Court of Appeal for Ontario

Date: 2001-05-29 Docket: C31791

Between: Her Majesty the Queen (Respondent)

• and - G. S. (Appellant)

Before: Finlayson, Labrosse and Laskin JJ.A.

Counsel: Trevor Shaw, for the respondent Irwin A. Koziebrocki, for the appellant

Heard: January 25, 2001

On appeal from the convictions imposed by Justice Ernie Loukidelis dated July 30, 1997 and from the sentence imposed by Loukidelis J. dated May 19, 1998.

Laskin J.A.:

[1] On July 30, 1997 after a trial before Loukidelis J., the appellant was convicted of sexual assault on F.J., uttering a threat to her, assault on R.J. and extortion of both Mr. and Ms. J. On May 19, 1998, the appellant was found to be a dangerous offender and was sentenced to an indeterminate sentence.

[2] He appeals his convictions and his sentence. He makes five submissions:

(1) the trial judge erred in failing to order production of the records of a support worker’s interview with Ms. J. shortly after the alleged sexual assault occurred;

(2) the trial judge erred by permitting the Crown to lead inadmissible evidence of the appellant’s bad character;

(3) the trial judge made important findings of fact not supported by the evidence;

(4) the trial judge erred in imposing an indeterminate sentence because he failed to take into account s. 718.2(e) of the Criminal Code; and

(5) s. 761 of the Criminal Code is unconstitutional.

Background facts

[3] The appellant G.S. is a native Cree. The complainants F.J. and her husband, R.J., are both mentally challenged persons. The appellant had known R.J. since childhood and, on occasion, asked Mr. J. to run errands for him.

[4] On March 29, 1997, the appellant asked the Js to come to a rooming house where his mother and a friend had rooms. Ms. J. was reluctant to go but was persuaded to do so by her husband who said otherwise the appellant would be angry. When they arrived, the appellant sent R.J. on an errand. He asked Ms. J. to stay behind. When her husband left, the appellant asked her to have sex. She refused. She testified that he then sexually assaulted her, ripped off her track pants and had intercourse with her. He told her not to say anything to the police or to her husband because if she did he would go to jail and would have someone “on the outside” beat up her and her family.

[5] A couple of days later, the appellant asked Ms. J. to loan him $200. She said that she did not have any money in the bank. The appellant kept pestering her for money, then got angry with Mr. J. and slapped him on the mouth. The Js finally gave the appellant the money.

[6] The appellant denied that he had sexually assaulted F.J. and denied that he had sexual intercourse with her. He admitted borrowing $200 but denied that he had used coercion.

[7] The trial judge disbelieved the defence evidence and held that it did not raise a reasonable doubt. He accepted the evidence of the Js and convicted the appellant of sexual assault, uttering a threat, assault and extortion.

Discussion

(1) Production of the support worker’s records

[8] A few days after the alleged sexual assault occurred, Ms. J. spoke to Ms. Lisa Boullard, a support worker with Community Living in Timmins. Later both Ms. J. and her husband met with Ms. Boullard and another support worker at Community Living. After these two interviews, the police were called and the charges were laid against the appellant.

[9] At the beginning of the trial, the appellant brought an O’Connor[^1] application under s. 278.3 of the Criminal Code for production of Ms. Boullard’s records of the interviews, which were now in the possession not only of Community Living but also of the Crown. The trial judge refused to order their production. He ruled that the records were not relevant to an issue at trial or to the competence of Mr. or Ms. J. to testify and that their production was not necessary in the interests of justice. He declined even to review them.

[10] After the Crown closed its case, without calling Ms. Boullard, the defence renewed its application for production of the records. The trial judge repeated his earlier ruling but allowed the defence to question Ms. Boullard if her evidence “might have some bearing” on the credibility of the two complainants. Defence counsel questioned Ms. Boullard briefly on Ms. J.’s mental capacity to testify. Crown counsel then elicited from Ms. Boullard – without objection from the defence – that when Ms. J. spoke to her, she was upset and crying. The trial judge relied on evidence of Ms. J.’s emotional state to confirm that the sexual assault took place.

