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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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

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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 2017-11-22

Docket: C58229 & C58632

Panel: Pardu, Huscroft and Fairburn JJ.A.

Parties

Between

Her Majesty the Queen Respondent/Appellant in sentence appeal

and

Timothy Dominic Brissard Appellant/Respondent in sentence appeal

Counsel

John Norris and Meara Conway for the appellant/respondent in sentence appeal, Timothy Dominic Brissard

David Finley for the respondent/appellant in sentence appeal, Her Majesty the Queen

Hearing and Trial Information

Heard: September 21, 2017

On appeal from: The conviction entered on April 30, 2012 by Justice F. Bruce Fitzpatrick of the Superior Court of Justice, sitting without a jury, with reasons for judgment reported at 2012 ONSC 2481 and reasons for sentence reported at 2012 ONSC 7760.

Decision

Pardu J.A.:

Introduction

[1] Timothy Dominic Brissard appeals his conviction for the sexual assault of a 12 year old girl under s. 271 of the Criminal Code, R.S.C. 1985, c. C-46. The Crown appeals the trial judge's refusal to designate Mr. Brissard a dangerous offender pursuant to s. 753 of the Criminal Code.

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

MR. BRISSARD'S CONVICTION APPEAL

Grounds of Appeal

[3] Mr. Brissard argues that the trial judge erred in two respects:

a) He admitted and impermissibly relied upon evidence of Mr. Brissard's prior sexual conduct toward the complainant in contravention of the principles governing similar fact evidence.

b) He failed to address:

(i) inconsistencies between the complainant's previous statements and her trial testimony;

(ii) differences between Mr. Brissard's girlfriend's evidence and the complainant's evidence; and

(iii) aspects of the complainant's behaviour after the sexual assault.

[4] The Crown submits that the evidence of prior sexual conduct was properly admissible as evidence of motive, and that the trial judge did not misuse that evidence. The Crown submits further that the trial judge was aware of the evidentiary issues relating to the complainant's evidence and ultimately decided that they did not undermine her credibility.

Factual Background

[5] M.W., the complainant, was 12 years old at the time of the offences in December 2010. She was friends with her next door neighbour, N.A., and babysat for her from time to time. Mr. Brissard was 26 years old at the time and lived with N.A.

[6] The complainant went to N.A.'s house on December 22, 2010 at around 10:00 p.m. She planned to stay the night as she was supposed to babysit the next morning. After Mr. Brissard came home at around 11:00 p.m., the complainant, Mr. Brissard, and N.A. went to the basement and drank alcohol for a few hours. N.A. became so intoxicated that the complainant had to help her upstairs to bed where N.A. passed out.

[7] The complainant went back to the basement and logged onto her social media account from her computer. She testified that Mr. Brissard then pulled her to the ground, touched her vagina over her clothes, and digitally penetrated her. According to her evidence, Mr. Brissard then pulled down her leggings and had intercourse with her until she pushed him away. He pulled her to the ground a second time, then penetrated her vagina and anus with his penis. She moved away and began to cry. Mr. Brissard apologized and told her that his uncle used to sexually assault him.

[8] The complainant testified that she went upstairs and joined N.A. in bed after the sexual assault in the basement. The complainant stated that she tried to wake N.A. without success. Instead, she held onto N.A.'s infant child who was also in same bed, cried, and fell asleep. The complainant testified that she woke to find her pants down and Mr. Brissard on top of her penetrating her vagina with his penis. She pushed him off and yelled at him to get out of the bed and out of the room.

[9] An argument between the complainant and Mr. Brissard ensued, followed by a final sexual assault which the complainant described as a rape. The complainant testified that Mr. Brissard told her, "you may be young, but your body's not", before he walked out.

Prior Conduct

[10] At trial, N.A. testified that she first met the complainant in August 2010 when N.A. moved into a house beside the complainant's. N.A. stated that she quickly became friends with the complainant, saw the complainant almost every day, and that the complainant would come over to babysit about twice a month.

