Publication Restriction Warning

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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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

Court of Appeal for Ontario

DATE: 20210810 DOCKET: C66032

Doherty, Watt and van Rensburg JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

Justin Primmer Appellant

Counsel: Richard Litkowski and Myles Anevich, for the appellant Emily E. Marrocco, for the respondent

Heard: February 22, 2021 by video conference

On appeal from the conviction entered on July 9, 2015, and from his designation as a dangerous offender and the sentence imposed on May 29, 2017, by Justice Alissa K. Mitchell of the Superior Court of Justice, with reasons reported at 2017 ONSC 2953.

van Rensburg J.A.:

Overview

[1] The appellant appeals his convictions for assault, aggravated assault, assault causing bodily harm and uttering threats to property. He also appeals the decision declaring him a dangerous offender and imposing an indeterminate sentence.

[2] The charges [1] arose out of events that occurred during a two-month period in 2013. The complainant was the appellant’s intimate partner, who, among other things, testified about two assaults by the appellant during their brief and volatile relationship: the “beating incident”, in which the appellant allegedly injured the complainant’s face, and the “cutting incident”, in which he allegedly cut her forearms. The central issue at trial was the assessment of the credibility and reliability of the complainant, who admitted having lied to the police, the Children’s Aid Society (the “CAS”), to family members and to her best friend when asked about the cause of her injuries. The appellant did not testify.

[3] The appellant raises four issues on his conviction appeal. He asserts that the trial judge erred: (1) by using the complainant’s prior consistent statements and certain other evidence to corroborate her trial testimony; (2) in explaining away the complainant’s credibility problems by suggesting, without expert evidence, that she suffered from “Stockholm Syndrome”; (3) in shifting the burden of proof to the appellant when she concluded that he was the cause of the complainant’s injuries; and (4) in relying on the “ring of truth” as a basis for believing the complainant’s evidence about the appellant’s threat toward her father’s property.

[4] In appealing the dangerous offender finding and his indeterminate sentence, the appellant submits that (1) contrary to the Supreme Court’s decision in R. v. Boutilier, 2017 SCC 64, [2017] 2 S.C.R. 936, the trial judge failed to consider the factors of treatability and intractability at the designation phase of her dangerous offender analysis; and (2) the trial judge misapprehended the evidence of Dr. Philip Klassen, the assessor appointed under s. 752.1 of the Criminal Code, and set too high a standard for whether there was a reasonable prospect of eventual control of the appellant in the community.

[5] For the reasons that follow, I would dismiss the conviction appeal and the appeal of the dangerous offender designation and indeterminate sentence.

The Conviction Appeal

A. Facts

[6] The appellant and the complainant met in mid-March 2013 and began a volatile romantic relationship that lasted a little over two months. The complainant was 20 years old at the time and lived with her young daughter. The appellant regularly stayed overnight at the complainant’s apartment, where they would consume large amounts of alcohol and drugs.

[7] On April 28, 2013, the appellant invited a friend to the complainant’s apartment to provide them with cocaine. The complainant testified that when she refused to have sex with the friend to pay for the drugs, the appellant struck her on the side of her head. Later that morning, after they drove the appellant’s friend home and were alone in the car, the appellant repeatedly punched the complainant in the head. The complainant had no further recollection of events until she woke up in her bed in the afternoon, took pictures of her injured face, and discussed what had happened with the appellant. She testified that the appellant admitted to continuing the beating after they returned to her apartment, both on the couch in the living room, and in the bathroom. The complainant was convinced the appellant told her the truth about the details of the beating after she found her broken necklace in the bathroom.

[8] According to the complainant, the appellant became more controlling after the beating incident. He insisted that she cancel her social media accounts and placed spyware on her cellphone to track her communications. He prohibited her from wearing make-up and seeing friends. She stopped attending college. She also testified that, sometime after the beating, the appellant threatened to blow up her father’s car if she told anyone the true cause of the injuries to her face.

[9] The complainant testified that the cutting incident took place at her apartment on May 17 or 18, 2013. She told the appellant she did not think they should be together anymore. In response, the appellant followed her into the kitchen, took a knife from the knife block, and cut each of her forearms. They took photos of the injuries, which were deep and resulted in scarring.

[10] The appellant was arrested on May 25, 2013 for an unrelated assault on another woman. [2]

[11] The complainant did not disclose the assaults to the police until February 5, 2014. She had sent a text to her father, R.E., after the beating incident, with photos of her face and a message saying that she had been jumped after getting pizza. She repeated the story to R.E.’s common law partner, S.M., who advised R.E. of the extent of the injuries. R.E. suspected the complainant was not telling the truth and that the appellant was responsible for her injuries. He contacted the police, who met with the complainant at her father’s house. The police in turn alerted the CAS. In repeated interactions with the police and the CAS, the complainant denied or failed to disclose that the appellant had assaulted her.

[12] Following the cutting incident, the complainant told her friend, A.A., that the injuries to her forearms were caused by a freak gardening accident. On May 26, 2013, the police interviewed the complainant in relation to the appellant’s assault on another woman. The police observed a wound on the complainant’s left forearm that had begun to heal. The complainant repeated that the wound was caused by a gardening accident. On two further occasions she was questioned by police and she denied the appellant had assaulted her.

[13] R.E. testified that he had received by text message from the complainant’s cell phone photos of her facial injuries and a message stating that she had been jumped while getting pizza. S.M. testified that the complainant had initially told her that she had been jumped, but that several days after the beating incident, the complainant admitted that she had lied about the cause of her facial injuries and told her that the appellant had beaten her. S.M. also testified that the complainant told her sometime in June 2013 that the appellant was responsible for the cuts to her arms. The complainant’s mother, H.E., testified that the complainant had initially denied that the appellant had anything to do with her facial injuries and that she was unable to contact the complainant to discuss the injuries to her arms until after the appellant’s arrest on unrelated charges on May 25, 2013, when the complainant told her that the appellant had cut her arms.

The Trial Judge’s Reasons for Conviction

[14] Certain aspects of the trial judge’s reasons are addressed below. It is sufficient at this point to say that the trial judge convicted the appellant based on her acceptance of the complainant’s evidence. She found that the complainant was a credible and reliable witness. Although the complainant lied to police, family and friends on several occasions, she had a reasonable explanation for doing so, namely, that she was afraid of the appellant and what he would do if she told anyone the truth. Further, the inconsistencies in her evidence were not material.

