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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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).

(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.

(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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

(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.

(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.

(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.

(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: 20200106 DOCKET: C64711

Benotto, Brown and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

Bruce Wilson Appellant

Counsel: Brian Snell, for the appellant Philippe G. Cowle, for the respondent

Heard: October 31, 2019

On appeal from the conviction entered on March 7, 2013 and the sentence imposed on July 2, 2014 by Justice Kenneth E. Pedlar of the Superior Court of Justice, sitting with a jury.

Paciocco J.A.:

OVERVIEW

[1] Mr. Bruce Wilson appeals his jury convictions for sexual assault, kidnapping, and uttering death threats. Those convictions turned entirely on male DNA consistent with Mr. Wilson’s DNA that was located on vaginal swabs taken from the complainant within hours after she was attacked by a stranger while walking alone at night in the small town where she lived.

[2] Mr. Wilson testified in his defence, claiming that although the DNA on the vaginal swabs could be from his semen, someone else perpetrated the attack. He raised the prospect that he may have had consensual intercourse with the complainant a few days before the attack, which could account for the DNA result.

[3] In his jury address, Mr. Wilson’s trial counsel [“trial counsel”] relied heavily on DNA testing that was not done on fingernail clippings taken from the complainant, and a shirt worn by the complainant. There was reason to believe that those items could contain DNA from the perpetrator. Trial counsel argued that testing may have supported Mr. Wilson’s defence, and that he should not bear blame for this gap in the evidence but benefit from the reasonable doubt it leaves. The trial judge characterized trial counsel’s submissions as an unfair “shot at the Crown” and issued a corrective instruction. Mr. Wilson claims this corrective instruction was improper, requiring a new trial.

[4] Mr. Wilson also appeals the determination that he is a dangerous offender, as well as the indeterminate sentence that was imposed. In making the dangerous offender determination, the trial judge relied on convictions for offences that took place after the historical offences at issue in this appeal. Mr. Wilson contends it is improper in a dangerous offender hearing for a judge to rely on convictions that were imposed subsequent to the commission of the offence that led to the dangerous offender application. He contends that doing so contravenes “Lord Coke’s principle” that prohibits treating subsequent convictions as aggravating when sentencing an offender for an earlier offence. He argues that the trial judge committed this error.

[5] For reasons that follow, I would find no error in the corrective instruction. I would also hold that Lord Coke’s principle does not prevent the consideration of subsequent convictions in determining whether an offender is a dangerous offender.

[6] I would therefore dismiss both the conviction and sentence appeals.

MATERIAL FACTS

[7] In July of 1994, a stranger overpowered the 16-year-old complainant while she was walking alone in the dark to a friend’s house in a small town. He dragged her into a backyard, threatened her into submission, and then repeatedly raped and sexually assaulted her, before making his escape.

[8] The complainant immediately attended a police station and was taken to a hospital. During a “rape kit” examination, vaginal swabs were taken, and her shirt and fingernail clippings were collected. The shirt was collected because there was reason to believe that it was stained with DNA from the rapist. The complainant said she had used the shirt to wipe what she believed to be ejaculate from her calf. She also said she scratched the rapist, creating the possibility that his DNA could be under her fingernails.

[9] Investigating officers provided all samples to the Centre for Forensic Sciences [“CFS”] for possible forensic testing. Although there was a sufficient quantity and quality of DNA for analysis from the vaginal swabs, the results obtained did not lead to the identification of any suspects. There was insufficient DNA extracted from the shirt, and no testing was attempted on the fingernail clippings.

[10] In 2008, with the benefit of advances in DNA testing technology, the vaginal swabs yielded a DNA profile that strongly correlated with a DNA profile secured from a blood sample from Mr. Wilson. Having obtained this result, and consistent with its protocol to begin with bodily fluids in sexual assault cases, CFS did not test the fingernail clippings, or retest the shirt using more advanced technology.

[11] Due to the DNA test result from the vaginal swab, Mr. Wilson was charged with the offences now under appeal. Evidence presented at his trial of those charges showed that Mr. Wilson shared the single male source DNA profile obtained from the vaginal swabs, the random match probabilities of which are 1 in 1.9 trillion.

