Her Majesty the Queen v. White

[Indexed as: R. v. White]

Ontario Reports

Court of Appeal for Ontario

K.N. Feldman, Pardu and L.B. Roberts JJ.A.

March 16, 2020

149 O.R. (3d) 693 | 2020 ONCA 207

Case Summary

Criminal law — Appeal — Fresh evidence — Accused pleading guilty to sexual interference, child luring and making child pornography — Accused having lengthy record of violence against previous domestic partners — Sentencing judge in 2014 declaring accused to be a dangerous offender and imposing an indeterminate sentence — Fresh evidence on appeal regarding accused's rehabilitative progress since then insufficient to demonstrate that indeterminate sentence was unreasonable.

Criminal law — Dangerous offenders — Indeterminate sentence — Accused pleading guilty to sexual interference, child luring and making child pornography — Accused having lengthy record of violence against previous domestic partners — Sentencing judge declaring accused to be a dangerous offender and imposing an indeterminate sentence — Sentencing judge did not err in finding the predicate offence of sexual interference to be a serious personal injury offence — Predicate offence formed part of a repetitive pattern of behaviour — No error in designating accused a dangerous offender.

The 24-year-old accused communicated with the 15-year-old complainant over the Internet and by text. After meeting at a coffee shop, the accused brought the complainant to his apartment. The complainant declined to have sex with the accused and she left. They continued to communicate every day, ultimately exchanging naked pictures of each other. The complainant brought the matter to the attention of the police only after her mother discovered what had been happening. The accused pleaded guilty to sexual interference, child luring and making child pornography. He had a lengthy criminal record spanning over a decade and including sexual assault against a 14-year-old plus violent offences against previous domestic partners. The Crown applied to have the accused declared a dangerous offender and asked for an indeterminate sentence. The parties' psychiatric experts agreed that the accused was at a high risk to reoffend and that he met the criteria for a dangerous offender from a psychiatric point of view. The Crown's expert opined that the accused's ability to change his pattern of behaviour was poor and that there was little prospect his risk could be managed successfully in the community. The defence expert believed that the risk could be managed with substantial treatment and a plan of control. A sentence of two to four years was recommended. The sentencing judge preferred the opinion of the Crown's expert, declared the accused a dangerous offender and imposed an in-determinate sentence. The accused appealed the dangerous offender designation.

Held, the appeal should be dismissed.

The sentencing judge did not err in declaring the accused a dangerous offender. The judge found that the predicate offence of sexual interference was a serious personal injury offence. In considering whether the predicate offence involved the use or attempted use of violence, the judge recognized that sexual abuse of children is inherently violent in its effects, even in the absence of tangible physical violence. She then went on to consider the particulars of the offence in issue before concluding that she was satisfied beyond a reasonable doubt that the [page694] specific predicate offence involved the use of violence against the victim. In doing so, she used a harm-based, rather than force-based, interpretation of "violence". The judge also did not err in finding that the predicate offence formed part of a repetitive pattern of behaviour. The accused's history of violence against adult partners was not completely different from the offences involving minors. That history supported a general pattern of criminal mis-conduct against females with whom he had intimate relationships, and it spoke directly to his lack of amenability to treatment and management in the com-munity. Fresh evidence regarding the accused's rehabilitative progress since the imposition of the indeterminate sentence in 2014 fell short of demonstrating that the sentence was unreasonable.

