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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 20220216 DOCKET: C66516

Tulloch, van Rensburg and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

Jerome Lynch Appellant

Counsel: Marianne Salih, for the appellant Katie Doherty, for the respondent

Heard: September 9, 2021 by video conference

On appeal from the appellant’s designation as a dangerous offender and the sentence imposed on June 21, 2012 by Justice Silja S. Seppi of the Superior Court of Justice.

van Rensburg J.A.:

A. Overview

[1] The appellant appeals his designation as a dangerous offender and the imposition of an indeterminate sentence. The designation and sentence followed the appellant’s conviction for sexual assault and various prostitution-related offences in relation to D.B., who was 14 years old at the time of the offences. The sentencing judge designated the appellant a dangerous offender after concluding that the elements under s. 753(1) (b) of the Criminal Code, R.S.C., 1985, c. C-46, had been satisfied: the appellant had been convicted of a sexual assault which was a “serious personal injury offence” as described in para. (b) of the definition of that expression in s. 752; and by his conduct in any sexual matter he had shown a failure to control his sexual impulses and a likelihood of causing injury, pain or other evil to other persons through a failure in the future to control his sexual impulses.

[2] The appellant submits that, in finding him to be a dangerous offender under s. 753(1)(b), the sentencing judge erred by relying on conduct that did not demonstrate a failure to control his sexual impulses. The appellant also contends that the sentencing judge erred in imposing a dangerous offender designation and indeterminate sentence in the face of evidence that his risk of sexual reoffence was manageable.

[3] The appellant asks this court to vacate the dangerous offender designation, and instead designate him a long-term offender, and impose a fixed sentence of 6.5 years’ imprisonment, together with a long-term supervision order (“LTSO”) for ten years. In the alternative, if the dangerous offender designation is upheld, the appellant requests that the indeterminate sentence be vacated, and a fixed sentence of 6.5 years be imposed, followed by an LTSO for ten years.

[4] For the reasons that follow, I would allow the appeal. The sentencing judge erred in concluding, on the evidence before her, that the appellant had shown a likelihood of causing injury, pain or other evil to other persons through failure in the future to control his sexual impulses. The conduct relied on by the sentencing judge consisted of the appellant’s activities in relation to prostitution-related offences, including a sexual assault committed during the predicate offences. Although the appellant’s criminal record included one prior offence of sexual assault, which involved a failure to control sexual impulses, the other evidence, including the opinion of the psychiatrist, Dr. Pearce, did not support this necessary element for a designation under s. 753(1)(b). While the trial Crown also relied on 753(1)(a)(i) of the Criminal Code in support of the designation of the appellant as a dangerous offender, the Crown on appeal relies only on the provision invoked by the sentencing judge, s. 753(1) (b).

[5] I would set aside the dangerous offender designation and designate the appellant a long-term offender. I would impose a determinate sentence of 6.5 years’ imprisonment and an LTSO for ten years. In accordance with s. 759(6), the sentence is effective as of the date of the sentencing by the sentencing judge. With appropriate credits for the lengthy period of incarceration already served by the appellant in respect of the predicate offences, he has served his custodial sentence for the predicate offences. Given that the LTSO commences on the expiration of the determinate sentence, the LTSO will itself expire later this year.

B. Relevant Facts

(1) The Predicate Offences

[6] The appellant was tried by judge alone in 2010. The predicate offences were alleged to have occurred during a six to nine-month period between late 2004 and May or June of 2005. It was alleged that the appellant had procured D.B., a young teenager, and during their association, had sexually assaulted her and committed other offences.

[7] D.B. testified that she knew the appellant as “Lucky”. She met him when she was approximately 14 years old while she was working as a sex worker. He approached her, they exchanged calls and eventually she went to live with him, considering him to be her boyfriend. D.B. testified that, after a few weeks, Lucky set her up in a hotel room for in-call clients. He also arranged a fake I.D. for D.B. to facilitate out-call work with an agency, he set the fees for her services, and he controlled all the income that remained after the agency took its cut. D.B. was not allowed to buy basic necessities without Lucky’s permission. He threatened to “knock her head off her shoulders” after she bought tampons one day and he showed her his bloody knuckles to insinuate what could happen if she disobeyed him. On one occasion, after D.B. had bought a dress, again without Lucky’s permission, he forced non-consensual vaginal intercourse on D.B., after first unsuccessfully attempting anal intercourse. He told her he was doing it to punish her. D.B. testified that there had been other incidents of non-consensual sexual intercourse, where she felt obligated to comply because the appellant “was putting a roof over her head”. [1] Lucky also threatened to hurt D.B.’s mother, implying he knew where she lived.

[8] After spending several months with Lucky as her pimp, D.B. returned to her former pimp, I.N. Lucky called D.B. numerous times after that, making threats and verbally abusing her. In 2007 D.B. left I.N., who had become controlling and violent. Shortly thereafter, the appellant was charged with various offences in relation to D.B.

