COURT OF APPEAL FOR ONTARIO
George, Favreau and Pomerance JJ.A.
BETWEEN
His Majesty the King
Respondent
and
Andrew Brown
Appellant
Daniel Brodsky, for the appellant
Alexander Alvaro, for the respondent
Heard: November 20, 2025
On appeal from the convictions entered by Justice Michael F. Brown of the Superior Court of Justice, sitting with a jury, on May 4, 2015, and from the dangerous offender designation and sentence imposed on January 10, 2017, with reasons at 2017 ONSC 0082.
A. introduction
1A jury found the appellant guilty of three counts of forcible confinement, assault with a weapon, assault causing bodily harm, dangerous operation of a motor vehicle and failure to stop while being pursued by police. The trial judge found the appellant to be a dangerous offender and imposed an indeterminate sentence.
2The primary issue at trial was the identification of the appellant as the person who committed the offences. The appellant appeals his convictions on the grounds that the jury verdict was unreasonable. He submits that a properly instructed jury could not have found him guilty given the frailties in the identification evidence. He also appeals his designation as a dangerous offender on the grounds that the trial judge did not consider intractability in deciding that he should be designated as a dangerous offender.
3I would dismiss the conviction appeal, and the appeal from the dangerous offender designation and indeterminate sentence.
4On the conviction appeal, the appellant does not take issue with the jury charge. Indeed, the trial judge took great care when instructing the jury about the potential tainting of the lineup evidence and about the frailties of in-dock identifications. However, while there were some frailties in the eyewitness identification, there was confirmatory evidence that supported a finding that the appellant committed the offences of which he was found guilty. Accordingly, there was a path to conviction and I am satisfied that the convictions were not unsafe.
5On the sentence appeal, the trial judge’s decision predated the Supreme Court’s decision in R. v. Boutillier, 2017 SCC 64, [2017] 2 S.C.R. 936, where the Supreme Court instructed that, on a dangerous offender application, sentencing judges should consider treatability and intractability at the designation stage and not just at the penalty stage. In this case, the trial judge did not explicitly consider treatability and intractability at the designation stage. However, given his determination at the penalty stage that there was nothing more than mere speculative hope that the appellant could be successfully treated, there is no reasonable possibility that the verdict would have been any different had the trial judge considered treatability and intractability at the designation stage.
B. conviction appeal
6The appellant was charged on a 17-count indictment. The charges arose from events that all occurred on October 17, 2012.
7The Crown alleged that on that date the appellant and two other men engaged in a series of offences that started near an apartment building on Clearview Heights in Toronto and that ended with a police chase and crash.
8While not all of the alleged offences resulted in convictions, it is helpful to review some of the evidence underlying all the charges in order to give context to the conviction appeal, which turns on the reliability of the evidence of eyewitnesses who identified the appellant.1 I therefore start with the background to the charges, followed by a review of the eyewitness evidence and the charge to the jury. I then address the general principles that apply to eyewitness identification evidence followed by an analysis of whether the evidence in this case was capable of supporting the verdict.
1. Background
9The Crown alleged that, on October 17, 2012, the appellant drove to Clearview Heights in a black Jeep with four other people, Wendel McLean, Vilroy Edwards, A.B. and Mente Reid.2 A.B. was a witness at trial. Her evidence was that, on that day, she contacted Mr. McLean about purchasing marijuana on Clearview Heights. Mr. McLean picked her up in a black Jeep driven by the appellant. A.B. had not previously met the appellant. A.B. and her friend, Ms. Reid, got in the vehicle. They then stopped to pick up Mr. Edwards, and next made their way to the apartment building on Clearview Heights.
a. Alleged offences against Tironi Scott
10The Crown alleged that, after the group arrived in the Clearview Heights area and got out of the car, they stopped Tironi Scott on the sidewalk and robbed him. Mr. Scott testified at the preliminary inquiry and at trial. Due to his poor memory of the events of October 17, 2012 at trial, the trial judge admitted Mr. Scott’s evidence from the preliminary inquiry for the truth of its content. Mr. Scott’s evidence was that, on October 17, 2012, he was walking on the sidewalk on Clearview Heights, when a group of three men and two women stopped him by forming a semi-circle around him. One man, who Mr. Scott later identified as the appellant, showed him a gun in his waistband. Mr. Scott testified that the appellant took his cell phone and $20 from him. The cell phone was an iPhone 5 in an OtterBox case with a red skull “Gears of War” sticker on the back.
