Court of Appeal for Ontario Date: 2023-11-14 Docket: C65928

Before: Fairburn A.C.J.O., Lauwers and Miller JJ.A.

Between: His Majesty the King, Respondent And: Sanjay Francis, Appellant

Counsel: Ariel Herscovitch, for the appellant Rebecca De Filippis, for the respondent

Heard: April 19, 2023

On appeal from the conviction entered by Justice Richard Blouin of the Ontario Court of Justice on February 3, 2015, and from the sentence imposed on May 15, 2017.

Fairburn A.C.J.O.:

Overview

[1] This is an appeal from conviction and sentence.

[2] The appellant was charged with numerous offences related to his ongoing harassment of and threats toward his former girlfriend, F.M., and her children.

[3] The appellant pled guilty in the Ontario Court of Justice to four counts of uttering a death threat, four counts of breach of probation, and criminal harassment. In relation to the balance of the counts, including three counts of attempted murder and attempt to possess a firearm, the appellant waived his preliminary inquiry and was tried in the Superior Court of Justice. In that court, he was acquitted of the attempt murder counts and convicted of attempt to possess a firearm. For this conviction, he received a three-year sentence, which was entirely consumed by time served.

[4] The matter then returned to the Ontario Court of Justice, where the Crown successfully pursued a dangerous offender designation. The appellant was sentenced to a 54-month determinate sentence (less 51 months for time served). He also received a 10-year long-term supervision order (“LTSO”).

[5] On the conviction appeal, the appellant maintains that his guilty pleas in the Ontario Court of Justice must be set aside because they were uninformed.

[6] On the sentence appeal, the appellant seeks a new dangerous offender hearing. He maintains that the sentencing judge at the Ontario Court of Justice erred by failing to consider his future treatment prospects at the designation stage of the hearing. He contends that if the sentencing judge had considered those prospects, he would not have been designated a dangerous offender.

[7] In my view, both the conviction and sentence appeals must be dismissed.

Background Facts

(1) The appellant’s on-going harassment of F.M.

[8] The appellant and F.M. were in a relationship for a short period of time.

[9] After F.M. ended the relationship, the appellant committed numerous offences: mischief, assault with a weapon, uttering death threats and criminal harassment. He pled guilty to them all and received a six-month sentence concurrent on all and three years’ probation, including a condition prohibiting contact with F.M.

[10] After his release from custody, he again contacted and threatened F.M., leading to more charges. He ultimately pled guilty to failure to comply with his probation and criminal harassment. He received the equivalent sentence of almost one year in custody, along with another probation order, which again included a term prohibiting contact with F.M.

[11] Then, almost two years after their brief romantic relationship had ended, and despite his convictions and despite his probation orders, the appellant again harassed F.M. At this point, she was so concerned about her safety that she assumed an alias on Facebook in the hope that the appellant would be unable to find her. Unfortunately, this did not work.

[12] F.M. started receiving multiple “friend requests” on Facebook that she believed were from the appellant. Her friends and family also began receiving Facebook communications from a person they believed to be the appellant.

[13] The appellant posted messages to an account he believed to be used by F.M., which included the following threats:

• “There are worse things out there than death and you are going to pay for the lies that you told”; and
• “When I find you, I’m going to kill your kids in front of you and you will live with the fact that they are dead, because of the lies that you told.”

[14] The matter became so serious that F.M. and her children had to be placed into witness protection, after which the police started an undercover investigation of the appellant.

(2) Undercover investigation of the appellant

[15] The police obtained a one-party consent wiretap authorization, allowing for all of the appellant’s communications with an undercover police officer to be recorded.

[16] The appellant asked the undercover officer about buying a gun and said that F.M. would be getting what was coming to her. He told the officer that he was going to find F.M.’s children and kill them to make F.M. suffer and wish that she were dead.

[17] After the appellant’s arrest, a search warrant was executed at his apartment. That search revealed, among other things, that the appellant had F.M.’s most recent address, a note of her sister’s home address and phone number, the dates of birth of F.M.’s three children, and her ex-husband’s name. As well, the police located a note about two firearms and government agencies that could be used to locate F.M.

