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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 20221028 DOCKET: C66293
van Rensburg, Pardu and Copeland JJ.A.
BETWEEN
His Majesty the King Respondent
and
K.C. Appellant
Counsel: Howard L. Krongold, for the appellant Michael S. Dunn, for the respondent
Heard: June 8, 2022
On appeal from the convictions entered on January 27, 2015 by Justice Kevin B. Phillips of the Superior Court of Justice, sitting with a jury, and from the sentence imposed on September 29, 2017, with reasons reported at 2017 ONSC 5803.
Reasons for Judgment
Introduction
1The appellant was found guilty in a trial by jury of four counts of sexual assault, contrary to s. 271 of the Criminal Code, R.S.C. 1985, c. C-46, and four counts of sexual interference, contrary to s. 151 of the Criminal Code. 1 The convictions related to offences committed against his two young daughters and two young nieces, and spanned dates between January 2004 and November 2012. Following a hearing, the appellant was designated a dangerous offender, pursuant to s. 753(1)(a) and (b) of the Criminal Code. The trial judge imposed an indeterminate sentence, pursuant to s. 753(4) and (4.1).
2The appellant appeals both conviction and sentence. He raises two grounds of appeal.
3First, the appellant argues that the trial judge erred in finding that his rights under s. 11(b) of the Charter were not breached during the sentencing process. In particular, the appellant’s submissions focus on a one-year delay in the dangerous offender hearing caused by the sudden illness of assigned Crown counsel very shortly before the hearing was originally scheduled to start. The appellant accepts that the illness constituted an exceptional circumstance, but argues that a one-year delay to reschedule the hearing is unreasonable and contrary to the Crown’s and the justice system’s duty to mitigate delay caused by exceptional circumstances.
4As I outline below, the s. 11(b) motion was brought post-verdict. The appellant argues that if he prevails on this ground of appeal, the court should allow the appeal and stay the proceedings against him, or in the alternative, impose a determinate sentence and a long-term supervision order.
5I flag now an issue I return to below. The adjournment of the dangerous offender hearing in this case due to the Crown’s sudden illness happened two months after the decision of the Supreme Court in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631. All of the pre-verdict proceedings happened before Jordan. Further, the post-verdict proceedings were completed approximately two years prior to this court’s decision in R. v. Charley, 2019 ONCA 726, 147 O.R. (3d) 497, addressing how post-verdict delay should be analyzed in light of Jordan.
6Second, the appellant argues that the trial judge erred in law in his interpretation and application of s. 752.1 of the Criminal Code, which governs the designation of the person to perform an assessment for a dangerous offender application. In particular, the appellant argues that the trial judge erred in holding that the court should defer to the Crown’s choice of assessor, and only inquire into whether the person proposed by the Crown is capable of performing the assessment.
7The appellant argues that if he prevails on this ground of appeal, the appropriate remedy is a new dangerous offender hearing.
8I would dismiss the appeal. The trial judge did not err in finding that the appellant’s s. 11(b) rights were not infringed. This was a transitional case involving exceptional circumstances. The trial judge applied correct legal principles, and applied principles which are broadly consistent with subsequent developments in the law, in particular this court’s decision in Charley. The trial judge’s assessment of the various factors at play was reasonable in all the circumstances, as was his ultimate conclusion that the appellant’s right to trial within a reasonable time was not violated.
9With respect to the second ground raised by the appellant, I find that the trial judge erred in law in applying a test for selection of the assessor under s. 752.1 of the Criminal Code that involved a presumption of designating the assessor proposed by the Crown so long as the person has the capacity to perform the assessment.
10However, I am satisfied that the error caused no substantial wrong or miscarriage of justice. There is no reasonable possibility that the result would have been different absent the error.
11Because the grounds of appeal focus on distinct factual aspects of the proceedings below, I summarize the facts relevant to each ground of appeal in my analysis of each ground of appeal.
Did the trial judge err in finding that the appellant’s right to trial within a reasonable time was not infringed?
(i) Relevant chronology
12The appellant’s submission in relation to s. 11(b) is framed narrowly to focus on one time period during the dangerous offender stage of the proceedings, post-verdict.
13Because of the narrow focus of the appellant’s s. 11(b) argument, it is not necessary to review the entire chronology of the trial. The appellant raises no issue on appeal with delay prior to the jury’s verdict on January 27, 2015. For this reason, for the most part, I will focus on the post-verdict period. Further, although the appellant made reference to the full period of delay post-verdict in his submissions to this court, he did so only as context for his submissions about the period of delay between September 19, 2016 and September 18, 2017.
14By way of context, the appellant was charged on November 15, 2012. He was convicted by the jury on January 27, 2015. Thus, it was just over 26 months from charge to verdict. The trial judge found no unreasonable delay in this time period. Indeed, he found that the time from charge to verdict showed that “the system was working as it should.” He based this conclusion on several factors, including the fact that the complainants came forward at different times, some after the initial proceedings had commenced, resulting in two separate preliminary inquiries; and that there were weeks of pre-trial motions.
15I provide a chronology of events post-verdict leading up to September 2016, and then focus on the period of September 19, 2016 to September 18, 2017, which is the core of the appellant’s arguments on appeal:
- The appellant was convicted on January 27, 2015. The trial judge revoked his bail later that day. At the request of the appellant, the trial judge ordered a pre-sentence report and a sexual behaviours assessment under s. 21 of the Mental Health Act, R.S.O. 1990, c. M.7. The Crown had not yet decided whether to pursue a dangerous offender application. Crown counsel explained that she required approval of the regional director and confirmation of the availability of a psychiatrist before making that request.
- On March 31, 2015, the Crown advised that it was seeking an assessment under s. 752.1 of the Criminal Code. The appellant opposed the assessment. Steps were taken to set a date to argue the application for designation of an assessor under s. 752.1. On April 10, 2015, the matter was spoken to, and June 3, 2015 was set as the date to argue the s. 752.1 application.
- On June 3, 2015, the appellant advised that he had changed counsel. As a result, the Crown’s application for designation of an assessor under s. 752.1 could not proceed. July 8, 2015 was selected to argue the s. 752.1 application.
- On July 8, 2015, the s. 752.1 application was argued. The trial judge ruled that the threshold was met to order an assessment. Counsel for the appellant advised that the appellant did not agree with the assessor proposed by the Crown. The matter was adjourned for argument on how an assessor should be chosen. The matter was spoken to in assignment court on September 22, 2015, and September 25, 2015 was set as the date for argument on how to select the assessor under s. 752.1.
- On September 25, 2015, the parties appeared, but the trial judge had been assigned to sit elsewhere due to “administrative error”. In order to expedite the issue, the parties agreed to argue the issue of how the assessor should be chosen and who should be chosen in writing.
- On November 3, 2015 the trial judge issued a written ruling on how the assessor would be chosen and appointed Dr. Philip Klassen.
- On February 6, 2016, Dr. Klassen’s report was received. The parties sought dates for a two-week dangerous offender hearing in the event that the Crown decided to pursue a dangerous offender application. The first dates were for two weeks beginning January 3, 2017. On May 13, 2016 the parties appeared again. The Crown confirmed that it was proceeding with a dangerous offender application. At the same time, counsel secured earlier dates for the dangerous offender hearing, two weeks starting September 19, 2016.
16I pause to note that in his s. 11(b) ruling, the trial judge found that the time periods between January 27, 2015 and February 6, 2016 were either delay due to inherent time requirements of the proceeding or defence delay. He further found that the delay of seven months between when the parties were ready to proceed (February 6, 2016) and the hearing dates starting September 19, 2016 were within the Morin guidelines: R. v. Morin, [1992] 1 S.C.R. 771. Although the appellant takes issue with whether some of the delay prior to the September 2016 adjournment would be better characterized as inherent time requirements rather than defence delay, his argument on appeal only focuses on the time period of September 19, 2016 to September 18, 2017.
17On July 8, 2016, two months prior to the initial hearing date for the dangerous offender application, the Supreme Court released the decision in Jordan.
18As noted above, the dangerous offender hearing was scheduled to proceed on September 19, 2016, for two weeks. In early September 2016, it was made known that the assigned Crown would be unable to proceed with the hearing on September 19, 2016 due to medical reasons. It was also quickly determined that it was not feasible to replace the assigned Crown and preserve the September 2016 hearing dates.
