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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 2018-07-12

Docket: C62571

Judges: Sharpe, Brown and Paciocco JJ.A.

Parties

Between

Her Majesty the Queen Respondent

and

John Wesley Appellant

Counsel

Robert Sinding, for the appellant

Mabel Lai, for the respondent

Hearing and Appeal

Heard: June 27, 2018

On appeal from: the conviction entered on March 31, 2014 and the sentence imposed on January 25, 2016 by Justice H.M. Pierce of the Superior Court of Justice, sitting without a jury.

Reasons for Decision

[1] Introduction

The appellant was convicted of sexual assault, designated as a dangerous offender and given an indeterminate sentence. He appeals both conviction and sentence.

A. FACTS

[2] The Alleged Offence

The alleged offence took place at a remote First Nation community. Both the 18-year-old complainant and the 43-year-old appellant are Indigenous and both resided on the reserve. On the evening in question, the complainant had been seen drinking with the appellant in the bush. Three young women became concerned about the complainant's safety and went looking for her. They looked into and entered a small shed in the bush, where they observed both the complainant and the appellant. The complainant was lying on the floor, soaking wet and cold to the touch, with her pants down and her legs spread in a sexual position. Her eyes were closed and she was unresponsive. The three women observed the appellant straightening up and doing up his pants. One of them thought she saw the appellant's penis. The three women confronted the appellant and asked him what he had done to the complainant. According to two of the women, the appellant responded to the effect that the complainant "wanted it" and that it was "consensual". The third woman recalled the appellant saying "it's not what you think it looks like."

[3] Complainant's Condition

The complainant was highly intoxicated and was helped to her home. She had no recollection of what had occurred the next morning. She complained of soreness in her pubic area and inner thighs, and had bruises on her hips and legs.

[4] Trial and Conviction

After a five day judge-alone trial at which the appellant did not testify and called no evidence, the appellant was convicted of sexual assault.

[5] Dangerous Offender Application

The Crown brought a dangerous offender application alleging that the appellant's long-standing pattern of violent and aggressive behaviour aimed at dominance, and his lack of insight, remorse or motivation to change, justified a dangerous offender designation. The application was supported by the opinion of a forensic psychiatrist, Dr. Philip E. Klassen, that the appellant met the criteria for a dangerous offender designation. The trial judge considered the evidence and rejected the appellant's submissions that he was not a dangerous offender and that an eight year sentence followed by a ten year long-term supervision order would be appropriate. The trial judge accepted the Crown's position, designated the appellant a dangerous offender, and imposed an indeterminate sentence.

B. CONVICTION APPEAL

Unreasonable Verdict

[6] Sufficiency of Evidence

We do not agree with the appellant's submission that the verdict of guilty of sexual assault was unreasonable or that the trial judge misapprehended evidence. There was evidence, accepted by the trial judge, that the complainant had consumed a significant quantity of fortified wine with the appellant. There was also ample evidence to support the trial judge's finding that the Crown had established, beyond a reasonable doubt, that the appellant sexually assaulted the complainant. Three witnesses testified that the complainant was unconscious, naked from the waist down with her legs spread in the shed. She later complained of soreness in her pubic area. This evidence, when combined with the observations of the appellant in the shed pulling up his pants and stating that what occurred had been consensual, provided strong support for the trial judge's finding that the appellant had sexual relations with the complainant while she was in an unconscious state and incapable of consenting.

[7] Treatment of Inconsistencies

The appellant points to certain inconsistencies in the evidence of the three young women. The trial judge's reasons account for those inconsistencies. She provided an entirely adequate explanation of how she resolved any differences in their evidence and why those differences did not give rise in her mind to a reasonable doubt. The trial judge's treatment of credibility attracts deference in this court and we see no possible basis for appellate intervention.

R. v. W.(D.) Error

The appellant complains that the trial judge failed to caution herself in accordance with R. v W.(D.), [1991] 1 S.C.R. 742 in relation to his exculpatory statement that the encounter had been consensual. The trial judge did not explicitly refer to W.(D.) in her decision. However, her reasons demonstrate that she placed the burden of proof on the Crown throughout and correctly applied the reasonable doubt standard. We do not accept the submission that her failure to mention W.(D.) amounted to an error in the context of this case. We note that the appellant did not testify or call any other evidence in his defence. We also question whether any of the appellant's utterances in the shed, as described by the Crown's witnesses, bear exculpatory meaning. Those utterances – the complainant had "wanted it", the encounter had been "consensual", and the scene in the shed was "not what you think it looks like" – do not detract from the Crown's theory that the appellant had sex with the complainant when she was too intoxicated to consent to sexual activity, as made clear by the uncontested evidence about her condition in the shed.

