Her Majesty the Queen v. Gracie

[Indexed as: R. v. Gracie]

Ontario Reports

Court of Appeal for Ontario

Rouleau, D.M. Miller and Fairburn JJ.A.

August 19, 2019

147 O.R. (3d) 385 | 2019 ONCA 658

Case Summary

Criminal law — Dangerous offenders — Designation — Accused pleading guilty to two counts of aggravated sexual assault — Sentencing judge designating accused as dangerous offender and imposing indeterminate sentence — Sentencing judge failing to conduct necessary prospective risk assessment at designation stage — Error having no effect on designation — Evidence overwhelmingly supporting sentencing judge's finding of intractability at penalty stage — That finding applicable at designation stage as trial judge did not improperly place onus on accused at penalty stage to show that there was no reasonable expectation that lesser measure than indeterminate sentence would adequately protect public.

Criminal law — Dangerous offenders — Sentencing — Accused pleading guilty to two counts of aggravated sexual assault — Sentencing judge designating accused as dangerous offender and imposing indeterminate sentence — Sentencing judge erring by failing to consider accused's Indigenous background and relevant Gladue factors at penalty stage — Accused's appeal from indeterminate sentence dismissed as there was no reasonable possibility that penalty would have been different had error not been made.

Facts

The accused pleaded guilty to two counts of aggravated sexual assault based on his failure to disclose his HIV-positive status to two women before having unprotected sex with them. He had a lengthy criminal record that included convictions for sexual assault causing bodily harm, counselling the murder of a police officer, uttering threats, and possession of a weapon for a dangerous purpose. He was assessed by both the Crown and defence psychiatrists as having an antisocial personality disorder, some psychopathic traits and a marijuana dependence disorder. They concluded that he presented a moderate to high risk for future sexual and violent recidivism. The Crown's psychiatrist was "moderately pessimistic" about the probability of managing the accused's risk in the community. The defence psychiatrist thought it was "possible" that with targeted treatment the accused might eventually be controlled in the community but he was unable to express any degree of certainty about that outcome. The sentencing judge designated accused as a dangerous offender and imposed an indeterminate sentence. The accused appealed the designation and the indeterminate sentence.

Held

The appeal should be dismissed.

The Crown conceded that the sentencing judge erred by failing to conduct the necessary prospective risk assessment at the designation stage, rather than the penalty stage, and by failing to consider the accused's indigenous background and the relevant Gladue factors at the penalty stage. However, there was no reasonable possibility that those errors could have affected the result. The accused erroneously argued at the penalty stage there was an onus on the accused to demonstrate that an indeterminate sentence ought not to be imposed because there is a reasonable expectation that a lesser measure will adequately protect the public. The Supreme Court has concluded that there is no onus involved at the penalty phase and the sentencing judge did not improperly impose such an onus on the accused. The sentencing judge's finding that there was no reasonable prospect of control of the accused in the community at the penalty stage could therefore be relied on at the designation stage. The evidence supporting a finding of intractability was overwhelming. The sentencing judge's failure to consider the accused's Indigenous background at the penalty stage had no impact on the outcome. The accused was adopted as an infant and was raised in a loving and supportive family. A Gladue report was prepared but was barely mentioned by defence counsel at the sentencing hearing, and no submissions were made on the relevance of the Gladue factors to the issues to be addressed on the dangerous offender application. The record did not suggest that the accused's Indigenous background might have had a significant impact on his future prospects for treatment. There was simply no evidentiary foundation for his suggestion that the culturally specific Indigenous programming or treatment options outlined in the report would have any prospect of addressing the risk factors identified by the psychiatrists for committing future violent or sexual offences. Therefore, even with consideration of the Gladue report there is no basis for the accused's argument that a sentence other than an indeterminate sentence would be appropriate.

