WARNING
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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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.
COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Halliday, 2012 ONCA 351
DATE 20120525
DOCKET: C54229
Rosenberg, Gillese and Hoy JJ.A.
BETWEEN
Her Majesty The Queen
Respondent
and
Shane Halliday
Appellant
Michael Dineen, for the appellant
Eliott Behar, for the respondent
Heard: April 17, 2012
On appeal from the conviction entered by Justice Wren of the Ontario Court (General Division) on June 8, 1999, and the sentence imposed on June 4, 2001.
ENDORSEMENT
1The appellant appeals from the finding by Wren J. in 2001 that the appellant is a dangerous offender and from the sentence of indeterminate detention. Through no fault of the appellant and his current counsel, there has been an extremely long delay in perfecting this appeal. Because of the delay, an order was made for updated psychiatric reports. Those reports have now been filed and the authors of those reports, Dr. Bradford and Dr. Klassen, were cross-examined prior to the hearing. We have also received other material relating to the appellant’s behaviour and progress in the penitentiary. The appellant agrees that the dangerous offender designation and indeterminate sentence were proper when made back in 2001. He submits, however, that the recently filed reports show that he should be given a determinate sentence to be followed by a long-term supervision order. For the following reasons we do not accept that submission and the appeal is dismissed.
2The predicate offence that led to the dangerous offender finding occurred in 1997. The appellant had recently been released from prison and had begun a relationship with N.H., which she then ended. When the appellant was rebuffed in an attempt to resume the relationship, he went to the apartment of a friend of N.H., A.L. He gained entry to the apartment by a ruse. He then held a knife to the complainant’s throat and violently raped her vaginally and anally. The complainant was later treated for knife wounds and injuries to her genital area. The offence had a devastating psychological impact on the complainant.
3At the dangerous offender hearing, the prosecution led evidence of numerous sexual offences committed by the appellant from 1987 to his imprisonment in 1994. Beginning in 1987 and for a four year period he frequently assaulted his then girlfriend, J.W., when she was between the ages of 13 and 17. These assaults included physical violence with his fists requiring medical attention, stabbing her in the arm, violence with knives generally and multiple sexual assaults at knifepoint. When this victim finally ended the relationship, the appellant raped her sister, S.W., at knifepoint in 1993.
4In 1992, when another girlfriend, A.S., broke off her relationship with the appellant, the appellant broke into her apartment and threatened her with a wrench. The appellant confined this 17-year-old victim for 30 to 60 minutes, until another male intervened. The appellant was charged and released on bail. Friends of the appellant threatened to kill the victim unless she dropped the charges. In the end, the victim failed to attend court and the charges had to be withdrawn.
5Two months after raping S.W., the appellant raped another 17-year-old woman, T.F-L. The appellant had had a relationship with this woman, which ended when the appellant was jailed. In May 1993, they agreed to meet. The appellant took her to a field on a pretence that they were going to meet a friend. The appellant pulled out a knife and raped the victim while holding the knife to her throat. The assault had a devastating impact on the victim, who described extreme anxiety, panic attacks and sleep disorders.
6On October 3, 1994, the appellant pled guilty to the sexual assaults involving T.F-L. and S.W. The appellant admitted through counsel that he required treatment. The presiding judge imposed a sentence of two years and four months imprisonment, in addition to 16 months pre-sentence custody, and recommended treatment, including sex offender treatment. Once he reached the penitentiary, the appellant refused to take any treatment. The appellant was classified as being at high risk for violent recidivism. He was held in prison until the warrant expiry date. Ten months after being released, the appellant raped A.L., the victim of the predicate offences.
7The psychiatric and other evidence at the dangerous offender hearing overwhelmingly established that the appellant was a dangerous offender and that an indeterminate sentence was the only possible disposition. The appellant has displayed aggressive behaviour from a very young age and by age 12 was drinking heavily and taking drugs. Despite an impressive amount of social service intervention, the appellant made no improvement. He either failed to respond to treatment programs or withdrew from them. In addition to his record for sexual offences, the appellant has a significant youth and adult record for theft, mischief, assault with a weapon, escape from lawful custody, possession of a weapon and break and enter. He also fared badly in various institutions, acquiring an extensive adult institution record.
8The psychiatric diagnosis at the dangerous offender hearing was that the appellant had an antisocial personality disorder and sexual paraphilia that was most unlikely to respond to treatment. The various actuarial tools used by the experts scored the appellant as extremely likely to re-offend.
9The fresh evidence paints a slightly more optimistic picture for the appellant. After years of refusing treatment, the appellant had begun to participate in some treatment programs and in particular had completed a high intensity sex offender treatment program. That said, the diagnosis and risk of re-offending remains largely unchanged.
