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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 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 from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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.

486.6(1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 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.

COURT OF APPEAL FOR ONTARIO

DATE: 20221215 DOCKET: C69701

Tulloch, van Rensburg and Coroza JJ.A.

BETWEEN

His Majesty the King Respondent

and

Danny Correa Appellant

Counsel: Danny Correa, acting in person Amy Ohler, appearing as duty counsel Philippe Cowle, for the respondent

Heard: October 5, 2022

On appeal from the convictions entered by Justice Carole J. Brown of the Superior Court of Justice, sitting with a jury, on October 2, 2019, and from the appellant’s designation as a dangerous offender on February 24, 2021, with reasons at 2021 ONSC 1330.

van Rensburg J.A.:

[1] The appellant was arrested on June 1, 2018 after he was seen standing on a ladder in the backyard of a house, looking through a window, while holding a cell phone. Two teenaged sisters were in the house, one in their shared bedroom, into which the appellant was peering. The appellant had lived nearby for several years, until he moved away approximately two weeks earlier. The girls’ parents had hosted a barbeque that evening for their extended family, and after driving home a guest, returned about 15 minutes later. When they entered the backyard, the father confronted the appellant, tackling him as he ran into the front yard, and holding him down until the police arrived. On the appellant’s arrest, the police seized his cell phone (on which there were no relevant images) and a backpack which contained, among other things, a second cell phone, a loaded pellet gun, a 12-foot electrical cord, a wallet in which there were two condoms, two small bottles of Vaseline, and a blanket.

[2] The appellant was charged with a number of offences: voyeurism, attempted break and enter for the purpose of committing an indictable offence, namely a sexual assault; attempted sexual assault of the girl who was in the bedroom; possession of a break-in instrument, namely a ladder; and possession of a weapon for a dangerous purpose. He was tried by judge and jury.

[3] The Crown’s theory was that the appellant had targeted the complainants’ house, knowing that two girls lived there. He found a ladder that was concealed in the backyard and propped it against the wall beneath the girls’ bedroom window to observe them and plan his next move. The Crown maintained that it was the appellant’s intention to gain access to the girls to sexually assault them and that this intention could be inferred from the entirety of the circumstances: where the appellant was when he was interrupted, how and when he got there, what he was doing, and what he had in his backpack.

[4] The defence theory was that this was a straightforward case of voyeurism. The appellant had accomplished his objective when he was found standing at the top of a ladder looking into a bedroom belonging to the two teenaged girls, holding a phone and preparing to take pictures or a video. He did not possess any items that could be used to break into a house. The only items he was carrying were in his backpack, which remained on his back and contained what defence counsel described as “a bag of junk”: a wide variety of items that had no practical purpose that evening, such as an expired passport and mail.

[5] The appellant pleaded guilty to and was convicted of voyeurism. He was also convicted of attempted sexual assault and possession of a weapon for a dangerous purpose after the jury found him guilty of those offences. He was acquitted of the charges of attempted break and enter and possession of a break-in instrument. On sentencing, the trial judge designated the appellant a dangerous offender and imposed a determinate sentence of two years in addition to his two and a half years’ pre-sentence custody, followed by a ten-year long-term supervision order (“LTSO”).

[6] The appellant appeals his convictions for attempted sexual assault and possession of a weapon for a dangerous purpose. He also appeals his designation as a dangerous offender.

[7] For the reasons that follow, I would dismiss the appeal.

The Conviction Appeal

[8] The appellant relies on three related grounds in his conviction appeal.

[9] First, he contends that the trial judge erred in permitting the Crown, in relation to the attempted sexual assault charge, to argue a theory of liability that had no basis in the evidence: namely, that the appellant might have used a lie or some type of artifice to gain entry into the house or to entice the girls to come out in order to carry out a sexual assault. Second, he argues that the convictions for attempted sexual assault and possession of a weapon for a dangerous purpose were unreasonable. Third, he asserts that his convictions for attempted sexual assault and possession of a weapon for a dangerous purpose were inconsistent with his acquittal for attempted break and enter.

[10] I would not give effect to any of these grounds of appeal. As I will explain, the appellant mischaracterizes what the Crown was required to prove in this case in respect of the attempted sexual assault charge. The jury was properly instructed that the key question in relation to this charge was the appellant’s intent: was the jury satisfied beyond a reasonable doubt that he intended to commit a sexual assault? The trial judge properly instructed the jury, after consultation with counsel, that “[i]t need not be proven for sexual assault that [the appellant] meant to break in and sexually assault. It only need be proven by the Crown that he meant to sexually assault”. The Crown was not required to prove how the appellant would complete the offence of sexual assault: United States of America v. Dynar, [1997] 2 S.C.R. 462, at paras. 64, 73; R. v. Alicandro, 2009 ONCA 133, 95 O.R. (3d) 173, at para. 24, leave to appeal refused, [2009] S.C.C.A. No. 395. By contrast, to find the appellant guilty of attempted break and enter, the jury had to be satisfied that, at the time he was interrupted, the appellant was taking steps to break into the house and intended to break in. On the evidence in this case, it was not inconsistent for the jury to be satisfied beyond a reasonable doubt on the attempted sexual assault charge but not be persuaded beyond a reasonable doubt on the attempted break and enter charge.