b. Alleged offences against Shanta Martin and Lance Alexander
11The Crown’s theory was that, after the group entered the apartment building on Clearview Heights, they went to a unit where the appellant allegedly robbed and unlawfully confined Shanta Martin and Lance Alexander. Mr. Alexander testified about these alleged events at trial. He testified that he and his girlfriend, Ms. Martin, went to Unit 50 in the apartment building so that Ms. Martin could use the bathroom. Mr. Alexander testified that there were several people in the apartment, and that Ms. Martin waited almost an hour for the bathroom. Eventually, a woman came out of the bathroom. She then opened the front door of the apartment and let several men in. Mr. Alexander testified that one of the men took Ms. Martin’s iPod. Ms. Martin and the man got into a physical altercation and the man pulled out what Mr. Alexander believed to be an imitation firearm. Mr. Alexander intervened, and a second man cocked and pointed a firearm at Ms. Martin. The men took a cell phone, a green Jansport knapsack and two iPods. When the three men and two women left the apartment, they told Mr. Alexander and Ms. Martin not to leave the apartment or they would get shot. Mr. Alexander and Ms. Martin left the apartment about 20 minutes later.
12A.B. also gave evidence relevant to this incident. She testified that when the group she was with arrived at the apartment building on Clearview Heights, they went inside to an apartment. There were approximately six or seven people in the apartment. She said a scuffle broke out while she was there. She spoke to a woman who said that someone in A.B.’s group had stolen her phone. While they were in the apartment, the appellant asked A.B. to bring a green Jansport knapsack to the car. She and Ms. Reid returned to the car with the knapsack. While she was waiting outside the car, the woman from the apartment approached her and asked if she had seen her phone. A.B. looked in the knapsack, found the phone and returned it to the woman.
c. Alleged offences against Marcia Palmer and Denise Alphonso
13The Crown alleged that, after leaving the apartment where Mr. Alexander and Ms. Martin were located, the appellant went to another apartment with two other men, where he allegedly forcibly confined Denise Alphonso and Marcia Palmer, assaulted Ms. Alphonso and robbed Ms. Palmer.
14Ms. Palmer’s evidence was that, when she arrived home from work at the apartment building on Clearview Heights on October 17, 2012, she invited two friends in, one of whom was Denise Alphonso. After they entered the apartment, someone knocked at the door. She looked through the peephole and saw Steven Russell, whom she knew as someone who lived in the neighbourhood. She opened the door and a man emerged, holding a gun that he jabbed in her ribs. The man demanded money. He forced her into the apartment and then two other men entered, holding guns. The first man searched her bedroom and came out telling a second man that Ms. Palmer did not want to tell him where her money was. The second man struck Ms. Alphonso in the face with the butt of his gun.
15Ms. Palmer’s evidence was that, after the second man struck Ms. Alphonso, the first man put a gun to her neck and forced her to knock on Mr. Edwards’ apartment, which was across the hall. Mr. Edwards answered. The first man asked Mr. Edwards if he had anything, to which he answered “no”. Ms. Palmer then went back inside her apartment.
16Ms. Alphonso testified that, after she entered Ms. Palmer’s apartment, she heard a knock at the door. Ms. Palmer looked through the peephole. Mr. Russell then entered the apartment along with three men. The first man who entered the apartment had his hand in his pocket, mimicking that he was carrying a gun. He stood watch, gave orders to the two other men, and told Mr. Russell, who was standing near the door, not to move. The second man was carrying a handgun. Ms. Alphonso testified that he was rummaging through everything. When he returned to the room she was in, he struck the left side of her face with the butt of his gun.
d. Alleged offences related to the police chase
17The Crown’s theory was that, after the alleged incidents on Clearview Heights, the appellant operated his vehicle dangerously and failed to stop while being pursued by the police.
18A.B. testified that, after she and Ms. Reid returned to the car, the appellant, Mr. McLean, Mr. Edwards and a fourth man joined them. They all got in the vehicle, with the appellant in the driver’s seat. Soon after they started driving, a police car approached from behind. The appellant pulled over. Once the police officers came out of their vehicle, the appellant accelerated and started driving very fast. The vehicle crashed a minute or two later. A.B. testified that everyone in the vehicle fled the scene.
