WARNING

The President of the panel hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.4(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences;

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and

(b) on application made by the victim, the prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of their right to make an application for the order; and

(b) on application of the victim or the prosecutor, make the order.

(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18..

486.6(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. A.R., 2022 ONCA 553

DATE: 20220726

DOCKET: C67569

van Rensburg, Harvison Young and Copeland JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

A.R.

Appellant

John Fennel, for the appellant

Rebecca Schwartz, for the respondent

Heard: May 20, 2022

On appeal from the appellant’s designation as a dangerous offender and the indeterminate sentence imposed on April 13, 2018 by Justice Brian P. O’Marra of the Superior Court of Justice, with reasons reported at 2018 ONSC 2226.

van Rensburg J.A.:

A. Introduction

[1] The appellant was convicted by a judge and jury of sexual assault and choking to overcome resistance to commit an indictable offence. On the Crown’s application, he was designated a dangerous offender under s. 753(1)(a)(ii) of the Criminal Code and he received a sentence of indeterminate detention. He appeals the designation and sentence.

[2] The appellant raises two main grounds of appeal, which are related. The first is that, contrary to R. v. Boutilier, 2017 SCC 64, [2017] 2 S.C.R. 936, the sentencing judge failed to consider the appellant’s treatment prospects and intractability at the designation stage. Second, he asserts that the sentencing judge misapprehended the evidence of the court-appointed assessor regarding his main diagnosis, antisocial personality disorder. Specifically, the appellant submits that the sentencing judge misapprehended a necessary criterion for this diagnosis, a diagnosis of conduct disorder before the age of 15. The appellant’s overarching submission is that he does not fit the profile of the “very small group of offenders” for whom a dangerous offender designation and an indeterminate sentence are necessary.

[3] The Crown’s position is that the appellant’s designation and the indeterminate sentence he received are reasonable. The Crown concedes the “Boutilier error”, accepting that the sentencing judge failed to consider intractability at the designation stage, but submits that there is no reasonable possibility that the result would have been different had this error not been made. The Crown also argues that the sentencing judge did not misapprehend the evidence and that, in any event, it was open to the sentencing judge to accept the forensic psychiatrist’s conclusion that the appellant posed a high risk for violent and sexual recidivism.

[4] For the reasons that follow, I would dismiss the appeal. Although the sentencing judge did not consider intractability at the designation stage, there is no reasonable possibility that the result would have been different had this error not been made. The sentencing judge, at the penalty stage, found that there was no possibility of control of the appellant’s risk in the community based on the appellant’s diagnoses of treatment-resistant conditions, the absence of any reasonable treatment prospects, and his lack of motivation. Nor is there merit in the assertion that the sentencing judge misapprehended the evidence concerning whether the appellant had a conduct disorder before the age of 15. The appellant’s designation as a dangerous offender was fully supported by the evidence, and his sentence was appropriate and reasonable having regard to his significant risk for violent and sexual recidivism that could not be controlled in the community.

B. The Index Offences

[5] In September 2014, the appellant was convicted by judge and jury of sexual assault, contrary to s. 271 of the Criminal Code, and choking to overcome resistance to commit an indictable offence, contrary to s. 246(a) of the Code.

[6] The index offences occurred on April 28, 2013. The complainant was 21 years old and a stranger to the appellant. The appellant accosted her as she walked home from a bar at 2 a.m. Realizing that her purse was no longer on her wrist, the complainant turned and saw the appellant holding her purse and dropping items from it onto the ground. When she approached him, the appellant grabbed her by the neck and choked her until she could hardly breathe. He lifted her by the neck and dragged her between two houses, where he forced sexual intercourse on her. The complainant lost consciousness. When she regained consciousness, she was alone, with her pants and underwear around her knees. She ran down the street to her home and called 911.

C. The Dangerous Offender Proceeding

[7] On application by the Crown, the sentencing judge (who had also presided at trial) made an order pursuant to s. 752.1 of the Code remanding the appellant for an assessment by a forensic expert on the basis that he might be found to be a dangerous offender or long-term offender. Dr. Alina Iosif, a forensic psychiatrist, was appointed in 2017 to conduct the assessment. The delay between the appellant’s conviction and the sentencing hearing is explained by the fact that a different assessor had initially been appointed, but the appellant successfully challenged the admissibility of his assessment on the basis of a privilege issue. It was only then that Dr. Iosif was appointed and began her assessment.

