Court of Appeal for Ontario

Date: May 10, 2018

Docket: C61843

Panel: Hoy A.C.J.O., MacPherson and Rouleau JJ.A.

Between

Her Majesty the Queen Respondent

and

Taj Thaine Williams Appellant

Counsel:

• Wayne Cunningham, for the appellant
• Rachel Young, for the respondent

Heard: January 25, 2018

On appeal from the dangerous offender designation imposed on November 10, 2014 by Justice T.M. Dunnet of the Superior Court of Justice, sitting without a jury, with reasons reported at 2014 ONSC 6418.

Rouleau J.A.:

OVERVIEW

[1] This appeal concerns the admissibility and proper use of police synopses in a dangerous offender application under s. 753 of the Criminal Code. For the reasons that follow, I conclude that while these synopses are generally admissible, they must be treated with caution. In this case, the trial judge erred in finding that the police synopses in their entirety had been proven beyond a reasonable doubt.

[2] However, as will be further explained, this error had no impact on the outcome. The disputed facts from the synopses played virtually no role in the sentencing judge's finding that the appellant is a dangerous offender. That finding was well-supported by the remainder of the record and I would therefore dismiss the appeal under s. 759(3)(b) of the Criminal Code.

FACTS

[3] Mr. Williams was found guilty of assault causing bodily harm and theft. The offences took place on May 8, 2011. Mr. Williams followed an 18-year-old woman into her own apartment building, took her phone, led her into a stairwell, chased her down the hall, and bit her on the forehead. He has Hepatitis C and exposed her but did not infect her. The appellant committed the offence after an evening of drinking and doing crack.

[4] The Crown applied under s. 753 of the Criminal Code to have Mr. Williams declared a dangerous offender and sentenced to detention in a penitentiary for an indeterminate period of time.

[5] In support of its application, the Crown filed multiple volumes of documentary evidence including Mr. Williams' education record, Children's Aid Society (CAS) records, Ministry of Children and Youth Services records, Ministry of Community, Safety and Correctional Services records, Correctional Service of Canada (CSC) records and program descriptions, medical records, psychological and psychiatric assessments, pre-sentence reports and criminal record. The details of the appellant's criminal record were set out in transcripts of guilty pleas and police synopses, which were included in the records tendered by the Crown.

[6] In addition, Dr. Philip Klassen carried out an assessment under s. 752.1 of the Criminal Code, during which he reviewed Mr. Williams' criminal record with him. Dr. Klassen wrote an expert report and testified at the hearing as an expert in forensic psychiatry including risk assessment.

(a) Criminal Record

[7] At the time of sentencing, Mr. Williams was 32 years old and his criminal record contained 33 convictions spanning a 13-year period. In her reasons, the sentencing judge summarized the various offences committed by Mr. Williams prior to the predicate offence. Her description of the offences drew from the transcripts of guilty pleas, police synopses and the report of Dr. Klassen's discussions with Mr. Williams. Focussing primarily on the details of the convictions for assault, Mr. Williams' convictions can be summarized as follows:

1. Assault – March 16, 1998 (Youth Court)

[8] When Mr. Williams was fifteen, he was convicted of assault. The police synopsis indicates that Mr. Williams put a fellow student in a headlock while another student assaulted the victim. The victim's eye was swollen shut and he was bleeding heavily. Mr. Williams disputes this, claiming that he warned the victim that another student intended to assault him and told him to leave. When the other student arrived, Mr. Williams pushed the victim. He was sentenced to one year of probation.

2. Assault – June 30, 1999 (Youth Court)

[9] The police synopsis indicates that Mr. Williams head-butted the victim, another student. The victim sustained a cut to his lip. In Mr. Williams' version, his head "accidentally nudged" the victim. He was sentenced to 5 days in open custody and probation for 18 months.

3. Robbery – July 6, 1999 (Youth Court)

[10] The only information on this offence comes from a note from CSC records. The note states that Mr. Williams was with a group of males when they decided to rob an ice cream vendor. Mr. Williams maintains that he simply ran with a bag of cigarettes stolen by his friend.

4. Assault Causing Bodily Harm – July 28, 1999 (Youth Court)

[11] The police synopsis indicates that the victim was a woman whom Mr. Williams, coming at her from behind a hedge, punched numerous times. Mr. Williams admitted to Dr. Klassen that he assaulted the victim, but said he did so because she called him a "nigger". He served 43 days in pre-sentence custody, and received a resulting sentence of four months in secure custody and probation for one year.

5. Possession of Property Obtained by Crime – January 10, 2002

[12] The police synopsis states that Mr. Williams was one of five individuals found in possession of merchandise stolen from a shopping mall.

6. Theft Under $5000 and Fail to Comply with Probation – July 2, 2002

[13] There was no information on this offence and Mr. Williams did not remember it.