[15] The trial judge concluded that the complainant’s evidence about the beating and cutting incidents and the appellant’s threat to destroy her father’s car was truthful. The trial judge found that her evidence was “corroborated” by photographs of her injuries, the broken necklace, and the evidence of other witnesses. The trial judge also considered and rejected alternate explanations for the complainant’s injuries that could have raised a reasonable doubt.

B. Issues and Discussion

(1) Did the trial judge err in finding corroboration for the complainant’s testimony where there was none?

[16] This ground of appeal focusses on a passage in the trial judge’s reasons which begins: “I find that [the complainant’s] evidence relating to the beating and the cutting is corroborated by the photographs, the broken necklace, and also the evidence of the other witnesses for the following reasons”.

[17] The appellant submits that the trial judge erred in law in concluding that the photos, the broken necklace, and the evidence of other witnesses “corroborated” her evidence. He asserts that the photos of the complainant’s injuries, including one of the cuts to her arms with the appellant’s shoe in the background, could corroborate only uncontroversial details, such as the fact that the complainant was injured, and that the broken necklace could not corroborate her evidence because it did not come from a source independent of the complainant. With respect to the evidence of S.M. and H.E., the appellant argues that the complainant’s prior consistent statements to these witnesses were used improperly, to bolster her credibility. [3]

[18] In the discussion that follows, I will address the trial judge’s use of the complainant’s prior consistent statements to S.M. and H.E. in her assessment of the complainant’s evidence. Then, I will turn to her treatment of the evidence of the photos and the necklace.

The Complainant’s Statements to S.M. and H.E.

[19] The complainant’s injuries to her face and her arms, and the timing of such injuries were not seriously in dispute. They were evident in the contemporaneous photos that were introduced in evidence at the trial, and they were described by various witnesses. There was no question that the complainant had repeatedly denied that the appellant had caused her injuries, and that she had offered other explanations to friends and family, the police and the CAS. She had first told the police that the appellant caused the injuries in February 2014, many months after the assaults had taken place. The key issue at trial was the assessment of the credibility of the complainant’s testimony, particularly in view of her prior inconsistent explanations for her injuries and her insistence that she had not been assaulted by the appellant, and the reliability of her evidence, because of the effect of drugs and alcohol on her perception and memory.

[20] While many of the witnesses at trial confirmed that the complainant denied having been assaulted by the appellant and offered other explanations, three witnesses, S.M., H.E. and R.E., testified about conversations with the complainant in which she disclosed that she had been assaulted by the appellant. The Crown led some of the evidence about these conversations. Defence counsel cross-examined each witness about the details of the conversations. In her reasons for conviction, the trial judge only referred to the consistency between S.M. and H.E.’s accounts of what the complainant told them about the assaults, and the complainant’s own account. [4] Accordingly, the appellant’s submissions on appeal focused on whether the trial judge used for an improper purpose, prior consistent statements of the complainant, adduced through these witnesses:

• S.M., the common law partner of the complainant’s father R.E., testified in chief that, although the complainant initially claimed that her facial injuries were caused when she was jumped on the way home from getting pizza, over time the complainant opened up to her more, and disclosed that they were caused by the appellant. The complainant also told her the details of how the appellant had cut her when S.M. saw the bandages on her arms. S.M. was cross-examined on the details of what she had been told by the complainant about both incidents.
• The complainant’s mother, H.E., testified in chief that, after the appellant had been arrested on an unrelated matter, the complainant told her that the appellant cut her arms. Under cross-examination H.E. confirmed that, after the appellant was arrested on the unrelated matter, the complainant told her that the appellant caused the injuries to her face, and she was taken through the details of her conversations with the complainant about both incidents.

[21] In closing submissions at trial, Crown counsel proposed that the evidence of what the complainant told S.M., H.E. and R.E. could be used for three purposes: first, to provide narrative of what the complainant told family, friends and police and how her story had changed over time; second, to neutralize the possibility that the complainant’s testimony at trial was the product of a faulty memory or influenced by the consumption of alcohol or drugs; and third, to respond to the defence argument that the complainant’s prior statements revealed inconsistencies that rendered her trial testimony unreliable. Crown counsel stated: “It is the inconsistency of [the complainant’s] evidence that will be the focus of [the defence’s] submissions to you in your assessment of the reliability or the credibility of [the complainant]”. He submitted that the evidence of the witnesses about what they were told by the complainant was “remarkably consistent with” her testimony.

[22] In his closing submissions, defence counsel challenged the complainant’s credibility and reliability. He referred to the various versions of the complainant’s accounts of what had caused her injuries which were inconsistent with her testimony, and he suggested that she was an unreliable witness because of the influence of drugs and alcohol. He specifically invited the trial judge to focus on inconsistencies between S.M. and H.E.’s versions of the beating and cutting incidents as relayed to them by the complainant, and the complainant’s version of the incidents in her eventual disclosure to police in February 2014 and in her testimony in court. He argued that, based on such inconsistencies, the complainant provided a “third version” of each of the beating and cutting incidents, that differed from her evidence at trial and what she had told the police.

[23] The trial judge said the following about the evidence of S.M.:

[S.M.] testified to the extent of the facial injuries she observed on April 30th. She also testified as to the events leading up to the cutting described to her by [the complainant]. Her evidence is largely consistent with the evidence of [the complainant] with respect to these same events. Any inconsistency between her evidence and [the complainant’s] evidence does not discredit the evidence of the [complainant], rather it goes to the reliability of [S.M.’s] evidence and its weight.

[24] The trial judge said the following about the evidence of H.E.:

[The complainant’s] mother’s evidence is similarly consistent with [the complainant’s] evidence with respect to the beating incident and the cutting incident. Similarly, any inconsistency between her evidence and [the complainant’s] evidence, does not discredit the evidence of [the complainant], rather it goes to the reliability of [H.E.’s] evidence and its weight.

[25] The appellant asserts that the trial judge erred in using the complainant’s prior consistent statements to H.E. and S.M. to bolster her credibility by comparing the statements for their truth with the complainant’s testimony. The appellant says that this is apparent from the trial judge’s use of the word “corroborate” in her introduction to the discussion of this evidence and her observation that the witnesses’ evidence and that of the complainant were “consistent”.

[26] I disagree.

[27] No objection was taken to the introduction of the evidence of the prior consistent statements; indeed, much of the evidence about the details of the conversations was elicited during cross-examination. The evidence was, without question, admissible for certain purposes in the context of the issues at trial. As Crown counsel submitted, the evidence of the complainant’s explanations for her injuries and her disclosures were part of the narrative: see e.g. R. v. Vlaski, 2019 ONCA 927, at para. 25, leave to appeal refused, [2020] S.C.C.A. No. 78. Moreover, her changing account, which was focused on by the defence, was central to the assessment of her credibility and reliability. She had repeatedly denied that she had been assaulted by the appellant, including to the CAS and the police, and it was only months after she sustained the injuries that she told the police they were inflicted by the appellant.