[18] The appellant’s computer also revealed multiple searches for F.M., her sister, her children and firearms.

(3) Criminal proceedings

[19] The appellant was charged with numerous offences.

[20] On February 2, 2015, he appeared in the Ontario Court of Justice for what was supposed to be a preliminary inquiry. Instead of the preliminary inquiry commencing, the appellant entered guilty pleas on nine of the counts: four utter death threat counts, four breach of probation counts, and a criminal harassment count. Before those pleas were taken, the trial Crown announced the Crown’s intention to seek the consent of the Attorney General to initiate a dangerous offender proceeding against the appellant. I will return shortly to the discussions around that announcement.

[21] After he entered his pleas, the appellant waived his preliminary inquiry in relation to the three attempt murder counts and an attempt to possess a firearm count. Those matters then proceeded in the Superior Court.

[22] On March 6, 2017, in a judge-alone trial in the Superior Court, the appellant was found not guilty of the attempted murder counts, but guilty of the attempt to possess a firearm count. He was sentenced to three years of time served.

[23] The matter then returned to the Ontario Court of Justice, where the dangerous offender proceeding occurred.

[24] On May 15, 2017, the appellant was designated a dangerous offender. He was sentenced to a 54-month term of imprisonment, less 51 months of pre-trial custody, followed by a ten-year LTSO.

Analysis

A. The Conviction Appeal

(1) The appellant’s position

[25] The appellant argues that his guilty pleas in the Ontario Court of Justice were uninformed because, at the time that he entered them, he was unaware that the facts underlying the counts in the Superior Court of Justice, and the verdicts reached, could be relied upon in the dangerous offender hearing that would follow at the Ontario Court of Justice. The appellant says he believed the opposite: he maintains that the judge presiding over the guilty plea specifically told him that any dangerous offender proceeding that might follow would only take into account the matters he pled guilty to in the Ontario Court of Justice. Based upon that information, the appellant argues that he was led to believe that nothing that happened in the Superior Court could be used by the Crown in any future dangerous offender proceeding at the Ontario Court of Justice.

[26] In addition, the appellant maintains that it was improper to use some of the facts from the Superior Court trial in the dangerous offender proceeding because, for all intents and purposes, doing so amounted to double punishment. The double punishment is said to arise because the appellant was sentenced to three years for his conviction in the Superior Court, but then he was also sentenced based upon some of the information underlying the Superior Court trial in the Ontario Court of Justice. He says that this breached s. 725 of the Criminal Code. He contends that, had he known this was going to take place, he would have never pled guilty in the Ontario Court of Justice. Instead, he would have simply waived his preliminary inquiry and had everything dealt with together in the Superior Court.

[27] For the reasons that follow, I do not accept these arguments.

(2) The test for setting aside a guilty plea

[28] There is a robust test for setting aside a guilty plea. The onus rests on the appellant.

[29] A valid guilty plea must be voluntary, unequivocal and informed: R. v. Wong, 2018 SCC 25, [2018] 1 S.C.R. 696, at para. 3; R. v. Girn, 2019 ONCA 202, 145 O.R. (3d) 420, at para. 51. This appeal focusses upon whether the plea was informed.

[30] To be informed, the accused must be aware of: (1) the nature of the allegation made against him; (2) the effect of entering the plea; and (3) the consequences of entering the plea: Wong, at para. 3, quoting R. v. T.(R.) (1992), 10 O.R. (3d) 514 (C.A.), at p. 519. The accused must be aware of the criminal consequences that will flow from the plea, as well as the “legally relevant collateral consequences” of the plea, meaning those consequences that bear upon “sufficiently serious legal interests”: Wong, at para. 4.

[31] To establish that a plea was uninformed, not only must the appellant demonstrate that he was unaware of a relevant consequence at the time of entering the plea, he must also establish that he suffered subjective prejudice as a result. This latter criterion requires that the appellant show that there exists a reasonable possibility that, had he known of the consequences, he would have either elected to plead not guilty or elected to plead guilty with different conditions: Wong, at paras. 6, 9, 19, and 33.

