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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 20231020 Docket: C69269

Huscroft, Paciocco and Coroza JJ.A.

BETWEEN

His Majesty the King Respondent

and

Pedro Hechavarria-Tapia Appellant

Counsel: Ian B. Kasper, for the appellant Samuel Greene, for the respondent

Heard: July 13, 2023

On appeal from the dangerous offender designation and indeterminate sentence imposed by Justice Stephen D. Brown of the Ontario Court of Justice on January 5, 2021.

Coroza J.A.:

I. OVERVIEW

[1] During an eight-year period, the appellant assaulted four intimate partners. His pattern was consistent: he became attached, then controlling, then irrationally suspicious, and then – fuelled by alcohol – enraged, vengeful, and violent. The appellant’s violence escalated over time, and despite court orders and treatment recommendations.

[2] The appellant’s most recent assault on an intimate partner was extremely serious. The appellant beat M.B. and threatened her with a knife and a hammer. He choked her and bound her with tape. He forcibly and repeatedly penetrated her anally, vaginally, and orally, over her repeated protestations for him to stop. And as with his previous partners, the appellant blamed his victim for her abuse and claimed that he was the only victim in the situation.

[3] The appellant has been diagnosed with multiple conditions, including substance abuse disorder and delusional disorder. This latter condition is not currently considered curable. On November 15, 2017 the appellant pleaded guilty to ten counts, including sexual assault, assault, assault with a weapon, forcible confinement, threatening, and failure to comply with a probation order. The Crown instituted dangerous offender proceedings pursuant to s. 753 of the Criminal Code, R.S.C. 1985, c. C-46. During the hearing, a psychiatrist testified that the appellant had a very high risk of recidivism for intimate partner violence.

[4] The sentencing judge found that the appellant had demonstrated a pattern of serious violent offences and was intractable in his condition. Accordingly, he designated the appellant as a dangerous offender and sentenced him to an indeterminate sentence pursuant to s. 753(4)(a).

[5] On this appeal, the appellant alleges errors of fact underlying the sentencing judge’s findings on the appellant’s treatability (or lack thereof). Specifically, the appellant challenges the sentencing judge’s conclusions that the appellant “wishes to be untreated,” and had “no willingness or interest” in following court orders regarding counselling and rehabilitation. The appellant requests that this court quash the dangerous offender designation and indeterminate detention order, and impose a determinate detention period, followed by a long-term supervision order.

[6] Although this court’s review of a dangerous offender designation is somewhat more robust than regular appellate review of a sentence, we do not take a completely fresh look at the designation. This court must still give some deference to the sentencing judge’s findings of fact: R. v. Currie, [1997] 2 S.C.R. 260, at para. 33; R. v. Sipos, [2014] 2 S.C.R. 423, at paras. 25-26; R. v. Boutilier, [2017] 2 S.C.R. 936, at para. 81; R. v. Kohl, 2022 ONCA 625, at para. 9. In my view, each of the sentencing judge’s impugned findings of fact find ample support in the record and so there is no basis for appellate intervention.

[7] Counsel for the appellant conceded during oral argument that if he could not persuade this court that there were errors in the trial judge’s findings on treatability, then there would be no basis for this court to interfere with the dangerous offender designation or the indeterminate sentence. Accordingly, I would dismiss the appeal and consider it unnecessary to address the other grounds of appeal raised in the appellant’s factum. [1]

II. FACTUAL BACKGROUND

(1) The Predicate Offence

[8] The appellant and M.B. began dating in July 2016. M.B. moved in with the appellant in September of that year. The appellant repeatedly accused M.B. of infidelity throughout their relationship.

[9] In the early morning of November 4, 2016 the appellant entered M.B.’s room. Armed with a steak knife, he accused her of cheating on him. He dragged her from her bed by her hair and ripped her clothing. He choked her until she could not breath and had sex with her, despite her saying she did not want to do so. When M.B.’s children awoke, the appellant stopped his assault and drove M.B. to her work.

[10] At work, M.B. texted the appellant to tell him their relationship was over. The appellant responded by attending her workplace and asking her to say goodbye in person. When she came out to see him, he grabbed her hair, threatened her with a knife and a hammer, and convinced her to drive them back to the apartment.