19The Crown formally applied to adjourn the dangerous offender hearing, and both counsel applied jointly to change the venue to Ottawa. The appellant did not consent to the adjournment, in order to protect his s. 11(b) rights, but he acknowledged that the adjournment was appropriate and inevitable. The trial judge agreed.
20The dangerous offender hearing was rescheduled to proceed on September 18, 2017, for two weeks. Before that date was set, court was stood down for counsel to consult the trial coordinators in both Perth and Ottawa, with a view to having the hearing in the location that offered the earliest continuation dates. Emails in the lead-up to the adjournment request showed that defence counsel had availability for four weeks in October and November 2016, and then from May 15, 2017 onwards. The first availability of the new Crown counsel who took over the matter as a result of the previous Crown’s illness was in December 2016 and February 2017.
21The factual finding made by the trial judge in his s. 11(b) ruling about the scheduling of the new hearing dates for September 18, 2017 for two weeks was as follows:
The unfortunate result of the September 16^th^, 2016 adjournment was that the matter was advanced to September 1[8]^th^ to 29^th^, 2017. That was the first available time block suitable to the court. In September 2016, inquiries were made as to whether earlier dates were available if the matter were heard in Perth rather than Ottawa. It made no difference. As a result of my schedule, the 2017 summer schedule, and simple courtroom resources throughout the East Region, the matter was set to [September 18, 2017].
22In the event, the hearing proceeded as scheduled beginning on September 18, 2017, but took only 4.5 days. The trial judge rendered his decision declaring the appellant a dangerous offender and imposing an indeterminate sentence on September 29, 2017.
(ii) Reasons of the trial judge dismissing the s. 11(b) Charter motion
23Before the trial judge, the appellant’s s. 11(b) argument raised issues regarding the entire period from charge to sentence. As the issue on appeal only addresses the post-verdict period, I summarize only the reasons in relation to the post-verdict period.
24The trial judge held that this was a transitional case as the pre-verdict stage was completed before the Supreme Court decision in Jordan. Because it was a transitional case, the trial judge evaluated the delay through the lens of Morin.
25The trial judge also found that the fact that the proceedings involved a dangerous offender application was relevant to assessing whether the delay was unreasonable. The trial judge recognized that sentencing is part of the trial and that s. 11(b) applies through to the end of the entire trial process, including any dangerous offender application. He noted that a dangerous offender application is “an extraordinary step in criminal procedure” and “is clearly an undertaking that is both complex and time consuming.” He noted that in Jordan, the Supreme Court made specific mention of the fact that a dangerous offender application can take “significant time” and that Jordan was not to be taken as a commentary on the ceiling that should be put on such a procedure. The trial judge read this portion of Jordan as recognizing that some flexibility was called for when considering unreasonable delay in the dangerous offender application context.
26As noted above, with respect to the time periods from January 27, 2015 to February 6, 2016, the trial judge found that the delays were either defence delay or inherent time requirements of the proceeding. He found that the time period February 6, 2016 to September 19, 2016 (the date originally set for the dangerous offender hearing) was within the Morin guidelines – i.e., the court could accommodate the parties within seven months from when they were prepared to proceed.
27With respect to the delay from September 16, 2016 to September 29, 2017 (the date he rendered his decision on the dangerous offender application and imposed the indeterminate sentence), the trial judge found as follows. The assigned Crown fell ill with “an unforeseen and significant medical issue” on September 16, 2016, three days before the scheduled hearing. The adjournment in these circumstances was exceptional. Because of the nature of the proceeding, it would have been “an insurmountable burden” to slot in another Crown counsel in time for the hearing on September 19, 2016.
28As I have outlined above, the trial judge found as a fact in his reasons that the first available time block suitable to the court for a two-week hearing was beginning on September 18, 2017.
29The trial judge found that the adjournment of a full year to reschedule the dangerous offender hearing was “obviously problematic”, and was beyond the Morin guidelines for institutional delay. He found that “if the judicial system was properly resourced the matter could have been heard within six to eight months of September 16, 2016, when the exceptional circumstance of the unforeseen Crown illness reared its head.” He recognized that Jordan was meant as a “wakeup call to the judiciary, the legislature, the bar and the public” about what changes are necessary to reaffirm the right to trial within a reasonable time.
30However, the trial judge also noted the recognition by the Supreme Court in para. 97 of Jordan that change may take time. He noted that there was a significant problem of institutional delay in the East Region, “particularly with respect to multi-week matters which come up against the summer months.”
31The trial judge held that a flexible approach was called for because this case was a transitional case and involved a dangerous offender application. He assessed whether the delay was unreasonable having regard to the interests that s. 11(b) aims to protect, the explanation for the delay, and the prejudice to the appellant. He found that the Crown’s unforeseen illness shortly before the scheduled hearing was an exceptional circumstance. He found that the case was complex and that a dangerous offender application is an extraordinary sentencing hearing. He recognized that because it took one year to reschedule the dangerous offender hearing, rather than the six to eight months that it should have taken were the courts properly resourced, the appellant had to spend approximately six months longer in custody awaiting the dangerous offender hearing. He accepted that the uncertainty from the appellant not knowing what his sentence would be, and the effect of not being sent to an institution where rehabilitation could occur (i.e., the longer period held on remand), were properly weighed in the s. 11(b) balance. However, he found that the delay of six months that the appellant was required to remain in a remand institution was attenuated by the fact that he had been convicted and was “no longer cloaked in the presumption of innocence,” referring to the decision of the Supreme Court in R. v. MacDougall, [1998] 3 S.C.R. 45, at para. 67.
32In concluding that the appellant’s s. 11(b) rights were not violated, the trial judge stated:
In conclusion, I find this transitional case to involve complexity as well as an exceptional circumstance. The fallout from that exceptional circumstance is unfortunate. [The appellant] had to spend about six months in custody living in limbo. However, I conclude that the prejudice suffered by him is attenuated by his post-conviction status. The fact that the state of the East Region’s resources resulted in a 12-month delay from September 16, 2016, which is roughly six months too much, is the sort of circumstance that the legislatures should be given some time to fix.
Finally, I also conclude that this case sits at the high end of the seriousness spectrum and carries high public interest in a trial on the merits.
(iii) Positions of the parties
33The appellant argues that the one-year delay from the September 19, 2016 hearing dates that were adjourned due to the assigned Crown’s unforeseen illness to the rescheduled hearing date of September 18, 2017 was unreasonable.
34The appellant accepts that the Crown’s illness was an exceptional circumstance. However, he argues that delay due to discrete exceptional circumstances can only be deducted from the s. 11(b) calculus “to the extent it could not be reasonably mitigated by the Crown and the justice system”: R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659, at para. 48.
35The appellant submits that in this case, the one-year delay is unreasonable. He submits that this court should find that the five-month ceiling for sentencing delay articulated by the court in Charley was already spent by the delay up to the first scheduled hearing date of September 19, 2016.
36The appellant further argues that the post-verdict delay in this case was not properly characterized as transitional.
37The respondent submits that the trial judge did not err in his s. 11(b) analysis. The respondent submits that the post-verdict delay in this case is properly considered under the transitional analysis outlined in both Jordan and Charley. The respondent submits that there were two exceptional circumstances in this case: (i) the dangerous offender proceedings; and (ii) the Crown’s sudden unforeseen illness.
38The respondent argues that the appellant’s submission that the five-month presumptive limit from Charley was spent by the time up to the adjournment of the first scheduled hearing date of September 19, 2016 is misguided. The five-month ceiling in Charley dealt with a regular sentence imposed after a failed s. 752.1 application. The respondent submits that this court has since confirmed in R. v. Valle-Quintero, 2021 ONCA 390, that the entire dangerous offender proceedings should be treated as an exceptional circumstance.
39The respondent submits that the trial judge correctly found that this was a transitional case. All parties recognized the need to move the case forward expeditiously, but there was no way to know that the case would later be measured against a presumptive ceiling for post-verdict delay (Charley). The trial judge appropriately assessed the delay under the Morin approach and appropriately considered the two exceptional circumstances.
