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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 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 from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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.

486.6(1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 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.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Nelson, 2023 ONCA 143

DATE: 20230306

DOCKET: C61882

Lauwers, Trotter and George JJ.A.

BETWEEN

His Majesty the King

Respondent

and

Kevin Nelson

Appellant

DOCKET: C65595

AND BETWEEN

His Majesty the King

Respondent

and

Dwayne Amsterdam

Appellant

Craig Zeeh, for the appellant Kevin Nelson

Nathan Gorham, for the appellant Dwayne Amsterdam

Kristen Pollock, for the respondent

Heard: January 31, 2023

On appeal from the convictions entered on March 5, 2015 and the sentence imposed on April 4, 2017 (C65595) by Justice Robert Graydon of the Ontario Court of Justice, sitting without a jury.

REASONS FOR DECISION

1Kevin Nelson and Dwayne Amsterdam (the “appellants”) were inmates at Warkworth Institution, a medium-security penitentiary. The appellants were convicted of several offences committed against Brian Forward, another inmate at Warkworth. Both appellants were found guilty of assault, sexual assault, unlawful confinement, and robbery. In addition, Mr. Nelson was found guilty of extorting Mr. Forward, and Mr. Amsterdam was found guilty of committing an indictable offence while his face was masked. Mr. Nelson was sentenced to 5 years in custody for the sexual assault, and a concurrent sentence of 5 years on all other counts. At the time of these offences, Mr. Amsterdam was serving a sentence for breaching a long-term supervision order (“LTSO”)). The defence conceded he met the criteria for designations as a dangerous offender. The sentencing judge made that finding and gave Mr. Amsterdam an indeterminate sentence.

2The appellants appeal from conviction. Mr. Amsterdam also appeals his sentence.

Facts

3Mr. Forward’s cell was on the floor directly above where the events in question occurred – cell C-16. During the evening hours of November 9, 2013, security cameras capture Mr. Nelson leading Mr. Forward from his floor, down a staircase, to cell C-16, where they were joined by Mr. Amsterdam, whose face was covered. At the same time, three other inmates, including Kory Robillard-Delahunt (“Kory”), entered Mr. Forward’s cell and left with most of his belongings. Approximately 25 minutes after the appellants and Mr. Forward entered cell C-16, Mr. Amsterdam stepped out, went to speak with Kory, and returned. Some 15 minutes later, Mr. Nelson and Mr. Forward exited the cell and walked upstairs towards Mr. Forward’s cell. A broomstick was later found in cell C-16. The security footage that would have captured Mr. Forward walking to and from his cell on his floor was not preserved.

4On the morning of November 10, after breakfast, Mr. Forward was confronted by Kory and one of the other inmates who had removed belongings from his cell the night before. What was described as a “scuffle” ensued. Kory punched Mr. Forward in the stomach and side of the head, bloodying his ear. No cameras captured the “scuffle”. No officers witnessed the fight, and no reports were filed about it. A correctional officer testified that, given Mr. Forward’s injuries, had the fight been observed a report would have been generated.

5A nurse from the jail’s medical center testified about what he observed on November 10. He testified that while Mr. Forward would typically come to the medical unit for his medication at around 8:15 a.m., this day he arrived at 8 a.m., but chose not to enter. According to the nurse, Mr. Forward, who returned at around 9:45 a.m., appeared teary-eyed, and presented with bruises, redness, and cuts on his head and body. Mr. Forward was also bleeding from one of his ears, which seemed to be a fresh injury.

Mr. Forward’s version of events

6Mr. Forward testified that the appellants knew he had recently inherited money from his mother and that on several occasions they had threatened to harm him if he didn’t transfer funds to their bank accounts. On November 8, 2013, Mr. Nelson attempted to extort him once again. Mr. Forward told him that he would not send any funds this time, to which Mr. Nelson responded: “We’ll see about that.”

7The following night, November 9, while alone with him in cell C-16, the appellants stripped Mr. Forward naked and took his ring and earring. Mr. Nelson sat on Mr. Forward’s chest with his crotch near his face, and told him “I can make you do anything I want”. The appellants then struck Mr. Forward several times with a broomstick. Mr. Forward said that, as this was unfolding, he was told that his cell was being robbed. He was directed to transfer $1000 the following morning, and told that once he did so his property would be returned.