19Police officers involved in the chase and subsequent search of the car also testified at trial. The two officers involved in the chase testified that they stopped a black Jeep after receiving an alert about it. After the police pulled the vehicle over to the side of the road, it took off and they lost sight of it. They were then alerted to a crash and found the vehicle. When they arrived at the crash scene, there was no one in the vehicle.
e. Search of the car and police surveillance
20After they arrived at the crash scene, the police looked in the vehicle to make sure there was no one inside. They also searched the surrounding area and recovered a number of items. A search warrant was executed on the vehicle on October 19, 2012. The items in the car included a brown purse, which contained three cell phones, including one with the appellant’s fingerprint on it. The car contained a green knapsack, which A.B. later identified as the one she had taken from the appellant and brought to the vehicle. The police also recovered a cell phone identical to the one Mr. Scott described as his. The police found Mr. McLean’s fingerprints on the exterior of the car and on the brim of a hat found in the car.
21After the police conducted the search warrant on the vehicle, they started surveillance of Mr. McLean. During the surveillance, the police saw the appellant with Mr. McLean.
2. Eyewitness evidence
22During the trial, several witnesses, namely A.B., Mr. Scott, Ms. Palmer and Ms. Alphonso, gave evidence identifying the appellant. Their evidence included physical descriptions, lineup identifications and in-dock identifications.
23As indicated above, the appellant’s conviction appeal focuses on frailties in the eyewitness evidence. It is therefore helpful to review their evidence in some detail.
a. A.B.
24A.B. was originally charged in relation to the events of October 17, 2012. At that time, her lawyer received disclosure that included a photo of the appellant. The charges were later withdrawn.
25On July 22, 2013, approximately nine months after the incidents that led to the charges, the police showed A.B. a photo lineup. She identified the appellant as the driver of the black Jeep.
26During cross-examination on a voir dire, A.B. agreed that she had seen a photo of the appellant her lawyer had shown her from the disclosure. When she was asked by the trial judge whether she saw this photo before or after doing the photo lineup, she answered that she saw this photo after the photo lineup. On cross-examination, she gave contradictory evidence regarding this sequence of events.
27She also agreed during cross-examination that a police officer had shown her a photo of the appellant prior to the photo lineup, but then resiled from that evidence during re-examination.
28A.B. identified the appellant in the prisoner’s dock at trial.
29She also testified that she had not seen the appellant’s image on CP24.
b. Tironi Scott
30Mr. Scott gave a physical description of the person holding the gun during his alleged robbery. He described him as a Black man, approximately 5’11” in height and in his mid-20s. Mr. Scott also testified that the man wore prescription glasses with black frames and items of clothing that included a pair of black gloves with the “North Face” logo on them.
31On November 14, 2012, Mr. Scott was shown a photo lineup. A couple of days earlier, he had seen a CP24 news story that showed the image of someone wanted in relation to robberies in the Clearview Heights area. Mr. Scott recognized the person who had robbed him. When shown the photo lineup, Mr. Scott identified the appellant as the person who had a handgun when he was allegedly robbed. He also identified Mr. McLean as having been involved in the robbery. After conducting the photo lineup, the police showed him a photo of the appellant, which Mr. Scott again identified as the person with a gun.
32At the preliminary inquiry, Mr. Scott identified the appellant while he was sitting in the dock, evidence the trial judge admitted for the truth of its content.
c. Ms. Palmer
33At trial, Ms. Palmer gave descriptions of the three men who came into her apartment. She described the skin colour of the first man as “mixed”. She estimated his height at 5’8” and said he was slim and wore dark rimmed glasses. She said he wore a tennis hat, black gloves, a black jacket and black sweatpants. She also described the second and third man.
34On December 17, 2012, the police attended Ms. Palmer’s apartment and showed her a photo lineup. She did not select anyone, including the appellant, from the lineup. At trial, she testified that the room where she looked at the photos was not well lit, the pictures were dark, and she could not make out the people in the photos.
35At trial, the Crown brought an application to allow Ms. Palmer to testify about whether she could identify anyone in the courtroom who had participated in the home invasion. The trial judge granted the application. He reasoned that Ms. Palmer’s in-court identification of the appellant could serve as confirmatory evidence of Ms. Alphonso’s identification of the appellant. He recognized the frailties and risks associated with in-court identification, but held that these could be mitigated with a strong mid-trial instruction to the jury. Ms. Palmer identified the appellant in the courtroom as the first man who entered the apartment.
d. Ms. Alphonso
36At trial, Ms. Alphonso gave descriptions of the three men who came into Ms. Palmer’s apartment. She described the first man, who she said was standing close to her and issuing orders, as approximately 5’10” and weighing 170 to 180 pounds. She said he wore prescription glasses, a black hat, a black leather jacket and black jeans. She testified that the second man who struck her with a gun was approximately 5’7” and had a stockier build.
