COURT OF APPEAL FOR ONTARIO DATE: 2022-03-24 DOCKET: C66426
Strathy C.J.O., Hourigan and Paciocco JJ.A.
BETWEEN
Her Majesty the Queen Respondent
and
Pierre Aragon Appellant
Counsel: Dirk Derstine and Jennifer Penman, for the appellant Deborah Krick, for the respondent
Heard: November 22, 2021
On appeal from the conviction entered on April 22, 2014 by Justice Alfred Stong of the Superior Court of Justice, sitting with a jury, and the sentence imposed on September 8, 2017 by Justice Hugh K. O’Connell of the Superior Court of Justice.
Paciocco J.A.:
Overview
[1] In July of 2012, Fernando Fernandes, known to be associated with the Loners Motorcycle Club, was badly injured after being beaten near the intersection of Park and Perry Streets in Peterborough. One or more of the participants in the attack used baseball bats. After a jury trial, Pierre Aragon, believed to be a member of a rival gang, was convicted in connection with the beating of aggravated assault, assault with a weapon, possessing a weapon for the purpose of committing an offence, and uttering a threat to cause bodily harm. He was sentenced as a dangerous offender to an indeterminate sentence.
[2] Mr. Aragon appeals both his convictions and his sentence. For the reasons that follow, I would deny his conviction appeal. Although there were issues with the evidentiary foundation for the extrinsic discreditable conduct evidence, the extrinsic discreditable conduct evidence that was presented was properly admitted.
[3] I would allow Mr. Aragon’s sentence appeal. I am persuaded that the sentencing judge erred in his identification of aggravating sentencing factors and failed to issue sufficient reasons for a number of the decisions he made during the sentencing hearing.
I. The Conviction Appeal
Material Facts
[4] During the trial, it was not disputed that Mr. Fernandes had been beaten including with at least one baseball bat, that the assault was aggravated, and that one of the assailants had threatened him with bodily harm. The live issues during Mr. Aragon’s trial were whether Mr. Aragon played a role in the attack and uttered a threat to cause Mr. Fernandes bodily harm.
[5] Two baseball bats were recovered near the scene of the beating. DNA of at least three persons was located on the handle of one of those baseball bats, but this DNA was unsuitable for analysis. However, there was a high probability that DNA detected in blood found on the barrel of that same bat was from both Mr. Aragon and Mr. Fernandes. Mr. Aragon could not be excluded as being the major contributor.
[6] The attack and the threat were audio-recorded by the 911 emergency service through a phone line that was connected to a phone bearing an identified 647 area code number. Although not everything that was said during the attack is audible on the audio-recording, a male voice can be heard saying, “Here, give me that bat […] No, I won’t, I’m breaking his knees”. Shortly after, a male voice can be heard to say, “You had the only chance to come away. You’re so stupid. What, are you a Loner? […] You want to be a Loner? That’s for the Loners. Fernando you had a chance to come with us”. The audio-recording also picked up a female voice saying, “Baby enough” and a male voice responding, “Get the fuck outta’ here, bitch”. When he was arrested approximately two weeks after the assault, Mr. Aragon was found in possession of a phone bearing the same 647 number. The Crown theory at trial was that while Mr. Aragon participated in the beating, he had the phone with him and accidentally “pocket dialed” 911.
[7] Mr. Fernandes did not offer evidence that could assist in identifying his assailant. He had been intoxicated at the time of the beating, and he suffered a brain injury in the altercation.
[8] Nor could the two civilian witnesses who happened upon the scene identify the assailant or assailants. A cab driver witnessed two men approach her taxi at the intersection of Park and Perry Streets. They did not get in but began to yell at two men in a nearby backyard. She then saw two men jump over the backyard fence, one carrying a baseball bat. A female yelled at her to leave and she did so.
[9] The other civilian witness saw two men walking north, with one carrying a baseball bat. She called 911 and offered a limited description of the men and reported a group of people outside an identified address on Park Street which was a known motorcycle gang clubhouse. One of the men she saw walking was wearing a dark shirt and was solidly built and of average height.
[10] A police officer, PC Cox, also came upon the scene of the attack, apparently as it was ending. While passing the identified Perry Street address, he saw a male throw a baseball bat over a fence and run into a backyard. This Perry Street address was known by PC Cox to be the residence of Bob Pammett, a former member of the Loners Motorcycle Club. PC Cox stopped and seized the baseball bat and then walked to the intersection of Park and Perry Streets and saw Mr. Fernandes lying on the roadway. He saw two men standing near Mr. Fernandes. Mr. Shane Gardiner (a.k.a. Shane Minty) was standing near Mr. Fernandes’ head. Mr. Gardiner ran but was apprehended shortly after. The other man PC Cox observed was standing near Mr. Fernandes’ feet. He was wearing dark clothes and was holding a baseball bat. This man dropped the bat and ran, making good his escape.
[11] The Crown theory, supported by the 911 recording, was that Mr. Fernandes was beaten because he was a member of the Loners Motorcycle Club. The theory was that he was beaten by former members of the Peterborough Loners chapter who were in “bad standing” with the Loners because they had broken away from that chapter. The Crown contended that Mr. Pammett was the leader of the break-away group, and that Mr. Aragon was one of the former Loners who was in bad standing. The Crown position was that Mr. Aragon’s association with this group gave Mr. Aragon the motive to participate in the attack.
[12] In order to establish this theory, the Crown presented extrinsic evidence about the culture of motorcycle gangs, including the Loners; the history of the Loners including the break-up of the Peterborough Loner’s chapter; and Mr. Aragon’s links to motorcycle gangs, including the Loners and the break-away group (the “extrinsic discreditable conduct evidence”).
[13] Prior to the assault, the police had installed a secret motion activated security camera trained on the outside gate of the Perry Street address. Video captured around the time of the assault does not show Mr. Fernandes being beaten but does capture some people in front of the Perry Street address who appear to be holding baseball bats.
[14] Two police officers, DC Lemay and DC Noonan, offered testimony identifying Mr. Aragon as one of the men who was seen on the video holding a baseball bat, wearing a dark muscle shirt (the “recognition evidence”).
[15] Mr. Aragon was convicted of the offences identified above in para. 1 of this judgment, based primarily on the evidence I have just described.
Issues
[16] Mr. Aragon raised three grounds of appeal relating to his conviction, two related to the extrinsic discreditable conduct evidence and one related to the recognition evidence. Those issues can be stated as follows:
A. Did the trial judge err in admitting the recognition evidence? B. Did the trial judge err when admitting the extrinsic discreditable conduct evidence? C. Did the trial judge err by failing to instruct the jury on the prohibited and permissible uses of the extrinsic discreditable conduct evidence?
[17] The Crown disputes these alleged errors and contends that even if one or more of them occurred, the curative proviso should be applied because the case against Mr. Aragon is overwhelming. Since I would deny each of the grounds of appeal that Mr. Aragon has raised, it is unnecessary to address the curative proviso.
Analysis
A. Did the trial judge err in admitting the recognition evidence?
[18] At trial, both DC Lemay and DC Noonan identified the man who was seen in the surveillance video holding a baseball bat and wearing a dark muscle shirt as Mr. Aragon. Both officers purported to recognize him based on prior observations they had made of him, including under surveillance. The trial judge did not err in finding this testimony to be admissible “recognition evidence”.
[19] “Recognition evidence” is offered when a witness provides an opinion as to the identity of an individual depicted in a video or photograph. It is a form of non-expert opinion evidence. Its admission is tested by examining the threshold reliability of the recognition, based primarily on the familiarity of the recognition witness with the subject. There is also inquiry into the need to have a witness offer their opinion that the subject is the person they claim: R. v. Hudson, 2020 ONCA 507, 391 C.C.C. (3d) 208, at paras. 28-31. Recognition evidence is therefore generally admitted, “provided that the witness has a prior acquaintance with the accused and is thus in a better position than the trier of fact to identify the perpetrator”: R. v. Berhe, 2012 ONCA 716, 292 C.C.C. (3d) 456, at para. 14, citing R. v. Brown (2006), 215 C.C.C. (3d) 330 (Ont. C.A.), at para. 39.
[20] Mr. Aragon objected to the admission of the recognition evidence the Crown was proposing, and an admissibility voir dire was held. Testimony that the officers had provided at Mr. Aragon’s preliminary inquiry was presented during the voir dire. The trial judge also viewed the surveillance video.
[21] During the preliminary inquiry, DC Lemay testified that he had observed Mr. Aragon in the course of his police work, including surveillance details, on at least 12 occasions between January 2012 and July 2012. On two of those occasions, Mr. Aragon had been at bike shows. On several of those occasions, DC Lemay had seen Mr. Aragon walking up Park Street and at the Perry Street address. And DC Lemay had dealt with Mr. Aragon on August 22, 2012, the day of his arrest on the charges before the court. On that occasion, DC Lemay had attempted unsuccessfully to interview Mr. Aragon in police cells. DC Lemay had also viewed photographs of Mr. Aragon on at least three prior occasions.
[22] During the course of voir dire ruling, the trial judge accurately paraphrased the description of Mr. Aragon that DC Lemay had provided at the preliminary inquiry, as “a Hispanic male, stalky, muscular, usually seen wearing muscle shirts walking like a body builder and with a distinctive hairstyle”. In his preliminary inquiry testimony, DC Lemay also said he was familiar with Mr. Aragon’s mannerisms as well as his dark complexion and he said that these details assisted in recognizing Mr. Aragon in the surveillance video.
[23] DC Noonan testified at the preliminary inquiry that he had known Mr. Aragon since 2004 when, while sitting in a police vehicle, he witnessed Mr. Aragon being arrested. After 2004 he had not “actually had eyes on him” until January 2012, when he saw Mr. Aragon at the Peel bike show in Mississauga, and then in March 2012 at the Toronto bike show. He had also viewed surveillance photos, Ministry of Transportation photos, and mug shot photos of Mr. Aragon.
[24] Based on the observations he had previously made of Mr. Aragon, DC Noonan testified that he was familiar with Mr. Aragon’s “very distinct features”; his “posturing” including the way he stands, walks and hunches his shoulders; and his short dark hair cut. He said Mr. Aragon was not a tall man, standing at “five nine, five ten”, but that he is a “big guy”, very stocky and in good shape.
