Her Majesty the Queen v. R.S.

[Indexed as: R. v. S. (R.)]

Ontario Reports

Court of Appeal for Ontario

B.W. Miller, Trotter and Coroza JJ.A.

December 3, 2020

153 O.R. (3d) 185 | 2020 ONCA 765

Case Summary

Criminal law — Dangerous and long-term offenders — Dangerous offender designation — Protection of public — Appeal by accused from dangerous offender designation dismissed — Appellant had history of assaulting and sexually assaulting his intimate partners — Appellant had assaulted N.J. repeatedly during their relationship — Sentencing judge did not misapprehend evidence on likelihood of recidivism — Although sentencing judge did not address intractability at designation stage, this error had no impact on result — Judge did not err in her analysis of intractability at sentencing stage, and her findings could be applied to intractability at designation stage — Sentencing judge did not misapprehend expert's evidence on concept of linear decline.

Criminal law — Sentencing — Criminal Code offences — Offences against person and reputation — Assault — Sexual assault with a weapon — Kidnapping, hostage taking and abduction — Forcible confinement — Particular sanctions — Imprisonment — Indeterminate — Sentencing considerations — Rehabilitation — Protection of the public — Availability of treatment — Appeal by accused from dangerous indeterminate sentence after dangerous offender designation dismissed — Appellant had a history of assaulting and sexually assaulting his intimate partners — He was convicted of multiple offences with respect to N.J., including sexual assault with a weapon, threatening death, criminal harassment — Evidence before the sentencing judge was that the appellant's future treatment prospects were poor — Programming that was undertaken effected no change in behaviour — On the evidence before her, sentencing judge could not conclude that there was a reasonable expectation that a regime of treatment and supervision could adequately protect the public.

Appeal by the accused from a dangerous offender designation and an indeterminate sentence imposed for multiple offences with respect to N.J., including sexual assault with a weapon, threatening death, criminal harassment, forcible confinement, intimidation and attempt to obstruct justice. The appellant had a history of assaulting and sexually assaulting his intimate partners. The appellant had assaulted N.J. repeatedly over the course of their relationship. When N.J. took steps to end the relationship, the appellant threatened her with a gun, threatened to kill her and forced her to submit to sexual intercourse. The sentencing judge was satisfied that the evidence established a very substantial probability that the appellant would reoffend violently against a future domestic partner. She found that the appellant's pattern of escalating behaviour did not conform to the general pattern of linearly declining violence with age attested to by the expert. The appellant argued the sentencing judge misapprehended significant evidence concerning his likelihood of recidivism. He also argued she imposed an onus on the appellant to prove his conduct was not intractable and failed to impose the least restrictive sentence necessary to protect the public, a determinate sentence followed by a long-term supervision order.

Held, the appeal should be dismissed.

The sentencing judge did not misapprehend the evidence on the likelihood of recidivism. Although the sentencing judge did not address intractability at the designation stage, this error had no impact on the result. The sentencing judge did not err in her analysis of intractability at the sentencing stage, and her findings could be applied to the analysis of intractability at the designation stage. The sentencing judge did not misapprehend the expert's evidence on the concept of linear decline. The sentencing judge did not, as the appellant suggested, substitute her own opinion that age-related decline did not apply to the appellant and subsequently predicted a level of violence not supported by the expert evidence. She merely found that the phenomenon of age-related decline was not something she could consider in determining the appellant's specific risk of violent re-offence. The sentencing judge's findings on likelihood of harmful recidivism were open to her. The sentencing judge's failure to consider intractability at the designation stage did not undermine the conclusion on designation. The sentencing judge did not impose an onus on the appellant to prove his conduct was not intractable. There was no reasonable prospect on this evidential record that the sentencing judge would have made a different finding had she expressly considered intractability at the designation stage. The indeterminate sentence was appropriate. The evidence before the sentencing judge was that the appellant's future treatment prospects were poor. Programming that was undertaken effected no change in behaviour. Neither had court orders been effective at controlling the appellant. The sentencing judge could not find that treatment would likely change the appellant's behaviour when there was no evidence before her about the nature of the anti-social attitudes that drove his offending or how amenable such attitudes would be to available treatment. The evidentiary vacuum that existed was entirely of the appellant's making as he refused to testify or to submit to an assessment. On the evidence before her, the sentencing judge could not conclude that there was a reasonable expectation that a regime of treatment and supervision could adequately protect the public.

