Court of Appeal for Ontario

Date: 2021-10-05 Docket: C66380

Judges: Hourigan, Zarnett and Coroza JJ.A.

Between: Her Majesty the Queen, Respondent And: Jordan Brown, Appellant

Counsel: Brian H. Greenspan and Michelle M. Biddulph, for the appellant Molly Flanagan, for the respondent

Heard: March 30, 2021 by video conference

On appeal from the conviction entered on September 9, 2014 by Justice Glenn A. Hainey of the Superior Court of Justice, with reasons reported at 2014 ONSC 5164, and from the sentence imposed on January 25, 2017, with reasons reported at 2017 ONSC 561.

Zarnett J.A.:

Introduction

[1] On May 3, 2012, the appellant participated, with others, in an armed robbery at a car dealership. The appellant was carrying a gun. He used it to shoot an employee of the dealership, whom he had also punched and struck in the head with a hard object while demanding money and drugs, and from whom he stole cash and other belongings. A customer of the dealership was also assaulted by one of the appellant’s accomplices.

[2] The trial judge convicted the appellant of thirteen counts arising out of the events at the dealership, including assault causing bodily harm, aggravated assault, robbery with a weapon, and discharging a firearm with intent to endanger life. He also convicted the appellant of five additional counts as a result of a firearm and drugs found in his possession when he was arrested several days after the robbery.

[3] The appellant had a significant criminal record at the time of these offences, including convictions for participation in two home invasions in which victims were injured. In each home invasion, the appellant was carrying, and brandished, a shotgun. The trial judge granted the Crown’s application to designate the appellant a dangerous offender and imposed a sentence of indeterminate incarceration.

[4] The appellant appeals from his convictions on two of the counts on which he was convicted. He also appeals the dangerous offender designation and the indeterminate sentence.

[5] For the reasons that follow, I would dismiss the conviction appeal. I would grant leave to appeal sentence, but would dismiss the sentence appeal.

Background

The Robbery and Arrest

[6] The appellant does not challenge the trial judge’s factual findings as to what occurred on May 3, 2012 or at the time of his arrest.

[7] The trial judge found that the appellant and his co-accused, Jacob Jeffrey and Clarence Morrison, had a joint plan to commit a robbery at Humberview Motorsports, a car dealership. On May 3, they drove together to the dealership before it opened, parked in a discrete location behind it, and staked it out from a condominium lobby across the street. The appellant was carrying a loaded, concealed gun. After a Humberview employee, Mr. Cubellis (“Cubellis”), and a potential customer, Mr. Mazzulla (“Mazzulla”) went inside the dealership, so did the appellant, Jeffrey, and Morrison. The appellant demanded that Cubellis tell him the location of the cash and the safe, and give him drugs. The appellant punched Cubellis a number of times and struck him above the eye with a hard object, causing him to bleed. Nothing that the appellant demanded was forthcoming. The appellant stole Cubellis’ gold chain, watch, cash, driver’s licence, and cellphone. Cubellis testified that he begged the appellant not to kill him; in response, the appellant pointed a gun at Cubellis, who was then on the ground, and intentionally shot him, hitting him in the thigh about five inches from his groin. Meanwhile, Jeffrey punched Mazzulla in the face and pushed him to the floor, causing injuries to his face.

[8] The appellant was arrested on May 7, 2012. At the time of his arrest, the police found a rifle and cocaine in the vehicle in which the appellant was travelling. The trial judge found that the rifle belonged to the appellant and that he was in possession of the cocaine.

