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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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. Tippett, 2015 ONCA 697

DATE: 20151019

DOCKET: C51754

Hoy A.C.J.O., Feldman and Rouleau JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Stanley James Tippett

Appellant

Alison Craig and Gabriel Gross-Stein, for the appellant

Alison Wheeler, for the respondent

Heard: March 19, 2015

On appeal from the convictions entered on December 23, 2009 by Justice Bruce A. Glass of the Superior Court of Justice, sitting without a jury, and from the sentence imposed on October 31, 2011, with reasons reported at 2009 90055 and 2011 ONSC 6461.

Feldman J.A.:

[1] The appellant was convicted of a number of offences arising out of the kidnapping and sexual assault of a 12-year-old girl. He was tried by a judge sitting without a jury. The appellant appeals his conviction on a number of grounds relating to the reasons of the trial judge including alleged misapprehension of some evidence and failure to advert to other evidence, some of which the appellant submits was potentially exculpatory.

[2] Following his conviction, the appellant was designated a dangerous offender and given an indeterminate sentence. He also appeals from that sentence.

[3] For the reasons that follow, I would dismiss both appeals.

THE CONVICTION APPEAL

Facts

[4] R.S. was 12 years old in August 2008 when she attended a party with some older friends in Peterborough. After leaving the gathering, she and two other girls, L. and W., were trying to get downtown. They were all drunk, but R.S. was so impaired she could not stand and was lying in the middle of the street. L. went to arrange a ride.

[5] The appellant came upon R.S. and W. between midnight and 1 a.m. on August 6. He moved R.S. off the road. After the appellant’s arrival, W. wandered off. L. returned and interacted with the appellant. L. and R.S. ended up in the appellant’s van and headed downtown. L. told the appellant that R.S. was only 12 years old. L. got out of the van at a park and the appellant told her he would take R.S. to get medical assistance.

[6] At approximately 2 a.m., a neighbour near Courtice High School heard a girl’s voice screaming “please, no.” The neighbour called 911. Constable Harding of Durham Regional Police was dispatched at 2:21 a.m. and arrived at the school at 2:25 a.m. Another neighbour heard a scream between 2:00 and 2:20 a.m. When the officer arrived, he saw a person come out of the adjacent woods. The person ignored the officer’s direction to stop, got into the appellant’s van, which was parked by the school, and drove off. Constable Harding chased the van and was able to see the driver for a few seconds. He later identified the appellant as the driver. He was unable to catch the van and was ordered to stop the chase at 2:29 a.m.

[7] As the officer’s credibility and reliability in identifying the appellant is one of the grounds of appeal, I will deal in more detail with the facts surrounding the identification when I discuss that issue.

[8] After the chase was called off, Constable Harding went back to the school, arriving at 2:35 a.m. At 2:47 a.m., R.S. stumbled out of the woods. She was unclothed from the waist down, the front of her shirt was torn, and she was soaked and muddy. She was also incoherent, crying and mumbling. She had red marks above her eye and around her mouth and abrasions on her limbs. At the hospital, she was found to have a toxic level of alcohol in her blood as well as some anti-depressants. Her jeans and underwear were found in Oshawa the following morning, not far from where the appellant’s van was also discovered. At trial, R.S. testified that she had no memory of the events that took place that night.

[9] The appellant testified. His story was that once he dropped L. off at the park, he heard two men shouting, standing next to a black car. One of them used R.S.’s name. The appellant thought they were her friends and drove over to them. One of the men banged on the car and told the appellant to open the door. When he opened it, one of the men got into the car and pulled out a knife, while the other opened the driver’s side door and put a gun to the appellant’s face. While the man with the knife tried to wake up R.S., the other forced the appellant into the back of the van.

[10] After a brief conversation about “oxys”, the men drove the van southbound on Highway 115. The appellant estimated that they drove for about 55 minutes before pulling over and asking the appellant for money. He gave them change from his pocket and pointed them to an emergency wallet he had in the van, which contained about $200. Then one of them grabbed the appellant, held him in a headlock, and threw him out of the van into a ditch. The men took off in the van, leaving the appellant behind. In the course of this interaction, the battery for his hearing aid was knocked out.

[11] The appellant tried to call his wife on his cell phone but could not get a signal. He walked around for 45 minutes to an hour before connecting with his wife at 2:46 a.m. Because he told her he was having trouble hearing, she told him not to call the police. As he said he was near train tracks, she reminded him about his uncle, who lived in Manvers beside the tracks.

