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. 486.5(1) , (2) , (2.1) , (3) , (4) , (5) , (6) , (7) , (8) or (9) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.5 (1) Unless an order is made under section 486.4, on application of the prosecutor in respect of a victim or a witness, or on application of a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is of the opinion that the order is in the interest of the proper administration of justice.

(2) On application of the prosecutor in respect of a justice system participant who is involved in proceedings in respect of an offence referred to in subsection (2.1), or on application of such a justice system participant, a judge or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is in the interest of the proper administration of justice.

(2.1) The offences for the purposes of subsection (2) are

(a) an offence under section 423.1, 467.11, 467.111, 467.12, or 467.13, or a serious offence committed for the benefit of, at the direction of, or in association with, a criminal organization;

(b) a terrorism offence;

(c) an offence under subsection 16(1) or (2), 17(1), 19(1), 20(1) or 22(1) of the Security of Information Act ; or

(d) an offence under subsection 21(1) or section 23 of the Security of Information Act that is committed in relation to an offence referred to in paragraph (c).

(3) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice if it is not the purpose of the disclosure to make the information known in the community.

(4) An applicant for an order shall

(a) apply in writing to the presiding judge or justice or, if the judge or justice has not been determined, to a judge of a superior court of criminal jurisdiction in the judicial district where the proceedings will take place; and

(b) provide notice of the application to the prosecutor, the accused and any other person affected by the order that the judge or justice specifies.

(5) An applicant for an order shall set out the grounds on which the applicant relies to establish that the order is necessary for the proper administration of justice.

(6) The judge or justice may hold a hearing to determine whether an order should be made, and the hearing may be in private.

(7) In determining whether to make an order, the judge or justice shall consider

(a) the right to a fair and public hearing;

(b) whether there is a real and substantial risk that the victim, witness or justice system participant would suffer harm if their identity were disclosed;

(c) whether the victim, witness or justice system participant needs the order for their security or to protect them from intimidation or retaliation;

(d) society’s interest in encouraging the reporting of offences and the participation of victims, witnesses and justice system participants in the criminal justice process;

(e) whether effective alternatives are available to protect the identity of the victim, witness or justice system participant;

(f) the salutary and deleterious effects of the proposed order;

(g) the impact of the proposed order on the freedom of expression of those affected by it; and

(h) any other factor that the judge or justice considers relevant.

(8) An order may be subject to any conditions that the judge or justice thinks fit.

(9) Unless the judge or justice refuses to make an order, no person shall publish in any document or broadcast or transmit in any way

(a) the contents of an application;

(b) any evidence taken, information given or submissions made at a hearing under subsection (6); or

(c) any other information that could identify the person to whom the application relates as a victim, witness or justice system participant in the proceedings. 2005, c. 32, s. 15 ; 2015, c. 13, s. 19

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: 2021-05-14 Docket: C65997

Watt, Hoy and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

Triston Brown Appellant

Counsel: Richard Litkowski, for the appellant Jennifer Epstein, for the respondent

Heard: March 25, 2021 by video conference

On appeal from the convictions entered on June 3, 2015, by Justice John B. McMahon of the Superior Court of Justice, sitting with a jury, and from the convictions entered on July 14, 2015, sitting without a jury, and from the sentence imposed on September 5, 2017.

Nordheimer J.A.:

[1] Triston Brown appeals from his convictions on a variety of firearms offences along with three convictions for breaches of weapons prohibition orders. The appellant also appeals from his designation as a dangerous offender. Finally, the appellant seeks leave to appeal from his sentence of 11 years to be followed by a long-term supervision order for 10 years.

Background

[2] The charges stem from events that took place on July 22, 2010 in the City of Toronto. There was a shooting on Bleecker Street that was captured by surveillance cameras at a nearby building. Based on the timestamp on the surveillance footage, the shooting took place at 9:14 p.m. The Crown’s case was largely circumstantial – there was no direct evidence as to who the shooter was. The main Crown witness was a female friend of the appellant. The police located the gun used in the shooting in the friend’s bedroom.

[3] The video from the surveillance camera showed a man running past two people sitting on a bench, followed by the shooter who was firing in the direction of the running man. The video is too blurry to make out faces, but the shooter appears to be wearing a white t-shirt with a design, dark pants, and light shoes. A second set of videos captures the woman’s apartment building. One video shows the appellant (admitted to be him) entering the building on his bicycle. He is wearing a white t-shirt with a design, dark pants, and light shoes. After entering the woman’s apartment, the appellant comes out wearing a tank top instead of the t-shirt.

