Court and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20200513 DOCKET: C63033

Rouleau, Zarnett and Jamal JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

Roger Marcel Potvin Appellant

Counsel: Howard L. Krongold, for the appellant Nicolas de Montigny, for the respondent

Heard: in writing

On appeal from the sentence imposed by Justice Jonathan Brunet of the Ontario Court of Justice on May 12, 2016.

Reasons for Decision

A. Overview

[1] The appellant was convicted of breaching his long-term supervision order (“LTSO”) and sentenced to an indeterminate sentence pursuant to s. 753.01 of the Criminal Code, R.S.C. 1985, c. C-46. He argues on appeal that the trial judge failed to properly consider the principle of proportionality and to consider certain mitigating factors in imposing this sentence. For the following reasons, we dismiss his appeal.

B. Background

(1) Criminal History and Dangerous Offender Designation

[2] The appellant was declared a dangerous offender in 2012. This designation followed his conviction for criminal harassment and other offences. It was the culmination of a 30-year history of crimes against women. His conduct included breaking into victims’ residences, following them from place to place, relentless phone calls, and making threats. As noted by the sentencing judge, in the course of his offending conduct the appellant has caused “severe psychological damage to several women and has left a large swath of misery, anxiety, mistrust and emotional scars on these individuals.”

[3] The appellant also has convictions for indecent acts, by exposing his penis to women he had called over to his motor vehicle under the pretext of asking for directions. As well, he has been convicted of sexual assault, obstruction of justice, break and enter, assault and uttering threats. A number of these offences were committed while on bail or probation.

[4] After being declared a dangerous offender in 2012, the appellant was sentenced to time served, equivalent to 844 days in jail, followed by a 10-year LTSO. One of the terms of the LTSO was that the appellant had to immediately report to his parole supervisor all contacts with females with whom he associated.

(2) Index Offence

[5] In the fall of 2013, the appellant became friendly with a 23-year old female employee of a local coffee shop. He would regularly walk her home and did so approximately 40 times over the course of two months. The woman became uncomfortable with the continued contact when the appellant caused the conversations to become personal and sexually explicit, for example when he asked how many sexual partners she had had. The appellant also shared with her that he had masturbated with the blinds open and a woman across the street had seen him. She testified that he would call her several times a day.

[6] After a time, the woman made it clear to the appellant that she did not want him walking her home. When he continued to attend her workplace, she did not wish to deal with him. On one occasion, she left through the back door and went home feeling afraid. Shortly after arriving home she heard the doorbell ring and a knock on the door. She pretended not to be home, but the appellant rang the doorbell again and she eventually answered the door. She told the appellant that she needed to be left alone.

[7] The appellant also gave the woman gift cards and an elliptical machine. When pressed by the appellant the woman agreed to meet with him to talk about “us”. It is then that the appellant told her that he had a file or a background check he had done on her and told her he had asked a contact to look up her name, where she was from, and her family and personal history. This made the woman scared and furious, after which she went to the police to report her concerns. As it turned out, the appellant had never reported to his parole officer the fact that he had been pursuing this woman for several months. He was therefore arrested and charged with breach of his LTSO.

[8] In his reasons for conviction, the trial judge expressed the view that the appellant’s behavior could be considered “courting” or “grooming” and was “very close to, if not tantamount to, stalking as described [in s.] 264 of the Criminal Code.”

(3) Sentencing Hearing and Reasons for Sentence

[9] At the sentencing hearing, the Crown called two experts. Dr. Philip Firestone was qualified as an expert in the area of clinical psychology. Dr. Firestone had provided the appellant with psychological counseling from 2012 until his arrest in December 2013. Dr. Scott Woodside, a forensic psychiatrist, performed a psychiatric assessment of the appellant and was qualified as an expert in the area of diagnoses, risk assessment and risk management.

[10] In the course of his assessment by Dr. Woodside, the appellant displayed no reluctance in speaking with him, but it was apparent that the information he provided was not always accurate or consistent.

[11] Dr. Woodside diagnosed the appellant with a mixed personality disorder with paranoid, antisocial, borderline and dependent traits, as well as exhibitionistic disorder. Dr. Firestone agreed with this diagnosis.

[12] Based on both clinical and actuarial evaluations, Dr. Woodside concluded that the appellant continues to pose a high risk of sexual recidivism. According to Dr. Woodside the risk of reoffending was highest with respect to exhibitionism, stalking and harassment.

[13] Dr. Firestone was concerned that although the appellant had been under intense supervision, he nonetheless returned to his offence cycle. In his view, there was little that he could recommend to add to the conditions already in place that might mitigate or reduce the risk of reoffending. He concluded that even if subjected to an LTSO with strict conditions, the appellant was at a moderate to high risk to reoffend.