[12] The appellant followed the tracks and eventually got to Base Line Road, where he recognized Mike’s Transmission auto-body shop. He called his wife, who called a taxi for him.

[13] The taxi driver testified that he picked up the appellant at around 6 a.m. in the parking lot of Millwork on Base Line Road, which was several kilometres from where R.S.’s clothes were later found. He testified that the appellant told him he had worked a night shift in Scarborough, that his van had been stolen two days earlier, and that a friend had given him a lift but his truck broke down and the friend had gone with the tow truck. The appellant denied this conversation with the taxi driver. The appellant directed the taxi to a street in Manvers, where he was dropped off at 6:25 a.m. He paid the fare in cash from his wallet. Two days later, the taxi driver called the police after recognizing the appellant from his picture on the news.

[14] At his uncle’s house in Manvers, the appellant made some phone calls. One was to his girlfriend, another to his mother, and a third to the police. He told all three he had been carjacked, but he gave different details of the event and of the timing. He called the police at 7:40 a.m. An officer testified that the appellant told the police that he had been at his uncle’s since 1:00 a.m. and that he had not called earlier because he was upset. The appellant denied that he said this.

[15] The appellant was arrested near his uncle’s home around 8:40 a.m. He was with his uncle in his uncle’s car. The appellant was wet and dirty with grass on his clothing. While being arrested, he asked to have his wallet and money turned over to his wife. His wallet contained $360. He also had a change purse with $13.65 and a set of keys that connected to a key fob found in his van.

[16] That van was found by police on Browning Street in Oshawa at 3:40 a.m. Earlier that night, Josephine Coulson, a Browning Street resident, was woken by loud screeching noises, looked out her window and saw the van parked 3 or 4 houses from hers. She observed a man standing by the van, then leave the van, then return and leave again. Her ability to identify the man and the trial judge’s treatment of her evidence will be discussed in more detail below.

[17] When the van was investigated, the police found the driver’s side door unlocked with the keys in the ignition. There was vomit in the car and a pair of white sandals on the floor in front of the passenger seat. Two condoms knotted together were found on the back floor behind the driver’s seat.

[18] Forensic testing on the appellant and R.S. was inconclusive. No semen was found in R.S.’s mouth, vagina or rectum. R.S.’s DNA was found on the inside of both condoms, as was the DNA of at least one male, although this DNA was not suitable for identification comparison. Similarly, trace amounts of semen and saliva that were found on R.S.’s underwear were not suitable for comparison, nor were small amounts of sperm cells from two people that were found on her tank top. Finally, traces of the appellant’s saliva were found in his underwear but no semen was found.

The trial judge’s reasons

[19] The trial judge read his written reasons for conviction in court. They consisted of 53 paragraphs. The trial judge did not attempt to outline all of the evidence presented at the trial, which lasted ten days and involved nearly thirty witnesses. His approach was to describe the original meeting between the appellant and R.S., then to pose and address a number of questions regarding the events based on the totality of the evidence. He then made findings on the substantive elements of the offences with which the appellant was charged.

[20] One question was “How was [R.S.] found?” In addressing this question, the trial judge reviewed the evidence of Constable Harding, including Constable Harding’s observations of the driver of the van and the driving during the police chase. The trial judge stated that when Constable Harding was driving beside the van, he saw the side profile of the driver and then the driver’s full face when the driver turned toward him. The trial judge then said, “The officer identified Stanley James Tippett as the driver noting that the physical features of his head and face were very distinctive.”

[21] Another question was “Where was Stanley Tippett after being on Collison Avenue in Peterborough?” The trial judge reviewed the appellant’s version of events from the carjacking to his arrival at his uncle’s home in Manvers. He also reviewed cell tower evidence of the movement of the appellant’s cell phone during the night.

[22] The last question was “How reliable is the identification evidence regarding Stanley James Tippett?” Before answering this question, the trial judge rejected the appellant’s account. He based that conclusion on the cell phone/cell tower evidence; the identification by Constable Harding; and the unlikelihood of the appellant’s account of the carjacking, including, for example, that the appellant still had his cell phone and wallet with all his money when arrested. The trial judge also rejected the appellant’s story that he lost the battery to his hearing aid, based on his testimony that he could hear the 401 highway after being dropped off by the carjackers, and the evidence of the police officer who took the appellant’s 7:30 a.m. call that the caller had no trouble hearing him.