[25] DC Noonan described the surveillance video as “grainy” and agreed that the features of the man he identified as Mr. Aragon could not be seen on the surveillance film. He testified that he made the identification based on a culmination of Mr. Aragon’s “very distinct features” and “very distinct haircut”, the demeanour and stance or posturing of the man he identified, and “everything that I’ve dealt with”. He referred, in this regard, to his knowledge of the group associated with the Perry Street address, the fact that the people involved “were carrying baseball bats”, and “incidents that actually led up” to the event – about which he had been debriefed – including a robbery the week before.
[26] In his ruling the trial judge concluded that the video is fair and accurate, that it is “of sufficiently good quality”, and that there was no issue as to its continuity. He admitted the testimony of DC Lemay and DC Noonan, saying that although he himself could not identify the individuals in the video, who he had never seen before, the testimony of the officers would be helpful to jurors. He said he was satisfied that the officers “recognized Mr. Aragon” from their “lengthy association in terms of observation of Mr. Aragon over time”. He concluded that “their evidence would be definitely helpful to the jury in terms of recognition of the characters in that segment of the video leading up to the time immediately prior to the beating administered to Mr. Fernandes.”
[27] I can find no error in the trial judge’s ruling. He appreciated the relevant standard of admission as well as the submissions that had been made before him. His decision was reasonable and open to him.
[28] Nor did the trial judge fall into the trap of relying upon the testimony of DC Noonan that his “recognition” was enhanced by the incidents that had occurred, and the fact that the men he observed were carrying bats. The admissibility question was whether DC Noonan recognized Mr. Aragon based on his familiarity with Mr. Aragon’s appearance. Independent circumstantial evidence suggesting that a “recognition” is accurate is not relevant to that inquiry. Appropriately, the trial judge relied solely on DC Noonan’s prior observations of Mr. Aragon in finding that he could offer helpful recognition evidence.
[29] I would dismiss this ground of appeal.
B. Did the trial judge err when admitting the extrinsic discreditable conduct evidence?
The Contested Extrinsic Discreditable Conduct Evidence
[30] The Crown applied to admit extrinsic discreditable conduct evidence to establish Mr. Aragon’s motive and animus against Mr. Fernandes and to provide essential background narrative to the attack. Specifically, the Crown theory was that the attack on Mr. Fernandes, a member of the Loner’s motorcycle gang, was motivated by animus between the Loners and those, including Mr. Aragon, who had recently left the Loners on “bad terms” (the “break-away group”). According to the expert evidence of DC Noonan, within the “outlaw motorcycle gang” culture, “bad terms” describes censure against a gang member who has violated club rules. Mr. Aragon disputed the facts the Crown alleged and the admissibility of this evidence.
[31] Appropriately, an admissibility voir dire was conducted. Extrinsic evidence linking an accused person to a criminal organization, such as an “outlaw motorcycle gang”, including evidence about that organization itself, is sufficiently discreditable to create prejudice against an accused. The evidence is therefore prima facie inadmissible: R. v. B.(L.) (1997), 116 C.C.C. (3d) 481 (Ont. C.A.), at para. 20; R. v. M.R.S., 2020 ONCA 667, 396 C.C.C. (3d) 172, at paras. 62, 71-72; R. v. Tsigirlash, 2019 ONCA 650, at paras. 23, 25; R. v. Cook, 2020 ONCA 731, 394 C.C.C. (3d) 467, at paras. 40-41; R. v. Phan, 2020 ONCA 298, 387 C.C.C. (3d) 383, at para. 90.
[32] Therefore, “[t]he onus is on the prosecution to satisfy the trial judge on a balance of probabilities that in the context of the particular case the probative value of the evidence in relation to a particular issue outweighs its potential prejudice and thereby justifies its reception”: R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at para. 55.
[33] The admissibility voir dire was not uneventful. In its initial application materials and in its oral submissions, the Crown failed, contrary to this court’s decision in Tsigirlash, at paras. 28, 32-33, to identify the extrinsic discreditable conduct evidence that it was seeking to have admitted. Instead, the Crown simply described the ultimate conclusions it wanted drawn from that evidence relating to Mr. Aragon’s membership in the break-away group, and to the animus of the break-away group against the Loners.
[34] When Mr. Aragon’s counsel identified this shortcoming in the Crown’s application, the trial judge invited the Crown to remedy the deficiency. The Crown agreed to do so by providing a written description of the evidence it sought to have admitted. The next day the Crown provided a document entitled “summary of evidence – prior discreditable conduct application” (“Summary”). This document identified, in bullet-points, the anticipated evidence that six individuals would give. The Summary was presented much like six serial “will say” statements. Although most of the facts described in the bullet points were supported by preliminary inquiry transcripts, [^1] no supporting material was provided with respect to the proposed evidence of two of the witnesses, Mr. Pammett and Mr. Gord King. The testimony ascribed to these men was presented as bald factual assertions.
[35] Ultimately, the trial judge ruled that the extrinsic discreditable conduct evidence identified in the Summary was admissible. Mr. Aragon identifies three alleged errors related to that ruling. First, Mr. Aragon contends that the trial judge erred by ruling that the extrinsic discreditable conduct evidence was admissible without a sufficient evidentiary foundation. Second, Mr. Aragon submits that the trial judge erred in concluding that the probative value of the extrinsic discreditable conduct evidence outweighed the risk of prejudice it presented. Third, Mr. Aragon argues that the trial judge erred in admitting extrinsic discreditable conduct evidence that fell outside the scope of his admissibility ruling. Although I do agree that there were issues with the adequacy of the evidentiary basis relied upon by the trial judge, for the following reasons I would reject each of these grounds of appeal.
The Adequacy of the Evidentiary Basis
[36] Three of the issues raised by Mr. Aragon relating to the evidentiary basis for the ruling warrant attention: (1) reliance by the trial judge on the bullet points ascribed to Mr. Pammett and Mr. King; (2) reliance by the Crown on hearsay information; and (3) the trial judge’s alleged misapprehension of evidence. [^2]
(1) The Relevant Legal Principles
[37] As a general rule, trial judges have discretion to determine the form that an admissibility voir dire will take, based on the issues involved and the nature of the case being tried: R. v. Evans, 2019 ONCA 715, 377 C.C.C. (3d) 231, at para. 148; R. v. Dietrich (1970), 1 C.C.C. (2d) 49 (Ont. C.A.), at para. 45, leave to appeal refused, [1970] S.C.R. xi. In many cases it is therefore not only common, but preferable in the interests of efficiency, to conduct admissibility voir dires based on information that would not be admissible during the trial proper: Evans, at paras. 116, 147-48 (statements of counsel and filed documents); Dietrich, at paras. 43-50 (endorsing the use of summaries of the evidence); R. v. Snow (2004), 190 C.C.C. (3d) 317 (Ont. C.A.), at paras. 60-61, (preliminary inquiry records); R. v. G.N.D. (1993), 81 C.C.C. (3d) 65 (Ont. C.A.), at paras. 30, 38 (summary of proposed hearsay statement and cross-examination of witnesses to the statement).
[38] This is not to say there are never cases where admissible evidence will be required to establish contested facts in an admissibility voir dire. There are passages, for example, supporting the proposition that oral evidence must be presented in contested voluntariness voir dires (Dietrich, at para. 44; Snow, at para. 61) and in contested Charter admissibility voir dires (R. v. Tomlinson, 2009 BCCA 196, 190 C.R.R. (2d) 28, at para. 51). Whether or not oral testimony is always required in voluntariness and Charter admissibility voir dires where the underlying facts are contested, this is not the case in extrinsic discreditable conduct admissibility voir dires. In Snow, a ground of appeal based on the refusal of the trial judge to require oral evidence in an extrinsic discreditable conduct admissibility voir dire was denied by this court as being without merit.
[39] I am nonetheless persuaded that in exercising discretion relating to the manner in which any admissibility voir dire is conducted, trial judges should take a functional approach to ensure that the record before them enables factual determinations required to determine admissibility to be fairly made, and they should disregard contested information that has been received that cannot fairly be assessed where it is important to do so. For example, in Snow the decision of the trial judge to resolve the admissibility of extrinsic conduct evidence based on transcripts of related guilty pleas and preliminary inquiry transcripts was supported by the fact that in that case, the “admissibility of the similar fact evidence did not require the testing of circumstances surrounding the evidence, nor was there uncertainty about what the witnesses might say”: Snow, at para. 61.
[40] No doubt because of the functional needs in an extrinsic discreditable conduct evidence admissibility voir dire, it is typical that contested “evidence of other discreditable conduct is introduced through the testimony of those who suffered it (if alive), observed it, or, as admissible hearsay, by those to whom the victim reported it”: R. v. Stubbs, 2013 ONCA 514, 300 C.C.C. (3d) 181, at para. 68. The formal presentation of admissible evidence is optimal where material facts relating to admissibility are contested because the strength of the evidence establishing that the alleged discreditable conduct even occurred is an important consideration in evaluating the probative value of the proposed extrinsic discreditable conduct evidence: R. v. Mahalingan, 2008 SCC 63, [2008] 3 S.C.R. 316, at para. 163. If, on a threshold examination, the evidence alleging the extrinsic discreditable conduct is of questionable credibility or reliability, the probative value of the proposed discreditable conduct evidence will be diminished: Handy, at paras. 133-36; R. v. MacCormack, 2009 ONCA 72, 241 C.C.C. (3d) 516, at para. 54. Indeed, unless the proposed discreditable conduct evidence is reasonably capable of belief, it may be too prejudicial to admit: Handy, at para. 134.
(2) The “Evidence” of Mr. Pammett and Mr. King
[41] The statements of fact ascribed to four of the six witnesses featured in the Crown Summary were supported by preliminary inquiry transcripts. However, there was no offer of proof and no indication of the Crown’s evidentiary foundation for the bald statements of fact it attributed to Mr. Pammett and Mr. King. Indeed, neither man had even been interviewed by the police about Mr. Aragon or the break-away group. Quite simply, although the Crown no doubt believed that Mr. Pammett and Mr. King had knowledge of the information it ascribed to them in the Summary, the bullet points can fairly be described as a wish-list of the testimony the Crown hoped that these witnesses would provide.
[42] Yet the trial judge relied in his admissibility decision upon the statements of fact the Crown attributed to Mr. Pammett and Mr. King. He alluded to these statements in his ruling. Moreover, these statements provided the only direct evidence on three keystone facts that supported the admissibility decision, namely: (1) Mr. Aragon left the Loners with Mr. Pammett; (2) along with Mr. Pammett, Mr. Aragon set up a new “club” at the Perry Street address; and (3) there was animosity between the two groups. Although there was independent circumstantial evidence to support each of these keystone facts, the bald assertions ascribed by the Crown to Mr. Pammett and Mr. King provided the most direct route to these conclusions available to the trial judge.
