R. v. Smith, 2010 ONCA 612
DATE: 20100923
DOCKET: C46659
COURT OF APPEAL FOR ONTARIO
O’Connor A.C.J.O., Simmons and Juriansz JJ.A.
BETWEEN:
Her Majesty the Queen
Respondent
and
Terry Smith
Appellant
Brian H. Greenspan and Jill D. Makepeace, for the appellant
John Patton, for the respondent
Heard: September 7, 2010
On appeal from the conviction entered by Justice G.S. Lapkin of the Ontario Court of Justice on December 16, 2003, and from the dangerous offender designation imposed on August 9, 2006.
Simmons J.A.:
[1] Following a brief trial in the Ontario Court of Justice, the appellant was convicted of sexually assaulting a fellow inmate at a correctional facility. As a result of this conviction, the Crown initiated a dangerous offender application. On August 9, 2006, Lapkin J. declared the appellant a dangerous offender and imposed an indeterminate sentence.
[2] The appellant appeals against both conviction and sentence.
[3] For the reasons that follow, I would dismiss the appeal.
The Conviction Appeal
i) Background
[4] The sexual assault charge arose out of an incident that occurred at the Toronto West Detention Centre. After a fight allegedly involving the appellant and three other inmates, the appellant was placed in a cell with the complainant and a third inmate.
[5] During the early evening of January 22, 2003, the appellant, the complainant and the third inmate were involved in a conversation in their cell. The third inmate was on the top bunk of the bunk bed in the cell and the complainant was lying on his stomach on the bottom bunk covered by a sheet and at least one blanket.
[6] According to the complainant, immediately prior to the incident, the appellant was sitting on a bench in the cell, talking and massaging his genitals. The complainant got tired of that, turned away and tried to go sleep. A short time later, the complainant heard the appellant say, “nice ass”. The appellant then climbed on top of the complainant, placed his hands on the complainant’s shoulders and began thrusting his genitals against the complainant’s buttocks.
[7] The complainant estimated that the appellant remained on his back for about 10 seconds. During this period, the appellant thrust his genitals against the complainant’s buttocks about 8-12 times and made a comment along the lines of “oh, yeah, baby”. The complainant said he reported the incident to correctional officials the next morning.
[8] The complainant testified that he was shocked by the incident. He said that he and the appellant had previously shared a cell for 12 days at another institution, and during that period he made it clear to the appellant that he was not interested in a sexual relationship.
[9] In cross-examination, the complainant described the appellant as “a very intimidating and forceful man” who repeatedly asked for sex when they were cell mates at the other institution. When asked how they ended up as cell mates if he was so afraid of the appellant, the complainant said the appellant “always honoured” when he said no. When asked why he did not protest when the appellant was placed in his cell, the complainant said he had no control, as the guards simply walked up and placed the appellant in his cell.
[10] The police officer who took a statement from the complainant at the Detention Centre in the early evening on the day after the incident was also called as a Crown witness. The officer confirmed that the third occupant of the cell declined to provide a statement. He also confirmed that he had no note of the complainant telling him that the appellant was playing with himself prior to the incident.
[11] The appellant testified at trial and admitted straddling the complainant, shaking him by the shoulders and saying, “who’s your daddy now, who’s your daddy now”. However, he claimed that the incident occurred in the context of explaining to the third inmate how he and the complainant knew each other. The appellant said he and the complainant were bantering about who was “the daddy” and who was “the kid” when the two were cell mates previously. The appellant denied “humping” the complainant or making the comments ascribed to him by the complainant. He said that the three men continued joking after the incident and also claimed that the complainant got his food for him the next day.
[12] In cross-examination, the appellant acknowledged that he is a considerably larger man than the respondent, saying “I’ve probably got 50, 60 pounds on him”.
ii) The trial judge’s reasons
[13] The trial judge delivered oral reasons for finding the appellant guilty of sexual assault without calling on the Crown for submissions.
[14] After observing that the appellant’s version of events would support a conviction for assault, the trial judge described the appellant’s evidence as “argumentative ... aggressively delivered and in many ways internally and externally inconsistent.”
