WARNING

The President of the panel hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486.5(1) , (2) , (2.1) , (3) , (4) , (5) , (6) , (7) , (8) or (9) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

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a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is of the opinion that the order is in the interest of the proper administration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

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or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is in the interest of the proper administration of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

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

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

(b) a terrorism offence;

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

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

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

(4) An applicant for an order shall

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(a) the contents of an application;

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

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

486.6 (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15 .

COURT OF APPEAL FOR ONTARIO DATE: 20230308 DOCKET: M52280 (C54058)

Tulloch, van Rensburg and Coroza JJ.A.

BETWEEN

His Majesty the King Respondent

and

S.M.J. Applicant (Appellant)

S.M.J., acting in person [1] Lisa Joyal, for the respondent

Heard: October 3, 2022

An application to reopen the appeal against the dangerous offender designation entered by Justice Leslie C. Pringle of the Ontario Court of Justice on July 5, 2011.

REASONS FOR DECISION

A. OVERVIEW

[1] The applicant brings a motion to reopen his appeal against his 2011 dangerous offender designation that was abandoned several years ago in 2014. For the reasons that follow, we dismiss the application as it would not be in the interests of justice to reopen the appeal.

[2] In January 2010, the applicant was convicted of two counts of criminal harassment, three counts of failing to comply with conditions of his probation, one count of threatening death and one count of threatening an animal. All of the predicate offences occurred between January 30, 2009 and March 30, 2009, and related to the applicant’s former common law partner and her daughter.

[3] On July 5, 2011, the applicant was designated a dangerous offender. He was subsequently sentenced to three years’ incarceration, followed by a four-year long-term supervision order (“LTSO”).

[4] The applicant’s appeal against his dangerous offender designation was scheduled to be heard on May 13, 2014, with the assistance of duty counsel. However, on May 9, 2014, the applicant signed a notice of abandonment of his appeal.

[5] The applicant now submits that he originally abandoned his appeal in 2014 because duty counsel told him that his appeal had no prospect of success. Moreover, the applicant submits that the trial judge erred in designating him a dangerous offender because she failed to consider issues of treatability and intractability.

B. ANALYSIS

(1) The Test to Reopen an Appeal

[6] This court has jurisdiction to reopen an appeal that has not been decided on its merits. The test is whether “it is in the interests of justice” for the court to do so: R. v. Rhingo (1997) , 33 O.R. (3d) 202 (C.A.), leave to appeal refused, [1997] S.C.C.A. No. 274; R. v. Simmons , 2012 ONCA 94 , 289 O.A.C. 39, at para. 15 .

[7] The onus is on the applicant to prove that it would be in the best interests of the administration of justice to reopen his appeal. Several factors are relevant to this determination including: (1) the reason and circumstances that led to the dismissal of the appeal without a hearing on its merits; (2) the length of the delay before the applicant sought to reopen the appeal and the applicant’s explanation for the delay; (3) the merits of the proposed appeal; (4) the seriousness of the deprivation of liberty faced by the applicant; (5) the Crown’s position on the application; and (6) public confidence in the administration of justice: R. v. Henry , 2009 BCCA 12 , 264 B.C.A.C. 244, at para. 13 ; Simmons , at paras. 16-17 .

[8] The two main factors that the applicant asks this court to consider are his reasons for abandoning the appeal and the merits of the appeal. In our view, neither of the applicant’s arguments are persuasive and, as such, it is not in the interests of justice to reopen this abandoned appeal.

(2) The Applicant Firmly Abandoned His Appeal

[9] The applicant submits that he abandoned his appeal on the advice of duty counsel, as he was told that there was no chance of success. A review of duty counsel’s affidavit shows that he is certain that this conversation did not occur. We accept the evidence of duty counsel for several reasons.

[10] First, such advice would have been inconsistent with duty counsel’s request to adjourn the applicant’s original hearing in March 2014, so that he could develop a new ground of appeal to advance in May 2014. At most, duty counsel attests he may have told the applicant that “he faced an uphill battle and that the appeal was unlikely to succeed.” However, he would not have said that there was no hope, nor would he have encouraged the applicant to abandon his appeal.

