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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 20221214

DOCKET: C58458

Pepall, Tulloch and Huscroft JJ.A.

BETWEEN

His Majesty the King Respondent

and

Norman Tynes Appellant

Counsel: Carter Martell, for the appellant Elise Nakelsky and Philippe Cowle, for the respondent

Heard: March 21, 2022 by video conference

On appeal from the convictions entered by Justice S. Ford Clements of the Ontario Court of Justice on June 19, 2009, and from the dangerous offender designation and indeterminate sentence imposed on December 9, 2011.

Tulloch J.A.:

I. Overview

[1] The appellant and complainant were in an on and off relationship for years. On October 29, 2008, they were at a party together and had been smoking crack cocaine. The appellant thought the complainant was making hand signals at another man, so he punched the complainant.

[2] Later that night, the appellant entered the apartment where the complainant was sleeping. When the complainant awoke to find the appellant on top of her, she cut him with a knife. A fight ensued and the complainant’s nose was broken.

[3] The appellant ordered the complainant to go clean herself up in the bathroom. While there, he forced her to perform oral sex on him. Afterwards, the appellant chased her with a stick, beating her until she returned to the bathroom. He then forced vaginal intercourse.

[4] The complainant’s friends arrived shortly after and took her to the hospital.

[5] The complainant made a statement to the police, but she was an uncooperative witness at trial. As a result, she was arrested and remanded in custody on a material witness warrant for three weeks. On the continuation of the trial, she ultimately gave testimony, resulting in the appellant’s conviction on the charges.

[6] After the appellant’s conviction, the Crown sought a s. 752.1 assessment to declare the appellant a dangerous offender, which was denied.

[7] At the end of the sentencing submissions, the Crown sought a reconsideration of the denial, which the defence ultimately consented to. In the end, the trial judge found the appellant was a dangerous offender and imposed an indeterminate sentence pursuant to s. 753(4.1) of the Criminal Code, R.S.C. 1985, c. C-46.

[8] The appellant now appeals his conviction, dangerous offender designation and indeterminate sentence. The appellant also seeks leave to file fresh evidence for his conviction and sentence appeal.

[9] For the reasons that follow, I would dismiss the appeal.

II. Facts and Procedural History

(1) The Appellant’s Background

[10] The appellant is a 52-year-old African Nova Scotian man. At the time of the underlying offence, the appellant was 39 years old. He and the complainant had been in a romantic relationship on and off for years.

[11] The appellant had a turbulent childhood. He dropped out of school after grade eight and began using drugs shortly thereafter. He later turned to theft to support his drug addiction. During the appellant’s youth, he spent a year under the supervision of a probation officer who repeatedly sexually abused him.

[12] The appellant has a lengthy criminal record with over 80 convictions, including assault simpliciter, assault with a weapon, theft, breaking and entering, possession of a controlled substance, and one count of manslaughter. This criminal record traces back to when the appellant was 14 years old.

(2) The Predicate Offence & Conviction

[13] On the evening of October 29, 2008, the appellant and the complainant were partying and smoking crack cocaine together. The complainant had been smoking crack cocaine for the past five days.

[14] At the party, the appellant saw the complainant making “hand signals” to another man and reacted by punching the complainant.

[15] Later that night, the complainant went to sleep at a friend’s house. She awoke to find the appellant in bed on top of her, stroking her hair and kissing her. The complainant reacted by slashing the appellant with an exacto knife that she had hidden under the bed.

[16] An altercation ensued in the bed. Both the appellant and complainant punched and threatened to kill each other. The altercation resulted in the complainant suffering a broken nose.

[17] The complainant testified that the appellant instructed her to go into the washroom to clean herself up and threatened to kill her when she protested. While in the bathroom, the appellant forced the complainant to perform oral sex on him. She complied out of fear that he would continue beating her.

[18] Afterwards, the complainant tried to escape. The appellant chased her around the apartment with a stick until she returned to the washroom, at which point the appellant forced vaginal intercourse.

[19] The complainant’s friends arrived shortly thereafter and took her to a hospital, where the staff called the police.

[20] At trial, the complainant was not a cooperative witness. She did not respond to a subpoena and was ultimately arrested pursuant to a material witness warrant. The complainant was held in custody for two days before appearing at trial.

[21] At the same time that the complainant was arrested on the material witness warrant, she was also arrested on an outstanding warrant for breach of her conditional sentence.

