minicounsel

Footnotes

I refer to participation rather than de facto consent in these reasons because the complainant was 15 years old and thus lacked the capacity to consent to sexual contact with an adult: R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, at paras. 52, 148.
References to “underage” in these reasons mean under the age of 16.
This bright-line rule is subject to the close in age exceptions in ss. 150.1(2.1), (2.2) and (2.3) of the Criminal Code, which do not apply here because the appellant was more than five years older than the complainant: A.B., at paras. 18, 39.
Because young people sometimes use fake identification, requesting and viewing identification showing a legal age may not always satisfy the all reasonable steps element. Trial judges should evaluate whether an accused’s reliance on identification was reasonable in light of the other facts and circumstances, as in R. v. Giscombe, 2021 ONCJ 710, at paras. 131-136.
I note that, like this case, F.L., Hussein, and R.D. concerned sexual offences that predated Parliament’s decision to adopt a higher maximum sentence for sexual assault of a person under the age of 16 than for other sexual assaults effective July 17, 2015: Tougher Penalties for Child Predators Act, S.C. 2015, c. 23, s. 14; Tougher Penalties for Child Predators Act: Order Fixing the Day on which this Order is registered as the Day on which Certain Sections of the Act Come into Force, SI/2015-68. Because this legislative change enables courts to recognize at sentencing that the victim of a sexual assault was a child, the reasoning in F.L., Hussein, and R.D. carries less weight for offences committed on or after July 17, 2015.
As explained earlier, I rely on Justice Bird’s description of Dr. Woodside’s testimony in Nettleton as the record of that testimony, including for the fresh evidence test, because the Crown’s position satisfies me that her description was accurate and contains all the relevant facts.
This court recently endorsed Holloway’s reading of Ghorvei and the caselaw applying it in Kolapully, at para. 30 n.3.

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 or 486.6 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, 162.1, 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) as soon as feasible, inform any witness under the age of 18 years and the victim of the right to make an application for the order;

(b) on application made by the victim, the prosecutor or any such witness, make the order; and

(c) if an order is made, as soon as feasible, inform the witnesses and the victim who are the subject of that order of its existence and of their right to apply to revoke or vary it.

(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;

(b) on application of the victim or the prosecutor, make the order; and

(c) if an order is made, as soon as feasible, inform the victim of the existence of the order and of their right to apply to revoke or vary it.

(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.

(3.1) If the prosecutor makes an application for an order under paragraph (2)(b) or (2.2)(b), the presiding judge or justice shall

(a) if the victim or witness is present, inquire of the victim or witness if they wish to be the subject of the order;

(b) if the victim or witness is not present, inquire of the prosecutor if, before the application was made, they determined if the victim or witness wishes to be the subject of the order; and

(3.2) If the prosecutor makes the application, they shall, as soon as feasible after the presiding judge or justice makes the order, inform the judge or justice that they have

(a) informed the witnesses and the victim who are the subject of the order of its existence;

(b) determined whether they wish to be the subject of the order; and

(4) An order made under this section does not apply in either of the following circumstances:

(a) the disclosure of information is made in the course of the administration of justice when the purpose of the disclosure is not one of making the information known in the community; or

(b) the disclosure of information is made by a person who is the subject of the order and is about that person and their particulars, in any forum and for any purpose, and they did not intentionally or recklessly reveal the identity of or reveal particulars likely to identify any other person whose identity is protected by an order prohibiting the publication in any document or the broadcasting or transmission in any way of information that could identify that other person.

(5) An order made under this section does not apply in respect of the disclosure of information by the victim or witness when it is not the purpose of the disclosure to make the information known to the public, including when the disclosure is made to a legal professional, a health care professional or a person in a relationship of trust with the victim or witness.

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.

(1.1) A prosecutor shall not commence or continue a prosecution against a person who is the subject of the order unless, in the opinion of the prosecutor,

(a) the person knowingly failed to comply with the order;

(b) the privacy interests of another person who is the subject of any order prohibiting the publication in any document or the broadcasting or transmission in any way of information that could identify that person have been compromised; and

(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. Hason, 2024 ONCA 369

DATE: 20240507

DOCKET: C66197

Tulloch C.J.O, Sossin and Copeland JJ.A.

BETWEEN

His Majesty the King

Respondent

and

Richard Hason

Appellant

Richard Litkowski, for the appellant

Jeffrey Wyngaarden, for the respondent

Heard: October 13, 2023

On appeal from the conviction entered on September 30, 2015 and the designation as a dangerous offender and the sentence imposed on December 11, 2017 by Justice William A. Gorewich of the Ontario Court of Justice.

Tulloch C.J.O.:

A. overview

1Unreliable expert evidence is a serious concern for the justice system. As report after report have demonstrated, such evidence may result in miscarriages of justice that can impose severe and unjustified consequences on accused persons. These risks can sometimes exist even in cases involving highly experienced expert witnesses. While all justice system participants have a responsibility to guard against these risks, judges are the last line of defence. By carefully scrutinizing expert evidence and issuing decisions concerning its admissibility and weight, they alert everyone in the justice system to concerning red flags regarding particular experts. It is incumbent on all of us to take those red flags seriously to prevent a repeat of past miscarriages of justice involving unreliable expert evidence.

2The trial judge in this case convicted the appellant, Richard Hason, of sexual assault and designated him a dangerous offender. Based on the expert testimony of psychiatrist Dr. Scott Woodside, the trial judge imposed an indeterminate sentence of prison for the rest of the appellant’s life unless he receives parole. The appellant appeals from his conviction, dangerous offender designation, and indeterminate sentence. At the oral hearing, the court did not call on the Crown because it appeared to us then that, based on the appellant’s submissions and Crown’s written submissions, that none of the grounds of appeal were meritorious.

3After the oral hearing, this court learned of R. v. Nettleton, 2023 ONSC 3390, a case decided after the trial judge’s decision that challenges Dr. Woodside’s reliability. The testimony that case described shows that he has treated a key section of dangerous offender reports as boilerplate and has approached it carelessly. Because it is our responsibility as judges to be the last line of defence against unreliable expert evidence, we notified the parties of this concern regarding the evidence of Dr. Woodside and invited submissions on this new issue. Both the Crown and defence made submissions in response, and neither felt that Nettleton should affect the case as argued.

4While I agree in part with the parties’ submissions and would dismiss both the conviction appeal and the dangerous offender designation, I would allow the appellant’s appeal from the indeterminate sentence and order a new hearing on the appropriate penalty. A new hearing on penalty is necessary because the Nettleton decision and the testimony it described, together with the record in this case, make the sentence unsafe. Dr. Woodside admitted that his practice is to take a careless approach to an important section of dangerous offender reports that judges may rely on, in conjunction with other evidence, to send someone to jail for potentially the rest of their life. His admission indicates that he may not treat his important responsibilities as an expert witness with the care and diligence that his duty to the court requires. If the trial judge had known of Dr. Woodside’s careless practice and considered it together with the specific errors that the appellant’s trial counsel exposed, he may well not have relied on Dr. Woodside’s evidence to impose an indeterminate sentence. It is unsafe and risks a miscarriage of justice to rely on that evidence to send the appellant to prison for potentially the rest of his life in the absence of other expert evidence to confirm it.

5I would otherwise dismiss the appellant’s sentence appeal. The Nettleton decision and the testimony it described concerning Dr. Woodside’s careless practice do not impact the dangerous offender designation because neither the appellant’s arguments nor the trial judge’s reasoning on designation turned on Dr. Woodside’s evidence. Further, the trial judge reasonably entered a conviction for sexual assault rather than sexual interference because doing so advances Parliament’s purpose of making a distinct dangerous offender designation pathway available for sexual assault.

6I stress that nothing in these reasons should be taken to diminish the importance of the protection of the public in this case. The appellant has a significant criminal record. He admits that he has serious problems, needs help to address them, and that a substantial jail sentence and long-term supervision order are necessary to protect the public. It will be for the sentencing judge in the new penalty hearing to determine whether such a substantial sentence and long-term supervision order are adequate, or an indeterminate sentence is necessary. It is in the interests of justice for that determination to be based on a solid foundation rather than the potentially unreliable evidence of an expert who has admitted his careless practice.

7With respect to the conviction appeal, the principal question raised is whether the appellant, who took some steps to ascertain the age of the 15-year-old complainant but received conflicting information, was properly convicted of sexual assault for initiating sexual activity without taking any further steps to obtain more reliable information about her age.

8The answer to this question is clearly yes. The trial judge properly convicted the appellant because he did not reasonably mistake the complainant’s age and was reckless. The appellant did not hold an honest but mistaken belief that the complainant was of legal age because, as the trial judge found, he was instead unsure of her age and worried she might be under 16. But even if the appellant had been mistaken, the trial judge correctly found that he did not comply with Parliament’s clear direction in s. 150.1(4) of the Criminal Code, R.S.C. 1985, c. C-46 to desist from initiating sexual activity until he had both done everything reasonable to ascertain her age and formed a reasonable belief that she was of legal age. Despite the conflicting and ambiguous information he received in response to his modest initial steps to ascertain her age, he neither asked to see the complainant’s government-issued identification nor did anything else to obtain reliable information. Instead, he perceived a risk that she was under 16 but initiated sexual activity anyway. Because his conduct was reckless and blameworthy, I would dismiss his appeal from conviction.

B. factual background

9The police charged the appellant with sexual assault and sexual interference after he initiated sexual activity with a 15-year-old teenager he had known for just a few weeks. He met the complainant in February 2015 at a Tim Hortons and saw her several times between then and March 2, 2015. He was 27 at the time. He provided her and her friend, M.R., with cigarettes and marijuana. He gave the complainant free drugs because he wanted to have sex with her. By March 2, the appellant knew that the complainant was in high school, lived in a group home, did not drive a car, asked him to buy her cigarettes instead of buying them herself, and had a 16-year-old boyfriend.

10On March 2, after breaking into an abandoned house and consuming alcohol and marijuana with the complainant and M.R., the appellant initiated sexual intercourse and fellatio with the complainant. The appellant and M.R. testified that the complainant participated in the sexual activity, which the complainant denied.¹ After the activity ended, the appellant expressed concern that she might report the incident to police. The complainant did so, and police arrested the appellant. They charged him with sexual interference, sexual assault, break and enter, failure to comply with probation orders, and marijuana trafficking. The appellant pled guilty to the latter three offences but proceeded to trial on the sexual offences.

11The appellant testified that he thought the complainant was 17 because she looked 16 or 17 and, when he asked her how old she was during their first meeting, she told him she was 17. He also testified that the complainant again told him she was 17 in a subsequent meeting before March 2, which M.R. confirmed. The appellant did not request any other information to ascertain her age, such as identification or her grade. He also acknowledged that people who looked 16, such as the young people he sold drugs to, could, in fact, be underage.²

12The complainant agreed that the appellant asked her how old she was but denied telling him that she was 17. She testified that she told him that she was 15 on multiple occasions, including when they first met. She also gave evidence that he acknowledged that she was 15 on multiple occasions, including on March 2 before he initiated sexual activity.

13M.R. initially testified that she did not remember any conversation between the appellant and the complainant concerning the complainant’s age on March 2. However, after reviewing her police statement, she recalled that the appellant acknowledged that the complainant was 15 and that he was 12 years older than her before initiating sexual activity. She also testified on re-examination that the complainant told the appellant she was 15 before he initiated sexual activity.