[15] By way of example, the trial judge referred to the appellant’s evidence that he was not interested in homosexual sex and the fact that the appellant proceeded to volunteer detailed evidence about how homosexual sex could be arranged in a prison setting. As a second example, the trial judge noted that the appellant claimed in examination in-chief that prisoners can move cells at will but then acknowledged in cross-examination that a more restrictive process applies.
[16] In addition, the trial judge noted that the appellant’s evidence about the complainant laughing after the incident was inconsistent with the objective facts, namely, that the appellant complained the next morning immediately after being released from his cell.
[17] Further, the trial judge said the appellant’s many convictions for offences of dishonesty supported his decision to reject the appellant’s evidence. The trial judge also noted the appellant’s admission that he is at least 50-60 pounds heavier than the complainant.
[18] Finally, in addressing the issue of whether the assault was sexual in nature, the trial judge accepted the complainant’s evidence concerning what happened during the incident as well as his evidence about the appellant’s prior sexual advances.
iii) Grounds of Appeal
[19] The appellant raises two main issues on his conviction appeal:
the trial judge applied a higher standard of scrutiny to the appellant’s evidence than that which he applied to the complainant’s evidence; and
ineffective assistance of counsel.
[20] Concerning the first issue, the appellant argues that the trial judge erred by rejecting the appellant’s evidence based on matters that he described as inconsistencies that were not in fact true inconsistencies, while at the same time ignoring important inconsistencies in the complainant’s evidence – such as the fact that the complainant failed to mention that the appellant was massaging his genitals in his statement to the police and the complainant’s claim that he feared the appellant as compared to his evidence that the appellant was a “gentleman” who “always honoured when [the complainant] said no”.
[21] Concerning the second issue, the appellant contends that trial counsel’s failure to pursue various avenues of cross-examination and argument, and failure to properly prepare the appellant to testify at trial, constitutes ineffective assistance and may well have contributed to the trial judge’s flawed analysis.
[22] For example, trial counsel failed to cross-examine the complainant about the fact that he did not tell the police officer the appellant was massaging his genitals; nor did he cross-examine the complainant about the fact that the disclosure package contained a statement from a correctional officer indicating the complainant asked to speak to the correctional officer on the day after the incident at about 6:32 p.m.
[23] Further, defence counsel at trial was relatively inexperienced. He was asked to fill in for appellant’s counsel on short notice after appellant’s counsel was forced to continue a trial in another jurisdiction and when the appellant insisted on proceeding. Although defence counsel at trial had previously acted as duty counsel, he had never conducted a trial – and he acknowledged he would have asked for an adjournment, despite the appellant’s instructions, had he been aware of the prospect of a dangerous offender application.
iv) Discussion
1. Standard of Scrutiny
[24] I would not accept the appellant’s submission that the trial judge erred by applying a higher standard of scrutiny to the appellant’s evidence than that which he applied to the complainant’s evidence.
[25] As I have said, the trial judge described the appellant’s evidence as “argumentative ... aggressively delivered and in many ways internally and externally inconsistent.” Although the examples the trial judge gave of inconsistencies in the appellant’s evidence may not be extreme, I reject the appellant’s claim that they do not reflect inconsistency.
[26] Reading the trial judge’s reasons fairly, the inconsistency in the appellant’s evidence about homosexual sex arises from the fact that the appellant volunteered evidence about obtaining homosexual sex in prison after denying that he was interested in homosexual sex. It was the voluntary nature of these comments that led the trial judge to identify them as inconsistent.
[27] Although the inconsistency in the appellant’s evidence concerning a prisoner’s ability to change cells may appear small when the appellant’s evidence is considered in isolation, it takes on greater significance when considered in the context of the complainant’s evidence that he had no say when the appellant was moved into his cell.
[28] Further, in my view, the fact that the trial judge may have overstated the evidence somewhat when he said the objective facts demonstrate the complainant reported the incident immediately upon being released from the cells the next morning does not affect the validity of his conclusion that the objective facts demonstrate that the complainant reported the incident at an early opportunity, a factor that supported the complainant’s evidence that he perceived the incident as a sexual assault.
