Court of Appeal for Ontario

Date: 2017-09-18 Docket: C58234

Judges: Laskin, Trotter and Fairburn JJ.A.

Between

Her Majesty the Queen Respondent

and

Jeffrey Verdon Appellant

Counsel

Eva Taché-Green, for the appellant Michelle Campbell, for the respondent

Heard and released orally: September 14, 2017

On Appeal

On appeal from the conviction entered on May 4, 2012, and the sentence imposed on November 22, 2013, by Justice J. F. Réginald Lévesque of the Ontario Court of Justice.

Reasons for Decision

[1] The appellant was convicted of intimidation, criminal harassment and two counts of assault. He was declared a dangerous offender and sentenced to an indeterminate term. A different panel of this court dismissed the appeal from conviction in 2014: R. v. Verdon, 2014 ONCA 807. Accepting the validity of the dangerous offender designation, the appellant challenges the trial judge's decision to impose an indeterminate sentence.

[2] The appellant raises four grounds of appeal. Ms. Taché-Green argues that the trial judge: 1) misapprehended the evidence by reaching the conclusion that the appellant has consistently refused treatment; 2) misapprehended evidence relating to the phenomenon of "burnout" as it applies to aging offenders; 3) applied the wrong test in determining whether the appellant would be manageable in a community, subject to a long-term supervision order; and 4) placed an unfair burden on the defence to establish that resources necessary to manage his risk in the community were available immediately.

[3] We would not give effect to any of these grounds of appeal.

[4] First, the trial judge did not err in his analysis of the evidence dealing with the appellant's past experiences with treatment interventions. The record supports the conclusion that, while the appellant has participated, albeit intermittently, in interventions in the past, they have been completely ineffective. Moreover, there are numerous instances when the appellant has been offered treatment, both while incarcerated and while in the community, which he has resisted. On the evidence that the trial judge accepted, and most especially the assessment of Dr. Booth, it was open to him to conclude that the appellant has little insight into his treatment needs, and has showed no real interest in addressing these issues. In the meantime, he is engaged in a course of behaviour characterized by unabated violence, some that have resulted in criminal convictions, and some that have not.

[5] Second, the trial judge did not misapprehend the evidence related to burnout. Both Drs. Booth and McMaster provided opinions on the matter. Dr. McMaster's evidence was general, even statistical in nature, whereas Dr. Booth's opinion was more focused on the appellant as an individual. The trial judge accepted Dr. Booth's evidence that the appellant showed no signs of calming as he aged. As he said in his report, "In Mr. Verdon's case, he does not appear to have 'calmed' given his presentation in the interviews, institutional conduct, and most recent offences. Instead, he has been fortunate that his behaviour did not result in more significant harm to the victims." Moreover, the evidence demonstrated that the appellant has shown no reduction in his impulsivity, a durable feature of most of his offending. Looking ahead, Dr. Booth testified, "And I don't, again, see evidence at this point, that his risk would decrease significantly enough such that he could be managed safely in the community." At this point, whether the appellant will burnout, or when, is completely speculative.

[6] Third, we reject that Ms. Taché-Green's contention that the trial judge erred by requiring the appellant to demonstrate that his risk to society would be eliminated by a long-term supervision order, rather than being adequately controlled in the community. Ms. Taché-Green acknowledges that the trial judge articulated the correct test, however, she says it was applied incorrectly.

[7] We disagree. The trial judge did not look for proof of risk elimination. Instead, he rejected Dr. McMaster's evidence that the appellant could be controlled in the community. It was open to the trial judge to reject Dr. McMaster's evidence that the appellant was more manageable in the community because his level of violence has been historically decreasing. The definition of a serious personal injury offence in s. 753(4.1) of the Criminal Code does not require that the predicate offences be of comparable severity to previous offences. The record fully supported the conclusion that the appellant posed a serious risk of committing further serious personal injury offences if not detained, and that a long-term supervision order would be inadequate to manage this risk.

[8] Fourth, we disagree that the trial judge erred by requiring the appellant to demonstrate that resources were immediately available to manage his risk in the community. The trial judge's focus on this very practical issue was necessitated by the position of defence counsel at trial (not Ms. Taché-Green) that, in view of 23 months of pre-sentence custody, the appellant should be released and placed on a long-term supervision order immediately. This position required the trial judge to address his mind to this issue.

[9] In summary, the trial judge's conclusions were soundly rooted in the evidence adduced at the sentencing hearing. He was entitled to accept the opinion of Dr. Booth. He gave sufficient reasons for rejecting Dr. McMaster's opposing opinion.

[10] We would not interfere.

"John Laskin J.A."

"Gary Trotter J.A."

"Fairburn J.A."