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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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. Hogg, 2011 ONCA 840
DATE: 20111230
DOCKET: C50544
COURT OF APPEAL FOR ONTARIO
O’Connor A.C.J.O., Feldman and LaForme JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Derrick Anthony Hogg
Appellant
Apple Newton-Smith, for the appellant
Howard Leibovich, for the respondent
Heard: June 2, 2011
On appeal from the conviction entered by Justice David S. Crane of the Superior Court of Justice dated January 10, 2008 and the sentence imposed on January 29, 2009, with reasons reported at [2009] O.J. No. 397 (S.C.).
Feldman J.A.:
INTRODUCTION
[1] On New Year’s Eve, 2006, the appellant and his partner visited the complainants to celebrate together. However, the appellant ultimately attacked the male complainant both with a beer bottle and with his fist in the face, had intercourse with the female complainant, and attacked her with the telephone. He was convicted of a number of offences including two counts of assault with a weapon and one count of assault, but was acquitted of sexual assault.
[2] The trial judge then found the appellant to be a dangerous offender and sentenced him to an indeterminate sentence. The appellant appeals both his conviction and sentence. He says that the reasons of the trial judge for conviction are inadequate because the trial judge failed to address inconsistencies in the evidence of the complainants. He also says that the predicate offence cannot be said to form a sufficient pattern with his previous convictions which were for forcible sexual assaults. For the reasons that follow, I would dismiss both appeals.
THE CONVICTION APPEAL
Facts of the Predicate Offence
[3] On the evening of December 31, 2006, the appellant and his girlfriend, S.P., visited S.P.’s friend K.M. and her common law partner[^1], R.F. After they drank and hung out for a while, the appellant and S.P. left in a cab to go to a bar. They returned a few hours later and began drinking together again, when the appellant made sexually explicit comments to K.M. This upset R.F. who told the appellant not to speak that way to his wife. The appellant’s response was to smash a full beer bottle over R.F.’s head. K.M. was very upset, but the appellant downplayed the event, took R.F. into the bathroom where he poured liquor over the cut to clean it, then took him to lie down in the bedroom.
[4] While R.F. was lying down in the bedroom, K.M. was crying, sitting on the couch in the living room. According to K.M., the appellant told her that R.F. was okay, then he had intercourse with her while S.P. held her hand back and her leg up. K.M. was not able to recall a lot about how this incident occurred including how her clothes came off. Her evidence was that she did not consent and said “no, no, no”. The appellant and S.P. testified that the intercourse was consensual.
[5] When R.F. heard his wife crying out, he came from the bedroom. K.M. testified that the appellant was penetrating her. R.F. does not see well; he testified that he saw the appellant on the ground, K.M. on the couch and S.P. on the side holding his wife.
[6] R.F. was very upset. He wanted the appellant and S.P. out. He made a disparaging remark about S.P. He asked the appellant how he could do this to which the appellant answered that he does what he wants. When R.F. told him that “no nigger’s going to come into my house and wreck my family,” the appellant punched him in the face, causing him to go backward hard against the wall. His nose was broken, his eye implant was loosened and his teeth went through his bottom lip.
[7] At that point, R.F. and K.M. wanted to call the police, but the appellant said no because he did not want to go back to jail. He backed R.F. up into the bedroom and convinced him to lie down. When he emerged about 20 minutes later, again his wife was saying no; she was on her knees on the floor with the appellant on the couch and S.P. on the other side. K.M. said they were trying to force her to perform oral sex on the appellant. When R.F. reached for the phone the appellant ripped it out of his hands. R.F. then ran to other apartments to try to get help, couldn’t, then returned to see K.M. pushing a chair toward the appellant while he was hitting her with the phone on the head, the ear and the shoulder. R.F. collapsed on the couch.
[8] S.P. told the appellant to leave. On the way out he told K.M. and R.F. that they were dead.