(3) The appellant has not met his onus

[32] There are several reasons why the appellant’s position cannot succeed. These reasons all go to the fact that the appellant was not uninformed of any legally relevant consequences of his plea, and, in any event, he did not suffer any subjective prejudice.

(a) The appellant was not uninformed

i. The facts were part of the guilty plea

[33] I agree with the respondent that the most fundamental flaw in the appellant’s position is that the appellant was aware that the facts underlying the Superior Court charges could be used in the dangerous offender hearing. This is because they formed part of the agreed statement of facts underlying the guilty plea in the Ontario Court of Justice.

[34] The main dispute in the Superior Court was about the legal parameters of an attempt. The Crown maintained that the appellant’s conduct fell within the legal definition of attempted murder and attempted possession of a firearm, while the defence said his conduct fell short of the actus reus required for both offences. Ultimately, the trial judge said that the Crown’s case did in fact fall short on the attempted murders: because the conversations he had with the undercover officer were only about helping to locate the children, those conversations did not go beyond the merely preparatory stage. Accordingly, while the trial judge found that the appellant had the mens rea for the offence of attempted murder, the Crown had failed to establish the actus reus of the offence.

[35] In contrast, the trial judge found that the Crown had established both the requisite mens rea and actus reus for attempting to possess a firearm.

[36] Notably, the facts undergirding the Superior Court charges were read into the record during the appellant’s guilty plea proceedings in the Ontario Court of Justice. Specifically, the following facts were read into the record:

As a result of the above information, police initiated an undercover operation.

On May 30th, 2012, an undercover officer, Detective Constable Grewal, made contact with Mr. Francis. During that meeting, Mr. Francis told the officer that he was actively looking for a gun to take care of business. He told him about a beautiful woman he had met, but that she had “fucked him”, and that people here are rats. He advised that he was charged for grabbing her by the arm and kicking her out of his apartment. He then said that he was trying to get a firearm but that they were expensive here. During the course of the conversation, Mr. Francis gave the impression to the officer that after he took care of business, he would end his own life. A second meeting was set up for the next day.

On Thursday, May the 31st, a second meeting took place between Mr. Francis and the undercover officer. Mr. Francis indicated that he wanted a new, clean handgun and ammunition. He did not specify about the type of gun he wanted. He also stated that he may sell his passport for $5,000 cash. On Wednesday, June the 6th, the one-party consent had already been authorized. The officer met with Mr. Francis and was wearing a wire. During the course of their conversation, Mr. Francis spoke directly about [F.M.] and her three children. During this meeting, he showed the officer his knowledge of guns and certain types of guns, and it was during this meeting that he talked about [F.M.] getting what is coming to her.

On Wednesday, June 13th, Mr. Francis and the officer met once again. During the course of their conversation, Mr. Francis asked the officer if he knew anyone who looked like him. He stated that he could sell the person his passport. The officer asked him how much he wanted for the passport, and he said he wanted it in exchange for the firearm.

On June 26th, Mr. Francis again met with the undercover officer. During the course of this conversation, when the undercover officer asked him about the girl he was looking for, Mr. Francis advised that she would be dealt with. He stated that he had done his homework and believed he could find her. He said that he hadn’t started looking for her yet but that he had other people looking for her. He told the officer her name and about her three children.

On July the 11th, 2023, the undercover officer and Mr. Francis met again. During the meeting, he provided the officers [sic] with the names and ages of [F.M.]’s three children and asked the officer if he had any contact with the school board. He advised that the address where the children would be living would most likely be under their mother’s name and that this would be the best way to find [her]. Mr. Francis advised that he had the actual date of births [sic] at home and could check those date of births [sic] when he went home and texted to the officer. He told the officer that he wanted to make [F.M.] suffer, that his plan was to kill her three children, as this would be the most painful thing for her. That was the only way to make her suffer. She’d [wish] … she would be dead and she would have to live with the fact that her children were dead for the rest of her life.

