Publication Ban Warning

WARNING The President of the panel hearing this appeal directs that the following should be attached to the file: An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences;

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

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

(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

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

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

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

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

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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

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

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

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

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

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

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

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

Court Information

COURT OF APPEAL FOR ONTARIO

DATE: 20220916

DOCKET: C70202

Trotter, Thorburn and Favreau JJ.A.

BETWEEN

His Majesty the King Respondent

and

A.T. Appellant

Counsel: A.T., appearing in person Ian Kasper, appearing as duty counsel Avene Derwa, for the respondent

Heard: September 9, 2022

On appeal from the sentence imposed by Justice Jane E. Kelly of the Superior Court of Justice on October 29, 2021, with reasons reported at 2021 ONSC 7059.

Reasons for Decision

Background

[1] The appellant was convicted of aggravated sexual assault, aggravated assault, forcible confinement, overcoming resistance to commit sexual assault, and being unlawfully in a dwelling to commit an indictable offence.

[2] The sentencing judge described the incident as “brutal and horrific”. The appellant attended the home of a sex worker and immediately upon entering her home, “punched [the complainant] in the face several times, choked her a number of times, tied her wrists, wrapped duct tape around her head, covering her mouth, attempted vaginal intercourse, digitally penetrated her, forced her to take two tablets, and eventually bound her hands to her feet before leaving the unit.”

[3] After considering the appellant’s lengthy criminal record including the pattern of assault and harassment of a number of prior domestic partners, his personal history, medical, WSIB and correctional records, and the forensic psychiatrist, Dr. Mark Pearce’s diagnosis, he was sentenced to eight years in custody less 4 years 5 months of presentence custody with credit “enhanced at 1.5 days for each day spent in presentence custody”. This resulted in a further sentence of 3 years 7 months followed by a 10-year long-term supervision order (“LTSO”).

[4] The appellant appeals the LTSO on the following grounds:

[5] First, he claims the sentencing judge erred in her assessment of whether the appellant posed a “substantial risk of reoffence”, one of the requirements for a LTSO as set out in s. 753.1(2)(b) of the Criminal Code, because the sentencing judge did not consider Dr. Pearce’s assessment of his risk to reoffend.

[6] Second, he claims the 10-year LTSO was too long as Dr. Pearce’s assessment of the appellant’s likelihood of reoffence being “moderate to high” should be lower given that the risk was assessed primarily on a Static-99R assessment and that the risk of reoffending meaningfully decreases as people over 60 are much less likely to commit such offences: R. v. Hogg, 2011 ONCA 840, at paras. 37-40; R. v. White, 2022 BCCA 91, at paras. 94-98; and R. v. S.W.P., 2020 BCCA 373, at paras. 56-57.

[7] Third, he claims the sentencing judge erred in her treatment of his request for Duncan credit for particularly harsh pre-sentence custody conditions as she failed to explain (1) whether the appellant’s pre-sentence custody conditions met the threshold in Duncan, and if they did, (2) what effect that would have on the sentence: R. v. Marshall, 2021 ONCA 344, at paras. 42-43, 50-53 and R. v. Bristol, 2021 ONCA 599, at paras. 11-12.

[8] Before imposing a LTSO pursuant to s. 753.1 of the Criminal Code, the court must be satisfied that,

a. it would be appropriate to impose a sentence of imprisonment of two years or more for the offence for which the offender has been convicted;

b. there is a substantial risk that the offender will reoffend; and

c. there is a reasonable possibility of eventual control in the community.

[9] There is no dispute that the first requirement for a LTSO order had been met: a sentence exceeding two years was appropriate given the circumstances of the offence, the vulnerability of the victim and the traumatic effect on her, and the appellant’s criminal record.

[10] The sentencing judge then assessed whether the second requirement had been met, namely, that there was a substantial risk the offender would reoffend. After noting that the “pattern of repetitive behaviour” has to “contain enough of the same elements of unrestrained dangerous conduct to be able to predict that the offender will likely offend in the same way in the future”, she reviewed the appellant’s lengthy criminal record and the circumstances underlying those offences.

[11] The sentencing judge specifically referenced eight of the appellant’s prior convictions. She noted that the appellant had four prior assault convictions and four prior harassment convictions involving female domestic partners. The sentencing judge held that this “past behaviour shows a likelihood of him causing injury to other persons or inflicting severe psychological damage on other persons and in particular, women.” Although she recognized that the offences for which he was being sentenced “differ from past offences, there is a pattern of abuse demonstrated by [the appellant’s] aggressive conduct toward vulnerable, female victims.”

[12] The sentencing judge also reviewed Dr. Pearce’s report at length and noted that “Dr. Pearce suggested that [the appellant] presents a substantial risk of recidivism.” The sentencing judge appreciated that “advancing age may reduce the risk of recidivism of sexual offences [although] domestic violence offences may be less likely to burn out with age.” In the appellant’s case, it is notable that the offences for which the appellant is now being sentenced are his most serious convictions and were committed when the appellant was fifty years old. Finally, the sentencing judge noted Dr. Pearce’s finding that the appellant had “not participated in sexual offender treatment.”

[13] This evidence is sufficient to satisfy the second requirement that there is a substantial risk that the appellant will reoffend.