[8] Dr. Iosif had a brief meeting with the appellant in April 2017, but he terminated the meeting after 30 minutes and withdrew his consent to speak with her. Dr. Iosif prepared a report dated May 26, 2017, based exclusively on file information.

[9] The dangerous offender hearing proceeded in September 2017, with final submissions in February 2018. Only Dr. Iosif testified at the hearing. The appellant did not testify and no evidence was presented on his behalf.

[10] The Crown sought the designation of the appellant as a long-term offender under s. 753(1)(a)(ii) of the Code, which provides as follows:

753 (1) On application made under this Part after an assessment report is filed under subsection 752.1(2), the court shall find the offender to be a dangerous offender if it is satisfied

(a) that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (a) of the definition of that expression in section 752 and the offender constitutes a threat to the life, safety or physical or mental well-being of other persons on the basis of evidence establishing

(ii) a pattern of persistent aggressive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a substantial degree of indifference on the part of the offender respecting the reasonably foreseeable consequences to other persons of his or her behaviour.…

[11] The Crown sought an indeterminate sentence, on the basis that there was no reasonable expectation that a lesser sentence, including a long-term supervision order (“LTSO”), would adequately protect the public against the appellant’s risk of violent re-offence.

[12] The defence opposed the dangerous offender designation, submitting that the court should impose a determinate sentence of five to seven years’ imprisonment, less credit for pretrial custody, and a LTSO.

D. The Sentencing Judge’s Decision

[13] The sentencing judge reviewed the appellant’s personal background. In summary, he noted that the appellant, who was 23 years old at the time of the index offences, was born in Grenada, and had come to Canada in 2008 at the age of 17. Although his siblings moved to Canada when he was a small child, he stayed in Grenada with his mother. He completed grade 10 in Grenada, leaving school at the age of 15. His mother, who was suffering from cancer, emigrated to Canada in 2007 for treatment and to live with her daughter, leaving the appellant behind. She passed away shortly after her arrival in Canada. The appellant was sponsored by his sister and arrived in Canada in 2008. He lived with his sister, her husband, and their two children. For three years prior to his arrest for the index offences, he had a common law relationship with a woman with whom he had a child.

[14] In 2011, the appellant was charged with assaulting his spouse. The charge was dealt with by the appellant’s participation in a program for counselling domestic violence abusers. He also accumulated a criminal record since his arrival in Canada, which included:

• A conviction, as a youth, for sexual interference that took place in August 2008. The complainant, the appellant’s niece, testified that the appellant sexually assaulted her on three occasions. She testified that on one occasion, the appellant threatened her either with a knife he kept on his dresser or by saying that he would tell her mother that she “came on to him”. He was sentenced to three months’ custody and two years’ probation.

• A conviction for robbery with an imitation firearm that took place in April 2013, on the day after the index offences. The appellant punched a gas station attendant and restrained him in a headlock, while carrying what appeared to be a black handgun. His co-accused also appeared to have a handgun. The appellant and his co-accused kicked the victim, stole money, and fled. The appellant was sentenced to two years less a day in prison and two years’ probation.

• A conviction for assault causing bodily harm that took place in November 2016, while the appellant was in custody awaiting sentence for the index offences. The appellant assaulted another inmate in an unprovoked attack. The victim suffered a broken jaw, swelling, bruising and scratches. The appellant received a custodial sentence of 18 months.

[15] The sentencing judge outlined the expert opinion evidence of the court-appointed assessor, Dr. Iosif. Because the appellant withdrew his consent to speak with Dr. Iosif, her assessment was based on file information, including the appellant’s criminal record; transcripts of evidence, including the evidence of the complainant in relation to the index offences; and the results of phallometric tests. Dr. Iosif also had access to a 2008 pre-sentence report authored by the appellant’s probation officer, Rebecca Hayward-Moon, in relation to the 2008 sexual interference conviction; a 2008 court-ordered psychiatric assessment by Dr. Alex Luczak; and probation officer records from the period between 2008 and 2010.

[16] Dr. Iosif concluded that the appellant’s risk for violent and sexual recidivism was high and that the prognosis for risk control in the community was “very guarded”. She made four psychiatric diagnoses: (a) antisocial personality disorder; (b) cannabis use disorder; (c) narcissistic traits; and (d) paraphilia not otherwise specified (a sexual preference for coercion or rape).

[17] With respect to treatment, Dr. Iosif explained that the appellant’s antisocial personality disorder and paraphilia were “not treatable per se” and were lifelong conditions. She observed that the appellant was not particularly interested in curbing his impulses through counselling or re-education, and that he did not appear to have much remorse or insight into how his behaviour had affected others.