Cases referred to

R. v. B. (D.), [2015] O.J. No. 5138, 2015 ONSC 5900; R. v. Boutilier, [2017] 2 S.C.R. 936, [2017] S.C.J. No. 64, 2017 SCC 64, 419 D.L.R. (4th) 189, 358 C.C.C. (3d) 285, 42 C.R. (7th) 251, 142 W.C.B. (2d) 839, EYB 2017-288473, 2017 CCAN para. 10,012, 2018EXP-32; R. v. Gracie (2019), 147 O.R. (3d) 385, [2019] O.J. No. 4244, 2019 ONCA 658

Statutes referred to

Criminal Code, R.S.C. 1985, c. C-46, ss. 752 [as am.], 752.1 [as am.], 753(1)(a)(i), (4) [as am.], (4.1) [as am.]

APPEAL from the convictions entered by Forestell J., [2015] O.J. No. 7278, 2015 ONSC 4952 and from the sentence, [2016] O.J. No. 6995, 2016 ONSC 7767.

No one appearing for appellant on the conviction appeal.

Ingrid Grant, for appellant on the sentence appeal.

Deborah Krick, for respondent.

The judgment of the court was delivered by

B.W. MILLER J.A.: —

Overview

[1] The appellant has a history of assaulting and sexually assaulting women who have been his intimate partners. Following his conviction for offences related to a sexual assault of the complainant, N.J., he was found to be a dangerous offender under s. 753(1)(a)(i) of the Criminal Code, R.S.C. 1985, c. C-46 and sentenced to an indeterminate period of detention. He appeals against his convictions, the dangerous offender designation and the sentence imposed. For the reasons that follow, the appeal against the designation and the sentence are dismissed. His appeal against conviction was dismissed from the bench as abandoned.

Background

[2] The appellant became involved with N.J., with whom he parented a child, in April 2008. He assaulted her repeatedly over the course of their relationship. The violence escalated when N.J. took steps to end the relationship in May 2012.

[3] At 11:00 p.m. on November 16, 2013, N.J. had just finished working her shift at a hospital. She walked to her car, which she had parked in the hospital's visitor's parking lot. Unknown to her, the appellant was waiting for her, hiding in the trunk. As she began to drive home, the appellant crawled forward and grabbed her by her ponytail. She turned to see the appellant pointing a gun at her head. Terrified, she drove, at his direction, to a secluded area where he threatened to kill her and forced her to submit to sexual intercourse.

[4] This was not the first time the appellant lay in wait for N.J. in a parking lot. It was not the first time he brought a gun. His assaults of her were many and various: choking, stabbing, hitting with whatever objects were at hand and spraying her with pepper spray. There was also evidence from another former intimate partner of the appellant, whom the appellant had also subjected to repeated assaults during an overlapping time frame.

[5] On multiple occasions, N.J. reported the appellant's assaults to the police but later recanted. She testified that sometimes she recanted because the appellant threatened to harm members of her family in Jamaica. Other times it was because she wished to continue her relationship with the appellant, who is the father of her son.

[6] The appellant was convicted of multiple offences with respect to N.J., including sexual assault with a weapon, threatening death, criminal harassment, forcible confinement, intimidation and attempt to obstruct justice. The Crown brought a dangerous offender application. The appellant was found to be a dangerous offender and given an indeterminate sentence.

Issues on Appeal

[7] The appellant, who is currently serving his sentence in a federal penitentiary, was self-represented on his appeal against conviction. After he declined to leave his cell to argue the appeal, his appeal against conviction was dismissed as abandoned.

[8] The appellant was represented by counsel on his appeal against the dangerous offender designation and the indeterminate sentence. He raised four issues:

(1) the sentencing judge misapprehended the evidence of the risk of recidivism;

(2) the sentencing judge failed to consider the issues of intractability and treatment prospects at the designation stage of the dangerous offender hearing;

(3) the sentencing judge placed an onus on the appellant to prove his conduct was not intractable at the sentencing stage of the dangerous offender hearing; and

(4) the sentencing judge erred in sentencing by failing to impose the least intrusive sentence required to protect the public.