[43] In my view, in the circumstances of this case the trial judge should not have exercised his discretion to permit the filing of the “will say” statements relating to Mr. Pammett and Mr. King, and he certainly should not have relied on those statements in determining that the extrinsic discreditable conduct evidence was admissible. First, the factual claims ascribed to Mr. Pammett and Mr. King were contested, and there was no apparent way to test the credibility and reliability of those statements so as to assess their probative value, an important determination in the admissibility ruling. Second, it had been understood between the parties that the Crown would provide a factual foundation for its extrinsic discreditable conduct evidence application, given the agreement that the Crown could rely upon preliminary inquiry transcripts. And third, there was uncertainty about what these witnesses might say, given that they had not even been interviewed.
[44] This last point is particularly concerning. Obviously, if it were appropriate for the Crown to rely during admissibility voir dires on an unsupported statement of the evidence the Crown hopes to have on contested points, voir dires would become pro forma proceedings instead of suitably rigorous evaluations of the admissibility of often prejudicial evidence.
[45] I therefore agree with Mr. Aragon. The Crown should not have presented, and the trial judge should not have relied upon the bald but contested assertions ascribed to Mr. Pammett and Mr. King, given that the trial judge had not been provided with a meaningful basis for determining whether this evidence was even available to the Crown, or for evaluating its probative value, if it was available.
(3) The Hearsay Evidence
[46] I agree with Mr. Aragon that some of the evidence offered by DC Noonan and DC Lemay was based upon hearsay, without apparent indicia of reliability.
[47] Specifically, DC Noonan offered hearsay information “from reading reports and being privy to information from this investigation” that Mr. Pammett, who was in bad standing, left the Loners along with others, including Mr. Aragon, because they were trying to establish another club. DC Noonan also offered hearsay evidence based on a search warrant information he had read that this had led to animosity between the Loners and Mr. Pammett’s break-away group.
[48] DC Lemay also relied on out-of-court information – the Loners’ website – for his testimony that Mr. Pammett had been “kicked out” of the Loners. It was a hearsay use of that website for DC Lemay to rely upon it, as he did, to conclude that Mr. Pammett had in fact been kicked out of the Loners. [^3]
[49] Although Mr. Aragon’s counsel did not specifically identify all of the hearsay evidence I have just described, he made submissions about the inappropriateness of the Crown relying upon hearsay in support of its application. I offer no comment on whether this evidence should have been put before or admitted by the trial judge during the voir dire. My concern is that in the admissibility ruling, the trial judge did not address the fact that this information rested on hearsay, when that is a relevant and important consideration in determining the probative value and hence admissibility of the proposed, contested evidence.
(4) Misapprehensions of Evidence
[50] I also agree with Mr. Aragon that the trial judge misapprehended evidence relevant to the admissibility of the extrinsic discreditable conduct evidence.
[51] Of most concern, the trial judge adopted the Crown’s erroneous claim made in its Summary that Mr. Fernandes testified at the preliminary inquiry that Mr. Pammett was in bad standing with the Loners. In fact, in his preliminary inquiry testimony, Mr. Fernandes did not even confirm that Mr. Pammett had been a member of the Loners, instead saying that he did not know if this was the case.
[52] The trial judge also described DC Lemay as offering evidence that Mr. Pammett started his own club along with Mr. Aragon. DC Lemay did describe Mr. Pammett starting the club and he did offer evidence about Mr. Aragon’s subsequent association with Mr. Pammett, but he did not testify that Mr. Pammett started his own club along with Mr. Aragon.
[53] Finally, in the bullet points the Crown ascribed to Mr. Pammett, it is proposed that Mr. Pammett would say that he left the Loners because he was unhappy with them. The trial judge recounted Mr. Pammett’s proposed evidence as confirming that he left with Mr. Aragon because “they” were unhappy with the Loners.
(5) Conclusions on the Evidentiary Basis
[54] There were therefore problems relating to the evidentiary basis for the trial judge’s admissibility ruling. Those problems make it inappropriate to defer to the trial judge’s decision. I would nonetheless deny this ground of appeal. As I am about to explain, based on the voir dire evidence that was appropriately before the trial judge, there was a clear foundation for the admissibility of the extrinsic discreditable conduct evidence.
The Probative Value of the Evidence and the Risk of Prejudice
[55] The trial judge did not err in finding that the probative value of the Crown’s proposed extrinsic discreditable conduct evidence outweighed the prejudice it would cause.
[56] Although such evidence is presumptively inadmissible, extrinsic discreditable conduct evidence became critically important to this case, given the content of the 911 call: “You had the only chance to come away. You’re so stupid. What, are you a Loner? […] You want to be a Loner? That’s for the Loners. Fernando you had a chance to come with us”. This recording provided a foundation for the admission of extrinsic discreditable conduct evidence on several overlapping bases.
[57] First, triers of fact must understand the admissible evidence that they will be hearing. It is therefore appropriate for jurors to hear evidence that gives them the narrative required to do so. Specifically, the jurors trying Mr. Aragon needed to understand why Mr. Fernandes would be attacked because he was a Loner, and what the reference to “a chance to come with us” meant in the circumstances of the case. Given the Crown theory that these words arose from a dispute between motorcycle gangs, it was inevitable that unfolding the essential narrative of the case would entail presenting evidence about that dispute.
[58] Second, the 911 audio recording disclosed an apparent motive for the attack. This provided the foundation for the admission of evidence capable of showing that Mr. Aragon shared that motive. Simply put, if Mr. Aragon could not be shown to be part of a group that had reason to chide Mr. Fernandes for “not coming with us”, the Crown case would have been materially weakened. On the other hand, evidence confirming that Mr. Aragon fit the profile of persons likely to attack Mr. Fernandes because Mr. Fernandes was a Loner and because he had not “come” with Mr. Aragon and others, would offer substantial support to the Crown case.
[59] The fact that the Crown relied upon evidence of a group animus to establish Mr. Aragon’s own animus and motive is not problematic. It is well settled that extrinsic discreditable conduct evidence can gain admission to support a Crown theory that a crime has been committed by a member of a criminal group for group reasons: R. v. Sipes, 2011 BCSC 640, at paras. 364, 367; Phan, at para. 97. Evidence about the structure of the criminal group, the intensity of the animus, and the role or relationship of the accused to the criminal group, can all be relevant and probative in unfolding a Crown theory that the accused was motivated to act because of group animus: Phan, at paras. 97-98.
[60] Finally, the 911 audio recording confirmed that the speaker, who the Crown alleged to be Mr. Aragon, knew Mr. Fernandes, and knew him to be a Loner. Evidence that Mr. Aragon knew Mr. Fernandes, and knew him to be a Loner, was therefore important, even if this evidence required disclosure that Mr. Aragon knew Mr. Fernandes through their gang association.
[61] Was there probative evidence relating to each or any of these theories of admissibility? In considering this question, I have disregarded the bald assertions the Crown ascribed to Mr. Pammett and Mr. King, as well as the hearsay evidence that was presented during the voir dire. I am persuaded that the remaining evidence presented a formidable and probative evidentiary foundation that would enable jurors to understand the 911 conversation and would situate Mr. Aragon among those who could have spoken the words captured during the 911 call.
[62] Specifically, there was evidence supporting each of the following factual propositions, which together provide that probative evidentiary foundation:
Mr. Fernandes was a Loner, and Mr. Aragon was a former Loner.
- Mr. Fernandes confirmed that he was a member of the Loners, and that he knew Mr. Aragon, who had also been a Loner.
- There was evidence that Mr. Aragon had been seen in early 2012 at bike shows with known members of the Loners, including Mr. Pammett, who was affiliated with the Loners clubhouse at the Park Street address where Mr. King was a member. On one of those occasions Mr. Aragon was wearing a Loners shirt.
Mr. Pammett and others left the Loners and the departure was acrimonious.
- DC Lemay presented evidence that in March 2012, Mr. Pammett’s common law wife acquired the property at the Perry Street address. Commencing in the spring, Mr. Pammett and other known members of the Loners moved into the Perry Street address.
- The preliminary inquiry transcripts of DC Noonan’s testimony included evidence that the Perry Street address bore the characteristics of a motorcycle gang clubhouse.
- There was evidence that the Loners posted information on their website casting Mr. Pammett in a bad light by claiming he had been kicked out the Loners, a fact that was demonstrative of a rift between the Loners and Mr. Pammett.
- There was evidence that a Loners patch was hung upside down inside the Perry Street clubhouse. DC Noonan provided expert evidence that in the outlaw motorcycle gang culture, this a sign of disrespect.
- At the Perry Street clubhouse, there were vests from which patches and “rockers” had been removed. Since the Perry Street clubhouse was frequented by persons previously known to be Loners, there is an available inference that the insignia that had been removed had been affiliated with the Loners. The removal of the patches and rockers is therefore evidence of an end to the association between those linked to the Perry Street address and the Loners.
- DC Noonan provided evidence that a Ledger Book was found inside the Perry Street location that included an entry dated June 8, 2012 which read, “The Loners getting their shit this weekend”. An entry dated June 29, 2012 said, “Loners still badmouthing us on Internet”.
- DC Lemay also gave evidence of an alleged firebombing at the Park Street address on June 22, 2012. He observed Loners at the clubhouse the next day in what he described as a show of force. He observed men milling around the front gate, and he described a verbal conflict that afternoon in front of the Park Street address between two groups, and he testified that Mr. Gardiner, who was associated with the Perry Street group, was involved.
- There was also evidence that prior to the July 22, 2012 attack on Mr. Fernandes, a number of windows had been broken at Mr. King’s home, which is immediately proximate to the Loners clubhouse at the Park Street address. Although no evidence was available linking the attack to the break-away group, it could be inferred given the context and timing that this event was likely related to the rift between the groups.
Mr. Aragon was linked to the Perry Street clubhouse, to Mr. Pammett and to the group animus.
- There was evidence from DC Lemay that throughout the spring and summer of 2012, Mr. Pammett and Mr. Aragon were seen together and separately at the Perry Street clubhouse. As indicated, the men were formerly associated in the Loners motorcycle gang, which Mr. Pammett acrimoniously left.
- There was evidence from club records that a person identified as “Carlito”, a known nickname for Mr. Aragon, had made a “donation” at the Perry Street clubhouse.