7. Assault Causing Bodily Harm and Fail to Comply with Probation – August 19, 2002

[14] The police synopsis states that Mr. Williams intervened in a fight between a co-accused and the victim, who were hitting each other outside a fast food restaurant. Mr. Williams hit the victim in the head with a rock. He and the co-accused then struck the victim with a closed fist several times. The victim suffered a broken nose and a laceration above his eye requiring stitches. Mr. Williams admitted to striking the victim, but did not remember using a rock. He received a thirty day intermittent sentence and probation for one year.

8. Public Mischief, Fail to Comply with Recognizance, Fail to Comply with Probation, Assault with Intent to Resist Arrest, Uttering Threats – May 16, 2003

[15] Based on the transcript of Mr. Williams' guilty pleas, the sentencing judge found that Mr. Williams left a phone message for the victim in which he stated that he would shoot her in the face. This was admitted to Dr. Klassen. On another occasion, he punched the head of a police officer who was trying to arrest him. Mr. Williams stated that he was being wrongly arrested, and pulled his arm away from the arresting officer. He did not recall punching the officer. After 31 days of pre-sentence custody, he received an intermittent sentence of 90 days and probation for 18 months.

9. Assault – August 26, 2003

[16] The police synopsis states that Mr. Williams grabbed an 18-year-old female high school student in a "bear hug" and pulled her toward the backyard of a townhouse unit, saying "Come with me. I want to show you something". He released her when she promised to return that way after school. The transcript of the guilty plea indicates that Mr. Williams admitted that he assaulted the complainant by grabbing both of her arms from behind. He did not admit, as proposed by the Crown, that he attempted to drag the complainant. Mr. Williams told Dr. Klassen that the victim had thrown rocks at his house and walked over his garden, which she had also done on other occasions in the past. After 58 days of pre-sentence custody, he received a suspended sentence and probation for one year.

10. Theft, Uttering Threats x 3, Fail to Comply with Probation, Fail to Comply with Recognizance, Criminal Harassment, Robbery, Assault Causing Bodily Harm, Attempt Theft, Mischief x 3, Fail to Comply with Probation – October 25, 2004

[17] According to the transcript of the guilty plea, Mr. Williams telephoned the current boyfriend of his former girlfriend on three occasions to threaten him. The threats included putting a gun in his face and shooting him. Mr. Williams admitted to these events and stated that he was sorry for what he had done.

[18] On another occasion, Mr. Williams admitted to having head-butted a man because he feared he was going to be "rushed" by a group of persons.

[19] The other offences are also summarized. In total Mr. Williams was sentenced to three years in the penitentiary and three years of probation.

11. Robbery × 2, Unlawfully in Dwelling House — February 22, 2007

[20] On the first robbery charge, the transcript of the guilty plea states that Mr. Williams grabbed a woman's purse after she made a withdrawal at an ATM. The other robbery was also purse snatching. After this last robbery, Mr. Williams forced entry into an apartment and hid in a closet.

12. Possession of a Schedule II Substance – September 25, 2008

[21] CSC records show that Mr. Williams was found in possession of three grams of marihuana by correctional officers.

13. Assault Causing Bodily Harm (Predicate Offence) and Theft – June 25, 2013

[22] Mr. Williams was convicted following a trial by judge alone for the predicate offence of assault causing bodily harm, and for theft. The trial judge found that Mr. Williams bit the victim, an eighteen-year-old woman he did not know, in the forehead after he took her cellphone.

(b) Assessment of Mr. Williams while in custody

[23] The sentencing judge also considered Mr. Williams' provincial correctional records that described a troubled childhood marked by violence and substance abuse. They indicated that he had anger issues, was known to lie and that he assaulted another inmate while incarcerated in 2010.

[24] The CSC records describe Mr. Williams as minimizing the severity of his actions and posing a high risk of recidivism. Counselling for substance addiction was recommended, but it appears that this did not materialize. For the most part, Mr. Williams did not cooperate in the anger management and cognitive skills programming offered to him. Throughout, he continued to minimize his actions.

[25] A psychological risk assessment report from the Millhaven Assessment Unit, dated December 29, 2004, reported as follows under the heading "Clinical Impressions":

Mr. [Williams'] glib affect, his off-handed comments about being capable of "doing more" to defend himself during a confrontation, and his lengthy history of assaults and harassment charges are indicative of an evasive, manipulative style, that is compounded by a lack of impulse control. Mr. [Williams'] expression of remorse for his victims was superficial and not a reflection of shame or desire to change himself.

[26] A psychological assessment report prepared at the Kingston Penitentiary on November 16, 2007 states:

Mr. [Williams'] conviction for assault cause bodily harm from 1999 and his assault conviction from 2003 both involve what appear to be young females as victims being forcefully taken to relatively secluded areas and subsequently physically assaulted. It is uncertain what may have transpired had the victims not resisted as strongly as they did. It does not appear that robbery was the purpose of these assaults, as there is no mention of this in the official version of the offences. This leaves limited options as to what he may have been trying to accomplish.