The accused challenged the reliability of the risk assessment tools used by the experts in this case as they apply to indigenous offenders, an issue not raised at trial so the court had no evidentiary foundation upon which to make a finding. The expert in Ewert who testified that actuarial instruments were susceptible to cultural bias has since twice testified about their application to Indigenous offenders. In one case, he testified that the tools were moderately predictive of risk, even when applied to Indigenous offenders and in another case he testified that he knew of no research supporting the assertion that there was an inherent bias in the actuarial instruments when they were used in relation to Indigenous offenders. Any concerns based on Ewert that the tools were unreliable because the accused was Indigenous did not undermine the force of the expert evidence or the conclusions of the sentencing judge about the risk he posed.

Statutes Referred To

Criminal Code, R.S.C. 1985, c. C-46, ss. 752.1, 753(1)(a)(i), (ii), (4), (4.1), 759(3)(b)

APPEAL

Appeal by the accused from a designation as a dangerous offender and from the indeterminate sentence imposed by Hockin J. of the Superior Court of Justice on February 24, 2015.

Counsel:

Andrew Furgiuele and Angela Ruffo, for appellant.

Gregory J. Tweney, for respondent.

Judgment

The judgment of the court was delivered by

ROULEAU J.A.:

A. Overview

[1] The appellant appeals from his designation as a dangerous offender and from his sentence of an indeterminate period of incarceration. His designation and sentence followed his guilty plea to two counts of aggravated sexual assault after endangering the lives of two women by having unprotected sex with them without first disclosing his HIV-positive status. Both women contracted the disease as a result of these offences.

[2] In his factum, the appellant sets out three grounds of appeal. In oral submissions, however, we were advised that only two of these grounds were being pursued: the failure of the sentencing judge to conduct the necessary prospective risk assessment at the designation stage, as required by R. v. Boutilier, [2017] 2 S.C.R. 936, 2017 SCC 64, and the sentencing judge's failure to consider the fact that the appellant was Indigenous and the relevant principles from R. v. Gladue, [1999] 1 S.C.R. 688.

[3] The Crown concedes that the two errors were committed, but maintains that neither had an impact on either the designation of the appellant as a dangerous offender or the indeterminate sentence imposed on him. In the Crown's submission, this is one of the "rarest of circumstances" where, as explained in R. v. Johnson, [2003] 2 S.C.R. 357, 2003 SCC 46, at para. 49, the appeal can be dismissed pursuant to s. 759(3)(b) of the Criminal Code because "there is no reasonable possibility that the verdict would have been any different had the error of law not been made": see, also, R. v. Sipos, [2014] 2 S.C.R. 423, 2014 SCC 47, at paras. 24, 48.

[4] For the reasons that follow, I would dismiss the appeal.

B. Facts

(1) The appellant's background

[5] The appellant is a 43-year-old man of Indigenous ancestry. As an infant, he was adopted by non-Indigenous parents, with whom he maintained a positive relationship. When he was approximately 15 years old, he moved out of his parent's home and started having contact with the criminal justice system.

[6] The appellant has now amassed a lengthy criminal record, consisting of 25 youth convictions and ten adult convictions. At the age of 20, he was convicted of sexual assault causing bodily harm for the violent rape of a prostitute. He had taken her to a secluded area where he had punched her, raped her anally and vaginally, and then ejaculated into her mouth. When the sentencing judge imposed a five-year sentence on the appellant, he observed that the appellant "suddenly became a predator for absolutely no reason".

[7] While in custody for this offence, the appellant was charged and convicted of the offence of counselling the murder of the police officer who had investigated the sexual assault causing bodily harm charge for which he was convicted. The sentencing judge observed that the appellant appeared to be motivated solely by his desire for revenge and retribution. He imposed a five-year penitentiary sentence, consecutive to the sentence the appellant was then serving.

[8] Following his release from prison, the appellant received further convictions for uttering threats, possessing a weapon for a dangerous purpose and assaulting a police officer. It is while he was on probation for these offences that he committed the predicate offences.

(2) The predicate offences

[9] The appellant pleaded guilty to two counts of aggravated sexual assault. He had failed to disclose to two women that he was HIV-positive and transmitted the HIV virus to them through sexual activity, thereby endangering their lives.