[18] Dr. Iosif assessed the appellant’s probabilistic risk of recidivism using several actuarial tools, including the PCL-SV, the SORAG, and the STATIC-99. The appellant scored in the highest risk category on these three tools. Dr. Iosif opined that a long-term supervision order would not suffice to manage the appellant’s risk. She testified that the appellant would be in his thirties at the end of a 10-year LTSO, which would still be within his sexual prime and at the high point for a possibility of reoffending violently.

[19] Dr. Iosif explained in her testimony that a diagnosis of conduct disorder prior to the age of 15 is a necessary precursor to the diagnosis of antisocial personality disorder. The sentencing judge rejected the defence argument that Dr. Iosif failed to address the informational gaps and deficiencies pertaining to the appellant’s childhood, yet relied on that information to ground a diagnosis of conduct disorder before the age of 15. The problem was that some of this information came from the appellant’s sister and had been conveyed to Dr. Iosif through Ms. Hayward-Moon’s 2008 pre‑sentence report. The defence argued that Dr. Iosif failed to take into account the sister’s “obvious bias” against the appellant. The sentencing judge observed that forensic psychiatrists routinely rely on information they have received indirectly from other sources, and was satisfied that Dr. Iosif had an informational basis to consider whether there was a conduct disorder problem in the appellant’s childhood.

[20] The sentencing judge found that the appellant’s criminal conduct demonstrated “an escalating pattern of persistent aggressive behaviour”, which began with the sexual interference he committed against his niece in 2008, continued to the index offences, the “nasty robbery” of a gas station attendant the day after the index offences, and the unprovoked attack on an inmate while the appellant was in custody. The sentencing judge found that the appellant must have been aware of the immediate pain and distress that each incident of physical domination and harm caused the victims, yet he had expressed “little or no remorse and appear[ed] indifferent to the suffering he [had] caused”: at para. 67. He found that this was a pattern of the “use of overwhelming force in a physical attack, with or without a sexual aspect”: at para. 67. On this basis, he was satisfied that the appellant was a dangerous offender as defined in s. 753(1)(a)(ii) of the Criminal Code.

[21] The sentencing judge then considered the appropriate sentence. He rejected the defence submission that Dr. Iosif’s risk assessment was flawed and should be discounted in considering the appellant’s potential manageability in the community, and that a LTSO would adequately protect the public. He concluded that Dr. Iosif’s report and evidence painted “a grim portrait of the danger that [the appellant was] at high risk to reoffend violently and sexually over the long term”, and that the court had no indication that he was “motivated to address the grave threat he [presented] to other persons, specifically women, over the near and long term”: at para. 72. He stated that “the most ominous aspect of this hearing is the very high probability that [the appellant] will act out in a violent, coercive way sexually toward females”, and concluded that he had “no confidence and no basis to believe that any disposition short of an indeterminate sentence” would adequately protect the public from a further serious injury offence: at para. 73.

E. Issues and Discussion

[22] There are two issues on the appeal, which can be summarized as follows:

1. What is the effect of the sentencing judge’s “Boutilier error”? In particular, was there a sufficient evidentiary basis to conclude beyond a reasonable doubt that the appellant’s violent pattern of conduct was intractable?

2. Did the trial judge misapprehend the material evidence regarding the necessary precursor to the appellant’s primary diagnosis of antisocial personality disorder?

[23] I will address each issue in turn.

(1) The “Boutilier Error” and Intractability

[24] The appellant contends that, at the designation stage, the sentencing judge did not find that the appellant could not ameliorate his risk through treatment, and he failed to address whether the appellant’s behaviour was intractable (in the sense that it was behaviour that he was unable to surmount: Boutilier, at para. 27). These failures are errors of law. The finding of intractability must be proved by the Crown beyond a reasonable doubt. The appellant also asserts that, to the extent that this finding was made at the penalty stage, it was not supported by the evidence. Therefore, he submits that there is a reasonable possibility that he would not have been designated a dangerous offender had the “Boutilier error” not been made.

[25] The Crown concedes that the sentencing judge erred in failing to consider the appellant’s future treatment prospects and intractability at the designation stage of his analysis. The Crown points out that Boutilier was released shortly before the sentencing judge rendered his decision, and neither party drew his attention to its significance or made submissions regarding intractability in relation to the dangerous offender designation. The Crown asserts, however, that the Boutilier error had no impact on the appellant’s designation as a dangerous offender, since the reasons read as a whole and in the context of the record demonstrate that the sentencing judge would have reached the same conclusion if he had expressly considered the treatment evidence at the designation stage.