[9] K.M. had tried to call 911 when the appellant grabbed the phone from her and hung up. She was able to call 911 again and the tape and transcripts were part of the evidence at the trial. The following is the beginning of the 911 call:
MALE #1: ... you don’t hit me like this and then you’re gonna call ...
K.M.: Hello?
POLICE: Hi, Brantford Police.
K.M.: ...stop...stop.
POLICE: Hello?
DIAL TONE/RINGING
POLICE: I’m putting this 933 on......but it might be related to yours, but it’s coming from number 15.
MALE OFFICER: Well, that’s probably, I’m just calling her back...
POLICE: Oh I didn’t read yours. I just know what you have there and just saw the...
RINGING
POLICE: 911 first emergency.
K.M.: Hi, Anthony Hogg was at our house and he just punched my husband and pushed him, and slapped him, and then he, I tried to dial 911 and he hit me with the phone.
[10] A police officer, Officer Gage arrived at approximately 7:30 a.m. on January 1, 2007. K.M. was hysterical saying that “they’re going to kill us”. She did not mention any sexual assault at that time. The next day, the complainants called the same police officer over and K.M. told him that the appellant had sexually assaulted her. She said that she had been too scared and embarrassed to tell him in front of her husband and because he was a male officer.
[11] Both the appellant and S.P. testified. They described a consensual orgy among the four of them, but then R.F. got mad at K.M. and smashed a beer bottle over his own head. While he was lying down, the other three began the orgy again. R.F. got angry again and when he came at the appellant with a beer bottle, the appellant punched him in the face. R.F. then wanted to call the police but K.M. stopped him so he hit her on the head with the phone. However, K.M. started screaming at the appellant after he hit R.F. and the police had been called, and R.F. threatened to charge the appellant so the appellant took off.
The Trial Judge’s Reasons for Conviction
[12] The trial lasted four days. The trial judge delivered his reasons orally following submissions from counsel. He began by listing the eight issues raised by the defence: (1) the evidence of the complainants was fabricated; (2) the appellant’s punch was thrown in self-defence; (3) K.M. had made false sexual allegations in the past; (4) the sexual activity was consensual; (5) the onus of proof on the Crown beyond a reasonable doubt including the issue of credibility; (6) the application of W.D.; (7) K.M.’s evidence was inconsistent with her earlier statements; and (8) the complainants had a motive to lie to preserve their relationship.
[13] The trial judge made findings about what happened that night and the next morning. He found that the appellant was at the complainants’ apartment at the invitation of S.P.; that the complainants had no intention of partying with the appellant that night and called him and S.P. a cab before midnight; and that the appellant and S.P. arrived back later intoxicated and quarrelling. At some point, the appellant made sexually explicit remarks to K.M., R.F. objected and the appellant struck him on the head with an unopened beer bottle. The trial judge rejected the defence assertion that R.F. hit himself over the head with a beer bottle as incredulous and rejected as well the defence complaint that it was deprived of evidence because the broken bottle was swept up. In fact, the broken bottle was in the kitchen garbage.
[14] The trial judge found that the appellant had sexual intercourse with K.M., but was not satisfied that the Crown had proved beyond a reasonable doubt that there was no consent. He found K.M.’s evidence lacking in particulars with unexplained details such as how her lower garments were removed and the reason why she only complained the next day, and whether it was to protect her relationship with R.F., although he observed that through her therapy she had learned to block details from her mind. He concluded on the issue that he was making no positive finding of consent, only that lack of consent was not proved beyond a reasonable doubt.
[15] R.F. heard K.M. during the sexual encounter, came into the room, and had a confrontation with the appellant, whereupon the appellant intentionally assaulted him with a heavy blow to the face. The trial judge concluded that “the accused exercised a dominating presence over the other three occupants that night. He was, on the evidence before me, an egocentric and physically directing person. Indeed, R.F. admitted he was in fear of him.”