[12] Although the complainant’s opportunity to see her attacker was limited by the darkness and her compliance with his threat not to look at him, at the trial, she described her attacker as a big Caucasian man, between 20 and 35 years old, with light hair, prominent cheekbones, and a voice that was not deep. These characteristics were shared by Mr. Wilson, who, in 1994, was from a nearby city.

[13] Mr. Wilson testified in his defence. He offered alternative bases that, if accepted, would explain away the DNA evidence. The first, unsupported by any foundation, was that the DNA analysis was mistaken. The alternative basis was that Mr. Wilson was quite confident that, after seeing her image in a police photo, he recognized the 16-year old complainant as a young prostitute he had consensual sex with in the city that he lived in, around the time of the rape. By misfortune, his DNA may have still been in her vagina when someone else attacked her. During his testimony, Mr. Wilson did not contest evidence that, at the time of the attack, the complainant went to school full-time in a different small town, worked part-time at a fast-food restaurant, and socialized with her school friends engaging in typical small-town teenage activities.

[14] During his closing address to the jury, trial counsel made much of the fact that no attempt was made using the new technology to attempt to identify DNA from the fingernail clippings or the shirt. Although he said he was not faulting anyone for this, he emphasized that, had this testing been performed, which could easily have been done, the jury would know whether the DNA profile under the fingernail clippings was the same as the DNA from the vaginal swab, or whether the DNA came from two different people. He made similar arguments about the shirt, suggesting that, had the shirt been re-examined using more advanced technology, the DNA on the shirt could also have been identified. He argued that because these tests had not been performed, “we will never know”. He urged that the “missing pieces of this puzzle” should not be visited on Mr. Wilson but should give rise to a reasonable doubt.

[15] The trial judge accepted the Crown position that aspects of the submissions made by defence counsel were misleading and took an unfair “shot at the Crown”. In the trial judge’s view, contrary to trial counsel’s position, the Crown had no reason to believe that the failure to test the fingernails or retest the shirt would be an issue, as the defence had not disclosed its defence until trial. Moreover, had the defence requested this testing, the testing would have been done. The implication of trial counsel’s submissions – that this was a negligent or unfair investigation that prejudiced the defence – had to be addressed. He therefore gave a corrective instruction to the jury.

[16] In the corrective instruction, the trial judge told the jury that: (1) the fingernail clippings were available for testing by the defence or the Crown; (2) although the defence is not required to prove anything in the case, testing was not requested by the defence - who knew what its defence was going to be – or by the Crown; and (3) the Crown did not know until trial that the defence would suggest a third-party perpetrator, since the defence had exercised its right: (a) not to disclose its defence until trial, and (b) not to testify at the preliminary inquiry that had been referred to in the evidence before the jury. The trial judge then commented, “So, there was no obvious reason then to test the nail clippings, even though they were available for testing”.

[17] In the course of the corrective instruction, the trial judge made the following comment about the availability of the additional samples for testing:

So, you could ask the question, why didn’t the Crown? You could also ask the question why didn’t the defence ask for this testing? It may or may not affect the weight that you give to the defence theory.

[18] The jury found Mr. Wilson guilty of the charges against him. The Crown initiated an application to have Mr. Wilson sentenced for these serious personal injury offences as a dangerous offender. In support of that application, the Crown relied upon convictions against Mr. Wilson for offences that occurred after the 1994 attack, including three rape convictions between 1995 and 2008. The trial judge took those offences into account in declaring Mr. Wilson to be a dangerous offender and then imposed an indeterminate sentence.

ISSUES

[19] Mr. Wilson’s conviction appeal is based on the trial judge’s corrective instruction. Mr. Wilson argues that the corrective instruction should not have been given since the submissions made by defence counsel were proper and did not require correction.

[20] He further argues that even if it had been appropriate to give a corrective instruction, the trial judge’s instruction went farther than it should have, including by inviting the jury to draw an adverse inference against Mr. Wilson’s defence.

[21] He contends that the corrective instruction also effectively deprived him of his right to refrain from disclosing his defence in advance of the trial, and of his right to remain silent.

[22] Finally, Mr. Wilson submits that the corrective instruction was contrary to Canada Evidence Act, R.S.C., 1985, c. C-5, s. 4(6), as the trial judge commented improperly on Mr. Wilson’s failure to testify at the preliminary inquiry.