[11] N.A. further testified that she saw Mr. Brissard "play fight" with the complainant "pretty much every time [the complainant] came over" beginning in August 2010. N.A. also described how Mr. Brissard would bend the complainant over, grab her waist, and touch her buttocks with his groin.

[12] This behaviour was also noticed by another witness, Armand Cummings, who lived in N.A.'s house from late October 2010 until early December 2010. He testified that he saw Mr. Brissard grinding his pelvis against the complainant's buttocks and that he found it to be disturbing.

[13] Mr. Cummings testified that he mentioned what he saw to N.A. before he moved out. For her part, N.A. testified that although she did not notice the impropriety of the touching before Mr. Cummings brought it up, she thought that Mr. Brissard was "feeling [the complainant] up" in retrospect.

Trial Judge's Use of the Evidence of Prior Conduct

[14] At para. 22 of his reasons, the trial judge accepted the Crown's theory that the appellant was "exhibiting a prior sexual interest in M.W" and that this explained "objectively why he would take the occasion, when his own girlfriend was intoxicated to the point of passing out, to take his sexual interest in M.W. to a more significant level." He used this evidence of prior conduct to support the complainant's credibility and stated at para. 31 of his reasons:

I also find that M.W.'s evidence that she was assaulted is made more credible by the evidence of prior sexual interest demonstrated by Mr. Brissard. To the extent that both N.A. and Mr. Cummings noticed prior incidents of inappropriate contact between Mr. Brissard and M.W., I am assisted in assessing M.W.'s evidence as credible. Also N.A.'s evidence concerning the argument that occurred in the morning of December 23rd, and her evidence concerning M.W.'s avoidance of Mr. Brissard corroborates her evidence of being assaulted. Accordingly I find that Timothy Brissard intentionally applied force to M.W. by touching her in a sexual nature using both his penis and his hands.

[15] No one objected to the admission of this prior conduct evidence or suggested that a voir dire was required at trial.

Analysis

Is the Evidence Relevant?

[16] Mr. Brissard submits that the trial judge erred by admitting the evidence of prior conduct because it was similar fact evidence that should have been subject to a voir dire and the analysis set out by the Supreme Court of Canada in R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908. The Crown, on the other hand, submits that the prior conduct evidence was used to illustrate Mr. Brissard's state of mind and sexual interest in the complainant. As such, the Crown argues that the prior conduct was admissible as evidence of motive and that its probative value outweighed its prejudicial effect.

[17] Motive is a state of mind, a specific inclination to do the very act charged in relation to a particular victim. Evidence of a mental state, or motive, may be relevant to prove the accused did the act constituting the offence or it may be relevant to prove his or her intention or other mental state.

[18] As this court explained in R. v. Jackson (1980), 57 C.C.C. (2d) 154 at 167 (Ont. C.A.), [1980] O.J. No. 1468, at para. 37, evidence of motive may include evidence of relevant emotions or desires:

Motive, in the sense of an emotion or feeling such as anger, fear, jealousy and desire, which are likely to lead to the doing of an act, is a relevant circumstance to prove the doing of an act as well as the intent with which an act is done. The relevant emotion may be evidenced by

(a) conduct or utterances expressing the emotion,

(b) external circumstances which have probative value to show the probable excitement of the relevant emotion, and

(c) by its prior or subsequent existence (if sufficiently proximate): see Wigmore On Evidence, 3rd ed., Vol. I, pp. 557-61; Vol. II, pp. 328-29.

[19] Here the prior conduct tends to establish that the accused had a sexual interest in a twelve year-old girl. It was proximate in time and location, occurring repeatedly between August and December 2010 within the same home where the offence was alleged to have taken place. Importantly, the prior conduct directly involved and was aimed at the complainant.

[20] Evidence that the accused had a sexual interest in the complainant logically tends to support the position that he acted on that interest on December 23, 2010, the date of the offence alleged in the indictment. Accordingly, the evidence is relevant.

Does the Prior Conduct Cast the Accused in a Disreputable Light?