[11] Second, this advice would be contrary to how duty counsel saw his role as counsel for the pro bono inmate appeal program. In his affidavit, duty counsel attests:

To the extent the Applicant’s affidavit could give the impression that I may have encouraged him to abandon his appeal, I am certain based on my normal practice that I did no such thing. I do not recall why the Applicant wished to abandon his appeal, but it would not have been something I would have suggested or advised. I do not see it as part of my role with the program to encourage appellants to abandon even the most hopeless appeals. I see it as fundamental to the role of duty counsel that we do not compromise the ability of appellants to retain control of his own appeals. If appellants ask me whether they should proceed with their appeals, I would always tell them it is their decision. In cases where I conclude I am unable to assist the appellant, if my opinion is sought I say that I see no viable grounds of appeal, but that the appellant is free to advance any arguments that he or she chooses. In challenging cases where I intend to make submissions on the appellant’s behalf, I say that I will do my best. [Emphasis added.]

[12] Third, the applicant’s own evidence supports duty counsel’s position in 2014. The applicant acknowledged that he voluntarily signed a notice of abandonment on May 9, 2014. During cross-examination, he also acknowledged that the notice was clear and straightforward to read and understand. The applicant stated that he understood that signing the notice would mean that he was giving up his appeal. The applicant advised in his affidavit and cross-examination that, at the time he abandoned the appeal, there was a lot going on in his life. He was feeling a general sense of hopelessness. He also acknowledged in cross-examination that, while he has suffered from depression and suicidal ideations, he has never been declared mentally unfit to deal with proceedings in the criminal justice system.

[13] Finally, the applicant also agreed in cross-examination that he could not dispute duty counsel’s account of what happened, as he did not recall the details of their conversation. He said it was possible duty counsel did not advise or encourage him to abandon his appeal. The applicant also did not deny the possibility that he firmly advised duty counsel he wished to do so.

[14] As noted above, the applicant bears the burden of establishing the facts to warrant reopening his abandoned appeal. However, on all the evidence before the court, there is no basis to find that, as asserted by the applicant, he was advised by duty counsel to abandon his appeal. Accordingly, the interests of justice do not compel reopening the abandoned appeal simply based on the circumstances surrounding the abandonment.

[15] In coming to this conclusion, we are cognizant that this court, in Simmons , noted that where an appeal has been dismissed as abandoned, the circumstances surrounding the abandonment are a relevant consideration. Importantly, however, this court went on to state that it does not place much emphasis on this factor where the applicant has failed to establish the possibility of a miscarriage of justice: Simmons , at paras. 16-17 .

(3) The Proposed Appeal Lacks Merit

[16] The dangerous offender provisions in the Criminal Code , R.S.C. 1985, c. C-46, are aimed at a “very small group of offenders” who are dangerous in light of their past, current, and likely future conduct: R. v. Lyons , [1987] 2 S.C.R. 309, at p. 339.

[17] In its decision in R. v. Boutilier , 2017 SCC 64 , [2017] 2 S.C.R. 936, the Supreme Court of Canada determined that whether the offender’s conduct was intractable and his treatment prospects remained factors to be considered at both the designation phase and in determining the appropriate sentence: at paras. 32, 46.

[18] In the present case, the applicant submits that the trial judge committed a Boutilier error because she failed to consider the issues of intractability and treatability before designating him a dangerous offender.

[19] The standard of review on an appeal against a dangerous offender designation 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 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, [1997] S.C.J. No. 10, at para. 33 . [Emphasis added.]

[20] The trial judge’s reasons predate the release of Boutilier in 2017. However, as the British Colombia Court of Appeal held in R. v. Lawrence , 2019 BCCA 291 , “it is not a truism” that every dangerous offender designation rendered before 2017 inevitably contains a Boutilier error: at para. 60 . Rather, an appellate court’s assessment of any Boutilier error is case-driven and depends on an assessment of the trial judge’s analysis as a whole.

[21] Upon reading the trial judge’s reasons as a whole, we see no merit to the applicant’s Boutilier argument. The trial judge did not err in her analysis at the designation stage of the dangerous offender proceeding. Even if the trial judge did commit a Boutilier error, the curative proviso under s. 759(3)(b) applies in this case. Consequently, it would not be in the interests of justice to reopen the applicant’s abandoned appeal on this basis.

(a) The Trial Judge was Alive to Treatability and Intractability Issues

[22] In the present case, although the trial judge did not expressly use the terms “treatability” and “intractability”, her analysis was faithful to the principles endorsed in Boutilier . Throughout her reasons, the trial judge made a series of findings which informed and supported her conclusion that the applicant was an intractable offender with a high likelihood of harmful recidivism.

(i) The Applicant was Intractable

[23] “Intractable behaviour” refers to behaviour that an offender is “unable to surmount”: Boutilier , at para. 27 . The trial judge’s factual findings demonstrate that she was alive to this issue.