[9] The appellant did not testify at his trial. While there were challenges to D.B.’s credibility and reliability in her identification of the appellant as “Lucky”, and assertions that she had continued to work for I.N., and not for the appellant, at the relevant time, the details of D.B.’s evidence about what Lucky had done to her were not challenged. The trial judge concluded that there was overwhelming evidence that the appellant was the person D.B. knew as “Lucky”, including her identification of his mother’s address where they had stayed together, and the hotel where he had set her up for in-calls, and where his name appeared on the invoices for the relevant time periods.

[10] The appellant was convicted of four offences committed against D.B.: (1) aiding, abetting, and compelling D.B. to engage in prostitution (s. 212(1) (h) of the Criminal Code); (2) living off the avails of the prostitution of D.B. (s. 212(2.1)(b)); (3) sexual assault (s. 271); and (4) uttering threats (s. 264.1(1)).

[11] In her reasons for judgment the trial judge summarized her findings of fact as follows:

In making these determinations on counts one through five this court accepts the evidence of D.B., as supported by the evidence as a whole, as detailed earlier in this judgment about [the appellant’s] controlling and threatening conduct and his abusive treatment of D.B., by which he aided and compelled her to prostitute herself under his direction and control, during the six to nine months immediately preceding June 2005. He compelled her to engage in prostitution for his own personal financial gain by verbal intimidation, physical control and deception of a false name and promises of a future job in a legitimate business. He took from her all the money she received from her prostitution activities, whether from her work on the street or in conjunction with the out-call or in-call agencies that facilitated the activity. He arranged to have made a false ID document showing her to be 21 years of age, so she could work through the agency when he knew she was under 16.

…D.B. was well under the age of majority and in fear of [the appellant]. He showed her his bloody fists, suggesting that is what happens to girls who do not comply with his demands. When she bought a dress without his permission he took her to the back of a warehouse and threatened to knock her head off her shoulders, and afterwards forced sexual intercourse on her. To make her fear him he implied he could get to her mother and brother because she had given him their address at his request.

[The appellant] forcefully attempted anal intercourse on D.B., and when that was unsuccessful he had forced sexual intercourse on D.B. without her consent as a means to punish her for going against his directions by purchasing her own clothing. There were numerous other occasions of sexual intercourse in his garage without her consent during the time D.B. worked for [the appellant] as a prostitute. On other occasions of sexual intercourse by [the appellant] D.B. complied because she believed she had no choice, as he was putting a roof over her head.

When D.B. purchased tampons without [the appellant’s] permission he verbally intimidated and deliberately threatened her that he would knock her head off her shoulders, a threat of causing severe bodily harm against D.B.

(2) The Dangerous Offender Application

[12] At the start of the sentencing hearing in May 2010, the Crown indicated its intention to proceed with a dangerous offender application. The sentencing judge made a s. 752.1(1) order for the in-custody assessment of the appellant. The assessment was conducted by Dr. Mark Pearce, a staff psychiatrist at the Centre for Addiction and Mental Health in Toronto. Dr. Pearce’s report was provided to the court in October, and in December 2010 the Attorney General consented to the Crown proceeding with the dangerous offender application.

[13] The Crown asserted that the appellant was a dangerous offender under both s. 753(1) (a)(i) and s. 753(1)(b) of the Criminal Code [2], which read as follows:

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, [or]…

(b) that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (b) of the definition of that expression in section 752 and the offender, by his or her conduct in any sexual matter including that involved in the commission of the offence for which he or she has been convicted, has shown a failure to control his or her sexual impulses and a likelihood of causing injury, pain or other evil to other persons through failure in the future to control his or her sexual impulses.

[14] The dangerous offender hearing took place over several months in 2011 and 2012. On June 21, 2012 the sentencing judge (who was also the trial judge) determined that the appellant met the definition of dangerous offender under s. 753(1)(b) of the Code. She also concluded that his risk of reoffence could not be managed in the community, and, therefore, exercised her discretion to designate the appellant a dangerous offender and impose a sentence of detention for an indeterminate period. The sentencing judge also imposed a lifetime firearms prohibition pursuant to s. 109(3) of the Criminal Code, a DNA order and a SOIRA (Sex Offender Information Registration Act) order.

(3) The Evidence at the Dangerous Offender Hearing and the Sentencing Judge’s Reasons

[15] It is unnecessary to set out a detailed summary of the sentencing judge’s comprehensive reasons. What is important for the appeal is to highlight the evidence she considered in concluding that the appellant was a dangerous offender within the meaning of s. 753(1)(b), and that an indeterminate sentence was required, and to summarize her findings and analysis based on that evidence.

(a) The Evidence

[16] The evidence included 16 volumes of documents relevant to the predicate offences, the appellant’s history and particulars of his other convictions and police occurrences, victim impact statements, records of his incarceration in provincial and federal institutions, and items and written materials seized from the appellant and his cell, while he was in custody on the predicate offences. Several witnesses testified, including correctional and police officers and various women with whom the appellant had relationships and dealings. The appellant had been told six years earlier that he had a nine-year-old daughter. The child’s mother testified about the appellant’s positive interactions with the child, consistent with his statements to the court that this was a factor motivating him to turn his life around. Finally, the court had the assessment report and testimony of Dr. Pearce.

[17] According to the evidence at the hearing, the appellant’s childhood was essentially unremarkable. He was raised by his mother after his parents separated when he was 12, and he had maintained a good relationship with his mother and older brother. The appellant completed some years of high school. There was no youth record, and no suggestion of any substance use issues or significant psychiatric history.