[37] Clearly, many of the facts underpinning the guilty plea proceedings in the Ontario Court of Justice were the very same facts that underpinned the trial in the Superior Court, specifically those relating to the appellant wanting to kill F.M.’s children and to obtain a firearm.

[38] When one looks at the decision in R. v. Francis, 2017 ONSC 1505, which disposed of the Superior Court matter, there are quite simply no facts that were not already included in the agreed statement of facts read in at the appellant’s guilty plea at the Ontario Court of Justice. In oral argument, appellant’s counsel conceded that the Superior Court judgment simply added more details about the facts in the guilty plea, but did not add any new ones.

[39] Accordingly, it cannot be said that the appellant was unaware that the facts that were read into the record at his guilty plea proceeding would not be used in the context of the dangerous offender proceeding to follow.

[40] It is of added note that the trial judge carefully reviewed the agreed statement of facts with the appellant to assess his comfort level with the facts contained in the statement. He specifically inquired into whether the appellant agreed with its content. He also gave the appellant time to review the facts with amicus. After speaking with amicus, the appellant made some edits to the facts, but he did not object to them being elicited at the guilty plea proceeding.

[41] In my view, having had the facts read into the record at the guilty plea proceeding itself as part of the agreed statement of facts is enough to dispose of the appellant’s complaint that he was not informed that these facts could form part of a future dangerous offender proceeding.

[42] But there is more.

ii. The appellant was informed of the consequences of his pleas

[43] The appellant was informed of exactly what he says he did not know about: that the charges proceeding in the Superior Court would be relevant to the anticipated dangerous offender proceeding.

[44] Specifically, before the pleas were entered, the trial Crown made clear that she intended to request a s. 752.1 Criminal Code order, requiring that the appellant undergo an assessment by experts for use as evidence on a dangerous offender application. This led to a discussion about whether any potential dangerous offender application should await the conclusion of the trial in the Superior Court. The trial Crown informed the court that any dangerous offender application could not proceed until the Superior Court trial was done. She explained this was because a forensic psychiatrist would not even assess the appellant “without the attempt murder counts being resolved and dealt with” since the resolution of that matter would “fully inform his report”. She proposed the best way to proceed:

The best idea, … would be Mr. Francis waiving everything upstairs, pleading to the counts that he wanted to plead to here, having a trial on the other counts, and then everything will be together and the whole process can start at the conclusion of that matter. If he’s not willing to do that and wants to plead down here to those nine counts, the best course of action according to [the Director at CLO-C] would be plead guilty, put the whole thing on hold, don’t sentence him, deal with all of the matters upstairs, and then after everything’s resolved upstairs, then come back and deal with the sentencing down here. [Emphasis added.]

[45] The trial Crown made it clear that the facts underlying the Superior Court matter, and the result in that court, would inform the dangerous offender application at the Ontario Court of Justice.

[46] Shortly after the trial Crown’s comment about the best way to proceed, the trial judge asked the appellant if he understood what the Crown was saying. He confirmed that he did. The trial judge also reviewed the appellant’s options with him. He was ultimately asked what he wanted to do, and he confirmed that he wanted to plead guilty to the nine counts in the Ontario Court of Justice.

[47] There is nothing in the record that supports the position that the appellant was caught unaware when the Crown used the facts that pertained to the Superior Court matter in the context of the dangerous offender proceeding later on.

(b) The consequences are legally irrelevant

[48] Even if the appellant was uninformed that facts from the Superior Court matter could be used at the dangerous offender application, there are no legally relevant consequences flowing from the sentencing judge’s consideration of those facts. As explained above, there is no difference between the agreed statement of facts on the guilty plea and the facts in the Superior Court decision. Undoubtedly, the sentencing judge would have considered those facts anyway. As a result, the consequences were not "sufficiently serious" to warrant setting aside the appellant’s guilty pleas: Wong, at para. 4.

(c) There is no subjective prejudice

[49] Although the fact that the appellant was not uninformed is enough to dispose of this matter, I would note that the appellant also failed to demonstrate that he suffered any subjective prejudice.

