Court of Appeal for Ontario

Date: 2025-04-30
Docket: COA-24-CR-0781
Coram: Gillese, Monahan and Gomery JJ.A.

Between:
His Majesty the King (Respondent)
and
J.C. (Appellant)

Appearances:
Alexander Ostroff and Marianne Salih, for the appellant
Manasvin Goswami, for the respondent

Heard: 2025-03-11

On appeal from the sentence imposed on March 31, 2021, by Justice Joseph M. Donohue of the Superior Court of Justice.

Monahan J.A.:

Overview

[1] In October 2017, the appellant was convicted and sentenced for multiple offences against his then domestic partner, BOH. He admitted to grabbing her by her hair and throwing punches at her head, threatening to stab her with a knife, and residing with her in breach of probation. Upon his release from jail, while he remained bound by a probation order prohibiting him from contacting or communicating with BOH, he moved into her apartment.

[2] Over the following year, the appellant repeatedly assaulted BOH. In 2020, he was convicted of several assaults on BOH, including with a frying pan and a knife, as well as one count of failure to comply with his probation order prohibiting him from communicating with BOH.[^1] By that point, he had a lengthy history of violence against intimate partners, beginning with a conviction for assaulting his then partner in 2006.

[3] The Crown successfully applied to have the appellant designated a dangerous offender pursuant to s. 753(1) of the Criminal Code, RSC 1985, c C-46. For his convictions in 2020, the appellant was sentenced to a determinate sentence of 3 years (after taking into account credit for presentence custody)[^2] followed by a 10-year long-term supervision order (“LTSO”).

[4] This is an appeal against the dangerous offender designation. The appellant submits that the trial judge failed to comply with R. v. Boutilier, 2017 SCC 64, [2017] 2 S.C.R. 936, provided insufficient reasons for decision, and erred in assessing his prior criminal record.

[5] For the reasons that follow, I would allow the appeal in part by setting aside the order designating the appellant a dangerous offender, substitute a designation as a long-term offender, and uphold the trial judge’s imposition of a determinate sentence followed by a 10-year LTSO.

The Dangerous Offender Application

[6] The Crown’s dangerous offender application included a detailed Notice of Application (the “Crown Notice”) setting out the legal and factual basis for its position that the appellant should be designated a dangerous offender. The Crown also brought a motion to admit a criminal convictions and history document brief (the “Documents Brief”), consisting of guilty plea transcripts with respect to certain convictions, informations, police notes, occurrence reports, witness and police statements, and other documents. The trial judge admitted the Documents Brief, subject to weight and reliability.

[7] As part of the dangerous offender proceedings, the appellant was assessed by Dr. Philip Klassen. In Dr. Klassen’s report, dated August 7, 2020, he diagnosed the appellant as having an antisocial personality disorder with borderline personality traits. In his view, individuals with this combination “typically engage in criminal behaviour wherein the focus of their criminal behaviour is intimate-relationship based”. Based on his risk appraisal, Dr. Klassen opined that the appellant was at a “moderately high to high risk of general violent recidivism and at a very high risk of intimate partner violence”.

[8] Dr. Klassen testified at the hearing and was cross-examined. The appellant also testified, along with a number of other defence witnesses, including two custodial workers and the appellant’s daughter.

[9] The Crown then filed a Closing Submissions Brief (the “Crown Closing Submissions”) setting out its analysis of the evidence adduced during the hearing and the reasons why the appellant should be designated a dangerous offender.

The Trial Judge’s Reasons for Sentence

[10] In his reasons for sentence, the trial judge did not offer any independent analysis of the evidence or argument submitted at the hearing. Instead, his reasons consist essentially of a wholesale adoption of the analysis set out in the Crown Notice, interspersed with quotations from the evidence of Dr. Klassen which he found to be “uncontradicted and persuasive”.

[11] Although the trial judge noted that he had also reviewed and carefully considered the Crown Closing Submissions, he explained that he had chosen to refer only to the Crown Notice, since the appellant had not made any written submissions and he was attempting to somewhat remedy “the imbalance in the weight of argument”.

