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a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of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or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of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.
Court of Appeal for Ontario
Citation: R. v. Lewis, 2012 ONCA 78 Date: 2012-02-06 Docket: C52557
Before: Rosenberg, Juriansz and Rouleau JJ.A.
Between:
Her Majesty the Queen Respondent
and
Dwayne Lewis Appellant
Counsel: Catriona Verner, for the appellant Greg Skerkowski, for the respondent
Heard: February 1, 2012
On appeal from the sentence imposed on April 29, 2010 by Justice Helen MacLeod-Beliveau of the Superior Court of Justice.
Endorsement
[1] The appellant relies on three arguments on this appeal from the sentence finding him to be a dangerous offender and imposing an indeterminate sentence of imprisonment.
(1) Use of the Acquittal
[2] The sentencing judge recognized that the appellant had been acquitted of the March 1994 offence. However, she allowed the facts underlying the allegation to be admitted and reference was made to them in various expert and other reports. The circumstances of the alleged offence were ambiguous and it was unclear whether the alleged assault was sexually motivated. In our view, the inclusion of this material was inconsequential. Within five months of this incident, the appellant committed a much more serious and obviously sexually-motivated attack. He admitted to the facts of that offence and attacks on six other women over a two and one-half year period leading to prison sentences being imposed in 1999 and 2001. The 2001 sentence was 10 years. The reference to the alleged facts of the March 1994 incident could not have had any impact on the result.
(2) Application of the post-July 2008 amendments
[3] The sentencing judge applied the law that was in effect at the time the appellant committed the predicate offence. In July 2008, the Tackling Violent Crime Act came into effect. As the title of the Act might suggest, these amendments were intended to streamline the dangerous offender process and make proof of dangerous offender status easier, especially for an offender like this appellant who had two prior convictions for primary designated offences. The amendments also removed the discretion not to find a person a dangerous offender if the offender met the criteria set out in s. 753 of the Criminal Code. However, the amendments also gave the judge the discretion to impose a long term supervision order on a dangerous offender, instead of the indeterminate sentence. Under either scheme, the route to the long term supervision order is similar. Under the old regime a long-term offender order could be made if there was a reasonable possibility of eventual control of the risk in the community. The new regime speaks of a reasonable expectation that a lesser measure (i.e. a long term supervision order following a determinate sentence) will adequately protect the public against the commission by the offender of murder or a serious personal injury offence.
[4] In the appellant’s circumstances there is no meaningful practical distinction between the two regimes. The risk under either regime for this appellant is of committing a serious personal inquiry offence. Given the expert evidence the test of “reasonable expectation” and “reasonable possibility” were both met, assuming they contemplate different levels of risk; an issue we need not decide in this case.
[5] Finally, under the new s. 753.01, if the dangerous offender breaches the LTSO, the new scheme favours imposition of an indeterminate sentence rather than reinstating the LTSO. Counsel for the appellant submitted in her factum that the new regime could give a court greater confidence that the LTSO would succeed because of the draconian consequences of a breach. Without deciding whether in some cases these amendments would be more beneficial, it would not be more beneficial for this appellant. The evidence is overwhelming that this appellant is unable to control his violent sexual conduct, even where he is faced with the consequences. At the time the appellant committed the predicate offence he had been out of the penitentiary for just two months, was on a s. 810.2 recognizance and had just met with the supervising police officer. The possibility of the appellant being sentenced under the new regime would not give a court any greater confidence in the efficacy of a LTSO.
(3) Misapprehension of the evidence re Anti-Androgen Medicine
[6] The only chance of imposing a LTSO on this appellant instead of an indeterminate sentence hinged on the proposition that the appellant could be controlled by anti-androgen injections. The sentencing judge found that control through these injections was speculative. She gave many reasons for this finding. In our view, they are supported by the record and she did not misapprehend the evidence. One of the most compelling pieces of evidence was that according to Dr. Hucker, whose evidence was accepted by the sentencing judge, the appellant would not “burn out” before expiry of the longest LTSO order that could be imposed. Thus, the very high risk that the appellant would commit a very serious offence would extend beyond the life of the conditions requiring the taking of the anti-androgen medication.
[7] We are satisfied that the sentencing judge did not misapprehend the evidence on the anti-androgen issues. While the appellant was co-operative and open when in custody and speaking to psychiatrists and others, there was uncontradicted evidence that in the community he was not forthcoming to supervisors about his sexual conduct. Despite having been given extensive behaviour modification therapy, as soon as he was released he embarked on a course of conduct that would inevitably lead to commission of a serious personal injury offence.
[8] Finally, the sentencing judge was entitled to treat the appellant’s interest in anti-androgen medication with scepticism. He was aware of the medication but took no steps to attempt to have it administered until he was facing the dangerous offender process.
[9] Accordingly, the appeal is dismissed.
Signed: “M. Rosenberg J.A.”
“R. G. Juriansz J.A.”
“Paul Rouleau J.A.”