[28] The fact that the complainant told others on earlier occasions that she had been assaulted by the appellant was relevant to her credibility in that it could help the trial judge assess the defence argument that the complainant should not be believed because of the different accounts of the relevant events she had given. Defence counsel not only highlighted the complainant’s lies about the cause of her injuries, he also attacked her credibility by arguing that there were material inconsistencies between what she told S.M., H.E., and R.E., when she disclosed that the appellant had caused her injuries, and her evidence at trial. The trial judge was entitled to consider that argument having regard to the entirety of the statements made to these witnesses. Using the complainant’s prior statements in assessing the effectiveness of the defence challenge to her credibility does not constitute using those statements for their truth or for the prohibited inference that repetition enhances credibility. In addressing the prior statements, the trial judge did what she was invited to do: she considered S.M. and H.E.’s accounts of what the complainant told them about the incidents and the complainant’s testimony to assess whether the complainant’s account was materially inconsistent when looked at as a whole, and to gauge the impact that any differences in detail should have on the complainant’s overall credibility and reliability. This is a permissible use of prior consistent statement evidence: see e.g., R. v. L. (O.), 2015 ONCA 394, 324 C.C.C. (3d) 562, at paras. 34-36.

[29] Nor does the trial judge’s reference to the fact that the evidence of the other witnesses “corroborated” the complainant’s evidence mean that she was relying on the truth of the statements or the fact of repetition to enhance the complainant’s credibility.

[30] In a strict, legal sense, evidence can corroborate the testimony of a witness only if that evidence is independent of the witness’s testimony. What the witness said on a prior occasion is not independent evidence capable of corroborating her evidence: R. v. A.S., 2020 ONCA 229, at para. 52. In this case however I am not persuaded that the trial judge was using the word “corroborate” in the strict legal sense.

[31] In a case relied on by the appellant, R. v. Zou, 2017 ONCA 90, 346 C.C.C. (3d) 490, the question was whether the trial judge improperly used an email by the complainant as a prior consistent statement to bolster her credibility. The trial judge had referred to the fact that the email “corroborated” the complainant’s testimony, however the use of the word “corroborate” was not determinative. Doherty J.A. explained, at para. 40, that “corroboration”, as commonly understood, refers to evidence from a source other than the witness whose evidence is challenged which is capable of confirming the veracity of the evidence of the challenged witness. He observed however that, “[a] proper contextual reading of the reasons will sometimes demonstrate that the trial judge used the word ‘corroboration’ in a more limited sense than it is typically used”: at para. 42. [5]

[32] This is what occurred in R. v. D.A., 2018 ONCA 612. Although the trial judge stated that the complainant’s torn bra provided “some corroboration of the complainant’s version of events [that she had been sexually assaulted]”, this court found that the word “corroboration” was not used to suggest that the technical legal standards of corroboration had been met. Rather, the trial judge was communicating “no more than that the torn bra provides support for the allegation”. Because sexual assault did not require technical corroboration, the trial judge would have had no reason to invoke the technical legal concept: at para. 17.

[33] Similarly, in the present case, the trial judge was not required to find corroboration of the complainant’s evidence. Rather, at the point in her reasons where she made the impugned comments, the trial judge was examining the credibility and reliability of the complainant’s evidence, in the context of the various challenges that had been made by defence counsel.

[34] When her reasons are considered as a whole, together with the submissions of counsel, it is apparent that the trial judge was not relying on what the complainant told H.E. and S.M. for the truth of the statements, and she was not using the statements as “corroboration”. The fact that the complainant had disclosed the events to H.E. and S.M. was relevant in a case where the complainant had repeatedly denied that the appellant caused her injuries. In remarking on the consistency between what H.E. and S.M. recounted about what they were told by the complainant and the complainant’s evidence, the trial judge was rejecting the defence argument that these were prior inconsistent statements that undermined her credibility.

The Photos and the Broken Necklace

[35] Several photos of the complainant’s injuries were in evidence. These included photos of her facial injuries that she took immediately after the beating incident, photos of the facial injuries taken by S.M., photos the complainant had taken of the injuries to her arms, a photo of injuries to her arm taken by her friend A.A., and photos of scarring to her forearms taken by the police in February 2014. In the background of one of the photos the complainant had taken of her right arm both shoes and slippers were visible. She testified that the photo depicted her slippers and the appellant’s shoes. Also introduced in evidence was a broken necklace.

[36] The appellant’s argument is essentially that the photos and the broken necklace were not corroborative of the complainant’s evidence about the cause of her injuries. The photos only confirmed parts of her evidence – that she had been injured, but not the core of her evidence – that the appellant had caused the injuries. And the evidence about the broken necklace could not corroborate the complainant’s account because it was not independent of the complainant. The appellant submits that the trial judge erred in law in relying on such evidence as corroboration.

[37] I disagree.

[38] As I have already observed, in saying that the evidence of the complainant’s statements, the necklace and the photos “corroborated” the complainant’s evidence, the trial judge was not using the term in the strict legal sense. Rather, she was referring to evidence that supported the complainant’s evidence.

[39] The fact that the evidence did not directly confirm the most contentious point of the complainant’s evidence is of no moment. The consideration of evidence which is capable of confirming or supporting certain aspects of a witness’s testimony is typically part of the assessment of credibility in making findings of fact. “[C]onfirmatory evidence is often merely other circumstantial evidence that tends to support the Crown’s case, or to dispose of alternative hypotheses put forward by the defence. Such evidence can be given weight even if it does not directly ‘confirm the key allegations of sexual assault’ or ‘directly implicate the accused’”: R. v. Demedeiros, 2018 ABCA 241, 364 C.C.C. (3d) 271, at para. 8, aff’d 2019 SCC 11, [2019] 1 S.C.R. 568.

[40] The complainant testified that she could not recall the continuation of the beating by the appellant, but that he had told her that he continued to beat her in the bathroom, and that she had believed him when she found her broken necklace in the bathroom. She produced the broken necklace. While the broken necklace was not independent of the complainant, it was consistent with her account. The complainant was unable to provide direct evidence about the continuation of the beating, but she testified about how she had come to understand what had happened: that the appellant told her that he continued the beating in the bathroom, and that, after finding her broken necklace in the bathroom, she believed him. The broken necklace was simply some evidence that supported this aspect of her testimony: that the appellant told her that he beat her in the bathroom.