The Convictions

[9] The appellant was convicted of the following offences arising out of the May 3 events:

• Count #1 – assault causing bodily harm on Cubellis. Count #1 charged aggravated assault by maiming; the trial judge was not satisfied that Cubellis had been maimed by the gunshot, but convicted the appellant of the lesser and included offence of assault causing bodily harm.
• Count #2 – aggravated assault by wounding on Mazzulla. The appellant was convicted as a party to the offence of which Jeffrey was the principal, since “it was a probable consequence of carrying out the three men’s common intention to commit a robbery at the dealership that Mr. Mazzulla would be assaulted.”
• Count #3 – carrying a concealed weapon (a gun that the appellant concealed in the waistband of his pants).
• Count #4 – unlawfully pointing a firearm at Cubellis.
• Count #5 – assault with a weapon (a gun) on Cubellis.
• Count #6 – robbing Cubellis with a weapon.
• Count #7 – discharging a firearm with intent to endanger the life of Cubellis.
• Count #8 – using a firearm while committing assault.
• Count #9 – possession of a weapon for the purpose of committing an indictable offence (robbery).
• Count #10 – using a firearm in a careless manner.
• Count #11 – possession of a firearm knowing he did not have a licence.
• Count #12 – possession of a firearm while prohibited due to a 10-year prohibition order issued against him in 2010 under s. 109 of the Criminal Code, R.S.C., 1985, c. C-46.
• Count #14 – theft under $5,000 of Cubellis.

[10] The appellant was also convicted of the following offences arising out of his arrest on May 7:

• Count #15 – possession of a firearm without a licence.
• Count #16 – possession of a firearm knowing he had no licence.
• Count #19 – being the occupant of a motor vehicle with a firearm without a permit.
• Count #20 – possession of a firearm while prohibited.
• Count #23 – possession of cocaine.

The Dangerous Offender Designation and the Indeterminate Sentence

[11] The appellant was 33 years old at the time of his sentencing. He had been continuously involved in the drug trade from the time he was 15. He had an extensive criminal record prior to the predicate offences. He was convicted in June 2003 of offences arising out of his participation, with others, in two violent home invasion robberies in 2002 and 2003, in which victims were beaten with a shotgun. In one of the home invasions, a victim was also stabbed several times. The appellant had carried, and brandished, a shotgun in each home invasion.

[12] In addition, the appellant’s record included drug and firearm offences committed not long after he completed serving his sentence for the home invasions, a 2007 conviction for unlawfully being in a dwelling house that he had broken into while a woman and two young girls were inside, a subsequent conviction in 2010 for drug trafficking, and convictions for multiple breaches of recognizance and one count of drug possession. At the time of the predicate offences, he was on bail on charges of kidnapping and forcible confinement involving a firearm. [1] He breached his recognizance on those charges by repeated contact with the alleged victim to extort information.

[13] The Crown applied pursuant to ss. 753(1)(a)(i) and (ii) of the Code to have the appellant declared a dangerous offender and sentenced to an indeterminate period of incarceration. Each of those subsections provides a different pathway to a dangerous offender designation.

[14] Sections 753(1)(a)(i) and (ii) provide:

753(1) On application made under this Part after an assessment report is filed under subsection 752.1(2), 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 described in paragraph (a) of the definition of that expression in section 752 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….

[15] The trial judge found all three criteria under s. 753(1)(a)(i) had been met. On the first criterion, the offences of which he had convicted the appellant included serious personal injury offences. [2] On the second criterion, he found that the Crown had established that the appellant’s criminal history, which included two separate violent home invasions in which victims were injured, showed a pattern of repetitive behaviour demonstrating a failure on the appellant’s part to restrain his behaviour, and that there were significant similarities between his criminal conduct in the past and the predicate offences. On the third criterion, he found that the Crown had established a likelihood that the appellant would cause serious physical or psychological damage to others in the future as a result of his failure to restrain his behaviour.

[16] The trial judge also found that the criteria under s. 753(1)(a)(ii) had been met. Relying on the two home invasion robberies and the violent robbery involved in the predicate offences, he found that the Crown had proven a pattern of persistent aggressive behaviour on the part of the appellant that showed he had a substantial degree of indifference to the foreseeable consequences of his behaviour. He also found that the appellant is a threat to the life, safety or physical or mental well-being of other persons on the basis of these factors.