[9] The first two grounds of appeal relate to the designation of the appellant as a dangerous offender. The two last grounds of appeal relate to his indeterminate sentence.

Analysis

A. The dangerous offender designation

[10] On an application under s. 753(1)(a)(i), a court is required to find an offender a dangerous offender if it is satisfied (1) that the offence for which the offender has been convicted is a serious personal injury offence as defined in s. 752; (2) the offence is part of a broader pattern of violence; (3) there is a high likelihood of harmful recidivism; and (4) the violent conduct is intractable: R. v. Boutilier, [2017] 2 S.C.R. 936, [2017] S.C.J. No. 64, 2017 SCC 64, at para. 26.

[11] The appellant does not contest that the sentencing judge properly determined that he was convicted of a serious personal injury offence that formed part of a broader pattern of violence. However, he argues that the sentencing judge erred in the remainder of the analysis. In particular, he argues that the sentencing judge: misapprehended significant evidence concerning his likelihood of recidivism, and failed to address the issue of intractability -- that is, whether the appellant will be unable to surmount his impulse for violent conduct -- at the designation stage. While he recognizes the sentencing judge assessed his intractability at the sentencing stage, he argues her assessment was "tainted by error" and this court cannot rely on the sentencing-stage intractability assessment to cure the error at the designation stage.

[12] As explained below, I am not persuaded that the sentencing judge misapprehended the evidence on the likelihood of recidivism. In addition, although the sentencing judge did not address intractability at the designation stage, I am not persuaded that this error had any impact on the result: the sentencing judge did not err in her analysis of intractability at the sentencing stage, and her findings can be applied to the analysis of intractability at the designation stage.

Misapprehension of evidence on the likelihood of harmful recidivism

[13] The appellant was 35 years old at the time of the index offences and 38 years old at the time of the dangerous offender hearing. A psychiatrist, Dr. Klassen, prepared the requisite s. 752.1 assessment and testified at the hearing. As was his right, the appellant chose not to participate in the assessment and did not testify at the hearing. Accordingly, there was limited available information about the appellant's background and early life. What evidence there was came from one of the appellant's former intimate partners. There were no school records or family members available to provide background.

[14] Due to the limited information available, aspects of Dr. Klassen's opinion on the appellant's likelihood of violent recidivism were qualified. Specifically, he was unable to complete some actuarial tests that the sentencing judge found would have been helpful in determining the likelihood of violent reoffending. However, Dr. Klassen was able to substantially complete the Ontario Domestic Assault Risk Assessment ("ODARA") test, which measures an offender's risk of future assaults against intimate partners. Though he lacked the information to satisfy two items on the ODARA test, the evidence that was available placed the appellant in the highest risk category and predicted a high risk of violent recidivism.

[15] The absence of evidence also left Dr. Klassen unable to offer an unqualified opinion as to how the appellant's age may affect his level of future risk. It is this evidence the appellant alleges the trial judge misapprehended.

[16] During cross-examination, Dr. Klassen testified about the correlation between age and declining risk of violent re-offence. He noted that, generally speaking, by the time an offender passes a particular age -- on average, sometime between age 50 and 60 -- the offender's propensity for aggressive behaviour begins to decline. He noted, however, that different types of offending behaviour decline at different rates. As it is important to understand the context of the full cross-examination on this point, I have reproduced the relevant portions of the transcripts.

Q. And in [the appellant's] case, my understanding is that when he reaches 50, that there is a precipitous or in the, in the point leading up to achieving the age of 50 there's this precipitous drop in, in that risk.

R. So I -- that's not exactly how I would frame it . . . So risk of violent sexual offending declines relatively linearly with age and one of the ways that I sometimes approach a proceeding like this is to say . . . if you imagine it declining on a graph, is, is going to hit the "X" axis of sort of zero. And, and, of course, different kinds of offending behaviour have different slopes to that line and hit the "X" axis at different points in time.

So by the time people pass 50 and I will say broadly between the decade of 50 and 60, you will have seen significant decline in propensity for aggressive behaviour and for what I'm going to call effortful aggressive sexual behaviour. That is to say, typically, sexual assault or rape of adult females, not so much so child molestation.