[41] As for the photos, the trial judge noted the injuries that were depicted and their timing. She also noted that one photo captured a shoe worn on the foot of the appellant and the slippers on the feet of the complainant.

[42] The appellant is correct in saying that the photos corroborated the fact of the complainant’s injuries, but not who caused them. However, the production of the photos was confirmatory not only of the injuries she sustained, but of the complainant’s evidence that she and others had taken photos. They were consistent with her account. The photo showing a pair of slippers and a set of shoes supported her evidence that the appellant was present when she took the photo of her arms, in the aftermath of the cutting incident. The trial judge did not overstate the importance of this evidence. It was open to her to conclude that the photos supported the complainant’s evidence relating to the beating and the cutting incidents.

(2) Did the trial judge err by invoking “Stockholm Syndrome” as an explanation for the complainant’s conduct?

[43] The complainant testified that she had repeatedly lied about the cause of her injuries, including to the police, because she was afraid of the appellant. Yet, after the appellant was arrested and taken into custody for an unrelated assault on May 25, 2013, the complainant installed a landline in her apartment to receive his collect calls, she scheduled a visit with him in June 2013 (though she did not follow through), and she met and was intimate with him on two occasions following his release. The defence relied on this evidence to say that the complainant was not really afraid of the appellant, and to urge the court to reject her explanation for the accounts she provided to the police and others.

[44] In the context of addressing the complainant’s behaviour, the trial judge stated that she “suffered from something akin to Stockholm Syndrome”. The appellant says that it was an error of law for the trial judge to take judicial notice of this psychiatric diagnosis (as no expert evidence had been led on this point), and to invoke it to explain away or minimize the complainant’s lies and apparently irrational behaviour.

[45] I agree with the Crown’s submission that, in making a passing reference to Stockholm Syndrome, the trial judge was not employing a psychiatric diagnosis to explain the complainant’s behaviour.

[46] Leading up to her reference to Stockholm Syndrome, the trial judge was considering the complainant’s explanation for her repeated lies to the police. She posed the question, “Does [the complainant]’s explanation as to why she repeatedly lied to the police make sense? Is it a rational or reasonable explanation in all of the circumstances?” She then explained why it was understandable that the complainant would be afraid of the appellant and why her conduct following the assaults was not inconsistent with such fear:

[The complainant] knew that [the appellant] was trained as a mixed martial arts fighter. She knew that [the appellant] had a previous conviction for manslaughter. She was aware that [the appellant] had been charged with the assault of another woman, which occurred around the time of the beating, and the cutting, and of which he was later convicted and for which he was given a jail sentence. He had threatened her and her father if she told anyone the truth. She had set up a safe word with [A.A.] to use if she was in danger. He had effectively cut her off from the support network of family and friends, and controlled her by plying her with drugs and alcohol. She was submissive to [the appellant]. She was in essence, his puppet, his property. Her complete submission to [the appellant] caused her to make decisions which otherwise defy a rational explanation, such as setting up a landline to facilitate communication while he was in jail, and being intimate with [the appellant] following his release. Her conduct suggests she suffered from something akin to the Stockholm Syndrome. [Emphasis added.]

[47] Contrary to the appellant’s argument, there was no “evidentiary shortcut” here, nor did the trial judge invoke a psychiatric diagnosis to explain the unexplainable. The trial judge accepted that the complainant’s otherwise irrational conduct was explained by her “complete submission” to the appellant, a conclusion that was amply supported by the evidence, and which is not challenged on appeal. After reaching this conclusion, and accordingly accepting the complainant’s explanation for her lies, the trial judge used the term “Stockholm Syndrome” as a descriptive label and not as the justification for the conclusion she had reached.

(3) Did the trial judge shift the burden of proof to the appellant?

[48] The appellant asserts that the trial judge shifted the burden of proof when she said, “without any evidence to support an alternate theory, I am left wondering if not [the appellant], then who? These injuries did not spontaneously appear. Someone caused these injuries to [the complainant].” The trial judge made this statement after observing that the defence called no evidence to support an alternate theory for the cause of the complainant’s injuries and noting that the defendant had no obligation to do so or to testify. The trial judge then proceeded to consider and reject alternate theories, including that the complainant was jumped after returning home from getting pizza, that her injuries were self-inflicted, and that her cuts were caused by a gardening accident.

[49] The appellant submits that the trial judge’s reasoning reflects a failure to consider whether a reasonable doubt had been raised by the possibility that someone other than the appellant caused the complainant’s injuries. Instead, the trial judge erred by shifting the burden of proof to the appellant to find another explanation for the complainant’s injuries that was supported by the evidence.

[50] I am not persuaded that, contrary to her clear articulation of the burden of proof elsewhere in her reasons and her specific acknowledgment that “the defendant has no obligation to testify or to offer up an alternate theory”, the trial judge reasoned that the appellant had the onus of advancing an explanation for the complainant’s injuries, and that his failure to do so supported an inference of guilt.

[51] There was no question that the complainant had been injured. It was incumbent on the trial judge to consider whether she had a reasonable doubt as to how the injuries were caused. In grappling with the evidence, she considered the alternatives, including those that had been offered by the complainant herself, in the context of the evidence at trial. She found that there was no evidence to support these alternatives, and that they were illogical.

[52] The conviction did not rest on a reversal of the burden of proof; rather, it was based on the trial judge’s considered analysis and acceptance of the complainant’s evidence about the cause of her injuries as credible and reliable, and her rejection of alternative causes as potential sources of reasonable doubt.

(4) Did the trial judge err by relying on the “ring of truth” to believe a witness with obvious credibility problems?

[53] The appellant submits that the trial judge erred in relation to the “uttering threat to property” charge. He asserts that the trial judge accepted the complainant’s uncorroborated evidence that he had uttered a threat to destroy R.E.’s vehicle based on her observation that it had the “ring of truth”. The trial judge said it had the ring of truth because she would have expected something far less theatrical than a threat to blow up the father’s car, if the threat was contrived.

[54] The appellant relies on this court’s decision in R. v. G.(G). (1997), 115 C.C.C. (3d) 1 (Ont. C.A.), where a trial judge found the complainant to be credible after observing that she gave her evidence in a straightforward manner and it had the “ring of truth”. In that case, the use of the words “ring of truth” did not constitute reversible error; rather the court allowed the appeal because there were several material inconsistencies in the complainant’s evidence that the trial judge had not considered.