[26] At the designation stage, a judge must consider whether the offender’s treatment prospects are “so compelling” that they cast doubt on whether the offender poses a high likelihood of harmful recidivism: Boutilier, at paras. 42-46. Although the sentencing judge did not expressly engage in this analysis at the designation stage, he concluded at the penalty stage that the appellant posed a grave threat to other persons, specifically women, and that there is a “very high probability” that he will “act out in a violent, coercive way sexually” towards women: at para. 72. The sentencing judge observed that Dr. Iosif’s report and evidence paint a “grim picture”, referred to her opinion that “there is no treatment per se” for antisocial personality disorder or for sexual preference, and found that there is no indication or basis to believe that the appellant is motivated to seek treatment and change: at paras. 57, 72. Based on the sentencing judge’s findings at the penalty stage, and reading his reasons as a whole, there is no reason to believe that the sentencing judge’s assessment of the appellant’s risk of violently reoffending would have been different if he had considered the appellant’s treatment prospects and intractability at the designation stage: R. v. Brown, 2021 ONCA 678, 158 O.R. (3d) 275, at para. 60, leave to appeal to S.C.C. refused, 40015 (May 12, 2022); R. v. R.S., 2020 ONCA 765, 153 O.R. (3d) 185, at paras. 28-38; R. v. Gracie, 2019 ONCA 658, 147 O.R. (3d) 385, at paras. 37-38, 41; and R. v. Sawyer, 2015 ONCA 602, 127 O.R. (3d) 686, at para. 37.

[27] In this regard, I would not give effect to the appellant’s argument that the evidence at the dangerous offender hearing did not support a finding of intractability. There are two parts to this argument. First, the appellant contends that the sentencing judge ignored the treatment the appellant had completed while awaiting sentencing (anger management, managing stress, setting up a budget, and substance use), and the period from 2008-2013 when the appellant resided in the community without a violent offence. The appellant argues that this evidence provided some foundation for the idea that he could surmount his violent behaviour and that, had it been considered, there is a reasonable possibility that he would not have been designated a dangerous offender.

[28] Contrary to the appellant’s submission, the sentencing judge’s conclusion that there was no basis to believe that the appellant was motivated to seek treatment and change was well-supported by the evidence, and the sentencing judge did not ignore material evidence. The evidence included the appellant’s diagnoses of treatment-resistant conditions of antisocial personality disorder (discussed further below) and paraphilia, his lack of remorse and insight (based on the evidence of his probation officers, including the appellant’s own comments to them), his history of disobeying court orders (also shown in the probation records), and his previous lack of commitment to treatment (which included a mandatory sexual offender program in 2008 that he attended sporadically before being demitted for non-attendance). The only treatment the appellant had completed was four brief programs while awaiting sentencing on the index offences, which, according to Dr. Iosif, provided “very little predictive value” regarding his future treatment prospects, and in any event demonstrated no change in behaviour: the programs were completed before the appellant committed an assault causing bodily harm in which he broke an inmate’s jaw in an unprovoked attack.

[29] Further, the five years during which the appellant lived in the community without violent offending, while a relevant consideration, does not change his risk profile or undermine the evidence of intractability. The appellant breached multiple conditions of his probation order, including failing to comply with reporting requirements, deceiving his probation officer about his enrollment in an education program, failing to attend and participate in treatment, and possessing weapons despite being subject to a weapons prohibition. Contrary to the appellant’s assertion, the time he spent in the community does not undermine the conclusion, which was available on the totality of the evidence before the sentencing judge, that the appellant’s violent behaviour is intractable.

[30] The second part of the appellant’s argument relies on the statement in Boutilier that a dangerous offender designation is a finding of last resort, reserved for a “very small group of offenders”. He contends that it was premature to say that his violent conduct was intractable. He does not fit the profile of the typical dangerous offender: he had never received a penitentiary sentence and, accordingly, had not had any real opportunity for intensive treatment.

[31] The appellant’s counsel invites this court to recognize what he acknowledges is a new principle, without precedent in the jurisprudence. Although he acknowledges that a first offence can suffice for a dangerous offender designation, he submits that an offender should have multiple opportunities for treatment, such as the intensive treatment available in a penitentiary setting, before a court concludes that their violent conduct is treatment-resistant and intractable.