[11] Back at the apartment, the appellant bound M.B.’s wrists with duct tape. He accused her of cheating, while she cried and apologized. He removed her clothing and put tape over her mouth because he did not want to listen to her. He hit her repeatedly in the face.

[12] Eventually, the appellant unbound M.B. and told her she could leave. But before she could leave, he picked her up, violently threw her on the bed, and proceeded to forcibly penetrate her anally, vaginally, and orally; throughout the ordeal, M.B. told the appellant he was hurting her and asked him to stop.

[13] The appellant threatened to stab her, and M.B. concocted a confession that she had cheated with the landlord. She hoped this would appease the appellant. The appellant responded by violently striking her across the face and continuing the sexual assault. She again told him he was hurting her; he told her “shut up,” and “you know you like it.”

[14] The assault finally ended when M.B.’s mother arrived home. M.B. suffered physical and psychological harm, including a chipped tooth, pain and swelling to her jaw, tearing, migraines, diminished self-esteem, hypervigilance, mental exhaustion, and fear of the offender escaping from jail to harm her further.

(2) The Appellant’s History

[15] The appellant moved to Canada from Cuba in 2009. He is not a Canadian citizen.

[16] Prior to the predicate offence in 2016, the appellant was convicted three times for assaulting three previous intimate partners. Each time, the appellant believed that his partner was cheating on him. [2] In addition, the appellant accrued a conviction for “over 80” while on bail for intimate partner violence charges.

[17] During his police interviews, the appellant demonstrated no remorse for his actions. Instead, he demeaned his victims as “whores” who deserved what they got. He implied that they should be grateful he did not kill them. The appellant minimized all harm caused to his victims, and stated that “[t]he person harmed the most by this, really, the only one, has been I.”

[18] Following the predicate offence, the appellant fled to the United States, where he was arrested for unlawful entry. He then attempted to escape from jail but was caught inside the ceiling. While the American authorities did not prosecute the appellant for the attempted escape, they did convict him for unlawful entry.

[19] While incarcerated in Canada, the appellant engaged in at least 19 prison fights.

[20] In totality, the sentencing judge noted that since the appellant arrived in Canada, he had spent very little time at liberty in the community.

[21] The appellant did not participate in any programming while in custody, even though counselling for anger, relationships, and substance abuse were available.

[22] While on release, the appellant spoke candidly of his suicidal thoughts to his parole officers but also engaged in victim blaming when faced with his problems. One probation officer engaged the appellant in “motivational interviewing” to move him towards contemplative thinking. The officer reported only limited success.

[23] During one of his periods in the community, the appellant enrolled in the Partner Assault Response (“PAR”) program. His intake form noted him as “partially contemplative.” The appellant missed multiple meetings and facilitators warned him that further absences would lead to discharge from the program. Within two months of beginning the program, the appellant was discharged due to being incarcerated for another assault on an intimate partner.

[24] Two years after his first attempt, the appellant re-enrolled in PAR. This time, his intake form noted him as “pre-contemplative.” The appellant missed one meeting and was arrested within two months for the predicate offense.

[25] Leading up to the dangerous offender proceedings, the appellant underwent a psychiatric assessment by Dr. Philip Klassen. During their interviews, the appellant acknowledged that he knew what he did was not right, but that he acted on angry impulses.

[26] At times, the appellant suggested an openness to treatment for his anger issues. However, the appellant also maintained that he was “a normal person,” and that if the police “put a camera right into [his] forehead,” they would realize that he was right about everything.

[27] Dr. Klassen declined to express an opinion on whether the appellant was intractable in his condition or indifferent to the reasonably foreseeable consequences of his behaviour. Dr. Klassen also stated that he was unable to opine on whether the appellant could be treated, such that an indeterminate sentence would be unnecessary to protect the public.

[28] Dr. Klassen did conclude that the offender likely suffered from substance abuse disorder, and possibly also from delusional disorder or another personality disorder. From phallometric testing, Dr. Klassen concluded that the appellant’s sexual violence was motivated by revenge, power, and control, rather than by sexological motives.