[23] Mr. Wilson raises only one issue on his sentence appeal. He argues that “Lord Coke’s principle”, affirmed in R. v. Skolnick, [1982] 2 S.C.R. 47, that subsequent convictions cannot be relied upon to aggravate the sentence imposed for a prior offence, applies to dangerous offender proceedings. He contends that this principle is violated where, as in his case, convictions subsequent to the commission of the offence that leads to the dangerous offender hearing are relied upon to determine dangerousness.

[24] The Crown disputes each of Mr. Wilson’s grounds of appeal, but argues, in the alternative, that even if the trial judge erred in his corrective instruction, the curative proviso should apply to uphold Mr. Wilson’s conviction and sentence.

[25] I will not address this last issue because the trial judge committed no errors. The issues that require consideration can fairly be stated as follows:

A. Did the trial judge err in giving a corrective instruction?

B. Did the trial judge err by going farther than required to “correct” the problem he identified?

C. Did the trial judge improperly invite the jury to draw an inference of guilt against Mr. Wilson for not having arranged for the testing of the samples?

D. Did the trial judge err by depriving Mr. Wilson of the benefits of his right to refrain from making disclosure and his right to remain silent?

E. Did the trial judge err by commenting improperly on the failure by Mr. Wilson to testify at his preliminary inquiry?

F. Did the trial judge contravene “Lord Coke’s principle” by relying on subsequent convictions in declaring Mr. Wilson to be a dangerous offender?

ANALYSIS

A. DID THE TRIAL JUDGE ERR IN GIVING A CORRECTIVE INSTRUCTION?

[26] The trial judge was entitled to conclude that trial counsel launched an unfair attack on the integrity of the investigation during the closing jury address. The trial judge was also entitled to give a corrective instruction. I will begin with the trial judge’s conclusion and then address the need for a corrective instruction.

(1) The Trial Judge’s Conclusion

[27] Whether the accused has mounted an attack on the integrity of an investigation is a matter for the trial judge to determine. A trial judge will have had the benefit of presiding over the trial and seeing it unfold and is, therefore, best situated to determine if the accused has done so. The issue is not whether an appellate panel agrees with the trial judge’s characterization, but whether, approaching the matter deferentially, there was a basis in the evidence for the trial judge’s conclusion: R. v. Jackson, 2013 ONCA 445, 308 C.C.C. (3d) 66, at para. 60 .

[28] The determination of whether there is a foundation for a finding that trial counsel has launched an attack on the investigation is a matter of substance, not form: R. v. Candir, 2009 ONCA 915, 250 C.C.C. (3d) 139, at para. 147 , leave to appeal refused, [2012] S.C.C.A. No. 8. Trial counsel’s claim that he was not laying blame is relevant, but not determinative. Looking at the whole of trial counsel’s jury address, there is a clear foundation for the trial judge’s conclusion that despite that claim, trial counsel was taking a “shot at the Crown”, as the trial judge put it.

[29] In coming to this conclusion, I reject Mr. Wilson’s submission on appeal that trial counsel was doing no more than inviting the jury to consider the gap in the evidence in determining his guilt. If that were so, he could have pointed out the gap without featuring the failure to have available samples tested. He could have also pointed out that the DNA match from the vaginal swabs were consistent with the defence claim of consensual intercourse, and that no other incriminating DNA samples were discovered. Instead, he focused on the failure of the CFS to test the fingernail clippings and to retest the shirt with the benefit of advances in technology. His submissions featured the failure to test, not the gap in the evidence.

[30] Trial counsel argued that the further DNA testing was easy to do, and had it been done, the jury would know whether Mr. Wilson was the assailant. But since that testing was not done even though the fingernails were handed over to the CFS, “we will never know”. Further testing could also have been conducted on the shirt to see if there was sufficient DNA for testing using the new technology. Trial counsel asked the jury not to visit the failure to test the samples on the defence, thereby casting the failure to test as a matter of blame. His submissions implied, without subtlety, that Mr. Wilson was helpless in avoiding the unfortunate failure to conduct the tests. Trial counsel also implied that the jury was left in an unfair position, as they would want to know the DNA results in order to determine whether Mr. Wilson or an unidentified attacker was responsible. In these circumstances, I would not interfere with the trial judge’s determination that, in his jury address, trial counsel was in substance presenting an inadequate or unfair investigation defence.