[55] In this case, by contrast, by the time the trial judge described the complainant’s evidence about the threat to damage R.E.’s car as having the “ring of truth” she had already conducted a thorough assessment of the complainant’s credibility and reliability. She had accepted the complainant’s evidence as truthful.

[56] The term “ring of truth” is not itself objectionable; the problem is that it adds nothing to the analysis. Saying that a witness’s evidence has the “ring of truth” is never sufficient to justify an assessment of credibility. It is simply a conclusion that the testimony sounds truthful. The important question is why this is so – which involves an examination of the various factors specific to the case that bear on the witness’s credibility and reliability.

[57] I do not interpret the trial judge’s observation that the complainant’s evidence about the threat “had the ring of truth” – that it sounded true and not contrived – as the sole or even the main justification for acceptance of this evidence. Having already found the complainant to be credible, there was no reason for the trial judge to reject the evidence about the threat. The complainant was the only person to have testified about the threat and she was not cross-examined on this evidence.

[58] I would also note that, in using the term “ring of truth”, the trial judge echoed and implicitly rejected a defence argument made in closing submissions. In addressing the complainant’s evidence about the threats – both the threat of damage to her father’s car and of having received death threats from the appellant – defence counsel submitted that the complainant’s ability to recall specific words and details was “almost entirely limited to” words and details that would negatively impact the appellant, and as such, “does not have the ring of truth, [but] has the ring of vindictiveness”.

The Appeal of the Dangerous Offender Designation and Sentence

[59] At the time of his sentencing the appellant was 33 years old. He had 47 convictions, 10 of which were for violent offences and 21 for failing to comply with parole or probation orders. He had spent close to 14 years of his adult life in prison, with only 7 months in the community without supervision. There were escalating situations of intimate partner violence that occurred in a nine month period between April 2013 and January 2014 – beginning with the beating and cutting incidents forming the predicate offences, continuing with a violent assault on another woman, D.G., just hours after meeting her, and then, while he was on probation for the assault on D.G., an assault on a third woman, S.S., days after meeting her on a dating website.

[60] Three experts testified at the sentencing hearing. In addition to Dr. Klassen, there were two defence experts: psychiatrist Dr. Gary Chaimowitz and forensic psychologist Dr. Mini Mamak. As the trial judge noted, there was general agreement between the experts on the appellant’s diagnosis (substance use disorder and antisocial personality disorder with narcissistic traits) and on the risk posed by the appellant to the community (that the appellant had a moderate to high risk of violent recidivism, and a high risk of intimate partner violence).

[61] The trial judge concluded that the criteria for finding that the appellant was a dangerous offender were satisfied under both ss. 753(1) (a)(i) and (ii) of the Criminal Code. His history of intimate partner violence and the similarities between the assaults exhibited a pattern of repetitive behaviour, and he had a high likelihood of committing further violent offences. He also displayed a pattern of persistent aggressive behaviour and substantial indifference respecting its foreseeable consequences to other persons.

[62] Although the experts suggested that with the proper controls and supervision, the appellant’s risk to reoffend could be managed in the community, the trial judge was of the view that the extent of monitoring or verification required to ensure compliance with the proposed conditions of release was not possible. In arriving at her conclusion she considered the feasibility and likely effectiveness of the conditions for supervision proposed by the experts in the context of the appellant’s history of breach of conditions, his habitual lying to parole and police officers and treatment providers, and his recent history of intimate partner violence. She concluded: “Only maximum control and 24 hour supervision [would] ensure the safety of the public and, in particular, potential intimate partners of [the appellant]. That level of control and supervision cannot be achieved in the community”. In rejecting the option of a fixed sentence with a ten-year long-term supervision order (“LTSO”), the trial judge also rejected as speculative the suggestion that, as the appellant ages, his violent tendencies would significantly decline to the point at which he no longer poses a risk of danger to the community.

[63] The appellant appeals his designation as a dangerous offender and the imposition of an indeterminate sentence. He makes two main arguments. First, he says that the trial judge erred in failing to consider the factors of intractability and treatability at the designation stage of her analysis. Second, he submits that the trial judge erred at the penalty stage in misapprehending certain aspects of the evidence of Dr. Klassen (respecting the risk of recidivism, group data and “burnout”) and in adopting a standard of absolute control, when she concluded that nothing less than 24-hour supervision of the appellant in the community would adequately protect the public against the appellant’s risk to reoffend.

[64] The standard of review on a dangerous offender appeal was articulated by Tulloch J.A. in R. v. Sawyer, 2015 ONCA 602, 127 O.R. (3d) 686, at para. 26, as follows:

Appellate review of a dangerous offender designation “is concerned with legal errors and whether the dangerous offender designation was reasonable”: R. v. Sipos, 2014 SCC 47, [2014] 2 S.C.R. 423, at para. 23. While deference is owed to the factual and credibility findings of the sentencing judge, appellate review of a dangerous offender designation is more robust than on a “regular” sentence appeal: Sipos, at paras. 25-26; R. v. Currie, [1997] 2 S.C.R. 260, [1997] S.C.J. No. 10, at para. 33.

[65] Where the error of law has not resulted in a substantial wrong or miscarriage of justice, an appellate court may dismiss an appeal against a dangerous offender declaration, relying on s. 686(1)(b)(iii) of the Criminal Code. This power may be exercised only where there is no reasonable possibility that the verdict would have been any different had the error of law not been made: Boutilier, at para. 82.

[66] As I will explain, I am not persuaded that there was any reversible error in the trial judge’s designation of the appellant as a dangerous offender and in the imposition of an indeterminate sentence. To the extent that the trial judge erred in law in saying that treatability and intractability were not factors to be considered at the initial designation stage, these factors were considered in her decision, and there is no reasonable prospect that her decision would have been different but for the error. The trial judge did not err in her assessment of Dr. Klassen’s evidence or in observing that the appellant’s risk for violent recidivism, especially involving intimate partners, could not be controlled in the community. The trial judge’s assessment of the evidence was thorough, her reasons are comprehensive and her conclusions with respect to the appellant’s dangerousness and the need for an indeterminate sentence are reasonable.

[67] I will address the appellant’s arguments in turn.

Considering Intractability and Treatability at the Designation Stage

[68] The appellant’s first argument is that, not having the benefit of the Supreme Court’s decision in Boutilier, which was released after she delivered her reasons for sentence, the trial judge did not consider intractability or treatability at the designation stage of her dangerous offender analysis. Indeed, she specifically stated that both were relevant only at the penalty stage. The appellant contends that this was an error of law that resulted in a substantial wrong or a miscarriage of justice, necessitating a new dangerous offender hearing.