[21] The prior conduct ascribed to the accused is outside the time period described in the indictment. It tends to show that he committed other sexual acts against the complainant at earlier times. There can be no doubt that these earlier acts would be viewed as disreputable by a reasonable person.

[22] As such, this evidence is presumptively inadmissible. Once these two elements are present, even where the evidence is tendered as proof of motive, it is not admissible unless a trial judge first concludes that the probative value outweighs its prejudicial effect: R. v. Johnson, 2010 ONCA 646, at paras. 92 and 97 per Rouleau J.A.

[23] The procedural rules of the Superior Court of Justice applicable to criminal proceedings recognize this presumptive inadmissibility. Rule 30.01 of the Criminal Proceedings Rules for the Superior Court of Justice (Ontario), SI/2012-7 provides that a party who wishes to tender evidence that is presumptively inadmissible, including "evidence of disreputable conduct by an accused, other than the conduct charged in the indictment" must serve an application asking for that relief 30 days before trial or the date set for pre-trial motions. The application must include a "precise, case-specific statement of the basis and grounds upon which the evidence is said to be admissible.

Does the Probative Value of the Evidence Outweigh the Potential Prejudice Associated with Admission of This Evidence?

[24] I would conclude that this evidence was admissible. It was relevant. The risk of prejudice was low in this judge alone trial. The prior conduct was much less serious than the offence covered by the indictment.

[25] Each assessment of the balance of probative value and potential prejudice depends on the facts of a particular case and the purpose for which the evidence is tendered. The evidence here is not general bad character evidence as, for example, use of child pornography, or writings expressing a desire to sexually assault children generally. It is more akin to evidence that an accused shot and missed the victim who was ultimately killed in a shooting shortly thereafter. Or, for example, writings that express an intention to commit a sexual assault on the very person ultimately targeted: R. v. Byers, 2017 ONCA 639. The proximity in time and location, and the identity of the victim enhance the probative value of this evidence. The probative value of this evidence outweighed the potential for prejudice from misuse of the evidence.

[26] The appellant relies on R. v. J.H. (2006), 215 C.C.C. (3d) 233 (Ont. C.A.), [2006] O.J. No. 4832 in support of his argument that the prior conduct evidence should have been excluded. However, that case is very different from the present one. In R. v. J.H., a man was accused of forced sexual intercourse with a step-sibling some 20 years earlier when they were both underage. The Crown attempted to introduce evidence of sexual activity between them at least four years before the incident giving rise to the charge. There was no temporal connection between those previous activities and the offence at bar. As a result, this court held that the evidence of the accused's prior conduct was more in the nature of general propensity rather than motive. Sexual contact four years before an alleged assault has little probative value in relation to motive to commit the alleged assault. The trial judge in that case, therefore, erred in admitting the evidence and using it to support a finding of guilt.

Did the Trial Judge Misuse the Evidence?

[27] The trial judge did not misuse the evidence. He did not reason that the accused was a person of bad character who was therefore likely to have committed the offence. According to the trial judge, the appellant's sexual interest in the victim made it more likely that he acted on that interest. That interest supported the complainant's credibility.

Guidance for Trial Judges

[28] Despite the presumptive inadmissibility of bad character evidence, this court has frequently held that motive evidence is admissible – even if it tends to show bad conduct: R. v. Chenier (2006), 205 C.C.C. (3d) 333 at 362-65 (Ont. C.A.), [2006] O.J. No. 489, at paras. 80-86; and R. v. Carroll, 2014 ONCA 2, 304 C.C.C. (3d) 252, at paras. 121-27. Evidence of prior familial violence is frequently admitted where an accused is charged with the homicide of a domestic partner. Evidence of sexual grooming to facilitate commission of a sexual assault on a child is frequently admitted, even where the conduct is outside the time frame defined by the indictment. Both are evidence of motive.