[24] To begin, the trial judge found that between 2005 to 2009, there were eight proven incidents of actual or threatened violence by the applicant against his domestic partner. Three of these incidents involved his partner’s daughter. The trial judge noted that the applicant’s “alcohol abuse was an obvious underlying problem in all of these convictions.”

[25] The trial judge also found that the applicant’s “inability to restrain himself escalated greatly” during the period of the predicate offences in 2009. Despite having just served a jail sentence for threatening his partner’s life, and while subject to two probationary orders prohibiting contact, the applicant once again began threatening his partner and her family. In February and March 2009, he called his partner 500 times and sent her hostile emails. The trial judge found that the applicant’s communication with the police during this time further indicated his “acute level of… desperation and lack of control.”

[26] Overall, the trial judge concluded that the applicant was “essentially out of control” prior to his arrest. He had been drinking heavily, aggressive, threatening to his partner and her daughter, and suicidal. These factual findings are indicative that the trial judge considered the applicant’s intractable behaviour, albeit without expressly using the term “intractability” in her analysis.

(ii) The Applicant’s Treatability Did Not Reduce His High Likelihood of Recidivism

[27] At the designation stage of the dangerous offender analysis, treatability informs the offender’s likelihood of recidivism: Boutilier , at para. 45 . In assessing the treatability of an offender, a sentencing judge may consider evidence including the applicant’s amenability to treatment, treatment avoidance, and failure to follow through with previous treatment: see e.g., R. v. K.P. , 2020 ONCA 534 , 152 O.R. (3d) 145, at para. 13 ; R. v. G.L. , 2007 ONCA 548 , 87 O.R. (3d) 683, at para. 40 ; R. v. Simon , 2008 ONCA 578 , 269 O.A.C. 259, at para. 93 . An offender’s amenability to treatment is particularly important where treatment may be necessary to reduce or control future dangerousness: R. v. Gibson , 2021 ONCA 530 , 157 O.R. (3d) 597, at paras. 205-206 .

[28] The trial judge found that there was “a virtual certainty of re-offence by [the applicant] in the area of domestic violence.” The forensic psychiatrist’s evidence had predicted a 100 percent probability of domestic violence recidivism in the next 4.8 years. However, the trial judge was careful to note that her risk assessment was not limited to the expert evidence. Instead, the applicant’s high likelihood of reoffending was “clearly confirmed by the other evidence” before her, including evidence of the applicant’s treatability.

[29] The trial judge’s significant concerns about the applicant’s treatability are evidenced in her factual findings. For example, she found that, between 2000 and 2009, the applicant had been placed on eight separate probation orders and two peace bonds, most of which included conditions to take counselling for alcohol or spousal abuse. Yet, from the time of his re-engagement with the criminal justice system in 2000 until his most recent arrest, the applicant was unable to complete any counselling or treatment program. Instead, he repeatedly ignored court orders and failed to report to probation.

[30] In our view, it is clear that the trial judge considered the issue of treatability in depth before concluding that the applicant had a high likelihood of harmful recidivism, and subsequently designating him a dangerous offender.

(b) Assessment of the Applicant’s Treatability at the Sentencing Stage Did Not Undermine His Dangerous Offender Designation

[31] At the sentencing stage, the trial judge determined that a three-year custodial sentence combined with a four-year LTSO would be sufficient to manage the applicant’s risk to society.

[32] The applicant alleges that the trial judge’s assessment of his treatability at the sentencing stage undermined her dangerous offender finding at the designation stage. We understand the applicant’s argument to be that, since the trial judge recognized that he had some degree of rehabilitative potential at the sentencing stage, he should not have been deemed a dangerous offender at all.

[33] We see no merit to the applicant’s argument, as it erroneously conflates the steps in a dangerous offender proceeding. As this court explained in R. v. Tynes , 2022 ONCA 866 , at para. 58 , the dangerous offender 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 SCC 64 , [2017] 2 S.C.R. 936, at paras. 13‑15 .

[34] When looking at the sentencing stage, s. 753(4.1) provides that:

(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.

[35] Properly understood, s. 753(4.1) does not create a presumption in favour of indeterminate detention for designated dangerous offenders: Boutilier , at paras. 6, 71 and 76 . Rather, a sentencing judge must impose the least intrusive sentence required to achieve the primary purpose of the scheme, namely, public protection: Boutilier , at paras. 60 and 65 .