[22] While on the stand as a Crown witness, on February 4, 2009, the complainant claimed not to remember anything. The trial judge threatened to put her in jail for “a couple days” if she did not participate. He also suggested that she might be well-advised to speak to a lawyer. She refused to participate in the proceeding, and she was remanded into custody until the next hearing date.

[23] The trial was adjourned for three weeks. The complainant remained in custody for the entirety of this time. As well, during this time, her outstanding charge was withdrawn.

[24] When the trial resumed on February 27, 2009, the complainant was cooperative, and her testimony conformed to the police statement she had given.

[25] The appellant fired his counsel and at the next trial date, June 10, 2009, his new counsel recalled the complainant. Her testimony differed in some respects. Trial counsel attempted to ask her why her testimony had changed between February 4 and 27, 2009, but Crown counsel objected. The trial judge reminded defence counsel he was not permitted to cross-examine the complainant as she was now a defence witness.

[26] The trial judge ultimately found the appellant guilty of sexual assault, assault with a weapon, assault simpliciter, and threatening death.

(3) Dangerous Offender Designation

[27] At sentencing, the Crown brought an application under s. 752.1 of the Criminal Code for a dangerous and long-term offender assessment. The trial judge denied the application based on an absence of prior sexual misconduct.

[28] The Crown filed a notice of appeal. On the second day of the sentencing hearing, the Crown informed the court that she intended to seek a reconsideration of the s. 752.1 application based on additional materials.

[29] Defence counsel initially objected to the reconsideration, but ultimately consented to the s. 752.1 assessment, which resulted in the commencement of dangerous offender proceedings.

[30] The proceedings culminated in the trial judge designating the appellant a dangerous offender.

[31] The trial judge considered the appellant’s lengthy criminal record. In addition to the appellant’s CPIC criminal record, evidence of previous bad behaviour was adduced by way of synopsis, correctional records, and the appellant’s admissions of previous acts of violence.

[32] The trial judge also considered evidence that the appellant rarely worked and was a regular drug user. In addition, over the past 20 to 25 years, the appellant did not demonstrate an interest or meaningful commitment to changing his lifestyle (despite expressing a desire to do so).

[33] Two psychiatrists, Dr. Treena Wilkie and Dr. Julian Gojer, assessed the appellant and provided their expert evidence at the dangerous offender proceeding. Dr. Wilkie diagnosed the appellant with antisocial personality disorder, and Dr. Gojer concluded that there was a correlation between the appellant’s cocaine use and his aggression and criminal activity.

[34] The trial judge found that the appellant displayed a “pattern of repetitive behaviour” under s. 753(1)(a)(i) of the Criminal Code. He concluded that the predicate offence, along with the appellant’s extensive criminal record, showed an inability to refrain from violent outbursts when angry, jealous, humiliated, rejected, confronted, challenged, and apprehended. The trial judge found there was a likelihood that the appellant would continue to use violence as a problem-solving method in the future.

[35] The trial judge also found that the appellant satisfied s. 753(1)(a)(ii) of the Criminal Code, based on the same history of using violence when confronted with problems, particularly in his interactions with the police. The trial judge also considered the evidence from Dr. Wilkie that antisocial personality disorder involves a pervasive pattern of disregard for, and violation of, the rights of others.

(4) Imposition of an Indeterminate Sentence

[36] Turning to the penalty stage, the trial judge imposed an indeterminate sentence pursuant to s. 753(4.1) of the Criminal Code. Based on the trial judge’s reading of Dr. Gojer and Dr. Wilkie’s evidence, he concluded that “treatment in this case is difficult at best”. There was no evidence of past conduct to suggest that the accused had tried to “honestly deal with these issues.”

[37] Thus, the trial judge was satisfied that the appellant “will inflict harm that meets the requirements of a serious personal injury offence in the future.” Consequently, no lesser measure than an indeterminate sentence would adequately protect the public.

III. Grounds of Appeal

[38] The appellant now appeals his conviction, dangerous offender designation, and indeterminate sentence. The appellant also seeks leave to file fresh evidence for both the conviction and sentence appeal.

IV. Analysis

(1) Appeal of Conviction

[39] The appellant appeals his conviction on the following grounds: (1) the complainant’s treatment during the appellant’s trial destroyed the appearance of trial fairness and this amounted to a miscarriage of justice; and (2) the trial judge erred in his assessment of the complainant’s credibility because he did not consider the circumstances under which she testified.

[40] I would dismiss both grounds of appeal for the reasons below.