37On December 29, 2017, Ms. Alphonso attended the police station to view a photo lineup. She testified that, before doing the photo lineup, she had seen photos of the appellant on CP24 two or three times.
38When Ms. Alphonso did the photo lineup, she identified a photo of the appellant as the person who struck her with the gun. At trial, she agreed that when she made the identification during the photo lineup she had some doubt. At trial, she testified that the photo she identified during the lineup was the person issuing orders and not the person who struck her with the gun.
39She also identified the appellant in-dock as the person who issued the orders.
3. Jury instructions on eyewitness identification evidence
40The trial judge gave mid-trial instructions regarding some of the eyewitness identification evidence. In addition, he addressed the frailties of eyewitness identification in his jury charge.
41After the voir dire regarding whether Ms. Palmer should be allowed to provide an in-dock identification, the trial judge instructed the jury that her evidence on this point had little evidentiary value:
There is no evidence before you indicating that Ms. Palmer positively identified Mr. Brown from a photo line-up prior to this trial. It was only at this trial that Ms. Palmer for the first time identified Mr. Brown as the person she said was person number one. At the time she made the identification a few moments ago, Mr. Brown was the only person sitting in the area reserved for the defendant. He was the only black person in the courtroom, apart from a friend of Ms. Palmer who was in the courtroom, and the only other people in the courtroom were you and I, the investigating officer, the court staff, counsel, and Mr. Brown. In these circumstances, the first-time identification of an accused by a witness when the accused is in the area, seated in the area reserved for the defendant, has little evidentiary value, for two reasons. One, because before the trial the witness did not pick out the person who she claims to have seen from a photo line-up. And two, because there is a danger – and two, because there’s a danger that the witness naturally anticipated that the offender would be present in the courtroom, that danger is accentuated when an accused is readily identifiable, sitting in the area reserved for the defendant, as the person accused with a crime.
42After Ms. Alphonso identified the appellant in the courtroom as the person who was giving orders, the trial judge gave another similar instruction to the jury that an in-dock identification had little evidentiary value:
In these circumstances, the identification of an accused person by a witness, when the defendant is sitting in the place reserved for the defendant, has little evidentiary value. One of the most important reasons for that is a danger that the witness naturally anticipated the offender would be present in the courtroom, and that danger is accentuated when an accused is readily identifiable, sitting in the place reserved for the defendant as the person accused of the crime.
43The trial judge gave another mid-trial instruction after A.B. identified the appellant in a photo marked as an exhibit. The trial judge told the jury that “the identification by [A.B.] of M. Brown using solely the photo marked as Exhibit 44 as one of the people who was with her on October 17th, 2012, has little evidentiary value.”
44In his final instructions to the jury, the trial judge gave a comprehensive instruction regarding the frailties of eyewitness identification. He provided a general instruction and instructions that were specifically directed to the circumstances of this case.
45The trial judge’s general instruction regarding eyewitness evidence included the standard warning that the jury should be cautious before relying on eyewitness evidence to find Mr. Brown guilty of an offence, and that innocent people had previously been convicted on the basis of eyewitness evidence. The trial judge cautioned the jury that there is “[l]ittle connection … between the great confidence of the witness and the correctness of his or her identification and the accuracy of the identification.”
46The trial judge also instructed the jury on how to approach the photo lineup evidence. He instructed the jury to consider the impact of images of the appellant a witness may have seen on television before identifying him:
Some witnesses have testified that they saw a picture of Mr. Brown on television shortly after the events in question. That is a factor for you to consider when assessing what weight to be given to any evidence of subsequent identification by that witness of Mr. Brown.
47The trial judge further instructed the jury that they should give no weight to a witness’ evidence if they found the police showed them a photo of the appellant before conducting the photo lineup:
As well, after considering all of the evidence if you were to find that a police officer showed a picture of Mr. Brown to a witness before that witness participated in a photo line-up, then that witness’ evidence of identification at the photo line-up would be of no weight.
48In addition, the trial judge instructed the jury that they could “[c]onsider whether there was other evidence which appeared to support the identification of the eye witness.” But he also cautioned them that “although identification by one witness can support that of another, even a number of honest witnesses can be mistaken.”
49The trial judge addressed the specific frailties of Ms. Palmer’s in-court identification of the appellant. He reminded the jury that Ms. Palmer did not identify the appellant in the photo lineup, and that she first identified him when he was sitting in the prisoner’s box at trial. He told the jury “that on its own an in court identification of a defendant who [is] sitting in a courtroom in the area reserved for the defendant is entitled to little evidentiary weight.”
