Her Majesty the Queen v. N.P.C. [Indexed as: R. v. C. (N.P.)]

86 O.R. (3d) 571

Court of Appeal for Ontario,

Feldman, Gillese and Armstrong JJ.A.

June 22, 2007

Criminal law -- Dangerous offenders -- Accused being convicted in 1996 of sexual offences against his two stepdaughters -- Trial judge declaring accused to be dangerous offender and imposing indeterminate sentence in 1996 -- Accused being entitled to benefit of long-term offender provisions proclaimed in 1997 as his appeal was pending when those provisions came into force -- Accused not adducing fresh evidence to suggest that long-term offender designation was appropriate -- Nothing in record indicating that risk posed to public by accused might eventually be controlled in community -- Accused's appeal being one of rare cases where appropriate to dismiss appeal pursuant to s. 759(3)(b) of the Code without ordering new hearing regarding application of long-term offender provisions as record demonstrating result would necessarily have been the same -- Accused's appeal from designation as dangerous offender dismissed -- Criminal Code, R.S.C. 1985, c. C-46, s. 759(3)(b).

Criminal law -- Trial -- Charge to jury -- Character evidence -- Multiple count indictment -- Accused being convicted of sexual offences against his two stepdaughters -- Trial judge properly instructing jury to consider each charge separately and not to use evidence relating to one count as evidence on any of other counts -- Trial judge not specifically instructing jury that evidence of other counts should not be used as proof that accused was sort of person who would commit offences -- Mother of victims testifying that accused assaulted her -- Although preferable to warn jury against use of evidence of spousal abuse as propensity evidence unlikely that jury would infer from it that accused kind of person who would sexually assault step-daughters -- Charge adequately warning jury against engaging in propensity reasoning -- Accused's appeal being dismissed.

Criminal law -- Trial -- Charge to jury -- Reasonable doubt -- Trial judge in pre-Lifchus charge directing jury that they should be "sure" of accused's guilt without first providing them with proper definition of words "beyond a reasonable doubt" -- Charge as whole could not have left jury with any misapprehension as to correct standard of proof -- Accused's appeal from conviction being dismissed.

The accused was convicted in 1996 of sexual offences against his two step-daughters. The assaults on one complainant included vaginal intercourse, and the assaults on the other complainant consisted of touching and cunnilingus. The accused threatened to kill the complainants or their mother if they told anyone about the assaults, which were committed over a period of about three years. The trial judge allowed the Crown's application to have the accused designated a dangerous offender and, in 1996 (before the proclamation of the long-term offender provisions), sentenced him to an indeterminate period of imprisonment. The accused appealed both his conviction and the dangerous offender designation.

Held, the appeal should be dismissed. [page572]

Where there are multiple counts and complainants and the evidence on one count is not admissible as similar fact evidence on the other counts, jurors should be instructed, first, to consider each charge separately and not to use evidence relating to one count as evidence on any of the other counts, and second, that evidence of other counts should not be used as proof that the accused is the sort of person who would commit the offence or offences charged. The trial judge's instructions to the jury satisfied the first requirement. As for the second requirement, although the trial judge did not use the precise language, his charge adequately warned the jury against engaging in propensity reasoning. He instructed the jury that it could convict the accused only on the basis of the evidence relating to each offence charged. The jury would have understood that guilt on one count (or with respect to one complainant) could not be used to infer guilt on another. Limiting instructions given in respect of bad character evidence are intended to prevent the jury from inferring guilt from prior bad conduct. The trial judge's instructions served that purpose. Finally, while it would have been preferable had the trial judge instructed the jury that they were not to conclude from the evidence of spousal assault and drunkenness that the accused was the sort of person likely to commit the offences charged, the failure to do so was not fatal. It was unlikely that the jury would infer that because the accused physically abused his wife, he also sexually assaulted his step-daughters.

The trial judge's instructions to the jury on reasonable doubt preceded the decision of the Supreme Court of Canada in R. v. Lifchus. It would have been preferable had the trial judge not directed the jury that they should be "sure" of the accused's guilt without first providing them with a proper definition of the meaning of the words "beyond a reasonable doubt". However, this was an isolated mistake which, when considered in the light of the repeated references to reasonable doubt and the absence of any other misleading terms, did not lead to any serious concerns that the charge was unfair or that the jury misapprehended the burden of proof.