[11] At trial, Crown counsel said the following in his closing address to the jury:

The Crown doesn’t need to prove how [the appellant] was going to get into the house. All the Crown has to prove is that he had intention to get access to the girls in whatever the easiest way possible, whether it’s getting into the house, talking his way in, or talking the girls out, one or both of them.

[12] In setting out the Crown’s position in her jury charge, the trial judge stated:

The Crown maintains that [the appellant’s] intention [included] gaining access to the girls to sexually assault them either by surreptitiously gaining entry into the home or by a ruse to have one or both girls come out of the house.

[13] Defence counsel had raised an objection during the pre-charge conference, characterizing the Crown as putting to the jury three hypotheticals about how the appellant intended to gain access to the girls. While he argued that the first two – breaking or talking his way into the house – were supported by the evidence, the third was not. It was speculative to suggest that the appellant might have lured one or both girls out of the house in order to sexually assault them. The same argument, which was rejected by the trial judge, is made on appeal.

[14] I agree with the Crown that this was not a case of the trial judge leaving with the jury a route to conviction that was not supported by the evidence. The questions for the jury were whether the appellant committed the alleged actions that constituted an attempt to commit a sexual assault, and whether the appellant intended to commit a sexual assault.

[15] There was no dispute at trial about whether the appellant’s alleged actions constituted the actus reus of attempted sexual assault. Indeed, the trial judge, after describing the alleged conduct of the appellant having entered the backyard of the home, locating and climbing up a ladder, peering into the window, with a cell phone in his hand and wearing a backpack that contained the various items, and trying to escape when he was interrupted, specifically instructed the jury that “[p]roof beyond a reasonable doubt of the conduct I have just described is proof of an attempt ”. Pursuant to s. 24(2) of the Criminal Code, the trial judge had determined, as a question of law, that, if the appellant had the intent to commit a sexual assault, the conduct alleged was more than mere preparation to commit the offence. The trial judge instructed the jury in a legally correct manner: see R. v. Hersi, 2019 ONCA 94, 373 C.C.C. (3d) 229, at para. 45, leave to appeal refused, [2021] S.C.C.A. No. 406, citing R. v. Breese (1984), 12 C.C.C. (3d) 491 (Ont. C.A.), at p. 510. There was no discussion at the pre-charge conference about whether the appellant’s conduct went beyond mere preparation, nor was there any objection to this instruction.

[16] Accordingly, the central question for the jury in relation to the attempted sexual assault charge was whether, while on the ladder peering through the window, with his phone and backpack, the appellant had the intention to commit sexual assault. How he would gain access to the girls was not an element of the offence of attempted sexual assault. Indeed, as already noted, the trial judge specifically charged the jury that, to convict the appellant of attempted sexual assault, it was not necessary to conclude that the appellant intended to break into the house. While it is an error for a judge to instruct a jury about a route to liability that is not available on the evidence (see e.g., R. v. Alexis, 2020 ONCA 334, 388 C.C.C. (3d) 226, at para. 45), that did not happen in this case. It was only in the context of the attempted break and enter offence, of which the appellant was acquitted, that his intended method of gaining entry was a relevant consideration.

[17] This leads to the appellant’s second and third grounds of appeal: that the convictions for attempted sexual assault and possession of a weapon for a dangerous purpose were unreasonable, and that the jury’s guilty verdict on the charge of attempted sexual assault was inconsistent with their not guilty verdicts on the charges of attempted break and enter and possession of a break-in instrument.

[18] I would not give effect to these grounds. The guilty verdicts in relation to the attempted sexual assault charge and possession of a weapon for a dangerous purpose were not unreasonable or inconsistent with the not-guilty verdicts.

[19] The general test for unreasonable verdict is well-established. A reasonable verdict is one that a properly instructed jury acting judicially could reasonably have rendered: R. v. Biniaris, [2000] 1 S.C.R. 381, at para. 36. When the case depends on circumstantial evidence, “the question becomes whether the trier of fact, acting judicially, could reasonably be satisfied that the accused’s guilt was the only reasonable conclusion available on the totality of the evidence”: R. v. Villaroman, [2016] 1 S.C.R. 1000, at para. 55.