C. The conviction ruling

14The trial judge accepted the appellant and M.R.’s evidence that the complainant participated in the sexual activity. Accordingly, the principal issues at trial were the appellant’s state of mind concerning the complainant’s age and whether he reasonably mistook her for a 16- or 17-year-old.

15The trial judge found that the appellant received conflicting information about the complainant’s age. He accepted her evidence that she disclosed she was 15 when they first met, the appellant and M.R.’s evidence that she later said she was 17, and M.R.’s evidence that she disclosed she was 15 on March 2 and the appellant acknowledged she was 15 before initiating sexual activity.

16The trial judge rejected the appellant’s evidence that he believed the complainant was 16 or older for multiple reasons. First, the trial judge found this testimony implausible because the complainant twice told him that she was 15. Second, the trial judge did not accept the appellant’s argument that he believed that the complainant was 16 or older because she smoked marijuana, called him to buy drugs, drank alcohol, and had a 16-year-old boyfriend. He reasoned that these activities were unreliable indicators of age because 15-year-olds also engage in them. He also emphasized that the appellant knew of other indicators suggesting that the complainant could be underage, including that she was in high school, did not drive, and asked the appellant to buy her cigarettes. Finally, the trial judge rejected the appellant’s testimony that he could tell by looking at the complainant that she was 16 or 17. The trial judge found this testimony was both illogical and inconsistent with the appellant’s admission that he may have sold drugs to people who looked 16 but were, in fact, underage.

17Because the appellant received some conflicting information, the trial judge nonetheless had a slight reasonable doubt that he believed that the complainant was under 16. Instead, the trial judge found that the appellant was not sure and was concerned that she might be underage because he acknowledged that he was much older than her and worried that she would contact police.

18The trial judge convicted the appellant of sexual interference because he found beyond a reasonable doubt that the appellant did not take reasonable steps to ascertain the complainant’s age. The trial judge reasoned that the appellant should have exercised extreme caution because he knew that he was much older than the complainant, received conflicting information about her age, and knew other facts about the complainant that suggested that she could be underage. The trial judge found that a reasonable person would have taken additional steps to ascertain the complainant’s age that the appellant failed to take, such as asking her for identification or her high school grade. He dismissed the sexual assault charge, citing R. v. Kienapple, 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729.

D. the kienapple ruling

19After the trial judge convicted the appellant, the Crown applied to designate him as a dangerous offender. The Crown also asked the trial judge to revisit his Kienapple ruling by convicting the appellant of sexual assault and staying the sexual interference charge. The Crown made this application because a sexual assault conviction would trigger an additional dangerous offender designation pathway. The Crown argued that the trial judge was required to enter a sexual assault conviction because that offence is more serious than sexual interference.

20The trial judge granted the Crown’s application, entered a sexual assault conviction, and stayed the sexual interference charge. He accepted the Crown’s argument that sexual assault was more serious than sexual interference, which he reasoned was consistent with this court’s decision in R. v. R.B., 2013 ONCA 36, 114 O.R. (3d) 465. He also reasoned that granting the application would further Parliament’s purpose in making this additional dangerous offender designation pathway available for sexual assault.

E. the dangerous offender Proceeding

21The trial judge heard evidence and argument for 10 days at the dangerous offender hearing. Dr. Scott Woodside, a forensic psychiatrist from The Centre for Addiction and Mental Health, assessed the appellant, submitted an assessment report, and testified at the hearing. Dr. Woodside has considerable experience as an expert in dangerous offender cases. Several fact witnesses also testified, namely a Parole Board of Canada official, the appellant’s most recent probation officer, a frontline parole officer, and a prison administrator.

22The evidence showed that the appellant had a difficult childhood. His father physically abused the appellant until he died when the appellant was 12 or 13, and Children’s Aid Society records state that the appellant’s mother verbally abused him. He was also diagnosed with Attention-Deficit / Hyperactivity Disorder at the age of 5. He began to use drugs at a young age, and stopped going to school when he was 13 after he was suspended many times for fighting and swearing at his teacher.

23The evidence also showed that the appellant had an extensive criminal record of violently preying on young vulnerable women and causing them severe psychological harm. After befriending these women, he physically and/or sexually assaulted them, and threatened to kill or mutilate them, sometimes while wielding a knife. He also sexually interfered with his six-year-old niece and threatened to slit her throat if she reported it.

24Dr. Woodside diagnosed the appellant with, among other conditions, antisocial personality disorder with significant psychopathic features and pedophilic disorder. He performed multiple risk assessment tests and the results showed that the appellant had a very high risk of physically or sexually violent reoffending. The appellant did not contest these diagnoses and admitted that he had significant difficulties.

25The appellant contested the designation as a dangerous offender by challenging the legal characterization of the index offence, sexual assault. He argued that his offence was neither a subpart (a) serious personal injury offence under Criminal Code s. 752, nor part of a pattern of repetitive or aggressive behaviour under Criminal Code ss. 753(1)(a)(i)-(ii).

26The trial judge rejected these arguments and designated the appellant as a dangerous offender. He found that the sexual assault was a serious personal injury offence because it was inherently violent. He also reasoned that three designation pathways were met. First, he found that the Criminal Code s. 753(1)(a)(i) pathway was met because the index offence was part of a pattern of repetitive physical and sexual assaults of young women that caused them severe psychological damage. Second, he found that this same conduct triggered the s. 753(1)(a)(ii) pathway because it was persistent and aggressive, and the appellant was indifferent to its consequences. Third, he found that the s. 753(1)(b) pathway was met. He reasoned that the appellant had failed to control his sexual impulses and was likely to cause injury to others by continuing to fail to do so in the future because he had resisted and failed to take advantage of treatment.

27Because the trial judge designated the appellant a dangerous offender, he had to consider whether to impose an indeterminate sentence, a determinate sentence, or a determinate sentence plus long-term supervision order. The Crown sought an indeterminate sentence, and the defence sought a determinate sentence plus a long-term supervision order. The appellant argued that he was willing to receive treatment and had shown some ability to learn, including by reaching out to his probation officer for help.

28Dr. Woodside’s evidence was critical to the Crown’s case at the penalty stage. He testified that the appellant’s risk could not be adequately managed in the community and expressed “very significant pessimism” that a long-term supervision order would adequately protect the public. He asserted that the appellant lacked empathy, was indifferent to the consequences of his actions on his victims, was disinterested in treatment, resisted it, and failed to follow through on it. The Crown urged the trial judge to rely on his evidence.

29The appellant contested an indeterminate sentence by challenging Dr. Woodside’s reliability. Dr. Woodside admitted in cross-examination that he made two errors in scoring a risk assessment test. The appellant argued that his failure to both perform the test carefully and notice those errors when reviewing his report undermined his reliability. Cross-examination exposed additional errors. Dr. Woodside admitted that he copy-pasted some inaccurate content concerning a different person into the analysis section of the report and did not notice this error when he reviewed it. He also misrepresented the appellant’s expressions of empathy and willingness to seek treatment. For example, while Dr. Woodside asserted in his report that the appellant did not show empathy or remorse, he admitted in cross-examination that the appellant in fact expressed empathy at multiple points during the interview. Similarly, while Dr. Woodside initially testified that the appellant expressed unwillingness to take medication, he ultimately admitted that the appellant never said this during the interview.

30The Crown urged the trial judge to accept Dr. Woodside’s evidence despite the defence’s challenge. The Crown characterized the errors as one-off slip-ups by a reliable and “extremely well respected” expert who had performed over 120 dangerous offender assessments at the time of the hearing.

31The trial judge agreed with the Crown’s argument, accepted Dr. Woodside’s evidence as reliable, and relied heavily on it in imposing an indeterminate sentence. He began his analysis by referring to Dr. Woodside’s evidence and stated that his decision “give[s] effect to the pessimism expressed by Dr. Woodside about any form of release.” He accepted Dr. Woodside’s evidence due to its apparent thoroughness and found that Dr. Woodside’s report scoring errors did not undermine his reliability. He based his findings that the appellant was a high risk to re-offend and that his risk could not be controlled in the community on Dr. Woodside’s evidence. He treated that evidence as an “important factor” because Dr. Woodside was the sole psychiatrist who gave evidence.

F. analysis

(1) The Trial Judge Properly Convicted the Appellant

32The appellant argues that his conviction for sexual assault should be overturned because the trial judge did not find that he had a blameworthy mental state and instead convicted him merely because the Crown negated the mistake of age defence. He also argues that the trial judge erred in his analysis of that defence, that he unevenly scrutinized the appellant’s evidence, and that he failed to apply the principles from R. v. W. (D.), [1991] 1 S.C.R. 724. I disagree and would dismiss the conviction appeal. The trial judge properly convicted the appellant because he found that the appellant did not reasonably mistake the complainant’s age but instead recklessly initiated sexual activity with the complainant, despite his awareness that she could be underage.

(a) The Governing Principles for the Mistake of Age Defence and the Blameworthy Mental State Requirement

33Parliament prohibits adults from engaging in sexual activity with young people under the age of 16 to protect those young people from exploitation by adults and the wrongfulness and harmfulness of adult/youth sexual activity: Criminal Code, s. 150.1(1); R. v. A.B., 2015 ONCA 803, 342 O.A.C. 36, at paras. 37-39, 45.³ Adults who violate this prohibition may be prosecuted for committing sexual assault and/or sexual interference: Criminal Code, ss. 151, 271. Such adults sometimes claim that they believed that the underage young person was 16 or older. Absent legislative intervention, judge-made law would permit this mistake of age defence if the adult honestly held that belief, even if it was unreasonable: Pappajohn v. The Queen, 1980 CanLII 13 (SCC), [1980] 2 S.C.R. 120, at p. 156, per Dickson J. (dissenting, but not on this point); R. v. George, 2017 SCC 38, [2017] 1 S.C.R. 1021, at paras. 7-8.

34The mistake of age defence presented Parliament with a dilemma. Permitting it to operate unrestricted would allow adults who failed to make reasonable inquiries and held unreasonable beliefs about a young person’s age to evade conviction, but eliminating it would likely violate the Charter: R. v. Carbone, 2020 ONCA 394, 150 O.R. (3d) 758, at paras. 109-111; Isabel Grant, “The Slow Death of the Reasonable Steps Requirement for the Mistake of Age Defence” (2021) 44 Man. L.J. 1, at pp. 7-8.

35Parliament resolved this dilemma and enhanced protections for young people by enacting section 150.1(4) of the Criminal Code: George, at paras. 7-8; Carbone, at paras. 111-113. That provision modifies the mistake of age defence by requiring the accused to take all reasonable steps to ascertain the complainant’s age. The modified defence has two elements: (1) the accused honestly believed that the complainant was at least 16 years old at the time of the alleged offence, and (2) the accused took all reasonable steps to ascertain the complainant’s age. If the accused shows an air of reality to both elements, then the Crown must negate the defence by proving beyond a reasonable doubt that either element is lacking: R. v. W.G., 2021 ONCA 578, 405 C.C.C. (3d) 162, at paras. 54-57, leave to appeal refused, [2021] S.C.C.A. No. 381.

36Disproving the first element, honest belief, requires the Crown to prove that the accused did not subjectively accept as true that the complainant was of legal age. Because to believe something is to subjectively accept it as true, belief requires a higher degree of certainty than suspicion or supposition: Ontario (Environment and Climate Change) v. Geil, 2018 ONCA 1030, 371 C.C.C. (3d) 149, at para. 55. A person who suspects, guesses, or hopes that the complainant is 16 or older does not accept that proposition as true but instead recognizes that there is a risk, even a low one, that the complainant may be underage. Proceeding with sexual activity despite being aware of that risk is the blameworthy mental state of recklessness, not belief: Carbone, at para. 125.

