Court of Appeal for Ontario

Date: 2018-04-23 Docket: C58176

Judges: Rouleau, Tulloch and Fairburn JJ.A.

Between

Her Majesty the Queen Respondent

and

Donald Charles Walters Appellant

Counsel

Appellant: Donald Charles Walters, in person; Erika Chozik, duty counsel

Respondent: Gregory J. Tweney

Heard: April 5, 2018

On Appeal

On appeal from the conviction entered on November 29, 2011 and the sentence imposed on November 20, 2013 by Justice Faye E. McWatt of the Superior Court of Justice, sitting with a jury.

Reasons for Decision

[1] The appellant was declared a dangerous offender following his conviction for one count of criminal harassment and four counts of failure to comply with probation orders. In addition to just over three years of pre-sentence custody, a two year custodial term was imposed, along with a ten year long term supervision order ("LTSO").

[2] This is an appeal from the dangerous offender finding and from the two year custodial sentence imposed.

[3] The appellant argues that the trial judge erred in two ways:

(a) Finding that the criminal harassment constituted a serious personal injury offence as required under s. 753(1)(a) of the Criminal Code.

(b) Finding under s. 753(1)(a)(i) that there was a pattern of repetitive behaviour, of which the predicate offence formed a part, showing a failure to restrain his behaviour and a likelihood of inflicting severe psychological damage on others through a failure in the future to restrain his behaviour. It is said that this finding was without an evidentiary foundation because:

(i) the Crown's expert only opined as to the likelihood of future "significant psychological harm", which is said to fall short of the statutory requirement of the likelihood of future "severe psychological damage"; and

(ii) based upon the types of offences committed in the past, which primarily consisted of what are described as indecent exposure types of offences, severe psychological harm could not be inferred. As the appellant's former victims did not testify about psychological damage that they may or may not have suffered, it is unclear as to whether any future offences of a similar ilk would result in the statutory requirement for the infliction of severe psychological damage.

[4] We disagree.

[5] Section 752 defines a serious personal injury offence as including an indictable offence involving the infliction or likely infliction of "severe psychological damage upon another person". The trial judge found as a fact that the complainant in the predicate offence suffered severe psychological damage: R. v. Walters, 2012 ONSC 3567, at paras. 12-16. Although the trial judge noted that the offence was not "violent in the usual way", because there was no physical touching, she concluded that it was "physically and psychologically violent in all other circumstances".

[6] The criminal harassment arose from the appellant emerging from the bushes in the dark, on a lonely street. He was close enough that the complainant could feel his breath. He was masturbating as he followed her. The finding of severe psychological damage is well supported on the record, including the complainant's evidence that she panicked, was scared and terrified, could no longer go out without fear, and now hears footsteps when she is outside. As she said, her "life flashed before [her] eyes … not knowing if [she] would be seriously harmed or killed". She maintained in her victim impact statement that the crime had changed her. In these circumstances, it was reasonable for the trial judge to conclude that this was a serious personal injury offence and that the complainant had suffered severe psychological damage.

[7] The fact that Dr. Glancy did not use terminology that precisely tracks the language of the Criminal Code is not determinative of the issue. The legal determination was for the trial judge to make. She properly considered Dr. Glancy's evidence, along with the complainant's evidence and the appellant's criminal record of 15 prior sexual offences and 19 prior non-sexual violent offences and 21 breaches of court orders, in reaching her conclusion.

[8] Although the appellant maintains that the nature of his prior conduct falls largely at the lower end of seriousness for sexual and other violent misconduct, the trial judge was required to consider the conduct as a whole, along with the expert evidence as to the future likelihood of severe psychological damage. The entire package of conduct is what led to the conclusion about the appellant's ongoing dangerousness.

[9] We see no basis to interfere with this decision. It was a reasonable conclusion.

[10] In addition, we note that the trial judge also found that the appellant met the criteria for designation as a dangerous offender under 753(1)(a)(ii) of the Criminal Code. We see no error in her analysis under this provision.

[11] The appellant also maintains that the custodial sentence of two years, in addition to three years of pre-sentence custody, along with an LTSO of 10 years, was excessive. He has completed the custodial portion of his sentence and continues to serve his LTSO in a halfway house.

[12] The appellant argues that the sentence was excessive in light of the jump principle and the trial judge's failure to consider the circumstances of the offender. We disagree.

[13] We are satisfied that the trial judge properly approached her task of sentencing the appellant, after he had been found a dangerous offender, in a manner that emphasized the least intrusive sentence required to achieve the primary purpose of the statutory scheme: R. v. Boutilier, 2017 SCC 64, [2017] 2 S.C.R. 936, at para. 60. In particular, the trial judge had regard to the need for the appellant to be in a penitentiary setting in order to access necessary "high intensity sexual assault programs". The trial judge determined this to be necessary treatment to address the significant threat posed by the appellant to the community.

[14] The appeal is dismissed.

"Paul Rouleau J.A."

"M. Tulloch J.A."

"Fairburn J.A."