[29] This court has held that prior conduct evidencing motive does not require a cautionary jury instruction against propensity reasoning even where that conduct amounts to disreputable behaviour: R. v. Pasqualino, 2008 ONCA 554, 233 C.C.C. (3d) 319, at para. 65; R. v. Moo, 2009 ONCA 645, 247 C.C.C. (3d) 34, at para. 100; R. v. Carroll, at para. 123; and R. v. Salah, 2015 ONCA 23, at para. 88.

[30] This does not mean, however, that a court can disregard the need for an admissibility inquiry in relation to this evidence. In some cases, evidence suggesting motive may be tenuous, or remote, and where it amounts to bad character evidence, the probative value may be outweighed by the risk of prejudice, particularly in a jury trial.

[31] On the other hand, in this post R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631 era, trial judges should not be required to embark on unnecessary evidentiary hearings. In many cases where admissibility is evident, and there is no opposition to admission of the evidence, trial judges should note that agreement on the record, or a prehearing judge should record that agreement, so that the consensus is clear, and no lengthy evidentiary hearing will be necessary.

[32] In this case, questions posed to the complainant did not clearly elicit evidence about whether the prior disreputable conduct took place. Defence counsel expressly consented to the Crown asking N.A. about the prior improper touching by way of re-opening its examination in chief. Defence counsel's theory was that the complainant's repeated visits to N.A.'s home were inconsistent with her allegations of the sexual assaults. All participants at trial proceeded on the assumption that the prior conduct evidence was admissible. It was appropriate for the trial judge to rely on the position expressed by defence counsel.

Weighing the Evidence

[33] Mr. Brissard submits that the trial judge failed to adequately deal with inconsistencies between the complainant's pre-trial statements and trial testimony, differences between N.A.'s and the complainant's evidence as to what occurred in N.A.'s bed, and aspects of the complainant's behaviour when she continued to visit N.A.'s home after the sexual assault.

[34] The complainant was 14 years old at the time of trial. She had difficulty relating to the events underlying the charge. She cried, covered her face, and became non-responsive at times. Rather than putting the various alleged inconsistencies to her, Crown and defence counsel submitted an agreed statement of facts outlining those differences to the trial judge:

Five Inconsistencies Agreed Upon – Re. M.W. Testimony

First Statement – video statement taken after hospital visit, after midnight on January 9, 2011

Second Statement – video statement taken on 11 January 11

Preliminary Inquiry Testimony – given on August 16, 2011

1. In the first and second statements, M.W. indicated that T.B. put his penis into her butt upstairs in her bed. She did not mention this at the preliminary inquiry. In the testimony at trial, M.W. indicated that T.B. put his penis into her butt in the basement.

2. In the first statement, M.W. indicated she was pulled down from behind by the waist by Tim. In her testimony at trial, she indicated she was pulled down by her shoulders.

3. In her first statement, M.W. indicated she was being licked 'down there' indicating her vagina. She did not mention that here, nor at the preliminary inquiry.

4. In her second statement, M.W. said that Tim put his fingers in her butt upstairs. She did not mention that at trial.

5. In her first statement to the police, M.W. indicated that Tim was "jacking off" on the bed upstairs after the sexual contact in [N.A.'s] bed. She did not mention that at the trial.

[35] On appeal, Mr. Brissard further submits that the trial judge also failed to adequately address how N.A. did not notice the sexual assault beside her in bed and materially misapprehended the evidence as to why the complainant returned to N.A.'s home after the sexual assaults.

[36] The trial judge recognized the alleged inconsistencies in the complainant's evidence at paras. 29 to 40 of his reasons but held that they did not raise a reasonable doubt because the complainant did not waver from her essential allegations of penile penetration. In his view, the strength of the Crown's evidence was not undermined by the complainant's visits to N.A.'s home after the sexual assaults.

[37] The trial judge reasoned that frailties in the complainant's account of certain details of the assaults could be explained by her young age and the nature of the offences. He also found that the complainant returned to N.A.'s home after the sexual assaults because she wanted to pretend the assaults never happened. Finally, the trial judge concluded that N.A. did not see the sexual assault happening in bed beside her because she was just waking from a drunken stupor. As such, the trial judge adverted to and addressed all of the matters now raised in this ground of appeal.