[17] The trial judge designated the appellant a dangerous offender.

[18] The sentencing consequences of a dangerous offender designation are set out in ss. 753(4) and (4.1) of the Code which provide:

(4) If the court finds an offender to be a dangerous offender, it shall

(a) impose a sentence of detention in a penitentiary for an indeterminate period;

(b) impose a sentence for the offence for which the offender has been convicted — which must be a minimum punishment of imprisonment for a term of two years — and order that the offender be subject to long-term supervision for a period that does not exceed 10 years; or

(c) impose a sentence for the offence for which the offender has been convicted.

(4.1) 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.

[19] The trial judge found that he did not have a reasonable expectation that the public could be adequately protected from the appellant by a lesser measure than an indeterminate sentence. He sentenced the appellant to concurrent indeterminate terms of detention in a penitentiary on Counts #1, 2, 5, and 6 (the serious personal injury offences). He entered a conditional stay of the convictions on Counts #4, 5, 8, 9, 10, 14, and 15, pursuant to the principles in Kienapple v. R., [1975] 1 S.C.R. 729. He sentenced the appellant to a total of 12.5 years’ incarceration on the remaining counts, less 7 years’ credit for pre-sentence custody.

Analysis

The Conviction Appeal

(1) Count #2 – Aggravated Assault by Wounding

[20] The appellant appeals his conviction on Count #2. He argues that Mazzulla’s injuries were not sufficient to constitute “wounding” and therefore the conviction of aggravated assault by wounding was unreasonable. He submits that a conviction of assault causing bodily harm should be substituted on this count.

[21] The trial judge found that aggravated assault by wounding had occurred because Mazzulla’s “face was cut above his lip as a result of being punched by Mr. Jeffrey. Wounding requires a breaking of the skin. The photograph shows that Mr. Mazzulla’s skin was cut.”

[22] The appellant does not contest the finding of fact of a cut of the skin, but argues that, as there was no evidence Mazzulla received stitches or other medical treatment, the cut did not amount to a wound that could support a charge of aggravated assault. He submits that a wound in the context of aggravated assault requires breaking of the skin that rises to the standard of serious bodily harm; that is, harm that interferes in a substantial way with the integrity, health or well-being of the complainant. The appellant relies on a decision of the British Columbia Court of Appeal that was not available to the trial judge: R. v. Pootlass, 2019 BCCA 96, 373 C.C.C. (3d) 433, at para. 113. The appellant submits that there was no evidence that the cut Mazzulla suffered interfered in a substantial way with his integrity, health or well-being.

[23] The Crown argues that in Ontario, the accepted definition of wound for the purpose of aggravated assault is reflected in Watt’s Manual of Criminal Jury Instructions, 2nd ed. (Toronto: Thomson Reuters Canada, 2015): “To ‘wound’ means to injure someone in a way that breaks or cuts or pierces or tears the skin or some part of the person’s body. It must be more than something trifling, fleeting or minor, such as a scratch.”

[24] This court has previously affirmed this definition: see R. v. Wong (2006), 209 C.C.C. (3d) 520 (Ont. C.A.), at para. 13. It continues to be referenced by trial courts — see, for example, R. v. Green, 2019 ONSC 884, at para. 60; R. v. McQuinn, 2021 ONSC 4884, at para. 103.

[25] The Crown submits that the trial judge’s finding of a wound shows that he appreciated, and applied, the accepted Ontario definition, and reached a conclusion that was available on the evidence. I agree.

[26] The trial judge clearly found that the result of the assault on Mazzulla was a cut of the skin, and Mazzulla testified that he had been left with a scar. The trial judge was in the best position to assess whether the cut was trifling, fleeting, minor, or a scratch, and must be taken to have concluded that it was not. [3]

[27] The trial judge’s conclusion is justified under Ontario authorities and I would not interfere with it.

