persuaded that he accepted or relied on that evidence. More importantly, even if he did, we are not persuaded that such reliance formed a material part of his reasoning concerning the dangerous offender designation.
23J.R. did not testify about the details of the sexual assault on the dangerous offender hearing; rather, she testified about conduct of the appellant that preceded the sexual assault. She said that the appellant showed her pornographic magazines while touching his penis. The evidence about the nature of the alleged sexual assault was led by the defence during cross-examination of C.B (another Crown witness). C.B. testified that J.R. said she was raped by the appellant.
24Apart from summarizing J.R.’s evidence1 (along with the evidence of all other past complainants), the trial judge referred to the incident with J.R. on only one further occasion in his reasons, in relation to the likelihood that the appellant would reoffend. In that section of his reasons, the trial judge summarized a list of occasions when the appellant reoffended while on parole or soon after being released following warrant expiry. The list related to six different time frames over a period of several years. The impugned evidence related to a single time frame and was not the only misconduct that occurred in that time frame.
25When referring to the incident with J.R. in this section of his reasons, the trial judge described the appellant as “engag[ing] in sexually aggressive behaviour” with J.R. and two other individuals. The trial judge then noted that the appellant arranged for an alibi witness to testify falsely when he was subsequently charged for sexually assaulting J.R.
26Given the manner in which the trial judge referred to the incident with J.R., we are not persuaded that he accepted or relied on the hearsay evidence concerning the sexual assault. If the trial judge relied solely on J.R.’s evidence about the pornography-masturbation incident, such reliance would constitute an error in law only if the question of whether that incident occurred was resolved in the appellant’s favour at the sexual assault trial, either on the basis of a positive factual finding or reasonable doubt: see R. v. Mahalingan, 2008 SCC 63, at para. 22.
27In our view, it is unnecessary that we resolve this issue. Even assuming that the trial judge relied improperly on evidence about a sexual assault on J.R., or on evidence about the pornography-masturbation incident that was resolved in the appellant’s favour at the sexual assault trial, we are not persuaded that such an error requires a new hearing. Simply put, although the trial judge referred to an incident between the appellant and J.R., it was but one of many examples of misconduct that the trial judge referred to and was not the most serious. Viewed in context, it cannot be said to have formed a material part of the trial judge’s reasoning concerning the dangerous offender designation.
28Accordingly, we would not give effect to this ground of appeal.
29The appellant’s third argument on his sentence appeal is that the trial judge erred in designating the appellant as a dangerous offender when the evidence supported a long-term offender designation. Concerning this error, the appellant submits that the trial judge misinterpreted and failed to consider relevant evidence, with the result that the trial judge overstated the appellant’s future dangerousness and underestimated the potential for controlling him in the community. The appellant points, in particular, to the failure of the trial judge to refer to the evidence of Mr. Remus, of the John Howard Society, suggesting that the appellant could be adequately supervised at a particular residence operated by the John Howard Society and, in addition, claims that the trial judge misinterpreted the evidence of Dr. Klassen.
30We disagree. In light of his pre-sentence custody, the only realistic sentencing alternative in relation to the appellant involved releasing him into the community virtually immediately subject to a ten-year supervision order. The trial judge referred to the appellant’s previous dismal record while on community release orders. Even assuming that the appellant could be placed at the John Howard facility, the longest period during which that facility has ever housed an offender is two and one half years. Moreover, the evidence suggested that the appellant requires virtually constant supervision, which would not be provided at the John Howard facility. In these circumstances, the trial judge was justified in declining to accept Mr. Remus’s plan.
31The trial judge’s core finding concerning Dr. Klassen’s evidence was that it was premised on too many hoped–for successes relating to the appellant to constitute a viable release plan. The trial judge’s findings concerning pharmacological treatment demonstrate his conclusion. The trial judge noted that the appellant had refused this treatment in the past and that, because of his psychopathy, could do so again at any time in the future. The expert evidence made it clear that successful pharmacological treatment was central to a successful release plan. Although the appellant could be re-incarcerated at any time if he refused this treatment, the maximum term would be ten years.
32In the circumstances, we see no error in the trial judge’s appreciation of Dr. Klassen’s evidence or in his ultimate conclusion that a long-term offender order was not appropriate.
Disposition
33Based on the foregoing reasons, the appeal is dismissed.
RELEASED: December 3, 2008 “EAC”
“Janet Simmons J.A.”
“E. A. Cronk J.A.”
“David Watt J.A.”