[29] As for the trial judge’s failure to allude to matters that the appellant claims should have affected the trial judge’s assessment of the complainant’s evidence, I observe that the trial judge had the distinct advantage of observing the manner in which both the appellant and the complainant testified. It was for him to determine the significance to be attached to the various portions of their testimony.
[30] Based on my review of the trial judge’s reasons, he was satisfied the complainant’s evidence about the appellant’s conduct had the ring of truth when considered in the context of the whole of the evidence, including the manner in which the appellant testified; and he rejected the appellant’s evidence for the reasons that he explained. I see no basis for interfering with the trial judge’s assessment.
2. Ineffective Assistance
[31] In R. v. G.D.B., 2000 SCC 22, [2000] 1 S.C.R. 520, at para. 26, the Supreme Court explained that “[f]or an appeal [based on ineffective assistance] to succeed, it must be established, first, that counsel's acts or omissions constituted incompetence and second, that a miscarriage of justice resulted.”
[32] Moreover, at para. 29 of G.D.B., the Supreme Court cautioned against deciding the first branch of the test in cases where prejudice is not established: “[if] it is apparent that no prejudice has occurred, it will usually be undesirable for appellate courts to consider the performance component of the analysis.”
[33] Even assuming defence counsel at trial provided ineffective assistance to the appellant, I am not satisfied the appellant has satisfied the prejudice component of the test.
[34] On my review of the appellant’s evidence, he confirmed, through his own testimony, that he committed the essential elements of a sexual assault. The appellant acknowledged that he jumped on the complainant’s back without prior warning and that, while on the complainant’s back, he said the words “whose your daddy now, whose your daddy now.”
[35] Particularly in the context of a prison setting, the size differential between the two men and the fact of a prompt complaint by the complainant, I see no air of reality to the appellant’s assertion that the conduct that he admitted amounted to anything other than a sexual assault.
[36] The appellant provided written instructions to defence counsel at trial confirming his desire to testify despite the risks involved. Appellant’s counsel on appeal acknowledges that was a “client decision” and does not assert incompetence in that regard. Moreover, no issue was raised on appeal concerning any obligation to obtain disclosure of the Crown’s position on sentence.
[37] I would not give effect to this ground of appeal. Based on the foregoing reasons, I would dismiss the conviction appeal.
THE SENTENCE APPEAL
i) The Trial Judge’s Reasons
[38] Early in his reasons, the trial judge noted that the appellant has a high risk of re-offending violently and sexually and that the live issue at the hearing was whether the appellant should be designated a dangerous offender or a long-term offender. In particular, in closing submissions on sentence, the defence acknowledged that a determinate sentence alone would not be appropriate. Taking account of pre-sentence custody of approximately 25 months attributable to the predicate offence, the defence requested a further three month sentence together with a long-term offender designation.
[39] After, reviewing the facts of the predicate offence, the trial judge turned to the appellant’s extensive adult criminal record. He began by reviewing the appellant’s six convictions for acts of violence, some of which involved sexual violence.
[40] In 1991, the appellant was convicted of a robbery involving the use of violence to obtain an expensive sports bike. Later in 1991, he was convicted of uttering threats to a taxi driver: “Drive or we’re fucking dead.”
[41] In 1992, the appellant was convicted of sexual assault with a weapon. After being refused sex by a young woman he met in a bar, the appellant held a knife to her throat and attempted to smother her with a pillow.
[42] In February 1994, the appellant pleaded guilty to sexually assaulting a young woman he had offered a ride. After driving her to a vacant lot, he reclined her seat and said, “if you move I will kill you.” He mounted her and held her by the throat but the woman was able to escape when passers-by arrived.
[43] In 1996, the appellant pleaded guilty to a sexual assault that occurred just 18 hours after the offence for which he was convicted in 1994. The appellant raped a 16-year-old girl who he encountered as she was walking to her aunt’s home. He came upon her from behind, placed his hand over her mouth and threatened to kill her if she screamed. After placing her on the ground, the appellant asked, “do you like having sex or dying?” During sentencing for this offence, the appellant was warned, both by his counsel and by the presiding judge, that he could face dangerous offender proceedings in the future if he continued engaging in such conduct.