37Disproving the honest belief element knocks out the entire mistake of age defence. It is irrelevant that the accused took all reasonable steps to ascertain age or that a reasonable person might have believed the complainant was 16 or older if the accused did not also subjectively believe this: R. v. Moise, 2016 SKCA 133, 343 C.C.C. (3d) 16, at paras. 30-32.

38The second element, all reasonable steps, makes adults responsible for preventing adult/youth sexual activity. Assessing this element is challenging because it is contextual and fact-specific. The caselaw meets this challenge by establishing principles to guide the assessment: George, at paras. 2, 9. I distill those principles in these reasons.

39The second element implements Parliament’s protective purpose by setting a high bar: Adults must take all reasonable steps to ascertain the complainant’s age before engaging in sexual activity. Parliament’s choice of the word “all” means what it says: Adults must take all reasonable steps, not merely some. Parliament’s protective purpose drives judges’ assessment of whether adults have met that high bar and favours requiring adults to take more, not fewer steps: George, at para. 2; W.G., at para. 62; R. v. Dragos, 2012 ONCA 538, 111 O.R. (3d) 481 (“Dragos (ONCA)”), at para. 38. This high bar ensures that the “all reasonable steps” element is robust and protects young people as much as reasonably possible: R. v. Hayes, [1991] A.J. No. 1232 (Q.B.), at para. 9.

40The second element has two interrelated requirements. First, the accused must take all the steps that a reasonable person would take in the circumstances known to the accused to ascertain the complainant’s age. Second, those steps must provide information that would cause a reasonable person to accept as true that the complainant was of legal age: W.G., at paras. 60-61; R. v. Chapman, 2016 ONCA 310, 130 O.R. (3d) 515, at paras. 40, 54, leave to appeal refused, [2016] S.C.C.A. No. 35.

41These requirements make clear that a reasonable person would demand compelling information that establishes the complainant’s age with a high degree of certainty before accepting as true that the complainant was of legal age: R. v. Osborne (1992), 1992 CanLII 7117 (NL CA), 102 Nfld. & P.E.I.R. 194 (N.L.C.A.), at para. 62. Carbone’s teaching that awareness of even a low risk that the complainant is underage is recklessness and precludes belief that the complainant is of legal age confirms that this high degree of certainty is required. So does the grave harm that proceeding with sexual activity with an underage young person can cause, as well as the absence of social value to offset risking that harm that Carbone highlighted: at para. 125. Reasonable people would want to be sure that they are not running the risk of causing the “‘life-altering’” and “devastating” consequences that adult/youth sexual activity inflicts on underage young people, including the heightened risks of physical injury, suicide, substance abuse, and unwanted pregnancy that sexual violence by adult men against adolescent girls causes: Friesen, at paras. 74, 136, 142, quoting R. v. Woodward, 2011 ONCA 610, 107 O.R. (3d) 81, at para. 76. The definition of belief as accepting the truth of something and requiring more certainty than mere supposition reinforces the need for this high degree of certainty: Geil, at para. 55.

42Steps to ascertain age are only meaningful if they obtain compelling information that establishes the complainant’s age with a high degree of certainty. If they do not, then the accused must take additional steps: Morrison, at paras. 106-108. Adults cannot take a casual, box-checking approach to ascertaining the complainant’s age that is focused on establishing plausible deniability rather than reasonable belief: Osborne, at para. 62; Dragos (ONCA), at para. 46.

43Courts have identified several common scenarios where the accused must take additional steps to ascertain age. These scenarios include, without limitation:

If complainants tell the accused that they are underage: Morrison, at para. 107;
If the complainant either declines to respond to the accused’s inquiries concerning age or provides an ambiguous response: Morrison, at para. 107;
If the information the accused obtains merely suggests that the complainant could be 16 or older but does not establish this with the high degree of certainty that belief requires: R. v. Gashikanyi, 2015 ABCA 1, 16 C.R. (7th) 369, at para. 17; see also Isabel Grant & Janine Benedet, “Confronting the Sexual Assault of Teenage Girls: The Mistake of Age Defence in Canadian Sexual Assault Law” (2019) 97 Can. Bar. Rev. 1, at pp. 6, 29; and,
If the accused initially obtains compelling information that the complainant is 16 or older but subsequently learns other information suggesting that the complainant is underage: Morrison, at para. 108.

44Stereotypical and/or illogical reasoning is not compelling and would not cause a reasonable person to believe that the complainant was of legal age. For example, a reasonable person would not infer that complainants are 16 or older because they offer to exchange sex for money since young people below the legal age may also do so: Gashikanyi, at para. 16; Moise, at para. 33. Likewise, a reasonable person would appreciate that underage young people can look like they are 16 or older and would be wary of relying on appearance to jump to conclusions about age: Hayes, at para. 21. For instance, a reasonable person would not conclude that a young woman is 16 or older because she is 5 foot 5 inches tall, weighs 160 pounds, and has some breast development: Gashikanyi, at para. 17. While visual observation may be sufficient in some circumstances (Chapman, at paras. 41-42), these circumstances will be rare because it is not a reliable indicator: Hayes, at para. 21; R. v. R.A.K. (1996), 1996 CanLII 7277 (NB CA), 175 N.B.R. (2d) 225 (C.A.), at para. 8.

45Because stereotypes and illogical reasoning are impermissible, a reasonable person would also be very wary of relying on the mere fact(s) that complainants are drinking, smoking, purchasing or using drugs, and/or are sexually active to infer that they are of legal age: R. v. Angel, 2019 BCCA 449, 382 C.C.C. (3d) 149, at para. 59, leave to appeal refused, [2020] S.C.C.A. No. 35. Rather, the reasonable person would recognize that many underage young people engage in these activities: Chapman, at paras. 52-53; R. v. Hadvick, 2024 YKCA 2, at para. 88. Often, such young people are especially vulnerable to sexual violence, for example because they are in state care: Friesen, at paras. 70-73; R. v. Alcorn, 2021 MBCA 101, 407 C.C.C. (3d) 395, at paras. 3, 62, leave to appeal refused, [2022] S.C.C.A. No. 39; R. v. Gudmandson, 2018 MBPC 31, at paras. 39, 58; R. v. Moazami, 2015 BCSC 2055, at paras. 96-98. Reliance on these factors to conclude that a young person is 16 or older thus risks undermining Parliament’s protective purpose by providing less protection to those especially vulnerable young people who need it most: Hadvick, at paras. 79-80, 88; see also Grant & Benedet, at pp. 29-30.

46Because drinking, smoking, drug use, and sexual activity are unreliable indicators and reliance on them risks undermining Parliament’s protective purpose, these activities are generally not sufficient to ground a reasonable belief: R. v. Mastel, 2011 SKCA 16, 268 C.C.C. (3d) 224, at para. 18. Instead, the accused must also usually obtain more reliable indicators of age, such as attendance at adult-only social events, graduation from high school, employment, or the ability to drive: Chapman, at paras. 52-53; R. v. Tannas, 2015 SKCA 61, 21 C.R. (7th) 166, at paras. 33-34; R. v. C.J.C., 2018 NLCA 68, 370 C.C.C. (3d) 522, at paras. 40, 51, 55.

47Finally, accused persons may not proceed with sexual activity unless and until they have taken steps that would cause a reasonable person to believe that the complainant is 16 or older. Sometimes taking steps that are immediately available at a specific point in time may not yield compelling information right away, such as if the complainant declines a request to provide identification or cannot provide it promptly. In these circumstances, accused persons cannot roll the dice and proceed with sexual activity just because they have checked a few boxes since a reasonable person would not run the risk of inflicting life-altering and devastating consequences on the complainant. Rather, accused persons must desist from sexual activity until they can take additional steps to ascertain age because the information they have obtained would not cause a reasonable person to believe that the complainant is 16 or older: Morrison, at paras. 106-108; R. v. MacDonald, 2023 NSPC 21, at para. 70.

48Negating the mistake of age defence is necessary but not sufficient to convict the accused. The Crown must also prove that the accused had one of three blameworthy mental states: (1) belief, (2) wilful blindness, or (3) recklessness: Carbone, at paras. 120-124. First, belief means that the accused accepted as true that the complainant was underage. Second, wilful blindness means that the accused suspected that the complainant might be underage but deliberately suppressed that suspicion and chose not to make further inquiries: Morrison, at para. 98. Third, recklessness means that the accused appreciated a risk, even a low one, that the complainant might be underage and decided to take it. This includes situations where accused persons chose to never turn their minds to the complainant’s age and, thus, chose to run the risk that the complainant might be underage: Carbone, at paras. 125-127.

49While negating the defence is not sufficient to convict the accused, it does make it easier for the Crown to prove that the accused had a blameworthy mental state by eliminating the accused’s claim that he believed that the complainant was of legal age. This leaves only four possible mental states that the accused could have: (1) belief that the complainant was underage, (2) wilful blindness as to the complainant’s age, (3) subjective appreciation of the risk that the complainant was underage, and (4) complete inattention to the complainant’s age. The first three mental states lead inevitably to a conviction because they respectively constitute the blameworthy mental states of belief, wilful blindness, and recklessness: W.G., at paras. 67-70, 81.

50The fourth mental state, complete inattention to the complainant’s age, is usually reckless and thus results in conviction. This is because failing to turn one’s mind to the age of the complainant generally reflects a choice to take a risk that the complainant might be underage. Nonetheless, this court has recognized that, in some rare circumstances, accused persons’ failure to turn their mind to the complainant’s age may not reflect a choice to take the risk that the complainant is underage. In those circumstances, the accused should be acquitted because the Crown has not proved recklessness: W.G., at paras. 69-70; Carbone, at paras. 126-127, 131.

51I recognize that ordinary people would likely find it counterintuitive and surprising that accused persons could, even in rare circumstances, be acquitted of sexual offences against children despite having failed to turn their minds to the complainant’s age and take all reasonable steps to ascertain that age. They would not be wrong to be surprised. Before the Supreme Court’s 2019 Morrison decision, the law was clear that proof that the accused had not taken all reasonable steps was sufficient for a conviction: Carbone, at paras. 74-78. But Morrison seemed to revise the Supreme Court’s prior decision in George concerning s. 150.1(4)’s all reasonable steps requirement by commenting that negating that requirement was not sufficient to convict the accused: Morrison, at paras. 86-91. These comments opened up the concerning possibility that, contrary to Parliament’s intent in enacting s. 150.1(4), accused persons who unreasonably failed to turn their mind to the complainant’s age and take all reasonable steps to ascertain that age could be acquitted: Grant, at pp. 7-8, 28-29. While at least one other court has treated those comments as only applicable to the child luring offence at issue in Morrison due to these concerns (Angel, at paras. 50-52), this court decided in Carbone that those comments provided binding guidance concerning other offences involving sexual activity with young people: Carbone, at paras. 74, 116-120. This court remains bound by Carbone’s interpretation of Morrison unless and until the Supreme Court revises or clarifies its comments in Morrison or Parliament changes the law.

(b) The Crown Negated the Mistake of Age Defence

52Applying these principles, I conclude that the mistake of age defence was unavailable because the trial judge’s findings negate both of its elements. Those findings establish that the appellant neither honestly believed that the complainant was of legal age nor took all reasonable steps to ascertain her age.