(2) Count #7 – Discharging a Firearm with Intent to Endanger Life

[28] The appellant also appeals his conviction on Count #7, discharging a firearm with intent to endanger the life of Cubellis.

[29] The appellant argues that s. 244(1) of the Code, which makes it an offence to discharge a firearm at a person “with intent to wound, maim or disfigure, to endanger the life of or to prevent the arrest or detention of any person” is a specific intent offence. He submits that the specific mens rea of intent to endanger life cannot be automatically inferred from the discharging of a firearm at a person, as this would render redundant the other modes of committing the offence. Although one could generally infer an intent to endanger life when a firearm is discharged at a lethal area such as the head or chest, here the appellant argues it was aimed at a less lethal area – the leg. The trial judge did not explain why he drew the inference of an intention to endanger life, as opposed to a competing inference. The appellant submits that rather than a new trial on this count, a conviction for aggravated assault should be substituted.

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

[31] The mens rea for an intent to endanger life is different than that required for attempted murder. The appellant must intend to put a person at risk of losing their life: R. v. Boomhower (1974), 20 C.C.C. (2d) 89 (Ont. C.A.), at para. 7; Watt’s Manual of Criminal Jury Instructions, Final 244 Discharge Firearm With Intent, at para. 6.

[32] The trial judge expressly found that “even though the bullet hit Mr. Cubellis’ leg, his life was still endangered by the fact that a bullet was fired at him.”

[33] Cubellis’ evidence, which the trial judge accepted, was that the appellant punched him repeatedly and hit him in the head with an object, knocking him to the ground. He pointed his gun at Cubellis and made demands for cash and drugs, which were not fulfilled. Cubellis described the appellant growing more irate and being “so agitated”. He begged the appellant not to kill him. The appellant then glanced at Cubellis and shot him in the leg about five inches from his groin. The bullet went through the inside of his right thigh and came out the other side, causing extensive bleeding, and leading Cubellis to think he was going to die.

[34] In my view, it was open to the trial judge on all of the evidence to draw the inference that the appellant intended to put Cubellis’ life at risk when he shot him, even if the shot was aimed (to use the appellant’s formulation) at a “less lethal” area than the head or chest.

[35] I would accordingly dismiss the conviction appeal.

The Sentence Appeal

[36] The appellant submits that the trial judge made numerous errors in reaching his conclusion to designate the appellant a dangerous offender. First, the appellant submits that the trial judge erred in finding the requisite pattern of behaviour within the meaning of s. 753(1)(a)(i) had been established. He also argues that the trial judge erred in finding the requisite pattern of persistent aggressive behaviour under s. 753(1)(a)(ii) was established and that the trial judge did not properly consider the appellant’s remorse in deciding whether he had shown a substantial degree of indifference to the consequences of his behaviour. Finally, he submits that the trial judge failed to consider the appellant’s treatment prospects at the designation stage of the analysis.

[37] Even if the trial judge was right to designate the appellant a dangerous offender, the appellant argues that he erred in imposing an indeterminate sentence.

[38] Lastly, the appellant argues that the trial judge committed two additional errors regarding sentencing.

[39] Below, I address each argument and explain why I would not give effect to them.

(1) The Dangerous Offender Designation – Repetitive Pattern of Behaviour under s. 753(1)(a)(i)

[40] The trial judge instructed himself that:

A pattern of repetitive behaviour can be established on the basis of a single prior incident provided that it and the predicate offence display elements of similarity. As the number of prior incidents increases the degree of similarity required decreases. The pattern of behaviour must contain enough of the same elements of unrestrained dangerous conduct to be able to predict that Mr. Brown will likely offend in the same way in the future. Similarity can be found not only in the types of offences committed but in the degree of aggression used or violence inflicted. [Citations omitted.]