[44] In 1996, the appellant pleaded guilty to assault causing bodily harm. This incident involved kicking a fellow inmate in a detention centre.
[45] The trial judge also reviewed the appellant’s six convictions for breach of recognizance and attempting to obstruct justice and referred to the appellant’s four convictions for offences of dishonesty as well as his four convictions for drug related offences.
[46] After reviewing these convictions, the trial judge noted that in the fifteen years preceding the dangerous offender hearing, the appellant had been in the community for only about 18 months.
[47] Turning to the statutory criteria, the trial judge concluded that the appellant satisfied the test for being declared a dangerous offender under s. 753(1)(b) of the Criminal Code. In particular, the trial judge found that evidence in all of the sexual assaults, including the predicate offence, demonstrated a failure on the part of the appellant to control his sexual impulses. Further, the expert evidence at the hearing demonstrated that the appellant was at a high risk to re-offend.
[48] Dr. Klassen, for the Crown, diagnosed the appellant as having a serious personality disorder with one or more substance abuse disorders and potentially one or more paraphilias. Dr. Federoff, for the defence described the appellant as suffering from poly-substance abuse, alcohol abuse and anti-social personality disorder. SORAG and STATIC-99 testing demonstrated the appellant had among the highest risks of re-offence for violent and sexually violent offences.
[49] The trial judge said:
I am satisfied that he poses a clear and present danger to others, and a likelihood of causing injury, pain or other evil to them by future failure to control his sexual impulses. In this case, repetitive past behaviour may be considered a reasonable predictor of future conduct, especially in light of his test results.
[50] The trial judge went on to hold that the appellant also satisifed the statutory criteria for being declared a dangerous offender under ss. 753(1)(a)(i) and 753(1)(a)(ii) of the Criminal Code and that he constitutes a threat to the life, safety or physical or mental well-being of others.
[51] Turning to the issue of whether the risk to the community could be reduced to an acceptable level by less intrusive means, the trial judge concluded that it could not. He noted that, having regard to the appellant’s record, even in the absence of the dangerous offender application, it would have been appropriate to impose a sentence in excess of two years’ imprisonment for the predicate offence. Moreover, based on his previous conclusions, the trial judge was satisfied there was a substantial risk the appellant would re-offend.
[52] Although Drs. Klassen and Federoff had opined as to the possibility of controlling the risk if certain hypothetical factors were to occur (such as age burn-out, following treatment programs, abandoning alcohol and drug use and abandoning a criminal and hedonistic lifestyle), the trial judge was not satisfied that there was any “reality” to the doctors’ expressions of hope that the appellant would take the necessary positive steps in the future. Concerning age burn-out, the trial judge said [p. 41]:
Mr. Smith is 35 and the 12 year maximum period of control under the long-term offender designation would expire long before the upper range of any potential burn-out factor.
[53] In the end, the trial judge was not satisfied that there was a reasonable possibility of eventual control of the appellant’s risk in the community, and the trial judge declined to make a long-term offender designation.
ii) Grounds of Appeal
[54] The main issue on the sentence appeal relates to the trial judge’s statement that there is a “12 year maximum period of control under the long-term offender designation”.
[55] The appellant contends that this statement amounts to an error in law because the maximum period of control under a long term offender designation for the appellant is 20 years, being the maximum available determinate sentence for the predicate offence (10 years) plus a 10-year supervision order.
[56] According to the appellant, where the alternative is a dangerous offender designation, the general principles of sentencing should not constrain a sentencing judge from imposing the maximum determinate sentence for the predicate offence, even where that sentence would be disproportionate.
[57] The appellant also argues that the trial judge erred in concluding that the appellant met the criteria for being designated a dangerous offender under s. 753(1)(b) of the Criminal Code, and claims that this finding was central to the trial’s judge assessment of whether the appellant’s risk could eventually be controlled in the community.
[58] Finally, the appellant submits that the trial judge erred in failing to find that there is a reasonable possibility that that the appellant’s risk can eventually be controlled in the community.
iii) Discussion
[59] I would not accept these submissions.
[60] Concerning the appellant’s first submission, the Supreme Court of Canada has made it clear that when making a long-term offender designation, imposing a determinate sentence is a distinct process to which “the normative principles and objectives of sentencing” apply and that it is not to be confused with the process of fixing a period of supervision.