53First, the trial judge’s findings negate the honest belief element by establishing that the appellant did not accept as true that the complainant was 16 or older. The trial judge rejected the appellant’s evidence that he believed the complainant was 16 or 17. The trial judge instead found beyond a reasonable doubt that the appellant was unsure how old the complainant was and was concerned that she might be underage. At most, the appellant hoped that she might be 16 or 17. This mere hope is not an honest belief because it lacks the higher degree of certainty that belief requires.

54Second, the trial judge also correctly concluded that the Crown disproved the “all reasonable steps” element. He found that the appellant only took modest, initial steps such as asking the complainant for her age and observing her appearance and conduct. The trial judge reasoned that these initial steps would not have caused a reasonable person to believe that the complainant was 16 or older because they yielded conflicting information and red flags, suggesting that the complainant could be underage. He accordingly concluded that a reasonable person would have proceeded very cautiously and taken additional steps before initiating sexual activity, such as asking the complainant for identification or her grade. Because the appellant did not do so, he failed to take all reasonable steps.

55The appellant argues that he took reasonable steps because the complainant’s smoking of marijuana and purchasing it from him, drinking of alcohol, and having a 16-year-old boyfriend reliably indicated to him that she was of legal age. I disagree. The trial judge correctly rejected this argument for two independent reasons.

56First, the trial judge correctly rejected this argument as illogical and stereotypical. Consistent with judicial guidance, he reasoned that underage young people also engage in the activities the appellant pointed to and that it was stereotypical to assume that those activities showed that the complainant was 16 or older: Angel, at para. 59; Chapman, at para. 53. He also appropriately linked the unreliability of these activities to the unreliability of visual observation: Hayes, at para. 21. As the trial judge reasoned, it was unreasonable for the appellant to assume that only young people who were 16 or older would buy and use drugs because he admitted that he may have sold drugs to 14-year-olds who appeared to be 16.

57The appellant should have been especially wary of relying on smoking, drinking and drug use as indicators of age because, as the trial judge found, he knew that the complainant lived in a group home. Even where the accused does not know that the complainant is especially vulnerable, the reasonable person is cautious of relying on these activities as indicators that the complainant is 16 or older because the most vulnerable underage young people often engage in them: Hadvick, at paras. 79-80, 88. Because the appellant actually knew that the complainant was in state care, a reasonable person knowing what he knew would have been even more cautious.

58Second, the trial judge correctly reasoned that these activities could not support a reasonable belief that the complainant was of legal age because other countervailing facts demonstrated that the complainant could be under 16. The appellant knew that the complainant was in high school, did not drive, and asked the appellant to buy her cigarettes instead of buying them herself. The trial judge accurately identified these facts as red flags that required the appellant to take additional steps to confirm age: W.G., at para. 61; Dragos (ONCA), at paras. 51-59, 66.

59I disagree with the appellant’s argument that these facts were not red flags because 17- or 18-year-olds also attend high school, cannot buy cigarettes, and sometimes do not drive. This argument assumes that these facts would only be relevant if they proved that the complainant was underage. That assumption is wrong. Information that does not reveal the complainant’s precise age is still a red flag requiring further inquiry if it discloses a risk that the complainant might be underage: Dragos (ONCA), at paras. 56-59. These facts created that risk and required the appellant to take additional steps.

60The trial judge found that one such additional step the appellant should have taken was to ask the complainant her grade. The appellant argues that this was not a reasonable step because the complainant might have lied in response. I disagree. This argument also fails for multiple independent reasons.

61First, as the Crown submits, it is pointless to speculate whether the complainant might have lied. Courts determine whether asking a question to ascertain age satisfies the “all reasonable steps” element by evaluating the response: Morrison, at para. 107. The appellant, who could not know what the response would be, had to try to obtain more information from the complainant and then evaluate her response in light of the other information he knew. He could not refrain from asking just because he might receive an untrue response.

62Second, the appellant overlooks the trial judge’s finding that a reasonable person would have also asked for government-issued identification. Such identification is a reasonably reliable source that is widely used to verify age. Asking for it is an easy, simple, straightforward, and obvious step to resolve confusion and/or uncertainty concerning the complainant’s age: R. v. Dragos, 2010 ONSC 3093 (“Dragos (ONSC)”), at para. 48, aff’d 2012 ONCA 538, 111 O.R. (3d) 481; R. v. H.L., 2017 ONSC 6205, 41 C.R. (7th) 348, at para. 110, aff’d, 2018 ONCA 823; R. v. W.G., 2018 ONSC 5404, at para. 71, aff’d, 2021 ONCA 578, 405 C.C.C. (3d) 162, leave to appeal refused, [2021] S.C.C.A. No. 381; MacDonald, at para. 69. In many cases, taking this step is the bare minimum: MacDonald, at para. 71. Indeed, identification is generally more reliable than the complainant’s own statements because young people often misrepresent their age: George, at para. 9; Dragos (ONSC), at para. 48; MacDonald, at para. 69.⁴ The appellant’s argument that the complainant’s self-reports of age-related information were unreliable thus reinforces the trial judge’s conclusion that a reasonable person would have asked for identification.

63Third, the appellant’s argument wrongly assumes that he was entitled to initiate sexual activity if taking further steps in the moment would have been futile. This is not the law. Rather, because the steps the appellant took did not obtain compelling information that established with a high degree of certainty that the complainant was 16 or older, a reasonable person would have desisted until he could take other reasonable steps and form a reasonable belief: McDonald, at para. 70; Morrison, at paras. 107-108.

64By disproving the mistake of age defence, the Crown narrowed the blameworthy mental state analysis to four possible mental states, the first three of which inevitably lead to a conviction: W.G., at paras. 68-70, 81. The appellant argues that there must be a new trial because the trial judge did not find that he had one of these three mental states and instead convicted him for failing to take all reasonable steps. I disagree and would uphold the conviction because the trial judge’s findings establish that the appellant was reckless.

65As I have explained, recklessness is the state of mind of a person who is aware that his conduct risks bringing about a result that the criminal law prohibits but still proceeds: Morrison, at para. 100. The third mental state, subjective appreciation of the risk that the complainant is underage, is inherently reckless and inevitably leads to a conviction because the accused chooses to proceed with sexual activity with the complainant despite being aware of that risk: Carbone, at para. 125.

66The trial judge’s findings establish that the appellant was reckless because he was aware of the risk that the complainant was underage but proceeded anyway. As the trial judge found, the appellant initiated sexual activity even though he was unsure of the complainant’s age and was concerned that she might be underage.

67I acknowledge that, as the appellant submits, the trial judge’s reasons did not distinguish the mistake of age defence and the blameworthy mental state requirement. However, this does not impact the conviction because his findings still establish recklessness: R. v. Basso, 2024 ONCA 168, at paras. 44-45.

(d) The Trial Judge Properly Assessed the Evidence

68Finally, I reject the appellant’s arguments that the trial judge unevenly scrutinized his evidence and misapplied W. (D.) principles. The trial judge properly applied W. (D.) principles to the evidence without any uneven scrutiny.

69First, the trial judge did not unevenly scrutinize the appellant’s evidence. Rather, he preferred the complainant’s evidence that she told the appellant she was 15 and that he acknowledged she was 15 over the appellant’s contrary evidence because M.R confirmed the complainant’s evidence on this point. The trial judge also found that M.R.’s evidence was reliable. Preferring the complainant’s evidence over the appellant’s because reliable confirmatory evidence supports it is not uneven scrutiny: R. v. Ferguson, 2023 ONCA 870, at para. 24; R. v. Marahar, 2017 ONCA 930, at para. 6.

70I acknowledge that, as the appellant submits, the trial judge did not explain his acceptance of the complainant’s unconfirmed evidence that she told the appellant she was 15 when they first met. But nothing turns on this. The trial judge did explain his other finding that, as M.R. confirmed, the complainant also told the appellant that she was 15 on the day he initiated sexual activity and that he acknowledged she was 15. That finding sufficiently establishes that the appellant was concerned that the complainant might be underage and should have taken further steps to ascertain her age.

71I also disagree with the appellant’s argument that the trial judge failed to grapple with M.R.’s change of testimony. Contrary to the appellant’s argument, M.R. did not initially testify that the appellant said the complainant was 17. Rather, she initially could not remember whether the appellant and the complainant discussed age on March 2 before he initiated sexual activity. She then reviewed her police statement to refresh her recollection and testified that the appellant said that the complainant was 15. In cross-examination, M.R. responded affirmatively to a compound question asking if the appellant said that he was concerned that he was 10 years older than the complainant and that she was 17. In re-examination, M.R. reaffirmed that the appellant said that the complainant was 15. The trial judge reasonably found that M.R.’s cross-examination testimony was a misstatement and preferred her other testimony. As he reasoned, she gave that other testimony despite her loyalty to the appellant, who she believed did not deserve to be criminally punished.

72Second, the trial judge properly applied W. (D.). Consistent with the second branch of W. (D.), he found a reasonable doubt that the appellant believed that the complainant was underage despite rejecting the appellant’s evidence that he believed she was 16 or 17. He also thoroughly explained why neither the appellant’s testimony nor other evidence gave rise to a reasonable doubt that the appellant failed to take all reasonable steps. He based this finding not only on the complainant’s evidence that M.R. confirmed, but also on the appellant’s own admissions, including that he may have sold drugs to 14-year-olds who looked 16, and that he knew that the complainant lived in a group home and was driven places by group home workers instead of driving herself.

(2) The Trial Judge Properly Entered a Sexual Assault Conviction

73After finding the appellant guilty, the trial judge applied the Kienapple principle by entering a conviction on the sexual assault charge and staying the sexual interference charge. The appellant argues that the trial judge erred. He submits that the trial judge should have stayed the sexual assault charge and convicted him of sexual interference because the latter offence is more serious than the former.

74The practical consequence of the appellant’s argument is that the s. 753(1)(b) dangerous offender designation pathway would not be available. Section 753(1)(b) is one of four designation pathways, each of which has different criteria: R. v. Francis, 2023 ONCA 760, at para. 59. It applies to persons convicted of committing a subpart (b) serious personal injury offence who: (1) have shown an inability to control their sexual impulses; (2) are unlikely to change their behaviour in the future; and (3) are likely to cause injury, pain, or other evil in the future by failing to change their behaviour: Criminal Code, s. 753(1)(b); R. v. Sullivan (1987), 1987 CanLII 6853 (ON CA), 37 C.C.C. (3d) 143 (Ont. C.A.), at pp. 151-152. Sexual assault, but not sexual interference triggers this pathway because Parliament included the former, but not the latter, in the subpart (b) definition: R. v. R.D., 2017 ONSC 5258, at para. 7; Criminal Code, s. 752 (definition of “serious personal injury offence,” subpart (b)).

75I disagree with the appellant’s argument. Because sexual assault and sexual interference are equally serious, the Kienapple principle gave the trial judge the discretion concerning which count to enter a conviction on, and on which count to enter a stay. The trial judge properly chose to convict the appellant of the sexual assault count, and stay the sexual interference count, because that furthered Parliament’s purpose of making a distinct dangerous offender designation pathway available for sexual assault.

76The trial judge’s finding of guilt triggered the Kienapple principle because the charged offences, sexual interference and sexual assault, have substantially the same elements and were both made out by the same factual findings: R. v. S.J.M., 2009 ONCA 244, 247 O.A.C. 178, at paras. 8-9. The trial judge was thus required to convict the appellant of one charged offence and stay the other: R. v. Kinnear (2005), 2005 CanLII 21092 (ON CA), 198 C.C.C. (3d) 232 (Ont. C.A.), at para. 28.

