WARNING

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), (3) or (4) or 486.6(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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 279.01, 279.02, 279.03, 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.

(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b).

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. 2005, c. 32, s. 15.

CITATION: R. v. R.B., 2011 ONCA 328

DATE: 20110427

DOCKET: C45738

COURT OF APPEAL FOR ONTARIO

Simmons, Rouleau and Karakatsanis JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

R. B.

Appellant

Dirk Derstine and Daniel Stein, for the appellant

Dena Bonnet and Lisa Joyal, for the respondent

Heard: March 8, 2011

On appeal from the conviction entered by Justice Robert M. Thompson of the Superior Court of Justice, dated December 10, 2002 and from the sentence imposed by Justice Thompson, dated June 30, 2006.

By the Court:

[1] The appellant appeals his conviction and sentence. Following a jury trial, the appellant was convicted of two counts of historical sexual assault and sentenced to an indeterminate period of incarceration as a dangerous offender.

Conviction Appeal

[2] In oral argument, the appellant focussed on the sentence appeal. Counsel relied upon the factum with respect to the appeal against conviction. We dismiss that appeal for the following reasons.

[3] The trial judge did not err in admitting the facts read in on the appellant’s guilty pleas in relation to sexual offences against five other boys as similar fact evidence. The evidence was properly admissible to prove that the sexual assaults occurred. Although his reasons for concluding that the probative value of this evidence outweighed its prejudicial effect were limited, his ruling was not undermined by any legal error or misapprehension of material evidence and was not unreasonable.

[4] The trial judge also did not err in admitting reply evidence by the Crown. The appellant raised the defence of alibi for the first time during his testimony. Given the late notice and expansive nature of the alibi defence, the Crown had no option but to call rebuttal evidence and did not improperly split its case by leading evidence that directly supported the allegations. Although one of the witnesses in reply made an utterance which corroborated a complainant’s evidence, the Crown could not have anticipated that she would do so. Neither that statement nor the testimony of the other civilian reply witness prejudiced the appellant.

[5] We also reject the submission that the detective’s evidence in re-examination on reply that in his experience an accused who presented an alibi usually did so at the time of the investigation was an improper attack on the appellant’s credibility. It followed questions by defence counsel during the cross-examination about the reasonableness of the delay in disclosing the alibi and the right to silence. It was a brief, general statement to respond to the issue raised by the defence and was not oath attacking evidence in these circumstances. In any event, defence counsel at trial did not object to this evidence and did not request any form of limiting instructions.

[6] We do not give effect to the grounds of appeal against conviction.

Sentence appeal

[7] The appellant does not dispute that he met the criteria for a dangerous offender designation. Rather, he submits that the sentencing judge erred by failing to make a long- term offender (LTO) order in place of the dangerous offender designation.

[8] The appellant submits that the sentencing judge erred in his approach to issues involving anti-androgen medication and the role of the National Parole Board, and by ignoring important evidence relating to the reasonable possibility of the eventual control of the appellant’s risk in the community. He also seeks to admit fresh evidence regarding his suitability to take sex drive reducing medication.

[9] A LTO order is available only if there is a reasonable possibility that an offender’s risk can be addressed and eventually controlled in the community – supervised during the currency of the LTO supervision order and unsupervised at the completion of the order. The statutory scheme contemplates a dangerous offender designation, and not a long-term offender order, where a sentencing judge is not satisfied that this criterion has been met.

[10] As a 43-year-old acknowledged alcoholic and homosexual pedophile with a criminal record for nine sexual offences, the appellant poses at least a moderate to high risk to re-offend if released into the community. While the appellant has shown some willingness to deal with his problems and has responded well to treatment in a structured environment, he has re-offended each time he has been released from prison, even while on community supervision. The experts agreed that sex drive reducing medication, taken by a willing and motivated patient, as part of a treatment plan, could reduce the risk of re-offending.