[16] He found that the appellant fabricated the evidence that R.F. came at him with a beer bottle and rejected the defence of self-defence. Furthermore, even had there been such an attempt, the appellant was in no danger of being harmed, given their positions and relative size.
[17] The trial judge found that the appellant struck K.M. with the phone several times to prevent her from calling 911. Even with his drinking, the appellant had a conscious and directing mind, he exercised a dominating presence over the other three occupants, he left the two complainants in an emotional and physical shambles, and in effect, devastated each of them.
Issue on the Conviction Appeal
[18] The appellant submits that the trial judge’s reasons for conviction did not address a number of inconsistencies in the evidence of the complainants and resulted in inconsistent verdicts that cannot be reconciled.
Analysis on Conviction Appeal
[19] The appellant’s complaint focuses on the evidence of Constable Gage who responded to the 911 call. He observed that K.M. had showered, that the floor was freshly mopped, that R.F. appeared intoxicated and there were no animals present. In contrast, the complainants said they did not shower or clean up before the police arrived, R.F. said he was not drunk and K.M. mentioned having a number of animals in her apartment. The appellant submits that since the trial judge rejected K.M.’s evidence on the sexual assault count, he was obliged to explain how he accepted her evidence on other issues when there were inconsistencies. Similarly with R.F.
[20] In my view, there is no merit in this submission. The reasons for judgment, delivered orally immediately following the trial were brief but perfectly adequate to deal with the issues that were before the trial judge. He articulated those issues and addressed each of them, including the credibility of each of the witnesses.
[21] The inconsistencies now emphasized by the appellant were neither blatant nor important aspects of the evidence. The complainants were unsure in cross-examination exactly when the showering and cleaning up occurred. There was no issue raised regarding the whereabouts of any animals. The trial judge was fully aware of the drinking that went on and made his own determination about R.F.’s condition. Finally, the trial judge was aware that K.M. was hysterical and no doubt took that into account in his assessment of her credibility generally and how it affected his determination on important matters such as the sexual assault, as opposed to less significant matters. Most important, there was corroboration for the fact that the appellant struck the complainants including the broken beer bottle, the injuries and the 911 call. Finally, the trial judge completely rejected the story told by the appellant and of S.P. as totally incredible.
[22] I would dismiss the appeal against conviction.
APPEAL AGAINST DANGEROUS OFFENDER DESIGNATION AND
INDETERMINATE SENTENCE
[23] The appellant submits that the trial judge’s conclusion that the predicate offence was the continuation of a “pattern of repetitive behaviour” in accordance with s. 753 (1) (a)(i) of the Criminal Code was unreasonable. The prior offences were all sexual assaults, while in the predicate offences, the appellant was acquitted of sexual assault. Furthermore, in order to support his conclusion, in his reasons for decision on sentence the trial judge made findings of fact with respect to the predicate offences that were inconsistent with his findings on conviction.
History of Prior Offences
[24] The appellant has a record consisting of 24 offences before his convictions on the predicate offences. They include sexual assaults, a weapon offence, driving offences, drug offences and failures to comply with recognizances. The trial Crown’s position, which the trial judge accepted, was that the pattern established by the appellant was violent temper in response to any opposition to his sexual desires and inability to control his violent impulses. This was manifested in his failure to use any restraint in his pursuit of sexual gratification, either by direct sexual assault, or in the predicate offences, by assaulting the woman’s husband in order to remove the barrier to having sex with the woman. He also completely dominated the complainants in their home. R.F. was in fear while K.M. was hysterical. His future dangerousness resulted from the fact that he continued to deny any responsibility for his offences or that his behaviour was aberrant.
[25] The trial judge referred to three prior convictions for sexual assault and violence as the offences which formed the basis for the pattern.