[38] Mr. Brissard is essentially asking this court come to different conclusions on the credibility of the complainant and other Crown witnesses. However, as noted in R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 32, "where credibility is a determinative issue, deference is in order and intervention will be rare"

[39] Further in R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621, at para. 20, the court stated: "Assessing credibility is not a science. It is very difficult for a trial judge to articulate with precision the complex intermingling of impressions that emerge after watching and listening to a witness and attempting to reconcile the various versions of events … in the absence of palpable and overriding error by the trial judge, his or her perceptions should be respected." See also R. v. Szczerbaniwicz, 2010 SCC 15, [2010] 1 S.C.R. 455, at para. 2.

[40] I therefore see no basis to interfere with the trial judge's assessments of credibility and find no palpable and overriding error. Accordingly, I would dismiss the appeal from conviction.

THE CROWN'S DANGEROUS OFFENDER APPEAL

[41] I turn now to the Crown's appeal from the trial judge's refusal to declare Mr. Brissard a dangerous offender pursuant to s. 753 of the Criminal Code.

Overview of Dangerous Offender and Long-Term Offender Designations

[42] The trial judge refused to designate Mr. Brissard a dangerous offender, but designated him a long-term offender under s. 753.1 of the Criminal Code and sentenced him to nine years' imprisonment and a long-term supervision order of ten years. The Crown does not ask this court to alter the sentence imposed, but asks that this court declare Mr. Brissard to be a dangerous offender.

[43] There are consequences to a dangerous offender designation even if the sentence and supervision order are untouched.

[44] Under ss. 753.01(1) and 753.01(4), the Crown may apply for an assessment of a person who has previously been designated a dangerous offender and is later convicted of a serious personal injury offence or breach of a long-term supervision order. The Crown can then apply for an indeterminate sentence or a new period of long-term supervision following that assessment.

[45] Section 753.01(5) provides that the court shall impose an indeterminate sentence where the Crown makes such an application, unless the court is satisfied that a determinate sentence for the subsequent offence will adequately protect the public against the commission of another murder or serious personal injury offence by the dangerous offender.

[46] Mr. Brissard concedes that the index offence of which he was convicted is a serious personal injury offence as defined in s. 752 of the Criminal Code. The parties also agreed to a joint submission as to the length of any determinate sentence and long-term supervision order in the event that the trial judge found Mr. Brissard was a long-term offender or designated him a dangerous offender and decided that a determinate sentence was appropriate.

[47] The issue during the application below was whether the Crown had proven that Mr. Brissard met the statutory definition of a dangerous offender under ss. 753(1)(a)(i) or 753(1)(b) of the Criminal Code beyond a reasonable doubt.

Statutory Framework

[48] Under s. 753(1)(a)(i), the Crown must prove that Mr. Brissard "constitutes a threat to the life, safety or physical or mental well-being of other persons on the basis of evidence establishing":

a) a pattern of repetitive behaviour by Mr. Brissard, which includes a consideration of the index offence;

b) a failure to restrain his behaviour; and

c) a likelihood of causing death, injury, or severe psychological damage to other persons in the future if he fails to restrain his behaviour.

[49] Under s. 753(1)(b), the Crown must prove that Mr. Brissard has been convicted of a serious personal injury offence and has shown by his conduct in any sexual matter, including the index offence:

a) a failure to control his sexual impulses; and

b) a likelihood that he will cause injury, pain, or other evil to other persons if he fails to control his sexual impulses in the future.

[50] The conditions for a long-term offender designation, by contrast, are defined in s. 753.1(1) of the Criminal Code. A long-term offender designation may be ordered if the court is satisfied that:

a) it would be appropriate to impose a sentence of imprisonment of two or more years for the index offence;

b) there is a substantial risk that the offender will reoffend; and

c) there is a reasonable possibility of eventual control of the risk posed by the offender in the community.