- There was evidence before the trial judge during the voir dire that the attack on Mr. Fernandes took place in proximity to the Perry Street address as well as evidence that would entitle jurors to conclude that Mr. Fernando’s attackers came from the Perry Street address.
- In addition, the preliminary inquiry testimony of DC Lemay and DC Noonan that was also before the trial judge on the voir dire identified Mr. Aragon on a surveillance videotape at the Perry Street clubhouse, both before and after the attack, in the company of other persons identified as former Loners, and indicated that he and at least one other person had a bat.
[63] Together, the evidence on the voir dire provides a probative narrative explaining the meaning of the words captured on the 911 call. Together, the evidence is also probative in establishing that there was serious group animus between the break-away group and the Loners.
[64] Even in the absence of evidence that Mr. Aragon was formally a “member” of the break-away group, or that he was in “bad standing” with the Loners, this evidence also provided a strong basis for inferring that Mr. Aragon aligned himself with the break-away group. He maintained his connection to Mr. Pammett, who could be inferred to have animus against the Loners, the group that Mr. Aragon had also left. Most significantly, there was evidence that Mr. Aragon was present with a group at the Perry Street address on the night of the attack, while holding a baseball bat. In my view, this evidence supports an inference of close affiliation between Mr. Aragon and other former members of the Loners. The history and nature of his alignment with the break-away group coupled with his presence with others at the Perry Street address on the night of the attack on Mr. Fernandes, at the location from which the attack originated, supports a probative inference that Mr. Aragon was linked to the Perry Street group and would be motivated to participate in a gang-related attack against a member of the Loners.
[65] Finally, the preliminary inquiry evidence of Mr. Fernandes, which was before the trial judge during the voir dire, is probative evidence that Mr. Aragon knew Mr. Fernandes by name and knew him to be a Loner.
[66] The evidence I have just recounted provided strong probative inferences on each of the important issues I have identified.
[67] I am also satisfied that the probative value of this evidence clearly outweighs the risk of prejudice it presents. To be sure, I share Mr. Aragon’s concern that notwithstanding that the Crown was not seeking to lead evidence linking Mr. Aragon to any specific extrinsic criminal activity, the evidence I have recounted carries an appreciable risk of prejudice against him, through his affiliation with criminal organizations. However, it was inevitable that Mr. Aragon’s affiliation with criminal organizations was going to be exposed during the trial. This prosecution could not realistically have occurred without disclosing the Crown theory that the attack was gang-related, and that Mr. Aragon was connected to the break-away group. Moreover, the admissible recognition evidence could not have been presented without disclosing his history with motorcycle gangs and his connection to the break-away group.
[68] Without deferring to the decision of the trial judge and without relying on the unsupported evidence attributed to Mr. Pammett and Mr. King or the hearsay information furnished during the voir dire, I am therefore satisfied that the probative value of the extrinsic discreditable conduct evidence outweighed the risk of prejudice it presented. The evidence proposed during the voir dire was admissible.
[69] I would dismiss this basis for appeal.
The Evidence and the Scope of the Admissibility Ruling
[70] Trial judges are obliged to act as gatekeepers in ensuring that highly prejudicial evidence is not admitted, including extrinsic discreditable conduct evidence that goes beyond the scope of an admissibility ruling: R. v. Cook, 2020 ONCA 731, 394 C.C.C. (3d) 467, at para. 71; M.R.S., at paras. 65-66. I do not accept Mr. Aragon’s submission that the trial judge erred in discharging his gatekeeping role in this case by admitting irrelevant evidence beyond the scope of his ruling.
[71] Notwithstanding the importance of ensuring that extrinsic discreditable conduct evidence is ruled admissible before it is presented, the scope of an admissibility ruling must be interpreted sensibly and contextually, rather than with artificial rigidity. An admissibility ruling is not a script, nor could it be. It is inevitable that the testimony of witnesses will be cast in greater or lesser compass in the retelling, as they explain, contextualize, and elaborate upon earlier testimony or police interviews. It would be unrealistic to expect a trial judge to articulate in their admissibility ruling in complete detail every scintilla or subtopic that is reasonably embraced by that ruling. In my view, when the issue is approached fairly and practically, the trial judge did not permit the admission of evidence that exceeded the scope of the ruling. I will elaborate by addressing, in turn, the evidence about which Mr. Aragon has expressed concern.
[72] First, Mr. Aragon takes issue with the breadth of the evidence provided by DC Noonan about the history of motorcycle clubs in Peterborough and the inclusion of details about the structure, rules, and culture of motorcycle clubs, some of which were unconnected to the proceedings. I agree in principle that given the prejudice caused by association, the trial judge was required to exercise care not to allow the evidence to go too far afield, but it was clearly contemplated by the ruling that DC Noonan would provide expert testimony about the broader culture of outlaw motorcycle clubs. DC Noonan had to do so both to confirm his expertise and to validate the relevant testimony he gave about biker culture.
[73] Moreover, the trial judge said in the course of his ruling that “[t]he discreditable conduct that the Crown seeks to elicit is contained in the evidence of [six witnesses]”. One of those witnesses was DC Noonan. In his preliminary inquiry testimony that was before the trial judge, DC Noonan provided testimony about the broader culture of outlaw motorcycle clubs.
[74] Second, Mr. Aragon argues that the trial judge erred by admitting numerous photos of him and others showing them associating with or engaged in motorcycle club activities and by permitting evidence about Mr. Pammett’s involvement with other motorcycle clubs, including a newspaper article about Mr. Pammett’s departure from the Loners, to be shared with the jury. In my view, all of this evidence was relevant and within the fair contemplation of the trial judge’s ruling.
[75] With respect to the photographs, the admissibility ruling clearly contemplated that background evidence could be provided regarding the culture of motorcycle gangs and linking the players to motorcycle gang activity. The photographs served this permissible purpose. I find them to be neither excessive in number nor gratuitous.
[76] With respect to the evidence about Mr. Pammett, it was obvious that his status as a biker would be revealed during trial, as would evidence of his departure from the Loners. I see no problem with the admission of the newspaper article, in which statements were attributed to Mr. Pammett. An examination of the transcript shows that the Crown used this article at trial not as hearsay evidence to prove why Mr. Pammett left, but as a tool for probing Mr. Pammett’s testimonial account of why he left the Loners. Mr. Pammett was purportedly quoted in that article. It was appropriate for the Crown to confront him with the words attributed to him, and for the trial judge to exhibit the article so that it would be available to jurors in considering Mr. Pammett’s testimony.
[77] Finally, Mr. Aragon takes issue with admission of evidence about the June 22, 2012 firebombing and the July 22, 2012 window breaking incident. In my view, proof of these incidents was contemplated by the admissibility ruling. Evidence about these incidents was provided during the voir dire and the latter incident was explicitly referred to in the Summary. Moreover, as I have indicated, these incidents were relevant both during the voir dire and at trial in establishing the depth of the animosity that existed between the Loners and the break-away group.
[78] I would not give effect to this ground of appeal.
C. Did the trial judge err by failing to instruct the jury on the prohibited and permissible uses of the extrinsic discreditable conduct evidence?
[79] Mr. Aragon argues that the trial judge erred by failing to adequately equip the jury with an understanding of the proper and improper uses of the extrinsic discreditable conduct evidence. I do not agree.
The Direction on Permissible Uses
[80] Under ideal circumstances, a trial judge would dedicate a portion of their charge to identifying extrinsic discreditable conduct evidence that has been admitted and directing the jury on the permissible inferences it could draw from that evidence. The trial judge did not do so in this case, but this is understandable. It would not have been realistic nor desirable in the circumstances of this case for the trial judge to have attempted to gather all of the extrinsic discreditable conduct evidence together in one place in the charge for the purpose of assisting the jury in its application. This evidence was voluminous, including evidence not only about Mr. Aragon but also the motorcycle gangs he associated with. Had the trial judge attempted to gather this evidence together in the charge, that charge would not have decanted and simplified the critical issues in the case. It would have magnified the potential for prejudice.
[81] What ultimately matters is that a trial judge’s charge provides the jury with a functional understanding of the value and effect of significant evidence and an understanding of how this evidence related to the relevant issues: R. v. Newton, 2017 ONCA 496, 349 C.C.C. (3d) 508, at paras. 10-13; R. v. Jacquard, [1997] 1 S.C.R. 314, at para. 14. In all of the circumstances, I am satisfied that the jury charge in this case did so.
[82] Specifically, the trial judge opened the charge by setting out the Crown narrative which the extrinsic discreditable conduct evidence was marshalled to prove, namely, that Mr. Fernandes, a Loner, was assaulted by Mr. Aragon because of the animus that had developed between the break-away group that Mr. Aragon was associated with and the Loners. He also explained to jurors when introducing them to the significance of expert testimony that DC Noonan’s expert evidence was called to provide important narrative evidence about the fractious relationship between the Loners and the break-away group and about Mr. Aragon’s affiliation with the break-away group. When he explained the significance of motive, the trial judge also identified the significance of Mr. Aragon’s former association with the Loners and the falling out. And he fairly summarized the material evidence. I have no issue with the sufficiency of the charge relating to the proper uses of that evidence.
The Impermissible Use: The Absence of a Limiting Instruction
[83] Given the extrinsic discreditable conduct evidence that was presented, this case called on its face for a limiting instruction to the jury not to use that evidence to infer that Mr. Aragon is the sort of person who would commit the offences charged. In spite of the real risk that the jury could engage in such reasoning, the judge did not give this kind of instruction. I would nonetheless deny this ground of appeal.
[84] It is evident that the trial judge did not give a limiting instruction because Mr. Aragon’s counsel specifically asked him not to do so. After forming the opinion that the extrinsic discreditable conduct evidence had gone somewhat beyond the admissibility order, Mr. Aragon’s trial counsel said to the trial judge, “at this stage of the game, I think drawing attention to anything makes it worse rather than better”. Even though I do not agree that the evidence went beyond the admissibility rule, I recognize this to have been a considered and tactical choice made in what defence counsel believed to be Mr. Aragon’s best interest. The trial judge cannot be faulted for acceding to Mr. Aragon’s trial counsel’s request.
[85] Having said this, the trial judge may well have engaged in a more detailed conversation with Mr. Aragon’s counsel before acceding to this request. In my view, a limiting instruction could easily have been provided in general terms, without recounting the details about Mr. Aragon’s association with outlaw motorcycle gangs, and without amplifying the risk of prejudice. For example, the trial judge could have instructed jurors that the law recognizes it to be unfair to judge an accused person based on any conclusions that may be drawn about his general character, and then have cautioned them not infer that Mr. Aragon is a bad person who would commit the charged offences based on his association with motorcycle gangs. Although the trial judge might well have had a more extensive conversation with defence counsel to explore such a possibility before acceding to the request not to include a limiting instruction, he was not obliged to do so. I would dismiss this ground of appeal.