[14] Dr. Woodside expressed “significant pessimism” regarding the appellant’s future manageability in the community even if strict conditions were in place. In his own words:

[T]his is now the third time he's faced dangerous offender proceedings of one kind or another. … This is not a good prognostic factor, right? I mean, this is someone who should have known, even if he says he didn't, known what was at stake. And yet he could not restrain his behavior and was not willing or able to make use of treatments that were available to him, in a way that would actually result in a different approach to relationships.

[15] Dr. Woodside acknowledged that two types of treatment had not yet been attempted with the appellant: antipsychotic medication and sex drive reducing medication. Dr. Woodside however had significant reservations about the outcome of these potential treatment options. It was unclear whether the appellant would accept and persist with these forms of treatment, nor was it known whether they would be effective.

[16] The sentencing judge considered the appellant’s entire history, the psychiatric and psychological evidence, and the evidence emanating from the offences and victim impact statements, and concluded that the criteria in s. 753.01(5) for the imposition of an indeterminate sentence were met.

C. Analysis

[17] The appellant argues that, in assessing what form of sentence would sufficiently protect the public, the trial judge does not appear to have considered the principles of proportionality, the appellant's moral culpability, or the mitigating factors that exist in this case. The appellant maintains that the trial judge made only tangential reference to the sentencing principles set out in s. 718 of the Criminal Code, the common law and relevant jurisprudence.

[18] While the objective of public protection is enhanced in cases involving individuals designated as dangerous offenders, a court must nonetheless balance this against the other sentencing principles, including proportionality: R. v. Boutilier, 2017 SCC 64, [2017] 2 S.C.R. 936, at para. 53. In the present case, the appellant submits he had received few interventions before or while living at the halfway house. For someone exhibiting the depth of problems faced by the appellant, the limited intervention and treatment provided to him was a recipe for failure. In the appellant’s submission, this ought to have informed the trial judge’s disposition in this case.

[19] The appellant further maintains that he posed only a limited risk of “hands on” reoffending and committing a serious personal injury offence. In the appellant’s submission, had the trial judge fully grappled with the mitigating factors in fashioning a sentence, he ought not to have imposed an indeterminate sentence.

[20] We disagree. As conceded by the appellant, it is well accepted that the dominant purpose of the dangerous offender regime is public protection: R. v. Steele, 2014 SCC 61, [2014] 3 S.C.R. 138, at para. 29. The conduct underlying the offence for which the appellant was convicted was strikingly similar to that which led to the appellant's original dangerous offender designation. It went to the heart of his offence cycle and it therefore created a direct link to his risk to public safety.

[21] The sentencing judge properly focused on the narrow issue of whether there was a reasonable expectation that something less than an indeterminate sentence could adequately protect the public against the commission of a serious personal injury offence by the appellant: Criminal Code, s. 753.01(5). He reviewed the sentencing principles and mitigating factors identified by defence counsel, including the relative lack of “hands on” violence in the record, the fact that the appellant had not spent time in a penitentiary with access to the programming available there, the appellant's expressed desire to change his ways, as well as Dr. Woodside's evidence that he could not completely rule out a delusional disorder diagnosis and that a trial of antipsychotic medication could be attempted.

[22] The evidence at the hearing, however, was that the appellant had a history of declining medication and had been unable to meaningfully engage in treatment. He had denied responsibility for his crimes and demonstrated a lack of insight into his offence cycle and mental illness. The trial judge considered the relevant factors, both mitigating and aggravating, and concluded that the breach was “very significant” because the condition that was breached was directly tied to the nature of the offence that formed the basis of the dangerous offender designation itself. On the basis of all the evidence that was produced at the sentencing hearing, the sentencing judge concluded that there was no reasonable expectation that something less than an indeterminate sentence would adequately protect the public.

[23] In our view, the trial judge was alive to the factors that the appellant alleges received inadequate consideration. The psychiatric evidence was that the appellant is likely to continue his longstanding pattern of criminal harassment. The sentencing judge’s conclusion that only an indeterminate sentence would adequately protect the public from future serious personal injury offences, specifically, further instances of criminal harassment causing severe psychological damage, was reasonable and well supported by the evidence. We see no basis to interfere with this conclusion.

D. Disposition

[24] As part of the appellant’s sentence, a $200 victim surcharge was imposed. In accordance with R. v. Boudreault, 2018 SCC 58, [2018] 3 S.C.R. 599, leave to appeal is granted and this victim surcharge is set aside.

[25] For the reasons given above, the appeal is otherwise dismissed.

“Paul Rouleau J.A.”

“B. Zarnett J.A.”

“M. Jamal J.A.”