4. Jury verdict
50Before the jury began deliberations, the Crown withdrew charges of kidnapping and attempted robbery involving Mr. Edwards as the complainant.
51The jury acquitted the appellant of the charge of robbery related to Mr. Scott, and of the charges of forcible confinement and robbery related to Ms. Martin and Mr. Alexander.
52The jury found the appellant guilty of three counts of forcible confinement in relation to Mr. Russell, Ms. Palmer and Ms. Alphonso, one count of assault with a weapon in relation to Ms. Alphonso and one count of assault causing bodily harm in relation to Ms. Alphonso. The jury did not convict the appellant on a charge of robbery using a prohibited or restricted weapon in relation to Ms. Palmer.
53The jury also found the appellant guilty of dangerous operation of a motor vehicle and failure to stop while being pursued by police. The jury acquitted the appellant of two firearm charges.
5. General legal principles relevant to eyewitness evidence
54Section 686(1)(a)(i) of the Criminal Code, R.S.C. 1985, c. C-46 gives an appellate court the power to set aside a conviction that is “unreasonable or cannot be supported by the evidence”. This requires the court to assess the totality of the evidence. The test to be applied by an appellate court is “whether the verdict is one that a properly instructed jury acting judicially, could reasonably have rendered”: R. v. Yebes, 1987 CanLII 17 (SCC), [1987] 2 S.C.R. 168, at p. 185; R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at para. 36; and R. v. W.H., 2013 SCC 22, [2013] 2 S.C.R. 180, at para. 26.
55Section 686(1)(a)(i) of the Criminal Code recognizes that, in some cases, even where there is an error-free trial and some evidence to support a conviction, appellate intervention is nevertheless necessary to avoid an injustice: R. v. Tat (1997), 1997 CanLII 2234 (ON CA), 35 O.R. (3d) 641 (C.A.), at p. 672; R. v. Shaw, 2024 ONCA 119, 170 O.R. (3d) 161, at para. 144.
56A jury’s verdict is entitled to deference: Shaw, at para. 144. The court will find an unreasonable verdict where it is satisfied that the verdict “is one that a properly instructed jury acting judicially could not reasonably have rendered”: W.H., at para. 26.
57Convictions based on eyewitness identification evidence are particularly well suited to review under s. 686(1)(a)(i), given the well-recognized potential for injustice in such cases and the suitability of the appellate review process to cases that turn on the reliability of eyewitness evidence: Tat, at p. 673; Shaw, at para. 146.
58The weight to be given to identification evidence will depend on the entirety of the identification process, as revealed by the evidence: Tat, at p. 656. In Tat, at p. 673, Doherty J.A. listed circumstances where convictions based on eyewitness evidence may lead to an unreasonable verdict:
The extensive case-law arising out of the review of convictions based on eyewitness identification reveals that the concerns about the reasonableness of such verdicts are particularly high where the person identified is a stranger to the witness, the circumstances of the identification are not conducive to an accurate identification, pre-trial identification processes are flawed and where there is no other evidence tending to confirm or support the identification evidence.
59An inappropriate pretrial identification procedure does not necessarily render the subsequent identification inadmissible. Rather, it is a factor that affects the weight to be given to the evidence: R v. Miaponoose (1996), 1996 CanLII 1268 (ON CA), 30 O.R. (3d) 419 (C.A.), at p. 429; R. v. Gagnon (2000), 2000 CanLII 16863 (ON CA), 147 C.C.C. (3d) 193 (Ont. C.A.), at para. 91. In some cases, there may be other evidence or circumstances that serve to validate the witness’ identification: Miaponoose, at p. 429. Independent confirmatory evidence “can go a long way to minimizing the dangers inherent in eyewitness identification”: R. v. Quercia (1990), 1990 CanLII 2595 (ON CA), 75 O.R. (2d) 463 (C.A.), at p. 471; R. v. Layne, 2024 ONCA 435, 439 C.C.C. (3d) 112, at para. 24.
60The subsequent identification of an accused by a complainant in the courtroom does not add weight to an initial flawed identification process: Miaponoose, at p. 429. In fact, a conviction based on an in-court identification alone is unsafe and will likely result in an acquittal on appeal on the basis that the verdict is unreasonable: Gagnon, at para. 92. In Gagnon, at para. 93, Weiler J.A. explained the concerns with in-dock identifications:
The accused is often the only person in the prisoner’s dock or one of a few dissimilar looking persons and so the identification made is suggested to the witness. The identification is thus subject to the frailty that the witness, although honest, may be mistaken, and therefore the identification may be unreliable.