II. Sentence Appeal
Material Facts
[86] The Crown sought to have Mr. Aragon declared a dangerous offender pursuant to s. 753 of the Criminal Code, R.S.C., 1985, c. C-46, and to have an indeterminate sentence imposed.
[87] During the sentencing hearing, three individuals, including DC Lemay and DC Noonan, offered evidence about Mr. Aragon’s affiliation with motorcycle gangs. Brian Wheeler, from Correctional Services Canada, offered testimony about Mr. Aragon’s history with treatment during his lengthy previous incarceration and about revisions that have occurred in the programming since Mr. Aragon received that counselling. Testimony was also given by another correctional services employee and a police officer relating to Mr. Aragon’s behaviour while incarcerated. Dr. Jeffrey McMaster, a psychiatrist called by the Crown, offered the opinion that there was a high risk that Mr. Aragon would reoffend violently, and a substantial risk that this violence would involve significant physical or psychological harm – in short, that he was a dangerous offender. However, he offered the opinion that there was a possibility of controlling Mr. Aragon in the community on a Long-Term Supervision Order (“LTSO”), which would include intensive treatment and the highest level of supervision.
[88] Mr. Aragon did not call evidence at the sentencing hearing.
[89] Final sentencing submissions were then scheduled for July 17, 2015 but were adjourned when defence counsel fell ill. This delay necessitated the appointment of new counsel and prevented the trial judge from completing the sentencing before his mandatory retirement age. On February 29, 2016, another judge (the “sentencing judge”) was appointed pursuant to s. 669.2 of the Criminal Code to complete the sentencing.
[90] Mr. Aragon’s new defence counsel, who contested the credibility, reliability, and weight of the testimony upon which the Crown was relying in support of its sentencing position, sought to have some of the witnesses recalled who had testified during the aborted sentencing hearing that had been commenced before the trial judge. In circumstances described in detail below, the sentencing judge permitted a single witness, Dr. McMaster, to be recalled and testify before him.
[91] Defence counsel also asked the sentencing judge to make factual findings so that the basis of the findings of guilt relating to the convictions would be clarified for the purposes of sentencing. Again, in circumstances described in detail below, the sentencing judge did so.
[92] In October 2016, defence counsel also instituted an unsuccessful mistrial application based on fresh evidence, as well as a failed constitutional challenge to the dangerous offender regime in the Criminal Code. I unfold the circumstances of constitutional challenge in more detail below.
[93] On December 9, 2016, Dr. McMaster was recalled and was questioned by Mr. Aragon’s defence counsel as well as the Crown. The defence did not seek to call additional evidence before the sentencing judge. Final sentencing submissions were completed on February 24, 2017.
[94] Judgment on sentence was scheduled for June 30, 2017, but the decision was not ready. On September 8, 2017, the sentencing judge gave a brief oral decision finding Mr. Aragon to be a dangerous offender and sentencing him to indeterminate imprisonment. Written reasons were to follow.
[95] On December 14, 2017, defence counsel requested the written reasons for the sentence, as well as the outstanding written reasons on other applications that had been denied.
[96] He requested written reasons again on January 24, 2018.
[97] On March 6, 2018, the sentencing judge released his written reasons for his factual findings. On March 8, 2018, he also released his written reasons for denying the constitutional challenge. The written sentencing reasons for the sentence that had been imposed on September 8, 2017 were provided on March 14, 2018.
The Issues
[98] In support of his proposed sentence appeal, Mr. Aragon argues that the s. 669.2 procedure was not undertaken fairly; that the written reasons offered by the sentencing judge were insufficient and were after-the-fact justifications for prior oral rulings he had made long before; and that the sentencing judge erred in his rulings on the sentencing facts.
[99] Mr. Aragon also argues that the dangerous offender designation and the sentence of indeterminate imprisonment were unreasonable. Additionally, he seeks the admission of fresh evidence outlining the rehabilitative progress he has made since the sentencing judge’s ruling.
[100] The Crown contends that if we find that any legal errors occurred during sentencing, but that they did not occasion a substantial wrong or miscarriage of justice, we should dismiss the appeal pursuant to the broad authority to do so implicit in s. 759 of the Criminal Code: R. v. Johnson, 2003 SCC 46, [2003] 2 S.C.R. 357, at paras. 47-49; R. v. Boutilier, 2017 SCC 64, [2017] 2 S.C.R. 936, at paras. 81-89, aff’g 2016 BCCA 235, 336 C.C.C. (3d) 293.
[101] The issues on the sentence appeal can be described and conveniently approached as follows:
A. Did the sentencing judge err in making factual findings relating to aggravating facts? B. Were reasons for rulings made during the sentencing hearing insufficient? C. The remaining issues raised by Mr. Aragon on the sentence appeal: a. Were the reasons for the rulings made during the sentencing hearing made after-the-fact? b. Was the s. 669.2 hearing an unfair process and a miscarriage of justice? c. Was the dangerous offender designation and/or the indeterminate sentence unreasonable? d. Is the fresh evidence of rehabilitation admissible? D. If any of these errors occurred, should the appeal be denied because of the absence of a miscarriage of justice?
[102] For reasons that I will describe below, I would allow the sentencing appeal on grounds A and B. As I will also explain, it is either unnecessary or not in the interests of justice to consider the remaining issues that Mr. Aragon has raised. Nor is it in the interests of justice to exercise our jurisdiction to deny the sentencing appeal based on the absence of a miscarriage of justice. I would set aside the sentence and order a new sentencing hearing.
A. Did the Sentencing judge err in making factual Findings Relating to Aggravated Facts?
[103] In my view, the sentencing judge erred in making factual findings relating to several aggravating factors that influenced his characterization of the seriousness of the index offence. These errors are material because the characterization of the seriousness of the index offence heavily influenced the sentencing judge’s decision to sentence Mr. Aragon to an indeterminate sentence as a dangerous offender.
[104] Given that this was a jury trial, and that juries do not give reasons for the general verdicts they reach, the obligation fell to the sentencing judge to determine the material facts required for sentencing. This was required to be done pursuant to ss. 724(2) and (3) of the Criminal Code. Section 724(2) provides:
Where the court is composed of a judge and jury, the court (a) shall accept as proven all facts, express or implied, that are essential to the jury’s verdict of guilty; and (b) may find any other relevant fact that was disclosed by evidence at the trial to be proven, or hear evidence presented by either party with respect to that fact.
[105] To sentence an offender convicted by jury, a sentencing judge must therefore identify the facts that are essential to the jury’s verdict or, in other words, identify “the express and implied factual implications of the jury’s verdict”: R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96, at para. 17, citing R. v. Brown, [1991] 2 S.C.R. 518, at p. 523. Where “the factual implications of the jury’s verdict are ambiguous, the sentencing judge should not attempt to follow the logical process of the jury but should come to his or her own independent determination of the relevant facts”: Ferguson, at para. 18.
[106] It follows that there is a two-step process required in settling the factual record of sentencing in a jury trial. First, the sentencing judge must identify any relevant factual determinations the jury has made by examining what facts were essential to the jury’s verdicts, and then apply those facts when sentencing the offender. Second, where it is necessary in order to sentence an offender to determine facts that were not expressed or necessarily implicit in the jury verdict, the sentencing judge is to engage in their own, independent fact-finding exercise.
[107] It is therefore an error for a sentencing judge to rely on facts in sentencing that are not expressed or implicit in the jury’s verdict, but that are based on the sentencing judge’s belief as to what the jury must have decided: R. v. Moreira, 2021 ONCA 507, at paras. 43-57. To rely on aggravating facts that are not necessarily expressed or implicit in the jury verdict, the sentencing judge must come to their own independent determination that those aggravating facts have been proved, beyond a reasonable doubt: Criminal Code, s. 724(3)(e); R. v. Gardiner, [1982] 2 S.C.R. 368, at paras. 112-14. I am persuaded that the sentencing judge applied these rules incorrectly.
[108] The sentencing judge gave an oral decision relating to the factual findings on November 8, 2016, followed by subsequent written reasons on March 6, 2018, some 16 months later.
[109] It is clear that in the oral decision the sentencing judge identified findings that he concluded were necessarily implied by the jury verdict, rather than factual findings he was making on his own. Speaking directly to Mr. Aragon he said:
I found favour with the Crown submissions […] that the jury verdict was founded on the premises that the Crown argued it should be founded on which is that you were the one who pocket dialled 911 and they recorded a beating of an individual in Peterborough and that you were the primary author of that beating. That’s just a synopsis okay? And I’m only going by what I read, as you understand. I didn’t hear the evidence, but that’s what the jury found and I’m content to find that’s exactly what they found. [Emphasis added.]
[110] It is evident that the sentencing judge’s written reasons were likewise based solely on his interpretation of the facts he found were essential to the jury verdict and not on his own independent findings from the evidence. He quoted the above ruling and said, “Here is the full template of the basis of the determination that I came to in November 2016”.
[111] Mr. Aragon argues that the sentencing judge erred in deriving factual findings from the jury verdict that aggravated the seriousness of the index offence. Those impugned factual findings include: (1) Mr. Aragon was the “primary author of the beating”; (2) the voice on the 911 call was Mr. Aragon’s; (3) his motive for the beating was the gang feud alleged by the Crown; and (4) Mr. Aragon was “in a fevered pitch of violence, with the glee exhibited by Mr. Aragon in so doing captured in the 911 call”.
(1) The finding that Mr. Aragon was the “primary author of the beating”
[112] I agree with Mr. Aragon that a finding that Mr. Aragon was the “primary author of the beating” was not essential to the jury verdict, and that the sentencing judge erred in finding that it was. In order to attribute this role to Mr. Aragon when sentencing him, the sentencing judge would have had to have come to his own determination that this was so, beyond a reasonable doubt, but he never engaged in that analysis.
[113] The Crown argues before us, as it did before the sentencing judge, that this finding was implicit in the jury verdict, given that the jury was not addressed on party liability. In my view, the fact that party liability was not on the table before the jury is immaterial. There was an evidentiary basis on the evidence for concluding that this was a group beating, and anyone who applied any force to Mr. Fernandes would be a principal, even if not the primary author of the beating. Therefore, the fact that Mr. Aragon was convicted as a principal does not disclose the jury’s findings relating to the specific role he played in the beating, let alone a finding that he was the “primary author of the beating”.
