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), (2.1), (2.2), (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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant's sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

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

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 victim of the right to make an application for the order; and

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

486.4(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

486.4(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of their right to make an application for the order; and

(b) on application of the victim or the prosecutor, 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); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22, 48; 2015, c. 13, s. 18.

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. 1

Court of Appeal for Ontario

Date: 2019-12-12

Docket: C63934

Panel: Fairburn, Harvison Young and Thorburn JJ.A.

Between

Her Majesty the Queen Respondent

and

C.W. Appellant

Counsel:

• Geoff Haskell, for the appellant
• Jennifer Epstein, for the respondent

Heard: October 28, 2019

On appeal from: The conviction entered on August 22, 2013 and the sentence imposed on August 5, 2016 by Justice Alexander Sosna of the Superior Court of Justice.

Reasons for Decision

Overview

[1] At a trial by judge alone, C.W. was convicted of a number of counts in relation to his then domestic partner: two counts of aggravated assault and one count each of sexual assault, assault causing bodily harm, assault, assault with a weapon, uttering a death threat, and breach of a probation order. He was acquitted on eight other counts. All of the charges pertained to incidents that occurred between 2007 and 2011.

[2] At the time of these convictions, C.W. already had a lengthy criminal record.

[3] After a hearing on sentence, he was found to be a dangerous offender and given an indeterminate term of incarceration.

[4] C.W. seeks to have his convictions set aside and a new trial ordered on the basis that the trial judge erred by allowing evidence on each count to be considered as similar fact evidence on the other counts. He claims the trial judge erred by failing to:

1. identify the specific issues to be resolved by the evidence;
2. evaluate the degree of similarity or pattern in the evidence across counts;
3. identify which aspects of the discreditable conduct evidence he relied on to convict; and
4. articulate why he relied on the cross-count application of evidence to convict on some counts but not others.

[5] C.W. also claims the trial judge erred in declaring him to be a dangerous offender. He says the trial judge erred by failing to properly address whether a pattern of repetitive behaviour, sufficient to meet the statutory criteria in s. 753(1)(a)(i) of the Criminal Code, R.S.C., 1985, c. C-46, was met. Accordingly, he argues that the dangerous offender declaration should be set aside.

[6] He also argues that, even if he was properly declared a dangerous offender, the trial judge erred in failing to address whether his behaviour was intractable such that the indeterminate sentence should be set aside.

[7] For the reasons that follow, we dismiss both the conviction and sentence appeals.

The Decision Below

[8] The charges in this indictment arose from allegations of domestic abuse.

[9] The Crown asked the trial judge to consider the evidence across counts. The trial judge determined that the purpose of doing so was consistent with the decision in R. v. R. (B.S.), 81 O.R. (3d) 641 (C.A.), at para. 38, which held that the evidence could be considered across counts to,

explain the nature and dynamic of the relationship between the appellant and [the complainant], to demonstrate the appellant's animus toward [the complainant], to assist in explaining [the complainant's] delay in fully disclosing the assaultive acts of her husband, and to rebut the appellant's claim of fabrication by [the complainant].

[10] The trial judge noted that he had concerns about the complainant's credibility. Therefore, despite his ruling allowing for the cross-count consideration of evidence, he found C.W. guilty only on those counts where there was also other evidence to corroborate the complainant's testimony.

Analysis and Conclusion

[11] As noted above, the trial judge articulated the four purposes for which he allowed the cross-count application of evidence, namely: (1) to explain the dynamics of the relationship between C.W. and the complainant; (2) to demonstrate C.W.'s animus toward the complainant; (3) to explain why she delayed in making a complaint; (4) and to rebut the appellant's suggestion that the complainant fabricated her story. These four purposes are consistent with the reasons in this court's judgment in B.S.R.

[12] Contrary to a submission made by the appellant, there is no requirement to demonstrate the cause of animus toward the complainant. The fact that there was a pattern of animus is sufficient to assist the trier of fact to understand the nature of the relationship in which the violence is said to have occurred: R. v. F. (D.S.), 43 O.R. (3d) 609 (C.A.), at para. 25; R. v. P.S., 2007 ONCA 299, 221 C.C.C. (3d) 45, at para. 36.

[13] The evidence was not used across counts to assist in determining the identity of the perpetrator, but whether the offences were committed. The cross-count evidence informed that question because, among other things, it addressed the issue of C.W.'s animus and the nature of his relationship with the complainant: R. v. Batte, 49 O.R. (3d) 321 (C.A.), at paras. 102-103.

[14] Bearing in mind the purposes for which the cross-count application of evidence was permitted, and given that identity was not in issue, the trial judge was under no obligation to assess the degree of similarity or patterning between the various incidents of alleged violent assaults: R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at paras. 78-80.

[15] Moreover, we do not accept that the trial judge was unclear about the evidence he relied on to convict. On those counts where he considered evidence from other counts, he explained his approach to that evidence. For example, he explained that evidence from some counts was relevant to other counts to demonstrate that C.W. had animus toward the complainant and that C.W.'s relationship with the complainant was violent and controlling.

[16] However, given his concerns regarding the complainant's credibility, the trial judge only convicted C.W. on those counts where there was other evidence, external to the cross-count application of evidence, to corroborate those convictions, such as photographs of the injuries, and/or evidence from witnesses to the assaults. Where that evidence was lacking, acquittals flowed.

[17] For these reasons, we see no error in the trial judge's approach to the cross-count application of evidence. The conviction appeal is dismissed.

