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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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. Veysey, 2016 ONCA 97
DATE: 20160202
DOCKET: C52815
Gillese, Watt and Tulloch JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Timothy Wayne Veysey
Appellant
Julie Santarossa and Jessyca Greenwood, for the appellant
Marcy Henschel, for the respondent
Heard: February 1, 2016
On appeal from the conviction entered on March 19, 2008 and the sentence imposed on June 28, 2010 by Justice Robert M. Thompson of the Superior Court of Justice, sitting with a jury.
ENDORSEMENT
[1] The appellant sexually assaulted two boys (aged 14 and 16) after threatening to cut them. He was convicted of two counts of sexual assault with a weapon. These convictions followed a 30 year history of convictions for predatory, violent and sexually sadistic offences against boys between the ages of 10 and 17. The appellant also admitted to offending against countless other young male victims.
[2] The Crown brought a dangerous offender application. In that proceeding, the only question was whether the appellant should be declared a dangerous offender or a long term offender.
[3] The trial judge was not satisfied that there was a reasonable possibility of eventual control in the community of the risk that the appellant posed. He expressly recognized the evidence indicating that if Lupron, an anti-androgen medication, were administered to the appellant and the appellant participated and co-operated with a sound treatment plan, this would go “a long way” towards reducing his risk of re-offending. Although the appellant stated his desire to fully participate in various treatment plans, the trial judge was dubious that the appellant would be co-operative, pointing to the fact that the appellant is manipulative, challenging and deceptive, and capable of using the right words to “please his caregivers”. Moreover, the trial judge emphasized that there was no assurance that Lupron would be administered as a condition of the appellant’s release. The trial judge noted that he could not order its administration and nor could the National Parole Board or Correction Services Canada. He also noted that the appellant could withdraw his consent to the administration of Lupron at any time, in which case no physician would administer it.
[4] Accordingly, he declared the appellant a dangerous offender. At that time, the appellant was 63 years of age.
[5] On appeal, the appellant seeks to introduce as fresh evidence a report by Dr. Bradford, a forensic psychiatrist. The report shows, among other things, that the appellant has voluntarily taken Lupron for a lengthy period.
THE ISSUES
[6] The appellant contends that the trial judge erred in:
his analysis of the impact of age and the passage of time on the appellant’s risk of reoffending; and
assessing his risk on the basis that the appellant would be released into the community, unmedicated and unsupervised.
ANALYSIS
[7] The court found it unnecessary to call upon the Crown. It indicated that the appeal was dismissed, with reasons to follow. These are the promised reasons.
The Fresh Evidence
[8] We see nothing in the fresh evidence that would justify its admission.
[9] The fresh evidence is an “update” of Dr. Bradford’s report which the defence relied on at the dangerous offender proceedings. With the exception of the information that the appellant is now using a wheelchair, the evidence is basically that which was adduced at sentencing. In particular, we note that at the time of his designation, the appellant had been voluntarily taking Lupron for at least two years. In any event, it is not sufficiently cogent that if believed, the fresh evidence could be expected to have affected the result.
Control in the Community
[10] The trial judge properly articulated the critical question, at para. 80 of his reasons: is there a reasonable possibility of control in the community of the risk that the appellant will reoffend by committing a sexual assault? His reasons make clear that he focused on whether the appellant’s risk could be controlled, not eliminated. Nowhere in his reasons did the trial judge suggest that the appellant could be designated a long term offender only if his sexual deviance could be eliminated entirely or if his risk of sexually reoffending could be reduced to zero.
[11] The appellant submits that the trial judge erred in failing to find that the combination of the appellant’s age and the “certainty” of administration of Lupron would control his risk to the community to a manageable level.
[12] We do not agree.
[13] At para. 58 of his reasons, the trial judge notes that the concept of diminishing sexual drive with age is a generalisation and that the appellant has shown that his sexual drive did not diminish even after the age of 60 because he reoffended while incarcerated, as act for which he was convicted and sentenced. We see no error in his finding on this matter.
[14] Nor do we see any error in the trial judge’s finding regarding reliance on Lupron as a means to protect the community. The evidence was clear – including that from the appellant – that without Lupron, he would re-offend. The trial judge did not assess the appellant’s risk to the community on the basis that he would be released unmedicated and unsupervised. Rather, in light of the appellant’s history, the trial judge was not satisfied that the appellant would remain co-operative in terms of the administration of Lupron and there would be enforcement difficulties should he choose to discontinue that treatment.
DISPOSITION
[15] The appeal is dismissed.
“E.E. Gillese J.A.”
“David Watt J.A.”
“M. Tulloch J.A.”