[50] The most significant indication of this failure lies in the fact that the appellant still acknowledges that he committed the crimes to which he pled guilty. In fact, he acknowledges that he would plead guilty to those offences again. What he wants is to plead guilty before another judge, in the Superior Court.

[51] When asked during cross-examination whether he would have done anything differently had he not pled guilty in the Ontario Court of Justice, the appellant responded:

Well, like I said, knowing what I know now, I wouldn’t have pled in front of Judge Richard Blouin. I would’ve moved everything to Superior Court and pled there in Superior Court, and, you know, just take it from there. I would have – I think the deal with a judge in Superior Court, I feel that they’re used to dealing with cases, more serious cases, meaning, and the full case.

So, you know, with that said, I don’t think me – my opinion, I don’t think they would have been taking those things in the same way as Judge Richard Blouin would have been taking them in. So I wouldn’t have pled in front of Judge Richard Blouin; I would have moved everything to the Superior Court and then pled to the charges I know I was guilty of there and then still go forward with the trial. [Emphasis added.]

[52] In short, the appellant would have pled guilty in front of another judge and hoped for a better result on the dangerous offender proceeding. This is not a basis upon which to set aside a guilty plea.

(4) The appellant’s s. 725 argument fails

[53] The appellant also argued in oral submissions that it was improper to use evidence from the Superior Court trial in the dangerous offender proceeding because it amounted to double punishment. He maintains that he was sentenced to three years for his conviction for attempting to possess a firearm in the Superior Court, where the aggravating factors to that crime were informed by the facts supporting the crimes to which he pled guilty in the Ontario Court of Justice. He maintains that these facts could not be used in determining whether he is a dangerous offender because s. 725 of the Code prohibits this from occurring.

[54] Section 725(1)(c) of the Code allows sentencing judges to consider “any facts forming part of the circumstances of the offence that could constitute the basis for a separate charge.” Section 725(2) then directs that where these facts are considered in sentencing for one offence, “no further proceedings” can be taken with respect to any offence disclosed by those facts.

[55] I reject the appellant’s argument on this point. A dangerous offender hearing is not a “further proceeding” for the purpose of s. 725(2). The interpretation suggested by the appellant is at odds with the entire statutory scheme for determining if a person is a dangerous offender. This scheme is predicated upon not only the accused’s recent offending history, but also his past offending history, all of which is entirely relevant to the application. By way of only one example, consider the statutory requirement pursuant to s. 753(1)(a)(i) for determining if an accused is a dangerous offender based upon, among other things, a “pattern of repetitive behaviour”. This repetitive behaviour is often drawn from not only prior convictions, but also the factual circumstances surrounding those convictions.

B. The Sentence Appeal

(1) The appellant’s position

[56] The appellant is seeking a new dangerous offender hearing. He maintains that the sentencing judge erred by failing to consider his treatment prospects at the designation stage of the hearing. He argues that this error is a result of the fact that the law changed after the sentencing judge issued his reasons on the dangerous offender application. Treatability must now be considered at the designation stage of every dangerous offender hearing: R. v. Boutilier, 2017 SCC 64, [2017] 2 S.C.R. 936.

[57] There is no question that the sentencing judge did not think that he had to address treatability at the designation stage of his reasons. With that said, in my view, the reasons are entirely consistent with the principles that emerged in Boutilier. Even if they were not, the curative proviso would properly apply in this case.

(2) The law on dangerous offender proceedings and Boutilier

[58] There are two stages to every dangerous offender proceeding: the designation stage and the penalty stage.

[59] Section 753(1) contains four different routes to a dangerous offender finding. Each one has its own criteria. In this case, the appellant was found to meet the criteria under s. 753(1)(a)(i): that the appellant had been convicted of a serious personal injury offence and he constitutes a threat to the life, safety or physical or mental well-being of other persons on the basis of evidence that established:

… a pattern of repetitive behaviour by the offender, of which the offence for which [he] has been convicted forms a part, showing a failure to restrain [his] 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] behaviour[.]