[27] When Mr. Williams was at the Keele Community Correctional Center in September 2009, he was interviewed by a psychiatrist, Alina Iosif. She was of the opinion that Mr. Williams' history and presentations were consistent with a diagnosis of significant psychopathy and antisocial personality disorder. He displayed no remorse, was glib, appeared manipulative and lacked empathy and insight into his personality characteristics and behaviour. She was of the view that his risk to reoffend, and in particular to become violent or aggressive, was very high.

[28] On November 25, 2009, a psychologist, Rafael Bergamasco, described Mr. Williams' risk level as follows:

Risk for reactive/irritable violence (mostly emotional, mostly impulsive, follows a need to express a state/ desire, usually triggered by a perceived insult, disproportionate to external trigger). High, including when dealing with his father and in intimate relationships.

(c) Report of Dr. Klassen

[29] Central to the sentencing judge's decision was the report and testimony of Dr. Klassen. He concluded that Mr. Williams had severe personality disorder and met DSM-5 criteria for antisocial personality disorder with accompanying narcissistic personality traits. In Dr. Klassen's opinion alcohol and cocaine use disorders were also present.

[30] As for risk assessment, Dr. Klassen was of the view that testing showed consistently high results for reoffending and violent recidivism. The results were summarized by the sentencing judge as follows:

When Dr. Klassen applied the Psychopathy Checklist-Revised (PCL-R), his score for [Mr. Williams] was 35 out of a possible 40 points. That score corresponds to the 98th percentile of a referenced sample of North American offenders. A score of 35 predicts significant difficulties with both community supervision and treatment responsiveness.

Dr. Klassen's application of the VRAG yielded a score of 29, which placed [Mr. Williams] at or above the 99th percentile of randomly selected members of that group. According to Dr. Klassen, 100% of individuals with similar scores committed further violent offences over ten years of opportunity in the community. Dr. Klassen testified that this figure may represent some overestimate of risk, because it is based on older statistics, and recidivism rates are generally lower today. This instrument has also been shown to predict domestic violence.

Finally, Dr. Klassen assessed [Mr. Williams] with the Historical Risk Management (HCR-20) test. [Mr. Williams] scored 33 points out of a possible 40. According to Dr. Klassen, similarly-scoring individuals from a CSC sample reoffended at a rate of 93% over approximately 7.5 years in the community. He testified that the HCR-20 score may also overestimate the risk of reoffending, because base rates of violent behaviour were higher when the models were created.

[31] These consistently high scores led Dr. Klassen to conclude that there was a high likelihood of Mr. Williams committing multiple offences in the future, and a probability of violent re-offence. As a result, Dr. Klassen believed that the test for a dangerous offender finding may be met.

[32] As for risk management, Dr. Klassen opined that any violent reoffending would manifest in "confrontational acquisitive criminality, opportunistic approaches with an adult (and perhaps stranger) female, or in an intimate relationship." Any release in the foreseeable future would pose a very high risk of recidivism. He opined that from a purely psychiatric perspective there was unlikely to be an effective cure for Mr. Williams' behaviour and that there is no psychiatric evidence of "reasonable possibility of eventual control of the risk in the community".

(d) The sentencing judge's decision

[33] Relying on R. v. Judge, 2013 ONSC 6803, the sentencing judge was satisfied that the CAS, CSC and institutional records, which included police synopses, were admissible because they were prepared contemporaneously by professionals carrying out important and responsible public duties. The sentencing judge rejected Mr. Williams' submission that all police synopses are unreliable. Rather, she was of the view that they should be approached with caution and assessed on a case-by-case basis.

[34] The sentencing judge noted that, while Mr. Williams did not dispute any of his convictions, he disagreed with certain parts of the police synopses that described "why … and, to some extent, how" some of the offences transpired. She considered the synopses in the context of the other evidence led at the hearing, which revealed Mr. Williams' history of lying and minimizing his responsibility for the offences he committed and that many of the offences were committed while he was under the influence of alcohol and cocaine. In the sentencing judge's view, Mr. Williams' account of the circumstances of the various convictions, as conveyed to Dr. Klassen, defied belief. In particular, the sentences imposed for the convictions suggested "that the court could not have accepted his version of events." Weighing all of this, she then concluded as follows:

Accordingly, I am satisfied that the facts in the police synopses have been proven beyond a reasonable doubt and Dr. Klassen's opinion can be given considerable weight.

[35] The sentencing judge then proceeded to consider whether the Crown's evidence demonstrated a pattern of behaviour as defined in s. 753(1)(a). She noted that while the pattern of behaviour that includes the predicate offence "need not be the same in every detail", it must involve "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": R. v. Hogg, 2011 ONCA 840, 287 O.A.C. 82, at para. 40. She also observed that "[s]imilarity can be found in the types of offences or in their circumstances": R. v. Akbar, 2014 ONSC 3700, at para. 301.

