W A R N I N G

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

An order restricting publication in this proceeding under ss. 486.4(1), (2) or (3) or 486.5(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.4 (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of:

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 346 or 347,

(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C‑34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step‑daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C‑34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).

(2) In proceedings in respect of the offences referred to in paragraph (1) (a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and

(b) on application made by the complainant, the prosecutor or any such witness, make the order.

(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

486.5 (1) Unless an order is made under section 486.4, on application of the prosecutor, 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 satisfied that the order is necessary for the proper administration of justice.

(2) On application of a justice system participant who is involved in proceedings in respect of an offence referred to in subsection 486.2(5) or of the prosecutor in those proceedings, 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 necessary for the proper administration of justice.

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.

DATE: 20060411

DOCKET: C40104

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – W. (C.) (Appellant)

BEFORE:

GILLESE, BLAIR and LAFORME J.J.A.

COUNSEL:

Timothy Breen

for the appellant

Shawn Porter

for the respondent

HEARD:

April 6, 2006

On appeal from the conviction imposed by Justice B. Smith on charges of manslaughter and sexual interference, dated September 27, 2002, and from sentence.

There is a publication ban in effect with respect to these proceedings.

E N D O R S E M E N T

[1] The appellant, C.W., seeks to set aside his convictions for manslaughter and sexual interference arising out of circumstances that resulted in the death of a thirteen-year-old girl (“A.R.”) who, with three other (older) female friends, had attended at the appellant’s island home in Puslinch Lake for a night of partying and consumption of drugs. The appellant was also convicted of sexual assault, but does not appeal that conviction. He also seeks to appeal the global net sentence of twelve years’ imprisonment that was imposed,[^1] together with the order of B. Smith J. that he not be eligible for parole until half of his sentence has been served. He does not appeal from a further order designating him as a long-term offender.

[2] A.R. died on June 27, 2001, as a result of ingesting an overdose of a combination of drugs including percocet, speed and morphine (containing together a lethal mixture of morphine, oxycodone and amphetamines).

[3] The sexual interference charge arose out of circumstances in which the appellant and his girlfriend and other girls wrote on A.R.’s body with a felt pen while she was lying comatose on the bed. The appellant wrote an obscenity on her buttocks and did something that elicited the question “Why are you doing that?”. His response was that he “wanted to see how tight a virgin was”. The trial judge found on the evidence that the appellant had touched the victim in an inappropriate sexual fashion.

The Manslaughter Appeal

[4] On the manslaughter appeal, Mr. Breen raises two arguments on behalf of the appellant. The first relates to causation, and the second to the finding of criminal negligence in what he analogizes to a “social host” situation.

[5] Mr. Breen submits that the trial judge erred in failing to consider and to give effect to an “intervening act” defence. In substance, he argues that there were periods of time during the night and early morning of the party when the victim and the other girls were helping themselves to the drugs in the absence of the appellant, and that the appellant cannot be said to have been trafficking on those occasions. This turn of events destroyed the causation link between the death and the unlawful act of trafficking in drugs (in which it is admitted, the appellant was engaging). In a legal sense, therefore, the cause of death cannot fairly be “imputable” to the appellant because the act of the victim in helping herself to the drugs was sufficient to “legally sever the link that ties [the appellant] to the prohibited result”: see R. v. Nette (2001), 2001 SCC 78, 158 C.C.C. (3d) 486 (S.C.C.), per Arbour J. at paras. 45 and 77.

[6] We do not accept this argument. The trial judge found that the appellant made the drugs available in large quantities to his guests, including A.R., and that he facilitated, encouraged, welcomed and promoted their use; he showed A.R. and her friends how a more intoxicating effect could be obtained by crushing the pills and removing the time-release coating, and when the girls said they were not feeling “high”, he supplied them with more drugs with the added potency factor of peeling and crushing. The trial judge specifically found that “the accused invited A.R. to take dangerous drugs and facilitated her ingesting them in a form most lethal, thus placing her in a confused and vulnerable state and then, whether she continued consumption on her own or with S.H., took no steps to shut her down.” He found that the appellant’s actions contributed substantially to A.R.’s death.

[7] There was ample evidence to support these findings and they fully support the finding of guilt on the charge of manslaughter. The drugs ingested by A.R. all came from the appellant’s supply – as the Crown notes, he had a virtual pharmacopoeia of drugs on his kitchen counter – and were taken with his permission and, indeed, encouragement, even if he happened not to be present on some occasions when the drugs were consumed. The evidence is that the appellant was present on numerous other occasions when A.R. was consuming the drugs. Accordingly, the trial judge’s finding of manslaughter arising from the unlawful act of trafficking in drugs was perfectly justified in the circumstances.

