WARNING

The President of the panel hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486.4(1), (2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.4(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences;

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).

486.4(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and

(b) on application made by the complainant, the prosecutor or any such witness, make the order.

486.4(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.

486.4(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b).

486.6(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

486.6(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.

Court of Appeal for Ontario

Date: 2017-08-04

Docket: C56188

Judges: Laskin, Simmons and Pardu JJ.A.

Between

Her Majesty the Queen Respondent

and

Matthew Byers Appellant

Counsel:

• Matthew R. Gourlay, for the appellant
• Elise Nakelsky, for the respondent

Heard: June 13, 2017

On appeal from: the conviction entered by Justice Guy P. DiTomaso of the Superior Court of Justice on August 24, 2007, with reasons reported at, and from the sentence imposed on July 6, 2011, with reasons reported at 2011 ONSC 4159.

Reasons for Decision

Introduction

[1] On April 29, 2005, just before 9:00 a.m., two police officers came across the appellant, standing in a forest, drinking a beer. The forest was adjacent to an elementary school. After inquiring whether the appellant had any more liquor, the officers looked in his backpack. They found a car manual, a roll of duct tape, some wires, a garden hoe, latex gloves, some pornographic pictures, condoms and girls' underwear. After a further search of the backpack, police found photographs of naked girls between the ages of about eight and ten, as well as handwritten notes, which discussed (among other things) the rape and torture of young girls.

[2] Following further investigation at the appellant's home, police discovered more child pornography, in both electronic and printed format; several knives, a pair of girls' underwear and additional horrific writings.

[3] Police also determined that, on April 21, 2005, at about 4:00 a.m., a close friend of the appellant had discovered him crouched down in her bathroom between the toilet and the bathtub. Among other things, upon being discovered, the appellant told his friend that he had gone to the third-floor spare bedroom and that there had been "a bump" in the bed. The friend had an eleven-year-old daughter. That night, the daughter was sleeping in the spare bedroom with her aunt, who was visiting. Further investigation revealed that the daughter was the subject of certain writings discovered at the appellant's home, in which the appellant had meticulously planned her grotesque rape and murder. In addition, police found a basement location where the appellant had prepared to carry out his plans.

[4] In relation to the April 21, 2005 incident involving his friend's daughter, the appellant was charged with attempted kidnapping, attempted aggravated sexual assault, attempted murder and break and enter with intent to commit an indictable offence. In relation to the August 29, 2005 incident, he was charged with attempted kidnapping and attempted aggravated sexual assault of a young person. He was also charged with possession of child pornography.

[5] Following a trial, the appellant was convicted of all charges. Ultimately, he was declared a dangerous offender and sentenced to an indeterminate sentence of imprisonment. The appellant does not contest the convictions relating to his friend's daughter and for possession of child pornography. However, he appeals the convictions for attempted kidnapping and attempted aggravated sexual assault arising from the August 29, 2005 incident. He also appeals the dangerous offender designation and indeterminate sentence of imprisonment.

The Conviction Appeal

[6] Concerning the conviction appeal, the appellant argues that his actions on the morning of August 29, 2005 were not sufficient in law to constitute an attempt to commit the offences at issue. He does not dispute that he was in a park adjacent to a school with implements that could have enabled him to carry out the offences. However, he points to the fact that there was no evidence that he had approached anyone. Moreover, police encountered the appellant at 8:53 a.m., more than 20 minutes after classes had commenced at the nearby school.

[7] In these circumstances, the appellant submits that the trial judge erred in law in finding that his actions went beyond mere preparation and were sufficient to constitute an attempt to commit the offences. He also argues that, given the time of day, it appears that he had passed up any opportunity to commit the offences and may have been in the process of abandoning any intention to do so.

[8] The appellant relies on several authorities which he asserts support his position that in the absence of any evidence that he had actually approached an intended victim, his actions fall short of being capable in law of amounting to an attempt: R. v. Geddes (1996), 160 J.P. 697 (Eng. C.A. (Crim. Div.)); R. v. Campbell (1991), 93 Cr. App. R. 350 (Eng. C.A. (Crim. Div.)).

[9] We do not accept the appellant's submissions. In his reasons for finding the appellant guilty, the trial judge found that the appellant's writings were "central and critical" to the analysis of the issues in the case. They set out "a carefully thought-out and detailed plan to kidnap, rape, torture and kill" his friend's young daughter. Further, after the appellant's implementation of that plan was foiled by chance on April 21, 2005, the writings revealed a "running account … in 'real time'" of his efforts on April 29, 2005 to locate another victim on whom he could perpetrate similar atrocities, as well as the possibility that he would renew his effort to kidnap his originally intended victim.