[10] The first complainant, C.C., came to know the appellant as they spent time walking their dogs together. In early 2010, after an evening of drinking in C.C.'s apartment, the appellant asked her several times to have sex with him. She refused every time. At approximately midnight, feeling ill and tired, she went to bed. The appellant said he would sleep over on the futon in the living room. When C.C. woke up the next morning, her vagina was sore and she observed semen leaking out of it. After initial denials, the appellant ultimately admitted that he had sex with her while she was asleep. Approximately one year later, after getting blood work done in relation to a pregnancy, C.C. found out that she had contracted HIV.

[11] The second complainant, M.N., was involved in sporadic relationships with the appellant between 2008 and 2011. When they dated in 2010, the appellant told M.N. on multiple occasions that he did not have a sexually transmitted disease. They engaged in unprotected sex. In 2011, they started dating again and engaged in unprotected intercourse after the appellant confirmed that he had no sexually transmitted diseases. In April of that year, M.N. saw a police media release naming the appellant as an HIV-infected person charged with aggravated sexual assault. She sought medical treatment and learned that she had contracted HIV from the appellant.

[12] To establish the mens rea component of the offences, medical evidence dating back to 2002 was tendered. It demonstrated that the appellant had been educated by physicians on the great risk posed by unprotected sex to sexual partners.

(3) The uncharged conduct involving a third victim

[13] At the sentencing hearing, the Crown tendered the evidence of N.R. N.R. had met the appellant through a social networking site in 2009. Later that year, the appellant travelled to Halifax to visit N.R. He stayed with her, her children and her parents. The appellant assured N.R. that he had no sexually transmitted disease. The appellant and N.R. had unprotected sex on several occasions.

[14] When the appellant left Halifax, N.R. learned that, contrary to what he had told her, he did not live with a male roommate but rather with his girlfriend. N.R. then broke off relations with the appellant some time later.

[15] Approximately three years later, in October 2012, N.R. learned that the appellant was HIV-positive. She reported the matter to police and was tested for HIV. The test was negative. The sentencing judge relied on N.R.'s testimony as further evidence of the pattern of behaviour that could support a dangerous offender designation.

(4) The appellant's supervision and treatment history

[16] While serving his ten-year penitentiary sentence commencing in 1996, the appellant was identified as being a "High Risk/Needs" offender. His correctional plan recommended that he attend various programs, including a sex offender program, an anger and emotions management program and an educational upgrading program. Although the appellant attended some of the recommended programs, there was, overall, little progress in completion of his correctional plan and no observable change in his behaviour. According to his parole officer, there was no change in the appellant's level of insight into his offending behaviour.

[17] The National Parole Board, who reviewed the appellant's detention on four occasions, also noted in its first assessment that the appellant lacked insight into his risk factors. The following three assessments respectively noted that there was no change in his level of insight, no reduction in risk and no observable change in his behaviour. It determined that the appellant should remain incarcerated until the expiration of his sentence.

[18] While the appellant was on probation following his 2008 convictions for the offences of uttering threats, possessing a weapon and assaulting a police officer, the police expressed concern to the probation officer who supervised him that the appellant might be having unprotected sex and not disclosing his HIV status to potential sexual partners. As a result, the probation officer clearly conveyed to the appellant the moral and legal obligations of reporting his HIV status to potential partners. The two predicate offences and the uncharged assault on N.R. occurred subsequent to this caution.

[19] Following his arrest for the predicate offences, the appellant was detained at the Elgin Middlesex Detention Centre. He was detained there for over three years while he was awaiting sentencing. During that time, the appellant expressed some remorse and acceptance of responsibility for the failure to disclose his HIV status to his sexual partners. In addition to being drug-free, he incurred no misconducts or occurrences during this detention. Moreover, the appellant was committed and motivated to address issues that had caused him trouble in the past and to make necessary changes to his life. He was an active participant in institutional programming to address his substance abuse and anger management issues, as well as to reduce stress.

