Court Information and Parties
COURT OF APPEAL FOR ONTARIO DATE: 2023-02-23 DOCKET: C63772
Doherty, Favreau and Copeland JJ.A.
BETWEEN
His Majesty the King Respondent
and
Nicholas Wong Appellant
Counsel: Chris Rudnicki and Mark C. Halfyard, for the appellant Tracy Kozlowski, for the respondent
Heard: August 10, 2022
On appeal from the dangerous offender designation and indeterminate sentence imposed by Associate Chief Justice Faye E. McWatt of the Superior Court of Justice on November 18, 2016.
Favreau J.A.:
Overview
[1] The appellant, Nicholas Wong, shot two men in the context of a drug transaction. A jury found Mr. Wong guilty of two counts of attempted murder with a firearm and a number of other related offences.
[2] The Crown sought to have Mr. Wong designated as a dangerous offender pursuant to s. 753(1) of the Criminal Code, R.S.C. 1985, c. C-46. Mr. Wong’s criminal record included a conviction for assault and convictions for possession of a firearm.
[3] The sentencing judge found that Mr. Wong is a dangerous offender and she sentenced him to an indeterminate sentence. In her decision, the sentencing judge found that the firearm possession offences formed part of a pattern of repetitive behaviour and persistent aggressive behaviour as required by ss. 753(1)(a)(i) and (ii) for designation of a dangerous offender.
[4] Mr. Wong appeals his designation as a dangerous offender. He argues that the sentencing judge erred by considering the firearm offences as part of the pattern of offences relevant to the analysis under ss. 753(1)(a)(i) and (ii) of the Criminal Code. He also argues that the sentencing judge erred in admitting expert evidence on his gang affiliation and in admitting evidence that the firearm he used in committing the predicate offences had been used in several prior shootings.
[5] I would dismiss the appeal. In my view, the sentencing judge did not commit any errors in finding that Mr. Wong meets the criteria for designation as a dangerous offender, nor did she commit any reversible errors in admitting the evidence she considered in arriving at that conclusion.
Background
Mr. Wong’s background
[6] Mr. Wong was born on June 23, 1986. Mr. Wong grew up with his mother and brother. His father was incarcerated for many of Mr. Wong’s earlier years, and he was then deported to Jamaica when Mr. Wong was 10 years old.
[7] Mr. Wong had behavioral and attendance issues starting in middle school. He stopped attending school in grade 9.
[8] At the time of the dangerous offender hearing, Mr. Wong had 22 convictions on his criminal record, including some youth convictions and the convictions for the predicate offences. The convictions prior to the predicate offences include the following:
a. Mr. Wong was convicted of threatening bodily harm at the age of 13. The threats were made against his mother. He verbally threatened to punch and shoot his mother, and he raised his fist at her.
b. In 2003, when he was 16 years old, Mr. Wong was convicted of unauthorized possession of a prohibited weapon. At the time of his arrest, the police responded to a call that someone in a truck had pointed a gun at the complainant’s face. The police located the truck. Mr. Wong was in the truck with two other people. When searching Mr. Wong, the police found a loaded handgun in Mr. Wong’s front pocket. The police also found another loaded firearm and marijuana in the truck.
c. In 2007, when Mr. Wong was 21 years old, he was convicted of assaulting an intimate partner. He was seen by neighbours grabbing his girlfriend by the arm and hair and trying to pull her back into a dwelling. His girlfriend sustained small injuries to her face.
d. In 2007, Mr. Wong was convicted of possession of a loaded firearm. While patrolling a housing complex, the police saw Mr. Wong throw a handgun into some bushes. The police recovered the handgun and found that it was loaded. At the time of the offence, Mr. Wong was under a weapons prohibition.
e. In 2008, when Mr. Wong was 22 years old, he was convicted of possession of a firearm or ammunition contrary to a prohibition order and of weapons trafficking. These convictions arose out of a broader investigation referred to as “Project Kryptic”. In the context of the investigation, the police intercepted telephone communications showing that Mr. Wong was engaged in trafficking firearms, planning robberies and planning revenge on rivals. The police executed a search warrant at the apartments of Mr. Wong’s girlfriend and mother, where they found multiple rounds of ammunition. The ammunition at the girlfriend’s apartment was in a shoe box found close to a sleeping infant. At the time, Mr. Wong was subject to a weapons prohibition.
[9] Besides these offences, Mr. Wong also has convictions for trafficking in marijuana and cocaine, for failing to comply with recognizance and probation orders, and for obstructing a police officer.
The predicate offences and convictions
[10] The predicate offences occurred on April 10, 2010. Mr. Wong was 24 years old at the time.
[11] While in custody for the convictions related to the Project Kryptic investigation, Mr. Wong met Duy Tran. The two men agreed to do some drug business together once they were released. Approximately four months after Mr. Wong’s release, Mr. Tran arranged to sell two pounds of marijuana to Mr. Wong, which was worth approximately $6,200. Around 4:30 p.m. on the day of the offence, Mr. Wong entered Mr. Tran’s car. Mr. Tran’s friend, Sung Park, was also in the car. Shortly after entering the vehicle, Mr. Wong grabbed one of two bags of marijuana. He then stepped out of the vehicle and fired a gun directly at Mr. Tran and Mr. Park. At that same time, two other men associated with Mr. Wong emerged from a nearby building and also started shooting at Mr. Tran and Mr. Park. At least fourteen shots were fired from three different guns. The police then chased Mr. Wong by car, after which he was eventually found and arrested.