[69] The appellant did not address this error in oral argument, and for good reason. This is a case where the trial judge thoroughly considered whether the appellant’s behaviour was intractable (in the sense of being something the appellant was unable to surmount) and whether he was treatable. Her findings on both issues fully supported the conclusion that the appellant met the criteria for designation as a dangerous offender, both under s. 753(1)(a)(i) and (ii).

[70] First, despite saying that intractability was not something to consider at the designation phase, the trial judge did in fact address the fact that the appellant’s behaviour was intractable when she assessed his future threat, and found that his conduct posed a high likelihood of violent recidivism. After considering the expert evidence that the appellant posed a moderate to high risk of violent reoffending generally and a high risk of intimate partner violent reoffending, the trial judge stated that “common sense suggests the past is the best predictor of the future”. She noted that the appellant was incapable of controlling his anger and violent impulses, without exception in an unsupervised environment, and frequently in a controlled setting. She referred to his history of reoffending, his inability to comply with court-ordered conditions in place to control the triggers for reoffending (prohibiting alcohol use, requiring intimate relationship reporting, and prohibiting criminal associations), as well as the testimony of Dr. Chaimowitz that “[t]his is a man who’s going to continue to offend… I can’t see it any other way, based on his history”. At the conclusion of her reasons, in imposing an indeterminate sentence, the trial judge reiterated that, based on the appellant’s violent history having repeated itself many times over, there was no reason to believe that, if given the opportunity in an uncontrolled setting, history would not repeat itself: at para. 200.

[71] Second, while the trial judge did not address the appellant’s treatability at the designation stage, it was addressed extensively in the discussion of penalty. The trial judge concluded that, despite the appellant’s stated intention to seek treatment, she could not conclude on the evidence that his risk could be controlled through treatment. The appellant had participated in various kinds of treatment but there was no evidence that treatment had been successful in the past or would be durable. Notwithstanding the treatment and counselling he received during his eight year prison term, the appellant started using cocaine and alcohol immediately after his warrant expiry. The trial judge referred to Dr. Klassen’s evidence that approximately 15 prior treatment interventions had not effected a change in the appellant, and the opinion of all three experts that treatment could at best be used as a means to monitor the appellant in the community.

[72] In the circumstances, although the trial judge erred in saying that treatability and intractability were not factors to consider at the designation stage, this error occasioned no substantial wrong or miscarriage of justice. She considered both factors in the course of her reasons. There is no reasonable prospect that the trial judge would have come to a different conclusion about the appellant’s dangerousness if she had explicitly considered these factors at the designation phase.

Alleged Errors in Imposing an Indeterminate Sentence

[73] I turn now to the essence of the appellant’s sentence appeal: his arguments based on the trial judge’s treatment of the evidence in determining whether there was a reasonable expectation that a sentencing option less than an indeterminate sentence would adequately protect the public: Criminal Code, s. 753(4.1).

[74] The appellant submits that the trial judge misapprehended and did not give effect to certain aspects of Dr. Klassen’s evidence respecting his risk of recidivism, and the use of group data and actuarial studies in relation to “burnout” after the age of 50. He also asserts that the trial judge set too high a standard for the prospect of his eventual control in the community. By stating that only 24-hour supervision would suffice, she set an impossible standard of absolute compliance. It was unreasonable for the trial judge to conclude that nothing but 24-hour supervision would suffice, when no one suggested this was necessary.

[75] I will deal with each issue in turn.

(1) The alleged misapprehension of Dr. Klassen’s evidence

[76] First, the appellant refers to the evidence that he did not reoffend during the five-year period that he was on parole after serving an eight year sentence for manslaughter. He contends that this is evidence that he responds well to supervision in the community, evidence that the trial judge ignored when she concluded that the appellant’s risk could not be controlled through an LTSO.

[77] I disagree. There was no error in the trial judge’s treatment of this evidence. She recognized that, while the appellant did not violently reoffend while under supervision, he did breach his conditions of release, including the condition that he report intimate relationships. The five-year period did not assist in assessing the appellant’s risk to violently offend against an intimate partner. The trial judge recognized that the nature of the appellant’s violent offending had escalated to intimate partner violence and his substance abuse escalated from alcohol to cocaine.

[78] Dr. Klassen did not suggest that the five-year offence-free period translated into a lower risk of recidivism for intimate partner violence. He was circumspect. He noted that the appellant did better in highly structured settings, such as when he was in federal custody and that when there was less structure, like on federal parole, there tended to be “bigger problems”. As the trial judge noted, at para. 98:

Dr. Klassen noted a shift after 2012 towards intimate partner violence and expanded addiction issues. Dr. Klassen opined that these shifts pose a different set of risk factors which could make management in the community more difficult than was management of [the appellant] following his manslaughter conviction.

[79] Accordingly, there was no misapprehension of Dr. Klassen’s evidence about the impact of the five-year period when the appellant did not reoffend while on parole.

[80] I turn to the appellant’s argument about the trial judge’s treatment of the evidence of Dr. Klassen respecting “burnout”: that after age 50 there is a significant decline in violent offending. The appellant asserts that, in considering the appellant’s risk of reoffence after the expiry of the proposed LTSO, the trial judge misunderstood “actuarial and group data” and its application to the issue of burnout. The appellant contends that the trial judge wrongly rejected Dr. Klassen’s evidence because he declined to provide a view as to how burnout might apply to the appellant, when, according to Dr. Klassen, this was the best tool for assessing the appellant’s future risk.

[81] This was a central focus of the appellant’s submissions on the sentence appeal. As I will explain, the trial judge did not misapprehend Dr. Klassen’s evidence. Rather, the appellant’s argument confuses Dr. Klassen’s actuarial approach (using group data) to the assessment of the individual appellant’s risk for violent recidivism, with his evidence about the general trend to “burnout” based on studies using group data.

[82] In order to provide an opinion about the appellant’s risk of a future serious personal injury offence, Dr. Klassen used an actuarial approach. In part this was necessitated by the fact that the appellant, on the advice of counsel, had refused to meet with him. In any event, Dr. Klassen said that this was the best approach. He stated:

[W]hen it comes to the issue of probability and percentile, what’s this person’s ranking compared to their peers in terms of risk, and what, if anything, can we say about the absolute probability of similar individual recidivating…you would never use clinical judgment. It would, I would submit to you it would fall grossly below the standard of practice in forensic psychiatry.