[29] Dr. Klassen concluded that the appellant is not committed to dealing with his alcohol abuse or anger problems. Dr. Klassen also testified that delusional disorder typically lasts for life, and that most people with the condition never gain insight; however, Dr. Klassen also testified that delusional disorder was not responsible for the appellant’s intimate partner violence.

[30] Dr. Klassen assessed the appellant through various recidivism predicting tools, which generally found that the appellant had a higher-than-average risk of recidivism. The appellant ranked in the highest risk category from the Ontario Domestic Assault Risk Assessment and the Domestic Violence Risk Assessment Guide. Dr. Klassen concluded that the appellant had a very high risk for future intimate partner violence.

[31] Dr. Klassen concluded that the appellant probably had no positive prospects for treatment. At the highest, “he could potentially benefit from treatment.”

(3) The Sentencing Judge’s Reasons

[32] The sentencing judge canvassed the appellant’s lengthy criminal history, before and after the predicate offence. He concluded that the appellant met the statutory criteria to be designated as a dangerous offender under s. 753 of the Criminal Code, given his broad pattern of violence, frequent threats of vengeance, record of minimization and victim blaming, and very strong likelihood of harmful recidivism.

[33] Moving to sentence, the sentencing judge recognized that he had to impose the least restrictive sentence which would adequately protect the public from the commission of a serious personal injury offence.

[34] The sentencing judge found that the appellant had committed a serious personal injury offence, as part of a pattern of aggressive behaviour, meeting the criteria in ss. 753(1)(a)(i) and (ii) of the Criminal Code. Lastly, the sentencing judge found that the appellant was intractable, in that he is unable to surmount his violent offending pattern and has uncompelling prospects for treatment.

[35] Notably, as part of his findings on intractability, the sentencing judge explicitly found as fact that the appellant “wishes to remain untreated,” had taken no action to obtain treatment since 2010, did not engage with his probation officers, and had “no willingness or interest” to comply with court orders regarding counselling or rehabilitative tools.

[36] In the end, the sentencing judge considered that all the statutory criteria were met. Accordingly, he imposed an indeterminate sentence upon the appellant.

III. ANALYSIS

(1) The Appellant’s Unwillingness to Be Treated

[37] The appellant first challenges the sentencing judge’s finding of fact that the appellant “wishes to be untreated.” The appellant argues this conclusion is contradicted by the appellant’s previous engagement with treatment for his conditions. According to the appellant, the trial judge improperly concluded that there was no evidence of the appellant’s motivation and willingness to accept treatment because the appellant did not testify. Moreover, this conclusion relies on an implicit inference that the reason mentally ill people do not seek treatment is because they do not wish to be treated. This inference is stereotypical and unreasonable.

[38] I am not persuaded by this submission. The appellant expressed on numerous occasions his belief that he did not need treatment and that the only people with problems were his victims. For example, the appellant told Dr. Klassen that he feels better without medication. He told the police that he wished people could put a camera in his forehead, so they could see how right he is. And when shown a picture of M.B.’s injuries, he stated “I don’t regret it.” This last finding shows that the appellant did not consider his violent assaults to be a problem needing treatment.

[39] Although the appellant obtained assistance for anxiety, depression, and suicidal ideation, these are not the conditions which led the appellant to be designated a dangerous offender. In seeking treatment for these conditions, the appellant demonstrated a desire to improve his own condition, but he did not express any recognition of his conditions that led him to hurt other people. To this end, it is notable that the appellant did not make use of any of the prison programming that was available to him to treat his conditions.

[40] While the appellant emphasizes that he enrolled in PAR, the sentencing judge was entitled to give this evidence little weight. The defendant was only enrolled in PAR for a brief period of time before he was charged again for more violence. And in the time he was enrolled in PAR, the appellant missed multiple meetings. The appellant was even warned that further absences would lead to expulsion.