[20] There was ample evidence to support the appellant’s conviction for attempted sexual assault and possession of a weapon for a dangerous purpose. As already noted, whether the alleged conduct constituted the actus reus of attempted sexual assault was not at issue. The primary issue was the appellant’s intention. The jury had evidence of the appellant’s familiarity with the area, his entry into the backyard at night after the parents’ departure, and his retrieval and use of a ladder to peer in through the girls’ bedroom window. Although the appellant was holding out a cell phone, he had not taken any pictures or made a video recording. He was wearing a backpack that contained a loaded pellet gun, and other items that could be used to carry out a sexual assault. While the appellant pleaded guilty to voyeurism, he did not testify. The jury could have been satisfied, based on the circumstantial evidence, that the only reasonable conclusion was that he intended to commit a sexual assault and that he possessed the pellet gun for a dangerous purpose, such as to facilitate a sexual assault. And, as already noted, how he would gain access to his victim was not part of the offence, nor was the Crown required to prove how the appellant would have completed a sexual assault. The convictions were fully supported by the evidence; they were not unreasonable.

[21] Turning to the third ground of appeal, that the appellants’ convictions for certain offences were inconsistent with his acquittals on other charges, the pertinent question is “whether the verdicts are supportable on any theory of the evidence consistent with the legal instructions given by the trial judge”: R. v. Pittiman, [2006] 1 S.C.R. 381, at para. 7.

[22] Considering the evidence in this case and the elements of the various offences, the convictions for attempted sexual assault and possession of a weapon for a dangerous purpose were not inconsistent with the appellant’s acquittal for attempted break and enter. It was open to the jury to have a reasonable doubt about whether the appellant possessed the ladder as a tool to break and enter, and whether he lacked the intent to break and enter. For example, the appellant’s backpack contained nothing that he could have reasonably used to physically break into the house. It was also open to the jury to conclude that, while the appellant possessed the pellet gun for a dangerous purpose (such as to facilitate a sexual assault), that purpose was not to effect a break-in via threat. None of these findings would have prevented the jury from also being satisfied, on the evidence reviewed earlier, that the appellant had the requisite mens rea for attempted sexual assault. In other words, the verdicts were supportable on a theory of the evidence, consistent with the legal instructions given by the trial judge.

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

Sentence Appeal

[24] The appellant has served his determinate sentence and is on an immigration hold. He appeals only his designation as a dangerous offender made pursuant to s. 753(1)(b) of the Criminal Code: having been convicted of a “serious personal injury offence” as described in para. (b) of the definition of that expression in s. 752, he had shown, by his conduct in a sexual matter, a failure to control his sexual impulses and a likelihood of causing injury, pain or other evil to other persons through such a failure.

[25] The appellant had prior diagnoses of schizophrenia and pedophilia for which, at the time of the predicate offences in 2018, and his assessment in 2020, he was not taking medication or receiving any type of treatment. He had a related criminal record, having been convicted on two prior occasions of sexual offences escalating in seriousness. In 2011 he was convicted of sexual assault and received a suspended sentence and a three-year probation order after he had accosted two young women who were strangers to him in a park, made inappropriate sexual comments, and grabbed and tried to kiss one of the victims, touching her buttocks. A year later, while on probation, he was charged with sexual assault after he followed a 13-year-old girl into her apartment building, and into the elevator where he grabbed her and groped her, touching her vaginal area over her clothing. Following his conviction in July 2013, and while he was on bail for this offence, he absconded and was returned from British Columbia to Ontario. He was sentenced to 12 months’ imprisonment in 2014. Following each of the offences (including the predicate offence) the appellant underwent psychiatric assessments that, among other things, confirmed a history of schizophrenia, a diagnosis of pedophilia, minimal to no insight into his disorders, a history of non-compliance with court orders and other forms of boundary setting, a lack of stability with minimal family support, and a history of absconding from institutional settings.

[26] The appellant’s assessment pursuant to s. 752.1 of the Criminal Code was carried out by Dr. Zohar Waisman. Dr. Waisman’s report was filed, and he testified at the dangerous offender hearing. Based on his review of the prior psychiatric assessments as well as his own assessment of the appellant, including actuarial testing, he was of the opinion that the appellant had shown a failure to restrain his behaviour and his sexual impulses, that he presented with a substantial risk of re-offence, and that until he received a full complement of treatment, he would remain unable to control his sexual impulses. Dr. Waisman was also of the opinion that it would be impossible to determine with certainty that the appellant would improve with treatment. A second witness testified at the dangerous offender hearing about the treatment programs that would be available to the appellant in the federal and provincial systems and in the community.