If we pick the number 50, there's no magic number . . . then on average, and again I want to reiterate this is not about [the appellant]. This is on average. On average, those individuals have significantly reduced rates of violent recidivism, psychopathic or not.

Q. I appreciate all that comprehensive generalized information.

A. Yeah.

Q. I, I guess the bottom line is this, and you can correct me if I'm wrong, but with respect to [the appellant], by the time he reaches 50, my understanding is your opinion is, at that stage, you would say that in terms of causing death or injury, there wouldn't be a likelihood of him doing that by the time he hits 50; is that fair?

R. Well, you know, again, none of these things specifically refer to [the appellant], not the results of the ODARA and not age-related decline. I do think, though, that that the, that the numbers that we see from the ODARA right now, I would agree with you, that you would, you would expect that you would not offer a 70 per cent probability in the decade between 50 and 60. He committed this last offence in 2013, at which point he was 35 years of age. The difference between 35 and 50 is 15 years, so I would [s]ay, yes, I, I would agree with you that, on average, you would expect to see an age-related decline that would take a person out of the probability bracket, but I can't offer that specifically with respect to [the appellant] any more than the ODARA score, score speaks to him specifically.

S. Right. But in terms of your expectation of that, that harm occurring, that -- the expectation of death or injury, in terms of, like, more -- the -- on a balance of probabilities or, like, it being -- not balance of probabilities, but it being, I guess, less than 50 per cent likely once he hits 50, my understanding is that you can safely say that in terms of establishing likelihood, it's less likely that it would happen, meaning, like, less than 50 per cent.

T. So I, I think the source of some of the confusion is that most of our risk assessment tools have defined period of prediction that do not take us 15 years out. So the ODARA is five years. The VRAG is 10 years. The Static is 10 years.

I have a prediction there on the basis of those instruments. It doesn't take us to 50. If we shift slides from those instruments to bringing up slides, looking at average age crime curves past the age of 50, you -- what you see is that rates of new violent crime into the -- past the age of 50 are much less than they were when they were -- when the individuals were 40 and 35 and 25 and so on. So it, it's mixing our metaphors a bit to say, you know, that I would abandon the ODARA score, that I might say it's less than 50. What I would say is I would say I'm, I'm comfortable on the basis of age-related decline that this gentleman's risk would be significantly less than it is at the age of 35.

Q. Okay. Perhaps I can put this in another way. As a, as a clinician and having experience with lots of different offenders who come before the court where Crowns have applied to have them declared dangerous or applied to have either an indeterminate sentence or a fixed sentence with a, a period of, of supervision under a long-term sentence order, someone who has not had significant clinical intervention before like [the appellant] . . . who has a history like [the appellant], you agree with me that indefinite incarceration, it doesn't seem like the only reasonable way to address the public safety issues that arise; right?

A. Yeah. I mean, I, I think the, the question that arises is -- and, and I've been reflecting on this, of course, a little bit in the last day since I've sort of geared myself up for the testimony. I mean, it, it does cause you to wonder whether indefinite incarceration is the only or appropriate remedy for somebody who has not had serious treatment or serious community supervision and whose offences in the main have not been serious, although, again, the caveat is that multiple less serious offences can add up the trauma that is the equivalent of a serious offence. The problem is I, I can't tell you anything about [the appellant] and reasonable possibility or reasonable expectation. I, I, I think I agree with you that I, I share that thought of, you know, whether it would make sense to, to go to the next level in terms of the intensity of the treatment and in terms of the intensity of the supervision, which would be CSC and a supervision order. But I, I just -- I, I can't come out, obviously, in favour of reasonable possibility or reasonable expectation for lack of personal knowledge of [the appellant].

(Emphasis added)

[17] Ultimately, with the benefit of Dr. Klassen's testimony and all other available evidence, the sentencing judge was satisfied that the evidence established [at para. 73] "beyond a reasonable doubt a very substantial probability that [the appellant] will reoffend violently against a future domestic partner". She held that:

[The appellant's] pattern of controlling and assaultive behaviour in the context of his relationships makes it likely that he will inflict death, injury or severe psychological damage on intimate partners. [The appellant's] pattern of conduct is one of persistent and escalating domestic violence. [The appellant] has acted violently and faced criminal charges in the context of three out of his four known intimate relationships in the 12 years that he has been in Canada.

