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), (2.1), (2.2), (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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(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 victim of the right to make an application for the order; and

(b) on application made by the victim, the prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of their right to make an application for the order; and

(b) on application of the victim or the prosecutor, 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); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18..

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. H.A.K., 2015 ONCA 905

DATE: 20151222

DOCKET: C59359

Feldman, Gillese and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

H.A.K.

Appellant

Catriona Verner, for the appellant

Michael Medeiros, for the respondent

Heard: December 2, 2015

On appeal from the conviction entered on October 12, 2011 and the sentence imposed on June 21, 2013 by Justice Michael F. Brown of the Superior Court of Justice, sitting with a jury.

By the Court:

[1] A jury found the appellant guilty of several offences including counts of sexual assault and unlawful confinement. The complainant, who was the only witness at trial, had been the appellant’s domestic partner in a relationship punctuated by conflict, separation and reunion.

[2] At trial, the Crown argued that the complainant was a truthful and credible witness who testified in a forthright way. The complainant provided a detailed account that resisted protracted cross-examination and established the offences alleged. Her testimony furnished the jury with the graphic details of events that included acts of forced intercourse that overcame her resistance. She readily acknowledged after-the-fact conduct that included expressions of affection and communications with the appellant while he was incarcerated awaiting trial.

[3] The defence contended that the complainant was not a credible witness. Her testimony was unreliable, riddled with inconsistencies and fuelled by a motive to control the appellant and stop him from flirting and cheating on her with other women. The sexual activity was consensual, witness the continued cohabitation despite what the complainant alleged had occurred over the years.

[4] After the jury had rendered its verdict, the trial Crown indicated to the trial judge that she contemplated an application to have the appellant declared a dangerous offender. In due course, the dangerous offender application proceeded before the trial judge who found the appellant to be a dangerous offender and imposed a sentence of detention in a penitentiary for an indeterminate period.

[5] The appellant appeals the convictions recorded at trial and the indeterminate sentence imposed at the conclusion of the dangerous offender hearing. Although he contests the trial judge’s finding that he satisfied the requirements under s. 753(1)(a)(i) of the Criminal Code, R.S.C., 1985, c. C-46, the appellant acknowledges that the evidence adduced at the hearing met the statutory requirements for a dangerous offender finding under s. 753(1)(a)(ii).

THE APPEAL FROM CONVICTION

[6] The appellant advances three grounds of appeal against conviction. Each alleges a deficiency in the charge to the jury. None attracted an objection from trial counsel.

[7] For our purposes, we would paraphrase the grounds of appeal from conviction as alleged errors:

i. in instructing the jury that the Crown was not required to call witnesses to corroborate the complainant’s allegations;

ii. in inviting the jury to consider as a factor relevant to the absence of consent the fact that the complainant was menstruating at the time of the alleged sexual assault; and

iii. in failing to leave the justification of s. 27 of the Criminal Code to the jury.

[8] We do not accede to any of these grounds of appeal, and dismiss the appeal from the underlying convictions.

Ground #1: Corroboration of the Complainant’s Evidence

[9] The appellant contends that the trial judge erred in instructing the jury in connection with the burden of proof that the Crown need not call any witnesses to corroborate the testimony of the complainant. This instruction, the appellant says, was accompanied by an overemphasis on consideration of only the evidence adduced and an injunction against speculation about evidence that was not given. It had the ineluctable effect of prohibiting the jury from considering an absence of evidence as a basis upon which to found a reasonable doubt about the appellant’s guilt.

[10] For several reasons, we reject this ground of appeal.

[11] First, the law imposes no requirement that the complainant’s evidence be corroborated, whether because of the nature of the offence alleged or otherwise. Indeed, it would have been legally wrong for the trial judge to have instructed the jury, expressly or by necessary implication, that corroboration was required or that it was unsafe for the jury to find the appellant guilty of sexual assault in the absence of corroboration: Criminal Code, s. 274. The evidence of a single witness may satisfy the trier of fact beyond a reasonable doubt of the guilt of an accused.

[12] Second, to the extent that the appellant advocates use of the term “corroboration” in the instruction, it is a term long since interred and unworthy of exhumation. See, for example, Vetrovec v. R., 1982 CanLII 20 (SCC), [1982] 1 S.C.R. 811, at p. 831.