[114] In his written reasons, the sentencing judge offered three reasons, apart from general agreement with the Crown, for finding that the jury held that Mr. Aragon was the primary author of the beating. He noted that this was the Crown theory, he said the evidence makes this finding plain, and he relied upon the manner in which the trial judge instructed the jury. With respect, none of these points support the sentencing judge’s conclusion that the jury found Mr. Aragon to have been the primary author of the beating.
[115] First, the Crown theory cannot carry significant weight in interpreting the essential factual findings a jury has made, since a jury need not rely on the Crown theory to convict. Even if the jury rejected the Crown theory, there was evidence that would have enabled jurors to be satisfied as to each element of the offences Mr. Aragon was charged with, without concluding that he was the primary author of the beating.
[116] Second, in this case the evidence before the jury does not assist in identifying the factual finding the jury made, if any, about Mr. Aragon’s precise role in the assault. I do accept that where evidence leads to only one outcome, it is appropriate for a sentencing judge to consider this when identifying what is essential to the verdict, but that was not this case. As indicated, this was a group assault in which different assailants may have played different roles, and there was evidence available to support a finding that more than one assailant possessed a baseball bat. Simply put, in the circumstances of this case the evidence does not support the conclusion that it was essential to the jury verdict that the jury found Mr. Aragon to have been the primary author of the beating.
[117] There is a related but independent concern of equal gravity. In referring to what “the evidence makes plain” the sentencing judge was clearly undertaking his own factual assessment of the evidence, but he did so in an attempt to determine what the jury must have found. This is an erroneous way to proceed. As indicated, a sentencing judge is not to undertake their own assessment of the evidence in an effort to divine what the jury must have found. If the findings the jury made are not apparent from the verdict, a sentencing judge must make their own independent determination of whether the Crown has proved beyond a reasonable doubt the aggravated facts upon which it seeks to rely.
[118] Third, I see nothing in the jury direction that shows that the jury must have found that Mr. Aragon was the primary author of the beating. I agree that the jury direction does support the inference that the jury must have found that Mr. Aragon applied force to Mr. Fernandes with a bat, but beyond this there is nothing in the jury charge to indicate the extent and nature or consequences of the force that the jury found Mr. Aragon to have applied, relative to other assailants.
[119] I would therefore reject the sentencing judge’s reasoning and his conclusion that the finding that Mr. Aragon was the primary author of the beating was essential to the jury verdict. This is not a minor error. Although it is true that all principal offenders bear responsibility for a joint assault, and sentences imposed may not vary between joint participants who play a greater or lesser role in administering a beating or in directly causing injuries, the nature of the assaultive behaviour engaged in by each joint participant can have a material impact on the sentences imposed. This is particularly so in a case such as this where the alleged brutality of the accused’s behaviour is relied upon in support of a dangerous offender finding, and/or an indeterminate sentence. A finding that Mr. Aragon was the primary author of the beating is therefore a finding of importance, and the sentencing judge erred when making it.
(2) The finding that the voice on the 911 call was Mr. Aragon’s
[120] Although the sentencing judge did not directly articulate a finding that the jury accepted that “the voice” on the 911 audio recording was Mr. Aragon’s, it is implicit in his reasons that he did so. Indeed, he said he “found complete favour with the Crown’s submissions”, which included this claim.
[121] Since the sentencing judge did not articulate this finding directly, his reasoning cannot be identified with absolute confidence. When he spoke in his written reasons about the 911 audio recording, he noted that the 911 call dovetails with the surveillance footage and the Crown position. Once again, if these were the bases upon which he found that the jury concluded that “the voice” on the call was Mr. Aragon’s, those reasons are inadequate. Neither the surveillance evidence nor the Crown position logically supports a finding that the jury necessarily found that it was Mr. Aragon’s voice on the 911 audio recording.
[122] The Crown relies on a distinct point not identified by the sentencing judge to support his conclusion that the jury must have found it to be Mr. Aragon’s voice on the 911 audio recording, namely that the jury convicted Mr. Aragon of threatening bodily harm and the only threat identified in the evidence is captured on the 911 audio recording. The difficulty with drawing this inference is that there were several voices on the 911 recording. Even though it is implicit from the jury verdict that the jury necessarily found that Mr. Aragon was the speaker who expressed the recorded threat, it does not necessarily follow that the jury concluded that Mr. Aragon made all of the material comments captured by the 911 audio recording. It is not implicit in the jury verdict that the jury found that it was Mr. Aragon’s voice making all of the material utterances that occurred during the 911 call, and it was an error for the sentencing judge to have held otherwise.
(3) The finding that Mr. Aragon’s motive for the beating was the gang feud alleged by the Crown
[123] The error I have just identified cascades into the sentencing judge’s conclusion that the jury accepted that Mr. Aragon’s motive for the beating was the gang feud alleged by the Crown. This conclusion was based in material part on the prior erroneous finding that the jury found that it was Mr. Aragon’s voice that was captured on the 911 audio recording, describing for Mr. Fernandes why he was being beaten. As I have explained, it does not follow from the jury’s finding that Mr. Aragon uttered a threat, that implicitly the jury must have found that he is also the person who was captured on the 911 audio recording uttering the words that apparently disclose the motive for the attack.
[124] Moreover, it was open to the jury to reject the motive inferences that the Crown sought to have drawn from the extrinsic conduct evidence, yet still convict Mr. Aragon of the offences it did. Since a jury is free to convict without proof of motive, there is no basis for concluding that it was essential to the jury verdict that it accepted the Crown’s motive theory.
(4) The finding that Mr. Aragon was in a “fevered pitch”, and acting with “glee”
[125] Finally, Mr. Aragon takes issue with the sentencing judge’s holding that he was “in a fevered pitch of violence, with the glee exhibited […] in so doing as captured in the 911 call”. Even leaving aside the other issues Mr. Aragon raises about this finding, this finding depends on the sentencing judge’s prior problematic conclusion that the jury found that it was Mr. Aragon’s voice speaking the words on the 911 call. The finding that Mr. Aragon was in a “fevered pitch of violence” and “glee” was therefore also arrived at in error.
Conclusion on the Aggravated Factual Findings
[126] The sentencing judge erred in arriving at aggravated factual findings that had a material bearing on the dangerous offender determination.
B. Were the reasons for the sentencing rulings insufficient?
[127] Trial judges are obliged, including when sentencing offenders, to provide reasons that explain what they have decided and why they have decided that way: R. v. G.F., 2021 SCC 20, 459 D.L.R. (4th) 375, at para. 69. When read as a whole in context of the evidence, the arguments and the live issues in the case, those reasons must disclose the pathway the trial judge took to reach their decision (“factual sufficiency”) and must enable the unsuccessful party to discern if any errors have occurred, so that they can meaningfully exercise their right to appeal (“legal sufficiency”). I am persuaded that the reasons the sentencing judge provided with respect to some of the rulings he made during the sentencing hearing were insufficient.
The Rulings
[128] The sentencing judge was required to make five rulings during the sentencing hearing. Included among those rulings was a decision denying a mistrial. I will say no more about the mistrial decision because no issue was taken with the sufficiency of the written reasons for that decision, which were not placed before us. The remaining 4 rulings require discussion, relating to: (1) the viva voce evidence that the sentencing judge would hear; (2) the aggravated factual findings ruling; (3) a constitutional challenge to statutory provisions; and (4) the sentencing ruling. I would find that the first 3 of those rulings were insufficient, but the sentencing ruling itself was not insufficient.
(1) The *viva voce* evidence ruling
[129] After assuming responsibility for adjudicating the Crown’s dangerous offender application following the trial judge’s retirement, the sentencing judge met with the parties on February 29, 2016. Defence counsel alerted the sentencing judge that it would seek to have witnesses recalled because there were issues of credibility and reliability that the sentencing judge would have to adjudicate. The Crown opposed this, asking the sentencing judge to proceed on the written record. The Crown argued that recalling witnesses would be contrary to s. 669.2 of the Criminal Code, the provision that permitted the appointment of the sentencing judge to the case.
[130] Brief memoranda were filed with the sentencing judge in March 2016 in which defence counsel requested that some of the witnesses be recalled, which the Crown opposed.
[131] On June 6, 2016 the sentencing judge said during an administrative appearance, “I think Dr. McMaster should be recalled.”
[132] On the next appearance, October 17, 2016, the sentencing judge repeated that he had determined that “at the very least, Dr. McMaster should be recalled.” He then said, “There’s no need for any of the other witnesses to be produced by the Crown.” He explained that Dr. McMaster was being recalled “out of an abundance of fairness” given the “lengthy” evidence he had provided. The sentencing judge said he read what the other witnesses had to say, and he did not think it was necessary that they be called.
[133] On October 19, 2016, the sentencing judge described his decision to permit Dr. McMaster to be recalled as an “indulgence” to defence counsel.
[134] No further reasons were provided for rejecting defence counsel’s request to recall other opinion witnesses who had testified during the sentencing hearing, prior to the sentencing judge being appointed to continue the proceedings.
[135] In his March 8, 2018 written ruling on Mr. Aragon’s constitutional challenge, the sentencing judge appended a footnote relating to his decision that only Dr. McMaster would be recalled. It read, “I advised counsel in court I would provide further reasons, but there was no need for such.” This footnote was recopied into the sentencing decision.
[136] With respect, the sentencing judge failed to provide sufficient reasons for his decision to recall only Dr. McMaster, and not the remaining witnesses Mr. Aragon sought to have recalled. When his comments are taken as a whole, it is evident that the sentencing judge ventured only two explanations: (1) in denying the application relating to witnesses other than Dr. McMaster, he said that Dr. McMaster was an important witness who had provided lengthy testimony such that he should be recalled as an “indulgence”, and “out of an abundance of fairness”; and (2) he said that he had read the evidence of the other witnesses and it was not necessary to call them. With respect, neither explanation is sufficient. At best, explanation (1) simply implies that the same “indulgence” that was warranted for Dr. McMaster was not warranted for other witnesses, while explanation (2) fails entirely to disclose an intelligible pathway that the sentencing judge took to reach the decision that he did.
[137] Moreover, no reasons were provided relating to the scope of discretion or the legal standard that should be applied in determining whether witnesses should be recalled where proceedings have been continued pursuant to s. 669.2 of the Criminal Code. I am persuaded that the reasons offered on the viva voce evidence ruling were legally insufficient.