As the accused's appeal was pending when the long-term offender provisions were proclaimed, he was still "in the system" and he was entitled to the benefit of the possibility of the lesser punishment that they created. Given the law at the time of sentencing, the trial judge did not address the question of whether there was a reasonable possibility of eventual control of the risk in the community, as is required to determine the applicability of the long-term offender provisions. However, on the record, and in the absence of any fresh evidence to support a claim that the accused might be a suitable candidate for the long-term offender designation, there was no such reasonable possibility. The accused had a horrendous pattern of violence and sexual violence. He had sexually offended against both sexes and against children and his 62-year-old neighbour. He was assessed as posing a high risk to re-offend violently or sexually. His lack of insight and his refusal to accept treatment increased his risk. This was an appropriate case for the application of s. 759(3)(b) of the Criminal Code, which allows the court to dismiss an appeal against the finding that the accused is a dangerous offender if it is satisfied that no substantial wrong or miscarriage of justice has occurred.

APPEAL from the conviction entered on February 16, 1996, the dangerous offender designation, and from the sentence imposed on October 2, 1996, by Borkovich J. of the Ontario Court (General Division).

Cases referred to R. v. Johnson, [2003] 2 S.C.R. 357, [2003] S.C.J. No. 45, 230 D.L.R. (4th) 296, 308 N.R. 333, [2004] 2 W.W.R. 393, 177 C.C.C. (3d) 97, 2003 SCC 46, 19 B.C.L.R. (4th) 243, 13 C.R. (6th) 205; R. v. Russell, 2000 SCC 55, [2000] 2 S.C.R. 731, [2000] S.C.J. No. 56, 87 Alta. L.R. (3d) 1, 192 D.L.R. (4th) 585, 261 N.R. 339, [2001] 2 W.W.R. 407, 149 C.C.C. (3d) 66, 38 C.R. (5th) 1 (sub nom. R. v. Russell (M.E.)), apld R. v. M. (B.) (1998), 1998 13326 (ON CA), 42 O.R. (3d) 1, [1998] O.J. No. 4359, 130 C.C.C. (3d) 353, 21 C.R. (5th) 324 (C.A.); [page573] R. v. Lifchus, 1997 319 (SCC), [1997] 3 S.C.R. 320, [1997] S.C.J. No. 77, 118 Man. R. (2d) 218, 150 D.L.R. (4th) 733, 216 N.R. 215, 149 W.A.C. 218, [1997] 10 W.W.R. 570, 118 C.C.C. (3d) 1, 9 C.R. (5th) 1, consd R. v. McDonald, 2000 16871 (ON CA), [2000] O.J. No. 3315, 148 C.C.C. (3d) 273 (C.A.), distd Other cases referred to R. v. B. (F.F.), 1993 167 (SCC), [1993] 1 S.C.R. 697, [1993] S.C.J. No. 21, 120 N.S.R. (2d) 1, 148 N.R. 161, 332 A.P.R. 1, 79 C.C.C. (3d) 112, 18 C.R. (4th) 261; R. v. M. (R.), 1998 7184 (ON CA), [1998] O.J. No. 3922, 113 O.A.C. 40, 39 W.C.B. (2d) 510 (C.A.); R. v. Saddlemire, [2007] O.J. No. 193, 2007 ONCA 36, 219 O.A.C. 259; R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, [2000] S.C.J. No. 40, 148 Man. R. (2d) 161, 190 D.L.R. (4th) 591, 258 N.R. 250, 224 W.A.C. 161, [2000] 11 W.W.R. 1, 147 C.C.C. (3d) 449, 36 C.R. (5th) 1; R. v. Walker, 2000 16974 (ON CA), [2000] O.J. No. 4091, 137 O.A.C. 293, 48 W.C.B. (2d) 1 (C.A.) Statutes referred to Criminal Code, R.S.C. 1985, c. C-46, ss. 753 [as am.], 753.1 [as am.], 759(3) [as am.]

N.P.C., appellant appearing in person (C25692). Robert Goddard (C25692) and John Norris (C41266), for appellant. Alison Wheeler (C25692) and Leslie Paine (C41266), for respondent.

The judgment of the court was delivered by

[1] GILLESE J.A.: -- After a trial before a jury in February 1996, the appellant was convicted of five sexual offences against his step-daughters, A.S. and P.S. The convictions arose from the appellant's ongoing sexual abuse of the two complainants, A.S. and P.S., during a period of approximately three years when he was married to their mother. During this period, A.S. was between 12 and 16 years of age and P.S. was between nine and 12 years of age. [^1]

[2] After the verdicts were entered, the Crown brought an application to have the appellant designated a dangerous offender. Following two expert assessments and a hearing, the application was granted and the appellant was sentenced to an indeterminate period of imprisonment. [page574]

[3] The appellant appeals both his convictions and his designation as a dangerous offender.