(a) Complainant’s Detention and Trial Fairness

[41] The appellant submits that the trial judge’s decision to remand the complainant into custody for three weeks on a material witness warrant, and the Crown’s intervening withdrawal of the complainant’s outstanding charge, gave the appearance of an inducement for the complainant’s evidence. Consequently, this affected the appearance of a fair trial.

(i) Fresh Evidence Application

[42] The appellant has filed a fresh evidence application in support of his position on this ground of appeal. The fresh evidence consists of the following:

• The complainant’s Information which gave rise to the charges on which her conditional sentence was based;
• The Crown brief on the complainant’s conditional sentence breach and material witness warrant;
• Transcripts from the trial on February 3 and 4, 2009;
• Excerpts from an examination of Robert Valentine, the appellant’s trial counsel; and
• Notes from the officer who re-interviewed the complainant in April 2009, during the period when the trial was adjourned.

[43] The appellant submits that the fresh evidence on the conviction appeal is necessary to adjudicate the claim of trial unfairness. More specifically, according to the appellant, the fresh evidence provides further information on the following: (1) how the complainant was remanded to jail; (2) how the complainant’s breach charge was withdrawn; (3) the potential benefit she received as a result of that withdrawal; and (4) her state of mind at the trial when the trial resumed in June 2009.

[44] The Palmer test governs the admissibility of fresh evidence in this context: R. v. Palmer, [1980] 1 S.C.R. 759. In order to be admitted, the proposed fresh evidence must meet four criteria: (1) the evidence must not have been capable of being adduced at trial through due diligence; (2) the evidence must be relevant in the sense that it bears on a decisive or potentially decisive issue; (3) the evidence must be credible in the sense that it is reasonably capable of belief; and (4) if believed, when taken with the other evidence, the evidence must be expected to have affected the result.

[45] The respondent submits that the fresh evidence on the conviction appeal should not be admitted as it fails to meet two Palmer criteria. First, the evidence could not reasonably have affected the verdict. According to the respondent, the fresh evidence does not definitively explain how the complainant’s breach charge was resolved, and in any case, the trial judge was alive to these issues when he assessed her evidence. As a result, even if the fresh evidence was believed, it would not support the claim that the circumstances under which the complainant testified undermined trial fairness. Second, the fresh evidence also does not satisfy the due diligence requirement because the complainant could have been questioned about the resolution of her breach charge at the trial. Moreover, defence counsel had the officers’ notes when the trial resumed in June 2009 but chose not to pursue that line of questioning.

[46] I agree with the respondent’s submissions on why this evidence fails to meet the Palmer test. As such, the appellant’s fresh evidence application is denied.

(ii) Was there a miscarriage of justice arising from the treatment of the complainant?

[47] The appellant points to the trial judge’s statement on February 4, 2009, as proof that the complainant was threatened. There, the trial judge had suggested that “maybe some more time in jail will help”, and that the trial would continue after the complainant spent a couple more days in jail. The complainant was ultimately held in custody for three weeks.

[48] The appellant submits that the treatment of the complainant is without precedent and contrasts this case with R. v. Blanchard, 2016 ABQB 652. There, the Crown had advised the preliminary inquiry judge that the complainant was not likely to attend court on her own and had “presented in a condition unsuitable for testifying”: Blanchard, at para. 60. The preliminary inquiry judge ordered that the complainant be detained until the next hearing date, which was five days away. Due to the complainant’s passing before the actual trial, the Crown sought to admit her preliminary inquiry testimony. The Alberta Court of Queen’s Bench found that detaining the complainant for five days did not undermine her credibility or reliability. There was “no evidence of any threats made to her or any promise or inducement in exchange for her testimony, favourable or not.”: Blanchard, at para. 65.

[49] The appellant submits that the circumstances in this case are more extreme than those in Blanchard. Instead of being held in custody for five days, the complainant was detained for three weeks, after which she had a change of heart. According to the appellant, it is clear that the complainant was threatened or induced during this time. As such, there was a miscarriage of justice.

[50] I do not find the appellant’s submissions persuasive. The complainant was properly held in custody on a material witness warrant. This warrant had become necessary after it became clear that the complainant would not cooperate at trial, despite being a key witness. In addition, the complainant was also being held in custody at this time because of she had breached her conditional sentence. Consequently, viewed in the context of the entire hearing, I do not view the trial judge’s comment about spending “some more time in jail” as a threat. Like the case in Blanchard, there was no evidence to suggest that the complainant believed that she would only be released if she gave evidence favourable to the Crown: at para. 65.