[18] Immediately after making this finding, the sentencing judge stated [at para. 74]: "[w]hile I accept the general proposition that risk of violent recidivism declines with age for most offenders, a general pattern does not necessarily predict the behaviour of an individual offender". She found that the appellant's pattern of escalating behaviour did not conform "to the general pattern of linearly declining violence with age attested to by Dr. Klassen".

[19] The appellant raises two issues with the sentencing judge's finding on the general pattern evidence. First, the appellant argues that the sentencing judge misapprehended the general pattern of decline with age described by Dr. Klassen. Second, he argues that based on that misapprehension, the sentencing judge mistakenly found that the appellant's pattern of offending was inconsistent with the general pattern of decline. This culminated in the sentencing judge substituting her own opinion for how the age-related decline phenomenon applied to the appellant and predicted a level of violence not supported in the evidence.

[20] First, with respect to the concept of linear decline, the appellant argues that the trial judge wrongfully characterized Dr. Klassen's conception of age-related decline as linear: i.e., that risk of violent behaviour declines linearly as an offender ages. The appellant argues that this conception would be absurd: it would mean that offenders would be at their maximal risk of offending during infancy and that risk would steadily decline thereafter.

[21] The appellant argues that Dr. Klassen's evidence, properly characterized, is that the risk of different types of offending can be expected to decline at different rates, and that for most types of violent offending there is an expected decline in risk after the age of 40, and a greater decline after the age of 50. He submits the sentencing judge's articulation of the pattern as linear was incorrect.

[22] The appellant argues the sentencing judge's mischaracterization of the evidence contributed to her second error. With respect to the application of age-related decline to the appellant, the appellant submitted that the trial judge erred in finding the appellant fell outside the general expectation of declining future risk. The fact that his pattern of violence escalated in his 30s was not evidence that his risk of offending would not decline with age, but rather that he had not yet reached the age at which his risk of re-offence could be expected to decline. The salient evidential point, according to the appellant, is not that the appellant's pattern of offending up to his mid-30s showed an escalation in violence, but that his risk of violence could be expected -- as with other offenders -- to decline as he aged. Thus, the appellant points to Dr. Klassen's statement: "I'm comfortable on the basis of age-related decline that this gentleman's risk would be significantly less [at 50] than it is at the age of 35". The appellant argued these errors led the sentencing judge to substitute her own opinion of how age-related decline applied to the appellant and predicted a level of violence not born out in the expert evidence.

[23] I do not agree that the sentencing judge misapprehended Dr. Klassen's on the concept of linear decline. Summarizing Dr. Klassen's evidence on this point, the sentencing judge said [at para. 50]: "The risk generally declines linearly with age. Past the age of 50 years there is generally a significant decline in the risk of violent recidivism" (emphasis added). Furthermore, at all other points in her reasons, the sentencing judge accurately describes Dr. Klassen's evidence as a general pattern of decline with age. Her use of the word "linearly" -- which Dr. Klassen used in his testimony -- does not commit her to the absurdity proposed by the appellant. It is implicit in the sentencing judge's reasons that decline followed from a particular age that may not the same for all offender or all offences.

[24] In addition, the sentencing judge did not find that age-related decline does not apply to the appellant. She merely found that a general pattern does not necessarily predict the behaviour of an individual offender, and that because of the lack of evidence of the appellant's particular characteristics, she could not say whether it would apply to him [at para. 99]: "Without evidence of [the appellant's] attitudes, insight and motivation I cannot say that age will significantly reduce risk in this offender."