[12] In his reasons, the trial judge quotes or summarizes various paragraphs of the Crown Notice, indicating in each case that the Crown’s position is "correct”, “appropriate”, or that he “agrees with” or “adopts” the position advanced by the Crown. On this basis he designated the appellant a dangerous offender and imposed the determinate sentence and LTSO as described above.

Grounds of Appeal

[13] The appellant submits that the trial judge’s almost exclusive reliance on the Crown Notice led to multiple serious errors, namely: (1) he did not consider intractability at the designation stage, as mandated by Boutilier; (2) his reasons were insufficient, since he failed to make any findings on the factual underpinnings of the appellant’s prior criminal activity relied upon to establish the requisite patterns, nor did he properly consider live issues respecting the appellant’s likelihood to reoffend; and (3) he made no analysis of the weight or reliability of the material in the Documents Brief, which included Crown synopses and police notes.

Analysis

(1) Did the trial judge fail to consider intractability at the Designation Stage, as mandated by Boutilier?

[14] Boutilier establishes that before designating a dangerous offender, a sentencing judge must be satisfied that the offender poses a high likelihood of harmful recidivism and that his or her conduct is “intractable”. The court defined intractable conduct as “behaviour that the offender is unable to surmount”: Boutilier, at para. 27. This requires the sentencing judge to conduct a prospective assessment of dangerousness, so that only offenders who pose a future risk are designated as dangerous and face the possibility of being sentenced to indeterminate detention.

[15] The court in Boutilier further clarified that the prospective assessment of dangerousness necessarily involves the consideration of future treatment prospects: at para. 43. Offenders will not be designated as dangerous if their treatment prospects “are so compelling that the sentencing judge cannot conclude beyond a reasonable doubt that they present a high likelihood of harmful recidivism or that their violent pattern is intractable”: Boutilier, at para. 45.

[16] The difficulty in this case is that not only did the Crown Notice make no reference to Boutilier, it went further and erroneously took the position that it was unnecessary for the trial judge to consider intractability at the designation stage:

Historically there has been some jurisprudence suggesting that the Crown must prove a relatively high level of intractability before the sentencing judge could find that an offender’s behavior constituted a pattern of conduct contemplated under either s. 753(1) of the Code. Justice Rosenberg, speaking for a unanimous Ontario Court of Appeal, in R. v. Szostak, has made clear that, since the 2008 amendments, intractability is no longer a necessary consideration in determining whether an offender should be designated as a dangerous offender.

[17] Apart from this paragraph, the section of the Crown Notice dealing with the designation stage makes no reference to a consideration of intractability, including the appellant’s future treatment prospects. The Crown Notice later notes that it is appropriate to consider intractability, including whether the offender’s risk can be successfully managed through treatment, at the penalty stage.

[18] The trial judge adopted the position set out in the Crown Notice and considered intractability only at the penalty stage, after already having designated the appellant a dangerous offender. The appellant argues that the failure to consider intractability at the designation stage, as required by Boutilier, is a fatal error and that his designation as a dangerous offender must be set aside.

[19] The Crown’s response is that, although the trial judge did not make an express finding of intractability before designating the appellant a dangerous offender, his reasons comply in substance with Boutilier. For instance, the Crown relies on a sentence in the trial judge’s reasons where he explains why he designated the appellant a dangerous offender, in which he states that he agrees with “the predictions of future behaviour and the ineffective results of treatment to date as set out in paras. 58 and 59 of the Crown’s Application.”

[20] The difficulty with the Crown position is that although paragraphs 58 and 59 of the Crown Notice made reference to the fact that the appellant had received treatment on multiple occasions in the past, there is no consideration at that point in the Crown Notice of whether his future risk could be managed through more intensive treatments, as recommended by Dr. Klassen. In fact, immediately after the two paragraphs in the Crown Notice cited by the trial judge, the Notice explains that a consideration of the effectiveness of future treatment is only relevant at the penalty phase of the analysis. This is plainly inconsistent with Boutilier, which mandates consideration of future treatment prospects in managing dangerousness prior to designating a person as a dangerous offender.

