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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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

COURT OF APPEAL FOR ONTARIO

DATE: 20211105 DOCKET: C64045

Rouleau, Huscroft and Thorburn JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

D.M. Appellant

Counsel: Michael Crystal, for the appellant Gregory J. Tweney, for the respondent

Heard: October 29, 2021 by video conference

On appeal from the sentence imposed on May 18, 2017 by Justice Michael J. Epstein of the Ontario Court of Justice.

Reasons for Decision

[1] The appellant pleaded guilty and was convicted of three counts of sexual assault, four counts of making child pornography, and one count of possession of child pornography. The offences were committed while the appellant was on parole following convictions for invitation to sexual touching, assault causing bodily harm, sexual assault and sexual interference. They were committed against the appellant’s girlfriend’s son and the son of a couple who were friends with the appellant and his girlfriend.

[2] In sum, the appellant has amassed 15 convictions for a range of sexual offences against five different boys, crimes of violence, child pornography, and failing to comply with court orders.

[3] The Crown brought a dangerous offender application and reports from two psychiatrists were adduced. The sentencing judge found that the appellant was high risk to reoffend. He rejected the appellant’s argument that his drug use played a role in the offences and rejected the appellant’s assurance that he was amenable to treatment and supervision. The sentencing judge was satisfied the appellant will likely reoffend violently or sexually and was satisfied that there was no reasonable expectation that the appellant could be managed in the community by any means except an indeterminate sentence.

[4] The appellant argues that the sentencing judge erred in designating him as a dangerous offender and in imposing an indeterminate sentence. He says the sentencing judge failed to consider his future treatment prospects and based his decision almost entirely on his past behaviour, rather than his changed circumstances. The appellant argues that the risk he posed could be managed through a determinate sentence followed by a long-term supervision order.

[5] The Crown concedes that the sentencing judge erred in failing to consider the appellant’s future treatment prospects in the course of designating the appellant a dangerous offender, as required by R. v. Boutilier, 2017 SCC 64, [2017] 2 S.C.R. 936, at para. 43. We accept this concession, though in fairness to the sentencing judge note that Boutilier was decided subsequent to his decision in this case.

[6] Nevertheless, in our view this is one of those cases in which there was no reasonable possibility that the result would have been different had the error not been made: R. v. Johnson, 2003 SCC 46, [2003] 2 S.C.R. 357. The findings made by the sentencing judge in deciding whether to impose an indeterminate sentence compel the conclusion that the appellant was properly found to be a dangerous offender at the first stage of the inquiry.

[7] There was broad agreement between the psychiatrists who testified for the defence and Crown. Both agreed that the appellant is a pedophile and poses a significant risk for sexual recidivism involving male children. Furthermore, they agreed on the following: pedophilia is a life-long condition with no known cure; the risk is not significantly attenuated by age; substance abuse is an important factor in managing risk; the appellant requires a sex offender treatment program; and pharmacological intervention is the best way to control the risk posed by the appellant, albeit that most sex offenders either decline the treatment or discontinue it.

[8] The psychiatrists disagreed on the question of risk management. Dr. Pallandi testified that the risk posed by the appellant could be managed by a long-term supervision order if the appellant undertook intensive sexual offending therapy over a long period of time, took medication to reduce his sex drive, and was carefully monitored in the community. Dr. Klassen testified that there was at best a reasonable possibility of eventual control of the risk in the community if these measures were taken, but it would not continue beyond the 10-year supervision period that was possible under the Criminal Code, R.S.C. 1985, c. C-46. In his view, only a dangerous offender finding with an indefinite sentence would minimize the possibility of recidivism for the entire at-risk period.

[9] Plainly, the sentencing judge considered the appellant’s future treatment prospects in imposing an indeterminate sentence. He rejected the appellant’s evidence that he realized that what he did was wrong; that he could control his sexual urges towards children and his drug use; that he would abide by the terms of a long-term supervision order; and that he was prepared to take medication to reduce his sex drive. The sentencing judge’s key finding – that the appellant was simply not believable – is amply supported by the evidence. The sentencing judge aptly described the appellant’s credibility as “thoroughly destroyed”: the appellant is, by his own admission, adept at lying and manipulation.

[10] Had the sentencing judge considered future treatment prospects at the designation stage, there is no doubt that his findings would have compelled the conclusion that the appellant met the criteria to be designated a dangerous offender.

[11] There is no merit to the argument that the sentencing decision is unreasonable. We agree with the sentencing judge that the evidence in this case was “overwhelming”. There was no reasonable expectation that a determinate sentence with or without a long-term supervision order was adequate to protect the public from the appellant. The accused offered “nothing but his good intentions”, and he had no credibility to offer them. It was open to the sentencing judge to reject Dr. Pallandi’s evidence as based on hope rather than evidence, and to accept Dr. Klassen’s evidence that only an indeterminate sentence would suffice.

[12] The appellant makes an application to admit fresh evidence concerning his psychological risk, proffering an assessment completed in 2020. He submits that the evidence should be admitted concerning his designation as a dangerous offender and the reasonableness of the decision to impose an indeterminate sentence.

[13] In our view the fresh evidence could not have affected either the decision that the appellant is a dangerous offender or the decision to impose an indeterminate sentence. Among other things, the evidence indicates attempted deception and that the appellant may be prone to aggression and hostility, although he is considered a low-moderate risk for criminal conduct generally and violently. But significantly, the evidence indicates that his risk for sexual reoffending is in the high range, and it says nothing about the appellant’s willingness to take medication to reduce his sex drive, one of the key components of management of his future risk.

[14] Accordingly, the application to admit fresh evidence is dismissed. The appeal is dismissed.

“Paul Rouleau J.A.”

“Grant Huscroft J.A.”

“J.A. Thorburn J.A.”