[26] The first was a sexual assault of a 13 year old girl in 1987, to which the appellant pled guilty in 1991. The girl was at a party at a friend’s apartment. She went to lie down in a bedroom around 2:00 a.m. She was awakened at about 5 a.m. by the appellant who had removed her jeans down to her knees and was penetrating her vagina with one of his fingers. He stopped as she woke up. They argued and she went home when she realized she was the only one left in the apartment. The appellant threatened to “get her” if she told anyone. At the dangerous offender hearing, the appellant said that the allegations were made up by the complainant’s father, and that he pled guilty because he thought the sentence would be a peace bond.
[27] In 1994, the appellant was a drug dealer. He and a friend picked up two young women, K.S., who was 17 years old, and E.R. They drank beer and smoked drugs together a couple of times, the appellant supplying the beer and drugs to the women free. The third time, the appellant suggested to K.S. alone that they go and smoke some drugs in his car. He then said she owed him something for the drugs implying that it was sex, which she refused. He then locked the doors of the car, held her down by the throat, tore her jeans and forced intercourse. When she was able to get out of the car, he pushed her around a bit before driving away. The victim contracted chlamydia, suffered bruising and became distrustful of men. At the trial the appellant took the position the sex was consensual, then on the dangerous offender hearing he denied having sex until his previous testimony was put to him.
[28] The appellant’s third victim was his then current partner, M.S., in 2001. They had been romantically involved off and on over a 12-year period, and had been dating for 1.5 years prior to the June assault. This occurred in her apartment. They began to fight because she had been subpoenaed to testify against the appellant’s brother and he didn’t want her to go. He first bent her fingers backward until she screamed then he put his hands on her throat and pressed causing her to black out momentarily.
[29] In October, she went to his house to pick up some videos to return. He threw her against the steps and hit her in the left cheek. She was able to calm him down. By November they were no longer involved, when they happened to see each other in a bar. The victim was with another woman. The appellant and M.S. argued throughout the evening. Around 2:30 a.m. the two women left and went to M.S.’s condo, where the appellant was waiting with the security guard. M.S. felt safe with her friend there with them and allowed the appellant to come up to the condo. When the friend left around 4:00 a.m., the appellant began to fight with M.S., and demanded that she take off her clothes, which she did out of fear. He then demanded oral sex, grabbed her by the back of the head and forced her head onto his penis. When she started to cry, he forced her onto her stomach and anally assaulted her. She couldn’t breathe, got away and tried to get to the phone or the door. He pinned her down and anally assaulted her again. She suffered excruciating pain and begged him to stop. He told her to “shut the f--- up and take it.” He then grabbed her by the head and tried to force his penis with her blood on it into her mouth, telling her he was going to humiliate her as she had done to him. Later he anally assaulted her again, then had vaginal intercourse and ejaculated. He lay beside her with his leg over her to hold her down. In the morning he made her get his car which had been towed. She was prepared to do anything to get rid of him. She suffered multiple tears to her rectum, bruises on her arms, legs and shoulder as well as psychological trauma.
The Trial Judge’s Reasons on the Issue of Pattern
[30] The trial judge approached his task by dealing with each issue required by s. 753(1)(a)(i) of the Code. I set out the section here for ease of reference:
- (1) On application made under this Part after an assessment report is filed under subsection 752.1(2), the court shall find the offender to be a dangerous offender if it is satisfied
(a) that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (a) of the definition of that expression in section 752 and the offender constitutes a threat to the life, safety or physical or mental well-being of other persons on the basis of evidence establishing
(i) a pattern of repetitive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a failure to restrain his or her behaviour and a likelihood of causing death or injury to other persons, or inflicting severe psychological damage on other persons, through failure in the future to restrain his or her behaviour …
[31] The first issue was to determine whether the predicate offences were “serious personal injury offences” as defined by section 752 of the Criminal Code. He concluded that they were (para. 8). This was conceded on the appeal.
[32] The second issue was whether there was evidence that the appellant constituted a threat to the life, safety or physical or mental well-being of other persons. I quote the reasons of the trial judge on this issue in full:
[10] The Crown must prove a pattern of repetitive behaviour by Mr. Hogg from his convictions including the predicate offences, showing a failure of Mr. Hogg to restrain his behaviour and a likelihood of causing death or injury to other persons, or inflicting severe psychological damage on other persons, through failure in the future to restrain his behaviour.