R. v. Hogg, [2011] O.J. No. 5963, 2011 ONCA 840, 287 O.A.C. 82, consd

Other cases referred to

R. v. B. (A.), [2015] O.J. No. 6088, 2015 ONCA 803, 25 C.R. (7th) 52, 345 C.R.R. (2d) 249, 342 O.A.C. 36, 129 W.C.B. (2d) 221, 333 C.C.C. (3d) 382; R. v. B. (G.R.), [2013] A.J. No. 205, 2013 ABCA 93, 544 A.R. 127; R. v. Bossé, [2005] N.B.J. No. 291, 2005 NBCA 72, 288 N.B.R. (2d) 82, 201 C.C.C. (3d) 77; R. v. D. (D.) (2002), 2002 44915 (ON CA), 58 O.R. (3d) 788, [2002] O.J. No. 1061, 157 O.A.C. 323, 163 C.C.C. (3d) 471, 53 W.C.B. (2d) 188 (C.A.); R. v. Groves, [2020] O.J. No. 458, 2020 ONCA 86, affg [2015] O.J. No. 2983, 2015 ONSC 2590 (S.C.J.); R. v. Hajar, [2016] A.J. No. 754, 2016 ABCA 222, 359 C.R.R. (2d) 294, [2016] 12 W.W.R. 435, 338 C.C.C. (3d) 477, 39 Alta. L.R. (6th) 209, 31 C.R. (7th) 1, 132 W.C.B. (2d) 523; R. v. Lebar (2010), 101 O.R. (3d) 263, [2010] O.J. No. 1133, 2010 ONCA 220, 260 O.A.C. 169, 252 C.C.C. (3d) 411; R. v. P. (T.L.), [2017] B.C.J. No. 2083, 2017 BCSC 1868; R. v. Sawyer (2015), 127 O.R. (3d) 686, [2015] O.J. No. 4652, 2015 ONCA 602, 337 O.A.C. 285, 126 W.C.B. (2d) 97, 328 C.C.C. (3d) 523; R. v. Sipos, [2014] 2 S.C.R. 423, [2014] S.C.J. No. 47, 2014 SCC 47, 374 D.L.R. (4th) 46, 460 N.R. 1, J.E. 2014-1238, 320 O.A.C. 76, 311 C.C.C. (3d) 121, 12 C.R. (7th) 18, 114 W.C.B. (2d) 251, EYB 2014-239528, 2014 CCAN para. 10,065, 2014EXP-2184; R. v. Steele, [2014] 3 S.C.R. 138, [2014] S.C.J. No. 61, 2014 SCC 61, 378 D.L.R. (4th) 296, 463 N.R. 125, [2014] 11 W.W.R. 427, J.E. 2014-1794, 310 Man. R. (2d) 236, 316 C.C.C. (3d) 315, 14 C.R. (7th) 1, 116 W.C.B. (2d) 427, EYB 2014-242964, 2014 CCAN para. 10,098, 2014EXP-3126; R. v. Stuckless (1998), 1998 7143 (ON CA), 41 O.R. (3d) 103, [1998] O.J. No. 3177, 111 O.A.C. 357, 127 C.C.C. (3d) 225, 17 C.R. (5th) 330, 39 W.C.B. (2d) 309 (C.A.); R. v. Woodward (2011), 107 O.R. (3d) 81, [2011] O.J. No. 4216, 2011 ONCA 610, 284 O.A.C. 151, 276 C.C.C. (3d) 86, 97 W.C.B. (2d) 665

Statutes referred to

Criminal Code, R.S.C. 1985, c. C-46, ss. 151 [as am.], 683(1), 752 [as am.], (a)(ii), (b), 753(1) [as am.], (a)(i), 759(7)

APPEAL by the accused from a dangerous offender designation imposed by Fuerst R.S.J., [2014] O.J. No. 4510, 2014 ONSC 5543 (S.C.J.).

Geoff Haskell, for appellant.

Christopher Webb, for respondent.

The judgment of the court was delivered by

L.B. ROBERTS J.A.: — [page695]

A. Overview

[1] On September 24, 2014, the sentencing judge declared the appellant a dangerous offender and imposed an indeterminate sentence.

[2] The appellant appeals the dangerous offender designation, arguing the sentencing judge made reversible errors in her interpretation and application of the dangerous offender criteria under ss. 752 and 753(1)(a)(i) of the Criminal Code, R.S.C. 1985, c. C-46. If the designation is upheld, the appellant submits that based on his rehabilitative strides since his incarceration in 2014, he should receive a determinate sentence of four years followed by a ten-year long-term supervision order ("LTSO").

[3] For the reasons that follow, I would dismiss the appeal.

B. Background

[4] On May 22, 2012, the appellant pleaded guilty to the offences of sexual interference, child luring and making child pornography involving a 15-year-old girl.