(iv) Analysis
40I find no error in the trial judge’s s. 11(b) analysis. I reach this conclusion for four reasons. First, the trial judge was correct in finding that this was a transitional case. Second, the trial judge was correct in finding that the dangerous offender proceedings were an exceptional circumstance in the s. 11(b) calculus. Third, the trial judge properly included in his assessment of whether the delay was unreasonable that the effect on a defendant of delay in the post-verdict period is different than in the period prior to verdict. Fourth, although it is clear as a matter of law that the Crown and the courts have an obligation to mitigate delay when a discrete exceptional circumstance such as illness causes delay, I see no error in the trial judge’s assessment of the delay required to reschedule the dangerous offender hearing. His assessment is entitled to deference.
a. This was a transitional case
41In my view, the trial judge was correct in finding that this case fell within the transitional exception in Jordan. I reject the defence submission that the delay due to rescheduling the dangerous offender hearing as a result of the Crown’s sudden illness did not fall within the transitional exception.
42Jordan was decided after the verdict in this case, and only two months before the exceptional event in this case of the assigned Crown’s sudden and unforeseen illness. Charley was decided almost two years after the trial judge rendered his decision declaring the appellant a dangerous offender. In my view, it is clear that this was a transitional case within the meaning of Jordan.
43In Jordan, the majority recognized that the new framework it created for s. 11(b) applications should be applied flexibly for cases in the system at the time it was decided. One reason for this is that is would not be fair to strictly judge participants in the criminal justice system by standards of which they had no notice. Further, the court recognized that in jurisdictions with existing problems in relation to delay, it would take time for Parliament, the legislatures, and Crown counsel to respond to the decision, and that “stays of proceedings cannot be granted en masse simply because problems with institutional delay currently exist”: Jordan, at para. 97. In order to address these realities, Jordan provided for consideration of transitional exceptional circumstances: at paras. 92-98.
44Similarly, Charley recognized that the transitional exception could apply to justify post-verdict delay in some situations, since it was establishing a new framework for post-verdict delay: at para. 105; Valle-Quintero, at para. 24.
45In my view the trial judge was correct to find that this was a transitional case. He observed that the pre-verdict stage of the trial was entirely completed before Jordan was released. On that basis, he found it appropriate to assess delay using the Morin framework. I see no error in this conclusion. Further, the trial judge heard and ruled on the s. 11(b) motion two years prior to this court’s decision in Charley. Although the trial judge did not have the benefit of Charley, it is clear that this case falls within the transitional exception for post-verdict delay.
46In addition, the trial judge made several references in his reasons to the problem of institutional delay in the East Region, particularly with respect to scheduling multi-week matters such as the dangerous offender hearing in this case. This clearly brings the circumstances within the aspect of the transitional exception allowing jurisdictions with particular problems of institutional delay time to respond to the new direction in Jordan: Jordan, at para. 97.
47The appellant argues that this case is not properly considered as a transitional case because the delay due to the assigned Crown’s unexpected illness occurred after Jordan was released. I reject this submission for two reasons.
48First, it is inconsistent with Charley. As I have outlined above, Charley is clear that there is a transitional exception for post-verdict delay. This case was entirely completed prior to the release of Charley.
49Second, the manner in which the majority described the transitional exception in Jordan makes clear that it applies to some extent to events after the Jordan decision was released. In particular, the majority’s comments at para. 97 about the need for time for jurisdictions with institutional delay problems to respond to the decision makes clear that the transitional exception is not purely backwards-looking from the date of Jordan’s release.
50The appellant relies on this court’s decision in R. v. Villanti, 2020 ONCA 755, 153 O.R. (3d) 481, to argue that the transitional exception cannot be relied on to excuse delay caused by a discrete exceptional event that occurred after Jordan was released. With respect, this court’s decision in Villanti does not stand for such a broad proposition.
51In Villanti, Crown counsel at trial had conceded that the transitional exception did not apply, and sought to retract that concession on appeal. This court found it was not appropriate in the circumstances to allow the Crown to retract its concession and raise a new issue on appeal 2: at paras. 48-50.
52Further, the timing of the discrete exceptional event in relation to the release of Jordan distinguishes Villanti from this case. The discrete event in Villanti (judicial illness) occurred more than a year and a half after Jordan was released. It was in that context of a discrete event long after the release of Jordan that this court agreed in Villanti with the application judge’s logic that the transitional exception had no application “given that the delay that is the focus of this application occurred well after the release of Jordan in July 2016”: at paras. 48, 51. In substance, the circumstances in Villanti were that the courts had had over a year and a half to adapt to Jordan when the discrete event of judicial illness occurred. At that point, the failure of the courts to adapt to Jordan could no longer be considered transitional.
53By contrast, the discrete event in this case (Crown illness) occurred two months after Jordan was released. Given how soon this was after the release of Jordan, and the institutional delay problems in the East Region referred to by the trial judge, this is exactly the sort of situation that the majority in Jordan referred to at para. 97.
b. This case involved dangerous offender proceedings
54The trial judge was correct in finding that the fact that this case involved dangerous offender proceedings was an exceptional circumstance in the s. 11(b) calculus.
55In Jordan, the majority expressly left undecided the issue of how the new approach to s. 11(b) involving presumptive ceilings should apply to post-verdict delay. In doing so the court recognized that some sentencing proceedings, including dangerous offender applications, require significant time: Jordan, at footnote 2 to para. 49. Relatedly, Jordan also recognized particularly complex cases may also be characterized as exceptional circumstances: at para. 77.
56Subsequently, this court held in Charley that dangerous offender proceedings are properly characterized as exceptional circumstances in the s. 11(b) analysis. However, the Crown still has an obligation to mitigate resulting delay. For this reason, time reasonably associated with dangerous offender proceedings should be deducted from the five-month presumptive ceiling: Charley, at paras. 98, 100, and 104; see also Valle-Quintero, at para. 24.
57Working without the benefit of this court’s decision in Charley, the trial judge correctly identified that one of the issues he had to consider was “the manner in which a dangerous offender application is meant to be dealt with under the new s. 11(b) rubric as set out in R. v. Jordan.” He went on to observe that a dangerous offender application is “an extraordinary step in criminal procedure”, which is “both complex and time consuming.” I will not repeat all of the trial judge’s analysis on this point. But his conclusion that the Jordan ceilings should not be applied to dangerous offender proceedings, and that some flexibility is called for in assessing delay in the dangerous offender context, is consistent with the subsequent decision of this court in Charley.
58The appellant submits that this court should find that the five-month presumptive ceiling set in Charley was “exhausted, or nearly exhausted” by delays in the dangerous offender proceedings before the adjournment in September 2016 due to the illness of the assigned Crown. I want to explain this submission, as I understand it, before explaining why I do not accept it. The appellant submits that Charley is clear that because dangerous offender proceedings are exceptional circumstances, time reasonably spent on dangerous offender proceedings is to be deducted from the presumptive five-month ceiling for post-verdict delay. However, because of the obligation on the Crown and the justice system to mitigate delay, if the Crown or court somehow causes undue delay of dangerous offender proceedings, that time should not be deducted. I accept that proposition. The appellant further submits that because of some specific delays in the time period prior to the September 2016 adjournment, after deducting reasonable time required for the dangerous offender proceedings, the five-month ceiling from Charley was mostly used up prior to the September 2016 adjournment.
59With respect, this submission is fundamentally inconsistent with the transitional exceptions I have already referred to in both Jordan and Charley. Almost all of the post-verdict proceedings in this case prior to the September 2016 adjournment happened before Jordan was released. All of the post-verdict proceedings happened long before Charley was released. In this context, there is no basis to say the parties should have been held to the later-imposed five-month ceiling in Charley for any steps in the dangerous offender proceeding that could be said to be less than reasonably expeditious.
c. This impact of post-verdict delay is different than pre-verdict delay
60The trial judge properly included in his assessment of whether the delay was unreasonable that the effect on a defendant of delay in the post-verdict period is different than in the period prior to verdict.
61The right to trial within a reasonable time applies to post-verdict delay. However, the impact of delay on an accused person in the post-verdict period is different than in the pre-verdict period. Post-verdict, the accused is no longer presumed innocent. Subject to the right to address sentence, the right to make full answer and defence is spent. To the extent that the right to trial within a reasonable time is meant to protect against the effect of delay on the right to make full answer and defence, that concern is attenuated in the post-verdict period. Although an accused retains significant liberty and security of the person interests post-verdict, which can be affected by delay, those interests are qualitatively different than in the pre-verdict period: MacDougall, at paras. 19-39, and 59; Charley, at paras. 55-56, and 71.