[23] On the issue of identification, the trial judge noted that the appellant’s head has a distinctive look because of his Treacher Collins Syndrome. He found that a person would be more likely to remember the appellant as a result. He applied that reasoning to accept the identification made by the two girls who were originally with R.S. and saw the appellant, as well as to Constable Harding and the taxi driver.

[24] The trial judge concluded that the Crown had proven beyond a reasonable doubt that the appellant was the driver of the van throughout the events of the night and he was the man who took the taxi from Baseline Road. He found that the appellant’s testimony did not raise a reasonable doubt about whether he was the driver throughout.

[25] The trial judge then made his findings on the substantive issues relating to the counts listed on the appellant’s indictment, which included kidnapping, sexual assault, sexual interference, and the driving offences. As the actus reus of each of the offences had been made out, the major issue was who committed the offences. The trial judge found that it was the appellant who was the perpetrator of all of the offences. The condoms in the van had R.S.’s DNA on them. It was the appellant’s van and he was the driver of the van throughout. Therefore it was the appellant who committed all of the offences against R.S. and the dangerous driving.

Issues on the conviction appeal

[26] The appellant states that the trial judge misapprehended the evidence on two key issues: the identification of the appellant and the DNA evidence. He submits that the trial judge misapprehended or ignored three aspects of the identification of the appellant: the evidence of Constable Harding, the cell tower evidence and the evidence of Josephine Coulson. The appellant submits that these misapprehensions or omissions, taken alone or together, are enough to merit a new trial.

Analysis

[27] A trial judge is required to consider all of the evidence in relation to the ultimate issue of guilt or innocence. However, as the Supreme Court recently affirmed in R. v. Vuradin, 2013 SCC 38, [2013] 2 S.C.R. 639, at para. 17, trial judges are “not obliged to discuss all of the evidence on any given point or answer each and every argument of counsel.” While the failure to consider all of the evidence is an error of law, “unless the reasons demonstrate that this was not done, the failure to record the fact of it having been done is not a proper basis for concluding that there was an error of law in this respect”: R. v. Morin, 1992 40 (SCC), [1992] 3 S.C.R. 286, at p. 296.

[28] The overall thrust of the appellant’s submissions was that the trial judge misapprehended or failed to advert to central evidence that the appellant relied on at his trial as exculpatory. The appellant acknowledged that the trial judge was not required to refer to every piece of evidence in his reasons but submitted that the trial judge did not sufficiently explain how he reconciled his findings with the appellant’s evidence or theory of the case.

[29] I would not accept this submission. While the trial judge’s reasons were concise, they did not demonstrate a failure to consider all of the evidence going to the ultimate issue, nor did they demonstrate a material misapprehension of the evidence which played an essential part in the reasoning process resulting in the convictions.

Misapprehension of the identification evidence

(1) Identification of the driver by Constable Harding

[30] Constable Harding identified the appellant as the driver of the van based on having seen him for several seconds during the pursuit of the van on August 6. The appellant’s submission is that the trial judge’s reasons were not responsive to the credibility and reliability issues emerging from Constable Harding’s identification of the appellant as the driver of the van. He also submits that the trial judge effectively failed to apply the necessary caution to stranger identification and the frailties associated with it.

[31] Constable Harding described how he had two chances to see the driver’s face when he was chasing him. Besides facial hair, he noticed that the driver’s face was very distinct in its features and his eye placement was not normal. However, he did not write down these observations of abnormality in his notes at the time. The way he later identified the appellant was by recognizing him from his picture in the newspaper. He testified that “there was no doubt. It was unmistakeable the – the appearance was that of the party I did see in the car.” Constable Harding also identified the appellant in a photo line-up, though none of the other 11 people in the line-up had facial deformities.

[32] In cross-examination, Constable Harding was challenged on the fact that his notes did not say that he got a good look at the appellant the second time he pulled up alongside him. He wrote that the driver was heavy-set, a white male, late 30’s or early 40’s, darker colour, wearing a white or yellow shirt, and had some facial hair. He made no observation of any facial abnormality. Also, in the audio recording of his conversation with headquarters during the chase, Constable Harding made no mention of facial deformity. He said he only had a glimpse of the driver and that his ability to identify him was limited.

