Publication Restriction 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), (2.1), (2.2), (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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a) any of the following offences; (i) an offence under section 151, 152,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, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49). (b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(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 victim of the right to make an application for the order; and (b) on application made by the victim, the prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall (a) as soon as feasible, inform the victim of their right to make an application for the order; and (b) on application of the victim or the prosecutor, 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); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18.

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

Date: 2021-09-21 Docket: C63212

Doherty, Gillese and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

Jamie Simpson-Fry Appellant

Counsel: Chris Rudnicki and Mark C. Halfyard, for the appellant Craig Harper, for the respondent

Heard: September 17, 2021 by video conference

On appeal from the sentence imposed on August 30, 2016, by Justice Joseph A. De Filippis of the Ontario Court of Justice, with reasons reported at 2016 ONCJ 532.

Reasons for Decision

1The appellant was designated a dangerous offender, on consent, following his convictions stemming from his brutal sexual assault of a young woman he did not know. He was 30 years old [1] at the time of the offence and extremely intoxicated. He was given an indeterminate sentence.

2The appellant appeals against sentence. He contends that his risk in the community can be managed and asks this court to set aside the indeterminate sentence and impose a determinate sentence, followed by a 10-year supervision order with appropriate conditions.

Background

3In October of 2013, while extremely intoxicated, the appellant grabbed the complainant, a young woman walking home from a friend’s house. He said if she screamed, he would break her neck. He dragged her into a yard shielded from the street view by tall trees, forcibly confined her on the ground for two hours, and brutally sexually assaulted her twice. When they left the scene, he told the complainant he would kill her if she told anyone about what had happened.

4The appellant was convicted of sexual assault, forcible confinement, and threatening death. It was his first conviction for a sexual offence. However, he had a long criminal record which began in April 2000 when he was a youth. It contains more than fifty entries, including robbery with violence, forcible confinement, assault, assault with a weapon, and assault with the intent to resist arrest. There are also multiple convictions for acts of domestic violence, failures to attend court, and breaches of probation. Alcohol was related to many – but not all – of the offences. For example, when he was 19, he committed a home invasion robbery with an imitation firearm while sober. He threatened the occupants of the home, including a “countdown”, after which he threatened to shoot an 82-year-old grandmother. He committed this offence for drug money.

5The Crown sought a dangerous offender designation under s. 753 of the Criminal Code, R.S.C. 1985, c. C-34 and an indeterminate sentence. The defence conceded that the appellant met the criteria for a dangerous offender but contended that a determinate sentence followed by a ten-year long-term supervision order (“LTSO”) could reasonably be expected to control his risk in the community.

6Dr. Pearce prepared the court-ordered psychiatric assessment and Dr. Gojer prepared an assessment for the defence. These experts agreed on much of the information leading to their respective opinions. They concurred in their diagnosis: the appellant has an antisocial personality disorder and a poly-substance use disorder. Their risk assessment tools and test results were also consistent.

7Dr. Pearce found the appellant was at high risk of violent re-offence. He considered the effect of an Antabuse prescription on the appellant’s risk. Antabuse renders a person violently ill if they drink alcohol. To be effective, Antabuse must be taken daily. Given the appellant’s history of non-compliance with court orders, Dr. Pearce did not believe that the appellant could be trusted to reliably report having taken his medication so conditions would have to be imposed such as urinalysis twice per week, and a staff member or medical professional watching to ensure the appellant actually swallowed the medication. In any event, however, Dr. Pearce found no reasonable prospect of control of the appellant on an LTSO, even if the appellant complied with anti-alcohol medication and counselling. He noted that the appellant’s risk could not be managed even under the strict conditions in a medium-security correctional facility where the appellant had previously been incarcerated and in which he had violently re-offended. Dr. Pearce also opined that the proposed conditions would not address the appellant’s substance abuse disorder nor his very severe, treatment-resistant antisocial personality disorder.

8Dr. Gojer also viewed the appellant as a high risk of violent re-offence. He observed that the appellant’s history of compliance while on judicial release and in custody has been “problematic”. However, in his opinion, there was a reasonable possibility of eventual control under an LTSO with a term to take anti-alcohol medication and under significant supervision. In reaching his conclusion on the appellant’s amenability to treatment, he adopted the opinion of Dr. Kalia who interviewed the appellant and was impressed with his insight and promise to reform. Dr. Gojer also spoke to the appellant and believed that he now accepts he has an alcohol problem.

9The appellant did not testify at the sentencing hearing.

10In his reasons, the sentencing judge describes the shocking nature of the index offences and summarizes the appellant’s background and extensive criminal record. Among other things, his criminal record shows an abysmal record of non-compliance with court orders – the appellant has been placed on probation 15 times and breached those orders every time. The sentencing judge also thoroughly canvassed the expert evidence and the evidence on management of LTSO by Correctional Service of Canada. Further, he accepted Dr. Pearce’s expert opinion that the proposed anti-alcohol treatment plan could not manage the appellant’s risk because it did not address the appellant’s dependence on other drugs or his antisocial personality disorder.

11At para. 71 of his reasons, the sentencing judge considered the appellant’s stated promises to seek professional help and abide by the terms of any release plan, including taking medication to deal with his alcohol dependence. He then made the following statement which is central to this appeal (the “Impugned Statement”):

I note that [the appellant] made these promises indirectly, to the doctors, without subjecting himself to cross-examination. This, in itself, does not mean I refuse to trust him; however, it does point to the additional significance of the evidence about the [appellant’s] background, the expert opinions about his prognosis, and the feasibility of managing his risk in the community.

12The sentencing judge declared the appellant a dangerous offender and sentenced him to an indeterminate custodial term. At para. 92 of his reasons, he concluded he was not satisfied there was a reasonable expectation that a fixed sentence, with or without an LTSO, would adequately protect the public against the appellant’s commission of a serious personal injury offence. He explained that in reaching this conclusion, he considered the appellant’s past performance as a predictor of future behaviour, his abysmal record of non-compliance, the expert opinions, the voluntary nature of treatment inside the penitentiary and in the community, the limitations inherent in a LTSO, the absence of treatment for all aspects of the poly-substance use disorder, and the substantial difficulty in addressing the appellant’s antisocial personality disorder.

The Issue

13The issue on appeal flows from the Impugned Statement in para. 71 of the sentencing judge’s reasons. In his factum, the appellant says the issue is whether the sentencing judge violated his s. 7 Charter right to silence by, in effect, refusing to trust him because he declined to testify on his sentencing. In his oral submissions, the appellant says the Impugned Statement raises the question whether, in a dangerous offender hearing, the accused must testify before their statements to a psychiatric expert can be relied on for the truth of their contents.

Analysis

14We do not view the Impugned Statement as raising either of the issues articulated by the appellant. The sentencing judge did not rule the statements inadmissible or draw an adverse inference against the appellant because he did not testify. Nor did the sentencing judge refuse to accept the truth of the appellant’s statements. Rather, as the sentencing judge explained in the Impugned Statement itself, he considered those statements in light of the entire evidentiary record and, in part because the appellant had not been cross-examined on his statements, afforded them less weight than other pieces of evidence when determining the feasibility of managing the appellant’s risk to the community.

15The sentencing judge made no error in his treatment of the appellant’s statements. There is no basis for this court to interfere with the sentence imposed.

Disposition

16Accordingly, the appeal is dismissed.

“Doherty J.A.”

“E.E. Gillese J.A.”

“Grant Huscroft J.A.”

Footnote

1In some of the documents, the appellant is said to have been 29 years old at the time of these offences. However, this appears incorrect as his date of birth is September 29, 1983, and the offences took place in October 2013.