[5] The circumstances of these offences are not disputed. In the fall of 2010, the appellant's girlfriend at that time put the complainant in touch with the appellant. The complainant and the appellant communicated over the Internet and by text. The appellant was 24 years old at that point and learned the complainant was 15 years old and a virgin. He told the complainant he really wanted to meet her. They eventually met at a coffee shop. They went back to the appellant's apartment where he took off their shirts and kissed. The appellant asked if she wanted to take off her pants and she declined. He also told her that he wanted to have sex with her. She declined, became fearful and left the apartment.

[6] They continued to text every day, with the appellant ini-tiating the majority of the time. Periodically, the appellant would ask if the complainant wanted to get a hotel room to have sex. On two occasions the appellant met up with the complainant and they kissed. Eventually, the appellant provided her with a cellphone. He asked her to send him naked pictures of herself on it, which she did. He replied with pictures of himself, including one of his penis. The complainant's mother eventually found the cellphone, brought her to the police and convinced her to co-operate with the investigation.

[7] Prior to these offences, the appellant had amassed a lengthy criminal record, spanning over a decade. It includes a prior conviction for sexual assault against a 14-year-old girl whom he had [page696] met online and numerous prior convictions for violent offences against his previous domestic partners.

[8] The respondent brought an application to have the appellant declared a dangerous offender and asked the court to impose an indeterminate sentence. The appellant disputed that he was a dangerous offender or a long-term offender. However, if the court found otherwise, he submitted that the appropriate sentence was a further four-year custodial sentence, followed by a ten-year LTSO.

[9] The parties' psychiatric experts were largely in agreement that the appellant was at a high risk to reoffend both violently and sexually and that he met the criteria for a dangerous offender from a psychiatric point of view. Their jointly held opinion included the following factors:

-- the appellant's high scores on the various and standard actuarial diagnostic tests that measure risk for violent and sexually violent recidivism;

-- his diagnosed antisocial personality disorder with prominent psychopathic traits;

-- his substance abuse of drugs and alcohol over the years that contributed to his violent actions; and

-- his significant history of violent criminal behaviour.

[10] The experts parted company only on the issue of sentence. The respondent's expert opined that the appellant's ability to change his pattern of behaviour, given his diagnoses, was poor, and that even if he followed the recommended intensive treatment, there was little prospect his risk could be managed successfully in the community within ten years of close supervision under a LTSO. He recommended an indeterminate sentence. The appellant's expert agreed with the treatment and supervision recommendations made by the respondent's expert but believed the appellant's risk could be managed with substantial treatment and a plan of control. He opined that the appellant's antisocial traits and aggressive behaviour would attenuate over time. He recommended the imposition of a determinate sentence of two to four years, followed by a LTSO for ten years.

[11] In her victim impact statement, the complainant said that the offences have had a big impact on her life. She described experiencing anxiety and depression, struggling with drugs and having difficulty with intimacy and showing affection. She has contemplated suicide. [page697]

[12] The complainant testified at the sentencing hearing. She testified that she would not have gone to the police but for the fact that her mother had found the cellphone the appellant had given her. She also testified to having experienced other difficulties in her life, such that she could not be sure to what extent she can attribute her problems to the appellant. However, she did attribute issues with anxiety, depression and relationships to him.

[13] The sentencing judge accepted that the appellant was a dangerous offender and preferred the opinion of the respondent's expert that the appellant's high risk to reoffend could not be reasonably managed in the community. She imposed an indeterminate sentence.

C. Issues

[14] The appellant challenges the dangerous offender designation and indeterminate sentence on the following grounds:

(1) The sentencing judge erred in finding that the predicate offence was a "serious personal injury offence" as defined in s. 752 of the Criminal Code.

(2) The sentencing judge erred in considering, for the purposes of s. 753(1)(a)(i) of the Criminal Code, the appellant's previous history of domestic violence against his adult partners as part of the pattern of the appellant's "repetitive" behaviour.

(3) If the dangerous offender designation is upheld, although it was open to the sentencing judge to impose an indeterminate sentence in 2014, the fresh evidence admitted on consent demonstrates that it is unreasonable.