61The trial judge must caution the jury about the unreliability of eyewitness identification evidence generally, and about any specific frailties relevant to the facts of the case: R. v. Mills, 2019 ONCA 940, 151 O.R. (3d) 138, at para. 187, leave to appeal refused, [2021] S.C.C.A. No. 263. The jury charge should identify any defects in the identification procedure followed by the police. Such defects should be “one of the factors the jury should be instructed to take into account in assessing the reliability of the identifications and determining the weight to be given [to] this evidence in reaching their decision as to the accused’s guilt or innocence”: R. v. D’Amico (1993), 1993 CanLII 8482 (ON CA), 16 O.R. (3d) 125 (C.A.), at p. 129.
6. Analysis
62The appellant does not take issue with the instructions the trial judge provided to the jury on eyewitness identification. He also does not argue that the trial judge should not have admitted the photo lineup identification evidence or the in-dock identification evidence. Rather, he argues that the verdict is unreasonable because, given some of the flaws in the identification evidence, a properly instructed jury could not have reached the verdict it did.
63I disagree. The three witnesses who identified the appellant in a photo lineup were A.B., Ms. Alphonso and Mr. Scott. While the appellant was a stranger to these witnesses and there was potential tainting in the identification process, there was a path for the jury to safely conclude that the appellant was the person who committed the offences of which he was found guilty.
64Ms. Alphonso and Mr. Scott both admitted that they saw photos of the appellant on CP24 before they participated in the photo lineup. Therefore, their identification evidence was potentially tainted. As the jury was instructed, this is a factor to consider in assessing the weight to be given to any subsequent identification of the appellant by that witness. Ms. Alphonso and Mr. Scott’s identification evidence should be given little weight.
65However, it was open to the jury to believe that A.B. had not seen a photo of the appellant before she was shown the photo lineup, in which case her identification evidence was untainted.
66As reviewed above, A.B. identified the appellant in the photo lineup. Notably, she had a significant opportunity to see the appellant on October 17, 2012. She was with the appellant in the black Jeep on the way to Clearview Heights, during some of the time inside the building and in the vehicle during the getaway. The jury was aware that she had seen a photo of the appellant through the disclosure provided to her lawyer, but it was open to the jury to accept her evidence that she did not see this photo until after she saw the photo lineup. The jury was also aware that she gave conflicting evidence on whether the police showed her a photo of the appellant before the photo lineup, but again it was open to the jury to find that she did not see the photo until after the lineup, especially given the trial judge’s instruction that they should give no weight to a witness’ identification evidence if they found the police showed the witness a photo of the appellant before the lineup.
67In addition, and most significantly, there was independent confirmatory circumstantial evidence linking the appellant to the offences.
68First, the appellant’s fingerprint was on a phone found in the black Jeep, thereby linking him to the vehicle.
69Second, following the police chase, the police recovered a number of clothing items near the crash site that are consistent with the description of how the appellant was dressed at the time the offences were committed, including a dark leather jacket with a pair of gloves with the “North Face” logo.
70Third, several witnesses, including A.B., Ms. Alphonso, Ms. Palmer and Mr. Scott, described the appellant as wearing dark rimmed prescription glasses, which the appellant wore in a photo marked as an exhibit at trial. Notably, the appellant was not wearing glasses in the photo lineups, which means the witnesses were nevertheless able to recognize his face without the glasses.
71Fourth, when they searched the black Jeep, the police found a phone identical to the one Mr. Scott described as the one the appellant had taken from him. The police also found the green knapsack identified by A.B. as the one the appellant handed to her which contained Ms. Martin’s phone. These two items further confirmed Mr. Scott and A.B.’s identification of the appellant.
72Given A.B.’s identification evidence and the confirmatory evidence, I see no basis for finding that the jury verdict was unsafe and that the convictions were unreasonable. I would therefore reject the conviction appeal.
C. sentence appeal
73The trial judge designated the appellant as a dangerous offender and imposed an indeterminate sentence.
74The appellant submits that the trial judge erred in designating him as a dangerous offender because he failed to consider the issues of intractability, and accordingly treatability, at the designation stage. I see no reversible error on this issue.
