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. 486.5(1), (2), (3), (4), (5), (6), (7), (8) or (9) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:
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a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of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or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of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.
(3) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice if it is not the purpose of the disclosure to make the information known in the community.
(4) An applicant for an order shall
(a) apply in writing to the presiding judge or justice or, if the judge or justice has not been determined, to a judge of a superior court of criminal jurisdiction in the judicial district where the proceedings will take place; and
(b) provide notice of the application to the prosecutor, the accused and any other person affected by the order that the judge or justice specifies.
(5) An applicant for an order shall set out the grounds on which the applicant relies to establish that the order is necessary for the proper administration of justice.
(6) The judge or justice may hold a hearing to determine whether an order should be made, and the hearing may be in private.
(7) In determining whether to make an order, the judge or justice shall consider
(a) the right to a fair and public hearing;
(b) whether there is a real and substantial risk that the victim, witness or justice system participant would suffer significant harm if their identity were disclosed;
(c) whether the victim, witness or justice system participant needs the order for their security or to protect them from intimidation or retaliation;
(d) society’s interest in encouraging the reporting of offences and the participation of victims, witnesses and justice system participants in the criminal justice process;
(e) whether effective alternatives are available to protect the identity of the victim, witness or justice system participant;
(f) the salutary and deleterious effects of the proposed order;
(g) the impact of the proposed order on the freedom of expression of those affected by it; and
(h) any other factor that the judge or justice considers relevant.
(8) An order may be subject to any conditions that the judge or justice thinks fit.
(9) Unless the judge or justice refuses to make an order, no person shall publish in any document or broadcast or transmit in any way
(a) the contents of an application;
(b) any evidence taken, information given or submissions made at a hearing under subsection (6); or
(c) any other information that could identify the person to whom the application relates as a victim, witness or justice system participant in the proceedings. 2005, c. 32, s. 15.
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. 205, c. 32, s. 15.
CITATION: R. v. R.G., 2009 ONCA 796
DATE: 20091112
DOCKET: C43100
COURT OF APPEAL FOR ONTARIO
Doherty, Simmons and Lang JJ.A.
BETWEEN:
Her Majesty the Queen
Respondent
and
R. G.
Applicant/Appellant
Nicholas A. Xynnis, for the appellant
Robert Gattrell, for the respondent
Heard and released orally: November 4, 2009
On appeal from the conviction entered by Justice Maryka Omatsu of the Ontario Court of Justice dated January 14, 2000 and from the sentence imposed May 14, 2004.
ENDORSEMENT
[1] The appellant was charged with four offences as a result of an incident on May 3, 1999. He pleaded guilty to assault, but not guilty to the other charges. Following a trial, he was acquitted of breaking and entering but convicted of sexual assault and unlawful confinement. After lengthy sentencing proceedings, the trial judge declared the appellant to be a dangerous offender and sentenced him to an indeterminate sentence.
[2] The appellant appeals against the convictions for sexual assault and unlawful confinement and also appeals against the dangerous offender designation.
I. The Conviction Appeal
[3] The complainant on all four charges was the appellant's then common law partner T. D. According to T.D., she was involved in an abusive relationship with the appellant for three or four years and rented the apartment where the incident occurred as part of a plan to break up with him.
[4] However, the appellant insisted on moving with her and she agreed to meet him at the apartment. The couple went out drinking; on their return to the apartment the appellant began beating T.D. with a mop handle, continued his assault by punching and kicking her, and eventually forced her to undress and perform oral sex on him. Later, he dragged her to the bedroom, banging her head repeatedly on the doorway to the bedroom as he did so.
[5] At some point, T.D. was able to break away. She grabbed the appellant's shirt and a pair of pants and fled the apartment without putting on underwear or shoes. Police were called to a nearby coffee shop. She told the police that her boyfriend had raped her and was still at her apartment. Later, she gave a video statement in which she said she went to her apartment alone and encountered the appellant unexpectedly.
[6] Several witnesses, including the appellant, testified at trial for the defence. Although the appellant acknowledged punching the complainant in the face and chest, he denied other aspects of the assault and denied any form of forced sexual contact or unlawful confinement. Significantly, on the appellant's version of events, the complainant remained clothed throughout the incident.
[7] In acquitting the appellant on the breaking and entering charge, the trial judge referred to evidence indicating that the telephone and hydro accounts for the new apartment were in the appellant's name, as well as evidence from some defence witnesses suggesting the pair was moving as a couple. The trial judge also accepted the appellant's evidence that he believed he was moving in with the complainant. In the end, the trial judge said she had a doubt concerning whether the Crown had proven the elements of the breaking and entering charge and accordingly acquitted the appellant of that offence.
[8] However, despite the complainant's acknowledged lie to the police about letting the appellant into her apartment, the trial judge accepted the complainant's evidence concerning the sexual assault and unlawful confinement charges. Concerning the latter charge, the trial judge observed that the complainant's evidence about her apparel and hasty flight was corroborated by the police.