8Mr. Forward testified that all of his injuries, except for the bloody ear, were sustained the night of November 9 at the hands of the appellants. Only the bloody ear was caused by the fight he had with Kory.

The appellants’ version of events

9The appellants each testified in their own defence. Both testified that on the evening of November 9, several inmates were smoking cigarettes and marijuana in cell C-17. Mr. Nelson testified that he and Mr. Forward were in nearby cell C-16, discussing Mr. Forward’s debt “problem”. At some point, Mr. Nelson asked Mr. Amsterdam, who was in C-17, to join them. Mr. Amsterdam testified that he was wearing a face covering because he was drying his long hair with a shirt, which covered his mouth. He also explained that the face covering helped block cigarette smoke, which bothered him. Once all three were together in the cell, the appellants told Mr. Forward that they could not assist him with his debt “problem”. Mr. Nelson denied extorting Mr. Forward. Both appellants denied removing his clothing and beating him. Their theory is that all of Mr. Forward’s injuries were sustained during his fight with Kory on November 10.

Decision Below

10While security footage was obtained for some of the relevant areas of the jail, other footage was not preserved. Before the trial judge, the appellants argued that this lost evidence impacted their fair trial rights and prevented them from making full answer and defence. Their request for a judicial stay of proceedings was denied. The trial judge was satisfied that the police had preserved evidence “known to be relevant”, and that the missing footage was not deliberately destroyed or lost because of unacceptable negligence.

11On the trial proper, the trial judge rejected the testimony of both appellants, finding that the November 10 fight could not have caused all of Mr. Forward’s injuries. He also rejected Mr. Nelson’s description of the basis for his meeting with Mr. Forward – i.e., Mr. Forward had given a friend of Mr. Nelson some “weed” and expected a favour in return – and found the suggestion that Mr. Forward (who was much smaller than Mr. Nelson) would be dictating terms to be “preposterous”. The trial judge found Mr. Amsterdam’s explanation that he covered his face with a shirt to block cigarette smoke “difficult to believe”. The trial judge concluded that both appellants had “fabricated” a story about Mr. Forward as a way to explain what could be seen on the security camera.

12While the trial judge determined that Mr. Forward at times attempted to “embellish” or “gild” his testimony, and was therefore not credible, he found that his version of events was supported in many respects by confirmatory evidence.

13As for the sexual assault, the trial judge found that all elements of the offence were present and that a “reasonable person objectively viewing [the assault]” would conclude that Mr. Forward was sexually assaulted.

Mr. Amsterdam’s Sentence

14Mr. Amsterdam, a previously designated Long-Term Offender, was serving a sentence for breaching a 10-year LTSO. He was 34 years old at the time of the offences, and 37 when sentence was imposed. During the sentencing hearing, both defence and Crown experts agreed that Mr. Amsterdam was a high risk to reoffend. The defence expert, however, noted that Mr. Amsterdam had not committed any sexual offences while on statutory release and testified that, generally speaking, because men experience a decline in testosterone around the ages of 40 to 45 – with a corresponding decline in aggression – Mr. Amsterdam would likely “burn out”. The Crown expert testified that burnout was not predictable on an individual level and that, should Mr. Amsterdam be permitted in the community, he would require significant “structures and conditions”.

15The trial judge accepted the evidence of the Crown expert and found that it was impossible to predict whether Mr. Amsterdam’s aggressive behaviour would decrease in time because of burnout. Relying on both experts’ opinion that Mr. Amsterdam was a high risk to reoffend, and because correctional authorities said they would be unable to provide the constant supervision required to protect the public from Mr. Amsterdam, the trial judge imposed an indeterminate sentence.

Issues

16The appellants advance several common grounds of appeal. They argue that the trial judge: 1) misapprehended Mr. Forward’s evidence by finding that it had been independently confirmed; 2) misapprehended Mr. Nelson’s evidence by finding it to be “preposterous”; 3) erred by providing insufficient and speculative reasons for rejecting Mr. Amsterdam’s evidence; and 4) erred by not granting a stay due to the missing security footage. Mr. Amsterdam also argues that the trial judge erred in imposing an indeterminate sentence.