[18] The appellant reported having had several intimate relationships and a large number of female sexual partners. Two of his former girlfriends (including H.D., with whom the appellant had a 6.5-year relationship) testified as Crown witnesses. According to the sentencing judge, their testimony underscored the appellant’s “manipulative, controlling and unpredictable behaviour in the context of a sexual relationship”. The appellant lied to them about his criminal past, and he relied on them financially. They testified about the appellant’s controlling nature and his verbal and physical abuse. He kept tabs on the women when he was in prison, calling them often, and indicating that he knew where they had been. When he discovered that the women had new partners, he became enraged and physically abused them.

[19] The sentencing judge referred to the appellant’s lengthy criminal record which began in 1989, when he was 18 years old. The circumstances of three sets of charges were relevant to the dangerous offender application:

• On June 9, 1997 the appellant was convicted of various offences involving S.M., a 19-year-old female sex worker, which took place in January 1996. After S.M. questioned the authenticity of an American $100 bill, the appellant verbally abused her, forced her to remove her clothing, handcuffed her to the backseat of the car they were in, produced a handgun, and pretended to be a police officer. He then forced vaginal intercourse on S.M., without a condom, while continuing to verbally abuse her. The sentencing judge noted that, based on documentation about this previous conviction, the offences were committed in a “violent and sadistic” manner. The appellant was placed on the SOIRA registry following this conviction. His custodial sentence of seven years, three months was reduced to 4.5 years on appeal.
• On October 15, 1997 the appellant escaped the Bath Institution and went to the workplace of his former girlfriend, H.D., where he waited for her to exit. After checking her cellphone and seeing her new partner’s name, the appellant assaulted H.D., pulling her hair and smashing the cellphone into her face. When the phone rang, the appellant threatened to kill the man on the line. He turned himself in to the police the next day. On March 25, 1998 he pleaded guilty to forcible confinement, escaping lawful custody and uttering threats, and he was sentenced to two years in custody, to be served consecutive to his sentence for the 1997 conviction.
• On March 22, 2007 the appellant pleaded guilty to and was convicted of several prostitution-related offences in relation to two teenaged girls, T.B. and C.S. He was sentenced to 28 additional months in custody plus three years’ probation after serving 17 months’ presentence custody. The events took place in 2005, shortly after the appellant’s involvement with D.B. had ended. The appellant had offered C.S., who was 17, a job where she would earn $1,000 to $2,000 per week, asked to be her pimp and then instructed her on how to do the job. T.B., who was 14 years old, was introduced to the appellant by C.S. T.B. was sexually intimate with the appellant and believed he was her boyfriend. After instructing her on how to interact with clients, the appellant took T.B. to an apartment where she worked as an escort, offering sexual services. After five days she became fearful and called her mother, leading to the appellant’s arrest. According to the sentencing judge, the documentation from the appellant’s sentencing on these offences indicated that he had “groomed his victims and preyed on their innocence”, it described the appellant as manipulative and dangerous, and noted that the victims were terrified of him. The sentencing judge also observed that the appellant showed no remorse or recognition of the harm he caused his young victims when he discussed these past offences with Dr. Pearce.

[20] There were victim impact statements from D.B., S.M., T.B. and C.S., and H.D. testified at the hearing. According to the sentencing judge, their accounts highlighted how the appellant’s conduct “caused extreme fear and psychological harm, including feelings of worthlessness and problems with intimacy.”

[21] The sentencing judge noted that there was much evidence about the appellant’s past and current conduct targeted toward the luring, manipulation, and recruitment of young females in addition to the incidents related in his criminal record. For example, according to an occurrence report, in September 2004 the appellant had been handing out cards with the name “Jerry” and two phone numbers to apparently intoxicated young females outside a university pub.

[22] In October 2011, correctional officers found phonebooks and notes in the appellant’s possession, leading to a search of his cell. The books listed more than 60 female names, referring to some as “bitches”, a term a correctional officer testified he had heard used by inmates involved in prostitution rings. The lists included “descriptive notations about some of the women suggestive of a grading system as to their attractiveness and sexual suitability.” There were also notes on how to set up a fraud scheme and about the location of a 9 mm handgun. These items raised concerns about the appellant’s continuation of his conduct in relation to young women, even while incarcerated. The sentencing judge found that these developments and incidents over the course of the appellant’s time in custody “shed light on his current behaviour in relation to the same activities for which he [had] been convicted in the past.”

[23] A Crown witness, C.O., testified about three-way calls she had with the appellant while he was in custody. After he asked for her help in recruiting models for a beauty supply business he was opening, she had provided him with contact information for several of her female friends. He also proposed a business where customers would pay escorts, but receive no sexual services, saying he could set this up right away if she knew of any girls. C.O. refused to be involved in the escort scam and told the appellant she would only partner with him in the beauty supply business. After C.O. discovered the appellant lied to her about why he was in jail and other matters, and she confronted him, he told her not to give a statement to the police or to return their calls. The sentencing judge found C.O. to be a credible and reliable witness, accepted her testimony and gave it “considerable weight on the matter of [the appellant’s] behaviour and his continued preoccupation with manipulation, deception and victimization of young women for sexual activities that he controls”.