62In this case, the trial judge correctly weighed in his s. 11(b) analysis that the impact of post-verdict delay on an accused person is different than prior to verdict. Indeed, two years prior to the release of Charley, he relied on factors similar to those later enunciated in Charley. He held that the impact of delay is different in the post-verdict period because the accused is no longer presumed innocent. But he recognized and gave weight to the different impact of delay in the post-verdict period, noting the longer period of uncertainty about what sentence would be imposed, and the longer period in a remand institution. These factors track almost exactly the factors enunciated at paras. 55-56 and 71 of Charley.
d. The trial judge reasonably assessed the delay including efforts at mitigation
63Although it is clear as a matter of law that the Crown and the courts have an obligation to mitigate delay when a discrete exceptional circumstance such as illness causes delay, I see no error in the trial judge’s assessment of the delay required to reschedule the dangerous offender hearing.
64Both parties agree, and agreed below, that the sudden unexpected illness of the assigned Crown very shortly before the dates scheduled for the dangerous offender hearing in September 2016 was a discrete exceptional circumstance as that term is described in Jordan at paras. 69 and 71. Thus, the period of delay caused by the assigned Crown’s sudden unexpected illness is properly deducted from the total period of delay. The crux of the issue on appeal is whether the period of one-year delay until the new dates for the dangerous offender hearing pushed this case into unreasonable delay territory.
65Jordan is clear that where delay is caused by a discrete exceptional event, the period of delay is to be deducted from the applicable presumptive ceiling only to the extent that it cannot be reasonable mitigated. The Crown and the justice system should be capable of prioritizing cases that falter due to unforeseen events. The obligation to mitigate is that of reasonableness: Jordan, at para. 75; R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659, at paras. 48 and 54; Charley, at para. 98.
66The appellant submits that, accepting that the illness of the assigned Crown was an exceptional circumstance, the 12 months to reschedule the dangerous offender hearing represents an insufficient attempt to mitigate the delay, and should have been found to violate his s. 11(b) rights.
67In my view, the trial judge’s overall assessment of the factors in this case, including efforts at mitigation, was reasonable. As I have noted, this was a transitional case. It involved doubly exceptional circumstances – the illness of the assigned Crown and the fact that it involved dangerous offender proceedings.
68In this context, steps were taken to mitigate delay. A new Crown was assigned to the case. When the new hearing dates were set, dates were canvassed in both Ottawa and Perth to see if earlier dates could be obtained depending on the location of the hearing.
69The trial judge recognized that the delay of 12 months to set the new hearing dates was longer than should be the case if the justice system were properly resourced. In effect, he found that six months of the delay was due to under-resourcing of the justice system. He repeatedly referred to the problem of institutional delay in the East Region, making clear that this was a systemic problem at the time. It was two months after Jordan was released. In light of the transitional exception, although clearly things had to change on a systemic level in the East Region, this case was properly considered within the transitional exception in Jordan.
70The trial judge considered the impact of delay on the appellant. He recognized that the systemic delay meant that the appellant was spending six months longer in a remand institution than he would in a properly-resourced justice system, and that he was left in uncertainty about his sentence for six months longer. However, the effect of delay was different because of the appellant’s post-conviction status. Further these impacts had to be considered in the context of the unforeseen illness of the assigned Crown, the complexities of a dangerous offender proceeding, and the difficulty of rescheduling a two-week matter to a particular seized judge. 3 This was not a case where the rescheduled dangerous offender hearing could go before any judge, as is generally the case when a trial is not reached and has to be rescheduled.
71The appellant argues that the trial judge’s finding that in a properly-resourced justice system it would have taken six months to reschedule the dangerous offender hearing is, if anything, overly generous. The appellant points to this court’s decision in Villanti at paras. 41-43 as a benchmark for a shorter period of reasonable delay to reschedule a trial.
72In my view, the circumstances in Villanti are distinguishable, and it is not an appropriate benchmark for the reasonableness of time to reschedule the dangerous offender hearing in this case. First, it is clear from para. 43 of Villanti that this court was not setting three months as a judicial benchmark for how long it should take to reschedule a trial. The court stated that the three months for rescheduling applied by the trial judge in that case “cannot serve as a norm.” Rather, this court was deferring to the trial judge’s assessment of a reasonable period of time to reschedule a trial, and also held that in any event, 11 months was too long in the circumstances of that case.
73Second, Villanti involved rescheduling a trial that could not be reached on the trial date because of the illness of two judges. Because the trial proper had not started, the matter could be rescheduled before any judge. That was not the situation in this case. The assigned Crown’s illness arose post-verdict. The trial judge was seized with the matter. Only he could conduct the dangerous offender proceedings. The three months found by the trial judge in Villanti to be a reasonable time to reschedule an unreached trial is not a reasonable benchmark where a particular judge is seized.
74In sum, I am of the view that in the circumstances of this case, the trial judge applied the proper principles and reasonably weighed the relevant factors in his s. 11(b) analysis. I would not interfere with his conclusion that the post-verdict delay did not infringe the appellant’s right to be tried within a reasonable time.
Did the trial judge err in his interpretation and application of s. 752.1 of the Criminal Code?
75In my view, the trial judge erred in law in applying a test for the selection of the assessor that involved a presumption of designating the assessor proposed by the Crown, if that person is capable of performing the assessment. As I explain below, principles of statutory interpretation lead me to conclude that s. 752.1 provides for the trial judge to designate the assessor, and in so doing, not to start with a presumption in favour of the Crown’s proposed assessor.
76However, in the circumstances of this appeal, I am satisfied that there was no unfairness and would not allow the appeal on this ground.
77In addition, like the trial judge, I accept that the courts should be concerned not to allow the selection of the assessor in a dangerous offender proceeding to become protracted and lead to further delay of dangerous offender proceedings. As I explain below, s. 752.1 does not specify any particular procedure for a trial judge to follow in hearing from the parties and designating the assessor. It is within the trial management power of a judge to determine the procedure to be used to hear from the parties on the issue of designating the assessor.
(i) Reasons of the trial judge on the appointment of the assessor under s. 752.1
78The trial judge’s ruling regarding the selection of the assessor was quite brief. Rather than summarize it, I reproduce the key paragraphs:
The question is: should the Crown’s proposed expert be designated by the Court over the objections of the offender or should the Court perform some sort of deeper vetting function on its own?
A plain reading of section 752.1 directs that once a Court is convinced of reasonable grounds to believe that an offender might be found to be either a dangerous offender or a long-term offender, the Court shall remand the offender to the custody of a person designated by the Court who can perform an assessment.
I take the central question to be whether the person proposed can perform the assessment required. No further vetting is called for by the Court beyond simply determining whether the proposed expert can perform the function contemplated by section 752.1 in the general context of Part XXIV. Indeed, on the limited information which is before the Court at this stage, it is difficult to conceive how the Court could make a determination beyond the basic threshold. In my view, especially given the dearth of evidence now before the Court, the section should not be read to direct the invention of more comprehensive criteria for the Court to satisfy itself about the specific appropriateness of a given assessor. The Court should strive to remain an impartial arbiter with as little interest as possible in the selection of witnesses beyond the rules of admissibility.
I accept that the forensic psychiatrist proposed by the Crown can perform the assessment here. In addition to being a medical practitioner licensed to practice in Ontario, the doctor in question is possessed of specialized expertise directly applicable to the interests of justice in this context. I am not surprised to learn that he has been designated as an assessor in the s. 752.1 context some 160 times before.
I disagree that section 752.1 ought to be used as a mechanism to allow the accused to participate in the selection of an expert so as to facilitate his presentation of evidence to the Court. An offender has the ability to call any evidence he wishes on sentencing, including any expert opinion evidence bearing on the issues relevant to a dangerous offender or long-term offender designation. Any issue with respect to funding the marshaling of such evidence should be dealt with through the legal avenues suited to that subject.
79He then designated the person proposed by the Crown, Dr. Klassen.