Discussion

1) Misapprehension of Confirmatory Evidence

17The appellants claim that the trial judge misapprehended the confirmatory nature of the evidence relied upon in support of Mr. Forward’s account. Mr. Nelson also alleges that the trial judge misapprehended his testimony.

18A misapprehension of evidence must be relevant to a material issue. It must play an essential part, not just in the narrative, but in the reasoning process that led to the conviction: see R. v. Morrissey 1995 3498 (ON CA), 1995, 22 O.R. (3d) 514 (C.A.); R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732.

19The trial judge, who was alive to the frailties in Mr. Forward’s evidence, instructed himself to approach it with “the greatest of care and caution”. He specifically looked for confirmatory evidence. He found it in: 1) the photographs depicting Mr. Forward’s injuries, some of which were linear and consistent with being struck by a broomstick; 2) the fact a broomstick was located in the cell where Mr. Forward says he was assaulted; 3) the video surveillance which captured, at various points, the movements of the appellants and Mr. Nelson; and, to a lesser extent, 4) the testimony of the nurse who interacted with Mr. Forward on the morning of November 10.

20The trial judge also found confirmation in the fact that Mr. Forward had spoken to a member of the jail’s staff about items being stolen from his cell, when he had not yet had the opportunity to review the video footage showing other inmates entering and exiting his cell.

21In our view, the trial judge did err by viewing this exchange between Mr. Forward and jail staff as confirmatory. While it is true that Mr. Forward had not viewed the surveillance footage before this conversation, he had since returned to his cell when it would have been obvious that it had been emptied by other inmates. That said, this misapprehension was not central to the trial judge’s credibility assessments. It was open to him to find that the other evidence he cited was sufficiently independent to confirm Mr. Forward’s testimony. For instance, the photographs depicted injuries to several areas on Mr. Forward’s body, including his head, nose, back, fingers and knee. The trial judge reasonably held that these injuries confirmed Mr. Forward’s evidence about the nature of the November 9 assault, because they were consistent with his testimony that he was dragged across the floor, bit, and struck on his back and legs with a broomstick.

22Furthermore, the security footage confirmed Mr. Forward’s account of people’s movements on November 9, and showed him holding his ribs early the following morning, while standing near his cell.

23The trial judge approached his assessment of Mr. Forward’s testimony carefully and cautiously. The video surveillance, and photographs depicting Mr. Forward’s injuries, were reasonably capable of confirming his testimony. We see no reason to intervene.

2) Misapprehension of Mr. Nelson’s Evidence

24Mr. Nelson submits that the trial judge erred by finding that he was 1) evasive when testifying; and 2) that his explanation of his meeting and relationship with Mr. Forward was “preposterous”.

25Another judge might have viewed Mr. Nelson’s testimony differently, but in explaining why he viewed it as he did the trial judge did not misapprehend Mr. Nelson’s evidence. The trial judge’s assessment of Mr. Nelson’s credibility is owed deference. We see no reason to intervene.

3) Sufficiency of Reasons for Rejecting Mr. Amsterdam’s Evidence

26The trial judge’s reasons for rejecting Mr. Amsterdam’s evidence must be read as a whole and in the context of the entire record, including counsel’s submissions and the live issues at trial. In our view, the trial judge’s reasons meet the functional and contextual test prescribed by the Supreme Court, and are sufficient to permit meaningful appellate review: R. v. G.F., 2021 SCC 20; R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3; R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788. We are able to discern why the trial judge rejected the accounts of both appellants. His conclusion that Mr. Amsterdam’s testimony contained “multiple internal and external inconsistencies and contradictions and illogicalities” was clearly explained. It was notably based on the fact that: 1) Mr. Amsterdam’s explanation for covering his face with a shirt – because he disliked the smell of cigarette smoke – made little sense given he specifically chose to wait for Mr. Forward in cell C-17 with smokers; and 2) Mr. Amsterdam kept his face covered even after he left the smoke-filled cell.