[41] The trial judge found that the pattern of repetitive behaviour contemplated by s. 753(1)(a)(i) was established due in part to the significant similarities between the appellant’s behaviour in two home invasions in 2002 and 2003 and his behaviour in the predicate offences. He noted that “[o]n all three occasions Mr. Brown was armed with a weapon and invaded premises with accomplices for the purpose of committing a violent robbery. In all cases victims were injured as a result of his conduct.” Both the home invasions and the predicate offences showed “a very similar pattern of violent behaviour on Mr. Brown’s part.”

[42] The appellant argues that the finding of similarity is flawed because the appellant pled guilty to the home invasion offences as a party, not a principal. The appellant submits that there was no evidence that the appellant was the person who actually caused injury by applying physical force to another person in the home invasions, yet the trial judge proceeded on the basis that he was. The predicate offences were the only time that the appellant had been convicted as the principal offender who actually committed the act of violence in the sense of directly injuring another person.

[43] The appellant submits that this is a dissimilarity and one that is important, for two reasons. First, the fewer the number of offences said to make up the pattern of repetitive behaviour, the higher the degree of similarity that is required: R. v. Hogg, 2011 ONCA 840, 287 O.A.C. 82, at paras. 39-40. Second, the dangerous offender provisions are aimed at preventing future violent (or sexual) offending, not criminal behaviour in general. Therefore, it is significant whether each offence comprising the pattern involved violence by the offender resulting from the offender’s failure to restrain his or her behaviour.

[44] I do not accept this submission.

[45] First, the appellant’s convictions as a party to the offences involved in the home invasions do not, in this case, create a meaningful dissimilarity to his convictions as a principal in the predicate offences. A person may be convicted as a party only where their conduct has extended beyond presence at the scene or passive acquiescence. They must have engaged in encouragement of the principal, or an act which facilitates the commission of the offence, or an act which tends to prevent or hinder interference with accomplishment of the criminal act: Dunlop and Sylvester v. The Queen, [1979] 2 S.C.R. 881, at p. 891.

[46] In this case, the evidence was that the appellant’s behaviour in each of the home invasions included carrying and brandishing a shotgun. The appellant admitted that to Dr. Pearce, who performed a psychiatric assessment of the appellant under s. 752.1 of the Code. It was also undisputed that victims in each home invasion were beaten with a shotgun.

[47] The appellant points out that Dr. Pearce testified that the appellant had not told him that he was the one who administered the beatings, and therefore the trial judge was wrong to say in his reasons that the appellant had struck a victim with a shotgun in the first home invasion. I do not accept that argument. The facts accepted by the appellant when he pled guilty to offences arising out of the first home invasion were that the appellant was one of three men who invaded the premises; one carrying a shotgun, one a knife, and one unarmed. When a victim resisted, he was “struck on the head with the butt of [the] shotgun carried by one of [the] three persons.” The appellant’s admission that he was the person who carried the shotgun supports the trial judge’s inference that he was the one who struck the victim. I am not satisfied that it was an error for the trial judge to have interpreted the evidence that way.

[48] In any event, even without that inference, the appellant’s behaviour in the home invasions was violent, from two perspectives. First, he was a party to offences which involved the application of physical force, which his conduct encouraged, or facilitated, or prevented interference with. And second, his brandishing of a shotgun as part of a home invasion was itself a threat to cause harm, which falls within the definition of a serious personal injury offence, as it is defined in s. 752 of the Code: “the use or attempted use of violence against another person”: R. v. Steele, 2014 SCC 61, [2014] 3 S.C.R. 138, at para. 58.

[49] In my view, it was open to the trial judge to conclude that the behaviour in the home invasions and that in the predicate offences formed a pattern of repetitive behaviour. They each demonstrated the same failure of the appellant to restrain his behaviour, leading to violence. In all of the incidents, the appellant, armed with a shotgun, invaded premises with accomplices for the purpose of a violent robbery in which victims were injured. It was open to the trial judge to find significant similarities. The trial judge was not required to treat the home invasions and predicate offences as dissimilar types of behaviour even if in the former robberies, an accomplice may have inflicted the physical injury, while in the other, the appellant personally inflicted the physical injury. The trial judge was entitled to view them as “a very similar pattern of violent behaviour” by the appellant.

