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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. J.W.H., 2015 ONCA 617

DATE: 20150915

DOCKET: C56269

Feldman, MacPherson and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

J.W.H.

Appellant

David E. Harris, for the appellant

Tracy Kozlowski, for the respondent

Heard: September 10, 2015

On appeal from the dangerous offender designation and the indeterminate sentence imposed by Justice Elizabeth Quinlan of the Superior Court of Justice, dated August 2, 2012, with reasons reported at 2012 44705.

ENDORSEMENT

[1] The appellant was sentenced to an indeterminate sentence as a dangerous offender. He seeks leave to appeal his sentence and to be sentenced to a determinate term as a long term offender. He contends that the sentencing judge erred in finding that there was no reasonable possibility that his risk to reoffend could eventually be controlled in the community and that the error was made because the sentencing judge failed to apply the principles from the Supreme Court of Canada decisions in R. v. Gladue, 1999 679 (SCC), [1999] 1 S.C.R. 688, and R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, regarding sentencing aboriginal offenders.

[2] We cannot give effect to this submission. The sentencing judge’s reasons are lengthy and detailed. It was she who ordered the Gladue report. She reviewed the appellant’s personal history. She also reviewed his history of offending, which included the following convictions: two counts of sexual assault from 1992; uttering threats against his spouse from 1997; sexual assault and forcible confinement of his spouse from 1998; and the predicate offence of sexual assault of his daughter over a period of three years, beginning when she was 15 and culminating in 2009 with a physical assault following an argument.

[3] The sentencing judge reviewed the Gladue report as well as correctional records of the appellant’s progress during his prior incarcerations, which addressed his participation in a number of programs for sex offender treatment and alcohol treatment. The reports noted some apparent progress but significant relapse upon release. He was also found to be manipulative, seeming to co-operate in programs, then later denying the offences. He served two terms of federal imprisonment to warrant expiry.

[4] She also reviewed the evidence of Dr. Pearce, an expert forensic psychiatrist who prepared an assessment report on the appellant. The appellant refused to participate in the assessment. Significantly, though Dr. Pearce opined that the appellant’s risk could be manageable in the community assuming he would accept medication, there was no evidence that the appellant was prepared to do so.

[5] The sentencing judge also considered the appellant’s Aboriginal background, which is derived from his estranged father. She noted the prevalence of substance abuse issues in the Aboriginal community and the potential impact of systemic factors on his behaviour. In light of the appellant’s treatment history, including his participation in Aboriginal programming, she refused to accept that the availability of any programs specifically for Aboriginals would be useful for risk reduction in the appellant’s case.

[6] In our view, the conclusion reached by the sentencing judge is fully supported by the evidence. She took into account the principles from Gladue and Ipeelee but could not find any evidence in the record that would support the conclusion that there was a reasonable possibility that the appellant’s risk to reoffend could eventually be controlled in the community. The appellant concedes that that is the test that must be satisfied.

[7] While leave to appeal sentence is granted, the appeal is dismissed.

“K. Feldman J.A.”

“J.C. MacPherson J.A.”

“B.W. Miller J.A.”