[9] In oral argument the appellant abandoned his ground of appeal asserting inconsistent verdicts but pursued several other grounds of appeal against conviction. He submitted that:
• the trial judge's reasons were conclusory;
• the trial judge applied a different standard in assessing the defence evidence as compared to the Crown's evidence;
• the trial judge failed to specifically address important defence evidence indicating that the complainant had recanted;
• the trial judge failed to properly caution herself about the dangers in the complainant's evidence; and
• the trial judge reversed the burden of proof.
[10] We do not accept these submissions. Although the trial judge's reasons for conviction are terse, read as a whole, they demonstrate that the trial judge was alive to the issues at trial, including the frailties of the complainant's evidence; that she gave the appellant the benefit of the doubt where he was entitled to it; and that she made no errors in applying the burden of proof. Further, we see no indication of a differing standard being applied to the defence evidence as compared to the Crown’s evidence.
[11] The evidence the trial judge referred to concerning the complainant's apparel and demeanour when she arrived at the coffee shop provided powerful support for various aspects of the complainant's version of the events. Moreover, the portion of this evidence indicating the complainant was wearing the appellant's shirt when she fled significantly undermined the appellant's claims concerning how the events unfolded.
[12] We do not agree that the complainant fell into the category of witness that would require an explicit Vetrovec type caution. In any event, the real question in a judge alone trial is whether the trial judge adequately addressed the problems presented by the witness’s evidence. This trial judge did; she referred to the complainant’s acknowledged lie to the police and accepted her explanation. We are not at all certain that the defence evidence suggesting the complainant had recanted was inconsistent with the complainant’s trial evidence. Even if it was, the corroborative evidence relied on by the trial judge justified her acceptance of the complainant's evidence.
[13] Viewing the trial judge's reasons as a whole, we see no error in her approach to the evidence, nor any basis to interfere with the conclusions that she reached. The conviction appeal is dismissed.
II. The Sentence Appeal
[14] Turning to the sentence appeal, the appellant takes no issue with the trial judge's conclusion that he meets the criteria for a dangerous offender designation under both s. 753(1)(a) and (b) of the Criminal Code. Rather, he contends that the trial judge erred by improperly imposing on him a burden of demonstrating that there is a reasonable possibility of eventually controlling in the community the substantial risk that he will reoffend. We do not accept this submission.
[15] On appeal, there is no real dispute that the appellant has a long history of abusing domestic partners and that without treatment there is a real risk that he will do so again. In addition to T.D.’s evidence concerning this and other incidents, there was evidence of the appellant's pattern of verbal and physical abuse towards two other domestic partners. Such abuse included repeated physical abuse, death threats, incidents of forced sex, and on one occasion, placing a gun to a partner's head.
[16] The psychiatric evidence for both the Crown and the defence confirmed that the appellant is a psychopath, that he meets the criteria for antisocial personality disorder and that he is a significant risk for violent reoffence.
[17] The only real point of disagreement in the expert evidence related to the possibility of treatment. While Dr. Woodside for the Crown testified that psychopaths are untreatable and that this is especially the case for psychopaths with anti-social personality disorder, Dr. Federoff indicated that that opinion is premature because it is premised on the fact that traditional treatment programs not specifically designed for psychopaths do not work. In Dr. Federoff’s view, that does not mean that some other program will not work, at least to some extent. In addition, he indicated there are treatments for some of the appellant's other problems.
[18] Dr. Federoff recommended a multi-faceted treatment plan, including drug and counselling components, and concluded, premised on that plan, that there was a possibility of eventual control in the community. In his view, it would not be possible to determine whether the appellant is treatable until he is offered treatment.
[19] Taking account of both the practical unenforceability of treatment orders and the appellant's negative history and attitude to treatment programs, the trial judge found that the Crown had proven beyond a reasonable doubt that there is not a reasonable possibility of controlling the risk that the appellant presents in the community. The trial judge referred to the appellant’s failure to participate in any programs during five years in custody, his failure to comply with court ordered treatment programs in the past and his apparent lack of motivation to change.
[20] Rather than imposing a burden on the defence, the trial judge concluded it was up to the Crown to prove beyond a reasonable doubt that the appellant does not qualify for a long-term offender designation under s. 753.1(1)(c) of the Criminal Code. This conclusion was in error. This court has determined that there is no such burden on the Crown and in fact no onus on either party under s. 753.1(1)(c): see R. v. F.E.D. (2007), 2007 ONCA 246, 222 C.C.C. (3d) 373. However, the trial judge’s error in this respect inured to the appellant’s benefit.
[21] We see no basis on which to interfere with the trial judge’s conclusion that the appellant does not qualify for a long-term offender designation. The sentence appeal is therefore dismissed.
“Doherty J.A.”
“Janet Simmons J.A.”
“S.E. Lang J.A.”