[4] For the reasons that follow, I would dismiss both appeals.

Facts

[5] The appellant is the complainants' former step-father. He married their mother, Ms. C., in 1984, when A.S. was 13 years old and P.S. was nine years old. Ms. C. and the appellant had a violent relationship. They both drank heavily, and the appellant physically abused Ms. C. on numerous occasions. They divorced in 1988.

[6] A.S. testified that the appellant sexually assaulted her numerous times, beginning several months before he married her mother. The incidents occurred at night, when the appellant would go into A.S.'s bedroom after he had been drinking heavily or taking drugs. On several occasions, the appellant held a knife to her throat while assaulting her. He told A.S. not to tell anyone about the assaults, and threatened to kill her or her mother if she did. The assaults began with touching but progressed to intercourse on several occasions.

[7] P.S. testified that the appellant repeatedly sexually assaulted her. She described several incidents similar to those described by A.S. -- the appellant would go into her bedroom at night, assault her, and threaten to kill her or her mother if she told anyone. These incidents consisted of touching and cunnilingus.

[8] P.S. also testified about an incident that occurred in the living room of the house. The appellant and Ms. C. were at a neighbour's house and took turns returning home to check on the children. P.S. testified that the appellant came home and entered her bedroom. The next thing she remembered was being on the couch, with the appellant lying on top of her. He pulled down her underwear and pyjama bottoms, and told her to be quiet. At this point, Ms. C. returned home. Ms. C. confirmed during her testimony that she had returned to the house because the appellant had been gone longer than expected. She saw the appellant lying on top of P.S., pulling up her pyjama bottoms. Ms. C. confronted the appellant about this incident but he denied that he had done anything wrong. He told her that he was trying to put P.S. to bed.

[9] Although A.S. and P.S. shared a bedroom during much of the period when the assaults occurred, neither recalled hearing or seeing the other being assaulted. A.S. testified that she only became aware that the appellant had sexually assaulted P.S. when they discussed it years later. [page575]

[10] The complainants did not report the appellant's assaults on them until 1994, after he was charged with a then-recent sexual assault against his 14-year-old nephew.

[11] After a trial with a jury, the appellant was convicted of sexually assaulting A.S.; having sexual intercourse with A.S. when she was under 14 years of age; having illicit sexual intercourse with A.S., who was his step-daughter; sexually assaulting P.S.; and, while sexually assaulting P.S., threatening to cause bodily harm to her mother.

Issues

[12] The appellant argues that the charge to the jury was flawed in that the trial judge erred by:

(1) failing to instruct the jury properly in relation to bad character evidence and to not use each complainant's evidence as proof of the other's allegations;

(2) inadequately instructing the jury on reasonable doubt; and

(3) failing to instruct the jury on the proper use of witnesses' prior statements.

The Conviction Appeal

Bad character

[13] The appellant submits that the fairness of his trial was compromised by the jury's improper exposure to evidence of his bad character. There are two prongs to this argument. First, the appellant submits that because the charges relating to A.S. and P.S. were tried together, the jury may have used each complainant's testimony as support for the other's. In this regard, the appellant points out that the Crown invited the jury to "consider the similarities" of the appellant's alleged acts and words according to the complainants. As no similar fact evidence ruling was made, the jury should have been instructed that this line of reasoning was prohibited. A related criticism of the Crown closing to the jury flowed from the fact that Crown counsel said"There was no suggestion that they [the complainants] even ever talked about their experiences."

[14] Second, the appellant argues that the jury may have made improper use of the complainants' testimony that he physically abused Ms. C. He says that the trial judge erred by failing to instruct the jury not to use this bad character evidence to infer that he was the type of person who was likely to commit the offences with which he was charged. [page576]

[15] The Crown contends that the charge to the jury, while not perfect, contained sufficient limiting instructions to ensure that the jury would consider the evidence on each count separately. Further, the appellant's assaults on Ms. C. were not sufficiently similar to the offences with which he was charged to lead the jury to convict on the basis that he was the sort of person who was likely to have committed the offences.

[16] As I explain, in my view, neither of the errors identified by the appellant compromised the fairness of his trial or resulted in a miscarriage of justice.

[17] In R. v. M. (B.) (1998), 42 O.R. (3d) 1, [1988] O.J. No. 4359, 130 C.C.C. (3d) 353 (C.A.), this court summarized the instruction that should be given where there are multiple counts and complainants and the evidence on one count is not admissible as similar fact evidence on the other counts. First, jurors are to be instructed "to consider each charge separately and not to use evidence relating to one count as evidence on any of the other counts". Second, the jury must be instructed that evidence of other counts should not be used as proof that the accused "is the sort of person who would commit the offence or offences charged" (paras. 41-42).