[4] The appellant went to a park with the woman and her two children. While at the park, uniformed police officers approached them and asked if they knew anything about a recent shooting, to which they answered in the negative. After the police left, the woman, who knew from a prior incident that the appellant had a gun, asked the appellant where his gun was. The appellant said that he had put the gun in her bedroom under clothes on the shelf, or “something like that”. The appellant left shortly after.

[5] When the woman returned home, she found the gun under her clothes on the shelf. She tried to contact the appellant to come retrieve the weapon, but he refused to come and then did not further respond. She then left her family in the apartment and locked-up the appellant’s bike, that he had left at her apartment, at the back of the building. When she returned, she was met by police who wanted to know where the gun was. The woman testified that she lied to the police and told them that she did not know about a gun or a shooting. She said that the police then threatened to take her children away, prompting her to recant immediately, and describe where the gun was in her bedroom. She was eventually arrested. Shortly after her arrest, she told the police that the gun was the property of the appellant.

[6] A forensic scientist at the Centre of Forensic Sciences testified to a “practical certainty” that the gun recovered from the apartment fired the shell casings recovered at the scene of the shooting. A fingerprint examiner testified that no identifiable prints could be lifted from the gun. The magazine was also tested for fingerprints. Although some prints were found, the samples were insufficient to determine a match.

[7] At trial, the appellant testified in his own defence. He told the court that at no time did he possess the gun and that he knew nothing about the gun located in the woman’s bedroom. The appellant denied placing it there, and further denied any involvement in the shooting. The appellant did, however, acknowledge going to the woman’s apartment on the evening in question and to changing his shirt.

[8] Another female friend of the appellant also gave evidence. On the evening in question, she said that she ran into the appellant at a barbeque on Bleecker Street. She testified that she was talking to the appellant for three to four minutes when she heard gunfire. Terrified, she ran south down Bleecker. She noticed that the appellant ran east.

[9] The jury convicted the appellant of the firearms offences arising from the shooting. However, the jury acquitted the appellant of a charge of attempted murder. Subsequent to the jury’s findings, the trial judge conducted a judge alone trial on three counts of breaches of weapons prohibition orders, as had been earlier agreed. He entered convictions on each of those counts.

[10] The respondent then sought, and was granted, an order requiring the appellant to be assessed for the purpose of a dangerous offender application. The dangerous offender hearing proceeded before the trial judge in April, May and June 2017. On July 26, 2017, the trial judge gave his ruling finding the appellant to be a dangerous offender: R. v. Brown, [2017] O.J. No. 7276 (S.C.). He also imposed a long-term supervision order for a period of 10 years and decided to impose a determinate sentence of imprisonment. On September 5, 2017, the trial judge sentenced the appellant to a term of imprisonment of 11 years.

Grounds of Appeal

[11] The appellant raises the following grounds of appeal:

1. The trial judge failed to draft an organized jury charge, and thereby failed to properly assist the jury;
2. With respect to the dangerous offender hearing, the sentencing judge failed to consider future treatment prospects at the designation stage;
3. The sentencing judge further failed to consider the appellant’s intractability at the designation phase; and
4. The sentencing judge misapplied the totality principle.

The conviction appeal

[12] I will deal with the conviction and sentence appeals first because, in my view, they can be dealt with fairly briefly.

[13] The main challenge to the jury charge is that the trial judge joined together certain charges in a manner that the appellant says would have confused the jury. I do not agree. The jury had six charges to consider: three relating to possession and careless storage of the gun found in the woman’s apartment (counts 3, 4, and 5), and three relating to the shooting itself (counts 1, 2, and 6). The trial judge grouped these charges together in his instructions, which he was entitled to do.

[14] The trial judge explained to the jury why he was taking this approach. He pointed out that the issue of possession of the gun was a central element common to a number of the counts. The trial judge was aware that, if the jury was not satisfied beyond a reasonable doubt that the gun found in the apartment belonged to the appellant, there would be little left to the Crown’s case. Indeed, the trial judge instructed the jury that, if they were not satisfied on this key issue, they had to acquit the appellant on all charges.

[15] While that may not be the common approach to a jury charge, the general tendency being to follow a count by count outline, in this case, and contrary to the appellant’s submissions, the trial judge’s approach assisted the jury in focussing on the central question that they needed to decide. Structuring the jury charge in this fashion was also a matter entirely within the discretion of the trial judge. As Bastarache J. said in R. v. Daley, 2007 SCC 53, [2007] 3 S.C.R. 523, at para. 30: “The particular words used, or the sequence followed, is a matter within the discretion of the trial judge and will depend on the particular circumstances of the case.”