(5) Psychiatric evidence

[20] Dr. Scott Woodside performed the psychiatric assessment ordered under s. 752.1 of the Criminal Code and Dr. Gary Chaimowitz provided expert evidence for the defence. Both experts found that the appellant suffers from antisocial personality disorder. A diagnosis of antisocial personality disorder results from meeting at least three of seven criteria, including failure to conform to social norms, deceitfulness, impulsivity, reckless disregard for the safety of self or others and lack of remorse. The appellant met all seven criteria.

[21] The appellant's scores on PCL-R, an instrument used to measure psychopathy, indicated that he had significant psychopathic traits but that he was situated slightly below the cut-off for a formal diagnosis of psychopathy.

[22] The experts also found that the appellant suffered from a marijuana dependence disorder. From their clinical and actuarial evaluation of the appellant, the experts opined that he posed a moderate to high risk for both sexual and violent recidivism.

[23] The experts also agreed that antisocial personality disorder and psychopathy are generally difficult to treat but disagreed on his future treatment prospects. In his report, Dr. Woodside provided the following summary:

Overall, there are significant issues present relating to managing this individual's risk in the community. This is most evident regarding the index offenses wherein Mr. Gracie was counseled by both medical personnel and his probation officers regarding the need to advise intimate partners of his HIV status but failed to do so. This illustrates the difficulty in attempting to manage this type of offending behaviour in the community, especially where the offender is duplicitous.

[24] Dr. Woodside viewed the appellant as having a moderate-high risk for sexually violent recidivism and moderate-high risk for non-sexually violent recidivism. He was "moderately pessimistic" about the ability to successfully manage the appellant's risk in the community. A specific challenge to risk management was the appellant's demonstrated history of failing to inform his sexual partners of his HIV status despite the counselling he received on multiple occasions. Dr. Woodside also found that the appellant's professed willingness to participate in treatment was undermined by his ambivalence about the necessity for treatment and what types of treatments he needed, as well as by his struggle to identify treatment targets.

[25] Dr. Chaimowitz reported, like Dr. Woodside, that the appellant's risk scores tended toward the moderate to high range, specifically in the sexual violence domain. However, in terms of future treatment prospects, Dr. Chaimowitz was slightly more optimistic than Dr. Woodside. As the appellant had not had the benefit of a comprehensive treatment program, it was "possible that should he take the appropriate treatment, treatment directed towards his risk factors, there may be some opportunity for eventual control of his risk in the community". Dr. Chaimowitz noted that, although the appellant appeared much more stable than before, there was insufficient evidence to say with any degree of certainty whether the appellant could be controlled in the community.

(6) The Gladue report

[26] A Gladue report was filed as an exhibit in the sentencing proceedings. The report noted that the appellant's biological mother was of Mi'kmiq heritage and a member of the Millbrook First Nations in Nova Scotia. The appellant was adopted by his adoptive parents when he was five months old and, while the appellant was young, they moved to Toronto. The appellant had four siblings and a normal family life. As a young child, a non-Indigenous uncle exposed him to sweat lodge and smudging ceremonies, and to hunting, fishing and trapping.

[27] When the appellant travelled to Nova Scotia to visit N.R. in 2009, he also met his biological mother. He was 33 years of age at the time. He told the author of the Gladue report that he was interested in reconnecting with his Indigenous roots. During his detention at the Elgin Middlesex Detention Centre, while he was awaiting sentencing in this case, the appellant attended an Indigenous cultural program called "Native Sons".

C. The Decision Below

[28] In his reasons on the Crown application to declare the appellant a dangerous offender, the sentencing judge explained that he had adopted the approach of this court in R. v. Szostak (2014), 118 O.R. (3d) 401, 2014 ONCA 15, leave to appeal to S.C.C. refused. Pursuant to Szostak, the issue to be decided at the designation stage was whether, based on the evidence led, including expert evidence, the appellant's past conduct established beyond a reasonable doubt:

(1) a pattern of repetitive behaviour showing a failure to restrain his 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 behaviour (s. 753(1)(a)(i)); or

(2) a pattern of persistent aggressive behaviour showing a substantial degree of indifference on his part respecting the reasonably foreseeable consequences to other persons of his behaviour (s. 753(1)(a)(ii)).