[21] I therefore conclude that the trial judge failed to consider intractability at the designation stage, as mandated by Boutilier. Nor is this one of the rare cases in which the curative proviso ought to be applied on the basis that this legal error did not cause a substantial wrong or miscarriage of justice: Criminal Code, s. 686(1)(b)(iii).

[22] This court has applied the curative proviso in circumstances where, despite failing to consider treatability at the designation stage, there was no reasonable possibility that the trial judge would have come to a different conclusion had he undertaken the proper analysis: see R. v. S.M.J., 2023 ONCA 157, 166 O.R. (3d) 567, paras 43-44; R. v. Francis, 2023 ONCA 760, 2023 W.C.B. 1896, paras 79-82. But I am unable to come to a similar conclusion in this case.

[23] In his evidence, Dr. Klassen described the appellant’s previous treatment programs as relatively short-term and unlikely to have been effective. For this reason, Dr. Klassen described the appellant as being, in practical terms, an “untreated offender”. Had this evidence been considered at the designation stage, it may well have led the trial judge to conclude that the appellant was not intractable and that he therefore ought not to be designated as a dangerous offender. The fact that this was a realistic possibility is reflected in the trial judge’s finding (albeit at the penalty stage rather than the designation stage) that “there is a possibility of successful treatment and cure, [and] the prospects of risk reduction and risk management and the reasonable possibility of eventual control in the community are real.”

[24] I conclude that the trial judge’s failure to consider intractability at the designation stage is an error of law warranting appellate intervention and the setting aside of the appellant’s designation as a dangerous offender.

(2) Were the trial judge’s reasons sufficient to support his findings that the appellant’s offending conduct satisfied the patterns of behaviour described in ss. 753(1)(a)(i) or (ii)?

[25] The appellant argues that the trial judge’s reasons were insufficient to support his findings that the appellant’s offending conduct was sufficiently dangerous to constitute either of the patterns of behaviour described in ss. 753(1)(a)(i) or (ii) of the Criminal Code. As noted above, the trial judge simply adopted the analysis in the Crown Notice. By proceeding in this fashion, the appellant submits that the trial judge failed to make any findings on the factual underpinnings of the appellant’s prior criminal activity. Nor did he properly consider live issues respecting the appellant’s likelihood to reoffend.

[26] There is no doubt that a judge simply adopting the submissions of a party as their reasons is frowned upon: R. v. Leonard, 2025 ONCA 63, para 3. That said, while proceeding in this manner is to be avoided, it does not necessarily result in insufficiency of reasons.

[27] An appeal lies from the judgment, not the reasons for judgment. Poor articulation of reasons, by itself, does not provide a ground for appellate intervention, which is only justified when it is not possible to discern a logical connection between the verdict and the basis for the verdict, thereby foreclosing meaningful appellate review: R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, paras 25-26, 28; R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, para 25; and R. v. H.S.B., 2008 SCC 52, [2008] 3 S.C.R. 32, para 2.

[28] Moreover, appellate review of the sufficiency of reasons must proceed on the basis of a deferential, functional approach that requires reading the reasons in the context of the evidence, the submissions of counsel and the live issues at trial: R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, paras 17, 55.

[29] Viewed through the lens of this functional approach, I am not persuaded that the deficiencies in the trial judge’s reasons rise to the high threshold that would justify appellate intervention.

[30] The reasons for sentence, read in the context of the entire record, disclose that the trial judge was satisfied that the appellant’s offending conduct constituted a pattern of repetitive behaviour, as required by s. 753(1)(a)(i), and a pattern of persistent aggressive behaviour, as required by s. 753(1)(a)(ii). The trial judge was also satisfied, based on his acceptance of the evidence provided by Dr. Klassen, that there was a likelihood that the appellant would offend in a similar fashion in the future.

[31] The appellant argues that the reasons are insufficient because they do not contain findings about the factual underpinnings of his prior convictions. But the bases for those convictions are clear from the record, either through transcripts of guilty pleas (which specify the facts admitted by the appellant), or through synopses pertaining to each conviction (the content of which was either confirmed by the appellant in his assessment interview or not meaningfully in dispute at trial.)