[8] Similarly, we agree with the trial judge’s finding that the appellant’s conduct constituted wanton and reckless disregard for the life or safety of A.R. and ultimately caused her death. The appellant knew of the drugs she had been consuming and that she was a relatively young girl. As noted above he invited and encouraged her to take these lethal forms of drugs,[^2] took no steps to restrain her at any time, and ultimately ignored warnings from his friends that an ambulance should be called. Accordingly, the manslaughter conviction based upon criminal negligence is well founded, too.

Sexual Interference

[9] We see no merit in the appeal respecting the conviction for sexual interference. It was open to the trial judge to infer on all of the evidence – whether based on the evidence of Ms. H. (whose reliability the trial judge found to be minimal) or on the evidence of Ms. C. respecting the “I wanted to see how tight a virgin was” comment – that the appellant had touched A.R. in a sexually inappropriate way. There is no reason to interfere with that finding.

Sentence

[10] Mr. Breen argues that the fifteen-year sentence for manslaughter is outside the range for similar offences and cannot be sustained, in spite of the tragic circumstances of A.R.’s death. This is so, particularly, he submits, when the sentence is combined with the ten-year supervision order arising from the designation of the appellant as a long-term offender. He referred us to a number of authorities that suggest the appropriate range is eight to twelve years.

[11] We do not agree.

[12] Each case is to be determined on its own facts. Even accepting Mr. Breen’s submission that the appellant did not intend to harm his victim, the circumstances of A.R.’s death were egregious. She was thirteen years of age and a vulnerable little girl. He was forty-one years of age and was in the habit of making his island home available to young girls for partying and for the unrestrained consumption of what he knew were potentially lethal drugs. He showed A.R. and her friend how to make the drugs more potent and encouraged them to consume them generously. He took no steps to help her when he was alerted to the fact she may be in trouble and dissuaded others from doing so. He sexually assaulted her while she was lying on the bed in a comatose stupor from which she never recovered.

[13] The appellant has a horrendous criminal record, which includes a conviction for forcible confinement in 1989 and for which he was sentenced to four years imprisonment.[^3] The agreed statement of facts filed on the sentencing hearing demonstrates a continuing pattern – when the appellant is not otherwise in prison for some other offence – of enticing young girls to consume drugs with him in situations not dissimilar to the events that happened on this occasion (although, fortunately, without the same sad consequences).

[14] Most telling, however, was the expert evidence of Dr. MacDonald, who testified that the appellant scored thirty-one out of forty on the Psychopathy Check List, qualifying him “for a diagnosis of psychopathy, the more extreme manifestation of the anti-social personality disorder.” Dr. MacDonald found the appellant to be “an individual who was self-centred, and superficial, impulsive and [who operated] on an immediate gratification of needs basis”, and an individual who is not able to accept personal responsibility on his part, with “no value for life or anyone else’s”. He concluded that “the likelihood that [the appellant] will continue to pursue the lifestyle he has so far is extremely high and the ensuing risks predictable”.

[15] While this evidence was directly relevant to the long-term offender application – which the appellant did not oppose – it is also directly relevant to the issue of sentencing on the manslaughter and sexual interference offences. The appellant is incorrigible. Rehabilitation is not a reasonable factor in this case. He is a confirmed recidivist.

[16] While the sentence imposed by the trial judge may be severe, it is justified in the circumstances of this case, in our view. We would not interfere.

[17] So, too, is the decision of the trial judge to impose an increased period of parole ineligibility. In R. v. Goulet (1995), 97 C.C.C. (3d) 61, this court said (at 67) :

The distinguishing characteristics of the offender may provide more fruitful grounds for invoking s. 741.2 as an exceptional measure. Where the Crown has adduced clear evidence that the offender will not be deterred or rehabilitated within the normal period of parole ineligibility, an order under s. 741.2 will be appropriate. A history of prior parole violations, or violations of other forms of conditional release, or evidence that significant prior custodial sentences have had little impact would be appropriate factors to consider in applying s. 741.2 [emphasis added].

[18] This case fits entirely within those parameters. The trial judge did not err in imposing a period of increased parole ineligibility in these circumstances.

Disposition

[19] Accordingly, the appeal as to conviction is dismissed. Leave to appeal sentence is granted, but the appeal as to sentence is also dismissed.

“E.E. Gillese J.A.”

“R.A. Blair J.A.”

“H.S. LaForme J.A.”

[^1]: C.W. was sentenced to fifteen years for manslaughter and to one year, each consecutive, for sexual assault and sexual interference. He was given credit for five years pre-trial custody, for a global sentence of twelve years.

[^2]: The appellant had a book entitled “Worst Pills, Best Pills, A Consumer’s Guide to Avoiding Drug Induced Death or Illness” on his kitchen counter, which dealt extensively with the dangers of combining prescription medications. The pages containing the analysis of percodan and percocet were tabbed.

[^3]: The victim was a 16-year old girl who became involved in a relationship with the appellant, who introduced her to cocaine and then, after a three-day cocaine binge, gagged and hog-tied her.