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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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. Kohl, 2022 ONCA 625

DATE: 20220830

DOCKET: C68619

van Rensburg, Coroza and George JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Kevin Kohl

Appellant

Amy J. Ohler, for the appellant

Rebecca De Filippis, for the respondent

Heard: August 25, 2022

On appeal from the sentence imposed on April 15, 2019, by Justice Peter H. Wilkie of the Ontario Court of Justice.

REASONS FOR DECISION

[1] The appellant pleaded guilty to sexual assault with a weapon, unlawful confinement, choking with an intent to commit sexual assault, and uttering threats to cause death. He was designated a dangerous offender pursuant to ss. 753(1)(a)(i), 753(1)(a)(ii), and 753(1)(b) of the Criminal Code, R.S.C. 1985, c. C-46 and the sentencing judge imposed an indeterminate sentence.

[2] The appellant appeals from his sentence alone and makes two submissions: (i) the sentencing judge erroneously focused on whether the appellant could be cured of his addictions and not whether his risk could be properly managed; and (ii) the sentencing judge erred in not considering options for a higher level of community supervision under a long-term supervision order.

[3] At the conclusion of the hearing, we dismissed the appeal with reasons to follow. We now provide our reasons.

Background

[4] On September 15, 2015, the appellant attended a Canadian Tire store in St. Catharines and lured a 19-year-old employee towards a washroom. The appellant pulled the employee inside, locked the door, and forcibly confined her in a seven square foot space containing a sink and a single toilet. The appellant then assaulted the employee by striking and choking her and forced her to engage in sexual acts while wielding a hypodermic needle, threatening her with bodily harm and death if she did not comply. The appellant was under the influence of drugs, principally cocaine, at the time.

[5] Following the plea of guilty to the predicate offences, the Crown applied to have the appellant declared a dangerous offender pursuant to s. 753. The Crown called Dr. Chaimowitz, a forensic psychiatrist who performed an assessment and prepared a Psychiatric Assessment Report of the appellant pursuant to s. 752.1. Dr. Chaimowitz testified that if released, the appellant was likely to re-offend absent interventions and oversight and it was a medical certainty that he would re-offend if he used drugs. Dr. Chaimowitz was of the view that if placed in the community, the appellant would have to be closely monitored in all aspects of his life and that the most likely scenario was that the appellant would face a stressor in the community and would respond by abusing substances. This would markedly increase the risk of engaging in criminal activity including violence.

[6] The defence called Dr. Fedoroff, a forensic psychiatrist who also performed an assessment of the appellant. The sentencing judge found that Dr. Fedoroff’s report did not address treatability and management in a meaningful way. Furthermore, Dr. Fedoroff expressed uncertainty whether the appellant’s risk could be managed within a fixed period of time and indicated that the appellant’s risk would need to be managed indefinitely.

[7] In his reasons for sentence, the sentencing judge reviewed the appellant’s lengthy criminal history which included prior convictions for violence, including sexual assault. He found that the appellant’s criminality was directly connected to his substance abuse, which was intractable. He was satisfied that the appellant met the criteria for designation as a dangerous offender under s. 753(1)(a)(i) and (ii), and that the predicate offence provided evidence of sexual offending where the accused had shown a failure to control sexual impulses and that he would fail to do so in the future and thereby cause injury or pain to others (s. 753(b)).

[8] The sentencing judge then addressed the issue of the appropriate sentence. He determined that a determinate sentence alone would not adequately protect the public given the appellant’s repeated offending, even while supervised. He further determined that adding a long-term community supervision order would not reduce the appellant’s risk to an acceptable level, given his intractable drug use and relapses even while under supervision. He concluded that the risk posed by the appellant could not be reduced to an acceptable level within a specific period of time and there was no reasonable expectation that a measure lesser than an indeterminate sentence would protect the public.

Analysis

[9] It is not disputed that the standard of review on s. 759 appeal is “somewhat more robust” than other sentence appeals, but it is not a hearing de novo: R. v. Sipos, 2014 SCC 47, [2014] 2 S.C.R. 423, at para. 26.

[10] The appellant makes two specific submissions. First, he argues that the sentencing judge improperly focused on whether the appellant could be cured of his addictions, and not whether his risk could be safely managed in the community. We do not accept this submission.

[11] As the sentencing judge noted throughout his comprehensive reasons, the appellant’s substance abuse was the source of his violent criminal conduct. It is no surprise then, that the focus of the hearing became the appellant’s risk of violent recidivism while he was on drugs and whether that substance abuse could be controlled.

[12] Dr. Chaimowitz described the drug use as “almost relentless” and an almost “inevitable component” of the appellant’s life. The sentencing judge relied on Dr. Chaimowitz’s opinions and found that the appellant’s drug use was intractable, and had continued despite multiple treatment interventions. We find no support for the appellant’s submission that the sentencing judge “set the bar too high”. Instead, the sentencing judge carefully considered the appellant’s insurmountable problem with drugs which was directly linked to his violent acts. He found that there was no evidence of any relapse prevention plan in place or proposed that could be tailored to the appellant to manage his drug problem within a fixed period of time. Accordingly, we reject this ground of appeal.

[13] Second, the appellant argues that the sentencing judge ignored that the appellant had not been previously under the intensive supervision of a long-term supervision order in reaching his conclusion that a long-term supervision order was inadequate. The appellant points to the evidence of Dr. Fedoroff, who testified that improving the appellant’s support network in the community through participating in programs would meaningfully improve his response to treatment and reduce his risk of relapsing.

[14] We reject this submission. In his reasons for sentence, the sentencing judge grappled with Dr. Fedoroff’s evidence but concluded that it did not address the treatability issue in any meaningful way because Dr. Fedoroff had an imperfect and incomplete picture of the context and circumstances of the appellant’s past relapses. Furthermore, the sentencing judge did not ignore, but specifically considered, the evidence of Corrections Canada about the administration of long-term supervision orders, the level of supervision one might reasonably expect, and the options that exist should a breach occur. Ultimately, the sentencing judge found that the evidence left him in considerable doubt that the appellant’s risk could be reduced to a safe level through a determinate sentence and a long-term supervision order. That conclusion is amply supported by the record.

Disposition

[15] For these reasons, the appeal is dismissed.

“K. van Rensburg J.A.”

“S. Coroza J.A.”

“J. George J.A.”