(2) The Aggravated Factual Findings Ruling
[138] I have already described the aggravated factual findings ruling. This ruling had to be made before the parties could proceed to sentencing, since they needed to know the factual basis upon which sentencing would occur. Brief submissions were made on this interlocutory issue on February 29, 2016 and written submissions were provided on March 16, 2016. On November 8, 2016, the sentencing judge delivered a brief oral decision stating only that he “found favour with the Crown submissions”. The sentencing judge indicated that written reasons would follow.
[139] Sentencing submissions proceeded and were completed on February 24, 2017, without reasons relating to the factual findings having been released. It is evident that the parties had to rely on the Crown submissions to identify the aggravated factors relating to the index offence that would be at play during the dangerous offender hearing.
[140] When Mr. Aragon was sentenced to an indeterminate sentence as a dangerous offender on September 8, 2017, the reasons on the aggravated factual findings holding were still outstanding. By that point, they were required only for appeal purposes.
[141] In December 2017, defence counsel requested the written reasons relating to the dangerous offender declaration and the indeterminate sentence, which had also been delayed. At that time, he reminded the sentencing judge that the reasons on the aggravated factual findings ruling were still outstanding.
[142] The written reasons relating to the factual findings were released on March 6, 2018, approximately two years after arguments had been made, and 16 months after the sentencing judge’s oral ruling adopting the Crown’s position without explanation had been provided.
[143] When those written reasons were issued, they were brief. I appreciate that the quality of reasons is not necessarily commensurate with length, but the following description of the content of the reasons gives flavour to how cursory those reasons in fact were.
[144] The first 13 paragraphs recite the history of the proceedings, with much of the discussion dedicated to explaining the delay in the hearing, and ascribing much of that responsibility to the defence. The next eight paragraphs rehearse some of the positions of the parties. The following seven paragraphs under the heading “Some Further Comment” contain the limited analysis that is offered. The first and last of those seven paragraphs simply rehearse the sentencing judge’s agreement with the Crown position. Three of the seven paragraphs are dedicated to refuting Mr. Aragon’s claim that the Crown did not prove that the 911 call was a pocket dial, thereby leaving open the possibility that Mr. Aragon himself called 911. The penultimate of the seven paragraphs simply records that the sentencing judge’s findings are built on a review of the transcripts, exhibits, and the charge, with no specification provided.
[145] The only aggravated factual finding that is addressed directly in those seven paragraphs relates to Mr. Aragon’s role as the “principal in the severe beating”. Reference is made to what “the evidence makes […] plain” but the evidence that the sentencing judge was referring to and the inferences relied upon are not identified. The defence arguments are not addressed. As alluded to above, one of the seven paragraphs may possibly be addressing the sentencing judge’s finding that it was Mr. Aragon’s voice on the 911 audiotape, but this is not certain because the paragraph is unclear.
[146] In my view, as limited as the aggravated facts reasons are, they are not legally insufficient. As illustrated above, it is possible to discern the legal standard the sentencing judge applied in resolving the issues before him, and that he applied the wrong legal test. The problem I am now addressing is one of factual sufficiency. I am mindful that there is a very low bar for factual sufficiency: G.F., at para. 71. However, that low bar is not met here. Beyond expressing general agreement with the Crown and rejecting the possibility that the 911 call was intentional, the sentencing judge did not explain his central finding that the jury necessarily concluded that it was Mr. Aragon’s voice that was recorded throughout the 911 call. In my view, it is not possible on the record to discern the pathway the sentencing judge took in preferring the Crown submissions. This was a live and material issue that required explanation to ensure a transparent adjudicative process in which justice can be seen to be done. The requisite explanation was lacking.
(3) The Constitutional Challenge Ruling
[147] In October 2016, Mr. Aragon brought a constitutional challenge to s. 753 of the Criminal Code. It was argued on December 5 and 6, 2016. On June 30, 2017, brief oral reasons were provided rejecting the constitutional challenge, with more expansive reasons to follow.
[148] The written reasons for that decision were provided on March 8, 2018. Those reasons span 47 paragraphs. The first 24 paragraphs recount the history of the case and have no bearing on the constitutional questions. The next 12 paragraphs describe the materials that were filed by the parties, but not the arguments made. Eleven paragraphs appear under the heading “Decision on the Constitutional Challenge”. Paragraphs 38, 41, 42, and 46 address the sentencing judge’s reasons for denying the constitutional challenge. In paragraph 38, the sentencing judge recorded that he was following the Court of Appeal for British Columbia’s decision in Boutilier and that the defence argument did not satisfy him that Boutilier was wrong or should not otherwise apply to the facts of the case. In paragraph 41, he listed paragraphs of interest from the Boutilier decision. In paragraph 42, the sentencing judge expressed agreement with the Crown that there are extensive procedural protections afforded to an offender in other sections of the Criminal Code. Those sections are enumerated but their import is not described. In paragraph 46, the sentencing judge records, “I concurred with the Crown with its argument at paragraph 66-69 of its factum”.
[149] I am of the view that the reasons for decision relating to the constitutional challenge were insufficient. The only explanations offered for rejecting a lengthy, sophisticated, complex, and multifaceted constitutional argument were (1) reliance on the Court of Appeal for British Columbia’s decision in Boutilier; and (2) agreement with the Crown that there are extensive procedural protections, and agreement with paragraphs 66-69 of the Crown argument.
[150] There will certainly be occasions where issues are narrow enough that a decision may be sufficiently explained by simply citing a precedent, but this is not one of those occasions. Mr. Aragon argued that s. 753 was “arbitrary” and “overbroad”, contrary to s. 7 of the Charter. Although there are features of the analysis in Boutilier that could be relied upon to address the arbitrariness arguments that were made, the only s. 7 challenge arguments advanced in Boutilier were that the sections were “overbroad” and “grossly disproportionate”. Therefore, the decision in Boutilier was not a complete answer to the arguments made. Even if had it been, one would have expected some explanation for why the non-binding reasoning in Boutilier would be followed.
[151] With respect to the expressions of agreement with the Crown, the existence of procedural protections cited by the Crown do not answer the heart of the constitutional arguments that were made, nor do the paragraphs cited from the Crown argument. Indeed, it appears that the sentencing judge may have cited paragraphs 66-69 of the Crown argument in error. These specific paragraphs include the last part of the British Columbia appeal Crown’s overview of the errors the trial judge was found to have made in Boutilier, and the introductory paragraph from the British Columbia appeal Crown’s analysis of the first of those errors. They offer no meaningful explanation for the sentencing judge’s decision in this case. This analysis can only fairly be illustrated by reproducing those paragraphs from the British Columbia appeal Crown’s argument here:
The first error stems from an erroneous approach to an understanding of the challenges inherent in tailoring any criminal sentence to address risks through the operation of a combination of sentencing principles including, for example, specific deterrence and rehabilitation, and where ultimate responsibility for future compliance with the law rests entirely with the offender. All sentences are forward looking and whether they succeed in preventing recidivism can never be safely predicted, let alone guaranteed.
The second error relates to the failure of the trial judge to properly appreciate the effects of designation pursuant to s. 753(1) on the liberty of the offender. Properly understood, the effects of designation on the liberty of the subject are aligned with and do not overshoot the objective of the legislation.
Both errors will be addressed in turn. (i) Identification and Management of Risk in Criminal Sentencing
Describing the sentencing of criminal offenders as an art captures both the difficulty and delicacy of assessing the moral blameworthiness of an offender’s conduct along with his unique personal circumstances, with a view to crafting a sentence that addresses multiple – and sometimes competing – principles. In varying measures, the targeted principles are both individual (rehabilitation, specific deterrence) and societal (denunciation, general deterrence) or both. Yet all are designed to protect society by impacting the offender or other community members.” [Emphasis in original.]
[152] To be clear, I should not be taken as offering any opinion on the constitutional arguments Mr. Aragon made. The Court of Appeal of British Columbia’s decision in Boutilier was subsequently affirmed in the Supreme Court of Canada, 2017 SCC 64, [2017] SCC 64, [2017] 2 S.C.R. 936, which puts an end to the argument that s. 753 of the Criminal Code is overbroad contrary to s. 7, or in breach of s. 12. Arguably, that decision also holds out little hope for the remaining arbitrariness argument that Mr. Aragon advanced. Nonetheless, the sentencing judge’s written reasons for rejecting the arguments that Mr. Aragon made failed to address the live issue of arbitrariness or to furnish a meaningful explanation of the legal analysis the sentencing judge engaged in. Put simply, it is not possible to determine whether the sentencing judge applied the correct legal standards. The reasons are therefore legally insufficient.
(4) The Sentencing Decision
[153] As indicated, sentencing submissions were completed on February 24, 2017. Judgment on sentence was scheduled for June 30, 2017, but the decision was not ready.
[154] On September 8, 2017, the sentencing judge gave a brief oral decision finding Mr. Aragon to be a dangerous offender and sentencing him to indeterminate imprisonment, with written reasons to follow.
[155] In that oral decision, the sentencing judge summarized the competing bottom line positions on whether Mr. Aragon qualified as a dangerous offender. He offered no explicit conclusion on that issue, instead proceeding directly to whether a long-term supervision order, a determinate sentence, or an indeterminate sentence should be imposed. He opted for an indeterminate sentence after expressing the conclusion that Mr. Aragon could not be managed in the community without risk to the public given Mr. Aragon’s unspecified “actions […] in the past and his brutal beating of the victim in this case, accompanied with the glee in which Mr. Aragon appeared to exhibit upon the beating of [Mr. Fernandes]”. He referred later in his oral decision to the evidence of Dr. McMaster as supporting his conclusion “that Mr. Aragon would be too much of a risk to the community if he were otherwise to be placed on a determinate sentence and/or determinate sentence with a long-term supervision order.”
[156] The written sentencing reasons that would explain the sentence that had been imposed on September 8, 2017 were provided on March 14, 2018, more than one year after submissions had been made, and six months after the oral disposition had been provided.
[157] The written decision began by following the pattern identified in earlier decisions. It offered a detailed historical chronology of 29 paragraphs, many of which were copied from the sentencing judge’s earlier rulings.
[158] The following 12 paragraphs go on to describe the sentencing hearing that had taken place, including the materials that had been filed, ending with a description of the oral sentencing disposition that was imposed on September 8, 2017.