[29] In Szostak, the court explained that the intractability of the offending conduct was only considered at the second step of the analysis, when the court made the decision as to the appropriate sentence to be imposed pursuant to ss. 753(4) and (4.1).

[30] The sentencing judge concluded that the criteria to designate the appellant as a dangerous offender had been made out. He then moved to the penalty stage. The sentencing judge was satisfied that there was a reasonable expectation that a determinate sentence coupled with a long-term supervision order would not adequately protect the public. He found that he was unable to act on Dr. Chaimowitz's opinion and instead agreed with Dr. Woodside that a prognosis of control in the community was unrealistic. He therefore imposed an indeterminate sentence on the appellant.

D. Issue

[31] As noted earlier, the Crown concedes that the sentencing judge committed two errors. First, the sentencing judge failed to conduct the necessary prospective risk assessment at the designation stage, as required by the Supreme Court of Canada in Boutilier. Second, he failed to consider the appellant's Indigenous background and the relevant Gladue principles. The issue on appeal, therefore, is whether the court should interfere with the sentence imposed on the appellant, given these two errors.

E. Analysis

(1) The intractability criteria

[32] In his analysis, the sentencing judge, relying on Szostak, essentially removed the intractability analysis from the designation stage and moved it to the penalty stage. He cannot be faulted for this because, at the time, Szostak was the leading authority on the question. The Supreme Court of Canada, in Boutilier, has since overruled Szostak on this point. The court explained that prospective risk evidence had to be considered both at the designation and penalty stages, albeit for different purposes, as follows [at para. 31]:

The designation stage is concerned with assessing the future threat posed by an offender. The penalty stage is concerned with imposing the appropriate sentence to manage the established threat. Though evidence may establish that an offender is unable to surmount his or her violent conduct, the sentencing judge must, at the penalty stage, turn his or her mind to whether the risk arising from the offender's behaviour can be adequately managed outside of an indeterminate sentence.

[33] The appellant submits that, because of this error, the sentencing judge did not engage in a prospective risk assessment of the appellant before declaring him to be a dangerous offender. As a result, he maintains that the appeal should be allowed and the dangerous offender designation set aside. The appellant argues that the fact that the sentencing judge found, at the penalty stage, that the appellant's violent pattern of conduct was intractable does not necessarily mean that, had the sentencing judge properly applied Boutilier, he would have found the appellant to be a dangerous offender at the designation stage. The appellant contends that, at the designation stage, the onus is on the Crown to prove intractability beyond a reasonable doubt, while at the penalty stage, the onus is on the appellant to show that there is a reasonable expectation that a lesser measure than an indeterminate sentence will adequately protect the public. As a result, the fact that the sentencing judge found that the appellant had not met its onus of showing that a lesser measure than an indeterminate sentence would adequately protect the public at the penalty stage is not equivalent to a finding that the Crown met its onus of proving intractability beyond a reasonable doubt at the designation stage.

[34] In support of this submission, the appellant argues that there was evidence suggesting that his offending behaviour was not intractable. In this regard, he points to his exemplary conduct during the more than three years he spent awaiting sentencing at the Elgin Middlesex Detention Centre. The appellant's record while in detention shows that he was making progress in addressing his issues. According to a counsellor at the detention centre, the appellant expressed his desire to address his substance abuse and health problems. She noted that he was actively involved in programs and was a model prisoner. This evidence addresses the issue of prospective risk but was only dealt with by the sentencing judge at the penalty stage, the stage at which the onus rested on the appellant. In the appellant's submission, this evidence, together with other evidence such as Dr. Chaimowitz's evidence of possible control, should have been considered at the designation stage when the onus was on the Crown. Had it been considered at that stage, it may have raised a reasonable doubt as to the intractability requirement that must be met before a person can be designated as a dangerous offender.