[16] The trial judge then set out the elements of the possession offences, ultimately advising that the only issue in play for those charges was whether the appellant possessed the gun, as the other elements had already been admitted by counsel. From there, the trial judge moved on to the counts related to the shooting. He highlighted the crucial question on those counts: was the appellant the shooter from the video? Following this approach would again assist the jury in focussing on the core issue.

[17] During his charge, the trial judge reviewed all of the relevant evidence. There is no foundation for the suggestion that the trial judge did not adequately address the defence evidence. There is also no substance to the complaint that the trial judge improperly included an instruction on constructive possession. While it could be debated whether that instruction was necessary on the facts of this case, the trial judge was entitled to conclude that there was a sufficient basis, on the facts, to warrant including this particular instruction. Further, and in any event, the brief reference to it in the instructions did not engender any prejudice to the appellant.

[18] I would dismiss the conviction appeal.

The sentence appeal

[19] The appellant complains that the trial judge failed to respect the totality principle in imposing a sentence of 11 years, as the Crown had proposed, rather than a sentence of 9 years, as the defence had suggested. The appellant was sentenced to nine years on his gun-related charges and two years for the weapons prohibition breaches, with the latter to be served consecutively. The appellant now seeks a reduction to a global sentence of 10 years.

[20] I see no merit in this complaint. The trial judge expressly mentioned the totality principle in his reasons. He said: “In the circumstances, I am satisfied the position taken by the Crown of 11 years is both fair and just and still reflects the principle of totality.”

[21] The appellant fails to point to any real error of law or of principle in the trial judge’s sentencing reasons. The mere fact that the trial judge agreed with the sentence proposed by the Crown does not constitute one. The sentence is also not one that is demonstrably unfit for the counts for which the appellant was found guilty. Consequently, there is no proper foundation for this court to intervene: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 11, 41, and 44.

[22] While I would grant leave to appeal the sentence, I would dismiss the sentence appeal.

The dangerous offender designation

[23] I now turn to the more difficult issue regarding the designation of the appellant as a dangerous offender. The respondent concedes that there is an error of law in the trial judge’s reasoning through which he concluded that the appellant was a dangerous offender. That error arises from the failure of the trial judge to consider the future treatment prospects and intractability of the appellant in his analysis regarding the dangerous offender designation as required by s. 753(1) of the Criminal Code, R.S.C. 1985, c. C-46: see R. v. Boutilier, 2017 SCC 64, [2017] 2 S.C.R. 936, at paras. 26-27, 36 and 46. I would point out that the Supreme Court of Canada did not render its decision in Boutilier, until after the trial judge had rendered his decision in this case. In Boutilier, the Supreme Court of Canada clarified, and confirmed, that this has always been a requirement of the designation analysis.

[24] To be clear, the decision in Boutilier confirms that “courts are required to consider the issue of control of future risk in the community at both the designation and sentencing phases of dangerous offender proceedings”: Clayton C. Ruby et al., Sentencing, 9th ed. (Toronto: LexisNexis Canada, 2017), at §17.49 (QL). This is true notwithstanding the 2008 amendments to the Criminal Code provisions respecting dangerous offenders: see Ruby et al., at §§ 17.49-17.50.

[25] In light of this error of law, it must be determined whether the trial judge’s designation of the appellant as a dangerous offender is nonetheless reasonable. I note, on this point, that the standard of review on appeal from a dangerous offender designation is different than it is from a regular sentence appeal. As Cromwell J. said in R. v. Sipos, 2014 SCC 47, [2014] 2 S.C.R. 423, at para. 26: “The Court in Currie held that appellate review of a dangerous offender designation is somewhat more robust.”

[26] On the issue of future treatability, one of the first problems that arises is that the appellant did not participate in either of the assessments that were undertaken. The conclusions contained in the assessments must be considered in light of that fact. Dr. Penney, the psychologist, did not directly address this issue because she was unable to ascertain the appellant’s willingness to attend future treatment programs. Dr. Wilkie, the psychiatrist, did find that there was a “reasonable possibility that [the appellant] could respond to interventions designed to manage his risk in the community”. Dr. Wilkie also considered the appellant’s prognosis for successful treatment to be “average” compared to other offenders. Dr. Wilkie further noted that there is a general decrease in violent offending conduct in individuals after the age of 40 to 45. The appellant is currently 37 years old.