80I note that the approach taken by the trial judge, or similar approaches which rely on a presumption in favour of the person proposed by the Crown, absent cogent reasons not to select them, have been followed in a number of trial-level decisions: R. v. Billings, 2017 ONSC 278; R. v. R.M.P., 2019 ONSC 2235; R. v. Wilson, 2018 ONSC 964.
81However, there is another line of trial-level decisions which rejects an interpretation of s. 752.1 that involves a presumption in favour of the assessor proposed by the Crown. The leading of these decisions is that of Paciocco J., as he then was, in R. v. J.V., 2015 ONCJ 766. See also: R. v. Torres; R. v. Blackwood, 2010 ONSC 6178; R. v. Stratton, [2010] O.J. No. 6323 (S.C.).
(ii) Positions of the parties
82The appellant submits that the trial judge erred in holding that a court designating an assessor under s. 752.1 of the Criminal Code should defer to the Crown’s choice of proposed assessor and only inquire into whether the person proposed by the Crown is capable of performing the assessment. The appellant submits that since s. 752.1 of the Criminal Code provides that the court is to designate the person to perform the assessment, it would be inappropriate to defer to the Crown’s choice of assessor. Factors which a trial judge may consider in designating the assessor may include the qualifications and experience of any person proposed, and the nature and location of the assessment proposed: Torres, at para. 20. The parties’ perception of the neutrality of the assessor may also be a factor. The appellant does not contend for a fixed list of factors to consider, but argues there is no presumption in favour of the person proposed by the Crown.
83The appellant submits that if the court finds that the trial judge erred in law in his approach to designating the assessor, the court should order a new hearing on the dangerous offender application. According to the appellant, the effect of the trial judge’s approach to designating the assessor was to “rubber-stamp” the Crown’s choice of assessor, which compromised the fairness of the dangerous offender proceedings.
84The respondent submits that the trial judge did not err in his approach to designating the assessor. The respondent submits that s. 752.1 entitles the defence to propose an expert and make submissions, however, the court designates the assessor. The Crown cannot unilaterally choose the assessor, but a court should designate the assessor proposed by the Crown if the court is satisfied that the person proposed by the Crown is qualified and able to provide a timely assessment, in the absence of cogent reasons not to select the expert proposed by the Crown.
85The respondent further submits that no unfairness resulted from the choice of assessor. Trial counsel for the appellant acknowledged that Dr. Klassen was qualified both in the submissions about the designation of the assessor, and when Dr. Klassen was called to testify during the dangerous offender proceedings. The appellant’s written submission at trial on the appointment of the assessor conceded that Dr. Klassen was not actually biased. And Dr. Klassen considered the assessments conducted by Dr. Paul Fedoroff (who the defence had proposed to be the s. 752.1 assessor) and those reports were filed during the dangerous offender proceedings. Dr. Klassen’s report was fair. Indeed, trial counsel for the appellant relied on Dr. Klassen’s report to argue that the appellant was not at a high risk of reoffence.
86Finally, the respondent submits that there were reasons to reject the assessor proposed by the defence. Dr. Fedoroff had filed a report on the application as to whether a s. 752.1 assessment should be ordered. 4 In ruling that the threshold was met to order an assessment, the trial judge placed limited weight on Dr. Fedoroff’s report because Dr. Fedoroff appeared to accept the appellant’s continued assertion of innocence, even after the appellant had been found guilty by the jury. In addition, Dr. Fedoroff had directly and indirectly 5 treated the appellant in the past.
(iii) Analysis
87Section 752.1 functions as a gateway to dangerous offender proceedings. It requires a trial judge to make two decisions: (i) whether the threshold to order an assessment has been met; and if so, (ii) designating the person to perform the assessment. In this case, although the issue of whether the threshold was met to order an assessment was a live issue in the Superior Court, it is not in issue on appeal. The only issue before this court relates to the issue of how the person who will do the assessment is to be “designated by the court”.
88This ground of appeal involves a question of statutory interpretation. As I explain below, applying principles of statutory interpretation, I come to the conclusion that s. 752.1 provides for the trial judge to designate the assessor and in making that decision, the trial judge should not start with a presumption in favour of the person proposed by one side or the other. In light of this interpretation, I conclude that in this case, trial judge erred in law in applying a test for the selection of the assessor that involved a presumption of designating the assessor proposed by the Crown as long as that person is capable of performing the assessment required.
89In accordance with the modern approach to statutory interpretation, the words of s. 752.1 of the Criminal Code must be read in context and in their grammatical and ordinary sense, harmoniously with the scheme of the legislation, its object, and the intention of the legislator: Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, at para. 21.
a. The text of s. 752.1
90I begin with the text of s. 752.1 of the Criminal Code, which provides as follows:
On application by the prosecutor, if the court is of the opinion that there are reasonable grounds to believe that an offender who is convicted of a serious personal injury offence or an offence referred to in paragraph 753.1(2)(a) might be found to be a dangerous offender under section 753 or a long-term offender under section 753.1, the court shall, by order in writing, before sentence is imposed, remand the offender, for a period not exceeding 60 days, to the custody of a person designated by the court who can perform an assessment or have an assessment performed by experts for use as evidence in an application under section 753 or 753.1. [Emphasis added]
91I make two observations about the text of s. 752.1. First, the text is clear that it is the court that makes the designation of the person to do the assessment. I focus in particular on the language “the court shall” and “a person designated by the court”.
92The language of the assessor being “designated by the court” makes clear that it is the court’s role to decide who will perform the assessment. In my view, this language is not supportive of an interpretation which creates a presumption in favour of the assessor proposed by the Crown.
93Further, I agree with the observation of Paciocco J. in J.V., that “[h]ad Parliament intended the judge’s role to be nothing more than to assess the competence of the Crown’s chosen appointment, it could easily have said so, but it did not”: J.V., at para. 8. This conclusion is also supported by the legislative history, which I discuss further below.
94The second observation I make is that the text of s. 752.1 provides that in designating the assessor, the court must consider the capacity of the person to be designated to perform the assessment or to have an expert perform the assessment. This arises from the language “who can perform an assessment or have an assessment performed by experts”.
95The language referring to the capacity of the person appointed to perform the assessment speaks to the need for the judge to consider whether any proposed assessor is able to do the assessment. In its ordinary meaning, I would understand this to include, at a minimum, factors such as having the relevant expert qualifications, and having the ability to perform the assessment within the 60 days set out in s. 752.1 (subject to the court’s authority to extend that time by up to 30 days, pursuant to s. 752.1(3)). But there is nothing in the language of the text speaking to capacity to perform the assessment that suggests a presumption in favour of the person proposed by the Crown.
b. The legislative history and purpose of the present s. 752.1
96The legislative history also supports the conclusion that s. 752.1 should not be interpreted as including a presumption that the assessor proposed by the Crown should be designated if they are capable of performing the assessment.
97Prior to the 1997 amendments to the Criminal Code, the “remand for assessment provision” provided for at least two psychiatrists to testify at the dangerous offender hearing, and specified that “[o]ne of the psychiatrists referred to in subsection (1) shall be nominated by the prosecution and one shall be nominated by the offender.” The provision further provided that if the offender failed to or refused to nominate a psychiatrist, “the court shall nominate a psychiatrist on behalf of the offender”: Criminal Code, R.S.C. 1985, c. C-47, s. 755 as it appeared prior to April 1997.
98In 1997, the Criminal Code was amended to substitute a provision almost identical to the current s. 752.1: Bill C-55, An Act to amend the Criminal Code (high risk offenders), the Corrections and Conditional Release Act, the Criminal Records Act, the Prisons and Reformatories Act and the Department of the Solicitor General Act, 2nd Sess., 35th Parl., 1996-1997, cl. 4 (assented to 25 April 1997). There were further amendments in 2008, which were more of form than substance: Tackling Violent Crime Act, S.C. 2008, c. 6, s. 41. The 2008 amendments are the current wording of s. 752.1.