Prior Consistent Statement

[8] Admission of Video Evidence

Nor do we accept the argument that the trial judge erred by admitting the complainant's video statement to the police to rebut the allegation of recent fabrication as to when she first reported soreness in her vagina. Although the trial judge recognized that the complainant's gesture in the video was open to interpretation, the gesture was consistent with the complainant pointing to her vaginal area. It was appropriate for the trial judge to admit the videotape and to permit the complainant to explain her gesture. The trial judge was entitled to credit the complainant's testimony that she had pointed to her vaginal area, and to then use the video to rebut the recent fabrication claim the defence was making: R. v. Stirling, 2008 SCC 10, [2008] 1 S.C.R. 272, at para. 5. We see no error in the admission or use of this evidence.

Adequacy of Reasons

[9] Sufficiency of Trial Judge's Reasons

Finally, we do not agree that the trial judge's reasons were inadequate. The trial judge fully and fairly reviewed the evidence and engaged with the most important submissions advanced by the parties. She clearly explained why she accepted the Crown's evidence and why she was persuaded beyond a reasonable doubt that the appellant had sexually assaulted the complainant.

[10] Conclusion on Conviction Appeal

For these reasons, we dismiss the appeal from conviction.

C. SENTENCE APPEAL

[11] Grounds of Appeal

The appellant argues that the trial judge's consideration of the dangerous offender application and appropriate sentence fails to comport with R. v. Boutilier, 2017 SCC 64, [2017] 2 S.C.R. 936, a decision released after the decision under appeal. The appellant contends that, contrary to Boutilier, the trial judge made the dangerous offender designation without finding "intractability" and a "high likelihood of recidivism". The appellant also argues that the trial judge misdirected herself on the availability of discretion to impose a sentence other than a period of indeterminate detention.

[12] Misapprehension of Prior Offences

The appellant further submits that his designation as a dangerous offender is tainted by a misapprehension of the facts underlying his prior offences. Additionally, in the appellant's view, both the psychiatrist and the trial judge improperly took into account prior incidents of alleged criminality for which the appellant had not been convicted.

[13] Gladue Factors and Alternative Measures

Finally, the appellant complains that at the penalty stage, the trial judge failed to give proper consideration to alternative measures in the community that could be used to control his risk of re-offending. Related to this submission is the contention that the trial judge did not give adequate consideration to the appellant's Indigenous roots and the principles espoused in R. v. Gladue, [1999] 1 S.C.R. 688 and R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433.

Intractability and High Likelihood of Recidivism

[14] Boutilier Requirements

We agree with the appellant that Boutilier requires as a precondition to a dangerous offender designation findings of "intractability" and a "high likelihood of harmful recidivism": At para. 27, Côté J., writing for the majority explained:

Before designating a dangerous offender, a sentencing judge must still be satisfied on the evidence that the offender poses a high likelihood of harmful recidivism and that his or her conduct is intractable. I understand "intractable" conduct as meaning behaviour that the offender is unable to surmount. Through these two criteria, Parliament requires sentencing judges to conduct a prospective assessment of dangerousness.

[15] Application of Boutilier Criteria

The appellant submits that the trial judge referred to a statement from R. v. Szostak, 2014 ONCA 15, 118 O.R. (3d) 40, at para. 61, that it is not necessary that the offender's conduct show a "high level of intractability". However, we do not accept the submission that the trial judge failed to make findings bringing this case within the principle enunciated in Boutilier. While she did not use the precise labels of "intractability" and "high likelihood of harmful recidivism" to characterize her findings, we are satisfied that in substance, her findings satisfy both tests.

[16] Psychiatric Evidence and Findings of Intractability

The trial judge reviewed at length the psychiatric evidence related to the appellant's risk of recidivism. We do not accept the submission that the trial judge only did so at the second stage in relation to sentence. She dealt with the psychiatric evidence at length in the early part of her decision and on a fair reading of the balance of her reasons, it is clear that she took this evidence into account at both the designation and penalty stages. As pointed out at para. 58 of the Crown's factum, the trial judge made the following crucial findings related to intractability. At para. 119, she found that the appellant "has not been able to restrain himself in the past from using violence or the threat of violence to get what he wants", and that there was "every indication that [the appellant] will be unable to restrain himself from doing so in future." The trial judge reviewed the appellant's lengthy history of non-compliance with community-based dispositions and court orders, which did not curb his offending. She observed, at para. 57, that in "all but one case, he engaged in violent offences while on probation, recognizances, or peace bonds." She found, at para. 134, that the appellant is presently "at high risk of serious sexual or violent re-offending." The trial judge carefully reviewed the appellant's history in various institutions and involvement in a chemical dependency program, AA meetings, Bible study, traditional activities and one-on-one counselling in his community, and quoted with approval, at para. 75, the following passage from the pre-sentence report:

Despite these efforts, the subject has been unable to sustain meaningful change. He continues to re-offend, remains loyal and strongly connected to gang culture values, beliefs and associations and has a well-established pattern of justifying, minimizing or blaming others for any unacceptable behavior. He does not identify consequences as a direct result of his own actions and fails to recognize or acknowledge the extent and lasting impact of his behaviour on his victims, their families and all members of the community.