[18] The trial judge's instructions to the jury in this case satisfied the first requirement set out in M. (B.). He stated:

First of all, I tell you as a matter of law you must deal separately with respect to the evidence as it relates to each of the complainants, that is, you cannot find that since the accused sexually assaulted one of the complainants he must therefore have sexually assaulted the other. You must look at the evidence with respect to each of the complainants to determine whether you are satisfied beyond a reasonable doubt that the accused committed the offences with respect to each complainant.

The instruction largely resembled that which the trial judge had proposed in a pre-charge discussion and to which neither counsel objected. This instruction makes it clear that the jury was required to consider the question of whether the appellant assaulted A.S. separately from the question of whether he assaulted P.S. Although no specific reference was made to Crown counsel's misstatement asking the jury to consider similarities in the evidence of the two complainants, the jury was told by both counsel in their closings and by the judge that they were to take the law from the judge. As the Crown concedes, it would have been preferable had the trial judge instructed the jury to consider the evidence relating to each count separately, rather than the evidence relating to each complainant. However, although different verdicts were available in law on the individual counts relating to the complainants, this was largely theoretical as both sides [page577] approached the case on an "all or nothing basis". Thus, the instruction adequately conveyed the first requirement in M. (B.).

[19] In relation to the second requirement in M.(B.), although the trial judge did not use the suggested language, his charge adequately warned the jury against engaging in propensity reasoning. It is well established that the trial judge must direct the jury that it cannot enter a conviction on the basis that the accused is the "sort of person" who would commit the type of offence charged: R. v. B. (F.F.), [1993] 1 S.C.R. 697, [1993] S.C.J. No. 21, 79 C.C.C. (3d) 112, at pp. 733-35 S.C.R., pp. 138-39 C.C.C. It would have been preferable for the trial judge to use the language of B. (F.F.). However, the trial judge's instructions explained to the jury that it could convict the appellant only on the basis of the evidence relating to each offence charged. The instruction that "you cannot find that since the accused sexually assaulted one of the complainants he must therefore have sexually assaulted the other" would have left the jury with the understanding that guilt on one count (or with respect to one complainant) could not be used to infer guilt on another. Limiting instructions given in respect of bad character evidence are intended to prevent the jury from inferring guilt from prior bad conduct. The trial judge's instructions served that purpose.

[20] This case is unlike R. v. McDonald, [2000] O.J. No. 3315, 148 C.C.C. (3d) 273 (C.A.), in which this court held that the failure to instruct the jury not to engage in propensity reasoning on the basis of similar fact evidence was fatal. In McDonald, in addition to failing to instruct on propensity reasoning, the judge told the jury that it could consider the similar fact evidence in determining whether the Crown had proved its case. Hence, the need for a careful propensity warning was greatly intensified. Here, the jury was not instructed that it could use each complainant's evidence in assessing whether the Crown had proved the charges in relation to the other complainant. On the contrary, the jury was instructed to keep the complainants' evidence separate, except on background details.

[21] The appellant also submits that the charge was confusing because, after stating that the evidence with respect to each complainant had to be considered separately, the trial judge stated that each complainant's evidence that she did not hear or see the assaults on the other could be relevant to credibility. In my view, this instruction was neither confusing nor incorrect. It had been discussed with counsel in the pre- charge conference without objection and, each complainant was allegedly present during many of the assaults on the other. Thus, A.S.'s testimony about what she perceived (or did not perceive) during the assaults on [page578] P.S. was direct evidence on the counts concerning P.S., and vice versa. The impugned instruction was of assistance to the defence and consistent with defence counsel's jury address. It served to remind the jury that neither complainant had observed the other being assaulted despite being in the room at the time of the assaults and supported the defence theory that the complainants' evidence was not credible or reliable.

[22] In relation to the comment that the Crown made in closing that the complainants had not talked about their experiences, it was conceded that there was some evidence that the complainants had discussed their allegations. However, the jury would have been aware of that matter and had been instructed that it was their job to determine the facts on the evidence that they accepted.