[36] The sentencing judge found that a pattern of repetitive behaviour within the meaning of s. 753(1)(a)(i) and persistent aggressive behaviour within the meaning of s. 753(1)(a)(ii) had been proven beyond a reasonable doubt. She noted that the predicate offence was Mr. Williams' fourth conviction for assault causing bodily harm where all victims were strangers to Mr. Williams. Three of the four women assaulted were in high school. Another common element was that Mr. Williams targets the head: headlock in 1998, head-butt in 1999, hitting the victim in the head with a rock in 2002, threatening to shoot someone in the face in 2003, punching a police officer's head in 2003, threatening to point a gun at someone's face in 2004, head-butt in 2004 and biting the victim's face in the predicate offence in 2011.

[37] The sentencing judge went on to find that, within the meaning of s. 753(1)(a)(i), there was a likelihood that Mr. Williams would cause death, injury, or severe psychological damage to other persons through his failure in the future to restrain his behaviour. This conclusion was based on Dr. Klassen's evidence that there was a high risk of violent recidivism, as well as Mr. Williams' criminal history, failure to abide by court orders, minimization of his offending behaviour and lack of interest in treatment or work. The sentencing judge also found that Mr. Williams is substantially indifferent to the reasonably foreseeable consequences of his actions on others, meeting the requirements of s. 753(1)(a)(ii).

[38] As a result, the sentencing judge concluded that Mr. Williams constitutes a threat to the life, safety or physical or mental well-being of other persons under s. 753(1)(a). The dangerousness criteria were therefore satisfied and Mr. Williams was designated a dangerous offender.

[39] The sentencing judge then turned to the issue of the appropriate sentence. Pursuant to s. 753(4.1), the court shall sentence a dangerous offender to indeterminate detention in a penitentiary, unless there is a reasonable expectation that a lesser sentence will adequately protect the public against the commission by the offender of a murder or serious personal injury offence.

[40] The sentencing judge concluded that any release to the community in the foreseeable future would pose a very high risk of recidivism. In the absence of psychiatric evidence of possible control of this risk in the community, a determinate sentence would not adequately protect the public. She therefore imposed an indeterminate sentence for the offence of assault causing bodily harm. For the offence of theft, she sentenced Mr. Williams to six months concurrent.

ISSUES

[41] There are five issues raised on appeal:

1. Did the sentencing judge err in admitting the police synopses?
2. Did the sentencing judge err in finding that the facts contained in the synopses were proven beyond a reasonable doubt?
3. Did the sentencing judge's reliance on the disputed facts contained in the synopses taint the dangerous offender finding?
4. Should fresh evidence be admitted?
5. What is the appropriate remedy?

ANALYSIS

[42] In instances such as the present case, the Crown will seek to admit and rely upon police synopses to establish the factual basis of prior convictions in support of a dangerous offender application. This is often because transcripts of those prior trials, pleas and sentencing hearings may no longer be available or do not contain sufficient detail to permit a proper analysis of the offender's conduct. However, police synopses are often prepared at the time of arrest, or in the early stages of a criminal prosecution. A fuller appreciation of the facts often emerges later, such that the facts set out in the synopses will often diverge from the facts proven at trial or admitted on a guilty plea: R. v. Gibson, 2012 ONSC 5527 (admissibility ruling), at para. 8; R. v. Gibson, 2013 ONSC 589 (dangerous offender designation), at para. 32; R. v. Keizs, 2013 ONSC 4322, aff'd 2015 ONCA 905, 342 O.A.C. 79.

[43] Mr. Williams argues that it was an error for the sentencing judge to have admitted the various police synopses, and that the sentencing judge further erred in finding their contents to be proven beyond a reasonable doubt. Without the synopses, which were relied upon by the sentencing judge in identifying the requisite pattern of behaviour under s. 753(1)(a) and by Dr. Klassen in writing his report, the sentencing judge could not have concluded that the statutory elements of dangerousness had been satisfied.

[44] Mr. Williams relies on R. v. J.K.L., 2012 ONCA 245, 290 O.A.C. 207, at paras. 88-94, leave to appeal refused, [2013] S.C.C.A. No. 116, which was not placed before the sentencing judge by trial counsel. In J.K.L., this court expressed the view that it is difficult to conclude that a Crown synopsis, standing alone, is an accurate reflection of events. The court noted that the sources of information contained in the synopsis may not be specified and an assessment of the reliability and trustworthiness of the information contained within may be difficult or impossible.

[45] I agree that there are issues respecting the reliability of information contained in synopses, be they labelled as police or Crown synopses. However, I do not agree with Mr. Williams' submission that synopses are wholly inadmissible at a sentencing hearing. As further explained below, the court must take a generous approach to admissibility in a dangerous offender proceeding. However, once the evidence has been admitted, the court must then grapple with the appropriate weight to be accorded to the information contained within the synopses. In the present case, the sentencing judge properly admitted the police synopses, but erred in finding that their contents had been proven beyond a reasonable doubt. However, I conclude that there is no reasonable possibility that this error had any impact on the outcome. I would therefore dismiss the appeal.

