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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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

(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.

(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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

(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.

(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.

(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.

(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.

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. 486.5(1), (2), (2.1), (3), (4), (5), (6), (7), (8) or (9) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.5 (1) Unless an order is made under section 486.4, on application of the prosecutor in respect of a victim or a witness, or on application of a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is of the opinion that the order is in the interest of the proper administration of justice.

(2) On application of the prosecutor in respect of a justice system participant who is involved in proceedings in respect of an offence referred to in subsection (2.1), or on application of such a justice system participant, a judge or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is in the interest of the proper administration of justice.

(2.1) The offences for the purposes of subsection (2) are

(a) an offence under section 423.1, 467.11, 467.111, 467.12, or 467.13, or a serious offence committed for the benefit of, at the direction of, or in association with, a criminal organization;

(b) a terrorism offence;

(c) an offence under subsection 16(1) or (2), 17(1), 19(1), 20(1) or 22(1) of the Security of Information Act; or

(d) an offence under subsection 21(1) or section 23 of the Security of Information Act that is committed in relation to an offence referred to in paragraph (c).

(3) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice if it is not the purpose of the disclosure to make the information known in the community.

(4) An applicant for an order shall

(a) apply in writing to the presiding judge or justice or, if the judge or justice has not been determined, to a judge of a superior court of criminal jurisdiction in the judicial district where the proceedings will take place; and

(b) provide notice of the application to the prosecutor, the accused and any other person affected by the order that the judge or justice specifies.

(5) An applicant for an order shall set out the grounds on which the applicant relies to establish that the order is necessary for the proper administration of justice.

(6) The judge or justice may hold a hearing to determine whether an order should be made, and the hearing may be in private.

(7) In determining whether to make an order, the judge or justice shall consider

(a) the right to a fair and public hearing;

(b) whether there is a real and substantial risk that the victim, witness or justice system participant would suffer harm if their identity were disclosed;

(c) whether the victim, witness or justice system participant needs the order for their security or to protect them from intimidation or retaliation;

(d) society’s interest in encouraging the reporting of offences and the participation of victims, witnesses and justice system participants in the criminal justice process;

(e) whether effective alternatives are available to protect the identity of the victim, witness or justice system participant;

(f) the salutary and deleterious effects of the proposed order;

(g) the impact of the proposed order on the freedom of expression of those affected by it; and

(h) any other factor that the judge or justice considers relevant.

(8) An order may be subject to any conditions that the judge or justice thinks fit.

(9) Unless the judge or justice refuses to make an order, no person shall publish in any document or broadcast or transmit in any way

(a) the contents of an application;

(b) any evidence taken, information given or submissions made at a hearing under subsection (6); or

(c) any other information that could identify the person to whom the application relates as a victim, witness or justice system participant in the proceedings. 2005, c. 32, s. 15; 2015, c. 13, s. 19

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Groves, 2020 ONCA 86

DATE: 20200205

DOCKET: C61515

Doherty, Watt and Hourigan JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

William Groves

Appellant

Michael Davies, for the appellant

Michael Perlin, for the respondent

Heard: January 29, 2020

On appeal from the designation as a dangerous offender and the indeterminate sentence imposed by Justice Lynn D. Ratushny, of the Superior Court of Justice, dated June 8, 2015.

REASONS FOR DECISION

[1] The appellant is a paedophile. He pled guilty to, and was convicted of, 21 offences, including 12 counts of child internet luring, 3 counts of sexual touching, and 1 count of sexual interference. The offences occurred over a 40-month period between 2008 and 2011. The victims were children between the ages of 11 and 16. The appellant has a criminal record for similar offences going back to about 2004.

[2] The Crown brought a dangerous offender application. On June 8, 2015, the trial judge granted that application, declared the appellant a dangerous offender, and imposed an indeterminate sentence in the penitentiary. The appellant appeals.

[3] The facts relevant to the appellant’s many offences, his history within the criminal justice system since about 2005 and various psychiatric assessments, including the assessment of Dr. Pallandi, prepared for the purposes of the dangerous offender hearing, are fully and accurately summarized in the trial judge’s reasons: 2015 ONSC 2590. We need not repeat them.

Grounds of Appeal

(1) Did the trial judge err in her interpretation of the requirements of ss. 753(1)(a)(i) and (ii)?

[4] The appellant submits that, in deciding whether the criteria in ss. 753(1)(a)(i) or (ii) were met, the trial judge focused exclusively on the appellant’s prior conduct and did not engage in any “meaningful analysis of future risk”. The appellant contends that, as made clear in R. v. Boutilier, 2017 SCC 64, future risk is an integral part of the s. 753(1)(a)(i) and s. (ii) analysis.