[83] Dr. Klassen went on to identify the available risk assessment tools for evaluating the appellant’s risk of violent offending, including tools specifically designed to assess the risk of intimate partner violence. After explaining why the tools he selected were appropriate, Dr. Klassen indicated that, based on the appellant’s individual scores, he was at a high risk of general violent recidivism and at a very high risk of domestic violent recidivism.

[84] Dr. Klassen’s conclusion, based on his assessment using various actuarial tools, was consistent with the opinion of defence experts Dr. Chaimowitz and Dr. Mamak. Dr. Mamak conducted the testing on which Dr. Chaimowitz relied in providing his clinical assessment of the appellant’s risk to reoffend. Some of the risk assessment tools used by Dr. Mamak differed from those used by Dr. Klassen. The trial judge noted that, because of the consistency between the parties’ expert evidence regarding diagnosis and risk assessment, it was unnecessary to undertake a comprehensive assessment of the limitations and advantages between and among the various diagnostic tools used by the experts.

[85] In utilizing the actuarial tools to assess the risk of violent recidivism and intimate partner violence, Dr. Klassen referred to and took into consideration the appellant’s specific diagnoses, criminal record and history. The result was to arrive at a conclusion about the appellant’s specific risk. This was the context in which Dr. Klassen advocated the use of actuarial and group data.

[86] Later in his evidence, Dr. Klassen was asked about the concept of burnout, or age-related decline in violent recidivism. In contrast to his opinion using actuarial and group data to assess the appellant’s individual risk, at this stage in the evidence, Dr. Klassen was asked about general trends. He stated that there was lots of data from different samples showing that as people get older their rates of violent offending decline significantly, so that one approach was “how do we get people to 50?”. Dr. Klassen stated, “while I cannot say exactly what will happen to [the appellant], because group data cannot always predict the behaviour of an individual…group data suggests that…violence is significantly reduced over time”. However, he specifically declined to apply the general trend or group data to whether the appellant was likely to recidivate after age 50. This is apparent in the following exchange:

Q. … I know we’ve been talking about general trends, can we say that getting [the appellant] to 50 is gonna be the game changer?

A. I can’t say that it, it, remember, I’m just talkin’ about group data…

Q. Right.

A. … I can’t tell you exactly how that might apply to [the appellant]… because I offer group data, because it might be of assistance, and it’s more likely to be accurate than my clinical opinion. But I cannot tell you exactly what will happen to [the appellant], whether [he] will actually age, quote, unquote, ‘quicker than most’, or, quote, unquote, ‘slower than most’, in terms of age and violence…I don’t know the answer to that.

[87] In his evidence on burnout Dr. Klassen was only asked about general trends based on group data: unlike his assessment of the appellant’s risk for violent recidivism and for intimate partner violence – where he was able to score the appellant applying actuarial tools to the information about the appellant contained in his file, he was not asked for, nor did he express, an opinion about the likelihood that the appellant would reoffend after age 50. Contrary to the appellant’s submission, Dr. Klassen did not advocate an approach that would assume that the appellant would not require supervision after age 50. At its highest Dr. Klassen’s evidence about burnout spoke to general trends based on group data, and not to the appellant’s individual circumstances.

[88] The trial judge accurately dealt with this evidence at paras. 178-182 of her reasons for sentence. She noted that “burnout” was a general trend based on group data. She referred to Dr. Chaimowitz’s view that age-related decline did not apply to the appellant, and the fact that Dr. Klassen declined to provide a view as to how the concept of burnout might apply to the appellant. She noted Dr. Chaimowitz’s observation that an offender will not be young forever but can be immature forever, and that there was no evidence that the appellant’s future maturation was anything more than a possibility. The trial judge reasonably concluded that it would be purely speculative to assume that as the appellant ages, his violent tendencies would significantly decline to the point at which he no longer poses a risk of danger to the community. Referring to the escalating aggression and brutality in the appellant’s most recent offences, she noted that “[t]he theory that the likelihood of [the appellant] reoffending is significantly reduced from the age of 50 onward has little application to the circumstances of [the appellant]. Intimate partner violence is perpetrated against vulnerable persons away from the public’s eye”: at para. 182.

[89] There is no misapprehension or error in the trial judge’s treatment of Dr. Klassen’s evidence about the appellant’s risk of recidivism based on the fact that he did not reoffend during his five years of parole following his manslaughter sentence, or Dr. Klassen’s evidence about burnout.

(2) The requirement for 24-hour supervision to control the appellant’s risk

[90] The appellant contends that the trial judge set too high a standard with respect to whether there was a reasonable prospect of his eventual control in the community. The three experts agreed that with proper controls and supervision – including prevention plans for substance abuse and intimate partner violence – the appellant’s risk to the public could be managed in the community. The appellant submits that the trial judge erred in not accepting their evidence and instead concluding that only 24-hour supervision would suffice.

[91] I disagree. The trial judge was required to assess, based on the evidence, whether there was a reasonable expectation that a determinate sentence followed by an LTSO with conditions would adequately protect the public against the commission of another serious personal injury offence by the appellant. This entailed an assessment of the proposed conditions in the context of her findings about the appellant’s risk and risk factors.

[92] The trial judge described as “[t]he most compelling evidence to support a lesser sentence”, the agreement among the three experts that the risk to the public could be managed with proper controls in place. She set out the conditions of release into the community that were proposed by each of Dr. Klassen and Dr. Chaimowitz (which were quite similar). Dr. Klassen’s proposed conditions were as follows:

• Treatment with respect to values and attitudes and management of aggressive behaviour only as a monitoring function;
• Treatment for substance use, again as a monitoring function;
• Abstinence from the use of alcohol and non-prescribed agents and the requirement to submit samples of breach or urine;
• Maintenance of employment subject to verification by third parties;
• Refraining from associating with individuals known to have a criminal record other than when such association is inevitable; and
• Regular disclosure of financial circumstances and any current or anticipated intimate relationships.