75On an appeal from a dangerous offender designation, the court is concerned with legal errors and with whether the designation is reasonable: R. v. Sipos, 2014 SCC 47, [2014] 2 S.C.R. 423, at para. 23; R. v. Sawyer, 2015 ONCA 602, 127 O.R. (3d) 686, at para. 26; and R. v. Starnaman, 2026 ONCA 183, at para. 17. While deference is owed to a sentencing judge’s findings of fact and credibility, appellate review of a dangerous offender designation is somewhat more robust than in a regular sentence appeal: Sipos, at paras. 25-26; Sawyer, at para. 26; Starnaman, at para. 19; and Boutilier, at para. 81.
76There are two stages in dangerous offender proceedings, namely the designation stage and the penalty stage: Boutilier, at paras. 13-15.
77At the designation stage, the Crown bears the burden of proving beyond a reasonable doubt that the offender fits the criteria for one of several routes under s. 753(1) of the Criminal Code for designating someone as a dangerous offender. In this case, the trial judge was satisfied that the appellant met the criteria under both ss. 753(1)(a)(i) and 753(1)(a)(ii) of the Criminal Code, namely:
(a) that the offence for which the offender has been convicted is a serious personal injury offence … and the offender constitutes a threat to the life, safety or physical or mental well-being of other persons on the basis of evidence establishing
(i) a pattern of repetitive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a failure to restrain his or her behaviour and a likelihood of causing death or injury to other persons, or inflicting severe psychological damage on other persons, through failure in the future to restrain his or her behaviour,
(ii) a pattern of persistent aggressive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a substantial degree of indifference on the part of the offender respecting the reasonably foreseeable consequences to other persons of his or her behaviour….
78At the designation stage, the Crown must prove, beyond a reasonable doubt, that the offender poses a high likelihood of harmful recidivism and that the offender’s conduct is “intractable”: Boutilier, at para. 46.
79At the penalty stage, there is no onus; rather, a sentencing judge must impose an appropriate sentence after an individualized assessment of all the relevant factors and circumstances: Boutilier, at para. 71; R. v. Gracie, 2019 ONCA 658, 147 O.R. (3d) 358, at para. 36.
80In Boutilier, at para. 42, the Supreme Court explained that an offender’s future treatment prospects are a relevant consideration at the designation stage. Offenders will not be designated as dangerous if their treatment prospects are so compelling that the court cannot conclude beyond a reasonable doubt that they present a high likelihood of harmful recidivism or that their pattern of violence is intractable: Boutilier, at para. 45; R. v. Francis, 2023 ONCA 760, at para. 62. An offender’s future risk and whether that risk can be appropriately managed through treatment must be considered at both the designation stage and the penalty stage: R. v. Jackman, 2024 ONCA 150, at para. 23. At the designation stage, treatability is relevant to the decision on the threat posed by an offender and, at the penalty stage, treatability is relevant to determining the appropriate sentence to manage this threat: Boutilier, at para. 45.
81The trial judge’s dangerous offender decision in this case predates the Supreme Court’s decision in Boutilier. The trial judge therefore did not explicitly refer to Boutilier or to the requirement that he consider intractability and treatability at the designation stage. However, this on its own is not a basis for invalidating the trial judge’s designation of the appellant as a dangerous offender. As this court has explained in other cases where the dangerous offender designation predated the release of Boutillier, sentencing judges are not required to use the terms “intractability” or “treatability” at the designation stage: R. v. S.M.J., 2023 ONCA 157, 166 O.R. (3d) 567, at para. 22; Francis, at para. 63. Rather, what matters is whether the trial judge’s reasons, read as a whole, demonstrate an understanding and application of the Boutilier principles, namely that treatability must inform the analysis at the designation stage and the penalty stage: Francis, at para. 63; Jackman, at para. 23.
82In addition, in appropriate cases, this court has found that, based on the sentencing judge’s findings at the penalty stage, there is no reasonable possibility that the finding that an offender should be designated as a dangerous offender would have been different had the sentencing judge expressly considered the offender’s treatment prospects and intractability at the designation stage: R. v. A.R., 2022 ONCA 553, at para. 26; Gracie, at paras. 35, 53; R. v. C.W., 2019 ONCA 976, at paras. 29-30; R. v. Simpson, 2020 ONCA 765, 153 O.R. (3d) 185, at paras. 30, 32; and R. v. Brown, 2021 ONCA 678, 158 O.R. (3d) 275, at para. 60, leave to appeal refused, [2021] S.C.C.A. No. 460.