[15] The appellant submits a determinate sentence of four years followed by a ten-year LTSO should be imposed.

D. Analysis

[16] In determining whether the appellant is a dangerous offender, the sentencing judge was required to consider the criteria under ss. 752 and 753(1) of the Code. For this appeal, the relevant provisions are as follows:

752. In this Part,

serious personal injury offence means

(a) an indictable offence, other than high treason, treason, first degree murder or second degree murder, involving [page698]

(i) the use or attempted use of violence against another person, or

(ii) conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage on another person,

and for which the offender may be sentenced to imprisonment for ten years or more, or

(b) an offence or attempt to commit an offence mentioned in section 271 (sexual assault), 272 (sexual assault with a weapon, threats to a third party or causing bodily harm) or 273 (aggravated sexual assault).

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[.]

[17] The appellant focused his submissions on the conviction for sexual interference under s. 151 of the Criminal Code. He does not challenge that the predicate sexual interference offence carries a potential sentence of ten years or more because the Crown proceeded by way of indictment. Rather, he challenges the sentencing judge's finding that the predicate offence was a "serious personal injury offence" and her finding of a repetitive pattern of behaviour for the purposes of s. 753(1)(a)(i).

(1) The sentencing judge did not err in finding the predicate offence was a serious personal injury offence

[18] The appellant argues that the sentencing judge erred in finding that the predicate offence was a "serious personal injury offence".

[19] He argues first that the sentencing judge effectively characterized the offence of sexual interference as a deemed serious personal injury offence under s. 752(b) notwithstanding its exclusion from that subsection, and disputes that the specific [page699] circumstances of the offence in this case constituted "violence" for the purposes of the definition of a serious personal injury offence.

[20] He argues further that the sentencing judge erred in concluding that the predicate offence resulted in "severe psychological damage" for the purposes of that definition.

[21] I am not persuaded by either of these submissions for the following reasons.

(a) The sentencing judge did not err in finding the predicate offence involved the use of violence

[22] The Supreme Court of Canada considered the meaning of the term "use or attempted use of violence" for the purposes of the definition of serious personal injury offence in R. v. Steele, [2014] 3 S.C.R. 138, [2014] S.C.J. No. 61, 2014 SCC 61. Violence in this context encompasses acts in which a person intentionally causes, attempts to cause or threatens to cause harm, rather than simply acts involving the application of physical force: Steele, at para. 58.

[23] The sentencing judge's finding that violence was used in the predicate offence is a factual determination: R. v. Lebar (2010), 101 O.R. (3d) 263, [2010] O.J. No. 1133, 2010 ONCA 220, at para. 50. Absent error there is no basis for appellate intervention.

[24] In considering whether the predicate offence of sexual interference involved the use or attempted use of violence, the sentencing judge recognized that sexual abuse of children is inherently violent in its effects, even in the absence of tangible physical violence, and that it is likely to cause significant psychological harm. Her conclusion is well supported.

[25] In R. v. Stuckless, this court concluded that sexual abuse of children is an act of violence, representing the "use of compulsion" against a population that is inherently vulnerable: (1998) 1998 7143 (ON CA), 41 O.R. (3d) 103, [1998] O.J. No. 3177 (C.A.), at p. 117 O.R. Similarly, in R. v. Bossé, Deschênes J.A. found that having a child engage in sexual acts through persistent requests, as opposed to physical acts or threats, remained a violent act: [2005] N.B.J. No. 291, 2005 NBCA 72, 288 N.B.R. (2d) 82, at para. 10.

[26] This court has recognized that devastating consequences often follow from the sexual abuse of children, including both immediate psychological harm, and ongoing issues that may persist into adulthood: R. v. Woodward (2011), 107 O.R. (3d) 81, [2011] O.J. No. 4216, 2011 ONCA 610, at para. 72, citing R. v. D. (D.) (2002), 2002 44915 (ON CA), 58 O.R. (3d) 788, [2002] O.J. No. 1061 (C.A.). Notably, the harm caused to a child complainant may not always be fully apparent at the time of sentencing but may manifest later when the child reaches adulthood: R. v. B. (G.R.), [2013] A.J. No. 205, 2013 ABCA 93, 544 A.R. 127, at para. 14. [page700]

[27] Unsurprisingly then, offences of sexual interference have been found to constitute serious personal injury offences even in the absence of immediate physical harm. See, for example, R. v. P. (T.L.), [2017] B.C.J. No. 2083, 2017 BCSC 1868, at para. 225; R. v. Groves, [2015] O.J. No. 2983, 2015 ONSC 2590 (S.C.J.), at para. 91, affd [2020] O.J. No. 458, 2020 ONCA 86.