1. Did the sentencing judge err in admitting the police synopses?

[46] In my view, the sentencing judge correctly admitted the police synopses tendered in the dangerous offender proceeding.

[47] It is well established that the strict rules of evidence applicable at trial do not govern sentencing proceedings. Once guilt has been established beyond a reasonable doubt, the task of the sentencing judge is to tailor a sentence that is appropriate to the particular circumstances of each offender. For that reason, the sentencing judge "must have the fullest possible information concerning the background of the [offender]": R. v. Gardiner, [1982] 2 S.C.R. 368, at p. 414.

[48] A dangerous offender proceeding is part of the sentencing process and is governed by the same sentencing principles, objectives and evidentiary rules: R. v. Boutilier, 2017 SCC 64, [2017] 2 S.C.R. 936, at para. 53; R. v. Johnson, 2003 SCC 46, [2003] 2 S.C.R. 357, at para. 23; R. v. Jones, [1994] 2 S.C.R. 229, at pp. 279, 294; R. v. Ziegler, 2012 BCCA 353, at para. 7, leave to appeal refused, [2014] S.C.C.A. No. 491. As explained by Gonthier J. in Jones, at p. 290, the importance of the sentencing judge having access to the fullest possible information about the offender is heightened in the context of a dangerous offender application:

In the case of dangerous offender proceedings, it is all the more important that the court be given access to the widest possible range of information in order to determine whether there is a serious risk to public safety. If there is, the dangerous offender sentencing allows the justice system to more precisely tailor the actual time served by the offender to the threat that he poses to society. The overriding aim is not the punishment of the offender but the prevention of future violence through the imposition of an indeterminate sentence.

[49] As with any sentencing hearing, hearsay evidence is admissible so long as it is found to be "credible and trustworthy": Gardiner, at p. 414. This common law principle is codified in s. 723(5) of the Criminal Code. Character evidence is also specifically admissible in a dangerous offender proceeding pursuant to s. 757 of the Criminal Code.

[50] I do not, as suggested by Mr. Williams, read J.K.L. as suggesting that police synopses are wholly inadmissible. Rather, in the passage quoted by Mr. Williams, the court in J.K.L. highlights the reliability threshold that evidence must meet in order to be relied upon, and the concerns that arise in this regard due to the nature of police synopses. I agree with those concerns and address them further below.

[51] In Gibson (admissibility ruling), the sentencing judge admitted CAS and correctional records in an advance admissibility ruling prior to a dangerous offender hearing. He was satisfied that the records, which included police synopses, met the "credible and trustworthy" threshold. For the same reasons, I am satisfied that it was appropriate for the sentencing judge to admit the police synopses.

2. Did the sentencing judge err in finding that the facts contained in the police synopses were proven beyond a reasonable doubt?

[52] In Gibson (admissibility ruling), the sentencing judge cautioned, however, that portions of certain records, such as the police synopses contained in the correctional records, may be less reliable. For that reason, when the admissible evidence is subsequently considered on the merits, the court must carefully consider the weight to be accorded to those portions of the records.

[53] Despite the broad approach to admissibility at the sentencing stage, it is not the case that the offender is deprived of all protections: Jones, at p. 292. The Crown must prove disputed aggravating facts beyond a reasonable doubt: Jones, at p. 292, quoting Gardiner, at p. 414; see also s. 724(3)(e) of the Criminal Code. The corollary to this principle in a dangerous offender proceeding is that the Crown must prove the statutory elements of dangerousness beyond a reasonable doubt: Joseph A. Neuberger, Assessing Dangerousness: Guide to the Dangerous Offender Application Process, loose-leaf (Toronto: Thomson Reuters Canada, 2017), at pp. 6-5 to 6-6; Boutilier, at para. 36, n. 1; R. v. Jackson (1981), 61 C.C.C. (2d) 540, at p. 544, leave to appeal refused, [1982] S.C.C.A. No. 423; Ziegler, at para. 6.

[54] As described above, the sentencing judge accepted the entire contents of the police synopses as proven beyond a reasonable doubt. In my view, this was an error. The sentencing judge ought not to have treated this as an all or nothing decision. The synopses were properly admitted but the contents had to be considered carefully before being relied upon. Some basic facts set out in the synopses can be used for the purposes of establishing details such as dates and ages: Gibson (admissibility ruling), at para. 8; Gibson (dangerous offender designation), at para. 34. Other facts, where support can be found in other parts of the record, can likewise be relied upon: Gibson (dangerous offender designation), at para. 34. This does not, however, lead to the conclusion that the entire contents of the document can be taken as proven beyond a reasonable doubt.