[36] As such, s. 753(4.1) demonstrates that Parliament clearly envisioned that some dangerous offenders who pose a high likelihood of harmful recidivism can nonetheless be adequately managed outside of an indeterminate sentence. As we will explain below, the applicant falls into this category of dangerous offenders.

[37] We note that the trial judge applied the incorrect legal standard when sentencing the applicant under s. 753(4.1). The trial judge imposed a three-year sentence and four-year LTSO on the basis that there was a “reasonable possibility of controlling [the applicant’s] risk in the community”. However, the applicable standard under s. 753(4.1) is “reasonable expectation”, not “reasonable possibility”. “Reasonable expectation” is a more stringent standard than “reasonable possibility”: R. v. Straub , 2022 ONCA 47 , 160 O.R. (3d) 721, at paras. 45 and 62 ; Tynes , at paras. 71 and 99 . The trial judge, therefore, erroneously assessed the evidence against a less rigorous standard.

[38] Despite this legal error, we agree with the trial judge’s conclusion that the applicant’s risk can be adequately controlled in the community. We also agree with her decision to impose a determinate sentence and LTSO, which were based on three pieces of evidence pertaining to the applicant’s treatability. First, the applicant had participated in institutional treatment while incarcerated at Warkworth between 1989 to 1991. This was followed by a nine-year period where the applicant did not appear before the criminal courts. Second, the applicant provided a written statement to the trial judge at the end of the dangerous offender proceeding, pursuant to s. 726 of the Criminal Code , expressing a willingness to cooperate with doctors on his rehabilitation. Third, the applicant was in a “alcohol-free, and mentally and physically stable” condition at the time of the sentence hearing, and therefore “in a good position to benefit from any programming available in custody.”

[39] Contrary to what the applicant submits, the trial judge’s findings on treatability at the sentencing stage do not undermine her findings at the designation stage. Boutilier established that the same prospective evidence of treatability plays a different role at each stage of the dangerous offender analysis: at para. 45. At the designation stage, the purpose of prospective evidence is to assess an offender’s future threat or risk to public safety. On the other hand, the sentencing stage is concerned with “imposing the appropriate sentence to manage the established threat”: Boutilier , at para. 31 .

[40] Consequently, it is entirely reasonable that, while evidence of the applicant’s treatability showed that a lesser sentence would manage his risk to society, it was not sufficient to cast doubt on his high likelihood of harmful recidivism at the designation stage.

[41] For example, although the applicant’s completion of a treatment program at Warkworth positively impacted his sentence as it demonstrated that the applicant’s risk could be managed in society, the same evidence did not significantly impact the trial judge’s risk assessment at the designation stage. This is because the treatment program occurred well before the applicant’s chronic reoffending from 2000 onwards, his uncontrollable and violent reoffending from 2005 until his arrest for the predicate offences in 2009, his perpetual breach of court orders, and his persistent inability or unwillingness to complete any further treatment or counselling programs.

[42] In sum, the trial judge’s assessment of the applicant’s treatability at the sentencing stage did not undermine the foundation for her original finding that the applicant ought to be designated a dangerous offender.

(c) Application of the Curative Proviso

[43] In rare circumstances, where an error of law has not resulted in a substantial wrong or miscarriage of justice, an appellate court may dismiss an appeal against a declaration that an offender is dangerous under s. 759(3)(b): Boutilier , at para. 82 ; see also R. v. Johnson , 2003 SCC 46 , [2003] 2 S.C.R. 357, at para. 49 .

[44] This is one of those rare cases. Even if the trial judge did commit a Boutilier error, there is no reasonable possibility that the Crown’s application to have the applicant designated a dangerous offender would have been resolved differently. Given the full record before the trial judge and viewed in conjunction with her factual findings, the designation was inevitable. Consequently, the curative proviso applies.

C. DiSposition

[45] The applicant has failed to prove that it is in the interests of justice to reopen his appeal. Accordingly, we dismiss the application.

[46] At the Crown’s request, we also order that a publication ban shall apply to any information that could serve to disclose the identity of the complainants, pursuant to s. 486.5(1) of the Criminal Code . No such ban was obtained in the proceedings below, and the applicant takes no objection to the Crown’s request. We are satisfied that ordering a s. 486.5(1) publication ban would be in the interest of the proper administration of justice.

“M. Tulloch J.A.”

“K. van Rensburg J.A.”

“S. Coroza J.A.”

[1] While the applicant was self-represented at the hearing of the application, the court had the benefit of a factum filed on his behalf by his former counsel, Brent R. Anderson.