[93] Dr. Klassen was examined on the proposed conditions and their purpose and feasibility in the context of the appellant’s history. He had testified that the “key element” was control, since treatment of the appellant was not an option, and that reoffence would occur if there were a lack of supervision or external controls. Dr. Klassen testified that the goal of the specific conditions he proposed was not to change the appellant’s behaviour, but to monitor it. He observed that the conditions about abstinence from drugs and alcohol, maintenance of employment, and refraining from associations with people with criminal records, were asking for a “lifestyle change”: these were “empirically risk-reducing” factors, although whether they were risk-reducing in the appellant’s case was “a little harder to say”. Dr. Klassen noted that, if the offender wanted to conceal his criminal associations, the condition prohibiting such associations would be a lot tougher to monitor without 24-hour supervision, and he agreed that the appellant had violated such a condition in the past (when his association with the Hell’s Angels, which he denied, led to the suspension of his parole on the manslaughter sentence). Dr. Klassen acknowledged that when an offender is residing in a community correctional facility or a community residential facility (halfway house), these kinds of controls are dependent upon luck, surveillance, or the offender being truthful about what they are doing, and that offenders are typically not supervised when they are away from the facility.

[94] As for the condition requiring disclosure of intimate relationships, Dr. Klassen stated that this condition was included because intimate partner violence was the issue of greatest concern in this case. He acknowledged this was another condition the appellant had violated while on parole, when he had not disclosed that he was living with his girlfriend and her parents. He agreed that the condition depended on the appellant to be truthful, and that the appellant had lied to his probation officer in January 2014 about whether or not he knew a woman named S.S. (S.S. became his next victim). When Dr. Klassen was asked whether they would be trusting the appellant to provide the information about his intimate relationships and to respond truthfully when asked, he responded, “well, one would hope”.

[95] I do not accept the appellant’s argument that the trial judge erred in refusing to impose a determinate sentence followed by an LTSO, based on the conditions proposed by Dr. Klassen. Having heard and considered the evidence, she reasonably concluded that the extent of the monitoring and verification required to ensure the appellant’s compliance with the various conditions was not possible. This was not, as the appellant submits, a standard of perfection, or a requirement for absolute compliance with supervision conditions rather than preventing violent offences. The trial judge focussed on the most pertinent risk – that of intimate partner violence. She concluded, reasonably, that the requirement to self-report intimate partners, even assuming that the appellant complied with the condition, would not have protected D.G., who was assaulted by the appellant mere hours after they met. Because of the appellant’s history of non‑compliance with court orders, lying and intimate partner violence, the safety of the public, and in particular of potential intimate partners of the appellant, could only be achieved with maximum control and 24-hour supervision. The trial judge concluded, at para. 193:

I am not satisfied that intensive supervision of [the appellant] in the community as proposed by the experts is a realistic means of protecting the public. There is no evidence of available resources adequate to ensure the level of supervision and the extent of controls needed in a long-term supervision order can be achieved. Because [the appellant] is a habitual liar and cannot be trusted to do as he is court-ordered and furthermore, his offending has expanded to intimate partner violence, the checks and balances needed to ensure the protection of the public are not workable. Only maximum control and 24 hour supervision will ensure the safety of the public and, in particular, potential intimate partners of [the appellant]. That level of control and supervision cannot be achieved in the community.

[96] In R. v. K.P., 2020 ONCA 534, 152 O.R. (3d) 145, this court dismissed an appeal from a dangerous offender designation and indeterminate sentence where the sentencing judge concluded that the conditions for an LTSO proposed by two experts were inadequate to protect the public. As in this case, K.P. had limited success with treatment and had battled substance abuse for decades, including on the night of the predicate offence. The sentencing judge, like the trial judge in the present case, was concerned about the feasibility of monitoring intimate relationships that can form and escalate quickly. She had identified the specific frailties in the expert’s proposed plan of supervision, including that monitoring intimate relationships depends on self-reporting, and she had concluded that, due to his history of fast attachment and tendency to resort to violence in intimate relationships “no amount of supervision could prevent yet another victim being attacked by [K.P.] should he be released into the community too soon”: at para. 68. This court upheld the indeterminate sentence, finding that the sentencing judge properly engaged in an individualized assessment of all relevant circumstances.

[97] Similarly, in the present case the trial judge considered the proposed conditions in the context of an individualized assessment of the relevant circumstances. There was a troubling history of non-compliance with conditions of release and extreme violence within hours of meeting someone. The appellant had no real response to treatment. His transition into domestic abuse enhanced the risk of uncontrollability. The trial judge’s finding that there was no reasonable possibility of eventual control of the appellant’s risk to reoffend in the community reveals no error. The terms of an LTSO were not feasible for the reasons that the trial judge explained.

Disposition

[98] For these reasons, I would dismiss the conviction appeal and the appeal of the decision that the appellant is a dangerous offender and of his indeterminate sentence.

Released: August 10, 2021 K. van Rensburg J.A. I agree. Doherty J.A. I agree. David Watt J.A.

Footnotes

[1] The appellant was charged with six counts. He was acquitted of charges of uttering a death threat and attempted procuring.

[2] The circumstances of the assault, the appellant’s guilty plea, and his conviction were relevant to the dangerous offender application.

[3] The appellant’s factum also asserts that the trial judge erred in saying that the testimony of the complainant’s friend, A.A., and C.B., someone the appellant had previously dated, corroborated certain evidence of the complainant. It is unnecessary to address this submission, which was not pursued in oral argument. It is sufficient to note that, in challenging the trial judge’s reliance on such evidence as corroborating (or supporting) certain aspects of the complainant’s evidence, the appellant simply takes issue with the trial judge’s reasonable interpretation of the evidence of A.A. and C.B., without identifying any reversible error.

[4] In her reasons for conviction the trial judge did not refer to R.E.’s evidence about what he was told by the complainant about the beating incident and the cutting incident. Rather, in describing their evidence as consistent, the trial judge restricted herself to R.E. and the complainant’s respective accounts of the photos and text messages sent to R.E after the beating incident. She said that “both testified that three photos and a text were sent to [R.E.] on April 28th, 2013. Any inconsistency between his evidence and her evidence as to the sequence and timing of the photos and text being sent and received is not material” (emphasis added). This responded to defence counsel’s submissions challenging the complainant’s credibility on the basis that there were inconsistencies in the complainant’s evidence with respect to the timeline after the beating when she took the pictures and sent them to her father, and used her cellphone to text her father.

[5] Unless the court intends to use “corroboration” in its strict legal sense, this term is best avoided. The use of the term “corroboration” for evidence that supports or confirms material aspects of a witness’s evidence - but is not independent of its source - invites the argument that the trial judge misapprehended the evidence: David M. Paciocco, Palma Paciocco & Lee Stuesser, The Law of Evidence, 8 th ed. (Toronto: Irwin Law, 2020), at pp. 674-75. See, for example, R. v. Mackenzie, 2015 ONCA 93 and R. v. Flores, 2020 ONCA 158.