99The legislative debates and committee hearings evince two purposes which animated the 1997 amendments. First, there was a concern that in smaller communities it was sometimes difficult to arrange for two forensic psychiatrists to testify. Second, in the place of the old provision that provided for one psychiatrist nominated by the prosecution and one nominated by the defence, the new s. 752.1 was intended to provide for one neutral assessment: House of Commons Debates, 35th Parl., 2nd Sess. (3 December 1996) at 1105 (Hon. Allan Rock); House of Commons Debates, 35th Parl., 2nd Sess. (4 February 1997) at 1550 (Professor Michael Jackson). 6
100I draw two conclusions from the history. First, the 1997 amendment was intended to create a procedure where the court would designate the person to perform the assessment, and where there would be one court-ordered assessment rather than two. This purpose supports an interpretation of s. 752.1 that does not create a presumption in favour of the assessor proposed by the Crown. I agree with the observation of Paciocco J. in J.V., at para. 10, that having one neutral assessor appointed by the court enhances the appearance of justice because it removes any perception that the appointment has been made to secure a litigation advantage. Further, if the person designated to perform the assessment is perceived to be neutral, it increases the likelihood that only one expert witness will ultimately be required at the hearing: J.V., at para. 10; Torres, at paras. 8-10. This is also consistent with the concern that it may be difficult in some communities to arrange for more than one forensic psychiatrist.
101Second, turning back to the text of s. 752.1, the predecessor provisions which provided for one assessor nominated by the Crown and one by the defence show that language was available to Parliament, if it had intended the current provision to have a presumption in favour of the assessor proposed by the Crown, to make such an intention clear. The fact that Parliament chose to use language that speaks only to the court designating the person to perform the assessment supports that no presumption in favour of the Crown’s proposed assessor was intended.
102Some of the trial level decisions that apply an approach to s. 752.1 that involves a presumption of appointing the Crown’s proposed assessor, if they are capable of performing the assessment, base that approach on the fact that s. 752.1 provides that the request for an assessment is made “[o]n application by the prosecutor”. Relatedly, some cases following that approach rely on the fact that because the Crown carries the ultimate burden in the dangerous offender proceedings, if there is not a presumption in favour of the assessor proposed by the Crown, the Crown will be placed at a litigation disadvantage: Billings, at para. 9; R.M.P., at para. 40; Wilson, at para. 9.
103Respectfully, I disagree that the fact that the Crown must make the request for the assessment supports an interpretation of s. 752.1 that involves a presumption in favour of the person proposed by the Crown. The language of s. 752.1 is clear that the court designates the assessor. As I have outlined above, the legislative history and purpose of s. 752.1 do not support an interpretation that creates a presumption in favour of the person proposed by the Crown. It does not follow from the fact that the Crown must bring the application to appoint an assessor that there should be a presumption in favour of the person proposed by the Crown.
104Nor am I persuaded by the argument that the Crown would be at a litigation disadvantage if s. 752.1 is interpreted as not involving a presumption in favour of the assessor proposed by the Crown. I reach this conclusion for three reasons.
105First, it is inconsistent with the modern conception of expert witnesses as independent, impartial, and unbiased, which I discuss further below.
106Second, it is open to either party to call expert witnesses beyond the expert designated by the court under s. 752.1.
107Third, if the report of a neutral expert does not support the Crown theory, this should not be conceptualized as a litigation disadvantage, but rather as a signal that the application may be misconceived.
108I note as well s. 752.1(2), which provides that the assessor is to make the report available directly to both the prosecutor and the offender. This provision supports the interpretation that the assessment report is intended to be neutrally prepared for the benefit of both parties, and not in support of the Crown as the party carrying the burden in the dangerous offender proceedings.
c. The impartial, independent, and unbiased role of expert witnesses – in particular, an expert designated by the court
109In addition to being consistent with the legislative history and purpose of s. 752.1, interpreting s. 752.1 as not creating a presumption in favour of the assessor proposed by the Crown is consistent with the modern approach to expert evidence.
110The modern approach to expert evidence stresses the fundamental requirement that expert evidence be impartial, independent, and unbiased: White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182, at para. 32.
111In my view, the concern for independent, impartial, and unbiased expert witnesses takes on a heightened importance when the expert is designated by the court, as is required by s. 752.1. I hasten to add that I am not suggesting any oblique motive on the part of the Crown in advancing an interpretation of s. 752.1 that involves a presumption in favour of the assessor proposed by the Crown. But in my view, in the s. 752.1 context, where the legislation mandates that the court designate the assessor, the court’s independent and impartial role supports an interpretation of the provision that is not based on a presumption in favour of one party.
d. Relevance of trial efficiency concerns
112One of the concerns which motivated the trial judge to take the approach he did to the interpretation of s. 752.1 was a concern for trial efficiency. This concern is more implicit than explicit in the ruling designating the assessor. However, in his s. 11(b) ruling, the trial judge returned to the issue of designating the assessor, and stated: “I essentially decided that the last thing the criminal law needs is yet another litigation intersection.”
113I accept that the courts should be concerned not to allow the selection of the assessor in a dangerous offender proceeding to become a protracted hearing, extending the time required for dangerous offender proceedings. In my view, interpreting s. 752.1 as not creating a presumption in favour of the assessor proposed by the Crown does not lead to the result that the selection process should become a protracted hearing.
114Section 752.1 does not specify any particular procedure for a trial judge to follow in hearing from the parties and designating the assessor. How a trial judge carries out this task is a matter within a judge’s trial management power. The Supreme Court has described the trial management power as allowing trial judges “to control the process of their court and ensure that trials proceed in an effective and orderly fashion”: R. v. Samaniego, 2022 SCC 9, [2022] S.C.J. No. 9, at paras. 19-26. The question of the procedure to be followed for a trial judge to receive submissions on the choice of a court-appointed assessor falls squarely within the trial management power. In exercising the trial management power in the context of designating an assessor under s. 752.1, trial judges should bear in mind that the selection of an assessor is a preliminary step in the dangerous offender proceeding, and should be conducted in a relatively summary fashion.
115There is much to commend a trial judge starting with an effort to have the parties come to agreement on a jointly-proposed assessor. As is clear from the Superior Court decisions which did not follow the approach of a presumption in favour of the Crown’s proposed assessor, in some cases, after discussion, the parties were able to agree on an assessor and make a joint proposal to the trial judge: see, for example, Torres, at paras. 17-19. Parties should make genuine efforts to canvass together qualified experts who are available to conduct an assessment in a timely manner with the goal of reaching an agreement on an assessor to jointly propose to the trial judge.
116If the parties are unable to reach agreement, it will be for the trial judge to determine the summary procedure to receive any submissions or information about the proposed assessors, and to designate the assessor in accordance with s. 752.1.
117It is not necessary, in order to decide this appeal, for this court to exhaustively determine what procedure should be followed. That is better left to be developed by trial judges. At a minimum, if the parties are unable to agree to an assessor, the trial judge must provide an opportunity for both sides to make a proposal of one or more people to conduct the assessment, and submissions as to who should be designated. I note that in this case, the submissions with respect to the designation of the assessor were conducted in writing with the consent of the parties. Subject to the requirements of s. 758 of the Criminal Code, it would be open to a trial judge to receive submissions on the designation of the assessor in writing.
118Nor do we exhaustively determine what factors a court should consider in deciding whether a proposed assessor “can perform an assessment”. At a minimum, the capacity to perform an assessment would include consideration of the expert qualifications and experience of the person or persons proposed to conduct the type of assessment required, and the ability to conduct the assessment and prepare the report within the timelines set out in s. 752.1. Without suggesting that a trial judge must inquire into bias or apprehension of bias in every case, where there is an evidentiary basis for concerns about bias, that would be a relevant factor to consider. There may be other factors that arise on the facts of individual cases. This is not an exhaustive list of factors.
e. Conclusion on interpretation of s. 752.1 and designation of the assessor
119Considering all of the factors above, I conclude that s. 752.1 provides for the trial judge to designate the assessor. It does not create a presumption in favour of the assessor proposed by the Crown. A trial judge should provide an opportunity for both parties to make submissions regarding the choice of assessor, including proposing one or more people to conduct the assessment. It is within the trial judge’s trial management power to determine the procedure that they use to receive submissions.
120In this case, the trial judge erred in law in applying an interpretation of s. 752.1 that involved a presumption that the person proposed by the Crown to conduct the assessment would be designated, if they were capable of conducting the assessment.
121Although I conclude that the trial judge erred in his interpretation and application of s. 752.1 of the Criminal Code, in the circumstances of this appeal, I am satisfied that there was no unfairness and I would not allow the appeal on this ground. I turn now to the issue of the application of the curative proviso in dangerous offender proceedings.