[13] Third, in a criminal trial, the Crown has a discretion about whom it will call as witnesses. It is obliged to put forward sufficient witnesses so that the essential elements of the offences charged can adequately be proven. A decision not to call certain witnesses carries the attendant risk of failing to meet the burden of proof imposed on it. But that is for the Crown to decide absent evidence that the discretion is being abused: R. v. Yebes, 1987 CanLII 17 (SCC), [1987] 2 S.C.R. 168, at pp. 190-91; R. v. Cook, 1997 CanLII 392 (SCC), [1997] 1 S.C.R. 1113, at paras. 30-31, 54.

[14] Fourth, at least twice in his instructions on the burden and standard of proof, the trial judge told the jury that a reasonable doubt could arise from an absence of evidence. In his canvass of the position of the defence, the trial judge repeated counsel’s submission about the absence of evidence as a source of reasonable doubt about the appellant’s guilt.

[15] Fifth, the trial judge’s more specific reference to the jury’s obligation to decide the case on the evidence adduced at trial and not to speculate about evidence that had not been given was unexceptionable. This commonplace direction points up the injunction against speculation that is properly the subject of a final instruction.

[16] Finally, the absence of confirmation does not appear to have been a principal component of the defence position advanced at trial. There, counsel emphasized the complainant’s bias or animus against the appellant for his serial philandering as fuelling her fictional account, not the lack of independent confirmation of that account.

Ground #2: Non-consent and Menstruation

[17] The second ground of appeal relates to an omission from the trial judge’s final instructions to the jury that is said to amount to misdirection on the issue of consent.

[18] The appellant says that the trial Crown’s repeated references in her closing address to the fact that the complainant was menstruating at the time of the alleged sexual assault improperly invited the jurors to conclude that she did not consent to the sexual activity because of her menstruation. It was incumbent on the trial judge, the appellant contends, to instruct the jury, in express terms, that the complainant never asserted that she did not consent because she was menstruating, and that the jurors were not entitled to conclude that consent had been negated on this basis.

[19] Three reasons persuade us not to give effect to this ground of appeal.

[20] First, we are unable to read the trial Crown’s closing address to the jury as advancing a link between the complainant’s menstruation and her lack of consent to sexual intercourse with the appellant. The simple juxtaposition of the language in consecutive sentences of a closing address does not sustain the conclusion asserted by the appellant. Nor did the complainant’s evidence suggest any such cause and effect relationship.

[21] Second, the complainant testified about a violent encounter in which she physically resisted the appellant’s unwanted advances. His accomplishment of his goal directly resulted from his overpowering of her resistance. The jury would have been under no misapprehension about the basis of her non-consent.

[22] Third, trial counsel for the appellant did not object to the closing address of Crown counsel at trial. It would not be unreasonable to conclude that he did not consider it to have attributed the absence of consent to the complainant’s menstruation. Nor did trial counsel object to the absence of an instruction of the nature now said to constitute non-direction amounting to misdirection.

Ground #3: Failure to Instruct on s. 27 of the Criminal Code

[23] The final ground of appeal against the underlying convictions challenges the failure of the trial judge to instruct the jury on the justification for which s. 27 of the Criminal Code provides:

27. Every one is justified in using as much force as is reasonably necessary

(a) to prevent the commission of an offence

(i) for which, if it were committed, the person who committed it might be arrested without warrant, and

(ii) that would be likely to cause immediate and serious injury to the person or property of anyone; or

(b) to prevent anything being done that, on reasonable grounds, he believes would, if it were done, be an offence mentioned in paragraph (a).

[24] The appellant says that the justification was engaged because he broke the complainant’s cellphone, pushed her and prevented her from leaving the apartment solely to prevent her from calling police to make a false report against him. His conduct was reasonable in the circumstances, thus leaving open the justification afforded by s. 27.

[25] As we will explain, this ground of appeal fails.

[26] A defence, justification or excuse need only be left to the jury if there is an air of reality about it. A trial judge must decide whether there is any evidence upon which a properly instructed jury, acting reasonably, could acquit, if the jury believed the evidence to be true: R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3, at paras. 49, 82.

[27] Here, there is no evidence that the complainant was about to falsely accuse the appellant of a crime he had not committed, and thus that his conduct was reasonably necessary to prevent the commission of public mischief under s. 140(1)(a) of the Criminal Code, or that he reasonably believed that she was about to do so. The appellant did not testify. The complainant’s speculation about his state of mind at the time was inadmissible on that issue.

[28] Moreover, the offence prevented – public mischief – at least in these circumstances falls well short of the standard required by s. 27(a)(ii). That provision requires that the offence prevented be one that “would be likely to cause immediate and serious injury” to the person of the appellant or anyone’s property.

