Court of Appeal for Ontario

Date: 2017-04-26 Docket: C56327

Panel: MacPherson, Simmons and Brown JJ.A.

Between

Her Majesty the Queen Respondent

and

James Ryan Appellant

Counsel

Marianne Salih, for the appellant Jennifer McKee, for the respondent

Heard: April 18, 2017

On appeal from: the sentence imposed by Justice Sandra Chapnik of the Superior Court of Justice on October 31, 2012.

Decision

By the Court:

[1] Following an altercation on a subway platform in which he stabbed the victim six times, the appellant, who was 20 years old at the time of the offences, was convicted of aggravated assault, weapons dangerous and breach of probation.

[2] The trial judge sentenced the appellant to four years and one day imprisonment for the aggravated assault and weapons dangerous charges and to six months' imprisonment consecutive for the breach of probation charge, which, after giving credit for pre-sentence custody, yielded a total determinate sentence of time served plus one day, concurrent. The trial judge also imposed a long-term offender ("LTO") designation and made a seven-year supervision order.

[3] The appellant appeals from the LTO designation and raises three issues on appeal.

[4] First, the appellant argues that the trial judge provided insufficient reasons for her decision because she failed to articulate how she interpreted the phrase "substantial risk that the offender will reoffend" in s. 753.1(1)(b) of the Criminal Code. The appellant contends that the trial judge identified conflicting decisions concerning the interpretation of that phrase but failed to determine which authority applied.

[5] Second, the appellant argues that to the extent the trial judge articulated a test to determine if the appellant posed a substantial risk to reoffend, she wrongly identified s. 753.1(2)(b)(i) of the Criminal Code, which applies only to sexual offenders, as the governing provision and, in any event, misapplied the test set out in that section.

[6] Third, the appellant argues that the trial judge erred by failing to consider her discretion under s. 753.1(1) of the Criminal Code not to make an LTO designation even if the statutory criteria were satisfied.

[7] We would not accept these submissions.

[8] Despite the appellant's young age, he had a significant youth record and, in addition, on October 4, 2008 and January 17, 2010, had committed offences as an adult that involved stabbing another person following minimal provocation. As noted above, during the course of the January 2010 offence the appellant stabbed the victim six times.

[9] Further, at the sentencing hearing, Dr. Klassen provided uncontradicted threat assessment evidence (both through a report and oral evidence) in which he opined that the appellant is likely at a moderately high risk of violent re-offence and that absent significant intervention the appellant presents a probability of violent re-offence. Dr. Klassen stated that on the basis of actuarial assessment and his clinical history the appellant presents "a substantial risk to the community" and while there is a reasonable possibility of eventual control of the risk in the community he expected the appellant would "likely struggle at least initially, with supervision."

[10] Having regard to the evidence presented at the hearing, we are satisfied that the appellant meets the requirement of presenting a substantial risk to reoffend, even if that requirement is viewed as "a high threshold" involving a substantial risk of causing serious harm to individuals.

[11] Further, while the trial judge's identification of s. 753.1(2)(b)(i) as the applicable section was erroneous, on the record before her, the trial judge's findings that the appellant meets the requirement of presenting a substantial risk to reoffend; that a traditional period of incarceration would not protect the public; and that no reasonable possibility of eventual control in the community exists unless the appellant is placed on a long-term supervision order; are unassailable. These findings also meet any concern that the trial judge failed to consider her discretion not to make an order. The trial judge's reasons make it abundantly clear that an order was required in order to protect the public.

[12] The appeal is therefore dismissed.

"J.C. MacPherson J.A." "Janet Simmons J.A." "David Brown J.A."