77The Kienapple principle gives sentencing judges the discretion concerning which charged offence to convict the accused of and which to stay if the charged offences are equally serious: Kinnear, at para. 56; R. v. Layugan, 2016 ONSC 2077, 96 M.V.R. (6th) 257, at para. 76. Judges’ discretionary decisions in criminal cases are owed deference: R. v. Savoury (2005), 2005 CanLII 25884 (ON CA), 200 C.C.C. (3d) 94 (Ont. C.A.), at para. 26. Accordingly, these discretionary Kienapple determinations should be affirmed unless the sentencing judge errs in principle or exercises discretion unreasonably. Sentencing judges only lack discretion if one charged offence is more serious than the other. In those circumstances, the sentencing judge must convict the accused of the more serious offence and stay the less serious one: Kinnear, at para. 28.

78Kienapple uses maximum sentences as a tool to determine the seriousness of the offence because they are one of Parliament’s principal tools to do so: R. v. Loyer, 1978 CanLII 194 (SCC), [1978] 2 S.C.R. 631, at pp. 634-635; Friesen, at para. 96. Accordingly, offences are likely equally serious if they have the same maximum sentence: R. v. Patel, 2020 BCCA 92, at paras. 129-130.

79The trial judge reasoned that he was required to convict the appellant of sexual assault because that offence was more serious than sexual interference. This conclusion was erroneous. Rather, the trial judge had discretion concerning whether to convict the appellant of sexual assault or sexual interference because those offences are equally serious.

80The Supreme Court of Canada established in Friesen that sexual assault of a person under the age of 16 and sexual interference are equally serious. Friesen held that these offences should be treated similarly at sentencing because Parliament has established the same maximum sentences for both offences and they have similar elements: at paras. 119-120. While Friesen gave that guidance to correct judicial treatment of sexual interference as less serious than sexual assault, treating sexual interference as more serious than sexual assault of a person under the age of 16 is just as erroneous: Patel, at paras. 124, 129-131. The pre-Friesen cases cited by the trial judge, the Crown, and the appellant that treat one of these offences as more serious than the other are no longer good law: R.B., at para. 10; R. v. M., 2018 ONSC 746, at para. 41; R. v. K.S., 2018 ONSC 5678, at para. 22.

81Despite erroneously concluding that he was required to enter a sexual assault conviction, the trial judge also reasoned that doing so was appropriate. As he explained, this choice furthered Parliament’s purpose of treating that offence as a separate category of serious personal injury offence that triggers a distinct dangerous offender designation pathway in s. 753(1)(b) of the Criminal Code.

82I would defer to this discretionary decision. The trial judge reasonably concluded that staying the sexual interference count as the appellant proposed would have undercut Parliament’s purpose by depriving the Crown of the s. 753(1)(b) designation pathway even though it had proved that the appellant committed sexual assault. I reject the appellant’s reliance on R.D., which discounted the significance of advancing this legislative purpose by reasoning that the Crown could succeed on other designation pathways: at paras. 35-36. R.D.’s reasoning is erroneous because it disregards Parliament’s decision to adopt distinct criteria for each designation pathway that do not fully overlap: Francis, at para. 59.

83I also reject the appellant’s argument that the trial judge should have entered a sexual interference conviction because its elements, unlike those of sexual assault, recognize that the victim was a minor. The trial judge considered this factor but nonetheless prioritized furthering Parliament’s purpose of treating sexual assault as a separate category of serious personal injury offence that triggers a distinct designation pathway. His discretionary decision to do so is entitled to deference. It is also not inconsistent with the line of cases the appellant cites, which do not stand for the proposition that trial judges lack discretion to give weight to other factors and reach a different conclusion, and most of which did not involve a dangerous offender application: R. v. F.L., 2016 ONSC 1215, at para. 23; R. v. Hussein, 2017 ONSC 4202, at para. 46; R.D., at paras. 21, 37.⁵ As I have explained, the only case that did, R.D., erroneously disregarded Parliament’s decision to adopt distinct criteria for each dangerous offender designation pathway.

(3) The Dangerous Offender Designation and Sentence

84Dangerous offender proceedings have two stages: designation and penalty. At the designation stage, the court must designate the person as a dangerous offender if any of the four designation pathways are satisfied. Those pathways each have different criteria but share four common elements: (1) the person has been convicted of and must be sentenced for a serious personal injury offence, (2) this predicate offence is part of a broader pattern of violence, (3) the person must pose a high likelihood of harmful recidivism, and (4) the violent conduct is intractable. Future treatment prospects are relevant to the third and fourth elements. After designation, the court must proceed to the penalty stage and determine whether to impose a determinate sentence, a determinate sentence plus a long-term supervision order, or an indeterminate sentence. R. v. Boutilier clarified that indeterminate sentences are not presumptively fit and may only be imposed if less coercive sentences would not adequately protect the public: 2017 SCC 64, [2017] 2 S.C.R. 936, at paras. 26-27, 42-45, 64-77; see also Francis, at paras. 58-62.

85The appellant challenged the trial judge’s decision to designate him as a dangerous offender and impose an indeterminate sentence. He submitted that the trial judge made two legal errors by failing to consider future treatment prospects at the designation stage and erroneously presuming at the penalty stage that an indeterminate sentence is appropriate. He also challenged the trial judge’s factual findings concerning the appellant’s treatment prospects and evidence of age-related burnout.

86We did not call on Crown counsel at the oral hearing, but relied on their written submissions, because it appeared to us then that none of these grounds of appeal were meritorious or would impact the result. That is still our view. The trial judge issued a carefully reasoned 81-page, 292-paragraph decision that thoroughly analyzed the evidence and applied the proper legal principles to it. He considered the appellant’s future treatment prospects at the designation stage. While he erroneously stated that an indeterminate sentence is presumptively appropriate because he did not have the benefit of Boutilier, this statement has no impact on the verdict because the trial judge otherwise followed Boutilier’s approach by thoroughly analyzing whether less coercive sentences would adequately protect the public: R. v. Paxton, 2018 ABCA 386, 78 Alta. L.R. (6th) 242, at paras. 17-21. He also reasonably exercised his discretion to reject general statistical evidence of age-related burnout as speculative and inapplicable to the appellant’s specific circumstances: R. v. Poutsoungas (1989), 1989 CanLII 7104 (ON CA), 49 C.C.C. (3d) 388 (Ont. C.A.), at p. 390, leave to appeal refused, [1992] S.C.C.A. No. 5.

87However, we learned after the hearing that the forensic psychiatrist who assessed the appellant, Dr. Woodside, gave concerning testimony in another dangerous offender case. That testimony revealed that his practice in dangerous offender cases was to treat the analysis section of his reports as boilerplate and review that section carelessly. Before considering the impact of this information, we requested further written submissions from both the Crown and defence. Upon receiving the written submissions, we determined that notwithstanding the positions taken by counsel, this court is under an obligation to consider the impact of Dr. Woodside’s evidence on the ultimate sentence imposed on the appellant.

88It is my view that, while this testimony does not undermine the reasonableness of the trial judge’s decision to designate the appellant as a dangerous offender, it does require a new hearing on penalty. The trial judge relied on Dr. Woodside’s apparent reliability to impose an indeterminate sentence. He may well not have reached the same conclusion if he had known of Dr. Woodside’s careless practice.

(a) Dr. Woodside’s Concerning Testimony

89Caleb Nettleton was convicted of robbery in 2022 and the Crown applied to designate him as a dangerous offender. Dr. Woodside assessed him and submitted an initial and amended assessment report to the Superior Court of Justice. Because those reports contained obvious errors, Mr. Nettleton and court-appointed amicus counsel challenged his qualification as an expert and Dr. Woodside testified for two days at a hearing concerning the admissibility of his evidence: Nettleton, at paras. 6-8.

90Dr. Woodside’s Nettleton testimony reveals that he employed a careless practice. He admitted that his practice is to review the analysis section of his dangerous offender reports less carefully. He attempted to justify this practice by characterizing the analysis section as boilerplate: Nettleton, at paras. 64(vi) and (vii).

91This careless practice in dangerous offender cases contributed to numerous serious errors that Dr. Woodside made in Mr. Nettleton’s case. Dr. Woodside admitted that he copy-pasted almost the entire “Opinions and Recommendation” section of his reports concerning Mr. Nettleton from another report concerning a different person. He further admitted that any similarities between Mr. Nettleton’s circumstances and the content of that section were a coincidence. As a result, his reports incorrectly diagnosed Mr. Nettleton with disorders he did not have, falsely attributed gang associations and criminal offences to Mr. Nettleton, mischaracterized his index offence, and misstated his risk of reoffending test scores. He testified that he did not notice these errors because he was following his practice in dangerous offender cases of treating the analysis section as boilerplate and reviewing it less carefully: Nettleton, at paras. 12-39, 64(vi) and (vii).

92Dr. Woodside also admitted that he did not carefully review his work and was unwilling to reconsider his opinion after he learned of his errors. He testified that he did not review his initial report to see if it contained additional errors after the Crown alerted him to several specific errors in it. Instead, he submitted an amended report that fixed only the errors the Crown alerted him to and left additional errors uncorrected: Nettleton, at para. 17. Despite reviewing his original and modified reports before the hearing, he did not notice that the vast majority of the “Opinions and Recommendations” section in both reports referred to someone other than Mr. Nettleton: at para. 63. He also did not request time to reconsider his opinion when he learned of his errors. Instead, he testified that it was immediately obvious to him that those errors did not impact his opinion: at para. 65. In his testimony, he tried to minimize his errors by pointing to coincidental similarities between Mr. Nettleton’s actual circumstances and the copy-pasted content about a different person: at para. 64(ii).

93Justice Laura Bird, of the Ontario Superior Court of Justice in Newmarket, excluded Dr. Woodside’s evidence in Nettleton. She found that he was biased because he was incapable of objectively evaluating any frailties in his assessment. Instead, he presumed that his opinion was accurate and tried to minimize his errors when confronted with them. She further found that his errors raised serious concerns about the reliability of his evidence, which outweighed its probative value: Nettleton, at paras. 60-74.

(b) Dr. Woodside’s Testimony Requires a New Penalty Hearing

94Dr. Woodside’s Nettleton testimony and Justice Bird’s findings concerning that testimony raise three issues: (1) whether they are a proper new issue in this appeal, (2) their admissibility as fresh evidence, and (3) their impact on the reasonableness of the verdict. I conclude that we properly raised the Nettleton testimony and Justice Bird’s findings concerning it as a new issue and that they are admissible as fresh evidence because they bear on and could reasonably be expected to impact the trial judge’s decision in this case. I also conclude that the Nettleton testimony and Justice Bird’s findings concerning it require a new hearing on penalty. I reach this conclusion because the trial judge may well not have relied on Dr. Woodside’s testimony to impose an indeterminate sentence had he known of Dr. Woodside’s careless practice in dangerous offender cases. To reiterate, I would uphold the trial judge’s designation to designate the appellant as a dangerous offender because the designation did not depend on Dr. Woodside’s evidence.