Sentence

[18] C.W. argues that the Crown did not establish "a pattern of repetitive behaviour" within the meaning of s. 753(1)(a)(i) of the Criminal Code and the reasons for sentence do not demonstrate that the Crown proved his behaviour was intractable.

[19] Section 753(1)(a) provides that 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 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, or …

Pattern of Repetitive Behaviour

[20] C.W. agrees that the predicate offence was a "serious personal injury offence". The sentencing judge concluded that C.W. exhibited a pattern of repetitive behaviour that shows a failure to restrain his behaviour and a likelihood of causing death, injury, or severe psychological harm to others through the failure in the future to restrain his behaviour.

[21] C.W. claims the reasons for sentence do not articulate that there was a pattern of behaviour or what the pattern of behaviour was.

[22] We disagree.

[23] While the reasons did not provide a detailed explanation as to why and how the "pattern of repetitive behaviour" was found, that is because the matter was conceded by the appellant at the sentencing hearing. In its Notice of Response to the dangerous offender designation, C.W.'s counsel agreed that "[t]here is no issue in these proceedings that there is a pattern of repetitive behaviour … which shows a lack of restraint by [C.W.] in the past." Given this concession, the reasons did not focus upon an explanation as to why the trial judge was satisfied that this statutory prerequisite was met.

[24] In any event, there was ample evidence to support that conclusion.

[25] C.W.'s history of offences involving domestic violence, including some more dated offences, combined with the many offences he was found guilty of in this proceeding, were extremely serious. In addition, two forensic psychiatrists provided expert opinions that C.W. is at a high risk of reoffending violently, particularly in a domestic context.

[26] Taken together, this evidence demonstrated the necessary pattern of repetitive behaviour. We agree with the trial judge's conclusion that there was "overwhelming evidence" that the statutory criteria had been met to find a pattern of repetitive behaviour that demonstrates a failure to restrain his behaviour and a likelihood he will cause serious injury to others.

Persistent Aggressive Behaviour

[27] The sentencing judge also considered the second avenue to the dangerous offender finding: a pattern of persistent aggressive behaviour.

[28] This test does not depend upon similarities among the predicate offences; it is the fact that C.W.'s behaviour demonstrates a pattern of persistent aggression and a substantial degree of indifference to the consequences of his actions. C.W. did not dispute that his numerous prior convictions for assault and uttering threats demonstrate persistent aggressive behaviour.

Future Treatment Prospects

[29] The trial judge did not have the benefit of the decision in R. v. Boutilier, 2017 SCC 64, [2017] 2 S.C.R. 936, at paras. 44-46, which provides that in deciding whether to impose a dangerous offender designation, future treatment prospects must be considered. He relied on legal authorities in existence before the Boutilier case was released. The Crown concedes that the failure to address future treatment prospects is an error of law.

[30] However, the failure to address C.W.'s future prospects will not undermine the designation if there is no reasonable possibility that the "verdict would have been any different had the error of law not been made": R. v. Gracie, 2019 ONCA 658, at paras. 3, 35, and 53.

[31] It is clear from the evidence that there is nothing that would suggest that the finding of dangerousness would be any different had the trial judge considered C.W.'s treatment prospects at the designation stage. In fact, C.W.'s prospects for future treatment are poor for the following reasons:

1. C.W. has anti-social personality disorder with significant psychopathic traits. This is a serious mental illness;
2. This type of mental illness is difficult to treat and manage;
3. According to the two forensic psychiatrists who gave expert testimony, he is at high risk for recidivism and there is no treatment "so compelling" that it could mitigate this risk;
4. He is a heavy and chronic drug and substance abuser;
5. He minimized his assaultive behaviour; and
6. He has a history of disobeying court orders.

[32] Taken together, there was ample evidence of C.W.'s high likelihood of violent recidivism and poor prospects for rehabilitation.

[33] Lastly, the sentencing judge considered lesser sentencing options but concluded that:

Based on all the evidence, I have no confidence, let alone reasonable expectation that a measure less than an indeterminate sentence will adequately protect the public from the harm referred to in s. 753(4)(1) of the Criminal Code.

I am satisfied that … there is a pattern of behaviour by [C.W.] including the index offences, showing a failure to restrain his behaviour and a likelihood of causing death or injury to other persons, including intimate or domestic partners, or inflicting severe psychological damage on other persons through a failure in the future to restrain his behaviour.

There is a pattern of persistent aggressive behaviour showing a substantial degree of indifference respecting the reasonable foreseeable consequences to other persons of his behaviour.

[34] His determination that there was no reasonable prospect of controlling C.W.'s behaviour in the community at the penalty stage can also be relied on at the dangerous offender designation stage: Gracie, at para. 37.

[35] Lastly, s. 753(4.1) of the Criminal Code requires the court to impose an indeterminate sentence in the following circumstances, as later interpreted in Boutilier. Section 753(4.1) states:

The court shall impose a sentence of detention in a penitentiary for an indeterminate period unless it is satisfied by the evidence adduced during the hearing of the application that there is a reasonable expectation that a lesser measure under paragraph (4)(b) or (c) will adequately protect the public against the commission by the offender of murder or a serious personal injury offence. [Emphasis added.]

[36] Consistent with Boutilier, at para. 71, the sentencing judge did not "impose an onus, a rebuttable presumption, or mandatory sanctioning." Rather, he considered all of the evidence, turned his mind to lesser sentencing options but found they were insufficient to adequately protect the public. We see no error in his decision to impose an indeterminate sentence.

[37] The appeals are dismissed.

"Fairburn J.A."

"A. Harvison Young J.A."

"J.A. Thorburn J.A."