[25] This was consistent with Dr. Klassen's testimony that he could not make determinations specific to the appellant because he lacked sufficient information. Dr. Klassen's comment that he was comfortable that the appellant's risk at age 50 would be significantly less than at age 35 must be considered in the context of his entire testimony. He was attempting to clarify the difference between the actuarial predictors and the phenomenon of age-related decline. He was speaking generally of age-related decline, and stated on the basis of the general trends alone -- without considering any other measures, the appellant's history, or personal characteristics -- that he was comfortable the appellant's risk would decline. While it may have been a poor choice of words, Dr. Klassen was not giving a definitive, clinical opinion, based on his assessment of the appellant, that the appellant's risk would be significantly lower past the age of 50. This is clear based on his consistent comments before and after that particular answer, that he could not make any definitive findings because he lacked sufficient knowledge of the appellant. He could not definitively say the general pattern of age-related decline would apply to the appellant, nor could he say it would not.

[26] Accordingly, the sentencing judge did not, as the appellant suggests, substitute her own opinion that age-related decline does not apply to the appellant and subsequently predict a level of violence not supported by the expert evidence. She merely found that the phenomenon of age-related decline was not something she could consider in determining the appellant's specific risk of violent re-offence.

[27] The sentencing judge's conclusion that there was a high likelihood of future violent reoffending in the intimate partner context was based on all the evidence before her, including Dr. Klassen's evidence. Dr. Klassen's opinion was that the appellant presents a very high risk of future intimate partner violence recidivism. He also testified that, compared with other offender groups, offenders who engage in intimate partner violence generally have higher rates of recidivism. The appellant placed in the highest risk category under the ODARA, which predicted significant risk of violent recidivism. The appellant also had a long history of violent and controlling behaviour against his intimate partners, which escalated in the years leading up to the index offences. The sentencing judge's findings on likelihood of harmful recidivism were open to her, and there is no basis on which I would interfere.

Failure to consider intractability at the designation stage

[28] The appellant argues the trial judge erred in failing to consider the issue of intractability and treatment prospects at the designation stage of the dangerous offender hearing. As Boutilier, at para. 46, concludes, "a finding of dangerousness has always required that the Crown demonstrate, beyond a reasonable doubt, a high likelihood of harmful recidivism and the intractability of the violent pattern of conduct". The sentencing judge did not have the benefit of Boutilier and, as the Crown concedes, did not consider in the designation analysis the intractability of the appellant's violent pattern of conduct. That is, the sentencing judge did not consider the extent to which the risk of future violent offending could be ameliorated by future treatment: "offenders will not be designated as dangerous if their treatment prospects are so compelling that the sentencing judge cannot conclude beyond a reasonable doubt that they present a high likelihood of harmful recidivism or that their violent pattern is intractable": Boutilier, at para. 45. The appellant argues this error fatally undermines the dangerous offender designation.

[29] The appellant further argues that the fact that the sentencing judge addressed intractability in the sentencing stage in no way cures the omission to address intractability in the designation phase. More specifically, he argues the sentencing judge erred in her intractability assessment in the sentencing stage by imposing an onus on the appellant to prove his conduct was not intractable. Because of that error, this court cannot rely on the sentencing-stage analysis to remedy the sentencing judge's error at the designation stage.

[30] I disagree that the sentencing judge's failure to consider intractability at the designation stage undermines the conclusion on designation. As I explain below, the sentencing judge did not impose an onus on the appellant to prove his conduct was not intractable, and this court can rely on the sentencing-stage analysis in assessing the sentencing judge's determination on the dangerous offender designation. In my view, there is no reasonable prospect on this evidential record that the sentencing judge would have made a different finding had she expressly considered intractability at the designation stage.

B. The imposition of an indeterminate sentence

[31] The appellant's grounds of appeal related to the sentencing stage of the dangerous offender hearing centre around the sentencing judge's alleged focus on the absence of evidence, rather than on the evidence before her. The appellant argues that, by focusing on what evidence she did not have instead of the evidence she did, the sentencing judge committed two errors. First, she imposed an onus on the appellant to prove his conduct was not intractable. Second, she failed to impose the least restrictive sentence necessary to protect the public, being a determinate sentence followed by a long-term supervision order ("LTSO") served in the community.

Onus on the appellant to prove his conduct was not intractable

[32] As the appellant argues, Boutilier makes it clear that intractability is relevant to both stages of a dangerous offender hearing: in the first with respect to whether the offender's risk of offending is amenable to treatment, and in the second with respect to what sentence is appropriate to address the degree of intractability. The questions that the finding of intractability help answer are therefore, different at each stage. But one would not expect a sentencing judge's findings with respect to intractability to vary across the two stages of analysis. In the present case, the findings made by the sentencing judge at the sentencing stage are readily transposed to the designation stage.