[24] There was other evidence about the appellant’s behaviour while incarcerated. Evidence from the institutional authorities indicated that the appellant was intimidating and manipulative with other inmates, but was typically “friendly, smooth, polite and cooperative” with authorities, particularly where there was an advantage to be gained.

[25] Dr. Pearce prepared a report and testified at the sentencing hearing. His assessment included seven hours interviewing the appellant, interviews of other people, and a review of the records concerning the appellant’s criminal history, correctional and custodial records, psychiatric and health records. Dr. Pearce used various risk-assessment actuarial tools to measure the appellant’s risk of violent or sexual reoffence. Noting that there were no actuarial tools to predict the risk of future prostitution-related offences, he relied on his clinical judgment to assess the appellant’s risk in relation to such offences.

[26] Dr. Pearce was satisfied the appellant did not have a mental illness or any substance abuse issues. The appellant did not have a deviant sexual disorder or any clear conduct disorder, although he likely met the criteria for a mixed personality disorder, with anti-social and narcissistic personality disorder attributes.

[27] Based on the results of various actuarial tests, Dr. Pearce concluded that the appellant was in the moderate to high risk category for reoffending in a sexual offence. And, based on his clinical assessment, he concluded that the appellant was at a moderate to high risk of future prostitution-related charges. This was based on the pattern of adolescent girls who were strangers to the appellant being quickly victimized in rapid succession, suggesting a more likely repetition and greater number of victims in the future.

[28] As for the possibility of controlling the appellant’s risk for reoffence in the community, Dr. Pearce noted as positive factors the recognition that as sexual offenders enter into their sixth decade, there is a dramatic reduction in their propensity for reoffence (since the appellant was in his fifth decade at the time); the appellant’s ability to complete programming if motivated; and the availability of supports for him in the community. The fact that he had a relationship with his daughter was also positive. Dr. Pearce noted as a negative factor the appellant’s poor record of responding to past supervision. The appellant’s past work history and vague aspirations for future employment suggested a guarded prognosis.

[29] Dr. Pearce’s opinion about the possibility that the appellant would be manageable in the community on the expiry of his LTSO was “somewhat mixed”. It was “possible or even likely” he could be managed under an LTSO as a sexual offender, based on his advancing age, the absence of a definitive paraphilic diagnosis, and the likelihood of incarceration for the next several years. As for the risk of the appellant returning to pimping, Dr. Pearce was “much less optimistic about risk managing him”. He had significant concerns about the risk to the community even under an LTSO because of the size of the potential victim pool, the fact that the appellant was so well-equipped to function as a pimp, and his activities while in custody. Indeed, Dr. Pearce testified that he was “at a loss to create a plan for [the appellant] to keep him out of trouble”.

[30] Dr. Pearce’s report provided recommendations for the management of the appellant’s risk in the community in the event he was sentenced as a long-term offender. These included participation in a wide variety of programs during incarceration, with booster programming to continue in the community; intense supervision in the community, with release on a graduated and slow basis, allowing for rapid intervention should the appellant fail to comply with conditions; verification of the appellant’s whereabouts outside the facility, initially on a daily basis with unannounced visits; contacting any intimate partner of the appellant; a prohibition against employment in the adult entertainment, night club or bar industry and against contact with any criminally-oriented peers; and full financial disclosure and monitoring to ensure the appellant does not return to criminal activity.

(b) The Sentencing Judge’s Dangerous Offender Analysis

[31] The sentencing judge referred to the three elements for a dangerous offender designation under s. 753(1)(b). First, she had no difficulty concluding that the appellant’s sexual assault conviction, one of the predicate offences, was a “serious personal injury offence” within para. (b) of its definition in s. 752. She went on to determine whether the appellant by his conduct in any sexual matter, including the predicate sexual assault of D.B., had shown (1) a failure to control his sexual impulses, and (2) a likelihood of causing injury, pain or other evil to other persons through failure in the future to control his sexual impulses.

[32] The sentencing judge stated that there was no issue on the first prong of the test: “[The appellant] clearly failed to control his sexual impulses in the commission of the sexual assault on D.B. In a rage he tried to force anal sex on D.B. as punishment, and when that did not succeed he raped her vaginally, despite her cries begging him to stop”.

[33] In addressing the second prong, the sentencing judge rejected defence counsel’s argument that there was no reliable evidence on which the court should conclude the appellant by his conduct in any sexual matter had shown a likelihood of causing injury, pain or other evil to others through failure in the future to control his sexual impulses.