[50] Second, the appellant’s argument that the trial judge failed to distinguish a pattern that supports a prediction of future violent behaviour, as opposed to criminal behaviour in general, is unpersuasive. The trial judge expressly noted that the “pattern of behaviour must contain enough of the same elements of unrestrained dangerous conduct to be able to predict that Mr. Brown will likely offend in the same way in the future.” He focussed on the correct question. His conclusion, that “a very similar pattern of violent behaviour on Mr. Brown’s part” had been established, was open to him.

[51] As this court stated in R. v. Sawyer, 2015 ONCA 602, 127 O.R. (3d) 686, although this court will perform a more “robust” review of a dangerous offender designation than it otherwise would on a sentence appeal, it is still appellate review, not a rehearing. “Appellate review of a dangerous offender designation ‘is concerned with legal errors and whether the dangerous offender designation was reasonable’”. The factual and credibility findings of the trial judge are entitled to deference: Sawyer, at para. 26.

[52] In my view, the trial judge did not make a legal error. Nor is his conclusion unreasonable.

(2) Pattern of Persistent Aggressive Behaviour Under s. 753(1)(a)(ii) and Effect of Expressions of Remorse

[53] The appellant also argues that the trial judge erred in finding a “pattern of persistent aggressive behaviour by the offender … showing a substantial degree of indifference” as required under s. 753(1)(a)(ii).

[54] The appellant submits that the requirement of persistent aggressive behaviour requires a more consistent pattern — more examples of the behaviour and greater similarity among them — than that needed to satisfy the requirement of repetitive behaviour under s. 753(a)(i). Therefore, the trial judge’s approach of finding the same conduct satisfied both ss. 753(a)(i) and (ii) was flawed.

[55] I would not give effect to this argument. The test under s. 753(a)(ii) “does not depend upon similarities among the predicate offences”: R. v. C.W., 2019 ONCA 976, at para. 28. In my view, it was reasonable for the trial judge to reach the conclusion that the home invasions and the predicate offences formed a pattern of persistent aggressive behaviour. They each involved aggressive behaviour that was persistent – the appellant returned to the behaviour even after having been convicted and incarcerated for prior episodes of it.

[56] The appellant also argues that the trial judge was obliged to consider the appellant’s expressions of remorse on the question of whether the appellant’s behaviour exhibited a substantial degree of indifference to the reasonable consequences of his actions to other persons. The appellant relies on a statement made by the appellant to Dr. Pearce in which he told Dr. Pearce that he had apologized to a victim of one of the home invasions. The appellant also relies on a letter he wrote to the trial judge at the time of sentencing expressing remorse for the injuries to Cubellis.

[57] In my view, the trial judge was not required to accept the expressions of remorse as preventing the inference that the appellant showed a substantial degree of indifference to the consequences of his actions. He accepted the evidence of Dr. Pearce who wrote in his report that:

Overall … it is my opinion that Mr. Brown is likely to re-offend violently absent significant interventions. In my view, he has demonstrated a repetitive pattern of behaviour with respect to his assaults on others. He has committed serious violent offences towards several victims by virtue of his involvement in the drug trade and he has repeatedly returned to this ‘career’. Such behaviour could quite easily cause serious physical injury and/or severe psychological damage to his victims.

… He has nonetheless and without fail, continued to use substances, interact with criminally-inclined peers and immersed himself in the drug culture. Thus there is, in my opinion, ‘significant psychiatric support for the notion that Mr. Brown has manifested indifference to the reasonably foreseeable consequences of his behaviour’. [Emphasis added.]