[23] Finally, while it would have been preferable had the trial judge instructed the jury that they were not to conclude from the evidence of spousal abuse and drunkenness that the appellant was the sort of person likely to commit the offences charged, in my view it is not fatal. The way in which the evidence of spousal abuse was adduced was not inflammatory. It was no more specific than that the appellant often beat Ms. C. It is unlikely that the jury would infer that because the appellant physically abused his wife, he also sexually assaulted his step-daughters -- a completely different type of wrongdoing. This court held in R. v. M. (R.), [1998] O.J. No. 3922, 113 O.A.C. 40 (C.A.), at para. 9, that where the accused husband and wife had been convicted of sexual assault and assault against their children, evidence that they abused drugs and alcohol was not sufficiently related to lead the jury to infer their guilt. Similar reasoning applies in this case.

Reasonable doubt

[24] The second ground of appeal arises from the trial judge's charge to the jury on reasonable doubt.

[25] The trial judge's opening instructed the jury not to be "swayed by indignation, prejudice or sympathy". He told the jury to weigh the evidence calmly and dispassionately. In his charge, the trial judge instructed the jury on the presumption of innocence and reasonable doubt as follows:

I tell you as a matter of law that the accused is presumed to be innocent and that the presumption of innocence remains unless and until the Crown has proven every element of the offences beyond a reasonable doubt. This is not a charity given to this accused but an important legal principle that applies in all criminal cases.

Proof beyond a reasonable doubt has been achieved when you feel sure of the guilt of the accused, that is, when the evidence convinces the mind and satisfies the conscience. Let me repeat that for you. Proof beyond a reasonable [page579] doubt has been achieved when you feel sure of the guilt of the accused, when the evidence convinces the mind and satisfies the conscience. Henceforth, when I speak of proof, it is this degree of proof of which I speak.

Now, there is no obligation on the accused to prove anything. In order to obtain a conviction, the Crown must prove its case beyond a reasonable doubt.

Your function is to give a true verdict on the evidence. You will consider the case without any bias or prejudice, in a dispassionate way.

If you find the Crown has proved its case, you will convict the accused. On the other hand, if you feel the Crown has not proved its case, or you have a reasonable doubt about it, you will acquit the accused.

[26] The appellant submits that this instruction failed to meet the standard set out in R. v. Lifchus, [1997] 3 S.C.R. 320, [1997] S.C.J. No. 77, 118 C.C.C. (3d) 1. Specifically, he argues that the trial judge's direction that the jury should "feel sure of the guilt of the accused" is contrary to Cory J.'s assertion in Lifchus that jurors should not be told to convict if they are "sure" that the accused is guilty before being given a proper definition of reasonable doubt. The appellant submits the trial judge also erred by omitting several of the descriptions of reasonable doubt listed in Lifchus, including that it must be based upon reason, must be logically connected to the evidence or absence thereof, must not be understood as proof to an absolute certainty, and must be more than proof that the accused is probably guilty.

[27] The Crown notes that, as the trial judge did not have the benefit of Lifchus at the time of trial, his instructions on reasonable doubt need only be in substantial compliance with it. On that basis, she submits that the charge to the jury was adequate. She concedes that the instruction did not contain an instruction that probable guilt was not sufficient to ground a conviction, but says that this error would not have led the jury to misapprehend the standard of proof.

[28] In R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, [2000] S.C.J. No. 40, 147 C.C.C. (3d) 449, at para. 23, the Supreme Court states that a jury charge must be "examined in its entirety to determine whether the jury properly understood the concept of proof beyond a reasonable doubt". Following Starr, in R. v. Russell, 2000 SCC 55, [2000] 2 S.C.R. 731, [2000] S.C.J. No. 56, the Supreme Court further clarified how appeal courts are to approach a pre-Lifchus charge on reasonable doubt. At para. 23 it states:

The appellate assessment of substantial compliance with the Lifchus principles in cases where the trial judge did not have the benefit of that decision, and may have used, in parts of the charge, language that will likely be discontinued in the future or omitted parts recommended in Lifchus, is not a mechanical task. Rather, it is a judgment call on whether deficiencies in the [page580] charge fall below the Lifchus standard such as to cause serious concern about the validity of the jury's verdict, and lead to the conclusion that the accused did not have a fair trial.

[29] In my view, when read as a whole, the instructions on reasonable doubt were adequate and met that test.

[30] In reaching this view, I begin by noting the ways in which the instruction is in compliance with Lifchus. The following summary is drawn, in part, from para. 44 of the Crown's factum. Lifchus says that the jury should be told that:

-- The standard of proof beyond a reasonable doubt is inextricably intertwined with that principle fundamental to all criminal trials, the presumption of innocence. The trial judge explained that the standard of proof beyond a reasonable doubt is linked to the presumption of innocence, which prevails in all criminal cases. Thus, the charge linked the two concepts adequately.