(2) The Need for a Corrective Instruction

[31] I also accept the trial judge’s conclusion that these submissions in the jury address called for a corrective instruction.

[32] As Watt J.A. noted in Candir, at paras. 145-147 , although the defence is entitled to raise questions about the adequacy of the investigation, doing so presents potential pitfalls. Included among those pitfalls is that information that is not otherwise relevant can become relevant: R. v. Mallory, 2007 ONCA 46, 217 C.C.C. (3d) 266, at para. 87 . Where this occurs, steps will have to be taken to ensure that the trier of fact has such information. Where the attack on the investigation is made known by the defence during its jury address, it may be necessary for the trial judge to issue a corrective instruction to ensure that the jury has the non-contentious information it requires to evaluate the situation.

[33] In Mr. Wilson’s case, the jury was not equipped with the information it needed to properly consider trial counsel’s submissions. The trial judge determined that correction was required in three areas to ensure that the jury had the information it required to make a fair decision about the inadequate investigation submissions. Each of these determinations was proper.

[34] First, trial counsel’s submissions implied that Mr. Wilson had no right to call for further testing. This suggestion is inaccurate and warranted correction.

[35] Second, in response to trial counsel’s submission that the Crown was to blame for the decision not to test, the jury needed to know that Mr. Wilson never requested testing, even though he could have done so. Without this information, the jury would not have a balanced picture.

[36] Third, the implication of trial counsel’s submission that the Crown should have tested the exhibits required the jury to understand how evident that need would have been to the Crown. Mr. Wilson’s defence, looked at in isolation, would certainly underscore the importance of testing all samples. He claimed that his DNA could innocently have been in the complainant’s vagina, but that any DNA from the fingernails and the shirt would have come from the attacker. Yet, without knowing that defence claim, investigators and the Crown would see no practical need to conduct further testing. DNA was collected from areas where the attacker’s DNA could be expected to be found, based on the complainant’s report of the attack. There would be no reason to think that the DNA may have come from different sources. Having achieved a strong and dependable DNA result from the vaginal swabs, further testing would seem redundant. The jury needed to be made aware that the Crown did not know of the defence theory until trial in order to undertake a fair assessment of trial counsel’s submissions.

[37] The trial judge was therefore entitled to conclude that a corrective instruction was needed to address these shortcomings.

B. DID THE TRIAL JUDGE ERR BY GOING FARTHER THAN REQUIRED TO “CORRECT” THE PROBLEM HE IDENTIFIED?

[38] The trial judge did not err by going farther than required to correct the problem he identified. I do not accept Mr. Wilson’s position on appeal that the trial judge’s focus on this issue in his charge was disproportionate. I appreciate that the trial judge’s corrective instruction was more elaborate than it could have been. The failure to test was, however, a central plank in trial counsel’s jury address, and warranted careful attention. The question on appeal is not whether the trial judge could have said less, but whether what he said was unfair or legally inappropriate.

[39] Mr. Wilson contends that the trial judge made the error of including unfair or legally inappropriate comments in his corrective instruction. Rather than considering those specific submissions altogether under the general rubric of whether the trial judge went farther than required, I will now consider each of those particularized submissions as discrete issues.

C. Did the trial judge IMPROPERLY INVITE THE JURY TO DRAW AN INFERENCE OF GUILT AGAINST MR. WILSON FOR NOT HAVING ARRANGED FOR THE TESTING OF THE SAMPLES?

[40] The fact that Mr. Wilson did not arrange for the testing of the samples could potentially be used either: (a) to evaluate Mr. Wilson’s position that the Crown bears the blame for not having the further samples tested; or (b) as evidence that Mr. Wilson did not want the truth to be known about his guilt. The Crown contends that the former use is appropriate but concedes that the latter use would not be.

[41] Appeal counsel does not concede that the first use was appropriate, which I will discuss more directly below. In the argument currently under consideration, appeal counsel argues that regardless of whether the first use was appropriate, the trial judge erred by inviting the second inference, that the jury could use Mr. Wilson’s failure to request testing as proof of his guilt.