[34] The sentencing judge characterized the appellant’s commission of the predicate offence of sexual assault as egregious, and she referred to his sexual assault of S.M. as “another extremely serious instance of such failure to control his sexual impulses”. She stated that there was also a weight of other evidence from the hearing about the appellant’s conduct in sexual matters which strongly supported the conclusion of a failure to control his sexual impulses. The evidence she pointed to consisted of the opinion of Dr. Pearce about the appellant’s high likelihood of reoffending in the future; the other predicate offences in addition to his convictions for sexual assault, which were “evidence of his conduct in sexual matters which have caused serious injury, pain and psychological harm to the victim”; the appellant’s luring of girls into prostitution for his benefit and without appreciating the harmful effects to the victims; and most recently, his efforts to talk C.O. into helping him use girls in a scam of private dancing for money. She noted the appellant’s recurring pattern and repeated events of unrestrained and harmful sexual behaviour with young girls and women, stating that “[h]e has demonstrated an overwhelming need and uncanny ability to control and manipulate girls into performing sexual favours to further his own selfish pursuits”. Finally, the sentencing judge referred to the appellant’s collection of names and identifying data on young females, and concluded that “[h]aving regard to this, the sheer number of women listed, and the evidence of his plans to operate an escort service scam, the only and inescapable conclusion is that he is intending to resume his sexual exploitation of girls and young women when released from jail”.

[35] Having found that the appellant met the requirements for a dangerous offender designation, the sentencing judge went on to assess whether there was a reasonable possibility of eventual control of the appellant’s risk in the community in order to determine the appropriate sentence under s. 753(4). She concluded that there was no such reasonable possibility, “when all that the court is offered is hope and speculation”. She noted that the appellant had provided no plan or strategy for the eventual control of his risk, and Dr. Pearce had testified he was “at a loss to create a plan for [the appellant] to keep him out of trouble”. The appellant’s ability to deceive and manipulate made it effectively impossible to control the risk he posed if released into the community.

[36] In the result, the sentencing judge designated the appellant a dangerous offender and sentenced him to a period of indeterminate detention.

C. The Grounds of Appeal

[37] Under s. 759(1) of the Criminal Code a person who is found to be a dangerous offender may appeal on any ground of law or mixed fact and law. The standard of review was articulated by Tulloch J.A. in R. v. Sawyer, 2015 ONCA 602, 127 O.R. (3d) 686, at para. 26 as follows:

Appellate review of a dangerous offender designation “is concerned with legal errors and whether the dangerous offender designation was reasonable”: R. v. Sipos, 2014 SCC 47, [2014] 2 S.C.R. 423, at para. 23. While deference is owed to the factual and credibility findings of the sentencing judge, appellate review of a dangerous offender designation is more robust than on a “regular” sentence appeal: Sipos, at paras. 25-26; R. v. Currie, [1997] 2 S.C.R. 260, at para. 33.

[38] Where the error of law has not resulted in a substantial wrong or miscarriage of justice, an appellate court may dismiss an appeal against a dangerous offender designation, relying on s. 686(1)(b)(iii) of the Criminal Code. This power may be exercised only where there is no reasonable possibility that the verdict would have been any different had the error of law not been made: R. v. Boutilier, 2017 SCC 64, [2017] 2 S.C.R. 936, at para. 82.

[39] The appellant contends that the sentencing judge made two reversible errors. First, he says that, at the designation stage, the sentencing judge erroneously relied on conduct that did not demonstrate that he was incapable of controlling his sexual impulses in the past and future, to find him a dangerous offender under s. 753(1) (b) of the Criminal Code. Second, the appellant asserts that the sentencing judge improperly exercised her discretion (1) to impose a dangerous offender designation at the designation stage; and (2) to impose an indeterminate sentence at the penalty stage, in the face of evidence that his risk of sexual reoffence was manageable.

[40] It is sufficient for the determination of this appeal to address only the first ground. I will address the sentencing judge’s error in designating the appellant a dangerous offender under s. 753(1) (b), where the evidence did not demonstrate the likelihood of harm through failure in the future to control his sexual impulses. I will then turn to the question of the appropriate sentence once the dangerous offender designation is vacated.

D. DISCUSSION

[41] The Crown sought to have the appellant designated as a dangerous offender under both ss. 753(1) (a)(i) and 753(1)(b) of the Criminal Code, based on his history of offences and the risk of future offences, including sexual assaults and prostitution-related offences. The appellant notes that prostitution-related offences are specifically mentioned under s. 753.1 as a basis for a long-term offender designation and suggests that the Crown’s dangerous offender application in this case was misconceived.

[42] In fact, prostitution-related offences have been the basis for dangerous offender applications in the past. See, for example, R. v. F.E.D., [2009] O.J. No. 819 (S.C.J.), aff’d 2012 ONCA 800, [2012] O.J. No. 5399, where the designation was made under s. 753(1)(a), and R. v. Burton, 2018 ONCJ 153, [2018] O.J. No. 1250, where a designation under s. 753(1)(a) was refused in favour of an LTO designation, as no “pattern of behaviour” was made out.

[43] In this case, however, the sentencing judge relied only on s. 753(1) (b) of the Criminal Code. The issue is whether the appellant was properly designated as a dangerous offender under this provision in circumstances where the sentencing judge relied on his propensity to commit prostitution-related offences to assess his future risk.

[44] Section 753(1)(b) allows for a dangerous offender designation where three conditions are met. First, the offender must have been convicted of a “serious personal injury offence” as defined in the second part of the definition under s. 752, that is, an offence or attempt to commit an offence under ss. 271, 272 or 273. Second, the court must be satisfied that the offender, by his conduct in any sexual matter, including that involved in the commission of the predicate offence, has shown a failure to control his sexual impulses. Third, the court must conclude that such conduct has shown a likelihood of the offender causing injury, pain or other evil to other persons through failure in the future to control his sexual impulses.