[58] Dr. Pearce was expressly asked whether he had taken into account any expressions of remorse in reaching that conclusion and he confirmed he had, but gave greater significance to the repetition of the conduct that followed such expressions. He testified that the appellant said he felt bad about the 2002 and 2003 home invasions but “then again he has, sort of, more violence in, in similar type crimes leading to this current assessment … [H]e can say he’s remorseful but then if his actions indicate otherwise then we have to take that into account.” The trial judge was similarly entitled to take into account both the appellant’s words and actions. The appellant’s expressions of remorse did not preclude a finding that he was indifferent to the consequences of his actions.

(3) Treatment Prospects at the Designation Stage

[59] The appellant argues that in determining whether to designate him a dangerous offender, the trial judge erred by not considering the appellant’s treatment prospects. The trial judge did not address whether the Crown had established beyond a reasonable doubt that the appellant, in light of his treatment prospects, presented a high likelihood of harmful recidivism or that his violent pattern was intractable. This assessment is required at the designation stage by the Supreme Court’s decision in R. v. Boutilier, 2017 SCC 64, [2017] 2 S.C.R. 936, at para. 45.

[60] The Crown concedes this error. The trial judge did not have the benefit of the decision in Boutilier when he sentenced the appellant. However, such an error will not undermine the designation if there is no reasonable possibility that the verdict would have been any different if the error of law had not been made: C.W., at paras. 29-30.

[61] In my view, that is the situation here. Dr. Pearce gave evidence about the appellant’s high risk of violent recidivism, that he suffered from treatment resistant conditions, and that his poor history of treatment and supervision made the chances of his successfully accepting more treatment low. The trial judge considered the appellant’s treatment prospects on the question of whether the appellant’s risk could be managed in the community, which was relevant to whether there was a reasonable expectation that something less than an indeterminate sentence could manage the appellant’s future risk. As the trial judge stated, “The determination of whether Mr. Brown’s risk can be reduced to an acceptable level requires consideration of all factors, including whether he can be treated, so as to bring about sufficient risk reduction to ensure protection of the public”.

[62] The trial judge concluded that there was no such reasonable expectation.

[63] Given the above and the other findings the trial judge made that satisfied him that the criteria for a designation had been met, in my view there is no reasonable possibility that the trial judge would not have made the designation even if he had considered treatment prospects at that stage.

(4) The Indeterminate Sentence

[64] The appellant argues that the trial judge, in imposing an indeterminate sentence, applied an overly onerous, legally incorrect standard that is virtually impossible for an offender to meet. He submits that the trial judge erred in concluding that there was no reasonable possibility that a lesser measure than an indeterminate sentence could adequately protect the public, because he misunderstood the statutory scheme for a long-term supervision order (LTSO).

[65] The alleged misunderstanding relates to an example the trial judge gave of “[o]ne of the potential problems” with supervision of an offender on an LTSO. He expressed his view that if the appellant breached a condition of an LTSO, his release into the community could only be suspended for 90 days unless he was successfully prosecuted under s. 753.3 of the Code, and even if he was successfully prosecuted, he would be released into the community after he served the sentence for this offence regardless of risk to the community.

[66] The appellant submits that the trial judge’s example demonstrates that he misapprehended the statutory scheme for an LTSO in four respects. First, the appellant’s release into the community could be suspended before he breached any condition of an LTSO, if the Parole Board believed such a suspension was necessary to prevent a breach or protect society. Second, if the appellant breached a condition of his LTSO, he could be charged criminally, denied bail, and committed to custody. Third, if convicted of a breach of condition, the Crown could apply for an indeterminate sentence or a further LTSO. Fourth, while an LTSO can only be suspended for 90 days at a time (in contrast to an indeterminate sentence in which parole can be revoked permanently), the Parole Board may order multiple 90-day suspensions where necessary. The trial judge expressed the view that if an indeterminate sentence was imposed, the Parole Board would be best positioned to determine, at a later date, if the risk created by the appellant could be managed in the community and grant him parole. In the appellant’s submission, this view made the trial judge’s failure to appreciate the role of the Parole Board in the LTSO scheme important.