[10] The trial judge found that the appellant's writings on April 29, 2005 were similar to diary entries. They indicated that before arriving at the park where police found him, the appellant had spent three hours "wandering through [another park] looking for a girl to rape." After noting that he had seen one girl on a nearby street who interested him, the appellant states in his April 29, 2005 writings:

I'm probably going to try and get [his friend's daughter] tonight. If nothing else comes up I'm going to go to the [forest where police found him] now. I will just grab a girl, tape her up and rape her.

[11] As noted by the trial judge, the appellant's actions on April 29, 2005 cannot be viewed in isolation. Rather, they must be viewed in the context of the appellant's recently thwarted attempt to kidnap, rape and kill his friend's young daughter. Considered in that context, and in combination with the appellant's diary-like writings, the appellant's actions on April 29, 2005 can only be viewed as part of a crime in progress. The appellant had crossed the line into criminal conduct and taken steps beyond mere preparation to commit a crime; he was actively engaged in seeking out a child on whom to perpetrate the plans he had committed to writing. Moreover, he was carrying all the tools he intended to use to carry out his plans.

[12] The appellant's conviction appeal is dismissed.

The Sentence Appeal

[13] Concerning the dangerous offender designation and indeterminate sentence of imprisonment, the appellant points out that at the time of committing these offences he had no prior record. Moreover, the serious personal injury offences of which he was convicted were all restricted to attempts: the appellant has never been convicted of "a hands-on" serious personal injury offence. The appellant submits that, particularly taking account of these circumstances, the trial judge erred in finding that he met the criteria for designation as a dangerous offender. In the alternative, the appellant submits the trial judge erred in holding that there was no reasonable possibility of eventual control in the community and in failing to impose a determinate sentence and long-term supervision order.

[14] We do not accept these submissions.

[15] The trial judge found that the appellant met the criteria for designation as a dangerous offender under all four branches of s. 753(1) of the Criminal Code. Section 753(1) reads as follows:

753(1) On application made under this Part after an assessment report is filed under subsection 752.1(2), the court shall find the offender to be a dangerous offender if it is satisfied

(a) that the offence for which the offender has been convicted is a serious personal offence described in paragraph (a) of the definition of that expression in section 752 and the offender constitutes a threat to the life, safety or physical or mental well-being of other persons on the basis of the 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, or

(iii) any behaviour by the offender, associated with the offence for which he or she has been convicted, that is of such a brutal nature as to compel the conclusion that the offender's behaviour in the future is unlikely to be inhibited by normal standards of behavioural restraint; or

(b) that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (b) of the definition of that expression in section 752 and the offender, by his or her conduct in any sexual matter including that involved in the commission of the offence for which he or she has been convicted, has shown a failure to control his or her sexual impulses and a likelihood of causing injury, pain or other evil to other persons through failure in the future to control his or her sexual impulses.

[16] In our view, it was open to the trial judge to designate the appellant a dangerous offender under all of ss. 753(1)(a)(i), 753(1)(a)(iii) and 753(1)(b).

[17] We begin by noting that both the Crown psychiatrist and the defence psychiatrist testified that, from a psychiatric perspective, the appellant met the criteria for designation as a dangerous offender. The Crown psychiatrist's opinion was that he met the criteria under ss. 753(1)(a)(i), 753(1)(a)(ii) and 753(1)(b); the defence psychiatrist's opinion was that he met the criteria under s. 753(1)(b).

[18] Further, the trial judge accepted the Crown psychiatrist's opinion that the appellant met the diagnostic criteria for several psychiatric disorders, some of which are intractable: severe substance dependence disorder involving alcohol and cocaine; pedophilia; sexual sadism; and anti-social personality disorder, with obsessive-compulsive personality traits.

[19] Turning to the appellant's specific arguments concerning s. 753 of the Criminal Code, he contends that the trial judge erred in finding that the two incidents forming the appellant's index offences, that happened within eight days of each other, constituted "a pattern of repetitive behaviour" under s. 753(1)(a)(i) of the Criminal Code.