[29] Finally, trial counsel did not suggest the jury should be instructed on this issue.

THE APPEAL FROM THE INDETERMINATE SENTENCE

Ground #1: Designation under s. 753(1)(a)(i)

[30] The trial judge found that the appellant met the requirements of both ss. 753(1)(a)(i) and 753(1)(a)(ii), designated him a dangerous offender and imposed a sentence of detention in a penitentiary for an indeterminate period.

[31] The appellant does not contest his designation as a dangerous offender under s. 753(1)(a)(ii) of the Criminal Code. He submits, however, that the finding under s. 753(1)(a)(i) is flawed because the trial judge failed to consider the requirement that there be a likelihood of the appellant “causing death or injury to other persons, or inflicting severe psychological damage on other persons, through failure in the future to restrain his…behaviour”.

[32] Although the appellant would have been designated a dangerous offender regardless of this ground, we note that in our view the trial judge’s finding that the statutory requirements for a designation under s. 753(1)(a)(i) had been met is neither unreasonable nor marred by legal error.

[33] The evidence admitted at the hearing disclosed twenty-two convictions for assault, including four of assault causing bodily harm and three of assault with a weapon. The victims on more than a dozen occasions were the appellant’s domestic partner. Both psychiatrists who testified at the hearing agreed that the appellant represented a high risk for future violent offences, especially crimes of domestic violence, and diagnosed the appellant with anti-social personality disorder and psychopathy, treatment-resistant personality disorders.

[34] In our view, the finding of dangerous offender status under s. 753(1)(a)(i) is unassailable. A pattern of repetitive behaviour, extending over nearly a quarter century and proceeding with depressing regularity from one event of physical violence to another. The likelihood of causing injury to others, palpable. An ingrained history of violence and lack of restraint. Personality disorders resistant to treatment. Case closed.

Ground #2: Imposition of an Indeterminate Sentence

[35] The appellant further contends that the trial judge erred in imposing a sentence of detention in a penitentiary for an indeterminate period. A lesser sentence – a fixed term of imprisonment followed by a long-term supervision order (“LTSO”) – would adequately protect the public against the appellant’s commission of murder or a serious personal injury offence (“SPIO”) in the future. He summons the evidence of Dr. Julian Gojer in support of his claim.

[36] We see no reason to depart from the sentencing disposition made by the trial judge.

[37] We begin with the observation that the sentencing regime put in place by Part XXIV of the Criminal Code differs from the general sentencing provisions of Part XXIII. Section 753(4.1) requires the imposition of an indeterminate sentence for a dangerous offender unless the evidence satisfies the court that some lesser measure can be reasonably expected to adequately protect the public against the commission by the offender of murder or an SPIO.

[38] Second, the trial judge recited and applied s. 753(4.1) to the evidence adduced at the hearing. He imposed no burden on the appellant to justify a lesser sentence. He appreciated that the phrase “reasonable expectation” did not require certainty that lesser sentences would adequately protect the public against the proscribed risk. He canvassed the relevant evidence and concluded it fell short of a reasonable expectation that a lesser sentence could control the risk. This finding was well grounded in the evidence.

[39] Third, the evidence on which the appellant relies to support the adequacy of a lesser sentence to protect the public is the psychiatric opinion of Dr. Gojer. Dr. Gojer testified that the appellant’s prior history did not involve violence of “high lethality” or “serious bodily harm to anyone”. But to qualify as an SPIO, an offence or potential offence does not require the nature or extent of violence described by Dr. Gojer: Criminal Code, at s. 752, “serious personal injury offence”. It follows that Dr. Gojer’s opinion cannot support a lesser measure as adequately protecting the public within s. 753(4.1).

[40] Fourth, an inquiry into the relative seriousness or gravity of the predicate offence, any other SPIO, or, for that matter, any offence committed by an offender may lend to an assessment of the risk posed by the offender and whether it can be adequately managed by some sentence less than indeterminate detention. But the focus of the inquiry mandated by s. 753(4.1) is the nature and quality of the offender’s propensity for committing violent crimes in the future, not the proportionality of the sentence to the relative severity of violent crimes committed in the past: R. v. Toutsaint, 2015 SKCA 117, at para. 24.

CONCLUSION

[41] For these reasons, we dismiss the appeals from the underlying convictions and from the sentence of indeterminate detention.

Released: December 22, 2015 (KF)

“K. Feldman J.A.”

“E.E. Gillese J.A.”

“David Watt J.A.”