(i) The Testimony and Findings Are a Proper New Issue

95Appellate courts may become aware of new issues throughout the appeal process, including after the hearing. They have discretion to raise these issues where failing to do so would risk an injustice, including where doing so requires receiving fresh evidence. Before doing so, they must preliminarily assess the new issue and determine that there is good reason to believe that failing to raise it would risk an injustice. This test preserves and safeguards appellate courts’ impartiality: R. v. Mian, 2014 SCC 54, [2014] 2 S.C.R. 689, at paras. 40-48, 55; R. v. Suter, 2018 SCC 34, [2018] 2 S.C.R. 496, at para. 30; R. v. Irwin (1977), 1977 CanLII 2071 (ON CA), 36 C.C.C. (2d) 1 (Ont. C.A.), at p. 3.

96The risk of a miscarriage of justice satisfies this test: Mian, at para. 44. As my former colleague Stephen Goudge observed in his report of the Inquiry into Pediatric Forensic Pathology in Ontario (Toronto: Ontario Ministry of the Attorney General, 2008) (“Goudge Report”), reliance on unreliable expert evidence can risk a miscarriage of justice: vol. 3, at p. 470; see also White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182, at para. 12.

97Appellate courts evaluating whether to raise a new issue must also consider whether the record is sufficient to resolve the issue and ensure procedural fairness: Mian, at paras. 41, 51-52. They ensure procedural fairness by properly notifying the parties of the issue as soon as is practically possible and providing them an opportunity to make submissions. The court can determine the form of those submissions, but parties also have a role to play and may request oral submissions, further written argument, or both. The court must consider any such request if made: Mian, at paras. 54, 57-59.

98We raised Dr. Woodside’s Nettleton testimony as a new issue because, on a preliminary assessment, we had good reason to believe that failing to do so would risk a miscarriage of justice. We also determined that the record was sufficient to resolve the issue and provided procedural fairness by notifying the parties and inviting and receiving additional written submissions. While the Crown has not contested the appropriateness of our decision to do so, I explain our decision below for transparency and to provide guidance for future cases.

99First, the Nettleton testimony creates a risk of a miscarriage of justice because it places Dr. Woodside’s reliability in question and would have strengthened the defence’s challenge to his reliability. Carelessness, failure to keep an open mind, and reluctance to admit obvious errors are concerning red flags that put an expert’s reliability in question: Goudge Report, vol. 1 at pp. 24-26, vol. 3 at pp. 485-486; see also Truscott (Re), 2007 ONCA 575, 225 C.C.C. (3d) 321, at para. 313; R. v. France, 2017 ONSC 2040, 36 C.R. (7th) 293, at paras. 45-50. Dr. Woodside’s testimony raised those concerning red flags: Nettleton, at paras. 62, 66, 71. He admitted that his practice in dangerous offender cases was to review the opinion section of his reports less carefully and that he missed obvious errors as a result. He also failed to re-evaluate his opinion after learning of those errors and instead tried to minimize them. As I will explain in greater detail further in these reasons, this testimony would have strengthened the defence’s case that Dr. Woodside’s evidence was not reliable, which was a key defence argument at the dangerous offender hearing.

100These red flags are especially concerning because, as with the pediatric forensic pathology expert evidence the Goudge Report considered, the penal consequences of accepting unreliable expert evidence in dangerous offender cases are severe. Indeterminate sentences impose “profoundly devastating” consequences: R. v. Lyons, 1987 CanLII 25 (SCC), [1987] 2 S.C.R. 309, at p. 339. Parliament has determined that psychiatric assessments should play a critical role in judges’ decisions to impose these consequences by requiring courts to order their performance in every dangerous offender proceeding and requiring the assessor to file an assessment report with the court before the court can rule on a dangerous offender application: Boutilier, at para. 39, citing Criminal Code, ss. 752.1, 753(1); R. v. Neve, 1999 ABCA 206, 137 C.C.C. (3d) 97, at paras. 182, 185. The psychiatric assessor’s report and testimony are essential to ensure that sentencing judges accurately assess the person before the court: R. v. Jones, 1994 CanLII 85 (SCC), [1994] 2 S.C.R. 229, at pp. 289-292. Courts have a special responsibility to critically scrutinize psychiatric assessment expert evidence to ensure its reliability: Neve, at para. 186; R. v. George, 2016 ONCA 464, 349 O.A.C. 347, at para. 75, leave to appeal refused, [2016] S.C.C.A. No. 377.

101Dr. Woodside’s cavalier practice regarding the analysis section of his dangerous offender reports merits that critical scrutiny. He characterized that section as boilerplate. It is not. Rather, I agree with Justice Bird that this section is “very significant”: Nettleton, at para. 64(vii). It is the very section that judges rely on to determine whether to designate the person before the court as a dangerous offender and impose an indeterminate sentence. It is unsettling that Dr. Woodside does not appreciate the significance of this report section or the devastating human consequences that his careless approach to it risks causing.

102Raising Dr. Woodside’s testimony in Nettleton as a new issue fosters the better functioning of the justice system and public confidence in that system. As the Goudge Report stressed, courts are the justice system’s last line of defence against unreliable expert evidence: vol. 1, at p. 48. Maintaining that line of defence’s effectiveness requires that all justice system participants, including courts, pay close attention to judicial decisions that expose serious concerns about an expert’s reliability. Failing to do so can have severe consequences. As early as 1991, a trial judge found that a leading pediatric forensic pathologist, Dr. Charles Smith, provided unreliable evidence: R. v. M. (S.), [1991] O.J. No. 1383 (Prov. Ct.). The Goudge Report found that this decision was a “danger signal” that should have prompted a re-evaluation of Dr. Smith’s work but did not because Dr. Smith’s supervisor never reviewed it. As a result, Dr. Smith continued to perform unreliable assessments for more than a decade that led to at least one wrongful conviction: vol. 1, at pp. 5, 10, 23-24, 31; vol. 2 at pp. 12-13. Grappling with red flags that prior decisions identify improves the functioning of the justice system and public confidence in it by ensuring that history does not repeat itself: vol. 1, at p. 20.

103It is especially important to scrutinize the red flags Nettleton raised because other judges have also criticized Dr. Woodside for similar conduct. As the Goudge Report confirms, repeated expressions of concern by courts and other justice system participants about an expert’s work are red flags that should raise “alarm bells”: vol. 1, at p. 24; see also pp. 25-31. That is the case here. For example, while still a Superior Court judge, my now-colleague Justice Nordheimer raised an early red flag regarding Dr. Woodside’s opinions and conclusions: R. v. Davis, 2003 CarswellOnt 6688 (S.C.), at para. 18. While Justice Nordheimer used measured language, he nonetheless found that Dr. Woodside expressed his opinion overconfidently, failed to address contrary evidence, and failed to re-evaluate his opinion when he learned that some of its factual foundations were not proved by the Crown: Davis, at paras. 22, 29-31. These errors are very similar to those Nettleton exposed. Likewise, Justice Molloy criticized Dr. Woodside for his “unusual” practice of failing to preserve his interview notes in unaltered form. She found that this practice frustrates cross-examination although she accepted that he did not intend that effect and ultimately accepted his opinion: R. v. Minassian, 2021 ONSC 1258, at para. 254. These decisions rebut the Crown’s argument that concerns about Dr. Woodside’s testimony are restricted to the Nettleton case.

104Second, we determined that Dr. Woodside’s testimony as described in the Nettleton reported decision and Justice Bird’s findings in that same decision were sufficient to resolve the issue. It would have been preferable if the Crown, also a party in Nettleton, submitted the transcript of Dr. Woodside’s Nettleton testimony to the court. We encourage litigants to follow this practice in future cases so that, should it be necessary, this court can verify that a trial judge’s description of witness testimony is accurate. Nonetheless, we are satisfied that Nettleton’s description of Dr. Woodside’s testimony contains all the relevant facts as Mian requires because the Crown neither challenged the accuracy of that description nor submitted that the testimony transcript or any additional evidence was required: at para. 51.

105Third, we ensured procedural fairness by notifying the parties and inviting additional submissions. Mian recognizes that new issues can arise after the hearing: at para. 55. That is what happened here: Because counsel did not alert us to the Nettleton testimony before or during the hearing, we only learned of it after the hearing while preparing reasons. Consistent with Mian and cases applying it, we notified the parties of this issue and requested written submissions concerning it following the hearing and as soon as practically possible after learning of it: see, e.g., R. v. Phinn, 2015 NSCA 27, 321 C.C.C. (3d) 386, at para. 24 and Appendix “B”; R. v. Naistus, 2019 SKCA 4, at para. 5. The notice to counsel is attached as Appendix “A” to these reasons. It provided enough information for the parties to respond by informing them of the Nettleton decision describing Dr. Woodside’s testimony and identifying the issue as whether and how that testimony bore on the dangerous offender portion of the appeal. Both parties filed those submissions and neither requested longer written submissions or a further oral hearing. We agree with the parties that their written submissions gave them a full opportunity to respond.

(ii) The Testimony and Findings Are Admissible as Fresh Evidence

106I next consider whether to admit Dr. Woodside’s Nettleton testimony and Justice Bird’s findings concerning that testimony as fresh evidence. I apply the fresh evidence test because this court’s decisions establish that it applies to both the testimony and the findings. In R. v. Abbey, this court held that an expert’s testimony in another case may be admitted as fresh evidence, including where, as here, it is described in a judicial decision: 2017 ONCA 640, 140 O.R. (3d) 40, at paras. 37-40, 45.⁶ Likewise, in its additional submissions the Crown cited R. v. Ghorvei, which held that the fresh evidence test governs whether an appellate court can consider judicial findings of fact concerning a witness that are contained in a decision in a different case: (1999), 49 O.R. (3d) 63 (C.A.), at paras. 22-37. However, Justice Bird’s legal analysis in Nettleton is not subject to the fresh evidence test because it is not evidence. Rather, it is persuasive legal authority: see, e.g., Karatzoglou v. Commisso, 2023 ONCA 295 (in Chambers), at paras. 20, 22.

107Fresh evidence is admissible in dangerous offender appeals if it meets the following five requirements:

Due diligence: The evidence could not have been adduced at the hearing through due diligence;
Relevance: The evidence bears on a decisive or potentially decisive issue;
Admissibility: The evidence is admissible under the rules of evidence;
Credibility: The evidence is reasonably capable of belief; and,
Impact: If believed, the evidence would reasonably be expected to affect the result when considered with the other evidence.

See R. v. Sipos, 2014 SCC 47, [2014] 2 S.C.R. 423, at paras. 28-29; R. v. Sawyer, 2015 ONCA 602, 127 O.R. (3d) 686, at para. 70; Truscott, at para. 92.

108I would admit the testimony and Justice Bird’s findings concerning it as fresh evidence. They easily satisfy the due diligence and credibility requirements, which the Crown does not contest. The appellant’s counsel could not have adduced them before the trial judge because they postdate the hearing, and they are credible because Dr. Woodside made admissions against his own interest. The testimony and Justice Bird’s findings concerning it also meet the remaining three requirements. They are relevant, admissible, and impactful because they are impeachment material that could reasonably be expected to undermine Dr. Woodside’s reliability and thus affect the result.

109First, Dr. Woodside’s testimony and Justice Bird’s findings concerning it are relevant. Dr. Woodside’s reliability was a potentially decisive issue because the trial judge relied heavily on Dr. Woodside’s apparent thoroughness. The testimony and Justice Bird’s findings concerning it bear on that issue by showing that Dr. Woodside’s specific practice of preparing the analysis section of dangerous offender reports was careless and unreliable. This practice is propensity evidence of discreditable conduct that makes it more likely that Dr. Woodside was also careless and unreliable in preparing the appellant’s dangerous offender report: see, e.g., R. v. Scopelliti (1981), 1981 CanLII 1787 (ON CA), 34 O.R. (2d) 524 (C.A.), at p. 536; R. v. Gonzague (1983), 1983 CanLII 3541 (ON CA), 4 C.C.C. (3d) 505 (Ont. C.A.), at pp. 510-511; Ghorvei, at para. 29; R. v. Khan (2004), 2004 CanLII 66305 (ON SC), 189 C.C.C. (3d) 49 (Ont. S.C.), at para. 52. This inference is strongest when it comes to the analysis section of the report, but the careless practice evidence also supports an inference that Dr. Woodside was careless concerning the rest of his report and evidence: Nettleton, at para. 72.