-- The burden of proof rests on the prosecution throughout the trial and never shifts to the accused. The jury was well- instructed on this as it was told that the presumption of innocence remained unless and until the Crown had proved every element of the offences beyond a reasonable doubt, and that the accused had no obligation to prove anything.

-- A reasonable doubt is not a doubt based on sympathy or prejudice. The jury was told to consider the case without bias or prejudice, in a dispassionate way. Furthermore, in his opening remarks, the trial judge told the jury not to be swayed by indignation, prejudice or sympathy, and to weigh the evidence calmly and dispassionately.

-- The jury verdict is to be based on reason and common sense. The jury was told that the Crown had only proved its case beyond a reasonable doubt when "the evidence convinces the mind and satisfies the conscience". Thus, while not fully compliant with this requirement, the trial judge did exclude an irrational conviction. While the language differs from that suggested in Lifchus, it conveys the principle that the standard of proof is connected to the evidence. Further, the trial judge's later direction to the jury to "give a true verdict on the evidence" would have reminded jurors of the importance of basing their verdict on the evidence.

-- A reasonable doubt is logically connected to the evidence or absence of evidence. The jury was told of the former and, [page581] although there was no absence of evidence instruction, this was not a case that might have turned on an absence of evidence.

-- More is required of proof than that the accused is probably guilty. The charge did not do this. However, given the trial judge's repeated instructions on proof beyond a reasonable doubt, there is no risk that the jury misunderstood the standard of proof. There was no suggestion that probable guilt was sufficient.

[31] Furthermore, Lifchus states that certain statements ought not to be made:

-- Describing the term "reasonable doubt" as an ordinary expression with no special meaning in the criminal law context. The charge did not do this.

-- Inviting jurors to apply to their task the same standard of proof that they apply to important, or even the most important, decisions of their lives. The charge did not do this.

-- Equating proof beyond a reasonable doubt with proof to "a moral certainty". The charge did not do this.

-- The word "doubt" is not to be qualified by adjectives such as "serious""substantial" or "haunting". The charge did not do this.

[32] Although it would have been preferable had the trial judge not directed the jury that they should be "sure" of the appellant's guilt without first providing them with a proper definition of the meaning of the words "beyond a reasonable doubt", this is an isolated mistake which, when considered in the light of the repeated references to reasonable doubt and the absence of other misleading terms, does not lead to any serious concern that the charge was unfair or that the jury misapprehended the burden of proof.

[33] Consequently, when the charge is considered as a whole and bearing in mind that the trial judge did not have the benefit of Lifchus, I am satisfied that the jury was under no misapprehension as to the correct standard of proof to apply. My view is reinforced by the fact that counsel did not object to the instructions on this matter.

Prior statements

[34] Finally, the appellant argues that the trial judge failed to instruct the jury on the proper use of witnesses' prior statements. [page582] He submits that two instructions were required. First, the trial judge should have directed the jury that A.S.'s testimony at the preliminary inquiry that the appellant sexually assaulted her every other night could not be used for proof of its contents, but could weigh against her credibility because of its inconsistency with her trial testimony that he assaulted her approximately ten times. Second, the appellant contends that the trial judge should have directed the jury that the appellant's assertion to Ms. C. that he had not sexually assaulted P.S. during the incident in the living room could be used as proof of its contents. Because Ms. C. testified about this statement while being examined by the Crown, it is admissible as an out of court exculpatory statement capable of raising a reasonable doubt as to the appellant's guilt.

[35] The Crown concedes that the trial judge should have provided the instructions outlined by the appellant, but argues that, given the limited relevance of the prior statements, this non-direction did not affect the fairness of the trial.

[36] I accept the Crown's submission that the trial judge's non-direction on witnesses' prior statements did not result in an unfair trial. The trial judge instructed the jury that when assessing the credibility of a witness, they could consider whether the "witness' testimony was consistent within itself and whether it was consistent with the other evidence". This instruction would have made it clear to the jury that any inconsistencies in the evidence might be significant. Although explicit reference should have been made to the proper use of inconsistencies in A.S.'s preliminary inquiry testimony, the instruction provided was sufficient to draw the jury's attention to its potential importance.

[37] The trial judge's failure to instruct the jury not to use A.S.'s testimony at the preliminary inquiry as proof of its contents was also not significant in the context of this trial. In his jury address, defence counsel did argue that the complainants were "aggressive and evasive with their answers", and outlined several examples of this, but not the inconsistency that the appellant now says that the trial judge should have brought to the jury's attention. Since A.S. herself explained that her preliminary inquiry testimony should be understood as meaning only that the appellant came in to the room almost every night, not that he assaulted her every night, there was little danger that the jury would make substantive use of the earlier statement.