[55] Due to the evidentiary frailties inherent in the nature of a police synopsis, caution is required when the sentencing judge is considering whether the contents of those records can, along with the rest of the record, provide the basis for a finding that the statutory elements of dangerousness have been proven beyond a reasonable doubt. The incidents set out in the synopses must be considered in light of all of the evidence led at the hearing. Certain parts of a synopsis may find support and confirmation, either directly or by reasonable inference, in other parts of the record. If so, it is open to the sentencing judge to rely on those incidents as evidence in support of a finding that the statutory elements of dangerousness, such as the requisite pattern of behaviour, are made out.

[56] To provide one example, the police synopsis of Mr. Williams' 1999 assault states that Mr. Williams head-butted the complainant. The incident resulted in a youth court conviction and a sentence of five days in open custody and 18 months' probation was imposed. In his discussions with Dr. Klassen, Mr. Williams admitted that his head "nudged" the complainant's face but he maintained that this was accidental. These pieces of information, together, allowed the sentencing judge to reasonably infer that the police synopsis correctly described the offence as involving Mr. Williams head-butting the complainant. As such, this portion of the synopsis was properly considered by the sentencing judge in assessing whether a pattern of behaviour was established.

3. Did the sentencing judge's reliance on the disputed facts contained in the synopses taint the dangerous offender finding?

[57] As I will explain, however, the error committed by the sentencing judge in concluding that the entirety of the police synopses had been proven beyond a reasonable doubt did not seriously undermine Dr. Klassen's opinion or the sentencing judge's finding that Mr. Williams was a dangerous offender. This is because unsupported statements contained in the police synopsis played virtually no role in Dr. Klassen's and the sentencing judge's reasoning.

i. Dr. Klassen's opinion

[58] Mr. Williams argues that the sentencing judge's error in her treatment of the police synopses infected her assessment of the weight to be given to Dr. Klassen's opinion. As a result, it cannot be relied on in support of the dangerous offender finding.

[59] I disagree. In his testimony at the hearing, Dr. Klassen acknowledged that in preparing his report he considered information contained in the police synopses and assumed that there was no significant difference between what was contained therein and what was agreed to in court at the time the convictions were entered. He explained, however, that he proceeded on the basis that the judge's reasons or the transcript of the plea, if available, trumped what might be contained in the synopsis.

[60] Dr. Klassen also considered the information he received from Mr. Williams concerning each offence. In his report, Dr. Klassen recites Mr. Williams' version of the events underlying each conviction. Where Mr. Williams' explanation of the events minimized the offences to the point that the conduct would not be viewed as criminal, Dr. Klassen discounted Mr. Williams' description because it could not have resulted in the conviction that was entered.

[61] Mr. Williams only explicitly raised the issue of the admissibility and reliability of the facts contained in the police synopses the evening before the dangerous offender hearing began. Dr. Klassen's report had already been finalized and could not be changed. The Crown asked Dr. Klassen during his evidence in chief to consider what the impact on his opinion would be if the disputed facts contained in the police synopses (the "Disputed Facts") were disregarded. Dr. Klassen identified where in his report the Disputed Facts were taken into account. He then explained that, even without regard to the Disputed Facts, his opinion as to dangerousness would not change.

[62] Dr. Klassen was also asked to consider whether Mr. Williams' scores on the various actuarial risk assessment instruments would be significantly different if the Disputed Facts were disregarded. He opined that this would not have a significant impact on his scoring. He explained that the Disputed Facts in the police synopses that were not substantially confirmed by other evidence had only minor significance.

[63] As a result, the record fully supports the sentencing judge's conclusion that Dr. Klassen's opinion warranted "considerable weight" and this conclusion is unaffected by the error in how she treated the police synopses.

ii. Pattern of behaviour

[64] Mr. Williams argues that even if the police synopses were admissible and portions of these could be relied on by the sentencing judge, the sentencing judge's reliance on the Disputed Facts tainted her reasoning and, quite apart from the impact on Dr. Klassen's opinion, materially contributed to the dangerous offender finding.

[65] As explained earlier, I agree with Mr. Williams that the sentencing judge committed a legal error in finding that the police synopses in their entirety, including the Disputed Facts, were proven beyond a reasonable doubt. I also agree that because of this error, some use was made by the sentencing judge of the Disputed Facts in concluding that a pattern existed. However, I do not agree that the use she made of these Disputed Facts had a material impact. As will be further explained, these errors played only a minor role in her reasoning process. I have concluded that the error was harmless in that it occasioned no substantial wrong or miscarriage of justice. There is "no reasonable possibility that the verdict would have been any different had the error of law not been made": R. v. Sipos, 2014 SCC 47, [2014] 2 S.C.R. 423, at para. 24; Johnson, at para. 49.