[42] In advancing this argument, appeal counsel relies most directly on the portion of the trial judge’s corrective instruction where the trial judge said:

[43] This comment is ambiguous enough that, taken in isolation, it could be interpreted as an invitation to the jury to draw an adverse inference of guilt against Mr. Wilson for not having the testing done. The inference could have been: Mr. Wilson did not ask for further testing because he did not want the jury to know what those samples showed.

[44] However, taken in context, as it must be, it would have been clear to the jury that the reference to the “defence theory” in this passage does not relate to Mr. Wilson’s claim that there was another perpetrator, nor was the trial judge inviting an inference of guilt. Instead, it would have been plain to the jury that this was a reference to the “defence theory” that the Crown bears responsibility for the failure to test, which should not be visited on Mr. Wilson but on the Crown. I say this for several reasons.

[45] First, when the trial judge made this comment, he was not summarizing the evidence of Mr. Wilson’s guilt. He was addressing the fact that “the defence questioned the absence of DNA testing on the fingernail clippings.”

[46] Second, the impugned comment describes the fact that neither the Crown nor the defence had requested such testing. The Crown’s failure to request testing is irrelevant to whether an inculpatory inference should be drawn against Mr. Wilson. It is relevant, however, to the question of responsibility for failing to test, which Mr. Wilson had raised.

[47] Third, immediately after saying, “It may or may not affect the weight you give to the defence theory”, the trial judge said, “That is for you to decide, whether there was just no reasonable chance for the Crown to investigate”. Taken together, these sentences make clear that the defence theory at issue relates to the Crown’s responsibility to investigate, not the guilt of Mr. Wilson.

[48] Fourth, after making this comment, the trial judge immediately repeated that the onus remains on the Crown to prove Mr. Wilson’s guilt and never shifts. This direction is inconsistent with the suggestion that Mr. Wilson’s failure to get the testing done is evidence of his guilt.

[49] Finally, the trial judge concluded his remarks on this topic by next telling the jury that it is up to them to determine how worried they should be about the fingernail clippings not having been tested, and at whose request this could have been done. In doing so, he directed them to the issue he was addressing, namely, the defence theory that the Crown was to blame for the failure to test the further samples.

[50] There is no reasonable possibility the jury would have understood otherwise. I would reject this ground of appeal.

D. DID THE TRIAL JUDGE ERR BY DEPRIVING MR. WILSON OF THE BENFITS OF HIS RIGHT TO REFRAIN TO MAKE DISCLOSURE AND HIS RIGHT TO REMAIN SILENT?

[51] In the corrective instruction, the trial judge alerted the jury to the uncontentious fact that Mr. Wilson did not disclose his defence to the Crown until trial, and that he did not ask for further DNA testing to be done. Appeal counsel argues that including this information in the corrective instruction deprived Mr. Wilson of his right not to be forced to participate in the prosecution of his case. Mr. Wilson also argues that inviting reliance on the failure of the defence to disclose its defence before trial is inconsistent with his entitlement as an accused person not to make disclosure to the Crown.

[52] I do not agree. The trial judge specifically alerted the jury to the fact that Mr. Wilson was under no obligation to disclose his defence until trial, and that he had no obligation to give evidence or prove his innocence at trial. The trial judge was simply pointing out that since Mr. Wilson chose to exercise his rights, the Crown was not alerted to Mr. Wilson’s defence, a material consideration in evaluating whether the defence theory of blame should be accepted.

[53] I would not give effect to this ground of appeal.

E. DID THE TRIAL JUDGE ERR BY COMMENTING IMPROPERLY ON THE FAILURE BY MR. WILSON TO TESTIFY AT HIS PRELIMINARY INQUIRY?

[54] Mr. Wilson contends that it was inappropriate for the trial judge to mention that Mr. Wilson did not testify at the preliminary inquiry. He argues that this violated his right not to testify and contravened the bar in s. 4(6) of the Canada Evidence Act on commenting on the failure of an accused person to testify. I disagree. The trial judge did not err by commenting improperly on the failure by Mr. Wilson to testify at his preliminary inquiry.