[51] Further, I find no evidence that the complainant was induced because the Crown withdrew her outstanding charge during her time in custody. Despite the appellant claiming that this is what happened, there is no definitive evidence regarding the resolution of the complainant’s charge. The appellant’s arguments are based on speculation. Moreover, the complainant provided an explanation for why her testimony changed: during cross-examination, she said that she had been previously afraid to testify, but rape crossed the line. She denied any discussion with the Crown or police, and her evidence was consistent with the photographs of her injuries and the medical records. The trial Crown also advised the judge at the February 27, 2009 hearing that the appellant’s friends were in the courtroom on the prior hearing date, which may have affected the complainant’s testimony.

[52] Accordingly, I would dismiss this first ground of appeal.

(b) Assessment of the Complainant’s Testimony

[53] The appellant also submits that the complainant’s evidence was so tainted by the way she was treated during the trial process that her evidence was unreliable and not credible. As such, her evidence required closer scrutiny by the trial judge.

[54] In addition, the appellant submits that the trial judge failed to grapple with how the complainant had, during her evidence-in-chief, omitted the fact that she sliced the appellant with a knife. According to the appellant, the trial judge was required to consider whether the complainant was trying to avoid being prosecuted for this, and therefore had an incentive to give a version of events that conformed to her police statement.

[55] I do not agree with the appellant’s submissions. The trial judge was clearly alive to the complainant’s credibility issues. In his reasons, the trial judge wrote that “it can be fairly said that [complainant] was a person of disreputable conduct.” He goes on to note that the complainant had a drug addiction and was “profane”, “brash”, and “crude.” The trial judge also addressed the fact that the complainant had been awake for the past five days due to cocaine use. He recognized that he needed to consider the possible impact this may have had on her ability to recall accurately. He also considered the complainant’s failure to mention the knife.

[56] Despite having identified these issues, the trial judge was satisfied that “there was nothing internal [sic] inconsistent or contradictory” in the complainant’s narrative, nor was the narrative “inherently improbable, absurd or beyond reason or common sense.” The complainant was direct and authentic, and she did not “guild [sic] the lily” when describing the nature of the sexual assault.

[57] In cases like this one that turn largely on credibility, significant deference should be given to the trial judge’s findings and reasoning: R. v. Dinardo, [2008] 1 S.C.R. 788, at para. 26. In all the circumstances, I see no palpable and overriding errors in the trial judge’s credibility findings. Accordingly, I would dismiss the conviction appeal.

(2) Appeal of Dangerous Offender Designation

[58] Part XXIV of the Criminal Code authorizes and governs the conduct of dangerous offender proceedings. The statutory scheme is divided into two stages. First, s. 753(1) lists the statutory requirements which must be met before an offender can be designated as dangerous. This is called the “designation stage”. Second, ss. 753(4) and (4.1) govern the penalty or “sentencing stage” for dangerous offenders: R. v. Boutilier, [2017] 2 S.C.R. 936, at paras. 13‑15.

[59] The appellant challenges the trial judge’s assessment in both stages of the dangerous offender proceeding. The standard of review on a dangerous offender appeal was articulated by this court 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] 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, [1997] S.C.J. No. 10, at para. 33. [Emphasis added.]

[60] In this portion of my analysis, I shall address the appellant’s appeal of the first stage. The appellant appeals his dangerous offender designation on the following grounds:

(1) The trial judge erred by defining “pattern” under ss. 753(1)(a)(i) and (ii) too generally and it was unreasonable to find that such a “pattern” existed in this case;

(2) The trial judge erred by finding the appellant was substantially indifferent as to the reasonably foreseeable consequences of his behaviour, which is required for a dangerous offender designation under s. 753(1)(a)(ii);

(3) The trial judge erred by relying on disputed facts without first deciding that they were proven beyond a reasonable doubt; and

(4) The Crown’s conduct during the s. 752.1 application and dangerous offender application undermined procedural fairness and resulted in a miscarriage of justice.

[61] I would not give effect to any of the articulated grounds of appeal. To designate the appellant as a dangerous offender, the trial judge only needed to make a finding under one of the s. 753(1) sub-prongs. Instead, the trial judge held that the appellant’s criminal antecedences satisfied the requirements of both ss. 753(1)(a)(i) and (ii). Based on the evidence adduced on the dangerous offender application, the trial judge’s findings were reasonable.

(i) Finding a “pattern” for ss. 753(1)(a)(i) and (ii)

[62] The appellant submits that the trial judge erred because he defined “pattern” too generally, and that it was unreasonable for the trial judge to find that a pattern existed for either ss. 753(1)(a)(i) or (ii).