110I disagree with the Crown’s contrary argument that the Nettleton testimony and Justice Bird’s findings only concern case-specific errors that have no bearing on Dr. Woodside’s reliability in this case. The Crown is correct that generalized evidence of and judicial findings regarding an expert’s incompetence concerning unrelated issues in other cases has little to no relevance: R. v. Karaibrahimovic, 2002 ABCA 102, 164 C.C.C. (3d) 431, at paras. 5, 8-12; R. v. Trotta (2004), 2004 CanLII 60014 (ON CA), 23 C.R. (6th) 261 (Ont. C.A.), at paras. 35-38. But that principle does not apply here because the Nettleton testimony and Justice Bird’s findings are not generalized evidence of unrelated incompetence. Instead, they reveal a specific pattern of conduct, namely that Dr. Woodside’s practice in dangerous offender cases was to review the analysis section of reports less carefully. That careless practice is distinct from the case-specific errors like extensive copy-pasting that it contributed to in Nettleton. I agree with Professor David Paciocco, now Paciocco J.A. of this court, that such a specific pattern of careless conduct may be relevant to the expert’s quality of performance in a given case: David Paciocco, “Taking a ‘Goudge’ Out of Bluster and Blarney: An ‘Evidence-Based Approach’ to Expert Testimony,” (2009) 13 Can. Crim. L. Rev. 135, at p. 143.

111Second, the testimony and Justice Bird’s findings concerning it would be admissible to impeach Dr. Woodside. An expert’s testimony in another proceeding may be admissible if it is relevant to impeach that expert’s reliability: Abbey, at para. 45. This testimony is admissible for that purpose because it shows that Dr. Woodside employed a careless practice in preparing dangerous offender reports.

112The Crown’s contrary argument that Justice Bird’s findings in Nettleton concerning Dr. Woodside’s testimony are inadmissible overlooks the distinction between testimonial evidence of discreditable conduct and judicial findings concerning that conduct. As this court has held, underlying evidence of discreditable conduct may be admitted for impeachment purposes regardless of whether judicial findings based on that underlying evidence are also admissible: R. v. Baksh, 2022 ONCA 481, at para. 37, citing Ghorvei, at para. 29; Abbey, at para. 45. Here, Dr. Woodside’s Nettleton testimony is evidence of discreditable conduct, so it is admissible regardless of whether Justice Bird’s findings concerning that testimony are also admissible.

113Because Dr. Woodside’s underlying testimony is admissible, this court may also consider Justice Bird’s assessment of it. The Crown’s contrary reliance on Ghorvei is misplaced because that case does not create an absolute prohibitive rule barring courts from considering judicial assessments of witness testimony in other cases: Kolapully v. Myles, 2024 ONCA 350, at para. 30 n.3. Rather, Ghorvei only prohibits considering those judicial assessments if the court lacks a proper factual foundation to evaluate them: at para. 31; see also Bruff-Murphy v. Gunawardena, 2017 ONCA 502, 138 O.R. (3d) 584, at para. 32, leave to appeal refused, [2017] S.C.C.A. No. 343; Kolapully, at para. 30. That prohibition does not apply where the court admits other evidence that provides the necessary factual foundation: R. v. Holloway, 2021 ONSC 6136, 496 C.R.R. (2d) 234, at paras. 91, 93-94, 98; see also Desbiens v. Mordini, 2004 CanLII 41166 (Ont. S.C.), at para. 274.⁷ That is the case here: The admission of Dr. Woodside’s testimony provides a proper factual foundation to consider Justice Bird’s assessment of that testimony.

114This reading of Ghorvei only makes sense because, as the Goudge Report underscores, heeding prior judicial decisions that expose reliability red flags is necessary to prevent miscarriages of justice. Respecting this imperative requires enabling subsequent triers of fact to consider those judicial assessments where appropriate: Brian Manarin, “Watching Pinocchio’s Nose: Revisiting Previous Incredibility Findings When Considering Expert Testimony” (2023) 71 Crim. L.Q. 97, at pp. 104, 124; see also Kolapully, at para. 30 n.3. Ghorvei appropriately cautions that those assessments are opinions that do not bind the trier of fact: at para. 31. But because judges make those assessments, they “are entitled to more weight than what any old third party might happen to think about a witness’s credibility” or reliability: U.S. v. Dawson, 434 F.3d 956 (7th Cir. 2006), at p. 958. This is so because, unlike other third parties, judges are constitutionally independent, swear to render justice impartially, and are best placed due to their training and experience to evaluate testimony: R. v. S. (R.D.), 1997 CanLII 324 (SCC), [1997] 3 S.C.R. 484, at paras. 94, 116-117, per Cory J.; R. v. Kruk, 2024 SCC 7, at paras. 75, 83.

115Where Ghorvei’s prohibition does not apply, the court may consider defence-led judicial assessments of witness testimony if their probative value is not substantially outweighed by their prejudicial effect: R. v. Grant, 2015 SCC 9, [2015] 1 S.C.R. 475, at para. 19. As in Ghorvei and Bruff-Murphy, courts may exclude these assessments if they unduly divert attention from the main issues, require excessive inquiry into collateral issues, and/or are not supported by their underlying factual foundation: Ghorvei, at paras. 31-33; Bruff-Murphy, at para. 32. But courts should also consider whether the judicial assessments are needed to give the trier of fact “a fair, balanced picture of the witnesses’ reliability” and credibility and are sufficiently probative to potentially affect the outcome: R. v. Edwards (John) (1991), 93 Cr. App. R. 48, at p. 56; see also R. v. Edwards (Maxine), [1996] 2 Cr. App. R. 345, at pp. 350-351. This may be the case if, for instance, a trial judge finds in another case that similar evidence given by a witness who is key to the Crown’s case is unreliable or false: Edwards (John), at p. 57. And if the witness in question is an expert, it is open to the court to find that the judicial assessments are probative because they enable the court to assess and guard against the risk of a miscarriage of justice based on unreliable expert evidence: Kolapully, at para. 30 n.3.

116I would consider Justice Bird’s assessment of Dr. Woodside’s testimony here because it is highly probative and not significantly prejudicial. Justice Bird is an experienced criminal trial judge whose decision exposed concerning red flags regarding Dr. Woodside’s expert testimony. Her assessment of that testimony can only benefit this court by giving it a fair and balanced picture of Dr. Woodside’s reliability. Acquiring that balanced picture is crucial because Dr. Woodside was key to the Crown’s penalty stage case. The Crown has not identified any serious countervailing prejudice. Unlike in Ghorvei, the Crown does not contest that Justice Bird properly founded her assessment on Dr. Woodside’s testimony. Further, unlike in Bruff-Murphy, there is no risk of diversion or excessive inquiry into collateral issues because the Crown does not contest that Dr. Woodside’s testimony in Nettleton was unreliable.

117Third, the testimony and Justice Bird’s findings concerning it meet the impact requirement. The trial judge relied on Dr. Woodside’s evidence to impose an indeterminate sentence because it appeared thorough. It is reasonable to expect that the Nettleton testimony and findings would affect the result because, by showing that Dr. Woodside employed a careless practice in preparing dangerous offender reports, it undercuts that apparent thoroughness.

118I disagree with the Crown’s argument that the testimony and findings could have no impact because the specific errors that Dr. Woodside admitted to making in the appellant’s case did not impact the result. This argument is flawed because it considers those specific errors in isolation from Dr. Woodside’s careless practice of preparing dangerous offender reports. The appellant argued at the dangerous offender hearing that those specific errors undermined the reliability of Dr. Woodside’s evidence. While the trial judge rejected that argument, he did not have the benefit of the testimony showing Dr. Woodside’s careless practice in preparing dangerous offender reports. It is reasonable to expect that the trial judge would have reached a different conclusion if he considered the specific errors the appellant’s counsel identified together with that careless practice.

(iii) The Testimony and Findings Require a New Penalty Hearing

119Appellate courts that admit fresh evidence may allow the appeal if that evidence renders the designation or penalty unreasonable. Courts assess the impact of the fresh evidence on the verdict in light of the entire record: Sipos, at para. 42. This assessment is case-specific and issue-specific. It depends on the evidence at the hearing, the parties’ arguments, and the reasoning of the trial judge. In cases where fresh evidence challenges an expert’s competence, courts look to whether the defence cross-examination and arguments put competence in issue: Trotta, at paras. 32-38.

120I would allow the appeal concerning the penalty because the Nettleton testimony and Justice Bird’s findings concerning it, together with the record in this case, render the trial judge’s decision to impose an indeterminate sentence unreasonable. Reviewing the entire record demonstrates that the trial judge may well not have relied on Dr. Woodside’s evidence to impose this sentence if he had known of Dr. Woodside’s careless practice.

121As I explained earlier in these reasons, Dr. Woodside’s evidence was critical to the Crown’s case and the trial judge’s decision concerning the penalty stage. Dr. Woodside was the only expert who testified, and his evidence strongly supported the Crown’s position. The defence challenged his reliability, arguing that his failure to both perform a risk assessment test carefully and notice the multiple errors he made when reviewing his report undermined his reliability. Cross-examination exposed additional errors, including, as in Nettleton, copy-pasting inaccurate content concerning a different person into the analysis section of the report and failing to notice this error. The Crown urged the trial judge to accept Dr. Woodside’s evidence by characterizing his errors as one-off slip-ups of an “extremely well respected” and experienced expert. The trial judge agreed, accepted Dr. Woodside’s evidence because he appeared thorough, and treated that evidence as the primary basis of his penalty decision. He stated that his reasons “give effect” to Dr. Woodside’s pessimism about any form of release for the appellant.

122The trial judge may well have treated Dr. Woodside’s evidence as unreliable and not accepted it if he had known of Dr. Woodside’s careless practice. Dr. Woodside’s Nettleton testimony revealed his practice was to treat the analysis section of dangerous offender reports as boilerplate and review it less carefully. As I have explained, this careless practice is a concerning red flag. It supports an inference that he was also careless in the appellant’s case, especially in the analysis section, but also in the rest of his report and evidence. The admission of that testimony would have confirmed the defence argument that he was unreliable. It would have showed that the specific errors the defence exposed were not one-off mistakes of a dedicated and thorough professional as the Crown argued, but rather consequences of his careless and unprofessional practice.

123The Nettleton testimony and Justice Bird’s findings concerning it would also have undermined the Crown’s argument that the trial judge could rely on Dr. Woodside’s evidence because he was very well-respected and experienced. An expert who routinely treats as boilerplate and takes a careless approach towards a very significant section of a report that judges may rely on to impose profoundly devastating sentencing consequences has breached his duty to the court and lost his way: Nettleton, at paras. 64(vi)-(vii), 71; Goudge Report, vol. 1, pp. 24, 26. Such an expert is not someone who can be easily trusted, much less treated as persuasive as the law requires: Abbey, at para. 119. That Dr. Woodside still employed this practice despite having performed over 160 dangerous offender assessments at the time of Nettleton compounds concerns about his reliability. It is inexcusable for a repeat player to follow this careless practice case after case after case.