[45] There is no dispute with respect to the first condition, since the appellant was convicted of a sexual assault against D.B., contrary to s. 271 of the Code. The appellant contends that neither the second nor the third condition was satisfied in this case.

[46] The appellant submits that there was no evidence of a pattern of behaviour to suggest a lack of sexual impulse control. There was only one such incident: the sexual assault on S.M. Even if the appellant demonstrated a failure to control his sexual impulses in the sexual assault on D.B., this offence occurred ten years after the sexual assault on S.M. and in very different circumstances. Moreover, in addressing his prospective risk, the sentencing judge relied on his record of pimping activities, which, according to the appellant, “did not demonstrate an inability to control his sexual impulses, any more than a drug dealer’s trafficking demonstrates an inability to control a drug addiction.” The other evidence relied on by the sentencing judge did not support the likelihood of the appellant causing harm in the future because of a failure to control his sexual impulses.

[47] The Crown asserts that the evidence met the test for a dangerous offender designation under s. 753(1)(b). The appellant had sexually assaulted S.M. and D.B., which demonstrated a failure to control his sexual impulses. Although the offence against D.B. occurred in the course of the appellant’s pimping activities, those activities should not be understood as financial transactions divorced from his exploitative conduct and the violence involved with them. This is the context in which the appellant sexually offended in the past, and it was open to the sentencing judge to find that the appellant posed a prospective risk of similar offences in the future.

[48] It is important to preface the consideration of this issue – that is, whether the elements for a s. 753(1) (b) dangerous offender designation were made out on the evidence relied on by the sentencing judge – with the understanding that the dangerous offender provisions must be interpreted strictly so as to remain within their constitutional bounds. In Boutilier, Côté J., writing for the majority, confirmed that the 2008 amendments to the dangerous offender provisions, like the 1977 regime they replaced, target “a small group of persistent criminals with a propensity for committing violent crimes against the person”: at para. 3. The careful tailoring of the legislation to limit its reach is fundamental to its constitutionality: R. v. Lyons, [1987] 2 S.C.R. 309, at p. 339; Boutilier, at paras. 28, 34.

[49] Section 753(1)(b) is addressed at a particular kind of offender – one who has engaged in a pattern of behaviour showing a failure to control sexual impulses, and who because of that, constitutes a future risk. The elements of this provision have always included a reference to the offender’s lack of control over his or her sexual impulses. See M. Cole, “Dangerous and Long-Term Offenders” in D. Cole and J. Roberts, eds., Sentencing in Canada, Essays in Law, Policy and Practice (Toronto: Irwin Law, 2020) at pp. 293 to 297, where the author outlines the history of this section, beginning with its origins in the Criminal Sexual Psychopath Act, an Act to amend the Criminal Code, S.C. 1948, c. 9, which allowed preventive detention for an individual “who by a course of misconduct in sexual matters has evidenced a lack of power to control his sexual impulses and who as a result is likely to attack or otherwise inflict injury, loss, pain or other evil on any person”.

[50] In Boutilier, the Supreme Court dealt with a dangerous offender designation under s. 753(1)(a)(i) of the Code, which expressly speaks of the need for a “pattern of repetitive behaviour”. The court affirmed, however, that all cases under s. 753(1) require that the offender engaged in a pattern of dangerous conduct. The court noted that s. 753(1)(b) required “in addition to evidence of a pattern of past conduct, an independent assessment of future risk”: at para. 38. Accordingly, to support a designation under s. 753(1)(b), after proving that the offender has been convicted of an offence under ss. 271, 272 or 273 of the Code, the Crown must prove, beyond a reasonable doubt, both a pattern of offending in the past showing a failure to control sexual impulses (which can be found in the circumstances of the predicate offence or the offender’s “conduct in any sexual matter”), and a prospective risk of harm to others through a failure to control sexual impulses.

[51] In many of the reported cases of dangerous offender designations under s. 753(1)(b) or its equivalent, there was no dispute about whether the offender’s past conduct reflected a failure to control sexual impulses, and there was clear evidence of a pattern of such conduct. In R. v. Currie, [1997] 2 S.C.R. 260, for example, it was undisputed that the offender, who was a pedophile and hebephile, with a long history of sexual offences, some of which were extremely violent, engaged in sexually impulsive criminal behaviour. A biological anomaly in the offender’s brain made his deviant sexual impulses uncontrollable and he was described as having a sexually impulsive and volatile nature. Similarly, in R. v. Skookum, 2018 YKCA 2, 45 C.R. (7th) 168, the Crown proceeded with a dangerous offender application under s. 753(1)(b) after the offender’s third conviction for sexual assault, where the predicate offence involved a sexual assault on a teenaged acquaintance with whom he had sexual intercourse after she had blacked out from drinking, and there had been an earlier conviction for sexual assault on a four-year-old in which he claimed to be “out of control” during an alcoholic blackout.