[17] Conclusion on Intractability and Recidivism

In our view, these findings demonstrate that, although she did not have the benefit of Boutilier when she imposed sentence, the trial judge made findings of fact with a solid basis in the evidence that bring this case squarely within the categories of "intractability" and a "high likelihood of recidivism".

Discretion

[18] Discretionary Sentencing Options

The trial judge proceeded on the basis that she had to declare the appellant a dangerous offender if the statutory criteria were met but enjoyed some discretion at the penalty stage to avoid imposing an indeterminate sentence: paras. 7-9. In our view, this comports with Boutilier, at para. 20.

The current version of the scheme reverts to a "two stage" process but removes the discretionary language from the designation stage. If a sentencing judge is satisfied that the statutory criteria have been met, the designation must follow. There is, however, some discretion remaining at the sentencing stage. Under s. 753(4.1), a sentencing judge must impose an indeterminate sentence on a designated individual unless he or she is satisfied that there is a reasonable expectation that a lesser measure will adequately protect the public.

Prior Criminal Record

[19] Misapprehension of Prior Offences

The appellant submits that the trial judge misapprehended the evidence about his prior offences. He argues that his offending since 1992 has "not been marked by great violence and has declined." The trial judge considered and rejected this submission. She found that the appellant's record demonstrated a "pattern of aggressive behaviour aimed at dominance". This finding was available to her on the record, which discloses incidents of physical violence, threats of violence and sexual assault by the appellant. Many of these incidents occurred after 1992. The trial judge's treatment of this evidence is entitled to deference and discloses no reviewable error.

Prior Incidents of Unproven Criminality

[20] Uncharged Domestic Violence Incident

The appellant's record of criminality also includes allegations that did not result in conviction. On appeal, his submissions focussed on a domestic violence incident where charges against him were ultimately withdrawn. The appellant argues that the opinion of Dr. Klassen should have been discounted because he considered that incident.

[21] Reliance on Uncharged Conduct

In our view, Dr. Klassen provided an acceptable explanation for how and why the incident of uncharged domestic violence factored into his assessment. The actuarial tools he used to assess the risk posed by the appellant demanded that such incidents be included and it was only for one of those tools that the incident made any difference to the appellant's score. Moreover, Dr. Klassen explained that these types of incidents gave "rise to a concern about aggression, typically while under the influence of alcohol". The appellant admitted to Dr. Klassen that he had given his ex-partner and mother of his child, "a jab and a kick" while they were both intoxicated by alcohol. Dr. Klassen was entitled to rely upon that conduct in assessing the risk of the appellant re-offending.

[22] Trial Judge's Use of Uncharged Allegations

The only reliance by the trial judge's on the allegations that did not result in conviction was to reject the contention that there had been a meaningful gap in the appellant's criminality. As she explained, at para. 42, "the significance of these events is not the fact of the charges, but rather that he was detained in custody … removed from the community … and had no opportunity to reoffend." We see no error in this approach.

Consideration of Alternate Measures and Gladue Factors

[23] Gladue Factors and Community-Based Options

We do not accept the submission that the trial judge failed to give adequate consideration to Gladue factors and possible alternate measures when she imposed an indeterminate sentence. In our view, the trial judge's sentencing reasons display a thorough analysis of both factors. She explicitly recognized that Gladue factors were relevant "at all stages of the dangerous offender application". She took into account the appellant's life circumstances and recognized that he had "suffered serious trauma and loss as an aboriginal man" and that he had "suffered great disadvantage, being raised … in a violent, chaotic home." She considered and rejected the options of returning the appellant to his community on the ground that it "has the right to be protected from the risk of his violence." These were reasonable conclusions, entitled to deference before this court.

[24] Alternative Sentencing Proposal

The trial judge also considered the defence's proposed alternative to an indeterminate sentence: an eight year sentence followed by a ten year long-term supervision order. The trial judge was entitled to reject that proposal on the evidence before her. The appellant focusses on the following sentence at para. 141 of the trial judge's reasons: "[t]his may be a realistic proposal but it does not guarantee that a change of scene will alter Mr. Wesley's desire to dominate and his use of violence to do so." In our view, that single sentence must be viewed in the context of the trial judge's decision as a whole. Properly read, her reasons make it clear that based on the appellant's lengthy record of aggressive behaviour, Dr. Klassen's assessment of the risk he poses and the demonstrated inability of the appellant to curb his violent conduct, the trial judge was persuaded that he cannot safely be returned to the community and the only realistic option was an indeterminate sentence.

D. DISPOSITION

[25] Appeal Dismissed

For these reasons, the appeal against conviction and sentence is dismissed.

"Robert J. Sharpe J.A."

"David Brown J.A."

"David M. Paciocco J.A."