[33] At the sentencing stage in this case, the sentencing judge found that the appellant's conduct demonstrated "high level intractability" and that there was no reasonable prospect of control of the appellant in the community. As was the case in R. v. Gracie, "[t]he sentencing judge's finding that there was no reasonable prospect of control of the appellant in the community at the penalty stage can . . . be relied on at the designation stage": (2019), 147 O.R. (3d) 385, [2019] O.J. No. 4244, 2019 ONCA 658, at para. 37.

[34] The evidence before the sentencing judge was that the appellant's future treatment prospects were poor. The most that can be said is that the appellant had been, historically, willing to participate in treatment programs offered to him and was reported to have been polite and cooperative while participating. As the sentencing judge noted [at para. 91], this is some evidence of "motivation and commitment to treatment". But for the purposes of assessing intractability, it is at least as significant that programming that was undertaken effected no change in behaviour.

[35] A survey of the appellant's behaviour during and after participation in programming was not encouraging. After completing the Partner Assault Response ("PAR") program in 2009, the appellant committed further intimate partner violence offences. While participating in the PAR program in 2012, he again committed further intimate partner violence offences. While participating in the PAR program in 2013, he committed acts of violence against N.J. After he had completed the program, he committed the predicate offences.

[36] Neither have court orders been effective at controlling the appellant: he repeatedly breached terms of his recognizance by contacting his partners while prohibited, and he committed intimate partner violence offences while on recognizance and while on probation.

[37] There was no evidence before the sentencing judge that would have allowed her to come to the conclusion that the appellant's treatment prospects were "so compelling" that they cast doubt on the likelihood of violent reoffending. The most that can be said is that there was an absence of evidence as to whether more intensive programs offered through Correctional Service Canada would have more of an impact. Dr. Klassen was open to the possibility that a clinical assessment of the appellant's attitudes, insights and motivation might have supported a conclusion that the appellant's risk of re-offence could be managed in the community. But because the appellant chose not to participate in such an assessment, this remained mere conjecture.

[38] The sentencing judge's approach was not, as the appellant argued, a matter of putting an onus on the appellant to prove that his risk of violent recidivism is amenable to treatment. The sentencing judge found that the evidence established that the appellant posed a risk of violent recidivism. The remaining question was whether the risk could be managed by treatment. To the sentencing judge, the available evidence established that it could not be. The appellant now raises speculative possibilities that cannot be established or negated because of his decision not to participate in the assessment process. The appellant had no obligation to participate, but having not done so, he cannot appeal to the evidence that might have been.

Failure to impose the least intrusive sentence required to protect the public

[39] Once a sentencing judge has found an appellant to be a dangerous offender, the sentencing judge must impose sentence. Section 753(4.1) directs a sentencing judge to impose:

a sentence of detention in a penitentiary for an indeterminate period unless it is satisfied by the evidence adduced during the hearing of the application that there is a reasonable expectation that a lesser measure under paragraph (4)(b) or (c) will adequately protect the public against the commission by the offender of murder or a serious personal injury offence.

[40] As the Supreme Court of Canada explained in Boutilier, at para. 60, s. 753(4) requires a sentencing judge to "impose the least intrusive sentence required to achieve the primary purpose of the scheme", which is the goal of public protection. This requires a sentencing judge to conduct a thorough inquiry as to whether the dangerous offender can be controlled in the community, by considering all the evidence from the hearing to determine the most fit sentence. Part of this inquiry is to assess the degree of the offender's intractability, and whether a proposed disposition can surmount it: Boutilier, at paras. 45, 67-68. Consequently, a finding that an offender's risk can be managed in the community requires an evidential foundation.