[63] I disagree. The trial judge undertook a comprehensive review of the jurisprudence interpreting the patterns required to find “repetitive behaviour” and “persistent aggressive behaviour.” I see no reversible error in his conclusions on either ss. 753(1)(a)(i) or (ii).

1. Pattern of Repetitive Behavior – s. 753(1)(a)(i)

[64] A finding of a “pattern of repetitive behavior” per s. 753(1)(a)(i) was well supported by the evidence before the trial judge.

[65] While the appellant’s predicate offence was sexual in nature, the trial judge held that, at its core, it was “a crime of violence.” In this sense, the predicate offence falls in line with the appellant’s extensive history of perpetrating violence against his domestic partners and others, which I shall briefly review below.

[66] The appellant’s lengthy criminal record began at the age of 14. After dropping out of school, the appellant began using drugs and later turned to theft to support his drug addiction. In December 2001, the appellant was convicted of manslaughter after he punched a homeless man in the head during an argument over a drug transaction; the victim fell, fractured his skull, and died several days later. The appellant has also been convicted numerous times for assaulting others, including his then pregnant girlfriend and police officers.

[67] Justice Watt of this court held in R. v. Gibson, 2021 ONCA 530, 157 O.R. (3d) 597, that the pattern requirement in s. 753(1)(a)(i) is not based exclusively on the number of offences. It is also rooted in the elements of similarity in the offender’s behaviour: R. v. Langevin (1984), 11 C.C.C. (3d) 336 (Ont. C.A.), at pp. 348-49. Similarities can be found not only in the types of offences but also in the degree of violence or aggression threatened or inflicted on the victims: R. v. Szostak, 2014 ONCA 15, 118 O.R. (3d) 401, at para. 33, leave to appeal refused, [2014] S.C.C.A. No. 300; R. v. Neve, 1999 ABCA 206. Where there are numerous incidents in the pattern – as in this case – fewer similarities between the incidents are required: R. v. Hogg, 2011 ONCA 840, 287 O.A.C. 82, at paras. 39; R. v. Jones, [1993] O.J. No. 1321 (Ont. C.A.), at p. 3.

[68] The appellant submits that the trial judge erroneously transformed a series of dissimilar offences into a “pattern” for s. 753(1)(a)(i). I disagree. The trial judge addresses this matter squarely in his analysis: the common denominator unifying the appellant’s criminal antecedents was an “inability to refrain from violent outbursts when angry, jealous, humiliated, confronted, challenged and apprehended.” In other words, the appellant has shown that he will repeatedly resort to violence whenever he is overwhelmed. The trial judge held that this was sufficient to ground a finding of a “pattern of repetitive behavior” for s. 753(1)(a)(i) and, in my view, this finding was reasonable.

2. Pattern of Aggressive Behavior – s. 753(1)(a)(ii)

[69] It was also reasonable for the trial judge to find that the appellant has shown a pattern of aggressive behavior pursuant to s. 753(1)(a)(ii).

[70] Unlike the “pattern of repetitive behaviour” in s.753(1)(a)(i), the jurisprudence has not interpreted this subsection to require similarities between the predicate offence and past offences. Instead, the past behavior must be “persistent” and coupled with indifference and intractability: see e.g., R. v. Wong, 2016 ONSC 6362, at para. 70; R. v. Robinson, [2011] B.C.J. No. 1001 (B.C. S.C), at para. 122; R. v. Morin (1998), 173 Sask. R. 101 (Sask. Q.B.), 1998 SKQB 13883, at para. 85.

[71] Based on the appellant’s history of using violence when confronted with problems, particularly in his interactions with the police, the trial judge was satisfied that there was evidence of persistent aggressive behavior. I fail to see how this finding was unreasonable. The appellant had “demonstrated a quality of obstinately refusing to give up or let go”, and all of his violent offences were triggered by intense emotions, drug use, and confrontation.

(ii) Substantial indifference to the reasonably foreseeable consequences of behavior – s. 753(1)(a)(ii)

[72] The appellant also argues that the trial judge erred in finding that he was substantially indifferent as to the reasonably foreseeable consequences of his behaviour, as required by s. 753(1)(a)(ii).

[73] I disagree. As the trial judge explained, the appellant’s indifference to the consequences of his behavior was borne out by his record of violence, psychiatric assessments, and overall response to authority while in or out of custody. All of these matters had been discussed in depth earlier in the trial judge’s reasons. I find it was reasonable for the trial judge to rely on this evidence to support his conclusion that the appellant met the criteria in s. 753(1)(a)(ii).