[28] Further, it is clear from her reasons that the sentencing judge did not simply conclude that because the predicate offence was sexual interference it was inherently violent. Rather, she went on to consider the particulars of the offence in issue before she concluded that she was satisfied beyond a reasonable doubt that the specific predicate offence involved the use of violence against the victim [at para. 138]:

There is no dispute that the touching of [the complainant] by Mr. White was not accompanied by threats of harm or the use of overt force. Mr. White, however, was 24 years old at the time, while [the complainant], as he well knew, was only 15. She could not in law consent to the sexual touching. Mr. White knew that, as a result of his prior conviction in Edmonton. The circumstances of the offence against [the complainant] show the exploitative and abusive nature of Mr. White's conduct, including the manner in which he and she "met" over the internet; the fact that he knew she was only 15 and a virgin but initiated sexual contact with her the very first time they met and suggested that they have sexual intercourse; that on sub-sequent occasions he again suggested that they have sexual intercourse even though she had previously declined; that he provided her with a cell phone; and that he convinced her to send him naked pictures of herself and he sent her a picture of his penis, over that cell phone.

[29] While the sentencing judge did not have the benefit of Steele, her approach is consistent with the Supreme Court's endorsement of a harm-based, rather than force-based, interpretation of the term "violence", which is not defined in the Criminal Code.

[30] In my view, the predicate offence, viewed in the context of the appellant's exploitative and abusive pursuit of a 15-year-old girl, as found by the sentencing judge, involved intentionally causing harm and therefore constitutes violence for the purpose of the definition of "serious personal injury offence" under s. 752 of the Criminal Code. This is also consistent with Parliament's recognition by its enactment of s. 151 of the Criminal Code that "sexual interference is inherently harmful to both children and society" and that children are in need of protection: R. v. Hajar, [2016] A.J. No. 754, 2016 ABCA 222, 338 C.C.C. (3d) 477, at para. 1. In R. v. B. (A.), [2015] O.J. No. 6088, 2015 ONCA 803, 333 C.C.C. (3d) 382, at para. 45, Feldman J.A. described the gravamen of the offence of sexual interference as follows:

[T]he protection for children is not simply from sexual exploitation but from any sexual contact or the invitation to sexual contact with adults. Parliament viewed the protection to be necessary because of the inherent power imbalance [page701] that undermines consent, and because of the physical and psychological consequences of a sexual encounter between a child and an adult stemming from that imbalance.

[31] I see no error in the sentencing judge's analysis. I agree that the predicate offence involved the use of violence.

(b) The sentencing judge did not err in finding the predicate offence inflicted severe psychological damage

[32] Given that the predicate offence involved the use of violence, it is a serious personal injury offence. As a result, while not strictly necessary, for completeness I consider whether the trial judge erred in determining that the offence inflicted severe psychological damage.

[33] I do not accept the appellant's submission that there was no evidence that the appellant's actions caused harm to the complainant as understood under clause (a)(ii) of the definition of serious personal injury offence in s. 752. The appellant relies on the cross-examination of the complainant that he says undermined her victim impact statement.

[34] The sentencing judge was alert to the inconsistencies between the victim impact statement and the complainant's evidence at the sentencing hearing. However, as she was permitted to do, the sentencing judge accepted that while the complainant could not attribute all her issues to the appellant, she found [at para. 141] that his conduct "caused [the complainant] anxiety, depression, relationship problems and some fear, all of which constitutes severe psychological damage". These findings are firmly rooted in the evidence that was before the sentencing judge. Moreover, I agree with the sentencing judge's further conclusion [at para. 142] that the appellant's conduct "was likely to inflict severe psychological damage upon the victim", which, as already noted, is well-founded in the jurisprudence.