[41] Contrary to the appellant’s submission, the sentencing judge did not find that the appellant wished to be untreated because he did not testify. The sentencing judge laid out a significant body of unchallenged evidence that the appellant wishes to be untreated for the relevant conditions. In response, the appellant could only point to his bare, unsworn statement to Dr. Klassen that he was willing to be treated. The sentencing judge was entitled to disbelieve this statement, and to prefer the unchallenged evidence to the contrary, especially when much of that contrary evidence was the appellant’s own words and actions: see generally R. v. Hamer, 2021 BCCA 297 at para. 137, leave to appeal to S.C.C. refused, 39948 (April 7, 2022). Accordingly, I see no basis for the submission that the sentencing judge made adverse findings against the appellant because the appellant did not testify or by relying on stereotypes of the mentally ill.

(2) The Appellant’s Unwillingness to Follow Court Orders and Cooperate with Probation Officers

[42] The appellant challenges the finding of fact that he had “no willingness or interest” in following court orders involving counselling or rehabilitative tools. Although the appellant had a lengthy track record of violating court orders (in the form of his release conditions), the appellant points to examples where he did comply with court orders, such as cooperating with his probation officers and attending counselling. On a related note, the appellant challenges one line of the sentencing judge’s reasons, where he found that the appellant “did not engage with his probation officers.” The appellant argues this is incorrect, because the appellant spoke with his probation officers about remorse, offence cycle, mental health, and substance use.

[43] The sentencing judge’s reasons must be read in totality. The sentencing judge considered the evidence that the appellant points to as suggesting engagement with probation officers. But as the sentencing judge found, “[the appellant] did not use probation as an opportunity to change his offending cycle. He remained unengaged and uncommitted to change.” The statement that the appellant “did not engage with his probation officers” must be understood in this context. The sentencing judge did not labour under a mistaken belief that the appellant literally never spoke with his probation officers.

[44] Given this context, I understand the sentencing judge’s overall finding of fact to be that the appellant did not engage with his probation officers beyond a superficial level. The appellant may have been polite with his probation officers, but such superficial engagement does not suggest he was particularly treatable. I therefore decline to interfere with the sentencing judge’s findings with regards to the appellant’s engagement with probation officers.

[45] Similarly, the appellant mischaracterizes the sentencing judge’s findings on the appellant’s unwillingness to follow court orders. The appellant is correct to note that on occasion, he complied with court orders. But this is not inconsistent with what the sentencing judge concluded. The reasons of the sentencing judge, fairly read, cannot be understood as suggesting that the appellant would never follow court orders. The sentencing judge’s exhaustive recounting of the evidence fairly demonstrates that sometimes the appellant did follow court orders, but often he did not.

[46] As the Crown notes, the appellant had a long record of violating court orders. These violations included acts of intimate partner violence, in violation of release conditions. Accordingly, the sentencing judge could reasonably conclude that the appellant would not comply with orders to take counselling in the community.

(3) Conclusion: The Appellant’s Treatment Prospects

[47] The trial judge’s review of the evidence and analysis of the appellant’s treatability are lengthy and exhaustive. The evidence amply demonstrated that the appellant’s prospects for success in treatment and in supervision were extremely poor. The appellant has reoffended every time he has been released into the community, in violation of one or more court orders. And every time the appellant has been ordered to engage in treatment for his issues, it has ended because he was rearrested for the very conduct that that treatment was meant to address. There is simply no basis to interfere with the trial judge’s conclusion that the appellant was not treatable in his condition.

IV. DISPOSITION

[48] The appellant concedes that if this court is not prepared to interfere with the trial judge’s findings on treatability, then that is dispositive of the appeal. Accordingly, I would dismiss the appeal.

Released: October 20, 2023 “G.H.” “S. Coroza J.A.” “I agree. Grant Huscroft J.A.” “I agree. David Paciocco J.A.”

[1] The appellant also argued that the sentencing judge erred by considering the appellant’s likely deportation upon release from custody as a factor favouring an indeterminate sentence, and that the dangerous offender designation is unreasonable as the psychiatrist’s evidence on intractability was equivocal and that the Crown could not establish beyond a reasonable doubt that the appellant was intractable.

[2] The sentencing judge found as fact that none of the appellant’s intimate partners were cheating on him and that his beliefs to the contrary were delusional.