[32] The primary issue that was in dispute was whether the prior convictions contained enough similarities to support the pattern requirement in s. 753(1)(a)(i). However, the trial judge explained which common elements in the numerous incidents of intimate partner violence he found sufficient to satisfy that pathway to designation. While not all the prior incidents reflected all of the common elements identified, where (as in this case) there are numerous incidents in the pattern, fewer similarities between the incidents are required: R. v. Tynes, 2022 ONCA 866, 165 O.R. (3d) 321, paras 64-67, 70, leave to appeal refused, [2023] S.C.C.A. No. 471. In any event, the trial judge also found that the Crown had satisfied the alternate pathway in s. 753(1)(a)(ii), which does not require a pattern of repetitive behaviour.

[33] The appellant also argues that the reasons are insufficient because the trial judge did not refer to caveats that Dr. Klassen provided about his risk evaluation, particularly his opinion that objectively, and putting aside psychological harm, the severity of the appellant’s future offending would be “low to moderate”. Despite such caveats, Dr. Klassen concluded that the appellant posed a “very high risk of committing intimate partner violence in the future”. The trial judge was entitled to accept that opinion, and the fact that he did not refer to qualifications or caveats in Dr. Klassen’s assessment does not render his reasons insufficient.

[34] I conclude that, despite the deficiencies in the trial judge’s reasons, appellate intervention on this basis is not justified. I would therefore dismiss this ground of appeal.

(3) Did the trial judge err in assessing the appellant’s prior criminal record?

[35] The appellant submits the trial judge erred by failing to assess the weight and reliability of the police synopses and occurrence reports that were filed to establish the factual underpinning of some of the appellant’s prior convictions.

[36] I would not give effect to this ground of appeal. As explained above, defence counsel did not contest the facts in those synopses in closing submissions and the appellant confirmed much of that information in his assessment interview. In any event, the appellant has not identified any specific details in the synopses of those convictions that should have been excluded from the trial judge’s consideration. Nor would such exclusion have made a difference to the result of this case, since the trial judge’s finding of a pattern of behaviour was not dependent on a piecemeal analysis of the appellant’s criminal record but, rather, from an overall assessment of that record: Tynes, at paras. 74-75.

Disposition

[37] Although I would set aside the appellant’s designation as a dangerous offender, I have not found any reviewable error in the trial judge’s findings that his offending conduct satisfied the patterns of behaviour described in ss. 753(1)(a)(i) and (ii) of the Criminal Code.

[38] The issue that arises is the appropriate sentencing disposition in light of these findings. Since the parties did not directly address this issue in their initial written or oral submissions, we invited them to provide written submissions following the hearing.

[39] In those submissions, both parties accept that in these circumstances, it would be appropriate to designate the appellant as a long-term offender, and impose a determinate sentence followed by the 10-year LTSO. In fact, this was the disposition sought by defence counsel at first instance, while the Crown at that time agreed that a determinate sentence followed by a 10-year LTSO was an available and appropriate disposition if a dangerous offender designation was not made.

[40] The appropriateness of this disposition is reinforced by the fact that although the trial judge designated the appellant as a dangerous offender, he sentenced the appellant to a determinate sentence followed by the 10-year LTSO.

[41] I would therefore set aside the appellant’s designation as a dangerous offender, substitute a designation as a long-term offender, and uphold the determinate sentence followed by a 10-year LTSO, as imposed by the trial judge.

Released: April 30, 2025

“P.J. Monahan J.A.”
“I agree. E.E. Gillese J.A.”
“I agree. S. Gomery J.A.”

[^1]: The appellant’s appeal from these convictions was bifurcated from this appeal and previously heard by another panel. The conviction appeal was allowed in part and one of the convictions for assault with a weapon (a drill) was set aside: see R. v. J.C., 2023 ONCA 101, 2023 W.C.B. 241.

[^2]: The appellant was sentenced to 6 years, 7 months and 22 days but, after taking into account credit for presentence custody, he had a net sentence of 3 years remaining to be served.