[5] We agree that an assessment of the threat posed to the safety of the public in the future by the appellant’s conduct is a component of the analysis under the relevant provisions. We disagree that the trial judge did not have regard to future risk assessments in considering the applicability of ss. 753(1)(a)(i) and (ii).

[6] The trial judge did review the appellant’s prior conduct at length. She was required to do so for the purposes of assessing future risk. On this evidence, the nature and duration of the appellant’s prior conduct provided powerful evidence of how the appellant would act in the future, if given the opportunity. The evidence of the appellant’s prior conduct was strongly suggestive of a significant future risk.

[7] The trial judge did not stop, however, at the appellant’s prior conduct. She specifically referred to, and considered, the assessment of Dr. Pallandi. That assessment spoke directly to future risk.

[8] In Dr. Pallandi’s assessment, he indicated that the appellant might be managed in the community if several steps were taken. The first required the appellant to agree to take long-acting intramuscular sex drive-reducing medication. The appellant had, however, indicated to Dr. Pallandi that he did not believe that the medication was necessary, both because he was getting older and because he had somehow developed sufficient empathy for his victims to render the drugs unnecessary. He was not willing to take the medication.

[9] Dr. Pallandi made it clear that, absent the implementation of any of the conditions in the proposed management program, he regarded the appellant as posing an unacceptable risk in the community “at any near point in the future”. A willingness to take the proper medication was one of those conditions.

[10] Reading the trial judge’s reasons as a whole, it is clear that she accepted Dr. Pallandi’s opinion. Absent a commitment to taking the required medication, the appellant clearly posed a future risk to the safety of the public.

(2) Did the trial judge deny the appellant procedural fairness?

[11] In their written submissions filed with the trial judge (there was no oral argument), counsel for the Crown and defence both referred to a requirement in the prior legislation. That provision required that an indeterminate sentence be imposed only where there was no “reasonable possibility of eventual control of the risk in the community”. In fact, the amendments proclaimed in 2008 applied in this proceeding. Under the amendments, an indeterminate sentence was to be imposed unless there was “a reasonable expectation” that a lesser sentence would adequately protect the public.

[12] In her reasons, the trial judge referred to counsel’s reliance on the prior legislation and went on, however, to address the evidence based on the applicable legislation.

[13] The appellant submits that the trial judge, once she realized that counsel’s submissions were directed at the prior, rather than the applicable legislation, should have given counsel an opportunity to make further submissions directed at the applicable legislation.

[14] We agree that the trial judge could have followed that course. However, we do not see how the appellant was prejudiced. There is no suggestion in the arguments before us that the evidence would have been any different. Counsel had a full opportunity to frame his arguments in the context of the present legislation in this court. It does not appear to us that the different language in the two versions of the legislation would, in the circumstances of this case, have made any difference in the evidence adduced on behalf of the appellant or the arguments put forward for him.

[15] The trial judge’s reasons also offer an explanation for the trial judge’s failure to afford counsel an opportunity to make further submissions. The trial judge was satisfied, based on Dr. Pallandi’s report, that the appellant could not pass the “reasonable possibility of eventual control” test set out in the previous legislation. It followed from that, and the trial judge so found, that he must also fail the arguably more strenuous “reasonable expectation” test in the present legislation. There was, therefore, no need to request further submissions from counsel.

(3) Did the trial judge erroneously place the onus on the appellant?

[16] The trial judge, not surprisingly, given the language of s. 753(4.1), indicated that there was a presumption in favour of an indeterminate sentence, unless the court was satisfied that there was a reasonable expectation that some lesser measure would adequately protect the public. Boutilier, decided after the trial judge released her reasons, makes it clear that there is no presumption: Boutilier, at para. 71.

[17] The trial judge’s single reference to a “presumption” caused no substantial wrong or miscarriage of justice. This case did not turn on any presumption. The outcome turned on the trial judge’s detailed findings of fact and the application of the proper burden of proof to those findings.

(4) Was the imposition of an indeterminate sentence unreasonable?

[18] The trial judge’s reasons accurately set out the factual background and the applicable legislation. Her analytical route to an indeterminate sentence is crystal clear and free of any legal error. Nor is her conclusion outside of the range of reasonable results on this record. To the contrary, an indeterminate sentence seems the necessary result, given the appellant’s refusal to take the medication necessary to render the risk posed by his continued presence in the community acceptable.

[19] As indicated at the conclusion of oral argument, the appeal is dismissed.

“Doherty J.A.”

“David Watt J.A.”

“C.W. Hourigan J.A.”