[66] Mr. Williams was found to be a dangerous offender pursuant to s. 753(1)(a), which provides as follows:

753(1) On application made under this Part after an assessment report is filed under subsection 752.1(2), the court shall find the offender to be a dangerous offender if it is satisfied

(a) that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (a) of the definition of that expression in section 752 and the offender constitutes a threat to the life, safety or physical or mental well-being of other persons on the basis of evidence establishing

(i) a pattern of repetitive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, 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,

(ii) a pattern of persistent aggressive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a substantial degree of indifference on the part of the offender respecting the reasonably foreseeable consequences to other persons of his or her behaviour, or

(iii) any behaviour by the offender, associated with the offence for which he or she has been convicted, that is of such a brutal nature as to compel the conclusion that the offender's behaviour in the future is unlikely to be inhibited by normal standards of behavioural restraint; or

[67] To obtain a designation of dangerousness pursuant to this section, the Crown must prove two elements. First, the Crown must prove that the predicate offence is a serious personal injury offence. This criterion is an objective one. There is no dispute that the predicate offence committed by Mr. Williams is a serious personal injury offence.

[68] The second element the Crown must establish is that the offender represents "a threat to the life, safety or physical or mental well-being of other persons". The requisite threat must be found on the basis of evidence establishing beyond a reasonable doubt the presence of one of three violent patterns of conduct listed in s. 753(1)(a)(i)-(iii). In the present case the sentencing judge found that the Crown had established that the pattern of conduct listed in both ss. (i) and (ii) had been established.

[69] The sentencing judge noted three similarities between the offences on Mr. Williams' criminal record: three of the four victims of assault causing bodily harm were young women in high school, all four were strangers to Mr. Williams, and, more generally, Mr. Williams targeted the head. Mr. Williams argues that these three similarities were based in large measure on Disputed Facts and on other errors committed in the sentencing judge's assessment of the evidence.

[70] Because of these errors, Mr. Williams argues that the sentencing judge's dangerous offender finding is wrong or, at a minimum, unsafe, and that a new sentencing hearing is required.

[71] I disagree. First, I do not accept that the sentencing judge's finding of the requisite pattern rests exclusively on the three similarities listed, nor that an error in her findings in that regard would, as suggested by the appellant, necessarily be fatal. Although the sentencing judge explicitly enumerated three specific similarities between the offences, her finding of the requisite pattern was properly made and ought to be assessed taking into account the totality of the record. That record includes the overall number and violent nature of Mr. Williams' convictions for assaults and threats, together with his reactive anger and record of impulsive violence, and Dr. Klassen's opinion that he posed a high risk of violent recidivism.

[72] However, given that I have concluded that the three points of commonality identified by the sentencing judge are made out, even without considering the Disputed Facts taken from the police synopses, I need not pursue this point further. I turn now to the three similarities and deal with each in turn.

(a) Did Mr. Williams target the head of his victims?

[73] The sentencing judge found that a common element of Mr. Williams' assaultive and threatening behaviour is that he targets the victim's head. The sentencing judge noted this and then listed eight examples drawn from the various records of Mr. Williams' convictions.

[74] Mr. Williams submits that if the Disputed Facts are disregarded, four of the eight examples cited by the sentencing judge cannot be relied upon as contributing to the pattern of targeting the head: the 1998 and 1999 simple assaults, the 2002 assault causing bodily harm and the 2003 uttering threat.

[75] The Crown acknowledges that in one instance, the 1998 simple assault, the trial judge's finding that the assault involved Mr. Williams' putting the victim in a headlock cannot be supported without reference to the Disputed Facts. It was drawn solely from the police synopsis and was not corroborated elsewhere in the record, nor was it admitted by Mr. Williams. I agree, however, with the Crown's submission that the other three examples that Mr. Williams challenges are supported by the record even without reference to the Disputed Facts.

[76] With respect to the 1999 assault, Mr. Williams admitted to Dr. Klassen that his head contacted the victim's face. As I have explained earlier, it was open to the sentencing judge to rely on this admission, together with the fact of Mr. Williams' conviction and the severity of the sentence imposed – 5 days' open custody and 18 months' probation for a youth conviction – to reject Mr. Williams' statement that the head contact was accidental and to then conclude that the assault for which he was convicted involved the victim's head.

[77] As for the 2002 assault causing bodily harm, the police synopsis referred to Mr. Williams hitting the victim's head with a rock. Mr. Williams told Dr. Klassen that he recalled hitting the victim. He did not deny targeting the head, but said that the victim fell and hit his head. He could not recall using a rock. However, the offence itself was admitted and Mr. Williams' admission nevertheless refers to the victim's head. Mr. Williams' history of minimizing his offences is well-documented and this explanation could be read as an attempt to explain away the victim's injuries, namely, a broken nose and laceration above his eye that required stitches. It was reasonable for the sentencing judge to infer that, whether or not a rock was used, Mr. Williams caused injuries to the victim's head.