[60] Where a person meets the requirements of one of the routes to a dangerous offender finding, that person must be declared a dangerous offender. Only then does the proceeding move along to s. 753(4) to consider an appropriate sentence. This could be an indeterminate sentence, a determinate sentence or a determinate sentence followed by a LTSO.

[61] Section 753(4.1) requires that an indeterminate sentence be imposed unless there is a reasonable expectation, based upon evidence produced at the proceeding, 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.”

[62] In Boutilier, the Supreme Court determined that future treatment prospects are a relevant consideration at the designation stage: at para. 42. Treatability directly informs the decision on the actual nature of the threat posed by the offender, specifically, whether the offender poses “a high likelihood of harmful recidivism”: at para. 45. Where evidence of treatability precludes a finding beyond a reasonable doubt that the offender presents a high likelihood of harmful recidivism or that the violent offending pattern is intractable, then they will not be declared a dangerous offender: Boutilier, at para. 45.

(3) There is no Boutilier error

[63] The question on appeal is not whether the sentencing judge at the Ontario Court of Justice used the word “treatability” in his reasons. The question is whether his reasons, read as a whole, demonstrate adherence to the Boutilier principles: R. v. S.M.J., 2023 ONCA 157, at para. 20. They do.

[64] As noted by the British Columbia Court of Appeal, “it is not a truism” that every dangerous offender designation prior to Boutilier contains a Boutilier error: R. v. Lawrence, 2019 BCCA 291, at para. 60.

[65] The sentencing judge’s reasons in this case demonstrate a clear adherence to the principles that would later be articulated in Boutilier.

[66] At the designation stage of his analysis, the sentencing judge was alive to treatability and intractability. He carefully reviewed the facts. The sentencing judge went through the appellant’s past offending conduct in assessing repetitive behaviour. This, of course, included the underlying facts involving F.M. and her children. It also included the fact that the appellant had engaged in this kind of behaviour in the past.

[67] In this regard, the sentencing judge pointed to the evidence of a former romantic partner of the appellant’s who lives outside of Canada. She ultimately had to change her name to prevent the appellant from locating her. Even so, she was still contacted by him, including at her place of work, which he threatened to bomb. He also threatened to kidnap and rape her three-year-old child. That mental abuse was accompanied from time to time by physical abuse. Much of the conduct occurred while the victim had the benefit of court-sanctioned protection orders. When she summarized her relationship with the appellant, she said:

I’ve lived in fear of him for so long that I never realized how afraid and how tortured I had been until he was out of my life. I didn’t realize who I had become until he was no longer there. It’s been a scary, scary existence not knowing whether he is literally going to follow through with those threats or not.

[68] The sentencing judge also considered the opinion of Dr. Phillip Klassen, a forensic psychiatrist, who said that the appellant is at high risk of domestic violence recidivism and a moderate to high risk of general violence recidivism. The Domestic Violence Risk Assessment Guide put his risk of domestic violence recidivism at 100 percent.

[69] The sentencing judge also relied upon the fact that the appellant lacked any insight into his offending conduct. Indeed, at the time of the dangerous offender hearing, the appellant still had an animus against F.M. and blamed her for his arrests and incarceration.

[70] All these factors point toward a complete intractability and lack of treatability. Indeed, read as a whole, the reasons show that the appellant is in fact untreatable. As noted by the sentencing judge, while there are certain variables in the appellant’s case that could be targeted for treatment, as pointed out by Dr. Klassen, the appellant would be difficult to supervise in the community. This was the result of many factors, including his “history of treatment refusal”.

[71] The appellant argues that the fact of a determinate sentence, followed by an LTSO, demonstrates the sentencing judge’s view that the appellant’s offending conduct is not intractable. I do not agree.