10Dr. Klassen, who also testified at the original dangerous offender proceeding, concluded that the appellant suffered from personality disorder of an antisocial type with borderline traits, alcohol dependence disorder, and a paraphilic coercive disorder involving a preference for non-consenting sexual interaction. The actuarial tools, inter alia, showed the appellant to be 100% likely to re-offend within ten years. Dr. Klassen was of the view that there was no reasonable possibility of eventual control of risk in the community. The appellant would require “a significant period of behavioural quiescence and clear substance abstinence, in the institution, along with evidence of increased commitment to self-change, and reflection, prior to contemplation of (even limited) community release.”
11Dr. Bradford agreed with Dr. Klassen’s psychiatric diagnosis of the appellant. However, he also believed that the appellant suffered from adult ADHD. He was of the opinion that there was a reasonable possibility of eventual control of the appellant’s risk in the community if the appellant underwent pharmacological treatment for ADHD and pharmacological castration and was subject to random urinalysis for substance abuse. Dr. Bradford was critical of the actuarial instruments, being of the opinion that research did not support the use of these instruments for determining whether an accused should be indefinitely incarcerated.
12Correctional records filed on the appeal showed that the appellant had an extensive history of institutional charges up until 2009. Thereafter, his behaviour had improved and he was now classified as medium security.
13In his very helpful submissions, Mr. Dineen mounted a substantial attack on the use of the actuarial instruments upon which Dr. Klassen relied. These instruments have come into use as a way of providing a more objective measure of dangerousness than may be possible through purely clinical observation. In our view, this is not an appropriate case to determine the usefulness of these instruments. Evaluation of these instruments would require a proper record, which was lacking in this case. All that was before us was Dr. Bradford’s scepticism about the utility of the instruments and some journal articles filed by the appellant’s counsel. Most significantly, neither expert’s opinion depended upon these instruments.
14In our view, the fresh evidence does not warrant allowing the appeal and substituting a determinate sentence followed by a long-term supervision order. A long-term supervision order is appropriate where there is a reasonable possibility of eventual control of the risk in the community: see R. v. Johnson, 2003 SCC 46, [2003] 2 S.C.R. 357. The long-term supervision order must be capable of reducing the threat to an acceptable level. The fresh evidence does not meet that test. Even Dr. Bradford’s opinion was premised on successful use of a number of different pharmacological and behavioural tools. Given the appellant’s long history of serious sexual offences and violent conduct and his resistance to treatment, it was nothing more than a hope that the appellant’s dangerousness might be controlled in the community.
15The appellant’s participation in the high intensity sex offender treatment program is to be commended, as is his most recent conduct in the institution. However, it must be borne in mind that the appellant has previously expressed an interest in treatment, at the 1994 sentencing and the 2001 dangerous offender proceeding. In both cases, he subsequently refused treatment. The most recent interest in treatment while this appeal was pending, some eight years after the dangerous offender finding, must be viewed with scepticism. It is too slender a foundation to warrant putting the safety of the public at risk, given the appellant’s history.
16Given the record that was before the sentencing judge as supplemented on this appeal, the conclusion of this court in R. v. T.L., 2008 ONCA 766, at paras. 5-7 applies:
We confess to some difficulty in understanding why an appeal would be allowed when everyone agrees that even if the LTO order was available to the appellant at the time of sentencing, he was properly declared a dangerous offender at the trial. In other words, it is conceded by everyone that the dangerous offender order was the correct order. We do, however, acknowledge that on sentence appeals from time to time this court considers evidence of post sentencing events that may cause the court to vary a sentence that was fit when imposed.
The appellant's argument is based exclusively on alleged post sentence changes in the appellant which at best make him a potential candidate for an LTO designation. Dr. Ben-Aron's opinion is guarded but hopeful. There are however many contingencies or uncertainties that would have to be fully explored before the ultimate merits of the release of the appellant into the community could be determined.
From an institutional perspective, we think the parole board exercising its jurisdiction under section 761 of the Criminal Code is in a much better position than a trial court to make the necessary assessments. There would be many problems associated with a new dangerous offender hearing so many years after the relevant events, not the least of which would be the possibility of re-traumatizing all of the victims through the need to appear and testify at a new hearing.
17It may be that in a proper case, this court could allow an appeal from a dangerous offender finding where the fresh evidence is sufficiently compelling to show that the original order was unnecessary. That is not this case. Accordingly, the appeal is dismissed.
Signed: “M. Rosenberg J.A.”
“E.E. Gillese J.A.”
“ Alexander Hoy J.A. ”