[32] I agree with the Crown’s submission that this argument runs contrary to the purpose of the dangerous offender regime, and the requirement that there be more than a speculative hope that proposed treatment or other measures will mitigate an offender’s risk.

[33] The objective of the dangerous offender regime is the protection of the public from the risk of violent harm: R. v. Johnson, 2003 SCC 46, [2003] 2 S.C.R. 357, at para. 29. This requires evidence of treatability that is more than mere speculative hope and indicates that the specific offender can be treated within an ascertainable time: R. v. McCallum (2005), 2005 CanLII 8674 (ON CA), 201 C.C.C. (3d) 541 (Ont. C.A.), at para. 47, leave to appeal to S.C.C. refused, [2006] S.C.C.A. No. 145; R. v. Little, 2007 ONCA 548, 87 O.R. (3d) 683, at para. 42, leave to appeal refused, [2008] S.C.C.A. No. 39; and R. v. Grayer, 2007 ONCA 13, 215 C.C.C. (3d) 505, at para. 67. It would be speculative at best to conclude that the appellant’s risk could be controlled after his release because he would have had access to programming in a federal penitentiary.

[34] In this case, the dangerous offender designation and the indeterminate sentence imposed were an entirely reasonable disposition in light of all the evidence, including the appellant’s high risk of recidivism and his lack of treatment prospects. The sentencing judge was entitled to find that an indeterminate sentence was necessary to protect the public. Dr. Iosif testified that a ten-year LTSO, “even with the best of dynamic factors and supervision – as much supervision as one can provide for [the appellant], does not change his risk long-term”. The sentencing judge properly acknowledged the gravity of a dangerous offender designation and an indeterminate sentence, and there is no basis for this court to interfere with his determinations.

(2) Alleged Misapprehension of Evidence

[35] The appellant contends that the sentencing judge misapprehended the evidence when he accepted Dr. Iosif’s opinion that his primary diagnosis was antisocial personality disorder without also concluding that he had a conduct disorder prior to the age of 15. First, the appellant asserts that the sentencing judge lost sight of the need to make this finding when, at para. 50 of his reasons, he referred to Dr. Iosif’s opinion that all the criteria for antisocial personality disorder were met, but left out her important statement that a diagnosis of conduct disorder prior to the age of 15 is a necessary precursor to a diagnosis of antisocial personality disorder. Second, the appellant submits that the sentencing judge failed to appreciate the uncertainty in the evidence regarding whether the appellant met the criteria for conduct behaviour prior to the age of 15. These misapprehensions concerned the appellant’s “primary” diagnosis of antisocial personality disorder, which was essential to Dr. Iosif’s opinion for why his treatment prospects were bleak. The appellant submits that there is a reasonable possibility that he would not have been designated a dangerous offender without this error.

[36] I would not give effect to the argument that the sentencing judge misapprehended the evidence as alleged by the appellant.

[37] First, the sentencing judge did not misapprehend the diagnostic criteria for antisocial personality disorder. Dr. Iosif testified that conduct disorder is a diagnosis that pertains to a young person, up to the age of approximately 16. She stated that, according to the DSM-V, a diagnosis of conduct disorder before the age of 15 is considered a precursor for a diagnosis of antisocial personality disorder in adulthood. Although Dr. Iosif acknowledged that there was not a lot of information about the appellant’s childhood, she was satisfied that she was able to make the diagnosis of conduct disorder that was necessary for the diagnosis of antisocial personality disorder on the basis of the information she reviewed. She said:

We don’t have a great deal of information about [the appellant’s] early years, in terms of meeting the conduct disorder requirement for that diagnosis, but the information that does come through in the file and from collateral sources in the file, such as [the appellant’s] sister, as well as assessments by the probation officers, pre-sentence assessments and also the psychiatric risk assessment that [the appellant] had before myself by Dr. Luczak, is that he exhibited a variety of – of problematic behaviour starting from an early age. He was certainly in an in pauperis and neglected family situation and that would have contributed, doubtlessly, but that does not mitigate the breadth of conduct disorder symptoms that [the appellant] appears to have had in early childhood and youth, including things such as aggression, fire setting, lying, disruptive behaviour in school, carrying knives, being arrested reportedly several times in Grenada where he is originally from. So I felt that, even with the limited amount of information that was available to me, what was there did meet the criteria for the conduct disorder requirement.