[33] When challenged about how certain he was about his identification of the appellant in light of his contemporaneous descriptions and notes, Constable Harding maintained that because of the distinctiveness of the appellant’s facial structure and eye placement, which he had never seen on another person, he was 100 percent sure about his identification. He maintained that he was able to identify the driver from that night because of the driver’s abnormal look, although he did not record it.

[34] In dealing with Constable Harding’s identification, the trial judge stated at paras. 18 and 38:

The officer had noted that the person was heavier set with a white t-shirt. He determined that the driver of the van was a male person.

I am satisfied that the witnesses who have identified Mr. Tippet have not organized their thoughts in an unreliable manner to identify the defendant. In other words, there has not been collusion. Mr. Tippett has a more unique head structure resulting from Treacher Collins Syndrome. As one officer said over the police radio, when Constable Harding would see Mr. Tippett, he would know him. I am persuaded that the head structure of Mr. Tippett is different than most persons so that when an individual saw a person affected by the Syndrome, the viewing person would be more likely to remember the person. This applies to [W., L.], Constable Harding, and [the taxi driver]. Their identification is not coincidental.

[35] The appellant submits that the trial judge misapprehended the problem with the evidence by referring to collusion, which was not alleged, and by failing to refer to the cross-examination or to address the fact that Constable Harding did not refer to any facial deformities of the driver until several weeks after the offences occurred, despite the fact that they are very distinctive.

[36] I would not give effect to this submission. The trial judge’s reasons were not lengthy and detailed. Rather, he covered the issues and stated his conclusions on them. Identification of the perpetrator was the only live issue before him.

[37] The appellant gave an exculpatory account of what occurred. The trial judge had to decide if the appellant’s account raised a reasonable doubt and, if not, whether the Crown evidence proved beyond a reasonable doubt that the appellant was the perpetrator. The trial judge specifically rejected the appellant’s account as unbelievable.

[38] The trial judge then accepted the identification evidence of all of the people who were close to the appellant and saw his face, including R.S.’s friends, the taxi driver, and Constable Harding. He did so based on the distinctiveness of the appellant’s facial features, and adverted to the issue of stranger identification by noting that a person viewing such features would be more likely to remember them.

[39] The appellant appears to be raising two objections on this issue. The first is inadequacy of the reasons. However, the reasons explain sufficiently why the trial judge accepted the identification by Harding. He was not required to review and discuss each potential problem when his overall conclusion addressed the result he had reached having heard the evidence: see R. v. Braich, [2002] 1 S.C.R. 903, 2002 SCC 27, at paras. 38-42.

[40] The second objection appears to be that in light of Constable Harding’s initial failure to mention the appellant’s distinctive features, together with the problems with stranger identification, the trial judge should not have accepted his evidence. To the contrary, the trier of fact decides both the credibility and the weight to be given to eyewitness identification evidence. The trial judge is presumed to know the law. He was entitled to accept Constable Harding’s identification for the reasons he gave.

[41] The trial judge’s reference to collusion was a misstatement, as the appellant correctly points out that collusion among witnesses was not alleged. However, the context of the paragraph indicates that the trial judge’s intent was not to refer to collusion among witnesses but rather, as he had explained, to dispel any concern that the witnesses might have, in their own minds, unreliably identified the appellant.

(2) The cell tower evidence

[42] The appellant submits that the trial judge misapprehended the significance of the evidence regarding the cell towers and the tracking of the appellant’s cell phone in relation to his account of his whereabouts throughout the night.

[43] Dealing with the cell tower evidence, the trial judge stated at para. 35 of his reasons:

I find that Mr. Tippett’s account of the evening is unbelievable. He is the one who had the cell phone from which there was considerable communication during the course of the night. The cell phone tower maps entered into evidence display a path from Peterborough, on into Oshawa and in the Courtice area. There is no suggestion that another person used this cell phone. He could have made the calls and travelled through the pattern of the phone towers if he were driving the van for much of the night. He could not have walked to all of those areas. His explanation for this conflict in his evidence is that cell signals can bounce in a variety of directions so that they are not reliable. For Mr. Tippett to be correct, there would have had to be many unusual phone recordings for cell phone towers. I find that Mr. Tippett’s suggestion is too far-fetched. The defendant was in the presence of [R.S.] at 1:00 a.m. and he was seen at the Courtice High School at 2:20 a.m. when Constable Harding saw him. Only minutes after Constable Harding saw Mr. Tippett at the school, [R.S.] was observed in a state of considerable undress.

