Publication Ban 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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 20210915 Docket: C66055

Judges: Tulloch, van Rensburg and Nordheimer JJ.A.

Between:

Her Majesty the Queen Respondent

and

Rejean Perron Appellant

Counsel:

Mindy Caterina, for the appellant Lisa Fineberg, for the respondent

Heard: September 10, 2021 by video conference

On appeal from the sentence imposed on June 13, 2018 by Justice Harriet E. Sachs of the Superior Court of Justice.

Reasons for Decision

[1] Mr. Perron appeals the imposition of a ten-year long-term supervision order on him, following his convictions for sexual assault, forcible confinement and use of an imitation firearm in the commission of an offence. At the conclusion of the hearing, we dismissed the appeal, with reasons to follow. We now provide our reasons.

[2] The appellant pleaded guilty to the offences which arose out of his confinement of and repeated sexual assaults on a sex trade worker during a period of five days. The complainant, who was restrained with ropes and tapes and terrorized with an imitation firearm, was traumatized by the events, which ended only when she managed to escape. The appellant was sentenced to three years’ imprisonment (eight years less credit for pre-sentence custody), together with a ten-year long-term supervision order. The only complaint is with respect to the length of the long-term supervision order. The appellant submits that the sentencing judge failed to explain why a ten-year long-term supervision order was required and that it should only have been for a period of three years.

[3] The sentencing judge had before her the report of psychiatrist Dr. Derek Pallandi, who was appointed under s. 752.1 of the Criminal Code to conduct an assessment of the appellant’s risk, as well as Dr. Pallandi’s testimony. Dr. Pallandi noted the appellant’s pattern of long-standing social isolation, his limited educational and vocational skills, and his limited ability to function interpersonally, particularly in sexual relationships. Dr. Pallandi was unable to come to any definitive diagnosis. However, he thought the appellant’s behaviour could be understood as part of a “courtship disorder”, which he characterized as a spectrum of behaviours caused by a distorted perception of how communication should occur in courtship. He observed that the appellant’s low IQ was also “influential” in terms of the appellant’s distorted perceptions of how to rationally problem solve or engage.

[4] After conducting various tests, Dr. Pallandi concluded that the “composite assessment” of the appellant’s risk of recidivism was “high risk” but that the risk could be tempered by strict supervision and intervention. He thought the appellant had the capacity and willingness to engage with professionals. However, Dr. Pallandi was also unable to predict when any recidivism might occur.

[5] The defence resisted any long-term supervision order, but argued that, if such an order were imposed, it should be limited to three years. The Crown asked for a ten-year long-term supervision order, which is ultimately what the sentencing judge imposed. We note that the appellant had told the psychiatrist that he would have no difficulties abiding by long-term supervision and that he would be agreeable to doing so up to and including ten years, if so indicated.

[6] We accept that it would have been preferable if the sentencing judge had directly explained why she imposed a ten-year long-term supervision order as opposed to a shorter term. However, on a fair reading of her reasons and from a review of the record, it is evident why she concluded that a ten-year long-term supervision order was necessary: R. v. Zinck, 2003 SCC 6, [2003] 1 S.C.R. 41, at para. 37. Given the difficulties with the diagnosis of the appellant and the concerns over his high risk of recidivism, the maximum period of supervision was justified. It is clear that these concerns were driving the sentencing judge’s conclusion. She said in her reasons:

The fact that there is no easily identifiable explanation for [the appellant’s] behaviour is a factor that increases my concern about the risk that he poses, as opposed to diminishes it.

[7] We would also note, on this point, that any period of long-term supervision may be reduced or terminated on an application to the superior court of criminal jurisdiction by the offender, a member of the Parole Board of Canada, or, with Board approval, by the offender’s parole supervisor: R. v. Marshall, 2021 ONCA 28, 153 O.R. (3d) 623 (C.A.), at para. 95; Criminal Code, s. 753.2(3).

[8] In all of the circumstances, we do not see any error in the sentencing judge’s conclusion. Given our view, it is unnecessary to address the respondent’s fresh evidence application.

[9] It is for these reasons that we dismissed the appeal.

“M. Tulloch J.A.”

“K. van Rensburg J.A.”

“I.V.B. Nordheimer J.A.”