[51] Section 753.1(2) provides that there is a substantial risk that the offender will reoffend if the offender has been convicted of a prescribed offence (such as sexual assault) and the offender:

a) has shown a pattern of repetitive behaviour, including the index offence, that shows a likelihood of causing death, injury, or severe psychological damage to other persons; or

b) by conduct in any sexual matter, including the index offence, has shown a likelihood of causing injury, pain, or other evil to other persons in the future through similar offences.

Crown's Grounds of Appeal

[52] The Crown submits that the trial judge erred in refusing to designate Mr. Brissard a dangerous offender on the following grounds:

a) He unreasonably concluded that there was no pattern of repetitive behaviour, which is a necessary precondition to a dangerous offender designation under [s. 753(1)(a)(i)].

b) He considered extraneous factors going beyond the elements of the statutory test even though a dangerous offender designation was mandatory once the elements of the statutory test were met.

c) He considered an irrelevant "intractability" factor in wrongly concluding that the Crown had not proven a likelihood of future harm to others.

Pattern of Repetitive Behaviour and Consideration of Extraneous Factors

[53] Mr. Brissard had a criminal record of 27 convictions prior to the instant conviction. Many of his previous convictions were for breaches of probation, conditional sentences, recognizances, and failures to appear. Two of the previous convictions, however, are alleged to form part of a pattern of repetitive behaviour for the purposes of the dangerous offender test.

[54] The first of these previous convictions related to conduct occurring on July 10, 2005, the day after he was released from prison. On that date, Mr. Brissard went to a bar where he saw his former partner with her new boyfriend. There was conflict between them. Mr. Brissard became angry when she refused to have intercourse with him. He left the bar drunk and enraged. Mr. Brissard entered his half-brother's house and got into a bed where a nine year-old child was sleeping. He pulled down her shorts and underwear and touched her genitals. She woke, screamed, and got out of the bed. Mr. Brissard fled the residence. A nurse examined the child and observed that her genitals were red and that there were abrasions around her vagina and anus.

[55] The second of these previous convictions related to conduct on September 12, 2006. On that date, the adult complainant was sleeping in her bed and woke to find Mr. Brissard standing beside her bed. He had entered through an open kitchen window; his plan was to steal cigarettes. He had been drinking and smoking cannabis. He got into the bed, put a knife to her throat, and covered her mouth. She recognized him as her upstairs neighbour. He told her not to scream, said he would not hurt her, and asked for money. When he left the room to go to the kitchen, she locked the door and yelled at him to get out. He left and she called 911.

[56] The trial judge accurately summarized the parties' positions and the jurisprudence they raised with respect to the pattern of behaviour element.

[57] The pattern of repetitive behaviour relevant to s. 753(1)(a)(i) is a pattern that contains "enough of the same elements of unrestrained dangerous conduct to be able to predict that the offender will likely offend in the same way in the future … however, the offences need not be the same in every detail; that would unduly restrain the application of the section": R. v. Hogg, 2011 ONCA 840, at para. 40; and R. v. Szostak, 2014 ONCA 15, 118 O.R. (3d) 401, at para. 56. Differences in the details of the offences will not be relevant if the index and past offences represent "a pattern of repetitive behaviour by the offender … showing a failure to restrain his or her behaviour and a likelihood of causing death or injury to other persons, or inflicting severe psychological damage on other persons, through failure in the future to restrain his or her behaviour": Criminal Code, s. 753(1)(a)(i). As this court confirmed in Szostak, at para. 63: "'Similarity…can be found not only in the types of offences but also in the degree of violence or aggression threatened or inflicted on the victims'" (citation omitted).

[58] The Crown argues that the trial judge's analysis of Mr. Brissard's pattern of behaviour was inadequate because it amounted to nothing more than the following conclusory statement at para. 64 of his reasons: "I do not accept that the Crown has demonstrated that the offences for which Mr. Brissard has been convicted are of a nature that the pattern required … has been made out." The Crown submits that the trial judge did not relate the evidence to the law, articulate the evidence he relied upon for his conclusion, or provide adequate reasons.