[52] In a recent decision, the British Columbia Court of Appeal, in allowing an appeal from a dangerous offender designation and directing a new hearing, addressed the “failure to control sexual impulses” element of s. 753(1)(b), and in particular the evidence relevant to the assessment of the offender’s future risk of reoffending. In R. v. Patel, 2020 BCCA 92, [2020] B.C.J. No. 432, the offender (who identified as male at the time of her convictions and as female at the dangerous offender hearing) had been convicted of sexual offences in relation to a 13-year-old. The pattern of behaviour that formed the basis for the dangerous offender application was a series of sexual assaults by the offender, who was assessed as having hebephilia with a probable paraphilic disorder. The sentencing judge had characterized the predicate offences as serious sexual offences committed to satisfy the offender’s sexual impulses. At issue in the appeal was the evidence relevant to the assessment of the offender’s prospective risk under s. 753(1)(b).

[53] Fitch J.A., for the majority, concluded that the sentencing judge erred in relying on a prior conviction for manslaughter in her consideration of the risk of reoffence in the context of s. 753(1)(b), where the Crown had conceded that there was no evidence that the manslaughter offence was driven or motivated by a sexual impulse. Referring to authorities from across Canada, he observed that “the assessment of future risk must be tied to the past type of criminal behaviour anchoring the application that an offender be designated ‘dangerous’”, and that this principle has also been applied in the context of dangerous offender applications under s. 753(1)(b): at paras. 220-224. He noted that the predicate offence “must form part of a pattern of behaviour that gives rise to the likelihood that the same type of behaviour will continue in the future”, and that “the Crown must prove beyond a reasonable doubt the likelihood that the offender’s past failure to control his or her sexual impulses will manifest itself in the future.”: at para. 225.

[54] The error in Patel was for the sentencing judge to rely on other violent conduct that “did not arise out of a failure to control sexual impulses” in assessing the offender’s prospective risk when determining whether she was a dangerous offender.

[55] In my view, the sentencing judge made a similar error in this case, when she relied on conduct that was unrelated to the appellant’s failure to control sexual impulses in the assessment of his prospective risk under s. 753(1)(b).

[56] There is no question that the evidence supported the conclusion that the appellant was likely to continue to engage in prostitution-related activities, including the procurement and exploitation of young women. This was the risk that was emphasized by Dr. Pearce, and that the sentencing judge concluded was supported by the voluminous evidence at the dangerous offender hearing. This was not, however, evidence that was tied to the type of criminal behaviour that anchored the dangerous offender application: the commission of sexual offences demonstrating a failure to control sexual impulses.

[57] The appellant was convicted of sexual assaults on two occasions, which involved very different circumstances. There is no dispute that the sexual assault on S.M. in 1996 demonstrated a failure to control sexual impulses, and, although the appellant emphasizes the sentencing judge’s conclusion that the predicate offence of sexual assault was motivated by the need to dominate or control D.B., the sentencing judge also found that the appellant had failed to control his sexual impulses when he lashed out in a rage, and after trying to force anal sex as a punishment, he raped her vaginally. I agree with the appellant that these two incidents were not sufficient to show a pattern of his failure to control sexual impulses. And with respect to the offences against T.B. and C.S., although there was evidence of serious psychological harm resulting from the appellant’s victimization of the young women – in this sense there was a pattern of harmful conduct by the appellant – there was no indication that these offences resulted from a failure to control sexual impulses.

[58] I agree with the appellant that the central concern here is that the sentencing judge, in assessing his future risk and the ability to control such risk in the community, conflated his conduct in sexual matters, including prostitution-related activities, with an inability to control sexual impulses. Her focus was on the harmful effects of the appellant’s pimping conduct, and his proclivity to exploit young victims by selling their sexual services for his own selfish ends. The sentencing judge relied on evidence of a pattern of behaviour in relation to prostitution-related activities, including the appellant’s efforts to establish a business with C.O., and his collection of names, numbers and personal data on young females, which led to her “inescapable conclusion … that he is intending to resume his sexual exploitation of girls and young women when released from jail”. While this evidence supported the appellant’s “likelihood of causing injury, pain or other evil to other persons”, it did not speak to his likelihood of causing such harm through a failure to control sexual impulses. Nor did Dr. Pearce’s evidence support this conclusion. He did not diagnose the appellant as having a sexual disorder, and he confirmed that the actuarial testing spoke to the likelihood of conviction for a sexual offence, but not to an offender’s ability to control his sexual desires.

[59] As such, in concluding that the appellant met the definition of a “dangerous offender” under s. 753(1)(b), the sentencing judge did not give proper effect to the “failure to control sexual impulses” requirement in her assessment of the appellant’s risk of reoffence. For these reasons I would set aside the dangerous offender designation.

E. THE APPROPRIATE SENTENCE

[60] The appellant and the Crown agree that, in the event that the dangerous offender designation is set aside on appeal, this court should impose a determinate sentence followed by an LTSO of ten years. The appellant, at first instance and on appeal, proposed a determinate sentence of 6.5 years in custody for the predicate offences. There was no suggestion on the part of the Crown that a sentence of this duration would have been inappropriate, nor did the Crown argue for a longer determinate sentence. In my view, a custodial sentence of 6.5 years would meet the sentencing objectives set out in s. 718 of the Criminal Code.