(iii) Reliance by trial judge on disputed facts

[74] The appellant submits that the trial judge erroneously accepted the contents of the police synopses and correctional reports as proven beyond a reasonable doubt.

[75] I would dismiss this ground of appeal. Most of the disputed facts found in the synopses were supported by the appellant’s admissions or convictions. Moreover, the trial judge’s finding of a “pattern” in relation to s. 753(1)(a)(i) and (ii) was not dependant on a piece-meal analysis of the appellant’s criminal conduct. Rather, the conclusion stemmed from an overall assessment of the evidence adduced about the appellant’s unabated history of recidivism that had stretched over 25 years. Even if the appellant were to successfully challenge and remove certain individual facts from the synopses and records, this would not have impacted the judge’s ultimate dangerous offender designation. There was no reasonable possibility that the trial judge would have reached a different conclusion.

(iv) Procedural fairness in dangerous offender application

[76] The appellant submits that the Crown’s conduct of the s. 752.1 application and dangerous offender application undermined the procedural fairness of the proceeding and resulted in a miscarriage of justice. I would not give effect to this ground of appeal, as defence counsel consented to re-opening the assessment.

(3) Appeal of Indeterminate Sentence

[77] The appellant also appeals the trial judge’s findings in the “sentencing stage” of the dangerous offender proceeding. The appellant submits that the trial judge erred by imposing an indeterminate sentence in the absence of evidence that it was necessary to protect the public against the commission of a serious personal injury offence.

[78] While I find that the trial judge erred in principle in arriving at the ultimate sentence, I would nonetheless dismiss the sentence appeal for the following reasons.

[79] Sections 753(4) and (4.1) in the Criminal Code set out the sentencing regime for dangerous offenders. The text of these provisions can be found below:

(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.

[80] The Supreme Court of Canada in Boutilier established a series of guiding principles for courts that are tasked with deciding between different sentences for dangerous offenders. These principles are instructive in this appeal, as I find that the trial judge made several reversible errors of law when applying s. 753(4.1).

[81] Properly read and applied, s. 753(4.1) does not impose a presumption of indeterminate detention for designated offenders: Boutilier, at para. 71. Rather, in order to properly exercise their discretion under s. 753(4), a sentencing judge must impose the least intrusive sentence required to achieve the primary purpose of the scheme, which is the protection of the public: Boutilier, at para. 60.

[82] However, the trial judge in the present case came to the opposite conclusion regarding indeterminate sentences. In his reasons, the trial judge wrote that an indeterminate sentence “would appear to be the default disposition following a [dangerous offender] designation, [although] it can be rebutted by evidence that a lesser sentence will adequately protect the public.” After reviewing the evidence on the appellant’s treatability and manageability, the trial judge concluded that it did not satisfy “any reasonable possibility of eventual control of [the appellant’s] risk or behavior in the community.” He was reluctant to consider whether any lesser sentence can protect the public, but was “obliged nonetheless” to do so.

[83] With greatest respect to the trial judge and recognizing that he did not have the benefit of the Supreme Court’s decision in Boutilier, this is the wrong approach to s. 753(4.1). In starting with a presumption in favour of an indeterminate sentence, the trial judge failed to adequately assess whether the appellant’s risk can be managed in society with less intrusive measures. The appellant had a troubled history, but this did not necessarily mean that he was likely to commit a serious personal injury offence again, especially after the combination of treatment and a Long-Term Supervision Order (“LTSO”).

[84] Furthermore, while the sentencing judge did rely heavily on expert evidence, he did not conduct an independent analysis of that evidence at the sentencing stage. Instead, he concluded: “I think it follows from my analysis of whether he met the criteria of [dangerous offender] that I find the evidence to establish a likelihood of his inflicting harm of the kind that meets the definition of serious personal injury offence.”

[85] The trial judge’s use of evidence in the sentencing stage does not accord with Boutilier. Côté J. explained that the designation and sentencing stages in a dangerous offender proceeding involve different findings related to different legal criteria: Boutilier, at para. 44. While a court must consider all of the evidence adduced at both stages, this evidence is used for different purposes: Boutilier, at para. 44. At the designation stage, the purpose of prospective evidence is to assess an offender’s future threat or risk to the safety of the public. On the other hand, the sentencing stage is concerned with “imposing the appropriate sentence to manage the established threat.”: Boutilier, at para. 31. In the present case, the trial judge did not demonstrate that he turned his mind to this legal issue when sentencing the appellant, as he relied on the same factual findings and analysis from the designation stage. In my view, he incorrectly conflated the two stages.