(iv) Despite the trial judge’s error, there was no unfairness in the dangerous offender proceedings
122Section 759(3)(b) of the Criminal Code empowers an appellate court to dismiss an appeal from a dangerous offender finding or the imposition of an indeterminate sentence despite an error in law, if the error caused no substantial wrong or miscarriage of justice. The standard to be applied is the same as for application of the curative proviso in s. 686(1)(b)(iii). An appellate court may dismiss the appeal where there is no reasonable possibility that the result would have been any different had the error in law not been made: R. v. Johnson, 2003 SCC 46, [2003] 2 S.C.R. 357, at paras. 48-49; R. v. Sipos, 2014 SCC 47, [2014] 2 S.C.R. 423, at para. 35; R. v. Bedard, 2009 ONCA 678, 247 C.C.C. (3d) 275, at paras. 102-104; R. v. Aragon, 2022 ONCA 244, 413 C.C.C. (3d) 79, at para. 172; R. v. Mitchell, 2002 BCCA 48, 161 C.C.C. (3d) 508, at paras. 35-68.
123Five reasons lead me to conclude that there is no reasonable possibility that the result would have been any different had the trial judge not erred in his approach to the designation of the assessor.
a. The trial judge did not “rubber-stamp” the designation of Dr. Klassen
124I disagree with the appellant that the trial judge “rubber-stamped” the designation of Dr. Klassen. The trial judge’s legal error was to proceed on the basis of a presumption that the assessor proposed by the Crown should be designated if they have the capacity to do the assessment. But his decision was not rubber-stamping.
125The trial judge found that Dr. Klassen had the specialized expertise necessary to do the assessment, and noted that he had been designated an assessor under s. 752.1 “some 160 times before.” There is no question that Dr. Klassen was qualified to do the required assessment. And he had the ability to complete the assessment within the required timelines. Further, although the trial judge observed that there was no evidence before the court at the time of the designation in relation to any bias on the part of Dr. Klassen, the trial judge accepted that any issues of bias could be investigated and argued as part of the dangerous offender hearing. In the event, no allegations of bias or reasonable apprehension of bias were raised by the defence during the dangerous offender hearing, either during the cross-examination of Dr. Klassen or in submissions.
b. The reasons raised by the defence at trial not to designate Dr. Klassen either did not come to pass and/or did not cause unfairness
126The defence submissions at trial on why Dr. Klassen should not be designated either did not come to pass in the event and/or are not issues that compromised the fairness of the proceedings. Although the trial judge ultimately ruled that he should designate the person proposed by the Crown to perform the assessment unless that person was not capable of doing so, he had given the defence the opportunity to put forward its own proposal for an assessor and make submissions on who should be designated as the assessor.
127The defence submissions at trial on the issue of selection of the assessor conceded that both Dr. Klassen and Dr. Fedoroff were qualified to conduct the appointment. The appellant submitted at trial that Dr. Fedoroff should be designated over Dr. Klassen because Dr. Fedoroff was located in the East Region, and Dr. Klassen was in Toronto. The offences were committed in the East Region. The appellant submitted that having an assessor in the East Region would facilitate communication with the various parties to be interviewed for the assessment, who were located in the East Region. The appellant further submitted that as a matter of policy, matters arising in the East Region should be dealt with in the East Region. Additionally, the appellant submitted that it was not clear that Dr. Klassen would be able to prepare the report in the required time frame, unlike Dr. Fedoroff who explicitly stated that the necessary time frame could be met. Finally, the appellant submitted that, although Dr. Klassen was not actually biased, there was a perception on the part of the appellant that he was biased because he did significant work on behalf of the Crown.
128Addressing the first three points above, there is nothing in Dr. Klassen’s assessment that suggests that there was any unfairness or impact on the offender because Dr. Klassen was located in Toronto. In particular, there is no suggestion that there was an impact on his ability to interview the appellant or his family members. In addition, Dr. Klassen prepared his report within the statutory time frame. Thus, those three reasons raised at trial for why Dr. Klassen should not be designated did not, in the event, have any impact on the substance or fairness of the assessment.
129With respect to the appellant’s assertion at trial of his subjective perception of bias on the part of Dr. Klassen, the submission made at trial was entirely subjective – that is, the defence did not submit that there was a reasonable apprehension of bias. I accept that the perception of the parties of the neutrality of a proposed assessor is a factor that a trial judge may consider in designating an assessor under s. 752.1. But I see no basis on the record in this case to find that this court should order a new dangerous offender hearing based solely on the appellant’s subjective assertion of a perception of bias.
c. The record raised a concern with designating the assessor proposed by the defence
130Although this was not the basis for the trial judge’s decision to designate Dr. Klassen over the assessor proposed by the defence, the record supports at least one reason why Dr. Fedoroff would not have been an appropriate choice as assessor.
131As I have noted above, in this case, the trial judge made the decision that the threshold had been met to order an assessment under s. 752.1 before he designated who would perform the assessment. Dr. Fedoroff had prepared a report which was filed on that portion of the hearing. In the decision on the threshold to order an assessment, the trial judge discounted Dr. Fedoroff’s opinion in that report. The trial judge did so because he interpreted Dr. Fedoroff as keeping an open mind about the appellant’s guilt in his report. The trial judge found that this was fundamentally inconsistent with the jury’s verdict, which the court had to accept as necessarily finding that the offences had been proven beyond a reasonable doubt. I appreciate, as did the trial judge, that Dr. Fedoroff was preparing that report under the Mental Health Act, and depended on the cooperation of the appellant for information to prepare that report. However, keeping an open mind with respect to the appellant’s guilt of the index offences, after the jury had found the appellant guilty, would appear to be inconsistent with the need to prepare an assessment under s. 752.1 considering the full history, including the convictions for the index offences. 7
d. Dr. Klassen’s report was fair and balanced
132Dr. Klassen’s report and his testimony were fair and balanced. I note as well that he summarized and considered all previous assessments/reports of the appellant, including Dr. Fedoroff’s April 2015 report conducted pursuant to the Mental Health Act. As I have noted, in the event, the defence raised no issues with respect to bias or reasonable apprehension of bias on the part of Dr. Klassen during the dangerous offender hearing.
e. The appellant’s lack of insight and pattern of offending against children was the central factor that drove the decision to declare the appellant a dangerous offender
133Although Dr. Klassen’s report was unquestionably an important aspect of the factual basis for the trial judge declaring the appellant a dangerous offender and imposing an indeterminate sentence, it is clear from the trial judge’s reasons that the trial judge found the most compelling body of evidence to be the evidence of the appellant’s lack of insight into his pedophilia, and pattern of offending against children, which continued even when he and his family were under close supervision by the Children’s Aid Society (“CAS”).
134The appellant’s criminal record included two prior sexual offences against children. One was a conviction for a sexual assault committed in 2001 against a four-year-old girl when the appellant was staying at the home of a friend. The appellant was sentenced to a nine-month conditional sentence followed by three years probation. The probation terms included restrictions on being in the presence of children under the age of 16 unless the child’s parent or guardian was present.
135The other related prior conviction was for sexual interference committed against a 12-year-old girl in 2004. This offence was committed while he was still on probation following the 2001 offence, and in breach of the restrictions on being alone with children under the age of 16 years. The appellant was sentenced to 12 months’ imprisonment followed by three years probation. The terms of probation included not having contact directly or indirectly with a child under 16 years without an adult present (without the approval of CAS), and terms to attend for assessment, treatment, and counselling for sexual offending behaviour and substance abuse issues.
136Psychiatric assessments were prepared as part of the sentencing process for both of those offences. Those reports both noted the appellant’s sexual interest in pre-pubertal girls and his risk to reoffend.
137The index offences involved sexual offending against his two daughters and two nieces, at times when each girl was 10 years of age or younger. In total, the index offences spanned the time period 2004 to 2012.
138For the three years following March 22, 2006, the appellant was on probation as a result of the second offence. Thus he was on probation and with restrictions on being alone with children during part of the time period of the index offences. Also during this time, CAS became very involved with the family, and put restrictions on the appellant’s ability to interact with his children. In addition, the appellant was involved in a regular therapeutic relationship with Dr. Gray, a forensic psychiatrist at the Royal Ottawa Mental Health Centre, with a speciality in sexual behaviours. In the time period between March 2006 and 2012, CAS decided that the appellant should not have unsupervised access to his children – his wife was supposed to be present at all times. The trial judge found that neither parent followed this rule during the time period of the index offences, noting that the appellant was often alone with the children with his wife’s knowledge, and that the couple “jointly endeavored to deceive the CAS with respect to [the appellant’s] compliance.”