[44] The appellant submits that on both his theory and the Crown’s theory of the case, he was walking for part of the night. He submits that the trial judge’s reasons indicate a misunderstanding of the two theories and thus the meaning of the cell tower evidence.

[45] I do not accept the suggestion that the trial judge misunderstood this evidence. On all accounts, the appellant ended up in Oshawa on foot where he took a taxi to his uncle’s house. The trial judge was addressing and rejecting the appellant’s suggestion in cross-examination that he was dropped by the carjackers in an area with no cell coverage and that the signals bounced to towers where he was not.

(3) The trial judge’s failure to advert to the evidence of Josephine Coulson

[46] The appellant also submits that the trial judge’s deficient treatment of Constable Harding’s identification was compounded by the failure to make reference to the potentially exculpatory identification evidence of Josephine Coulson.

[47] Ms. Coulson, an 82-year-old woman who lived in Oshawa, testified that she was woken in the early morning of August 6 by a screeching noise, which caused her to get up and look out her bedroom window. She did not recall whether she put on her glasses. She saw a van across the street, about three houses away, and a man standing by the driver’s side door. The man looked in the back of the van, he had a plastic bag in his hand, he appeared to lock the doors because the lights flashed, he then went north, then came back, he opened the car doors and looked in both sides, then walked away again.

[48] Ms. Coulson testified that the man wore a light coloured shirt and no hat. She was equivocal about the colour of his trousers, testifying, “I think they were light coloured, too, but I can’t remember.” Ms. Coulson said she had a side view of the man. She stated that though there were two street lights outside, two large maple trees blocked their light. She went back to bed and was awoken again later by police cars.

[49] Ms. Coulson saw only one man and did not get a good look at his face. In an interview with police, she was asked if she could identify the man, but she said she was unable to do so because what she had seen was too far away.

[50] In cross-examination, she acknowledged that she had told a police officer that she thought the person she saw was fairly tall, but then she said that because she is short everyone seems tall. She also agreed that she had said he had a muscular build and that she had said that the man she saw did not resemble the picture shown on television of the appellant. However, she qualified that observation by saying that the light wasn’t good so it was hard to say. She also said the man she saw did not have a dark moustache as the picture did. Similarly, she stated that in the picture on television, the man’s hair looked dark, while she thought the man she saw had light hair, but again she qualified that by saying it was “hard to really distinguish.”

[51] This evidence was potentially exculpatory had it been accepted by the trial judge for that purpose. However, the failure of the trial judge to mention it, in the context of these reasons, can only mean that the witness’s uncertainty about nearly every aspect of what she may or may not have seen was not of any assistance to the trial judge. On that basis, it was not necessary for the trial judge to specifically state in his reasons that he was giving no weight to her evidence on identification. As noted above, “unless the reasons demonstrate that [a consideration of all the evidence in relation to the ultimate issue] was not done, the failure to record the fact of it having been done is not a proper basis for concluding that there was error in law in this respect”: R v. Walle, 2012 SCC 41, [2012] 2 S.C.R. 438, at para. 46, citing R v. Morin at p. 296.

[52] In oral argument, counsel also suggested that because Ms. Coulson did not see flashing lights the second time the man left the car, if that indicated that the car did not lock the second time, then there might have been a second person left in the car. In my view, that suggestion is no more than speculation and the trial judge’s failure to advert to it is no error.

Misperception of the DNA evidence

[53] The Crown concedes that the trial judge erred when he stated that R.S.’s bra, her tank top and her undershirt tested positive for her DNA alone. In fact, a very small amount of sperm from two donors was found on her tank top. The appellant submits that this represented a serious misapprehension of the evidence by the trial judge because finding sperm from two men was consistent with the appellant’s car-jacking story.

[54] Although there was an error by the trial judge, in the context of the evidence in this case I do not agree that the error had significance. When examined, the evidence could not support the appellant’s story.

[55] The number of sperm cells was very small, there was no seminal fluid, and there were no sperm cells or seminal fluid on R.S.’s other top clothing consisting of her bra, a green t-shirt, and a black hoodie. In those circumstances, the sperm cells on the tank top were unlikely to be reflective of recent sexual contact because the sperm would have to have landed only on the one piece of clothing and not the others, and the seminal fluid and the rest of the sperm cells from two men would all have to have been washed away by wetness or vomit. There was another explanation given in evidence, which the trial judge did advert to in respect of the unidentifiable semen on R.S.’s underwear, which was that semen could be transferred from clothing to other clothing in the laundry.