[59] I do not need to determine whether the trial judge erred in failing to find a pattern of behaviour or whether such an error is an error of law that is amenable to the Crown's appeal. Nor do I need to resolve whether the trial judge's consideration of factors outside the statutory test amount to a reversible error of law. This is because the trial judge found that the Crown failed to prove the necessary "likelihood" element of the dangerous offender statutory test. That finding, as described beginning at para. [68] below, is dispositive of this appeal.

The Intractability Element

[60] The Crown submits that the judge erred by requiring proof that there was no reasonable possibility of controlling Mr. Brissard's risk of re-offending before a dangerous offender designation could be made.

[61] This "intractability" element was a factor in determining whether to make a dangerous offender designation under the regime in force until July 2, 2008. Under the former regime, a judge had discretion to refuse a dangerous offender designation even if the statutory test was met. That discretion had to be exercised according to fundamental sentencing principles, including the principle of proportionality. If a judge was satisfied that the accused met both the test for a dangerous offender and long-term offender designation, the judge was obliged to order a long-term offender rather than dangerous offender designation: R. v. Johnson, 2003 SCC 46, [2003] 2 S.C.R. 357, at para. 40.

[62] However, the dangerous offender sections of the Criminal Code were amended on July 2, 2008. Section 753(1) now provides that "the court shall find the offender to be a dangerous offender" if the statutory criteria are satisfied. As such, the regime now in force mandates a dangerous offender designation if the statutory test is met.

[63] Due to these statutory amendments, intractability is no longer a required element in ordering a dangerous offender designation: Szostak, at para. 52. A judge's discretion in respect of a dangerous offender declaration can now only be exercised with respect to the sentence imposed on a designated dangerous offender under s. 753(4).

[64] The trial judge did not have the benefit of Szostak at the time of his sentencing decision. As a result, he relied upon jurisprudence interpreting the prior statutory regime at para. 62 of his reasons that held that proof of intractability was a necessary consideration in deciding whether to make a dangerous offender designation.

[65] He was also led in this direction in part by the evidence of the Crown psychiatrist who embarked on a discussion as to whether the appellant was more appropriately described as a long-term offender rather than a dangerous offender due to the statistical risk assessment of Mr. Brissard's recidivism. The psychiatrist agreed that his "opinion isn't that Mr. Brissard fits into those categories where he should be, absolutely be a DO [dangerous offender]" as opposed to a long-term offender. The trial judge adopted this evidence at para. 65 of his reasons:

I make the findings concerning "likelihood" primarily on the basis of the evidence of Dr. Klassen. In particular, I put emphasis on his testimony to the effect that Mr. Brissard does not absolutely fit in the category of a dangerous offender. I agree with the submissions of the defence that Mr. Brissard fits more in the middle range of these types of extreme offenders. Parliament has accounted for this by providing for a designation of a Long-term Offender and in this case, in my view, this is the appropriate designation for Mr. Brissard.

[66] While Dr. Klassen's evidence that Mr. Brissard might have been classified as a long-term offender rather than a dangerous offender may have been relevant to the designation of an offender as a dangerous offender under the former statutory regime, it no longer has any application for this purpose under the amended provisions. The trial judge erred by using this evidence as a factor in determining whether a dangerous offender designation should be made.

[67] In the same vein, the trial judge also erred in considering proportionality in determining whether to make a dangerous offender designation. Given that there is no discretion to refuse a dangerous offender designation if the statutory criteria are met, proportionality is only a factor in determining the appropriate sentence to be imposed under s. 753(4).

Factual Findings Regarding Likelihood of Re-offending

[68] Despite these errors of law, the trial judge made certain factual findings relating to the requisite "likelihood" elements of the ss. 753(1)(a) and 753(1)(b) statutory tests at para. 64 of his reasons:

…I do not find the evidence on this hearing has proven a likelihood either:

1. that his behavior will cause death or injury to others, or inflicting severe psychological damages on others through a failure to restrain his behavior (s. 753(1)(a)(ii); and

2. that his failure in future to control his sexual impulses will cause injury, pain or other evil to persons.