[38] Contrary to the appellant’s assertion, the sentencing judge did not ignore the conduct disorder issue. He specifically dealt with the argument as it was raised at first instance, which was that there was no basis for Dr. Iosif’s diagnosis of conduct disorder prior to the age of 15, given that the bulk of the collateral information provided by the appellant’s sister about his childhood was “unsubstantiated and unverified”, and that his sister was biased against him because her daughter had been the victim of his sexual interference conviction. The challenge was to the reliability of the information, not, as framed on appeal, to whether the various incidents that were reported occurred before or after the appellant was 15 years old. Indeed, this was the focus of the cross-examination of Dr. Iosif on the conduct disorder issue.

[39] The sentencing judge addressed these arguments at paras. 62-65 of his reasons. He acknowledged that Dr. Iosif did not personally interview the appellant’s sister, but he noted that forensic psychiatrists routinely rely on information received indirectly from other sources. He referred to the information contained in the pre-sentence report that had been provided by the appellant’s sister. He referred to information that came from not only the sister, but also from the appellant himself, including about carrying a knife for protection, being involved in gang activity, and having been arrested (but released without being charged) several times in Grenada.

[40] Second, the sentencing judge indicated that he was satisfied that Dr. Iosif had an informational basis to consider whether there was a conduct disorder. He quoted from her evidence:

Well, what happens in situations like that is that one needs to explain how come somebody who has, you know, not any conduct problems during childhood all of a sudden meets a certain number of criteria for antisocial personality disorder in adulthood. And often what one finds is that one just doesn’t have the sources to establish the conduct disorder diagnosis. Even if there truly isn’t any evidence of conduct disorder problems in childhood, but the antisocial traits are very pronounced, one would still rely on the antisocial traits to at least say that there are strong tendencies in that regard.

[41] On appeal, the appellant takes a different approach and suggests that the evidence did not support Dr. Iosif’s assumption that conduct disorder was present before the appellant was 15 years old. The appellant says that Dr. Iosif made an unjustified assumption that because the appellant had all the characteristics of someone with antisocial personality disorder as an adult, he must have had a conduct disorder prior to the age of 15. He points to the following passage in Dr. Iosif’s evidence:

Q. …And sorry, just going back to the conduct disorder before I move on, the age cut-off seems to be 15 years old?

A. Yes.

Q. That’s based on the DSM?

A. Yes.

Q. Okay. I note, and you may not know – do you know when these things … took place?

A. The – I don’t know specifically when, but given that [the appellant’s] mother died when he was 16, it’s very unlikely that everything would have happened within one year between 15 and 16. So, I think that it’s likely meeting the age cut-off.

Q. Okay, but to be –

A. Again, it’s an assumption.

[42] A fair reading of this brief passage from Dr. Iosif’s cross-examination is that she was drawing an inference, based on the timing of the appellant’s mother’s death (since the information provided by the sister was based on things that her mother told her), that at least some of the behaviours suggesting a conduct disorder took place before the appellant was 15 years old. She was not, as the appellant suggests, “reasoning backwards” from the appellant’s current adult diagnosis to assume that he had a conduct disorder before the age of 15.

[43] I agree with the Crown that, although the sentencing judge did not specifically make a finding that the appellant had a conduct disorder prior to the age of 15, he accepted Dr. Iosif’s primary diagnosis of an antisocial personality disorder, and her evidence about the appellant’s conduct disorder during his “childhood” (which, consistent with Dr. Iosif’s evidence and the submissions of defence counsel, was used synonymously with “before the age of 15” in these proceedings).

[44] Moreover, the sentencing judge noted Dr. Iosif’s evidence that the appellant met all seven of the adult criteria for antisocial personality disorder, although only three are required for a diagnosis, suggesting that the presentation of the disorder is more robust. As Dr. Iosif explained in her testimony, even with very limited information about conduct disorder problems in childhood, if the antisocial traits are very pronounced one would still conclude that there are strong antisocial tendencies. Regardless of whether the evidence supported a diagnosis of conduct disorder before the age of 15, the sentencing judge was entitled to accept Dr. Iosif’s conclusion, supported by the appellant’s psychiatric diagnoses and the results of actuarial assessments, that the appellant posed a high risk of violent and sexual recidivism.

F. Disposition

[45] For these reasons, I would dismiss the appeal.

Released: July 26, 2022 “K.M.v.R.”

“K. van Rensburg J.A.”

“I agree. Harvison Young J.A.”

“I agree. Copeland J.A.”