[27] The respondent contends that the psychiatric/psychological evidence on future treatability was not “so compelling” as to warrant a conclusion different from the finding that the designation of a dangerous offender was made out. This language is taken from Boutilier where Côté J. said, at para. 45:

Thus, offenders will not be designated as dangerous if their treatment prospects are so compelling that the sentencing judge cannot conclude beyond a reasonable doubt that they present a high likelihood of harmful recidivism or that their violent pattern is intractable. [Citation omitted.]

[28] Contrary to the respondent’s submissions, I do not consider Côté J.’s use of the words “so compelling” as being intended to establish a new and extremely high bar applicable to this factor in the overall determination of the dangerous offender question. She does not suggest that she was intending to introduce any special hurdle for an individual to surmount, or special test to be applied, when their future treatability is taken into account in the dangerous offender analysis. Rather, Côté J. is simply explaining that evidence about treatability, that is not sufficiently cogent as to affect a trial judge’s conclusion on dangerousness, may still be relevant in deciding on the sentence that is required to adequately protect the public. Nevertheless, future treatability is still but one factor to be considered in the overall assessment. I also note, on this point, that the Crown bears the onus of establishing that the dangerous offender designation is made out, a conclusion which must, of course, be established beyond a reasonable doubt.

[29] Further, reading Côté J.’s reasons as a whole, the thrust of the decision is to reinforce the point that designating an individual as a dangerous offender is a finding of last resort. In other words, it is a finding that should only be arrived at if no lesser determination is appropriate in all the circumstances. This approach is consistent with Côté J.’s explanation of the rationale as to why it was important for future treatment to be considered as part of the designation process. She concluded on this issue, at para. 46:

In sum, a finding of dangerousness has always required that the Crown demonstrate, beyond a reasonable doubt, a high likelihood of harmful recidivism and the intractability of the violent pattern of conduct. A prospective assessment of dangerousness ensures that only offenders who pose a tremendous future risk are designated as dangerous and face the possibility of being sentenced to an indeterminate detention.

[30] The respondent contends that there is no reasonable possibility that the finding of dangerousness would be any different, had the trial judge considered treatment prospects and intractability at the designation stage. I do not agree. To the contrary, the trial judge expressly referred to recidivism and intractability in determining that the risk posed by the appellant could be managed through a determinate sentence with a long-term supervision order.

[31] Had the trial judge considered the appellant’s future treatment prospects at the designation stage, it would follow from the considerations on which he relied, to impose the sentence that he did, that he would have likely chosen to designate the appellant as a long-term offender. That designation would still have allowed the trial judge to impose the sentence that he did.

[32] This conclusion is consistent with what the trial judge said about the future treatability of the appellant. He mentioned:

• The psychiatrist’s opinion that there was a reasonable possibility that the appellant could respond to interventions designed to manage his risk in the community;
• The general decrease in violent offending conduct in individuals after the age of 40 to 45. The trial judge noted that the appellant would not likely be released from custody before he was in his early 40s;
• The appellant’s score on the psychopathy scale placed him at the same risk as approximately 50 percent of all people in the prison population;
• That the appellant had made significant headway in addressing his behavioural issues, progress that he had not made in the past; and,
• That, while the appellant had not taken advantage of courses and programs in the past, there was now concrete evidence that he had done so.

[33] All of this speaks to a more positive, if still guarded, view of the appellant’s future treatability than a dangerous offender designation would warrant.

[34] I do not accept that the finding of dangerousness would have remained the same had the trial judge considered the appellant’s treatment prospects at the designation stage. To the contrary, given what the trial judge said about the prospects of managing the risks posed by the appellant in the community, and given that the trial judge said he would consider the long-term offender provisions pursuant to s. 753(5) of the Criminal Code if the Crown did not meet its onus under the dangerous offender criteria, I view it as probable that he would have designated the appellant as a long-term offender.

[35] Given that conclusion, and the legal error in the trial judge’s process, the dangerous offender designation must be set aside. I do not consider it necessary, though, to order a rehearing of the dangerous offender application. Given my conclusion as to what the trial judge would have done, but for the error identified, I consider it appropriate to substitute a designation of the appellant as a long-term offender under s. 759(3)(a)(i) of the Criminal Code. In conjunction with that designation, I would leave intact the sentence imposed by the trial judge and the accompanying long-term supervision order.

Conclusion

[36] I would dismiss the conviction appeal. I would grant leave to appeal the sentence but dismiss the sentence appeal. I would allow the appeal on the dangerous offender designation, set aside that designation, and substitute a designation of long-term offender. I would not interfere with the 11 year determinate sentence or the 10 year long-term supervision order.

Released: May 14, 2021 “D.W.” “I.V.B. Nordheimer J.A.” “I agree. David Watt J.A.” “I agree. Alexandra Hoy J.A.”