[11] I deal firstly with the first portion of this issue, namely whether there is a pattern of repetitive behaviour as above defined.
[12] Although Mr. Hogg has been convicted by my count of 30 criminal offences, the present Application issue looks to those offences that may be considered as comprising a certain pattern of repetitive behaviour showing a failure to restrain his behaviour. Volume 1 of the filed materials collects the conviction documents.
[13] I conclude that the Crown has successfully met this test on the evidence in this Application. References are to the 1987 offence of sexual assault on a 13 year old girl with the conviction registered in 1991; the 1994 sexual assault on K.S. which had a first conviction in 1999, an appeal and a new trial with a conviction again in 2001 of assault causing bodily harm, the conviction in 2004 of a sexual assault on M.S. in 2002 and the predicate convictions of January, 2008 upon two convictions of assault with a weapon on 1 January, 2007.
[14] The Crown has filed court transcripts and other records to establish the facts underlying the convictions under examination. A summary of some of those facts may be found in the ‘Crown Submissions on Dangerous Offender Application’, filed.
[15] In the predicate offences Mr. Hogg’s motive was the exploitation of his sexual gratification. He acted upon that motive with sudden and overwhelming force so as to crush all resistance. He devastated his victims, Mr. F. and Mr. F.’s partner, Ms. K.M. He inflicted serious physical harm on Mr. F. and serious and likely lasting emotional and psychological harm to each of Mr. F. and Ms. K.M. in the commission of the predicate offences. The offences occurred in a domestic setting in company with his sometimes common law partner, S.P.
[16] Notwithstanding that Mr. Hogg had just served the full term warrant on his previous offences and was at the time of the predicate offences bound by a section 810 good conduct order, he was unable to restrain his impulses and desires and committed these violent crimes.
[17] As to the 2004 offences, the Crown filed evidentiary materials (found at volume 1, tab 19) including the transcript of the reasons of judgment of Mr. Justice Caputo on the 26th of January, 2004, in the Superior Court, Toronto.
[18] Caputo J. is an experienced trial judge. Caputo J. outlined in great deal the evidence and the factual findings he made of dominating sexual violence by [the appellant] of a woman with whom he had been in a relationship. In the sentencing, the trial judge made reference to the victim impact statement of Ms. M.S. in which it is noted by the trial judge that the impact of the offences upon her has been all encompassing and has seriously and deeply affected every single aspect of her life.
[19] As to the 2001 convictions of sexual assault and forcible confinement of the victim, K.S., at the time when she was 17 years of age and living on the streets of Toronto.
[20] The ‘Written Submission of the Crown’, at page 17, summarizes the consequences of these offences upon the victim as follows:
The Victim Impact Statement completed some five years later disclosed that the offence continued to have a significant psychological impact on the Ms. K.S.… In her statement, the victim notes that she lives “with a fear from day to day that I will be hurt again, or that someone is after me or watching me”. She also indicates that, “in public events I sometimes think I see Anthony Hogg and I get terrified and leave the establishment right away.” She further states that, “I am terrified that Anthony Hogg will find me one day again and hurt me really bad, maybe even kill me”….
[21] There is the offence in 1987 when a 13 year old girl while sleeping was not a barrier to Mr. Hogg committing a sexual assault of her.
[22] I conclude that Mr. Hogg has shown repetitively a violent temper to any opposition to his sexual desires and an inability to control his impulses of violence.
[23] I find without doubt that the applicant has satisfied the requirement that Mr. Hogg on the basis of the evidence, has exhibited an established pattern of repetitive behaviour of which the predicate offence forms a part, that shows a failure to restrain his behaviour, pursuant to section 753(1)(a)(i).