[14] Second, the sentencing judge went on to hold that there was “a reasonable possibility of eventual control in the community” but that a 10-year LTSO was necessary in light of Dr. Pearce’s conclusion that the appellant’s risk for sexual reoffending is moderate to high. The appellant elected not to participate in the assessment conducted by Dr. Pearce. The sentencing judge reviewed Dr. Pearce’s assessment at some length:

Dr. Pearce did not score [the appellant] on the PCL-R, the SORAG, the VRAG, or the DVRAG tests because he did not have enough information to accurately score [the appellant] on these instruments. However, Dr. Pearce was able to predict the likelihood of [the appellant] committing a future sexual offence using the Static-99R, an actuarial instrument. He concluded as follows, at page 35:

On the Static-99R, he scored +4. This is a moderate to high score (also known as an above average risk score) and places him at the 80th percentile. The score suggests a moderate to high risk of future sexual offence. Similarly scoring individuals committed a new sexual offence at a rate between 18% and 30% over 10 years of opportunity.

When Dr. Pearce was cross-examined during this proceeding, he testified that there was a margin of error of +1 or -1 in relation to the Static-99R. As a result, if the score for [the appellant] was +3, he fits with similar offenders who showed a 15% to 24% risk to reoffend. A score of +5 suggests that he would fit in with similar offenders who showed a 23% to 36% risk to reoffend.

After reviewing [the appellant’s] offence history, Dr. Pearce concluded as follows at pp. 35 and 36 of his report:

This was [the appellant’s] first sexual offence, at age 50. The offences were very serious and included significant aggression. Thus, he may commit a severe sexual offence in the future though it is not clear that he will re-offend imminently or frequently. This gentleman has most often (albeit not exclusively) been aggressive, threatening and harassing towards former partners. However, this has not been the case in some years thus perhaps his future risk of same has decreased as he has aged. While his history of domestic violence is of concern, they are not the most serious offences I have encountered.

Overall, Dr. Pearce concluded that it is difficult to predict [the appellant’s] risk of future domestic violence. His risk for sexual re-offending is moderate to high, as per the Static-99R.

[15] In addressing the necessity for a 10-year LTSO, the sentencing judge relied not only on the fact that the appellant committed the most serious of his convictions at the age of fifty and had not participated in sexual offender treatment, but also on Dr. Pearce’s observations that the appellant “rarely participated in other therapy”, “responded poorly to supervision in the past”, “has reoffended while subject to supervisory court orders”, had several substance abuse disorders, and has “personality problems [which] will require substantial intervention”. As such, while the sentencing judge accepted that “there are some reasons for optimism that this gentleman will be manageable in the community while subjected to an LTSO and in particular, after the expiry of such an Order”, she also accepted Dr. Pearce’s conclusion that “a 10-year LTSO would give [the appellant] the best chance of being managed in the community.” Moreover, while Dr. Pearce’s assessment was based on the Static-99R and did not include a personal assessment based on information from the appellant, this was because [the appellant] had chosen not to participate in the assessment.

[16] Given these findings, there is no basis to interfere with the 10-year LTSO.

[17] Third, the appellant submits that the sentencing judge failed to give him “Duncan” enhanced credit for what he claims were particularly harsh pre-sentence conditions: R. v. Duncan, 2016 ONCA 754. As noted by this court in R. v. Marshall, 2021 ONCA 344, at paras. 50-53:

“Duncan” credit is given on account of particularly difficult and punitive presentence custody conditions. It must be borne in mind the 1.5:1 “Summers” credit already takes into account the difficult and restrictive circumstances offenders often encounter during pretrial custody: Summers, at paras. 28-29. The “Duncan” credit addresses exceptionally punitive conditions which go well beyond the normal restrictions associated with pretrial custody. The very restrictive conditions in the jails and the health risks brought on by COVID-19 are a good example of the kind of circumstance that may give rise to a “Duncan” credit: R. v. Morgan, 2020 ONCA 279.

The “Summers” credit is calculated to identify and deduct from the appropriate sentence the amount of the sentence the accused has effectively served by virtue of the pretrial incarceration. The “Summers” credit is statutorily capped at 1.5:1.

The “Duncan” credit is not a deduction from the otherwise appropriate sentence, but is one of the factors to be taken into account in determining the appropriate sentence. Particularly punitive pretrial incarceration conditions can be a mitigating factor to be taken into account with the other mitigating and aggravating factors in arriving at the appropriate sentence from which the “Summers” credit will be deducted. Because the “Duncan” credit is one of the mitigating factors to be taken into account, it cannot justify the imposition of a sentence which is inappropriate, having regard to all of the relevant mitigating or aggravating factors.

[18] In his submissions, the appellant’s trial counsel himself noted that the “Duncan” credit is not a deduction from the otherwise appropriate sentence, but is one of the mitigating factors to be taken into account in determining the appropriate sentence. In her sentencing reasons, the sentencing judge carefully outlined the appellant’s medical ailments and the treatment for those medical conditions while the appellant was in custody awaiting trial. She noted that “[the appellant] also suffers from COPD, making him extremely vulnerable to the COVID-19 virus. He has essentially been confined to the medical range, fearing repercussions should he leave it. Although the medical range has not been subject to lockdowns in the traditional sense, [the appellant] has stayed within it to avoid contracting the virus.” She went on to indicate that in calculating a fit sentence, she considered both aggravating and mitigating sentences including the fact that “[the appellant] has been incarcerated during the pandemic (although mainly in the infirmary).” After considering the aggravating and mitigating circumstances in this case, she determined that eight years was a fit sentence.

[19] While “Duncan” credit was not expressly mentioned, it is clear from her reasons that the sentencing judge considered all of the circumstances of the appellant’s presentence custody in determining a fit sentence, including the effect of COVID-19 and the lockdowns on the appellant. As such this ground of appeal fails.

[20] For these reasons, the sentence appeal is dismissed.

“Gary Trotter J.A.”

“J.A. Thorburn J.A.”

“L. Favreau J.A.”