[86] In light of the trial judge’s errors, I will conduct the sentencing analysis afresh. In doing so, I must first address the appellant’s fresh evidence application for his sentence appeal.

(a) Fresh Evidence Application

[87] The proposed fresh evidence on the sentence appeal consists of a cross-examination of Richard Wright, the author of the appellant’s Impact of Race and Culture Assessment report (“IRCA”), as well as the following exhibits:

• Robert Wright’s curriculum vitae;
• The Impact of Race and Culture Assessment; and
• An affidavit from Robert Wright.

[88] Pursuant to ss. 759(7) and 683(1) of the Criminal Code, an appellate court may admit fresh evidence on an appeal from a dangerous offender designation when it is in the interests of justice to do so. The same Palmer test applies. However, in applying it, appellate courts must bear in mind their institutional limits and the importance of finality. As this court stated in Sawyer, at para. 72:

When deciding whether to rely on fresh evidence on a sentence appeal, courts must bear in mind the institutional limitations of appellate courts and the importance of finality: Sipos, at para. 30. The integrity of the criminal process could be undermined by routinely deciding sentence appeals based on after-the-fact developments: Sipos, at para. 30. Courts will generally take a cautious approach to intervening on the basis of this kind of evidence. Evidence of an offender's "post-sentencing rehabilitative efforts and prospects" will only exceptionally be admissible: Sipos, at para. 43. This type of evidence is generally best left for the correctional authorities to assess in the administration of the indeterminate sentence.

[89] It is my view that the appellant’s fresh evidence for sentencing is admissible, as all four Palmer criteria have been met.

[90] First, I am prepared to accept that the IRCA is a relatively new development in law, and therefore could not have been admitted by the appellant with due diligence in the sentencing hearing.

[91] Second, I also accept that the content in the IRCA is relevant to the sentence appeal, albeit not for all the reasons asserted by the appellant. To begin, I agree that the IRCA is relevant to understanding the appellant’s moral culpability for his criminal antecedents. In R. v. Morris, 2021 ONCA 680, 159 O.R. (3d) 641, this court recognized that systemic anti-Black racism can impact offenders in a way that bears on their moral responsibility: at para. 123. The connection between racism in the offender’s community and the offender’s background and circumstances can be borne out by social context evidence: Morris, at para. 123. This connection does not need to be causal, but there must be “some” connection in place: Morris, at paras. 96-97.

[92] I am satisfied that such connection has been established in the IRCA. In R. v. Anderson, 2021 NSCA 62, the Nova Scotia Court of Appeal described IRCAs as reports which offer “insights not otherwise available about the social determinants that disproportionately impact African Nova Scotian/African Canadian individuals and communities”: at para. 106. Furthermore, the IRCA in this case directly links these social determinants with the appellant’s personal life, which aids in mitigating the appellant’s moral culpability for his criminal behavior.

[93] The appellant also submits that the IRCA is relevant because it addresses his amenability to treatment, and expresses concerns about the predictive value of actuarial and other risk assessment tools for racialized people. I do not agree with these two arguments, as they take the IRCA beyond its intended scope and purposes. Mr. Wright’s discussion at the end of the report about the appellant’s risk of reoffending is not part of the main thrust of the IRCA. I cannot see how this collateral evidence is relevant to the sentence appeal, nor how it can be used to undermine the psychiatric assessments – especially since Mr. Wright is not a trained psychiatrist. Consequently, to the extent that the IRCA discusses the appellant as a dangerous or long-term offender, I find that this portion of the report is inadmissible.

[94] On the other hand, I find the contents of the IRCA as they pertain to the appellant’s experience with anti-Black discrimination to be credible. Mr. Wright has been formally trained in social work and sociology, and he has been qualified as an expert about the impact of race and culture approximately 12 to 15 times. Moreover, during cross-examination, Mr. Wright’s qualification to discuss the social and historical background of African Nova Scotians was not challenged by the Crown.

[95] Finally, the content in the IRCA, as it relates to the appellant’s moral culpability, could reasonably be expected to have affected the result. Côté J. in Boutilier explained that nothing in the wording of s. 753(4.1) “removes the obligation incumbent on a sentencing judge to consider all sentencing principles in order to choose a sentence that is fit for a specific offender”: Boutilier, at para. 63. While Parliament has decided that the protection of the public is an “enhanced sentencing objective” for individuals designated as dangerous, this does not mean that the objective operates to the exclusion of all others: Boutilier, at para. 56. Consequently, moral culpability and other sentencing principles, including the seriousness of the offence, mitigating factors, and principles developed for Indigenous offenders, remain important considerations in the sentencing process for dangerous offenders: Boutilier, at para. 63. As such, the IRCA meets the cogency requirement because it provides social context evidence which bears on the moral culpability of the appellant.