124The Nettleton testimony and Justice Bird’s findings render the penalty decision unreasonable because, as in Nettleton, there was no other expert evidence before the trial judge to confirm Dr. Woodside’s reliability. As the trial judge commented, Dr. Woodside’s evidence was key to the penalty decision because he was the sole expert and there was no competing opinion. Dr. Woodside was also the sole expert in Nettleton, and Justice Bird excluded his evidence because his unreliable and careless practices made it unsafe to “entirely depend[]” on him: at para. 71. While her decision concerned admissibility and not weight, the same reasoning makes it unsafe to give weight to Dr. Woodside’s evidence in this case. Parliament has signalled that psychiatric assessments play a critical role in judges’ decisions to impose indeterminate sentences, and courts have a special responsibility to closely scrutinize those assessments: Neve, at paras. 182-186. Because the Nettleton testimony and Justice Bird’s findings coupled with the specific errors the defence identified undermined Dr. Woodside’s reliability and the Crown did not adduce other expert evidence capable of confirming it, it would be unsafe to rely on that evidence to impose an indeterminate sentence.

125I reach this conclusion despite the position taken by the appellant’s appellate counsel that the Nettleton testimony and Justice Bird’s findings do not impact the trial judge’s decision. That position merits respectful attention but does not bind us. This court must determine for itself whether the sentence is appropriate in light of the Nettleton testimony and findings: R. v. Scholz, 2021 ONCA 506, 156 O.R. (3d) 561, at para 36, citing R. v. Barabash, 2015 SCC 29, [2015] 2 S.C.R. 522, at para. 54. We must depart from counsel’s position here because it is in tension with the position of the appellant’s trial counsel, who argued that Dr. Woodside’s errors undermined his reliability. As I have explained, the Nettleton testimony and findings confirm that argument.

126In reaching this conclusion, I do not mean to be critical of the trial judge. He wrote a thorough and well-reasoned decision, instructed himself on the need to critically assess Dr. Woodside’s evidence, and reasonably applied that legal principle to the evidence. His decision to accept Dr. Woodside’s evidence despite the specific errors the appellant exposed was reasonably based on what he knew at the time of his decision. If he had the benefit of the Nettleton testimony and Justice Bird’s findings, he may well have applied that same legal principle to reach a different conclusion, just as Justice Bird did in Nettleton.

127I also wish to be clear that fresh evidence of Dr. Woodside’s careless practice will not require a new hearing in every case or concerning every issue. Appellate review is case-specific and issue-specific. In this case, the defence challenge to Dr. Woodside’s reliability at trial showed that reliability was a live issue and that the careless practice evidence, together with the specific errors the defence exposed, impacted the sentence. The trial judge’s acceptance of Dr. Woodside’s evidence based on its apparent reliability and heavy reliance on it to impose an indeterminate sentence confirmed the significance of this issue, and the absence of any other expert evidence rendered reliance on Dr. Woodside unsafe. This combination of compelling factors demonstrated that the trial judge may well have reached a different result if he had the benefit of the fresh evidence of Dr. Woodside’s careless practice. The result may well be different in other cases, depending on all the circumstances, including but not limited to if the defence did not challenge Dr. Woodside’s reliability and/or expose any errors, his opinion was limited in scope, the sentencing judge relied less heavily on it, or other expert evidence confirmed his testimony: Trotta, at paras. 32-38. Those factors may be capable of demonstrating that Dr. Woodside’s careless practice does not undermine his considerable experience as a forensic psychiatrist.

128My conclusion that the Nettleton testimony and Justice Bird’s findings concerning it do not undermine the reasonableness of the dangerous offender designation demonstrates the issue-specific nature of appellate review. I would affirm the designation because neither the appellant’s designation-stage arguments nor the trial judge’s rejection of them turned on the reliability of Dr. Woodside’s evidence. The appellant did not contest his diagnoses, significant criminal record, and difficulties addressing his risk to others. Instead, he argued that he should not be designated a dangerous offender because the index offence was neither a serious personal injury offence, nor part of a pattern of repetitive or aggressive behaviour under Criminal Code ss. 753(1)(a)(i)-(ii). These arguments hinged on the legal characterization of the index offence, not Dr. Woodside’s evidence. The trial judge rejected these arguments by applying the law to the facts he found concerning the index offence. The designation is safe because the trial judge would have reached the same conclusion even if he found that Dr. Woodside’s evidence was unreliable.

129 Section 759(3)(a)(ii) of the Criminal Code authorizes this court to order a new dangerous offender hearing with any directions it considers appropriate, including by ordering a rehearing on penalty only if the designation is not erroneous: R. v. Avadluk, 2024 NWTCA 2, at paras. 51-52. I would do so here because the Nettleton testimony and Justice Bird’s findings concerning it impact the reasonableness of the penalty but not the designation. I would also direct a fresh s. 752.1 Criminal Code assessment by a different assessor than Dr. Woodside. This is necessary to ensure public confidence in the result and to avoid time-consuming and distracting cross-examination concerning Dr. Woodside’s reliability: Nettleton, at para. 72.

(4) Credibility Assessment at Sentencing

130While it does not impact my decision, I am troubled by Dr. Woodside’s testimony that the appellant’s expressions of willingness to receive treatment should not be believed because he would say anything to avoid an indeterminate sentence. To provide guidance, I wish to clarify that this testimony was improper. The Crown has the burden to prove every applicable dangerousness criterion and any other aggravating facts beyond a reasonable doubt: Boutilier, at para. 36 & n.1; R. v. Pearson, 1992 CanLII 52 (SCC), [1992] 3 S.C.R. 665, at p. 686. Applying a blanket presumption that the person before the court cannot be believed because he wants to avoid designation or an indeterminate sentence improperly reverses this burden of proof: R. v. Laboucan, 2010 SCC 12, [2010] 1 S.C.R. 397, at paras. 12-14, 19, 23; R. v. Murray (1997), 1997 CanLII 1090 (ON CA), 115 C.C.C. (3d) 225 (Ont. C.A.), at paras. 11-14.

G. conclusion

[131] I would dismiss the appeal against conviction, the Kienapple ruling, and the dangerous offender designation. I would allow the sentence appeal concerning the penalty and I would direct a new penalty hearing at the trial court and a fresh s. 752.1 Criminal Code assessment by a different assessor. Because the trial judge has retired, I would direct that a different trial judge preside over the hearing. Pending the new penalty hearing, I would direct that the appellant will remain in custody to facilitate his access to rehabilitative programming.

Released: May 7, 2024 “M.T.”

“M. Tulloch C.J.O.”

“I agree. Sossin J.A.”

“I agree. J. Copeland J.A.”

APPENDIX A: ADDITIONAL SUBMISSIONS LETTER TO COUNSEL

April 2, 2024

Sent by email

Richard Litkowski

Smith Litkowski

rlitkowski@slcriminallawyers.ca

Jeffrey Wyngaarden

Crown Counsel

Jeffrey.Wyngaarden@ontario.ca

Dear Counsel:

Re: C66197 – R. v. Hason

As you know, the above-noted appeal was heard on October 13, 2023 and is under reserve. The panel has asked that each party file additional written submissions addressing the testimony of Dr. Scott Woodside described in R. v. Nettleton, 2023 ONSC 3390, and whether and how that testimony bears on the dangerous offender portion of this appeal.

Each party’s written submissions should not exceed 5 double-spaced pages and should be sent to [the court] by Tuesday, April 9, 2024 at 5:00 p.m.

Footnotes

I refer to participation rather than de facto consent in these reasons because the complainant was 15 years old and thus lacked the capacity to consent to sexual contact with an adult: R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, at paras. 52, 148.
References to “underage” in these reasons mean under the age of 16.
This bright-line rule is subject to the close in age exceptions in ss. 150.1(2.1), (2.2) and (2.3) of the Criminal Code, which do not apply here because the appellant was more than five years older than the complainant: A.B., at paras. 18, 39.
Because young people sometimes use fake identification, requesting and viewing identification showing a legal age may not always satisfy the all reasonable steps element. Trial judges should evaluate whether an accused’s reliance on identification was reasonable in light of the other facts and circumstances, as in R. v. Giscombe, 2021 ONCJ 710, at paras. 131-136.
I note that, like this case, F.L., Hussein, and R.D. concerned sexual offences that predated Parliament’s decision to adopt a higher maximum sentence for sexual assault of a person under the age of 16 than for other sexual assaults effective July 17, 2015: Tougher Penalties for Child Predators Act, S.C. 2015, c. 23, s. 14; Tougher Penalties for Child Predators Act: Order Fixing the Day on which this Order is registered as the Day on which Certain Sections of the Act Come into Force, SI/2015-68. Because this legislative change enables courts to recognize at sentencing that the victim of a sexual assault was a child, the reasoning in F.L., Hussein, and R.D. carries less weight for offences committed on or after July 17, 2015.
As explained earlier, I rely on Justice Bird’s description of Dr. Woodside’s testimony in Nettleton as the record of that testimony, including for the fresh evidence test, because the Crown’s position satisfies me that her description was accurate and contains all the relevant facts.
This court recently endorsed Holloway’s reading of Ghorvei and the caselaw applying it in Kolapully, at para. 30 n.3.

A. overview

B. factual background

C. The conviction ruling

D. the kienapple ruling

E. the dangerous offender Proceeding

F. analysis

(1) The Trial Judge Properly Convicted the Appellant

(2) The Trial Judge Properly Entered a Sexual Assault Conviction

(3) The Dangerous Offender Designation and Sentence

(4) Credibility Assessment at Sentencing

G. conclusion

Footnotes

A. overview

B. factual background

C. The conviction ruling

D. the kienapple ruling

E. the dangerous offender Proceeding

F. analysis

(1) The Trial Judge Properly Convicted the Appellant

(2) The Trial Judge Properly Entered a Sexual Assault Conviction

(3) The Dangerous Offender Designation and Sentence

(4) Credibility Assessment at Sentencing

G. conclusion

Footnotes

Cited By (14 cases)

His Majesty the King v. Alek Minassian, 2026 ONCA 150

R. v. Brennan, 2025 ONSC 3540

R. v. Perez, 2025 ONSC 2379

Cairns v. Ellis, 2025 ONSC 1762

R. v. J.P., 2025 ONCJ 167

R. v. J.C., 2025 ONCA 230

R. v. Buick, 2025 ONSC 1584

R. v. S. R., 2025 ONSC 929

R. v. Perez, 2025 ONSC 404

Inivos Limited v. Green, 2024 ONSC 5719

R. v. K.C., 2024 ONCJ 527

R. v. R.O., 2024 ONCJ 453

R. v. Zakhari, 2024 ONSC 4715

Cited By (14 cases)

His Majesty the King v. Alek Minassian, 2026 ONCA 150

R. v. Brennan, 2025 ONSC 3540

R. v. Perez, 2025 ONSC 2379

Cairns v. Ellis, 2025 ONSC 1762

R. v. J.P., 2025 ONCJ 167

R. v. J.C., 2025 ONCA 230

R. v. Buick, 2025 ONSC 1584

R. v. S. R., 2025 ONSC 929

R. v. Perez, 2025 ONSC 404

Inivos Limited v. Green, 2024 ONSC 5719

R. v. K.C., 2024 ONCJ 527

R. v. R.O., 2024 ONCJ 453

R. v. Zakhari, 2024 ONSC 4715