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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 2019-06-26

Docket: C61332

Panel: Sharpe, Brown and Roberts JJ.A.

Parties

Between

Her Majesty the Queen Respondent

and

R.S. Appellant

Counsel

For the Appellant: Vikram Singh

For the Respondent: Jill Cameron

Hearing

Heard: June 20, 2019

On appeal from: The sentence imposed by Justice R. Dan Cornell of the Superior Court of Justice, on July 16, 2014.

Reasons for Decision

Background

[1] The appellant was found to be a dangerous offender and sentenced to an indeterminate period of incarceration. He conceded before the sentencing judge and accepts for the purposes of this appeal that he meets the criteria to be designated a dangerous offender. He argues, however, that the sentencing judge erred by imposing an indeterminate period of incarceration.

[2] The appellant pleaded guilty in 2004 of sexually assaulting four children aged between seven and thirteen years old. He was sentenced to two years less a day imprisonment in addition to pre-sentence custody, plus three years' probation. An order was made under s. 161 of the Criminal Code, R.S.C. 1985, c. C-46, prohibiting him for life from attending any area where children were known to congregate.

[3] While on probation, the appellant re-established contact with his spouse and two children. Ignoring the directive of the Children's Aid Society, he moved in with his spouse and children. In 2011, he pleaded guilty to sexual interference and sexual assault with two of his children. He admitted to having had anal sex with his 12-13-year-old son and vaginal intercourse with his 11-12-year-old daughter on several occasions. He also pleaded guilty to breach of the s. 161 prohibition order.

[4] A psychiatric assessment pursuant to the Criminal Code, s. 752.1, was conducted by Dr. Woodside. He testified that the appellant was a pedophile with a high risk of reoffending. He was pessimistic about managing the appellant in the community. Dr. Fedoroff, the psychiatrist who testified on behalf of the appellant, agreed that the appellant was a pedophile with a moderate to high risk of reoffending if not treated. However, Dr. Fedoroff testified that he believed that pedophilia could be cured and that if appropriate steps were taken, including drug treatment, the appellant could be managed in the community. Dr. Fedoroff acknowledged, however, that he had concerns about the appellant's motivation for treatment.

[5] At the sentencing hearing, counsel agreed that the appellant met the statutory criteria for being designated as a dangerous offender. They both suggested a determinate sentence followed by a 10-year long-term supervision order. Defence counsel sought a six-year determinate sentence, while the Crown sought an eight-year determinate sentence.

[6] The sentencing judge sentenced the appellant to an indefinite period of incarceration.

[7] The appellant raises three grounds of appeal:

1. Did the sentencing judge err by rejecting the joint sentencing submission?
2. Would the proposed sentence be contrary to the public interest or otherwise bring the administration of justice into disrepute?
3. May the Crown repudiate the position taken by its counsel at the sentencing hearing?

Analysis

(1) Did the sentencing judge err by rejecting the joint sentencing submission?

[8] We do not accept the submission that the sentencing judge erred by rejecting the joint sentencing submission. The sentencing judge followed the approach outlined by the Supreme Court of Canada in R. v. Anthony-Cook, 2016 SCC 43, [2016] 2 S.C.R. 204. At three points during the evidentiary phase of the sentencing hearing, the sentencing judge expressed his concerns about the adequacy of the proposed determinate sentence and of the evidence to support it. This was sufficient to put the appellant on notice that the sentencing judge was considering rejecting the joint submission. Despite that notice, the appellant took no steps to strike the guilty plea or to seek the opportunity to advance additional evidence. The sentencing judge gave clear and cogent reasons for departing from the joint submission, emphasizing the overriding consideration of the protection of the public and the mandatory regime set out in s. 753(4.1) of the Criminal Code.

(2) Would the proposed sentence be contrary to the public interest or otherwise bring the administration of justice into disrepute?

[9] In our view, the detailed reasons of the sentencing judge demonstrate that he concluded that a determinate sentence would be "contrary to the public interest" and would bring "the administration of justice into disrepute". While the sentencing judge did not use those specific words, he did refer to the "the overriding consideration of protection of the public in a dangerous offender application". He concluded that the evidence failed to show that the appellant's risk could be managed in the community and that if released, the appellant posed a danger to children. He accepted Dr. Woodside's pessimism about the possibility of managing the appellant in the community. He noted that while Dr. Fedoroff was more hopeful, that hope was primarily based upon the appellant accepting drug therapy. The unchallenged evidence established that the appellant had demonstrated an unwillingness to take drug therapy in the past and indicated to Dr. Woodside that he did not feel he needed the treatment. While in the end he told Dr. Woodside that he might try drug therapy, the sentencing judge concluded that given the problems with ensuring compliance, he had no confidence that anti-androgen therapy could form a part of a long-term treatment plan for the appellant.

[10] The Criminal Code, s. 753(4.1), required the sentencing judge to impose an indeterminate period of incarceration unless the judge was satisfied that there was "a reasonable expectation that a lesser measure… will adequately protect the public against the commission by the offender of murder or a serious personal injury offence".

[11] After a thorough review of the evidence, the trial judge concluded as follows:

There is no cogent, reliable evidence that R.S.'s pedophilia can be managed, let alone cured. There is no plan that he can be rehabilitated within a certain period of time. The suggestion that R.S. will respond to counselling and drug therapy lies in the realm of speculation only. Apart from [Dr. Fedoroff's] suggestions that a Circle of Support be utilized, there is a total absence of evidence about a support plan for R.S. upon his release into the community. These concerns highlight the lack of an evidentiary basis to establish the "reasonable expectation" contemplated by s. 753(4.1).

[12] In our view, the sentencing judge's conclusion that the appellant could not realistically be managed in the community was well-supported by the record, particularly in the light of the following facts:

• the appellant's serious history of sexually abusing children;
• the psychiatric evidence indicating that he is a pedophile, and that his condition is difficult to treat and that he requires constant monitoring to control his risk of re-offending;
• the appellant's lack of insight into his condition and the harm caused by his conduct;
• the appellant's reluctance to accept treatment or drug therapy and the inability to order the appellant to do so;
• the appellant's lack of success with treatment offered while he was in custody;
• the appellant's deceitful behaviour while on probation;
• the fact that the index offences were committed while the appellant was being supervised on a probation order; and
• the appellant's lack of community support and failure for many years to maintain employment.

(3) May the Crown repudiate the position taken by its counsel at the sentencing hearing?

[13] We do not accept the submission there is any impropriety in the position taken by the Crown on this appeal. Obviously, the Crown cannot resile from the fact that it took a certain position before the sentencing judge. However, once the sentencing judge made his decision, the legal landscape changed. It is entirely open to the Crown to resist the appeal against that decision and to argue that the sentencing judge did not err by rejecting the joint submission.

Disposition

[14] Accordingly, the appeal is dismissed.

Robert J. Sharpe J.A.

David Brown J.A.

L.B. Roberts J.A.