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:

Criminal Code Provisions

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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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).

486.4(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.

486.4(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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

486.4(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.

486.4(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.

486.4(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.

486.6(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 Information

Court of Appeal for Ontario

Date: 2017-05-19

Docket: C60157

Panel: MacPherson, Blair and Epstein JJ.A.

Parties

Between

Her Majesty the Queen Respondent

and

Gregory Last Appellant

Counsel

Daniel J. Brodsky, for the appellant

Dayna Arron, for the respondent

Hearing and Appeal

Heard: May 18, 2017

On appeal from the sentence imposed on January 15, 2013 by Justice Lynne Leitch of the Superior Court of Justice, sitting without a jury.

Reasons for Decision

[1] We are satisfied that the appeal must be dismissed. The appellant met the criteria for a finding that he was a dangerous offender. Under the legislation as it then stood, the trial judge had a discretion to decline to declare the appellant a dangerous offender even though he met the criteria in the legislation. The judge appreciated that she had that discretion and declined to exercise it. Her exercise of that discretion is entitled to deference in this court.

[2] In the course of her analysis, the trial judge found there to be a pattern of repetitive behaviour containing enough of the same elements of unrestrained conduct to predict that the appellant would likely offend in the same way in the future. The trial judge therefore found that the Crown had proven beyond a reasonable doubt that the appellant engaged in a pattern of repetitive behaviour.

[3] From there the trial judge turned to whether the Crown had proven that there had been a failure on the part of the appellant to restrain his behaviour. The trial judge held that both the repetitive behaviour together with his in-custody conduct demonstrate an on-going inability to restrain his behaviour.

[4] The trial judge finally considered whether the appellant's failure to restrain his behaviour created a likelihood of causing death or injury to other persons or inflicting severe psychological damage on others. She found all of the medical evidence supported such a finding.

[5] Against this background the trial judge, tracking the wording of s. 753(a)(i) of the Criminal Code, said this:

I am satisfied that the Crown has proven beyond a reasonable doubt that there is a pattern of repetitive behaviour by [the appellant] showing a failure to restrain his behaviour and it has also proved beyond a reasonable doubt the likelihood of [the appellant] causing injury to other persons through failure in the future to restrain his behaviour.

[6] The trial judge went further. She also found that she was satisfied beyond a reasonable doubt that the Crown had demonstrated a pattern of persistent aggressive behaviour showing a substantial degree of indifference on his part respecting the reasonably foreseeable consequences to others of his behaviour under s. 753(a)(ii) of the Code.

[7] The trial judge recognized that she was entitled to exercise her discretion in favour of designating the appellant as a long-term offender set out in s. 753.1 on the basis that there was a reasonable possibility of eventual control of the risks in the community. After an extensive review of the evidence relevant to this issue the trial judge concluded as follows:

I am not satisfied that the hope that [the appellant] will follow through his now stated intention to seek treatment allows me to conclude that the public threat can be reduced to an acceptable level through either a determinant period of detention or a determinate period of detention followed by a long-term supervision order.

[8] The trial judge noted that the hope that treatment might be successful had existed since 2006. She found that the appellant's refusal to accept responsibility for his actions, his resistance to the high-intensity treatment available to him and his relentless in-custody misconduct illustrated that he poses a risk from which the public must be protected.

[9] In this court, counsel for the appellant challenges the trial judge's finding of a pattern of behaviour and her rejection of his position that the risk he posed could be managed in the community with the aid of a determinate sentence or a determinate sentence and a long-term supervision order.

[10] In her comprehensive reasons, with which we entirely agree, the trial judge carefully considered the elements of the test set out in s. 753 of the Code and the related evidence. The findings she made, set out above, were open to her on this record. Consequently, those findings are entitled to deference. And on the basis of the trial judge's findings, her determination that the appellant should be declared a dangerous offender was reasonable.

[11] The appeal is therefore dismissed.

J.C. MacPherson J.A.

R.A. Blair J.A.

Gloria Epstein J.A.