[38] Similarly, the trial judge's failure to direct the jury that they could use the appellant's statement to Ms. C. that he had not sexually assaulted P.S. as proof of its contents would not have caused unfairness in the trial process. It was apparent that the appellant [page583] denied, and had always denied, that the sexual assaults took place. As no instruction was given not to use the statement for the truth of its content, the jury may well have considered it as consistent with his position. Furthermore, any instruction on the use of the statement could have had a prejudicial effect by highlighting the fact that the accused did not testify at the trial.

[39] Finally, it is important to note that defence counsel made no objection to the charge either after it was delivered or before at the pre-charge conference. Although the charge was not perfect by today's standards, the fact that counsel was content at the time is a strong indication that there was no perception of unfairness or misunderstanding on the part of the jury.

Sentence Appeal

[40] After the appellant was found guilty of five sexual offences against his two step-daughters, which were committed between 1984 and 1987, the Crown began proceedings to have the appellant declared a dangerous offender. The application was granted and the appellant was sentenced to indeterminate detention in a penitentiary.

[41] The appellant appeals from the dangerous offender designation imposed by the trial judge. He concedes that the statutory criteria in common between the dangerous offender and long-term offender designations are met, on the record, but argues that he is entitled to a new sentencing hearing to consider the long-term offender provisions, which came into force after the original hearing.

[42] The Crown acknowledges that the appellant is entitled to seek the benefit of the long-term offender provisions but submits that, in the circumstances, a new sentencing hearing ought not to be ordered as there is no reasonable possibility that the risk to the community posed by the appellant can be controlled.

[43] The appellant is entitled to the benefit of the long-term offender provisions, as his case was "in the system" pending appeal when those provisions came into force: see R. v. Johnson, 2003 SCC 46, [2003] 2 S.C.R. 357, [2003] S.C.J. No. 45, 177 C.C.C. (3d) 97, at paras. 41-45. [^2] In order for an offender to be eligible for the long-term offender designation, there must be a "reasonable possibility of eventual control of the risk in the community" (s. 753.1(c)). Given the law at the time of sentencing, this question was not addressed at that time. As I explain below, however, on this record and in the absence of any fresh evidence to support a [page584] claim that the appellant might be a suitable candidate for a long-term offender designation, there is no such reasonable possibility and, consequently, I would not order a new sentencing hearing.

[44] The appellant has a truly horrendous pattern of violence and sexual violence. He has consistently denied responsibility for his sexual violence, shown a total lack of remorse for his offences, refused to acknowledge that he has a problem and refused all treatment, education and rehabilitative options. His adult criminal record spans a 30-year period; it contains 24 prior convictions beginning in 1967 when he was 16 years of age. The appellant has a record for sexual assault causing bodily harm, sexual assault and for repeatedly failing to comply with court orders. The sexual assault causing bodily harm was perpetrated against the appellant's 62-year-old neighbour; the sexual assault was perpetrated against his 14- year-old nephew. He was convicted of at least nine criminal offences while subject to probation orders.

[45] Two psychiatrists prepared court-ordered dangerous offender assessments: Dr. Hucker, the Crown nominated expert, and Dr. Bartolucci, the defence nominated expert. The appellant refused to participate in either assessment. Both Drs. Hucker and Bartolucci concluded that the appellant posed a high risk to re-offend violently or sexually. Neither was of the view that the risk he presented could be controlled in the community.

[46] Dr. Hucker opined in his written report and viva voce testimony that the appellant's speech pattern revealed a formal thought disorder consistent with a "major mental disorder" such as schizophrenia or a brain disease with similar symptoms. He listed several factors which showed that the appellant was likely to reoffend violently or sexually, including his early history of maladjustment; his history of property, violent and sexual offences; his previous failures on conditional releases; and his history of alcohol abuse. He also noted that the appellant's score on the General Statistical Information of Recidivism index used by the National Parole Board indicated that he presented a 67 per cent risk of committing an indictable offence within three years of release. Although Dr. Hucker acknowledged that the appellant's possible schizophrenia and previous marriage decreased his recidivism risk, he concluded that the "negative factors outweigh the positive". Further, he stated that the appellant's "lack of insight and resolute refusal to cooperate with any kind of treatment substantially increases his risk". In his opinion, it would not be possible to successfully treat the appellant, in part because the appellant continued to refuse treatment. He concluded that there were "ample grounds" on which to declare the appellant a dangerous offender. [page585]