[41] In the case of the appellant, the sentencing judge canvassed a non-exhaustive list of factors from R. v. B. (D.), [2015] O.J. No. 5138, 2015 ONSC 5900, to aid in assessing whether the evidence supported a reasonable expectation that something less than an indeterminate sentence could adequately protect the public. Among the most significant of the sentencing judge's findings are that the treatments undertaken by the appellant to date had [at para. 90] "no impact on reducing or controlling the risk he presents"; the appellant [at para. 93] "minimized and rationalized his conduct" and "blamed the victim for his conduct"; and the appellant had been non-compliant with recognizances in the past and [at para. 96] "threatened and intimidated the victim in order to convince her to recant her allegations".

[42] A significant factor in the sentencing judge's analysis is the nature of the offence for which the appellant was convicted: the offence was committed in the context of a pattern of violently exercising control and domination over a former intimate partner. The sentencing judge noted that high intensity treatment programs would be available to the appellant in the federal penitentiary system that had not previously been available to him during his incarceration in the provincial system. However, the sentencing judge was not prepared to speculate on the efficacy of these programs. She stated two reasons for caution: first, there was no evidence that the appellant would meaningfully participate in them; and second, even assuming he would participate, she was unable to ascertain the efficacy of such programs, absent any information about [at para. 95] "the entrenchment of his attitudes and the factors that drive his conduct towards intimate partners".

[43] It is the latter factor that drove the sentencing judge's analysis. The sentencing judge could not find that treatment would likely change the appellant's behaviour when there was no evidence before her about the nature of the anti-social attitudes that drove his offending or how amenable such attitudes would be to available treatment.

[44] Again, this finding was not a matter of imposing an onus on the appellant. He had no obligation to testify or to submit to an assessment by Dr. Klassen. But he also chose not to facilitate any access to his family outside Canada who could have provided background information that would be useful in a clinical assessment. The evidentiary vacuum that existed was entirely of his making. He cannot now complain that it is somehow unfair that the evidence adduced at the hearing did not support the proposition that the public could be adequately protected from him by the imposition of a lesser sentence.

[45] The absence of information about the attitudinal drivers of the appellant's conduct was important to the sentencing judge's conclusion that a LTSO would be insufficient to protect the public. The sentencing judge considered Dr. Klassen's somewhat ambivalent evidence as to whether the appellant's risk could be managed by a determinate sentence combined with a ten-year LTSO. However, she also characterized Dr. Klassen's evidence on this point as a feeling or impression, rather than a clinical opinion, as he lacked sufficient evidence and personal knowledge of the appellant to give a clinical opinion. Dr. Klassen testified that to give an opinion, he would need evidence on how entrenched the appellant's attitudes are, on how deviant his lifestyle is, and on how willing the appellant is to change his lifestyle. Accordingly, the sentencing judge concluded that this evidence was not sufficient to ground a conclusion that such a sentence would adequately protect the public, understanding that the public includes -- predominantly in this case -- any future intimate partners of the appellant. The sentencing judge gave cogent reasons for this conclusion [at para. 98]:

However, release to a [community correctional centre ("CCC")] necessarily entails community access. When released to a CCC [the appellant] would be given access to the community at least through the day and would have an opportunity to forge relationships. In my view, the supervision and control available upon release is not adequate to protect future intimate partners absent meaningful treatment, insight and a willingness on [the appellant's] part to comply with supervision. I have no evidence that Mr. [the appellant] is capable of changing his conduct with treatment. Treatment to this point has had no effect on [the appellant's] conduct. Without evidence of what has driven [the appellant's] conduct and evidence that treatment could effect a change within a defined period of time, I cannot conclude that there are sufficient external controls in the community to adequately protect the public.

[46] The Supreme Court in Boutlilier, at para. 54, reminds that all general sentencing principles continue to apply in sentencing under the dangerous offender provisions. The sentencing judge was keenly aware of this and specifically addressed the application of the "jump" principle, and that the imposition of an indeterminate sentence for this offender constituted a significant jump from previous sentences imposed. Despite his history of offending, the appellant had received a series of comparatively light sentences, never having been incarcerated for more than six months at a time (and always in the provincial system) and often receiving suspended sentences. Nonetheless, on the evidence before her, the sentencing judge could not conclude that there was a reasonable expectation that a regime of treatment and supervision could adequately protect the public. The operation of the jump principle does not negate this conclusion.

Disposition

[47] The appeal against conviction is dismissed as abandoned. The appeal against sentence is dismissed.

Appeal dismissed.