[67] I would not give effect to this argument. First, the trial judge’s example followed a more general statement that after considering the evidence of a parole officer, it was unclear to him “whether the level of supervision that can be provided by [Correctional Service Canada] would be sufficient to ensure the safety of the public should Mr. Brown be released into the community on a LTSO.”

[68] Second, I do not read the trial judge’s example as purporting to set out an exhaustive list of ways in which the appellant’s risk to the community could be managed under an LTSO, and therefore do not conclude that he failed to appreciate that legislative scheme. He correctly set out one consequence of a finding of a breach of the LTSO, which he considered one of the “potential problems” with an LTSO. It was not necessary for him to review all other aspects of the scheme, since the focus of the trial judge’s determination that an LTSO was insufficient was that “[t]he evidence before me does not support a finding that [the appellant] can be reasonably managed in the community within a definite period of time.”

[69] The trial judge accepted Dr. Pearce’s evidence about whether the appellant could be considered treatable and whether such treatment could be effective in lowering the risk to the public both during the period in which he would be subject to an LTSO and after its expiry. Based on a number of factors, including the appellant’s diagnosis and prognosis, previous poor response to treatment, poor chances of successful treatment, and poor record of compliance with supervision, Dr. Pearce’s ultimate conclusion was that: “while there is a possibility of eventual control of the risk in the community, I am not able to conclude that there is a reasonable expectation of same from a psychiatric perspective.” Dr. Pearce reached that conclusion while acknowledging that possible employment prospects of the appellant with family members, and other family supports, had positive aspects to them.

[70] The trial judge’s conclusion followed that of Dr. Pearce. He explained that he did not have a reasonable expectation that the public could be adequately protected from the appellant by any measure less than an indeterminate sentence. He concluded that on the evidence before him, “it would be far too speculative and unreasonably hopeful to conclude that [the appellant] will submit to appropriate treatment and supervision so that he will no longer pose a risk to the safety of society within a definite period of time.” This conclusion was not unreasonable.

(5) Additional Alleged Sentencing Errors

[71] The appellant complains that although the trial judge, on Count #1, convicted the appellant of assault causing bodily harm, he referred to the conviction as one for aggravated assault in his reasons designating the appellant as a dangerous offender. In my view, that error in nomenclature had no impact on the result the trial judge reached.

[72] The appellant also notes that the trial judge conditionally stayed the conviction on Count #5 under Kienapple, but imposed an indeterminate sentence for Counts #1, 2, 5, and 6. He argues that the trial judge should have imposed a stay of proceedings on Count #5 because the assault with a gun was subsumed by Count #1. In my view, the stay under Kienapple was appropriate and does not affect the dangerous offender designation on the charges that were not stayed or any other aspect of the sentence otherwise imposed.

Conclusion

[73] For these reasons, I would dismiss the conviction appeal. I would grant leave to appeal sentence, but would dismiss the sentence appeal.

Released: October 5, 2021 “C.W.H.” “B. Zarnett J.A.” “I agree. C.W. Hourigan J.A.” “I agree. S. Coroza J.A.”

[1] These charges were withdrawn after the alleged victim died in a car accident.

[2] A “serious personal injury offence” is defined in s. 752 of the Code as: “(a) an indictable offence, other than high treason, treason, first degree murder or second degree murder, involving (i) the use or attempted use of violence against another person, or (ii) conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage on another person, and for which the offender may be sentenced to imprisonment for ten years or more, or (b) an offence or attempt to commit an offence mentioned in section 271 (sexual assault), 272 (sexual assault with a weapon, threats to a third party or causing bodily harm) or 273 (aggravated sexual assault).”

[3] The photograph showing the injury, which was an exhibit at trial, was not made available for the appeal.