[78] The final challenged incident is the 2003 threat to shoot the victim in the face. Mr. Williams acknowledged the threat to shoot, but submits that the fact that the head was targeted in the threat came solely from the police synopsis. That is not the case. As was pointed out by the Crown, Mr. Williams' lawyer at the time of the guilty plea admitted the facts put forward by the Crown. These facts included a phone message saying "I'll shoot you right in the fucking face. I will merc you with a 35." Mr. Williams acknowledged the "merc" statement to Dr. Klassen.

[79] In fact, there is an additional instance of targeting the head that was not listed by the sentencing judge. Mr. Williams' lawyer at the above-noted 2003 guilty plea also admitted to a separate phone call the following day, during which Mr. Williams told the same complainant over the phone that he would "kick her in the fucking head."

[80] As a result, seven of the eight examples given by the sentencing judge of Mr. Williams targeting the head are supported by the record without reliance on the Disputed Facts.

(b) Were the victims of the assaults causing bodily harm strangers to Mr. Williams?

[81] The sentencing judge stated that another common feature was that all four of the assaults causing bodily harm were committed against strangers. Mr. Williams argues that in his conversation with Dr. Klassen, he denied that two of the victims were in fact strangers. Mr. Williams explained that he had previously seen the victim of the 1999 assault causing bodily harm on the bus. He acknowledged, however, that they had never spoken. The second case referenced by Mr. Williams is the victim of the 2003 simple assault. I note first that this is not one of the assault causing bodily harm convictions referred to by the sentencing judge. In any event, even if it were one of the four referenced by the sentencing judge, it was not unreasonable for the sentencing judge to infer, on either account of the facts, that Mr. Williams did not have any real prior relationship with the victim. Mr. Williams told Dr. Klassen the victim went to his high school, and that he had "likely spoken with her briefly, previously". The transcript of the guilty plea indicates that the Crown stated that they had no prior relationship but acknowledged that they had seen each other prior to the incident. Counsel for Mr. Williams stated that they knew each other because they went to the same school and walked home "not together, but along the same route".

[82] The qualifications put forward by Mr. Williams, even if accepted, do not detract in any significant way from the underlying point made by the sentencing judge. Mr. Williams was prone to excessive physical response reactions to people, essentially strangers, who make him angry.

(c) Were three out of four victims women in high school?

[83] The sentencing judge also noted that three of the four victims of assault causing bodily harm were high school-aged women. Mr. Williams submits that the sentencing judge erred and only two of the female victims, the target of the 1999 assault causing bodily harm and the predicate offence, were in fact known to be in high school. The other two victims of assault causing bodily harm were men.

[84] Mr. Williams is correct and the sentencing judge was either mistaken or, more likely, misspoke. When stating that there were three high school-aged women, the sentencing judge may well have counted the woman who was the victim of the 2003 simple assault. I view this error as having little significance. The fact remains that this commonality was present in several assaults, whether the conviction that ultimately resulted was for simple assault or assault causing bodily harm.

[85] As a result, therefore, I see no basis to interfere with the sentencing judge's conclusion that Mr. Williams' assaulting and threatening behaviour displays a pattern of behaviour that meets the requirements of s. 753(1)(a)(i) and (ii).

4. Should fresh evidence be admitted?

[86] Mr. Williams seeks to admit fresh evidence to show how he has been progressing in the programs he has taken since being sentenced.

[87] Despite the more flexible evidentiary approach at the sentencing stage, the Palmer test for the admissibility of fresh evidence nevertheless applies: Sipos, at para. 29. The material proposed by Mr. Williams post-dates the sentencing hearing and in my view does not meet the Palmer test. Nor is there a link between the legal error committed by the sentencing judge and the proposed fresh evidence: Sipos, at paras. 36-40. The sentencing judge's erroneous approach to the police synopses is unrelated to any progress made by Mr. Williams while in detention, which is a matter for the probation authorities. As a result, I would not admit this fresh evidence.

5. What is the appropriate remedy?

[88] For the reasons set out above, the sentencing judge erred in concluding that the contents of the police synopses in their entirety were proven beyond a reasonable doubt. However, it is well established that although the curative proviso under s. 686(1)(b)(iii) is not directly applicable to appeals from dangerous offender designations, a court can, by analogy, dismiss the appeal under s. 759(3)(b) despite the presence of an error of law: Johnson, at paras. 48-49. It can do so only if the error of law did not occasion a substantial wrong or miscarriage of justice and there is no reasonable possibility that the verdict would have been any different had the error not been made.

[89] There is a heavy burden on the Crown to show that the error did not have any impact on the outcome: Sipos, at para. 35. I conclude that the Crown has met that burden. There is no reasonable possibility that the result would have been different had this error not been made. As I have explained, the legal error played virtually no role in the sentencing judge's analysis. The conclusion that Mr. Williams is a dangerous offender was amply supported by the remainder of the record.

DISPOSITION

[90] For these reasons, I would dismiss the appeal.

"Paul Rouleau J.A."

"I agree Alexandra Hoy J.A."

"I agree J.C. MacPherson J.A."

Released: May 10, 2018