[56] The trial judge rejected the appellant’s car-jacking story as incredible and far-fetched. He viewed it as the appellant’s “one way out of the problem he faced”, which was that he was known to have picked up R.S. in the same van that drove away from the place where R.S. was found by police. As the trial judge noted, at para. 36, it made no sense that the two alleged carjackers, having kidnapped the appellant at knifepoint and gunpoint, would subsequently allow him to leave the van unharmed together with his wallet and cell phone. In this context, the addition of the sperm cell evidence would not have raised the carjacking story to the level of a reasonable doubt: see R. v. S.J., 2015 ONCA 97, at paras. 71-98, leave to appeal refused [2015] S.C.C.A. No. 146; and R. v. Kirkham, 2013 ONCA 437, at para. 7.

Conclusion on the trial judge’s reasons

[57] The trial judge’s reasons were succinct, but they dealt with the issues in the case and allow for meaningful appellate review: R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 57. None of the objections raised by the appellant amount to legal error. Even if any of them had amounted to legal error, this is a case where it would be appropriate for the court to apply the curative proviso in s. 686(1)(b)(iii) of the Criminal Code, R.S.C. 1985, c. C-46, which allows convictions to be upheld despite errors of law, provided the error has not resulted in a substantial wrong or miscarriage of justice. As in R. v. Rawn, 2015 ONCA 396, the Crown’s evidence was “overwhelming”, and like the “Steve as driver” story in that case, the appellant’s version of events was completely unbelievable.

THE SENTENCE APPEAL

Facts and decision below

[58] The appellant was convicted of the following offences arising out of the abduction and sexual assault of R.S.: sexual assault, sexual interference, kidnapping, dangerous driving, failure to stop for police, breach of recognizance and breach of probation.

[59] Following the convictions, the Crown filed its notice that it would seek a dangerous offender designation under s. 753 of the Criminal Code. The evidence at the dangerous offender hearing focused on two assessments of the appellant: one from Dr. Klassen for the Crown and one from Dr. Gojer for the appellant.

[60] The trial judge found the appellant to be a dangerous offender under ss. 753(1)(a)(i), (ii) and (b). He had been convicted of a serious personal injury offence constituting a threat to the life, safety or physical or mental well-being of others. The judge was satisfied that there was evidence establishing a pattern of behaviour by the appellant, including his conduct with R.S., that showed a failure to restrain his behaviour. He found there is a likelihood of causing death or injury to others or inflicting severe psychological damage to others through failure in the future to restrain his behaviour, as well as a likelihood of causing injury, pain or other evil to other persons through failure in the future to control sexual impulses. The appellant also presented a pattern of persistent aggressive behaviour showing a substantial degree of indifference to reasonably foreseeable consequences to others of his behaviour.

[61] Having found the appellant to be a dangerous offender, the trial judge had to determine the appropriate sentence. Once a dangerous offender finding has been made, a judge is obliged to impose an indeterminate sentence unless there is a reasonable expectation that a determinate sentence with or without a long-term supervision order would “adequately protect the public against the commission by the offender of murder or a serious personal injury offence”: Criminal Code, s. 753(4.1).

[62] Relying on the evidence adduced during the dangerous offender hearing, including the evidence from Dr. Klassen and Dr. Gojer, the trial judge found that he was obliged to impose an indeterminate sentence. Based on the appellant’s history of violence, his manipulation of women and girls, and his psychiatric diagnoses, his risk of reoffending was significant. Dr. Klassen said this risk was moderately high while Dr. Gojer said it was moderate.

[63] Both doctors expressed concern about the appellant living in the community. He would need to take anti-androgen medication to reduce his sex drive. He would also need a number of other treatments and tight supervision. Dr. Gojer reported that the appellant has a personality disorder with anti-social traits. The trial judge summarized his evidence:

[54] Dr. Gojer reported that Mr. Tippett has a personality disorder with antisocial traits. The defendant’s personality is based on deceit, lying, manipulative behaviours leading to aggressive and intrusive behaviours including sexually aggressive acts. Mr. Tippett seeks attention, affection and sexual gratification.