[61] Pursuant to s. 759(6), the sentence imposed by this court in an appeal under Part XXIV of the Code (with respect to dangerous and long-term offenders) is deemed to have commenced when the offender was sentenced by the court by which he was convicted. The appellant was sentenced on June 21, 2012. While the appeal was under reserve, the court communicated with counsel about the appellant’s credit for custodial time served, and the effective date of the LTSO, in the event that the appellant’s dangerous offender designation was to be set aside.

[62] According to the joint calculations of counsel, at the time he was sentenced, the appellant had spent just over three years’ real time in pre-sentence custody, which, if enhanced at the rate of 2:1 (which would have been the norm at the time), would amount to just over six years’ credit. From the date of sentencing to the date of these reasons, the appellant has served an additional nine years and seven months in custody.

[63] Again, according to counsel, at the time of his sentencing, the appellant would have had six months left to serve on his 6.5‑year sentence. He would have thus finished serving his custodial sentence on or about December 20, 2012.

[64] While counsel agree on the calculation of the appellant’s custodial time served, they disagree about the effective date of the LTSO. The appellant, relying on s. 759(6), submits that the ten-year LTSO is deemed to have commenced on December 20, 2012, and would therefore expire on December 19, 2022. The Crown contends that none of the time the appellant has spent in custody should be credited toward the ten-year LTSO, and that it should only take effect on the date of his release. Crown counsel asserts that it would run counter to the purposes of LTSOs, to protect the public and rehabilitate and reintegrate offenders, if any of the time the appellant has spent serving his indeterminate sentence is credited against the LTSO. Pointing to the evidence at the dangerous offender hearing in 2012, she submits that there is grave cause to be concerned about the appellant’s risk should he be released from custody without a ten-year LTSO.

[65] I am not persuaded by the Crown’s submission, which in my view is inconsistent with the clear words of s. 759(6) and the appellant’s legitimate liberty interests. First, an LTSO, like an indeterminate sentence, is part of the sentencing options provided for dangerous and long-term offenders: see R. v. Straub, 2022 ONCA 47, where Watt J.A. describes sentences under Part XXIV as “composite sentences”. Section 759(6) directs that the sentence, which can only mean the entire sentence, is deemed to have commenced on the date the original sentence was imposed. Second, treating the LTSO as having run while the appellant was in custody following completion of his determinate sentence is consistent with the treatment of custodial time for offenders who are incarcerated after suspension of an LTSO. The time on an LTSO continues to run while the offender is in custody, except if they have been sentenced to additional time in custody for breach of the LTSO, in which case the LTSO is interrupted: see R. v. Bourdon, 2012 ONCA 256, 110 O.R. (3d) 168, where a long-term offender had been credited with more than one half of his original seven-year LTSO for pre-sentence custody on charges following repeated breaches of the LTSO. See also the Corrections and Conditional Release Act, S.C. 1992, c. 20, s. 135.1(3); R. v. Wilson, 2010 BCCA 65, 252 C.C.C. (3d) 117, leave to appeal refused, [2010] S.C.C.A. No. 108; and R. v. Payne, 2012 NLCA 72, 330 Nfld. & P.E.I.R. 181.

[66] Finally, the objective of protection of the public, including through the appellant’s rehabilitation and reintegration, cannot justify an interpretation of s. 759(6) that would result in the continued restriction of his liberty. The public has been protected during the period of the appellant’s ongoing incarceration for more than nine years of the LTSO. I would echo comments made in R. v. Hoshal, 2018 ONCA 914, [2018] O.J. No. 6439. In allowing an appeal from the determinate sentence component of a long-term offender’s sentence, recognizing that the LTSO took effect “immediately”, and refusing the Crown’s request to increase the length of the determinate sentence to provide time for the crafting of an appropriate LTSO, Fairburn J.A. stated, “[i]t is not for this court to increase the appellant’s punishment and further jeopardize his liberty interests to accommodate the development of a plan for the LTSO. There is no basis to do so”: at para. 22. Similarly, in the present case, it is not for this court to interpret s. 759(6) in the manner proposed by the Crown. Ignoring the time the appellant has spent in custody after serving his sentence for the predicate offences, and imposing a ten‑year LTSO going forward would increase the appellant’s punishment and further jeopardize his liberty interests.

F. DISPOSITION

[67] For these reasons, I would allow the appeal. I would set aside the designation of the appellant as a dangerous offender, and instead designate him a long-term offender. I would sentence the appellant to a custodial sentence of 6.5 years, to be followed by a period of ten years under an LTSO. Pursuant to s. 759(6) of the Code, the sentence is deemed to have commenced on the date the appellant was sentenced by the sentencing judge, that is June 21, 2012. The appellant has served his determinate sentence and his LTSO will expire on December 19, 2022.

Released: February 16, 2022 “M.T.”

“K. van Rensburg J.A.”

“I agree. M. Tulloch J.A.”

“I agree. I.V.B. Nordheimer J.A.”

Footnotes

[1] At the time the predicate offences were committed, the age of “consent” under s. 151 of the Criminal Code was 14.

[2] The parties proposed, and the sentencing judge agreed, that the dangerous and long-term offender provisions in force at the date of sentencing, rather than the regime in place at the date of the predicate offences, would be more favourable to the appellant, and would therefore apply.