[96] In sum, I would allow the fresh evidence application and admit the IRCA and corresponding documents as they relate to the appellant’s experience with anti-Black discrimination.

(b) Determining the Appropriate Sentence

(i) Relevant Principles

[97] In order to determine the fittest sentence for the appellant, I will look to both Boutilier and this court’s discussion of s. 753(4.1) in R. v. Straub, 2022 ONCA 47, 160 O.R. (3d) 721, for guidance.

[98] As previously explained, the proper exercise of discretion under s. 753(4) requires that the sentencing judge impose the least intrusive sentence required to reduce the public threat posed by the offender to the level statutorily required: Boutilier, at paras. 60, 70; Straub, at para. 61; R. v. Awasis, 2020 BCCA 23, 385 C.C.C. (3d) 369, at para. 72, leave to appeal refused, [2020] S.C.C.A. No. 225. Section 753(4.1) does not impose an onus or create a rebuttable presumption in favour of indeterminate sentences: Boutilier, at para. 71.

[99] The standard to be applied is whether there is a “reasonable expectation” that a lesser measure will adequately protect the public against the offender’s violent recidivism: Straub, at para. 62. As Watt J.A. wrote in Straub, at para. 62, “reasonable expectation” suggests a “likelihood”, “a belief that something would happen”, or “a confident belief, for good and sufficient reasons”. The standard of “reasonable expectation” is more stringent than “reasonable possibility”: Straub, at para. 62.

[100] Every sentence must be “tailored to the specific offender and consistent with the principles of sentencing”: Boutilier, at para. 61. In Straub, at paras. 63-65, this court highlighted three potentially relevant factors that a judge can consider: treatability, manageability, and the nature and duration of the offender’s previous conduct.

(ii) Application

[101] A proper application of the Boutilier principles leads me to find that an indeterminate sentence must be imposed. I am not persuaded that any other sentencing measure short of this will adequately protect the public against the commission of another serious personal injury offence by the appellant.

[102] The appellant’s psychiatric assessments reveal that his addiction to cocaine is closely associated with his criminal behavior. Neither Dr. Wilkie nor Dr. Gojer were overly optimistic about the appellant’s ability to be treated for his substance dependency, and both expressed doubts about his motivation for treatment. Dr. Wilkie also expressed concerns that the appellant would resort back to cocaine use after being released into society.

[103] Moreover, the appellant has demonstrated he cannot be adequately managed nor supervised when he is out in the community. Parole, probation and halfway houses have all failed to rehabilitate him. The appellant’s correctional records show that he has consistently reoffended while under the terms of a release order, or very shortly after its expiry. His criminal record is extensive and unbated, containing over 80 convictions, including a series of assaults and one count of manslaughter, and spanning 25 years. In addition, Dr. Gojer opined that, overall, the appellant has a moderate to high risk of physical aggression and as against the police, a virtual certainty. Taken together, this evidence does not persuade me that a LTSO order, even one crafted to include “stringent community follow up” as suggested by Dr. Gojer, will be able to mitigate the appellant’s risk of violently re-offending.

[104] Of course, the appellant’s moral culpability is mitigated, in part, by the evidence adduced in the IRCA. The report discusses how the appellant endured systemic racism in the past, including being sexually abused as a youth by his probationary officer, and being raised in a neighbourhood that was a “hotbed” for drug trafficking. However, this social context evidence is not sufficient to counter the swath of expert evidence pointing to the appellant’s low prospects for treatability and manageability. While moral culpability is an important sentencing principle in the dangerous offender process, Parliament has instructed courts to emphasize the protection of the public: Boutilier, at para. 56. Consequently, looking at the totality of the evidence through the lens of this enhanced sentencing principle, I find that an indeterminate sentence is merited and required.

V. Conclusion

[105] For the reasons I have given, I would dismiss the conviction and dangerous offender designation appeal. I would grant leave to appeal the sentence, but dismiss the appeal of the indeterminate sentence as I have reached the same outcome upon re-sentencing.

Released: December 14, 2022 “S.E.P.” “M. Tulloch J.A.” “I agree. S.E. Pepall J.A.” “I agree. Grant Huscroft J.A.”