(2) The sentencing judge did not err in finding the predicate offence formed part of a repetitive pattern of behaviour

[35] With respect to the "pattern of behaviour", the appellant concedes that the predicate offence and his prior conviction for sexual assault of a 14-year-old constitutes a pattern of behaviour. However, he argues that the sentencing judge, in finding a pattern of repetitive behaviour for the purposes of s. 753(1)(a)(i), erred by referring to his previous history of violence against his former, adult domestic partners when the particulars of that history are completely different from the two sets of offences against girls.

[36] I disagree. It was open to the sentencing judge to rely on the appellant's past history as reflecting [at para. 150] "a failure [page702] on Mr. White's part to recognize and observe boundaries in his relationships with females" and that this pattern of behaviour "is a manifestation of his antisocial personality disorder". She correctly concluded [at para. 151]:

Mr. White's pattern of repetitive behaviour, including the predicate offence, shows a failure to restrain his behaviour with females. It also shows a likelihood of causing injury to other persons, or inflicting severe psychological damage on other persons, through failure to restrain his behaviour in the future.

[37] The sentencing judge's conclusions are consistent with this court's approach in R. v. Hogg, [2011] O.J. No. 5963, 2011 ONCA 840, 287 O.A.C. 82, to the meaning of a "pattern of repetitive behaviour". As this court concluded, at para. 40, this pattern must contain "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". I agree with the respondent's submissions that the appellant's history supports a general pattern of criminal misconduct against females with whom he has intimate relationships, and that this history speaks directly to his lack of amenability to treatment and management in the community.

[38] Accordingly, I find no error in the sentencing judge's designation of the appellant as a dangerous offender. The predicate offence was a serious personal injury offence, both because it involved the use of violence and because it inflicted severe psychological harm. The appellant constitutes a threat to the safety or well-being of others based on a pattern of repetitive behaviour that includes the predicate offence.

(3) An indeterminate sentence is reasonable despite the fresh evidence

[39] The appellant concedes that given the record before her in 2014, the sentencing judge made no error in imposing an indeterminate sentence at that time. However, he argues that in light of the fresh evidence concerning his significant rehabilitative progress, he no longer represents an unmanageable risk to reoffend, warranting the substitution of a determinate sentence and a LTSO.

[40] The fresh evidence consists primarily of the appellant's affidavit. It speaks to his treatment and rehabilitation since commencing his sentence. In particular, the appellant has completed all available programming for violent and sex offenders, and his high school equivalency courses. He is currently housed in a "responsibility based unit" which requires him to be actively involved in his correctional plan; employed full-time; free of any misconducts; and free of drugs and alcohol. He is employed a [page703] a plumber's assistant, which allows him entry into restricted areas and use of otherwise unauthorized tools.

[41] On appeals of dangerous offender designations, this court may admit fresh evidence when it is in the interests of justice to do so: R. v. Sipos, [2014] 2 S.C.R. 423, [2014] S.C.J. No. 47, 2014 SCC 47, at para. 28; Criminal Code, ss. 759(7), 683(1). Here, the fresh evidence was admitted on consent of the parties.

[42] I am of the view that notwithstanding the fresh evidence, the sentencing judge's decision to impose an indeterminate sentence was not unreasonable. An appellate court reviews the imposition of an indeterminate sentence for legal error and reasonableness: R. v. Sawyer (2015), 127 O.R. (3d) 686, [2015] O.J. No. 4652, 2015 ONCA 602, at para. 29. While the appellant's evidence shows progress within his highly structured custodial environment, in light of the entire record before the sentencing judge it falls considerably short of demonstrating that an indeterminate sentence is unreasonable. Specifically, the appellant's evidence fails to address the forensic psychiatric evidence of both experts given on the dangerous offender application, including the actuarial risk assessment testing, that speaks to his unmanageable high risk of reoffending upon his release into the community.

E. Disposition

[43] I would dismiss the appeal.

Appeal dismissed.

End of Document