[159] The sentencing judge then offers a number of paragraphs in which he sets out to explain his decision. The content addressing the reasons in favour of an indeterminate sentence are not as detailed as one might expect, but they unfold the sentencing judge’s thinking on this issue. However, I see two matters that warrant comment.
[160] First, the reasons offered for the sentencing judge’s finding that Mr. Aragon qualifies as a dangerous offender are largely conclusory. As indicated, the sentencing judge did not attempt to explain his reasoning on this question in his oral decision. In two places in his written decision, over a total of only seven paragraphs, he addressed directly whether Mr. Aragon was a dangerous offender, finding that Mr. Aragon qualified as a dangerous offender on all three available criteria provided for in s. 753(1)(a) of the Criminal Code. He offered no direct explanation for his findings on the first two dangerous offender criteria, namely the s. 753(1)(a)(i) criterion (that there had been “a pattern of repetitive behaviour by the offender […] showing a failure to restrain his […] behaviour and a likelihood of causing death or injury to other persons […] through failure in the future to restrain his […] behaviour”) and the s. 753(1)(a)(ii) criterion (that there had been “a pattern of persistent aggressive behaviour […] showing a substantial degree of indifference on the part of the offender respecting the reasonably foreseeable consequences to other persons of his […] behaviour”). With respect to the third criterion, encompassed by s. 753(1)(a)(iii) (that Mr. Aragon’s behaviour associated with the offence for which he has been convicted was “of such a brutal nature as to compel the conclusion that the offender’s behaviour in the future is unlikely to be inhibited by normal standards of behavioural restraint”), the sentencing judge referred to the brutality of beating a man with a baseball bat about the head and body. He also noted that Mr. Aragon’s last offence involved beating a man with a golf club. Beyond this, the sentencing judge simply expressed agreement with Crown submissions, said he “reviewed the evidence [and] considered the submissions”, and stated that he found the evidence of Dr. McMaster to be “important in the context of the court’s need to assess the personality traits of the offender outside of the realm of the proven facts of his criminality.”
[161] The second concern I see relates to the fact that Mr. Aragon provided extensive submissions as to why he should not be designated a dangerous offender, and that if he was designated a dangerous offender, why an indeterminate sentence was not appropriate. The sentencing judge did not acknowledge or address those submissions directly.
[162] In simple terms Mr. Aragon argued that although the Crown could establish a pattern of repetitive or aggressive behaviour, it could not establish the likelihood that in the future he would inflict severe damage to other persons or that he would be indifferent to the reasonably foreseeable consequence of his behaviour. He also argued that the Crown had not proved the brutality required by s. 753(1)(a)(iii).
[163] Specifically, Mr. Aragon submitted that the crimes he had been convicted of were not exceptionally serious. They were among the least serious of the offences that qualified an offender for a dangerous offender designation, and Mr. Fernandes had not received life-threatening injuries. There was no evidence of the precise role that Mr. Aragon played in inflicting those injuries, or as to the current state of Mr. Fernandes’ injuries. Three others who pleaded guilty to participating in the same attack received sentences of less than two years incarceration. While I appreciate that a sentencing judge is not required to respond to every argument, I note that none of these important points were acknowledged or addressed by the sentencing judge.
[164] Mr. Aragon also submitted that he does not pose the kind of rare risk that warrants a dangerous offender designation or an indeterminate sentence. Noting that this designation is to be exceptional and used with restraint, he argued that he is not exceptionally dangerous when compared to many other offenders. He further noted that he had received a Psychopathy Checklist-Revised score that put him in the 75th percentile relative to North American offenders, such that a dangerous offender designation was unnecessary because 25% of offenders produced higher scores. In his submissions, Mr. Aragon’s counsel also closely scrutinized the evidence that Dr. McMaster provided about the limitations of the psychological tests in predicting the risk of violence, let alone serious violence. He also emphasized Dr. McMaster’s concession that Mr. Aragon’s scores likely overestimate his risk of serious violence and do not account for the effect that legal conditions could have on his behaviour. Mr. Aragon also relied on testimony furnished by Dr. McMaster that the primary causes of his criminality were dynamic – his affiliation with gangs and his substance abuse – and that he was treatable using programming, long term substance use treatment, and pharmaceuticals. Mr. Aragon had yet to receive any of these treatments. These arguments were not acknowledged or directly engaged with by the sentencing judge, beyond his finding that Mr. Aragon has not demonstrated a motive to rehabilitate, his conclusion that Mr. Aragon’s affiliation with gangs was “entrenched”, and his general dismissal of Dr. McMaster’s comments about Mr. Aragon’s treatability as “expression[s] of hope”.
[165] Mr. Aragon also cited evidence of his remorse for the crimes he has committed, his family and community support, the progress he has made while incarcerated, his impressive record of education and vocational training, and the termination of his relationship with Mr. Pammett’s daughter. The sentencing judge commended Mr. Aragon for some of these developments in his oral decision, but simply said in his written decision that “[r]egrettably there is little if anything to suggest that were Mr. Aragon returned to the community that he would be amenable to control or supervision.”
[166] Mr. Aragon relied on similar arguments to those described above to urge that even if he was found to be a dangerous offender, he should not receive an indeterminate sentence, which he argued would not be the least restrictive, proportionate and acceptable sentence. He added Dr. McMaster’s testimony that his risk of offending would be lowered by the passage of time, such that he would likely pose a lower risk of reoffending after serving a determinate sentence. The risk would lower particularly if the determinate sentence was accompanied by a long-term offender designation, a sentence that carries effective enforcement mechanisms. He emphasized that his history and profile do not place him in the small group of highly dangerous criminals who warrant an indeterminate sentence. The sentencing judge characterized Dr. McMaster’s evidence about the likely reduction in risk over time as something that “may” happen, unsupported by evidence as to “when age will assuage the risk concern.”
[167] In spite of the concerns I have described, I accept that the sentencing judge provided an intelligible path to his finding that an indeterminate sentence was required. The outcome is not so clear with respect to the finding that Mr. Aragon is a dangerous offender, but even with respect to that finding, I would not find the reasons to be insufficient.
[168] I do note that the sentencing judge failed to offer a direct explanation for why Mr. Aragon met two of the three alternative dangerous offender criteria – s. 753(1)(a)(i) and 753(1)(a)(ii). These central issues were contested during the sentencing hearing, and I see nothing in the record that can explain these conclusions. If the dangerous offender designation turned solely on these findings, I would have found the reasons to be insufficient. However, the sentencing judge also found that Mr. Aragon satisfied the third criterion – s. 753(1)(a)(iii). Although a more detailed and direct analysis would have been preferable given what was at stake for Mr. Aragon, I am not persuaded that the reasons are legally or factually insufficient. It is evident that the sentencing judge was persuaded that the attack on Mr. Fernandes was brutal and conducted with glee. In the course of his written reasons, the sentencing judge considered Mr. Aragon’s history of violence and aggression, and he identified impediments to his self-control, including his personality disorder, his history of substance abuse, his difficulties with pro-social relations and his lack of respect for the law. When the sentencing judge’s reasons are considered as a whole and in context, his pathway to the finding he made is intelligible.
C. The Remaining Issues raised by Mr. Aragon on the sentence appeal
[169] I have found that the sentencing judge erred in identifying the aggravated facts relevant to the sentencing and that he failed to provide sufficient reasons for decision relating to: (1) the viva voce evidence that the sentencing judge would hear; (2) the aggravated factual findings ruling; and (3) a constitutional challenge to the statutory provisions. As I will explain below, on the basis of these errors, I would allow the sentence appeal and set aside the dangerous offender designation and the indeterminate sentence. It is therefore unnecessary to consider whether the sentencing judge engaged in after-the-fact reasoning, or whether the s. 669.2 hearing was an unfair process and a miscarriage of justice.
[170] In the circumstances of this case, I would not attempt to determine whether the dangerous offender designation and/or the indeterminate sentence were unreasonable. Although it would ordinarily be beneficial to do so because an affirmative determination would likely result in the imposition of a final sentence by this court without the need for a rehearing, it is not in the interests of justice to address these questions. We do not have the benefit of a settled record upon which to make this determination, given the sentencing judge’s error in establishing the factual foundation relating to the index offence. In addition, one of Mr. Aragon’s complaints is that it was unfair for the sentencing judge to sentence him in the circumstances of this case without hearing from some of the witnesses. It is preferable in these circumstances and given the complexity of the record to send this matter back for a rehearing where a sentencing judge can determine the procedure and facts required to impose an appropriate sentence.
[171] Given that I would not venture into a determination of the reasonableness of the designation and/or the indeterminate sentence, I need not rule on the fresh evidence application.
D. If any of these errors occurred, should the appeal be denied because of the absence of a miscarriage of justice?
[172] I am persuaded that it would not be appropriate to deny Mr. Aragon’s appeal of his dangerous offender designation and sentence, pursuant to s. 759(2)(b) of the Criminal Code, on the basis that no substantial wrong or miscarriage of justice has occurred. This authority to deny an appeal of a dangerous offender designation is to be used rarely: R. v. Walker, 2019 ONCA 765, 381 C.C.C. (3d) 259, at para. 124. The erroneous aggravated facts ruling played a central role in the dangerous offender designation. In my view, given the uncertainties that remain surrounding the factual record, and the sentencing judge’s failure to offer sufficient explanations for important rulings made in the course of the sentencing hearing, this would not be one of those rare circumstances where this jurisdiction should be exercised.
Conclusion
[173] I would dismiss Mr. Aragon’s conviction appeal. I would allow the sentence appeal, set aside the sentence, and remit Mr. Aragon’s sentencing and the Crown’s dangerous offender application to a rehearing before a new judge.
Released: March 24, 2022 “G.R.S.” “David M. Paciocco J.A.” “I agree. G.R. Strathy C.J.O.” “I agree. C.W. Hourigan J.A.”
Footnotes
[^1]: Mr. Aragon’s counsel had agreed to the Crown relying on transcripts from his preliminary inquiry in support of its application to admit extrinsic discreditable conduct evidence. [^2]: Mr. Aragon raised a fourth point when challenging the sufficiency of the evidentiary foundation, namely that there was no evidence that Mr. Aragon was a member of the break-away motorcycle gang or that he had left the Loners on bad terms. In my view, this point is best addressed when considering whether the trial judge erred in finding that the probative value of the extrinsic discreditable conduct evidence outweighed the risk of prejudice. [^3]: In contrast, the fact that the Loners published unflattering information relating to Mr. Pammett on its website is non-hearsay circumstantial evidence of animosity between the Loners and Mr. Pammett. I will return to this point below.