[35] I disagree. In my view, despite the sentencing judge's error, there is no reasonable possibility that the verdict would have been any different. I say so for two reasons.

[36] First, I disagree with the appellant's submission that, at the penalty stage, there is an onus on the offender of demonstrating that an indeterminate sentence ought not to be imposed because there is a reasonable expectation that a lesser measure will adequately protect the public. In Boutilier, the court rejected this suggestion. At para. 71, the court explained that there is no onus at the penalty stage:

Properly read and applied, s. 753(4.1) does not impose an onus, a rebuttable presumption, or mandatory sanctioning. Nor does it prevent a sentencing judge from considering sentencing objectives and principles. Every sentence must be imposed after an individualized assessment of all of the relevant factors and circumstances.

[37] The sentencing judge's finding that there was no reasonable prospect of control of the appellant in the community at the penalty stage can therefore be relied on at the designation stage.

[38] Second, and more importantly, from my review of the reasons, it is apparent that the sentencing judge did not improperly place an onus on the appellant. The evidence supporting a finding of intractability was overwhelming.

[39] The clinical and actuarial assessments established that the appellant posed a moderate to high risk for violent or sexual recidivism. The appellant's substance abuse disorder exacerbated this risk. It served to inhibit his judgment and empathy. The appellant's antisocial personality disorder and his significant psychopathic traits suggested that he would be less responsive to treatment and more likely to refuse or discontinue treatment, all of which increases the likelihood that he would reoffend.

[40] While in the penitentiary, the appellant showed no signs of insight or willingness to engage in a corrective plan. While there were signs of optimism because of his conduct at the Elgin Middlesex Detention Centre, the sentencing judge determined that this evidence amounted only to a possibility of eventual control in the community, not a reasonable expectation of such control.

[41] The sentencing judge assessed all of the evidence and was satisfied that there was no reasonable expectation that anything other than an indeterminate sentence would adequately protect the public. This conclusion that there was no reasonable expectation of controlling the appellant's offending behaviour was necessarily premised on the sentencing judge's finding that the appellant's harmful recidivism and violent pattern of behaviour was intractable. This finding of fact is fully supported by the evidence led by the Crown and, as explained by the sentencing judge, is anchored in his acceptance of Dr. Woodside's opinion. The sentencing judge explained that "'the convergence' of the two diagnoses of antisocial personality disorder and substance abuse disorder makes it unrealistic to expect for Mr. Gracie his control in the community". A mere hope of control is simply not enough to raise a reasonable doubt in this case.

(2) The Gladue error

(a) The impact of the Gladue factors

[42] The sentencing judge's reasons do not reference the Gladue report and Gladue principles. The appellant submits that the sentencing judge erred by failing to consider the fact that he is Indigenous. He argues that his Indigenous background may have played a role in his offending and the possibility of his accessing Indigenous programs and treatment options should have been considered at the penalty stage. As set out earlier, the appellant demonstrated an interest in reconnecting with his Indigenous heritage by attending the Native Sons program while at the Elgin Middlesex Detention Centre. The steps he took and the interest he has shown in his community and culture were, in the appellant's view, relevant to both his risk assessment and treatment prospects.

[43] Despite the fact that a Gladue report had been prepared and marked as an exhibit to the sentencing proceedings, the sentencing judge made no reference to the report and to Gladue factors in his reasons. The Crown agrees that the absence of any consideration in the sentencing judge's reasons of the appellant's Indigenous heritage constitutes an error of law.

[44] In the Crown's submission, however, on the evidence before the sentencing judge, this error had no impact on the outcome of the case. The Gladue report and Gladue principles were barely mentioned by defence counsel at the sentencing hearing and no submissions were made on the relevance of the Gladue factors to the issues to be addressed on the dangerous offender application. This may well explain why the sentencing judge, despite having indicated that he had considered all of the material filed, made no specific mention of the report. While this does not justify the sentencing judge's failure to address these principles and apply them to the case, it reflects the marginal role that the parties themselves attributed to the Gladue report and factors.