[69] There was some support for these factual findings in Dr. Klassen's expert opinion evidence. For example, the doctor revised his calculation of Mr. Brissard's probability of re-offending after re-characterizing his September 2006 offences as non-sexual. This reduced the probability of recidivism to less than 50%, a change the doctor acknowledged had significant ramifications for determining whether Mr. Brissard was likely to re-offend. Other testing instruments, by contrast, suggested a higher probability of recidivism. However, the doctor acknowledged in direct examination that such discordance in the test results could give him pause with respect to his conclusions on recidivism:

And sometimes it's useful to, to see whether the instruments are concordant or discordant with respect to risk processes. I feel most confident about a person's risk when both instruments say there's a likelihood of re-offence. I feel a bit less confident about re-offence when the two instruments are discordant, and they are a bit discordant in this case, and I think I've indicated that in the body of my report.

[70] In addition, Dr. Klassen also testified that Mr. Brissard's risk of re-offending would attenuate with age.

[71] Although intractability is no longer a factor in deciding whether to designate someone a dangerous offender, certain other prospective inquiries are nevertheless inherent in the statutory test. Does the offender constitute a threat to other persons? Is there a likelihood he will cause injury to others? Will this result from a "failure in the future" to restrain his behaviour? Will the offender fail in the future to control his sexual impulses?

[72] These residual prospective inquiries, however, are questions of mixed fact and law. The Crown is proscribed from advancing an appeal based on such questions since it is restricted to appeals on "any ground of law" under s. 759(2) of the Criminal Code: Szostak, at para. 24.

[73] Where the Crown has a right of appeal on a question of law only, the Crown must satisfy the appellate court that any errors on the part of the trial judge might reasonably be thought, "in the concrete reality of the case at hand, to have had a material bearing" on the outcome: R. v. Graveline, 2006 SCC 16, [2006] 1 S.C.R. 609, at para. 14; and R. v. Lewis, 2014 ONCA 95, 312 C.C.C. (3d) 339, at para. 19. The Crown's appeal cannot succeed if it is purely hypothetical that the disposition would have been different but for the error of law.

Reliability of Psychiatric Evidence

A dangerous offender designation application relies upon psychiatric evidence predicting future risk. That evidence may sometimes be unreliable. (See R. v. Lyons, [1987] 2 S.C.R. 309 at 367, [1987] S.C.J. No. 62)

[74] In Lyons, Justice La Forest held that, due to the inherent frailties and difficulties with such evidence, the procedural protections afforded to an "offender, especially on review, ought to be very rigorous": Lyons, at 368.

[75] Here, Dr. Klassen highlighted the fallibility of psychiatric evidence when he explained that statistical testing instruments have become the accepted approach in these sorts of cases since clinical psychiatric judgments are not an accurate basis for predicting risk of recidivism. Moreover, the doctor acknowledged that he became less confident about the likelihood Mr. Brissard would re-offend because of the discord in the various test results.

[76] Given the Crown's burden of proving the elements of the statutory dangerous offender test beyond a reasonable doubt, and the inherent fallibility associated with the prediction of recidivism, despite the errors in law, I am not persuaded that there is any basis to interfere with the trial judge's largely factual conclusion that the Crown failed to prove a likelihood of recidivism beyond a reasonable doubt.

[77] The trial judge's legal errors are immaterial to the disposition of this appeal because the Crown failed to prove the requisite "likelihood" element of the dangerous offender test beyond a reasonable doubt. Mr. Brissard cannot be declared a dangerous offender absent such proof.

DISPOSITION

[78] For the reasons above, I would dismiss Mr. Brissard's conviction appeal and also would dismiss the Crown's appeal from the refusal to designate him a dangerous offender.

"G. Pardu J.A."

"I agree Grant Huscroft J.A."

"I agree Fairburn J.A."

Released: November 22, 2017