4) Lost Evidence Application

27The police have a duty to preserve relevant material in their possession, and the failure to do so can result in a s. 7 Charter breach. That said, as the Supreme Court has recognized, “owing to the frailties of human nature, evidence will occasionally be lost”: R. v. La, 1997 309 (SCC), [1997] 2 S.C.R. 680, at para. 20. A s. 7 breach will only be established where evidence was lost due to unacceptable negligence, or in “extraordinary circumstances” where the lost evidence is “so prejudicial to the right to make full answer and defence that it impairs the right of an accused to receive a fair trial”: La, at para. 24; R. v. Sheng, 2010 ONCA 296, 254 C.C.C. (3d) 153; R. v. Bero (2000), 2000 16956 (ON CA), 151 C.C.C. (3d) 545 (Ont. C.A.).

28The critical question was whether the police took reasonable steps to preserve the evidence for disclosure. The trial judge considered all of the surrounding circumstances, and in the end reasonably found that the footage was not intentionally lost nor lost because of “unacceptable negligence”. In any event, a judicial stay of proceeding is to be granted only in the clearest of cases. It is a remedy of last resort. Here, the lost evidence did not impact the appellants’ right to a fair trial. We therefore reject this ground of appeal.

5) Amsterdam’s Sentence Appeal

29Mr. Amsterdam does not appeal his dangerous offender designation. He appeals only the imposition of an indeterminate sentence. Sentences for a dangerous offender are reviewed for legal error and reasonableness. While more robust than a “regular” sentence appeal, this is not a hearing de novo: R. v. Sipos, 2014 SCC 47, [2014] 2 S.C.R. 423, at para. 26.

30Mr. Amsterdam argues that the sentencing judge erred by i) rejecting his expert’s opinion that any risk he posed could be managed in the community on an LTSO; ii) giving undue weight to his prior breaches of an LTSO; and by iii) relying too heavily on Correctional Service of Canada’s (“CSC”) assessment that it could not implement Mr. Amsterdam’s proposed terms of supervision.

31We reject each of these grounds. First, the trial judge was not obliged to accept the opinion that Mr. Amsterdam’s risk could be managed with an LTSO. The opinion that Mr. Amsterdam could be controlled in the community was based largely on the concept of “burnout” – men experiencing a decrease in aggression as they age. However, the trial judge was entitled to, as he did, prefer the competing expert evidence that it “was not possible at present to predict which specific individuals will demonstrate this decrease in offending behaviour or to what extent.” In any event, the trial judge provided several other reasons why Mr. Amsterdam could not be controlled under an LTSO, including his anti-social personality disorder (which cannot be cured and which causes inconformity with social norms, increased aggression, impulsivity, and a reckless disregard for the safety of others); his high scores on a psychopathy test (rendering him less amenable to treatment); denial of responsibility for the predicate offences; and the evidence that Mr. Amsterdam’s risk assessment had not changed since his 2006 long-term offender proceedings.

32Second, the trial judge did not give undue weight to Mr. Amsterdam’s prior LTSO breaches. This court has made it clear that prior breaches are relevant to the question of risk manageability: R. v. Straub, 2022 ONCA 47, 160 O.R. (3d) 721, at para. 43. The trial judge considered it, along with other factors, and reached a conclusion that was available to him.

33Third, and lastly, the trial judge did not err in relying on CSC’s indication that it could not implement Mr. Amsterdam’s proposed supervisory terms. Taking into account resource limitations is a matter of common sense, especially when ignoring them would place the public at risk of harm: R. v. K.P., 2020 ONCA 534, 152 O.R. (3d) 145. Mr. Amsterdam’s proposed conditions were extremely onerous: twice weekly drug tests, and a residential placement with no unsupervised time in the community. CSC said this was beyond its capacity. If CSC were unable to monitor Mr. Amsterdam because its staff was overworked, and if that alone was the obstacle to what would have otherwise been a reasonable disposition, then this would have been an improper consideration. However, this was not the evidence, and this is not what the trial judge found. CSC’s inability to implement Mr. Amsterdam’s proposed terms and conditions was not because of underfunding but rather because it was impracticable to monitor him constantly outside of a custodial facility. The trial judge reasonably found that the level of supervision required to manage Mr. Amsterdam in the community, as he proposed, was “akin to the kind of supervision federal prison inmates are subjected to”.

Conclusion

34For these reasons the appeals against conviction are dismissed. While Mr. Amsterdam is granted leave to appeal his indeterminate sentence, his sentence appeal is dismissed.

P. Lauwers J.A.

Gary Trotter J.A.

J. George J.A.