[55] The trial judge’s decision to alert the jury that Mr. Wilson had not testified at the preliminary inquiry did not deprive Mr. Wilson of his right not to testify, for the same reason that telling the jury that Mr. Wilson had exercised his right not to disclose his defence did not violate Mr. Wilson’s disclosure rights.

[56] The trial judge did not rule or direct the jury that Mr. Wilson was compelled to testify at the preliminary inquiry. He specifically told the jury that Mr. Wilson was not compelled to do so, and that few accused persons choose to testify at their preliminary inquiries.

[57] Although the trial judge could simply have directed the jury that the Crown did not know until trial what Mr. Wilson’s defence would be, it was not unreasonable for the trial judge to forestall improper jury speculation by explicitly stating that Mr. Wilson did not testify at the preliminary inquiry. The jury was aware that there was a preliminary inquiry involving witness testimony. Without knowing that Mr. Wilson had not testified, the jury might assume inaccurately that he gave the same evidence at the preliminary inquiry as he did at trial, thereby alerting the Crown to the need to test the fingernail clippings and the shirt. The trial judge was entitled to steer the jury away from such reasoning by alerting them to the uncontentious fact that Mr. Wilson did not testify at the preliminary inquiry. The trial judge’s decision to do so does not contravene Mr. Wilson’s right not to testify.

[58] Nor does the mention by the trial judge of Mr. Wilson’s failure to testify at the preliminary inquiry offend s. 4(6) of the Canada Evidence Act. This provision is not to be interpreted literally, but purposively, to prevent comments that invite the inference that the accused chose not to testify to cloak his guilt: R. v. Prokofiew, 2012 SCC 49, [2012] 2 S.C.R. 639, at paras. 74-79 . A jury could not interpret the trial judge’s comment as inviting such inferences. The trial judge commented on the failure of Mr. Wilson to testify at the preliminary inquiry while explaining why the Crown would have no reason to know to do the testing. Moreover, Mr. Wilson did testify at the trial. In those circumstances, a jury would not infer that Mr. Wilson did not testify at the preliminary inquiry as a cloak for his guilt.

[59] I would dismiss this ground of appeal, as well.

F. DID THE TRIAL JUDGE CONTRAVENE “LORD COKE’S PRINCIPLE” BY RELYING ON SUBSEQUENT CONVICTIONS IN DECLARING MR. WILSON TO BE A DANGEROUS OFFENDER?

[60] “Lord Coke’s principle” “is a common law rule applicable to sentencing proceedings unless ousted by a clear statutory provision or by necessary implication”: R. v. Hexamer, 2019 BCCA 285, at para. 171 , leave to appeal requested, [2019] S.C.C.A. No. 343, citing Skolnick, at p. 58. It holds that subsequent convictions cannot be relied upon to aggravate the sentence imposed for a prior offence.

[61] “Lord Coke’s principle” makes sense. A repeat offender who has already been sentenced for offending may require increased punishment to achieve specific deterrence since they have not learned from their earlier sentence. Their degree of responsibility is heightened by the contempt their subsequent conduct may show for the sentencing process: R. v. Cheetham (1980), 53 C.C.C. (2d) 109 (Ont. C.A.), at p. 114. These considerations do not operate where the offender committed the offence being sentenced before being punished for subsequent offences.

[62] Mr. Wilson argues that this principle applies in dangerous offender proceedings. He relies on this court’s decision in Ficko v. Ontario (Registrar of Motor Vehicles) (1989), 33 O.A.C. 120 (C.A.), to buttress his argument. He contends that Lord Coke’s principle is so fundamental that it can be removed only by the kind of clearly designed statutory provision found in the Highway Traffic Act, R.S.O. 1980, c. 198, s. 26. At the time, this provision specified that in imposing licence suspensions, attention is to be paid solely to the sequence of convictions, not the sequence of the commission of offences. He says that there is no such language in Criminal Code, R.S.C., 1985, c. C-46, Part XXIV, dealing with dangerous offenders.

[63] Mr. Wilson therefore argues the trial judge erred in finding him to be a dangerous offender. He argues that the trial judge should not have relied on crimes committed subsequent to the predicate offences linked to the dangerous offender designation.