[33] The trial judge’s conclusion on the pattern of repetitive behaviour issue is found in paragraphs 22-23 of his reasons. The pattern of repetitive behaviour identified by the trial judge, as demonstrated by the predicate offences as well as the three sets of offences just described above, is “repetitively a violent temper to any opposition to his sexual desires and an inability to control his impulses of violence.”
Analysis of the Law and Argument on the Dangerous Offender Appeal
[34] The court was provided with the written submissions of the trial Crown and defence counsel on the dangerous offender application. Unlike the position taken on the appeal, the trial defence counsel did not argue that the predicate offence could not form part of a pattern of repetitive behaviour. He conceded that the predicate offence qualified as a serious personal injury offence under subsection (a) or (b) of s. 752, and did not raise any challenge to the requirements of s 753(1)(a)(i). This would explain why the trial judge did not refer to the position of the defence on this issue.
[35] The argument that was made on behalf of the appellant was that the trial judge should nevertheless exercise his discretion not to declare the appellant a dangerous offender, referring to the case law that provides that the sentencing judge has such discretion “even when the statutory provisions necessary for such a finding have been met”, (see: R. v. Johnson, 2003 SCC 46, [2003] 2 S.C.R. 357) and instead impose a determinate sentence or a long-term offender designation.
[36] Ordinarily this court would not consider an argument that was not made at first instance or was conceded in the court below. However, in the case of a dangerous offender designation, the decision of the sentencing judge must be a reasonable one (see R. v. Currie, 1997 CanLII 347 (SCC), [1997] 2 S.C.R. 260 at para. 33) including the finding that the predicate and prior offences meet the criteria set out in s. 752 of the Code.
[37] A useful discussion of what is meant by the pattern of repetitive behaviour is found in the British Columbia Court of Appeal decision in R. v. Dow, 1999 BCCA 177, 134 C.C.C. (3d) 323. I quote from paras. 21, 24, 25 and 26:
[21] The elements of subpara.(i) of para.753(a) are: (1) that there be a pattern of repetitive behaviour revealed in the offences and that the pattern be present in the offence which gave rise to the dangerous offender proceeding; and (2) that the pattern of repetitive behaviour contained two essential elements: first, a failure to restrain the relevant repetitive behaviour and, second, a likelihood of causing death or injury through a failure to restrain that behaviour in the future.
[24] In short, the significance and the relevance of common elements of the pattern must be determined by whether they tend to show first, repetitive behaviour, second, that there has been a failure in each case to restrain the behaviour, and third, that there has been injury to other persons arising from that failure. If any of those three elements is missing, then there may be a pattern but it will not be a relevant pattern. But if all three are present then the essential elements of a relevant pattern are revealed.
[25] I add that it is the very essence of a pattern that there be a number of significant relevant similarities between each example of the pattern that is being considered, but that, at the same time, there may be differences between each example, some of them quite distinctive, so long as the differences leave the key significant relevant elements of the pattern in place. ...
[26] It follows from what I have said that I think that the sentencing judge erred in law when he said that it was a necessary part of the pattern in this case that the victim in every incident must have been "identified by Mr. Dow for the purposes of venting his rage against a person of the female gender". It is sufficient that all the victims were female and were violently assaulted in generally similar circumstances. The fact that in the most recent incident the victim was not sexually penetrated is not a distinction which destroys the pattern, just as the fact that Dow knew Ms. Vannatter before he raped her does not destroy the pattern which covers all the other incidents in which the person assaulted was unknown beforehand to Dow.
[38] Another explanation for the requirement of a repetitive pattern is discussed by Marshall J.A. in the Newfoundland Court of Appeal decision in R. v. Newman (1994), 1994 CanLII 9717 (NL CA), 115 Nfld. & P.E.I.R. 197 at para. 72: “[it] guards against visiting one of the most serious criminal sanctions upon someone who has essentially abandoned a past pattern of intensely serious violence on the basis of a relapse of relatively less grave proportions.” As Levine J.A. commented in R. v. Pike, 2010 BCCA 401, 260 C.C.C. (3d) 68, at para. 82, after quoting this observation by Marshall J.A.:
This explains why the pattern and predicate offence must be related. It would be inconsistent and unfair if the ultimate threat determination were to be made on the basis of a perceived threat unrelated to either the predicate offence or the pattern of behaviour it reveals as still persisting.