[27] The trial judge was satisfied that the appellant met the criteria for designation as a dangerous offender under s. 753(1)(b) of the Criminal Code. The predicate offence of attempted sexual assault was a “serious personal injury offence” as defined under s. 752. She accepted the evidence that the appellant had shown in the past and continued to show a failure to control his sexual impulses. Based on all the evidence, including the uncontroverted opinion of Dr. Waisman, she was satisfied beyond a reasonable doubt that there was a significant likelihood of recidivism and causing injury, pain or other evil to others through a failure to control his sexual impulses: the appellant continued to deny that he had schizophrenia or uncontrollable sexual impulses, he had not completed any treatment that was previously offered to him, and he was non-compliant with medication. The trial judge was not satisfied that there was a reasonable possibility of eventual control of the appellant’s risk in the community. She accepted the Crown’s position that the appellant met the test for designation under s. 753(1)(b), that, in view of all the circumstances, including the relative harm suffered by the appellant’s victims and the nature of the proposed intervention and supervision, an indeterminate sentence was not required, and that the appropriate sentence would be a penitentiary term during which the necessary assessments and programs to attempt to rehabilitate the appellant could occur, followed by a ten-year LTSO.

[28] Under s. 759(1) of the Criminal Code, a person designated as a dangerous offender may appeal on any ground of law or mixed fact and law. The standard of review was articulated in R. v. Sawyer, 2015 ONCA 602, 127 O.R. (3d) 686, at para. 26, as follows:

Appellate review of a dangerous offender designation “is concerned with legal errors and whether the dangerous offender designation was reasonable”: R. v. Sipos, [2014] 2 S.C.R. 423, at para. 23. While deference is owed to the factual and credibility findings of the sentencing judge, appellate review of a dangerous offender designation is more robust than on a “regular” sentence appeal: Sipos, at paras. 25-26; R. v. Currie, [1997] 2 S.C.R. 260, at para. 33.

[29] The appellant submits that the trial judge made two reviewable errors in this case.

[30] First, the appellant contends that there was an error in the trial judge’s sentencing reasons when, at para. 53, she said: “While the predicate offence was an attempted sexual assault, as he was not able to break into or force his way into the house…”. The appellant asserts that the trial judge erred in suggesting that he was trying to break into the house, when the jury found him not guilty of attempted break and enter. It is the appellant’s position that this reflects a misapprehension of evidence by the trial judge that was material to her decision to designate him as a dangerous offender.

[31] When read in context, the impugned passage reveals no error. In the remaining portion of the sentence, the trial judge stated: “it does not diminish the incident, nor the effects on the victims, and the resulting psychological injury and pain based on their Victim Impact Statements, which were adduced in evidence at the hearing.” This was part of the trial judge’s analysis of whether the appellant met the test for a dangerous offender designation. The trial judge’s reference to the appellant’s inability to break or force his way into the house is inconsequential. Indeed, it appears to have been a response to defence counsel’s submission that the appellant had not caused pain, injury, or other evil (an element of s. 753(1)(b)) since 2012. The trial judge emphasized that the attempt had significant emotional and psychological effects on the victims, irrespective of the fact that the appellant did not complete the sexual assault.

[32] The second alleged error is that the trial judge should not have accepted Dr. Waisman’s risk assessment, when there was a six-year gap between his previous offence in 2012 and the predicate offence in 2018. The appellant asserts that the trial judge ignored evidence suggesting that he was in fact capable of controlling his sexual impulses.

[33] In fact, the trial judge was aware of defence counsel’s argument about the six-year gap, which she referred to in her reasons. While Dr. Waisman was cross-examined about various aspects of his report and opinions, he was not questioned about the six-year gap, and how it might have affected his risk assessment, nor was he cross-examined to any extent on his conclusion that the appellant posed a serious risk of re-offence. The trial judge was entitled to accept Dr. Waisman’s uncontroverted opinion about the appellant’s risk that was based on earlier psychiatric evaluations of the appellant and his own assessment in which he concluded that the appellant was acutely psychotic at the time of his assessment, with untreated schizophrenia and pedophilia, and that he would remain so without the full complement of treatment for his sexual condition, including sex-drive reducing medications. Explicit consideration of the six-year gap in the appellant’s offence history would not reasonably have affected the trial judge’s assessment and acceptance of Dr. Waisman’s opinion about the appellant’s ability to control his sexual impulses.

[34] Accordingly, I see no error and would dismiss the appeal of the appellant’s designation as a dangerous offender.

Released: December 15, 2022. “MT”

“K. van Rensburg J.A.”

“I agree M. Tulloch J.A. ”

“I agree S. Coroza J.A.”