[45] The appellant was adopted as an infant and raised in a loving and supportive family. He was introduced to Indigenous practices as a young child through a non-Indigenous relative. His life of crime began in his teenage years and he did not meet members of his biological family until much later in life, after he committed the predicate offences.

[46] The record does not suggest that the appellant's Indigenous background might have had a significant impact on his future prospects for treatment. The appellant never mentioned reconnecting with his Indigenous roots to either Dr. Chaimowitz or Dr. Woodside. The culturally specific recommendations contained in the Gladue report were not responsive to most of the risk factors identified by the experts. The risk of sexual and violent recidivism was the product of his serious personality disorder, his substance use disorder, his poor treatment and supervision history and the dim prognosis for meaningful change. The only recommendation in the Gladue report of any relevance to addressing these risks was the suggestion that he attend a healing lodge offering traditional and cultural teachings to address a wide variety of concerns, including alcohol and drug addictions.

[47] As a result, there is simply no evidentiary foundation for the appellant's suggestion that the Indigenous programming or treatment options he might access would have any prospect of addressing the risk he poses to the community such that a sentence other than an indeterminate sentence would be appropriate. While the appellant should have access to Indigenous programming, this would not be sufficient to move him from being an offender considered by Dr. Woodside to be unmanageable in the community, to one who could be managed.

(b) The reliability of the actuarial assessment tools

[48] The appellant argues that the risk assessments made by the experts are undermined by concerns about the reliability of the actuarial tests they used. In his submission, the decision in Ewert v. Canada, [2018] 2 S.C.R. 165, 2018 SCC 30, made it clear that there are legitimate concerns about the validity of the psychological and actuarial tools used to do risk assessments when these tests are applied to Indigenous offenders.

[49] As the experts relied on these impugned tools, the appellant submits that the conclusion that he poses a continuing risk is not reliable and that the sentencing judge's designation and penalty decisions should be set aside.

[50] I would reject this ground of appeal. The accuracy of the assessment tools was not a concern raised at the sentencing hearing. In fact, the appellant's own expert relied on several of these tests. I acknowledge that, since Ewert was decided after the decision under appeal, the appellant was not aware of this concern at the time of the sentencing proceedings. The fact remains, however, that the failure to raise this concern means that there was no evidence called at the hearing. This court is thus being asked to make a finding in the absence of a factual basis.

[51] Further, at his highest, Ewert stands for the proposition that these actuarial tools are susceptible to cultural bias. Dr. Hart, the psychologist whose testimony during proceedings at first instance in Ewert advanced the concern as to reliability, has since testified in at least two dangerous offender proceedings. In R. v. Haley, [2016] B.C.J. No. 1347, 2016 BCSC 1144, the trial judge noted that Dr. Hart accepted that actuarial tools have been shown to be moderately predictive of risk, including when they are applied to Indigenous offenders: at para. 258. In R. v. Awasis, [2016] B.C.J. No. 1574, 2016 BCPC 219, Dr. Hart testified that he was unaware of any research supporting the conclusion that there is inherent bias in actuarial tests when they are applied to Indigenous offenders. Based on the testimony of Dr. Hart and another expert, the court in Awasis concluded that actuarial tools are reliable predictors of the future risk of recidivism in Indigenous offenders. The court went on to find Mr. Awasis to be a dangerous offender and imposed an indeterminate period of incarceration.

[52] Moreover, actuarial testing was only one of many factors taken into account by the experts in this case. They also considered their own clinical assessment of the appellant together with other information concerning him, such as his criminal history. Based on their broad assessment of the appellant, both experts concluded that he posed a moderate to high risk for both sexual and violent recidivism. Placed in context, the concerns raised by the appellant as to the reliability of the risk assessment tools as they apply to Indigenous offenders do not undermine the force of the expert evidence or the conclusions of the sentencing judge.

F. Conclusion

[53] In my view, there is no reasonable possibility on this record that the verdict would have been any different had the two errors committed by the sentencing judge not been made.

[54] For these reasons, I would dismiss the appeal.

Appeal dismissed.

End of Document