[47] Dr. Bartolucci, the defence expert, agreed with the substance of Dr. Hucker's opinion but was even more pessimistic about the appellant's recidivism risk. In addition to the factors identified by Dr. Hucker, Dr. Bartolucci identified the appellant's history of heterosexual and homosexual sexual assaults against individuals of various ages and circumstances, as well as his "obvious lack of judgment leading to overt and aggressive sexual acts independently of social context" as factors indicating that he was likely to reoffend. Dr. Bartolucci did not agree that the positive factors identified by Dr. Hucker reduced the appellant's recidivism risk. He was unconvinced that the appellant's marriage was based on a "true heterosexual interest in an adult", saying that it was more likely motivated by the appellant's sexual interest in Ms. C.'s children. He also stated that the possible schizophrenic disorder would only be a positive factor if the appellant accepted treatment. His written report concluded that the appellant "would certainly be noncompliant with any outpatient plan" and that "repeated violent sexual offences . . . [were] a certainty".

[48] In addition to the expert testimony, the appellant's former spouse, children (not the complainants) and other relatives testified regarding acts of violence and sexual assaults that were perpetrated by the appellant. None of these incidents led to criminal convictions. However, the trial judge accepted the witnesses' evidence and stated that he was "satisfied beyond a reasonable doubt [the appellant] committed the acts testified to".

[49] The trial judge also found that, given the absence of any evidence indicating that the appellant might be amenable to psychiatric treatment, it was "highly unlikely" that he would ever consent to such therapy.

[50] The trial judge concluded that the Crown had proven the dangerous offender requirements beyond a reasonable doubt and he declared the appellant to be a dangerous offender. At the time of the dangerous offender hearing, the trial judge had the discretion under s. 753 of the Code to sentence the appellant to either a determinate or an indeterminate period of imprisonment. [^3] He explained his decision to impose an indeterminate sentence as follows:

On the evidence before me I am certain that if you were released you would continue to reoffend. Your steadfast refusal to undergo any form of medical [page586] investigation, your continued denial of the offences for which you were found guilty by the jury at your trial, your lack of remorse, your total indifference and lack of emotion with respect to the pain, injury and anguish you have caused those who have come within your grasp, be they family, friend or stranger, all these factors convince me beyond a reasonable doubt that you constitute a continuing danger to the public.

[51] The appellant has put forward no fresh evidence to suggest that a long-term offender designation was appropriate either at the time of sentence or today. This despite the fact that more than ten years have passed since he was so designated, during which time there will have undoubtedly been treatment and other rehabilitative programmes offered to him.

[52] There is nothing in the record to support the contention that the appellant may eventually be controlled in the community nor is there any fresh evidence to support such a contention. The uncontradicted evidence of both expert witnesses was that the risk posed to the public by the appellant could not be controlled.

[53] As this court has previously noted, an indeterminate sentence is not a sentence in perpetuity. [^4] If the appellant becomes amenable to treatment and his condition manageable in the community, he will be eligible to be considered for release on parole. Unless that occurs, the dangerous offender designation is appropriate and required for the protection of the public.

[54] Therefore, I would apply s. 759(3)(b) of the Code, which allows this court to dismiss an appeal against the finding that the offender is a dangerous offender if it is satisfied that no substantial wrong or miscarriage of justice has occurred. Although the Supreme Court of Canada stated in Johnson that the failure to consider the availability of the long-term offender provisions is an error that can be cured by s. 753(3)(b) "only in the rarest of circumstances" (para. 50), in my view, this is such a case. This court previously held in R. v. Saddlemire, [2007] O.J. No. 193, 2007 ONCA 36, at paras. 84-85 that the curative proviso is available in cases where the long-term offender provisions were not considered if the evidence establishes that "the result would necessarily have been the same" had the error not occurred. This case meets that standard.

Disposition

[55] Accordingly, I would dismiss the conviction and sentence appeals.

Appeal dismissed.

[page587]

Notes

[^1]: The indictment covers the period from January 1, 1984 to December 31, 1987 for A.S., but only the period from March 17, 1984 to March 17, 1987 for P.S.

[^2]: The long-term offender provisions were enacted in 1997 after the appellant was sentenced but before his appeal was heard.

[^3]: Prior to the 1997 amendments introducing the long-term offender designation and modifying the dangerous offender provisions (S.C. 1997, c. 17, s. 4), s. 753 provided that upon finding an offender to be a dangerous offender, the court "may" impose a sentence of an indeterminate period of imprisonment. Currently, s. 753(4) provides that in these circumstances, the court "shall" impose such a sentence.

[^4]: See, for example, R. v. Walker, [2000] O.J. No. 4091, 137 O.A.C. 293 (C.A.).