[11] The appellant submits that the trial judge erred in failing to order the Crown to produce Ms. Boullard’s records and compounded his error by permitting the Crown to adduce evidence of Ms. J.’s emotional state at the time of the interviews. In making this submission, the appellant recast the nature of his application for production of the records. In this court, he contended that Ms. Boullard’s records should have been produced not in accordance with the O’Connor standard under s. 278.3 of the Code, but in accordance with the Stinchcombe[^2] standard under s. 7 of the Charter. The appellant argues that the records were not kept for any therapeutic purpose, that no reasonable expectation of privacy attaches to a complaint of a criminal offence, and that therefore s. 278.3 does not apply. He says that the records should have been produced because they may have had an impact on the assessment of the complainants’ credibility, a major issue at trial. The appellant also argues that the Crown should not have been permitted to lead evidence of Ms. J.’s emotional state when she was interviewed, absent the accompanying records.

[12] I doubt whether the appellant should be permitted on appeal to recast his application for production of the records. By bringing the application under s. 278.3 at trial, the appellant accepted that Ms. J. had a reasonable expectation of privacy in the records. That privacy interest is supported by the nature and duration of her relationship with Community Living and with Ms. Boullard. Under the scheme of the legislation, a person may have a privacy interest in a record though it is not made for a therapeutic purpose and though it is in the Crown’s possession.

[13] I see no ground to interfere with the trial judge’s ruling on the s. 278.3 application. His reasons for refusing production are admittedly conclusory with little analysis. Nonetheless, his ruling is entitled to deference on appeal. The request for production rested on the bare assertion that Ms. Boullard’s interview with Ms. J. led to the police being called and what Ms. J. told the support worker may be inconsistent with her other statements of what occurred. This bare assertion does not meet the threshold for disclosure under s. 278.3. As Doherty J.A. wrote in R. v. Batte (2000), 2000 CanLII 5751 (ON CA), 49 O.R. (3d) 321 at 342:

It will not, however, suffice to demonstrate no more than that the record contained a statement referable to a subject matter which would be relevant to the complainant’s credibility. The mere fact that a witness has said something in the past about a subject matter on which the witness may properly be cross-examined at trial does not give that prior statement any relevance. It gains relevance only if it is admissible in its own right or has some impeachment value. In my view, the mere fact that a complainant said something about a matter which could be the subject of cross-examination at trial, does not raise a reasonable possibility that the complainant’s statement will have some probative value in the assessment of her credibility.

[14] To obtain production, the appellant has to demonstrate that the records contain information not already available to the defence or information useful for impeachment. See R. v. Batte at p. 341. The appellant has failed to demonstrate either.

[15] Even if the appellant’s application is considered on Stinchcombe principles, he cannot realistically maintain that not having Ms. Boullard’s records impaired his ability to make full answer and defence. Ms. J. gave five statements about the alleged sexual assault. The first four statements were given in a relatively short time frame. Her initial complaint was to her husband – a witness at trial – the day after the incident. Three days later, she told her daughter’s godmother. The following morning, she gave a third statement – the statement in issue on this appeal – to Ms. Boullard. The police then interviewed both Mr. and Ms. J. and prepared formal written police statements the next day. A month and a half later, Ms. J. testified at the preliminary inquiry.

[16] The defence therefore had access to the first, second, fourth and fifth accounts of what Ms. J. said had occurred. Ms. J.’s evidence at trial showed no significant discrepancies between her earlier statements and her preliminary inquiry evidence other than some confusion over the timing of what had occurred. Timing, however, was not an issue at trial because the appellant’s position was that nothing sexual happened. I therefore strongly doubt that Ms. Boullard’s records would contain any information of likely relevance. Indeed, Ms. Boullard testified that though Ms. J. told her what had happened she “did not discuss any detail”. Moreover, any detail was tangential because the appellant’s defence was a straightforward denial. Thus, I conclude that the trial judge’s refusal to order production of the support worker’s records did not deprive the appellant of a fair trial.

[17] That leaves the evidence about Ms. J.’s emotional state when she spoke to Ms. Boullard. It might have been preferable had the Crown not adduced this evidence. However, I am not persuaded that it was prejudicial because the same evidence was given by Mr. J. Also, evidence of Ms. J.’s emotional state was independently admissible – even absent the accompanying records – to support her testimony that the sexual assault occurred.

[18] For these reasons, I would not give effect to this first ground of appeal.

2) Evidence of bad character

[19] In his factum, the appellant submitted that the Crown was allowed to tender inadmissible evidence of bad character, which prejudiced his fair trial. The appellant gave several examples. However, the appellant did not seriously press this ground of appeal during oral argument. He acknowledged that in a judge-alone trial, the trial judge has greater latitude to consider evidence whose admission might be questioned.