[11] We do not agree that the trial judge’s reasoning with respect to the appellant’s potential for treatment with sex drive reducing medication was “tainted with legal and factual error” for the following reasons.

[12] The sentencing judge rightly understood that the parole board could order that a LTO take medication as prescribed by his qualified medical practitioner, but that a psychiatrist could not administer medication if consent was withdrawn either capriciously or reasonably, based upon potential side effects. The sentencing judge noted that a condition requiring an offender take medication as prescribed was not the same as a condition that would ensure that an offender could be released only if he was, in fact, taking the medication. The sentencing judge found that without the medical component of any treatment and release plan, the appellant was bound to re-offend. There was ample evidence to support such a finding.

[13] The sentencing judge did not materially misapprehend the process or the ability of the parole board to deal with any breach of a LTO condition. It may well be possible to fashion a condition to ensure that the appellant could be released only if taking the medication as initially recommended by a psychiatrist. However, the sentencing judge recognized that there are many factors which independently make the successful enforcement of a condition requiring that the appellant continue to take medication problematic. The sentencing judge found that he lacked reasonable assurance that the medical component of the controls would be implemented and enforced. Further, the appellant would not be found in breach of such a condition under s. 753.3(1) of the Criminal Code if he had a reasonable excuse for refusing to take the prescribed medication.

[14] In these circumstances, the sentencing judge did not err by focussing on whether the appellant would consent to take the medication. The evidence of the appellant’s attitude towards treatment was a factor that was highly relevant to the assessment of risk. Given the circumstances of this case, where the risk is created by a life-long condition, and controlling the risk is premised to a significant extent, if not entirely, upon the appellant’s willingness and capacity to take the medication, both during the currency of and potentially following the expiry of any LTO supervision order, the judge was appropriately concerned with whether the evidence specific to this offender demonstrated a sufficient motivation, commitment, and capacity to take the medication on an ongoing basis.

[15] The sentencing judge did not ignore evidence of the appellant’s motivation for change. The appellant had responded well to programs while incarcerated and had expressed a willingness to take the medication to his defence expert. Nonetheless, the appellant did not testify and there was limited evidence regarding the appellant’s willingness and capacity to take the medication.

[16] In the end, the sentencing judge found that the evidence that the appellant could be treated with sex drive reducing medication amounted merely to hope and speculation that his risk to children could be controlled if he were released back into the community. Reading the reasons as a whole, it is clear that the sentencing judge understood and applied the correct test of whether there was a reasonable possibility of eventual control in the community of the appellant’s risk to re-offend. He made no error in principle and his findings were supported by the evidence.

[17] Although the fresh evidence provides further evidence of the appellant’s physiological suitability to start the medication and of his taking of test doses, it does not go far enough to demonstrate his suitability and his genuine motivation to do so, particularly on a longer term basis.

[18] Despite the additional evidence related to the side-effects of the medication, the evidence is clear that both the side-effects and patient tolerance of the side-effects are highly variable.

[19] Further, the appellant did not provide an affidavit as part of the fresh evidence application, nor, other than the test doses, has he begun actually taking the medication.

[20] As we have said, the appellant’s risk is created by a life-long condition and controlling that risk is premised almost entirely upon his willingness and capacity to take the medication on a long-term basis. In the circumstances, in our view, the fresh evidence simply does not go far enough to demonstrate the appellant’s motivation, commitment, and capacity to take the medication on an ongoing basis.

[21] Accordingly, we not satisfied that the fresh evidence could reasonably have affected the outcome of the dangerous offender application.

[22] As a result, we conclude that the sentencing judge did not err in declaring the appellant to be a dangerous offender or in finding that he did not meet the criteria for a long-term offender designation. The appeal from conviction and sentence is therefore dismissed.

RELEASED: April 27, 2011 “JS” “Janet Simmons J.A.” “Paul Rouleau J.A.” “Karakatsanis J.A.”