[39] In R. v. Jones, [1993] O.J. No. 1321 (C.A.), this court observed that “remarkable similarity” was required in R. v. Langevin (1984), 1984 CanLII 1914 (ON CA), 45 O.R. (2d) 705 (C.A.) where the pattern relied on consisted of only two offences, whereas in Jones, where there were four offences, fewer exact similarities were needed. In R. v. Neve, 1999 ABCA 206, 137 C.C.C. (3d) 97, the Alberta Court of Appeal stated on this issue: “the requirement for similarity in terms of kinds of offences is not crucial when the incidents of serious violence and aggression are more numerous.” (para. 113)
[40] To summarize, the pattern of repetitive behaviour that includes the predicate offence has to contain enough of the same elements of unrestrained dangerous conduct to be able to predict that the offender will likely offend in the same way in the future. This will ensure that the level of gravity of the behaviour is the same, so that the concern raised by Marshall J.A. – that the last straw could be a much more minor infraction – could not result in a dangerous offender designation. However, the offences need not be the same in every detail; that would unduly restrict the application of the section.
[41] Having in mind these criteria, in my view, the decision of the sentencing judge to view the pattern of the appellant’s behaviour as using violence to achieve his sexual desires with an inability to control or restrain his impulses was a reasonable one. That pattern includes both direct sexual assaults with violence against the woman as well as in the predicate offence, violence against a man who would otherwise not allow the appellant to have sex with his wife.
[42] Although the trial judge acquitted the appellant of sexual assault, he made it clear that it was because there were gaps in the Crown evidence, and not because he made a positive finding that there was consensual sex. He found that the complainants had no original intention to socialize with the appellant and S.P. The trial judge found that K.M. was upset the whole time and hysterical by the end. The judge also found that the appellant had forced his will on the other three and devastated the complainants. Importantly and essentially, the appellant used extreme and sudden violence on R.F. in order to be able to immediately have sex with his wife.
[43] Although the pattern differed in the detail of how the offences were carried out, the predicate and past offenses still represented a pattern of repetitive violent behaviour that made it likely that the appellant would continue to commit similar acts of violence in order to have sexual gratification in the future. I would not give effect to this ground of appeal.
[44] There is no inconsistency between the trial judge’s findings on the conviction and the sentencing. In both he made the point that the appellant dominated both complainants. However, because of the onus of proof, he was not able to convict the appellant of sexual assault, given the lack of detail in the evidence on that issue. The fact that the pattern relied on by the trial judge was violence to achieve a sexual objective but not sexual assault itself, demonstrates that the trial judge did not effectively find sexual assault on the sentencing.
CONCLUSION
[45] There was significant evidence on the hearing from correctional and parole officers who had read the appellant’s file and who had dealt with the appellant. They described violent offences in jail, as well as the appellant’s refusal to acknowledge any responsibility for his sexual attacks or need for any treatment programs to help him deal with his tendencies. There was also an assessment by a psychiatrist whose testing demonstrated a high risk to violently re-offend. One test that the appellant refused to take was the phallometric testing. This was consistent with the appellant’s refusal to acknowledge any possible deviance in his history of sexual attacks. The evidence all supported the trial judge’s decision to designate the appellant a dangerous offender and to impose an indeterminate sentence.
[46] I would therefore dismiss the appeal against sentence.
RELEASED:
“DEC 30 2011” “K. Feldman J.A.”
“KF” “I agree Dennis O’Connor A.C.J.O.”
“I agree H.S. LaForme J.A.”
[^1]: The complainants are referred to in the evidence as common law partner, husband and wife at different times.