[20] Moreover, evidence of an accused’s discreditable conduct is admissible if its probative value to a fact in issue outweighs its prejudicial effect. See R. v. Batte, supra, at 345. Here, the main examples relied on by the appellant were relevant to other facts issue.

[21] The Crown led evidence that Ms. J. sent her daughter to a godparent because of fear of the appellant. This fear of the appellant explained why the J. household acted so compliantly around him. This evidence also explained why Ms. J.’s daughter was not home the night of the attack, allowing the victim to go to the appellant’s house.

[22] The Crown led evidence that the appellant had been in jail. Mentioning that the appellant had been incarcerated was unavoidable in the light of his extensive criminal record. This evidence substantiated the Js’ fear of the appellant and explained why he was able to assault them and extort money from them, even while they continued to see him.

[23] The Crown also led evidence that the appellant was on welfare and did not pay back money he had borrowed from the Js. The appellant’s limited means gave him the motive to extort money. His failure to repay a $600 loan explains why the Js were reluctant to give him more money. In turn, this reluctance led to the appellant’s use of force against Mr. J. to obtain an extra $200.

[24] I would not give effect to this ground of appeal.

3) Findings contrary to the evidence

[25] The appellant submits that the trial judge made two important findings that were not supported by the evidence. First, the trial judge found that the appellant “insisted” Mr. J. bring Ms. J. to his place and then “insisted” Ms. J. remain to keep him company. The appellant submits that on the evidence Ms. J. voluntarily stayed with the appellant.

[26] I disagree with the appellant’s characterization of the evidence. Although the appellant did not explicitly threaten either Mr. or Ms. J. before the sexual assault, in the context of his domination of them, his words and his repeated requests fairly supported the trial judge’s finding of “insistence”.

[27] Second, the appellant’s mother testified that she would have heard screams through the thin wall separating her bedroom from the room where the sexual assault allegedly took place. The trial judge rejected her evidence, finding that she “may very well have been asleep” or that Ms. J.’s screams may not have been loud enough to be heard.

[28] The appellant submits that this finding is speculative. He contends that the trial judge should not have rejected uncontested evidence which might have raised a reasonable doubt. I disagree. The trial judge was entitled to discount the evidence of the appellant’s mother. Ms. J. did testify that she cried out. But she also testified that the appellant threatened to break her neck if she was not quiet and that she had difficulty yelling out because he had his hand over her mouth. Moreover, the appellant’s mother’s testimony that she did not even hear a female voice that evening is inconsistent with the appellant’s evidence that he talked with Ms. J. while her husband was out.

[29] I would not give effect to this ground of appeal.

(4) The indeterminate sentence

[30] The trial judge found that the appellant was a dangerous offender. The appellant does not challenge this finding. Indeed, the dangerous offender finding is amply supported by the record. The predicate offence is sexual assault on a mentally-challenged person, followed by extortion, including threats of personal injury, not only to the victims but to members of their family. The appellant, who was 32 at the time of trial, has a long criminal record dating back to 1982, a record that includes numerous convictions for offences of violence. He has been convicted of 26 offences including uttering threats of violence, assault on his common law partner, a violent sexual assault on his sister-in-law, two violent unprovoked assaults on males and two unprovoked assaults with a weapon.

[31] Both the Crown and the defence experts agreed that the appellant met the criteria for a dangerous offender as defined in s. 753 of the Criminal Code. They disagreed only on why. Dr. MacDonald, the Crown’s main expert, concluded that the appellant had an antisocial personality disorder with “rape-prone” paraphilia. Dr. Langevin, the defence expert, testified that the appellant was a paranoid schizophrenic, a diagnosis more amenable to treatment. In view of the predicate offence, the appellant’s record, supported by the testimony of several of his victims, and the expert evidence the trial judge was entirely justified in concluding that the appellant was a dangerous offender under the definitions in s. 753(1)(a)(i) and (ii) and s. 753(1)(b) of the Criminal Code.

[32] The appellant accepts the dangerous offender finding but submits that he should have received a definite sentence. At the time the appellant was sentenced, s. 753 gave the trial judge discretion to impose a definite or an indeterminate sentence. The trial judge exercised his discretion to impose an indeterminate sentence. He concluded “I am not convinced that a definite term is the answer. It may give G.S. and his family hope but not the cure or answer that Mr. S. requires and the public needs for its protection.”