[72] The two stages of a dangerous offender application must not be conflated. At the designation stage, the purpose of looking into prospective treatability is focussed upon a concern over the offender’s future threat or risk to public safety. At the sentencing stage, the same evidence is considered, but through a different lens. The question at the sentencing stage is not whether the appellant will continue to be a threat to society, but rather what sentence should be imposed to manage that threat. Therefore, “even where the treatment prospects are not compelling enough to affect the judge’s conclusion on dangerousness, they will still be relevant in choosing the sentence required to adequately protect the public”: Boutilier, at para. 45. See also S.M.J., at para. 39.

[73] As the respondent points out, the very availability of a determinate sentence following a dangerous offender finding underscores Parliament’s intention that the risk posed by someone found to be a dangerous offender might still be adequately managed without an indeterminate sentence.

[74] Finally, the Crown respondent brings a fresh evidence application on appeal. The Crown seeks to introduce fresh evidence about the appellant’s ongoing offending conduct. In particular, after he completed the custodial portion of his determinate sentence, the appellant had another person contact the boss of the other victim and former partner who testified at the dangerous offender proceeding, in contravention of the LTSO. The appellant has been found guilty of criminal harassment for that conduct.

[75] Crown counsel says that the fresh evidence is relevant in order to provide the court with current information about the appellant, particularly his intractability and potential for rehabilitation.

[76] I would not admit this evidence. There is no reason to do so.

[77] The fact is that the record before the sentencing judge clearly demonstrated that the risk of recidivism here is high.

[78] There is nothing in the sentencing judge’s reasons that suggests the appellant is treatable. As the trial judge noted, he had consistently refused treatment for 25 years and, therefore, remained untreated. Over that time, he had continued to violate court orders and advised the Crown that he would not participate in probation.

(4) The curative proviso would apply in any event

[79] In any event, an appellate court may dismiss an appeal from a dangerous offender finding despite an error of law if the error has caused no substantial wrong or miscarriage of justice: Criminal Code, s. 686(1)(b)(iii). Even if the trial judge fell into error in failing to consider treatability at the designation stage, the proviso would apply here because the appellant easily meets the criteria to be declared a dangerous offender under s. 753(1)(a)(i).

[80] The factors supporting this observation are multifold, but include the facts that:

1. The appellant has engaged in a pattern of harassing conduct against two ex-partners. In relation to F.M., the conduct spanned 18 months and occurred while he was bound by court orders to stay away. It would not appear that he has ever been deterred by prior jail sentences or court orders.
2. The appellant would have to be willing to change in order to be treatable for his anti-social personality disorder. Dr. Klassen testified that the appellant cannot be treated involuntarily through medication. Dr. Klassen also said that the appellant’s narcissistic traits could interfere with his ability to be treated.
3. The appellant has refused treatment over a 25-year period. He did not cooperate in the assessment process. While he was entitled to withhold his cooperation, it means there is no evidence of any willingness to change. Indeed, on a prior occasion, the appellant is on the record as telling a probation officer that, if he was required to take counselling for intimate partner violence, he would not meaningfully participate.
4. The appellant scored in the 97th percentile on the Domestic Violence Risk Assessment Guide, indicating a risk of domestic violence recidivism of 100 percent. Dr. Klassen says he is at high risk for future domestic violence and at moderately high risk for more general future violence.
5. The appellant has a demonstrated pattern of disregard for court orders, making it unlikely that he would follow through with any supervision or counselling. He is on the record as being clear that he would not comply with probation terms.
6. The appellant has no insight into his offending conduct and has no remorse toward the victims. Indeed, he believes that F.M. has engaged in a clever plan to put him in jail.
7. The appellant told a former probation officer that F.M. set him up and “if his name ever came over the news, it was because he had to do what he had to do.” He told the probation officer that he was not afraid to “do it”.

[81] Given all of this evidence, there is no reasonable possibility that the trial judge would not have declared the appellant a dangerous offender had he specifically considered treatability at the designation stage.

[82] Therefore, even if there was a Boutilier error, it would not impact the result.

Conclusion

[83] I would dismiss the appeals against conviction and sentence.

Released: November 14, 2023 Fairburn A.C.J.O. I agree. P. Lauwers J.A. I agree. B.W. Miller J.A.