[20] Although the appellant acknowledges that two incidents have in the past been found to constitute a pattern, he argues that, in this case, because the appellant was unsuccessful in his efforts on April 21, 2005, both incidents amounted, in effect, to an attempt to commit the same offence. Unlike other cases, here, the appellant's conduct was not the "last straw" in a series of offences. Rather, it was part of a continuing effort to achieve a single objective. The appellant's conduct cannot be viewed as a pattern of repetitive behaviour showing a failure to restrain his behaviour and a likelihood of causing injury to others through failure in the future to restrain his behaviour. Just because the appellant's thoughts were persistent does not mean that his actions would have been.

[21] We disagree. The trial judge found a pattern of repetitive behaviour showing a failure on the appellant's part to restrain his behaviour in several aspects of the evidence, including:

• the evidence of the strength of the appellant's preoccupation with kidnapping his friend's daughter or another child;

• the evidence in the appellant's writings that he had attempted to forcibly remove his friend's daughter from her home on more than one occasion and that when he was unsuccessful in that endeavour he sought out another child;

• the extent to which the appellant's writings revealed he planned his intended crimes and also created lists of, and acquired, necessary supplies; and

• the extent of the appellant's other preparatory actions, including stealing his friend's daughter's underwear (which was found both in his backpack and at his home), putting his rape kit together and preparing the basement where he planned to rape torture and kill his friend's daughter.

[22] In concluding that the appellant met the criteria under s. 753(1)(a)(i), the trial judge also referred to the expert evidence relating to the appellant's diagnoses.

[23] In light of this evidence, we see nothing unreasonable about the trial judge's conclusion that the appellant's conduct demonstrated a pattern of repetitive behaviour showing a failure to restrain his behaviour. The evidence in his writings indicating he had attempted to take his friends' daughter on more than one occasion, standing alone, demonstrated the necessary pattern. Moreover, he repeated the same type of behaviour when he went trolling for another child. We see no error in the trial judge's conclusion that the appellant met the criteria for designation as a dangerous offender under s. 753(1)(a)(i).

[24] The appellant also argues that the trial judge erred in holding that the brutality criterion under s. 753(1)(a)(iii) was satisfied. He submits that entirely unconsummated, inchoate conduct cannot meet the threshold.

[25] We do not accept this submission. The threshold set out in s. 753(1)(a)(iii) is met where the Crown proves beyond a reasonable doubt that "the offender constitutes a threat to the life, safety, physical or mental well-being of other persons on the basis of evidence establishing … any behaviour by the offender, associated with the offence … that is of such a brutal nature as to compel the conclusion that the offender's behaviour in the future is unlikely to be inhibited by the normal standards of behavioural restraint".

[26] Brutality under this provision has been interpreted as meaning conduct that is "coarse, savage, and cruel and which is capable of inflicting severe psychological damage on the victim": R. v. Langevin (1984), 45 O.R. (2d) 705 (C.A.), at p. 718. As noted by the trial judge, the "horrors to which [the appellant] intended to visit upon [his intended victims] fell well within the kind of behaviour contemplated by this section."

[27] In R. v. Melanson (2001), 152 C.C.C. (3d) 375 (Ont. C.A.), leave to appeal ref'd, [2001] 3 S.C.R. viii, this court found that writings can meet the description of brutality set out in Langevin. Melanson was a security officer in an apartment building. He hit his victim on the head with a rock and began dragging her towards his office in the underground parking lot of the building. The victim managed to escape and suffered only a minor abrasion to her head, which healed within a few days. On a Crown appeal from the trial judge's refusal to designate Melanson as a dangerous offender, this court ordered a new hearing. However, in the course of doing so, this court said:

[Section] 753(1)(a)(iii) permits consideration of any conduct "associated with the offence". Certainly the writings and articles found in the appellant's office fit within that description. [1]

Although this court considered that it "might" be able to determine whether the brutality threshold had been met, it was not in a position to make findings about Melanson's future dangerousness based on conflicting psychiatric evidence. This court therefore ordered a new hearing.

[28] Contrary to the appellant's submissions, we are not persuaded that the fact that Melanson had commenced an attack on his victim is a basis for distinguishing that case from this one. As noted by this court at para. 37 of Melanson, s. 753(1)(a)(iii) permits consideration of "any behaviour by the offender, associated with the offence" when considering the brutality threshold. In our view, the trial judge made no error in considering the appellant's writings to conclude that threshold was met. See also R. v. Leopold, 2001 BCCA 396, 155 C.C.C. (3d) 251, leave to appeal ref'd, [2002] 1 S.C.R. viii.