[61] In R. v. L.M., 2008 SCC 31, [2008] 2 S.C.R. 163, the accused was designated a long-term offender. He was sentenced to 10 years imprisonment for sexually assaulting his daughter and to a further five years imprisonment for child pornography offences relating to his daughter and, in addition, a ten year supervision order was imposed. The Quebec Court of Appeal varied the determinate sentences to six years and three years respectively. On appeal to the Supreme Court of Canada, the sentence imposed by the trial judge was restored.
[62] Lebel J., writing for the majority, rejected an argument that the principle of proportionality should apply to the combined period of incarceration and community supervision, holding that the decisions as to an appropriate sentence and as to the length of the supervision order are conceptually distinct:
[47] Furthermore, the sentencing judge will not calculate the length of each of these steps in the same way. A number of factors are considered in determining the length of a prison sentence, including, to name but a few, the gravity of the offence, the degree of responsibility of the offender, the parity principle and the possibility of imposing a less restrictive sanction. In contrast, the length of a period of community supervision is based on an offender’s criminal past and on the likelihood that he or she will reoffend, which are addressed in the assessment report.
[48] Finally, in practice, the effect of a sentence is to deprive the offender of his or her liberty, whereas community supervision is aimed at reintegrating the offender into the community under the supervision of the Correctional Service of Canada. Furthermore, the period of community supervision does not begin until after the sentence (imprisonment) has been served. From this perspective, the preferred approach for a judge considering a period of community supervision is very different from the one that must be taken in determining the length of a sentence of imprisonment. [Emphasis added.]
[63] Further, under the heading “Relationship to the Determination of the Appropriate Sentence”, Lebel J. wrote:
[49] Nevertheless, the judge determining the length of an offender’s sentence of imprisonment will also receive the application to find the offender to be a long‑term offender before passing sentence. As a result, the judge will quite likely tend to consider both decisions at the same time. He or she may accordingly find it difficult to observe the conceptual distinction between the two decisions. Despite these practical difficulties, it is important to remain faithful to the distinction between sentencing and the imposition of a supervision period. A judge who confuses these two processes risks straying from the normative principles and the objectives of sentencing. A judge who does so would also neglect the specific objective of the procedure for finding an offender to be a long‑term offender, which requires the application of different principles. Parliament intended that the judge determine the appropriate sentence first. After doing so, the judge is to ask, in light of Parliament’s objective of protecting the public, whether a period of supervision is warranted. The period of community supervision cannot therefore be equated with a new period of deprivation of liberty consecutive to the one resulting from the sentence. [Emphasis added.]
[64] However, the appellant argues that, where the only alternative is a dangerous offender designation, it is unnecessary to apply the general principles of sentencing when imposing a determinate sentence on a long-term offender for the predicate offence.
[65] I reject the appellant’s argument. In my opinion, had Parliament intended that the general principles of sentencing should not apply in such circumstances, it would have said so.
[66] In the result, I see no error in the trial judge’s statement that there is a “12 year maximum period of control under the long-term offender designation”. On my reading of his reasons, the trial judge had determined that two years imprisonment was the maximum determinate sentence he could impose for the predicate offence in addition to pre-sentence custody. Taking account of the 25 months of pre-sentence custody attributable to the predicate offence, in my view, a determinate sentence exceeding the two years imprisonment proposed by the trial judge would offend the principle of proportionality.
[67] Further, I am not persuaded that the trial judge erred in finding that the appellant met the dangerous offender criteria under s. 753(1)(b) of the Criminal Code or that he erred in declining to designate the appellant a long-term offender.
[68] The trial judge gave careful reasons rooted in the evidence for finding that the appellant satisfied the criteria under s. 753(1)(b) and for holding that a long-term offender designation is not appropriate. I see no basis on which to interfere with his conclusions.
[69] Accordingly, I would dismiss the sentence appeal.
Signed: “Janet Simmons J.A.”
“I agree Dennis O’Connor A.C.J.O.”
“I agree R. G. Juriansz J.A.”
RELEASED: “DO’C” September 23, 2010