[55] The tendency to lie constantly is a concern. He told Dr. Gojer that he would take treatment for his lying and with some hesitation he would take sex drive reduction medication.

[64] The appellant had told Dr. Gojer that he would take treatment, but he did so reluctantly. The trial judge rejected these assurances because of the appellant’s tendency to lie. He concluded, at para. 67:

I am left with the impression that it is wishful thinking to suggest that Stanley James Tippett could receive treatment that would manage his risk within the community in a way that could protect the public consistently in the future. See R. v. G.L. 2007 ONCA 548, [2007] O.J. No. 2935 and R. v. Jones [2008] O.J. No. 2067.

[65] Because there was no definite time frame within which the appellant could be treated, his risk of re-offending would continue for an indefinite time, which was “not good enough for a long term supervision process.”

[66] The trial judge observed that if the appellant were on long term supervision and did not take his recommended medication, the remedy would be charging him with a breach. After serving any sentence imposed, he would resume serving his sentence in the community. By contrast, if he did the same while on parole from an indeterminate sentence, his parole could be revoked until a new release plan that would protect the public could be organized.

[67] The appellant also stated in court at the end of the sentencing hearing that he would follow any direction by the court. However, the trial judge rejected this assurance as “a final grasp at avoiding a harsh sentence.” Dr. Gojer had stated that the appellant was very reluctant to take the anti-androgen medication. The trial judge concluded that the appellant would say whatever he thought he needed to say in order to obtain his release.

[68] The trial judge noted that the appellant had completed treatment programs while serving previous penitentiary sentences, yet he had committed the more serious predicate offence of sexual assault and kidnapping of a 12-year-old girl while still on probation.

[69] The trial judge concluded:

[75] A dangerous offender proceeding is one focused on protection of members of society. If a sentence less than an indeterminate sentence can protect society, the court should make such a sentence. However, that is not the conclusion I can reach with Stanley James Tippett. Society can only be protected and not at risk if he is sentenced to an indeterminate sentence. No doubt, the predicate offences would draw a lengthy penitentiary sentence. Such a sentence followed by a long-term supervision order would cover many years, but coupled with that would be a need for Mr.Tippett to take anti-androgen medication. Both Dr. Klassen and Dr. Gojer noted that Mr. Tippett would have to be using this medication if he were to return to living in the community, but I don’t believe Mr. Tippett when he says he would follow any direction given by the court. If that were to occur, the public would be at considerable risk.

[76] The defendant has demonstrated a pattern of behaviour that is violent. A serious personal injury offence when kidnapping a young girl and taking her a considerable distance from her home community infers an intention to avoid detection in Peterborough. Removing much of her clothing in the midst of the night and being stopped when police responded to a citizen calling after hearing a cry for help adds to the serious nature of his conduct. Mr. Tippett is likely in the future to demonstrate a failure to control his sexual impulses. He is one who is a prime person to cause injury, pain or other evil upon others.

Issue and analysis

[70] On appeal, the appellant asserts that in concluding that he could not trust the appellant’s assurances about taking anti-androgen medication, the trial judge failed to take into consideration the appellant’s history of compliance with counselling while in penitentiary on a number of previous occasions in 2006 and 2008.

[71] There is no merit to this submission. The trial judge specifically referred to the fact that the appellant had participated in treatment programs before and had gone on to escalate his violent behaviour when he was released. The trial judge considered the possibility of a long term supervision order and how it could operate in the appellant’s case. He gave full and careful reasons for his conclusion that the appellant could not be supervised in the community and why compliance with medication could not be assured in the appellant’s case: the appellant was reluctant to take the medication, and his assurances that he would take it were unreliable. The finding of unreliability was based not only on the appellant’s tendency to lie, but also on his escalated violent behaviour following his programs in penitentiary.

[72] The trial judge’s assessment and conclusion is entitled to significant deference on appeal, absent clear legal error, clear and material factual error, or an unreasonable finding: R. v. Sipos, 2014 SCC 47, at paras. 23-27; R. v. Simon, 2008 ONCA 578, at para. 90. I see no error in his analysis or his conclusion.

CONCLUSION

[73] I would dismiss both the appeal against conviction and the appeal against sentence.

Released: “AH” Oct 19, 2015

“K. Feldman J.A.”

“I agree. Alexandra Hoy A.C.J.O.”

“I agree. Paul Rouleau JJ.A.”