[29] The appellant also argues that the trial judge erred in finding that the "failure to control sexual impulses" threshold under s. 753(1)(b) was satisfied.

[30] In his reasons for concluding the s. 753(1)(b) criteria were satisfied, the trial judge said, among other things:

A review of all the findings of fact and the reasons for judgment and the evidence on this sentence hearing establishes that [the appellant] has a preference for coercive sex with children. On more than one occasion, he unsuccessfully attempted to realize his goal. On more than one occasion, he failed to control his sexual impulses. Failure of success did not prevent him from continuing to pursue his ultimate objective which led to further unsuccessful attempts.

The evidence further establishes his failure to control his sexual impulses while in custody. He continued to write about a pedophilic sexual relationship between an adult male and young girl.

[31] The appellant argues that his totally unconsummated conduct on April 29, 2005 and his subsequent sexual writings while in custody cannot amount to a failure to control his sexual impulses. In neither case, did the appellant act on his fantasies.

[32] While such fantasies can be considered as part of the psychiatric assessment of future dangerousness, the appellant submits they cannot be considered when determining whether the threshold of s. 753(1)(b) has been satisfied. That threshold requires that "the offender, by his or her conduct in any sexual matter … has shown a failure to control his or her sexual impulses and a likelihood of causing injury … to other persons through failure in the future to control his or her sexual impulses."

[33] We do not accept this submission. As we have said, the trial judge properly convicted the appellant of attempted kidnapping and attempted aggravated sexual assault in relation to the April 29, 2005 incident. The fact that the appellant may have been thwarted in his efforts to carry out his fantasies on that date does not operate as a bar to considering his conduct on April 29, 2005 when determining whether the threshold under s. 753(1)(b) has been satisfied.

[34] In light of these conclusions, it is unnecessary that we consider the appellant's arguments in relation to s. 753(1)(a)(ii).

[35] The appellant's final argument is that the trial judge erred in holding that there was no reasonable possibility of eventually managing the appellant's risk in the community and therefore in declining to impose a determinate sentence and long-term supervision order. He points, in particular, to the trial judge's statement:

I am not satisfied that [the appellant] will be willing to take anti-androgen medication in perpetuity, that the National Parole Board will compel him to take sex drive reducing medication, or that the doctor treating him would prescribe such medication.

[36] The appellant argues that in finding that he might not be willing to take the medication, the trial judge relied unreasonably on a passing comment by the Crown psychiatrist that taking such medication was not the appellant's "first choice". He also argues that the trial judge ignored clear authority regarding the appropriateness of imposing a condition requiring administration of anti-androgen medication to reduce an offender's risk in the community.

[37] The appellant also contends that the trial judge demonstrated unreasonable scepticism about the prospects of treatment and supervision in this case. Particularly having regard to the evidence concerning decreasing risk with advancing age and available community supervision, the trial judge's conclusion that there was no reasonable possibility of eventual control in the community was unreasonable.

[38] We do not accept these submissions. The trial judge gave several reasons for concluding there was uncertainty about the appellant's willingness to take sex drive reducing medication, about the impact such medication could have in reducing the appellant's risk to the community and about enforcement challenges that could arise in relation to anti-androgen medications. These reasons included the fact that there was no evidence of whether the appellant would be able, medically, to take the drugs, and if he is, evidence of whether the drugs might have potential harmful side-effects to the appellant which could affect his ability to take drugs of the necessary potency. There is still no such evidence before this court.

[39] As for the prospects of treatment and adequate supervision, the trial judge found that the appellant suffers from life-long disorders (including pedophilia, sexual sadism and substance dependence disorder) for which there is no cure and that the evidence "directed to a possibility that [the appellant] could be treated sufficiently to reduce his risk to an acceptable level amounts to no more than an expression of hope". Moreover, the trial judge fully considered the evidence relating to available supervision in the community and the effects of aging.

[40] Having regard to the whole of the trial judge's reasons for declining to impose a determinate sentence and a long-term supervision order, we see nothing unreasonable about the trial judge's decision. The appellant's sentence appeal is dismissed.

Disposition

[41] Based on the foregoing reasons, the appellant's appeal from conviction and sentence is dismissed.

Released: August 4, 2017

Signed:

"Janet Simmons J.A." "John Laskin J.A." "G. Pardu J.A."

Footnote

[1] Among other things the writings authored by Melanson included "incident reports" describing disabling a woman in the parking garage, taking her to the security office, raping and torturing her, and killing her with a knife.