[64] I disagree. It is entirely appropriate, and necessary, to consider subsequently committed offences when considering dangerousness. Hence, Lord Coke’s principle does not apply in dangerous offender proceedings. The British Columbia Court of Appeal arrived at this conclusion in Hexamer, at para. 174 , in a slightly different context. There, the appellant argued that it contravenes Lord Coke’s principle to even bring a dangerous offender application with respect to a first offence. The British Columbia Court of Appeal rejected the argument as unsupported by precedent, and because of its inconsistency with the elaborate dangerous offender sentencing scheme. I agree and will provide some elaboration.

[65] Mr. Wilson’s submission fails to recognize that sentencing dangerous offenders under Criminal Code, Part XXIV [“dangerous offender sentencing”], differs in material ways from other sentencing proceedings governed by Criminal Code, Part XXIII [“ordinary sentencing”]. Although some of the purposes of ordinary sentencing spelled out in s. 718 are forward-looking, the fundamental principle of sentencing in s. 718 demands that the sentence imposed be proportionate to the gravity of the offence being sentenced and the degree of responsibility of the offender. When making these determinations and imposing a fit sentence, the focus is on circumstances at the time of the offence.

[66] In marked contrast, dangerous offender sentencing, while not disregarding these considerations, focuses on future societal protection from demonstrated threats to life, safety, or the physical or mental well-being of other persons. Although dangerous offender sentencing is triggered by proof of a specific designated serious personal injury offence, the criteria for the designation goes well beyond the specific offence. It includes: (1) a proved pattern of repetitive behaviour of which the designated offence forms part; (2) a pattern of persistent aggressive behaviour; or (3) behaviour 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”. Whereas subsequent convictions are not relevant in ordinary sentencing in determining the proportional fitness of the sentence for an offence, subsequent convictions are of utmost relevance in dangerous offender sentencing in establishing patterns of behaviour and evaluating future risks to public safety. Put simply, the purpose of Lord Coke’s principle does not apply in dangerous offender proceedings because its mischief is not raised in dangerous offender sentencing.

[67] Second, even with ordinary sentencing, “Lord Coke’s principle” prevents using subsequent offences as aggravating factors in determining a fit sentence. It does not prohibit reliance on earlier convictions as evidence of the character or rehabilitative potential of the accused: R. v. Finelli , [2008] O.J. No. 2537 (S.C.), at para. 44 ; R. v. Cuff, 2003 NLSCTD 49, 224 Nfld. & P.E.I.R. 322, at para. 28 , appeal allowed in part for other reasons, 2004 NLCA 38, 238 Nfld. & P.E.I.R. 14. Here, the subsequent convictions were not being used as factors that aggravate the seriousness of the earlier offence. They were used in assessing Mr. Wilson’s dangerousness according to the statutory criteria.

[68] It follows that appeal counsel oversimplifies matters by arguing that only clear statutory language can set aside Lord Coke’s principle. As the British Columbia Court of Appeal recently reaffirmed in Hexamer, at para. 171 , Lord Coke’s principle can be ousted by necessary implication. By necessary implication, the principle does not operate where its application will not serve its purpose.

[69] Nor do I agree with Mr. Wilson that, by implication, s. 752.01 of the Criminal Code supports the view that Lord Coke’s principle is to apply to dangerous offender proceedings. That section, imposing a duty on the prosecutor to advise the court in the case of some dangerous offender proceedings, provides:

752.01 If the prosecutor is of the opinion that an offence for which an offender is convicted is a serious personal injury offence that is a designated offence and that the offender was convicted previously at least twice of a designated offence and was sentenced to at least two years of imprisonment for each of those convictions, the prosecutor shall advise the court, as soon as feasible after the finding of guilt and in any event before sentence is imposed, whether the prosecutor intends to make an application under subsection 752.1(1). [Emphasis added.]

[70] The reference in this section to “convicted previously at least twice of a designated offence” cannot be taken to reflect Parliament’s view that later convictions cannot be considered in a dangerous offender proceeding involving an earlier offence. The language of this provision is entirely capable of including previous convictions for subsequent offences. Interpreted purposively, that is undoubtedly how it should be read. A dangerous offender designation cannot realistically depend on the fortuity of the order in which offences are identified and prosecuted.

[71] I would therefore dismiss this ground of appeal.