[33] Under the previous Code provisions, a trial judge’s discretion in imposing an indeterminate sentence was entitled to deference on appeal. An appellate court could interfere with the sentence only if the trial judge made an error of law or an unreasonable finding. See R. v. Currie, 1997 CanLII 347 (SCC), [1997] 2 S.C.R. 260 at 280-81.

[34] Here, the appellant submits that the trial judge erred in law in failing to consider s. 718.2(e) of the Code, which requires a sentencing judge to pay particular attention to “the circumstances of aboriginal offenders.” The appellant submits that his own circumstances as a native Cree were relevant to whether he received a definite or an indeterminate sentence. The trial judge did not expressly advert to s. 718.2(e). Nor it seems did trial counsel in their submissions on sentence.

[35] Assuming that the trial judge erred, in my view, his error caused no substantial wrong for at least three reasons. First, the trial judge did consider the appellant’s “early years” and the “bad company” he kept. Second, s. 718.2(e) has a much diminished impact in sentencing persons like the appellant who commit serious and violent offences. See R. v. Gladue (1999), 133 C.C.C. (3d) 424 (S.C.C.). Third, the evidence before the trial judge overwhelmingly supported an indeterminate sentence. Dr. MacDonald considered that the appellant exhibited a pattern of exploiting vulnerable individuals, that his relationships with women were based on violence and that he was uninterested in consensual sex. Dr. MacDonald concluded that “the likelihood that he will restrain his behaviour in the future is, I think, essentially zero because he has no moral qualms about what he does.” Dr. MacDonald elaborated:

I think the most malicious, or unfortunate diagnostic mixtures you can get is somebody who has no conscience, who is impulsive and violent, who is using disinhibiting substances that will make that even worse, and who on top of it, is sexually deviant and rape prone with sadism. It’s about the worst possible combination you can get and it means to my mind, this behaviour is not going to stop. It may well get worse. Other people will be seriously injured if the opportunity arises.

[36] Even Dr. Langevin acknowledged that the appellant “presents as a high risk for re-offence”. Although Dr. Langevin maintained that the appellant was amenable to treatment, he could not say how long a treatment program might take. The evidence of the appellant’s willingness to undergo treatment was dubious at best. The appellant appeared to express an interest in treatment only to avoid or to be released from custody or to obtain more narcotics. Moreover, he repeatedly avoided being treated by missing appointments. Overall, I am not persuaded that we should interfere with the appellant’s sentence despite the trial judge’s failure to expressly consider s. 718.2(e) of the Code.

(5) The constitutionality of s. 761 of the Criminal Code

[37] Section 761 of the Code provides that where a person found to be a dangerous offender is in custody for an indeterminate term, his or her case should be reviewed for parole eligibility within seven years after custody began and every two years afterwards. In R. v. Lyons (1987), 1987 CanLII 25 (SCC), 37 C.C.C. (3d) 1, the Supreme Court of Canada held that this review process prevents disproportionate sentences and therefore saves these sentences from constitutional attack under s. 12 of the Charter.

[38] On this appeal, the appellant challenges the constitutionality of s. 761. He contends that his failure to receive treatment because of inadequate resources makes the periodic review process illusory and creates a disproportionate sentence.

[39] The constitutionality of s. 761 was not raised at trial and the evidentiary record to support the appellant’s submission is thin at best. Both this court and the Supreme Court of Canada have repeatedly expressed concern about deciding important constitutional issues without a proper factual record. On its face, s. 761 is not flawed. The appellant’s argument – if it has any merit at all – turns on the adequacy or the allocation of resources within the federal correctional system. In my view, the court does not have an adequate record to decide this question. Therefore, I would decline to entertain the appellant’s constitutional challenge. For this reason I need not consider the Crown’s other position that the Federal Court is the proper forum to deal with questions of parole eligibility. I would not give effect to this ground of appeal.

Conclusion

[40] For these reasons, I would dismiss both the appeal against the convictions and the appeal against sentence.

“J. Laskin J.A.”

“I agree: G.D. Finlayson J.A.”

“I agree: J-M. Labrosse J.A.”

Released: May 29, 2001

[^1]: R. v. O’Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411. [^2]: R. v. Stinchcombe (1995), 1995 CanLII 130 (SCC), 96 C.C.C. (3d) 318 (S.C.C.).