83In this case, the trial judge did not consider the issues of intractability and treatability at the designation stage of his analysis. However, given his findings regarding the appellant’s treatment prospects at the penalty stage, there is no doubt that, if the trial judge had explicitly considered treatability at the designation stage, he would have reached the same conclusion regarding the appellant’s risk of committing future violent offences. In other words, as in A.R., Brown, Simpson and Gracie, there is no reasonable possibility that, had the trial judge considered the appellant’s treatment prospects and intractability at the designation stage, he would have concluded anything other than that the appellant should be designated as a dangerous offender.
84In his reasons, the trial judge reviewed the appellant’s lengthy record of convictions for violent offences. Between 2000 and 2011, the appellant had been convicted of 43 offences, many of which were violent, including robbery, assault, assault causing bodily harm and armed robbery. The trial judge also found that the appellant committed two uncharged acts of violence. Both were assaults committed while he was in detention in 2015. The trial judge noted that the appellant had spent very little time out of custody since 2004. In addition, the appellant was living in a federal Community Residential Facility, under enhanced supervision, on statutory release, when he committed the predicate offences on October 17, 2012. The trial judge reviewed the appellant’s records while in custody and under supervision in the community, and noted that the appellant had many incidents of misconduct while in custody and had performed poorly under supervision in the community.
85The trial judge also reviewed the expert evidence put forward by the Crown and the appellant. The Crown relied on the evidence of Dr. Scott Woodside and the appellant relied on the evidence of Dr. Julian Gojer. The trial judge noted Dr. Gojer’s remark that the two experts were not far apart in their opinions, except on whether the appellant’s risk could be managed in the community. In particular, they both agreed on the appellant’s diagnosis of Antisocial Personality Disorder, and that there was a high risk that the appellant would reoffend violently.
86The trial judge reviewed the experts’ respective opinions on the prospect that the appellant could be treated and live in the community.
87The trial judge described Dr. Woodside’s opinion as being that “there was significant reason for pessimism, from a psychiatric perspective, regarding [the appellant’s] future management in the community” and that “there was little in [the appellant’s] history to date that would suggest this is someone who is going to do well under a supervision order in the community.”
88The trial judge described Dr. Gojer’s opinion on this issue as follows:
Dr. Gojer testified that he was not “highly optimistic” that Mr. Brown could be managed in the community. He said he had some degree of pessimism, otherwise he would not have said he was at high risk to reoffend. However, Dr. Gojer testified that there are things that have not been done that could be done from a treatment perspective, specifically the High Intensity Violence Prevention Programme and other programmes to improve pro-social and anti-criminal sentiments as well as one on one counseling. Also, the aging factor is important to consider.
89When dealing with the issue of penalty, the trial judge accepted Dr. Woodside’s opinion on treatability and described Dr. Gojer’s opinion on this issue as “no more than speculative hope”. He stated that “there is no evidence beyond speculative hope that Mr. Brown can be treated within an ascertainable time frame to reduce his threat to the public to an acceptable level.”
90While the trial judge did not deal with the issue of treatability or intractability in his designation stage analysis, there is no doubt that he would have reached the same conclusion regarding the appellant’s future risk had he done so. The prospective assessment of risk is concerned with the threat posed by an offender. At the designation stage, treatability is relevant to determining the threat posed by the offender. In other words, where an offender’s treatment prospects are so compelling that the sentencing judge cannot conclude beyond a reasonable doubt that the offender presents a high likelihood of harmful recidivism or that the offender’s violent pattern is intractable, the offender will not be designated as a dangerous offender. Here, the experts agreed that the appellant posed a high risk of violent reoffending. Other than what the trial judge described as Dr. Gojer’s evidence of “speculative hope”, there was no evidence that the appellant’s risk to the public could be attenuated through any kind of treatment. In these circumstances, I see no basis for allowing the sentence appeal.
D. disposition
91I would dismiss the appeal from conviction and from the dangerous offender designation and indeterminate sentence.
Released: June 23, 2026 “J.G.”
“L. Favreau J.A.”
“I agree. J. George J.A.”
“I agree. R. Pomerance J.A.”
Footnotes
- The trial judge granted a similar fact application brought by the Crown in relation to the first 11 counts on the indictment. These charges related to the offences allegedly committed against Tironi Scott, Shanta Martin, Lance Alexander, Steven Russell, Marcia Palmer and Denise Alphonso. The appellant did not challenge this ruling on appeal.
- A.B.’s identity is protected by a publication ban pursuant to s. 110 of the Youth Criminal Justice Act, S.C. 2002, c. 1.