139With respect to the impact of the CAS involvement and psychiatric treatment of the appellant during the time that the index offences were committed, the trial judge found as follows:
Suffice it to say that it is clear that at the time the predicate offenses were committed K.C. was within the fold of both the Royal Ottawa Sexual Behaviours Clinic and the CAS. As mentioned, he essentially ignored the CAS direction with respect to direct access with his children. As well, the information before the court which touches on issues like falling asleep during treatment sessions and being less than honest and forthcoming about compliance with medication, lead to the conclusion that his record under treatment with Dr. Gray was at the very least uneven. In any event, what is now known is that neither resource was able to affect his choices and behaviours such that he could resist his pedophilia.
140Dr. Klassen’s assessment ordered under s. 752.1 confirmed the appellant’s diagnosis of pedophilia. Dr. Klassen opined that this is a diagnosis which cannot be cured, only managed. Without going into the details of the results of actuarial tools that Dr. Klassen considered in assessing the appellant’s risk to reoffend, Dr. Klassen’s ultimate conclusion was that collectively, they showed the appellant to hover around the 50% mark for recidivating sexually or violently. Dr. Klassen concluded: “I cannot state with certainty that there is a probability of sexual re-offense” (emphasis added).
141The trial judge noted in his reasons that the standard of proof in a dangerous offender proceeding is not a requirement of proof of certainty; rather it is a proof of likelihood of future risk or future harm, in his words, “an evidence-based conclusion at the beyond a reasonable doubt standard that it is more likely than not that a certain act will be done.”
142The trial judge found Dr. Klassen to be “a most impressive witness”, but the trial judge had reservations about Dr. Klassen’s reference to “certainty” in his conclusion in relation to the appellant’s likelihood of sexual recidivism. The trial judge also expressed caution not to let the actuarial tests dictate the result of the dangerous offender proceedings, but rather to assess the full picture of the evidence before the court in the dangerous offender hearing. A central feature of the evidence that drove the trial judge’s finding that the appellant met the criteria to be designated a dangerous offender was the appellant’s denial of the extent of his pedophilia.
143With respect to the need to consider the full picture and not only the actuarial tools the trial judge wrote:
It is important not to allow any actuarial tool, or any expert for that matter, to dictate the result. The expert designated by s. 752.1 is meant to assist the court, not make its decision for it. I point this out because I share the view expressed by Pomerance J. in R. v. McLaughlin 2014 ONSC 6537 that actuarial tools are useful primarily insofar as they supplement and/or allow for a form of cross-checking of judgment. The SORAG and the STATIC-99R are instruments which tell us not about K.C. per se, but rather what history tells us about the behaviour of individuals who share with him a finite list of certain characteristics. Those characteristics are, of course, relevant to sex offenders and their prospects, but they do not capture the full scope and measure of the particular subject in question. This court is possessed of a full tapestry of evidence demonstrating that K.C. is a unique individual situated in unique circumstances. Any assessment of the likelihood of future behaviour on his part should be based on all available evidence about him, not just a short-list of common denominators which link him to the behaviour of others.
144The trial judge recognized that in many contexts, the fact that an offender maintains his innocence is irrelevant to sentencing. But he observed that denial can be relevant in the context of dangerous offender proceedings when it impedes treatment, thereby increasing the risk of recidivism.
145The trial judge’s ultimate conclusion with respect to the basis for declaring the appellant a dangerous offender was as follows:
K.C.’s inability or unwillingness to accept the extent of his present problem is a piece of evidence that ought to be put on the scale. In fact, once that is done the balance tips, even if only by a small margin, toward a likelihood of serious personal injury offence recidivism. I find that the overall evidence establishes beyond a reasonable doubt that it is likely that K.C. will re-offend by indulging his pedophilia as he is done in the past. K.C. has been convicted of sexual offenses against children through three separate sets of charges. He has victimized 6 girls over the course of about 10 years. He has offended while on probation. He offended while under the care of a specialized psychiatrist specifically treating him for his pedophilia. He offended while the CAS was involved in his family, exercising control over his direct access to children which he circumvented. The most recent predicate offences show a striking elevation in gravity – the incestuous fellatio aspect is a disturbing step up. And, as mentioned, he does not presently have enough insight into his problem to fully accept that he needs significant help. He is in denial about what is plain to see.
I find that the preconditions to a dangerous offender designation have been met, either through s. 753(1)(a)(i) or s. 753(1)(b). K.C. stands convicted of serious sexual offences against young girls, including sexual assault contrary to s. 271. His behaviour is part of a pattern in that he has again and again indulged his pedophilic interests. That sort of misconduct has obvious negative effect on the physical or mental well-being of those affected. In fact, as the victim impact evidence tendered in this hearing demonstrates, sexual abuse of the young and vulnerable of the kind that K.C. is capable of and likely to repeat involves the infliction of severe psychological damage.
146Similarly, the trial judge’s concerns about the appellant’s denial of his pedophilia and lack of insight drove the trial judge’s conclusion that there was not a reasonable expectation that the appellant could be sufficiently rehabilitated within the fixed period of time of a long-term supervision order, and thus, his conclusion that an indeterminate sentence of imprisonment was required.
147Considering all of these factors together, I am satisfied that there is no reasonable possibility that the result of the dangerous offender hearing would have been any different had the trial judge not erred in law in his approach to the designation of the assessor.
Conclusion
148I would dismiss the appeal.
Released: October 28, 2022 “K.M.v.R.” “J. Copeland J.A.” “I agree. K. van Rensburg J.A.” “I agree. G. Pardu J.A.”
Footnotes
Footnotes
- One of the sexual assault convictions was stayed pursuant to the rule against multiple convictions.
- I pause to note that in this case, some portions of the written materials filed on behalf of the appellant by trial counsel (not Mr. Krongold) could be read as conceding that this case fell within the transitional exception in Jordan. However, because there are aspects of the written materials that are equivocal on this issue, I do not decide the issue of whether the case is transitional based on the argument made by the respondent that there was a concession at trial.
- As I have noted above, in the event, the dangerous offender hearing lasted only 4.5 days. But at the time it was initially scheduled, and when it was rescheduled as a result of the 2016 adjournment, the parties reasonably estimated that it would take two weeks. The parties are to be commended for narrowing the issues such that the hearing only took 4.5 days. But in assessing the reasonableness of the delay, this court should not consider how long it would take to reschedule the hearing based on the 4.5 days it actually took, as opposed to the two weeks that counsel reasonably believed they needed when the hearing was scheduled.
- Section 752.1 effectively involves two decisions – whether the threshold has been met to order an assessment, and if so, who should be designated to perform the assessment. Often these two questions are considered in the same hearing. In this case, the issues were effectively bifurcated. Thus, the trial judge decided that the threshold was met to order an assessment, and then subsequently heard submissions about the designation of the assessor, including on what the process should be to designate the assessor. A report from Dr. Fedoroff was filed as part of the materials on the issue of whether the threshold to order an assessment had been met.
- The indirect treatment refers to Dr. Fedoroff having supervised another physician when that physician was treating the appellant.
- The legislative history is also clear that s. 752.1 was not intended to limit the ability of either the Crown or the defence to lead evidence from experts other than the one designated by the court.
- It is not necessary to address the respondent’s submission that Dr. Fedoroff was not an appropriate choice as assessor because he had treated the appellant in the past. Dr. Fedoroff had supervised Dr. Gray during Dr. Gray’s forensic fellowship, during which time Dr. Gray treated the appellant. In addition, Dr. Fedoroff treated the appellant from March 2002 to September 2005. The record before us provides no assistance as to whether, within the field of forensic psychiatry, a prior treatment relationship is a factor which would be considered to affect the neutrality of an assessor. Although standards of forensic psychiatry regarding the impact of a prior treatment relationship are not conclusive of the issue of mixed fact and law of whether a court should designate a person as assessor, psychiatric standards would be relevant to a court’s assessment of that issue.