[12] As a result of the shooting, a bullet remained permanently lodged in Mr. Tran’s groin because its removal was deemed too medically risky. Mr. Park was not wounded.
[13] On February 23, 2012, a jury found Mr. Wong guilty of two counts of attempted murder with a firearm, one count of discharging a firearm with intent to wound and one count of failing to comply with a prohibition order.
The dangerous offender proceeding and decision
[14] Following the jury’s verdict, the Crown gave notice that it sought a dangerous offender designation and an indeterminate term of incarceration.
[15] Prior to the dangerous offender hearing, at the Crown’s request, the court granted an assessment order pursuant to s. 752.1 of the Criminal Code.
[16] The assessment was conducted by Dr. Scott Woodside of the Centre for Addiction and Mental Health. Mr. Wong attended two meetings with Dr. Woodside. However, on the advice of his lawyer, Mr. Wong chose not to participate in the assessment.
[17] In his assessment report dated January 13, 2014, Dr. Woodhouse diagnosed Mr. Wong with anti-social personality disorder, although he stated that the diagnosis could not be fully confirmed given that Mr. Wong did not participate in the assessment. He concluded that Mr. Wong was at high risk of a violent re-offence. He found that Mr. Wong displayed “a number of the clinical variables known to be related to violent recidivism, including most significantly, the presence of an antisocial personality disorder and significant psychopathic personality traits, a lack of stable employment history, low academic achievement and unstable relationships.” As part of his assessment, Dr. Woodhouse considered the criteria for designation of a dangerous offender and found that Mr. Wong met the criteria in ss. 753(1)(a)(i) and (ii) of the Criminal Code. In reaching this conclusion, and specifically in relation to the criteria under s. 753(1)(a)(ii), Dr. Woodside stated that Mr. Wong “has repeatedly returned to involvement in criminal activity and appears to have escalated in terms of his willing [sic] to make use of violence in order to achieve his goals” and that he engages in “instrumental violence” that shows “a significant degree of indifference to the potential effects of his behaviour on his victims.” Dr. Woodside concluded that there were low prospects that Mr. Wong could be rehabilitated or managed in the community.
[18] Prior to the hearing, Mr. Wong participated in an assessment prepared by a psychologist retained by the defence, Dr. Giorgio E. Ilacqua. In his report dated June 8, 2015, Dr. Ilacqua concluded that Mr. Wong was at a moderate to high risk of reoffending and committing a violent offence. However, he said that Mr. Wong was not “inherently dangerous” and that his risks “can be managed with a determinate sentence and community supervision.” Dr. Ilacqua did not provide an opinion on whether Mr. Wong meets the criteria for a dangerous offender in ss. 753(1)(a)(i) and (ii) of the Criminal Code.
[19] As part of the evidence at the hearing, the sentencing judge also admitted the evidence of Detective Douglas Backus. Detective Backus was the lead investigator on Project Kryptic. He presented evidence of the intercepted communications between the appellant and others during the investigation of Project Kryptic in 2007. He also gave his opinion that the evidence was consistent with Mr. Wong being a member of the Driftwood Crips, a street gang. In Detective Backus’s opinion, Mr. Wong had been a member of this street gang since at least 2007, which was when he was arrested for his first firearms offence. Detective Backus’s opinion was that Mr. Wong was a “soldier” in the Driftwood Crips, which means that he was a mid-ranking member with access to a firearm and responsibility for dealing drugs, protecting the gang’s territory, and storing guns and ammunition.
[20] There was also evidence from an expert in ballistics that the gun recovered from Mr. Wong at the time of his arrest for the predicate offences was used in the earlier killings of two young men. In addition, there was evidence that the two other guns used at the time of the predicate offences were also associated with other shootings.
[21] In her reasons for decision, the sentencing judge found that Mr. Wong should be designated as a dangerous offender on the basis of both ss. 753(1)(a)(i) and (ii) of the Criminal Code. As part of her decision, the sentencing judge conducted a comprehensive and detailed review of Mr. Wong’s past, including his criminal record and the circumstances of his previous offences, Children’s Aid Society records, school records, youth and adult probation records, and institutional records. In her review, the sentencing judge noted many instances when Mr. Wong failed to comply with court ordered programs. For example, while his conditions of probation required him to go to school or find work, he persistently failed to fulfill these requirements. In addition, while in custody, he committed repeated infractions, including possession of various contraband and at least one assault. More recently, while awaiting trial of the predicate offences, Mr. Wong was found guilty of misconduct while in custody for punching another inmate in the face.
[22] The sentencing judge conducted a thorough review of the evidence provided by Dr. Woodside and Dr. Ilacqua. Ultimately, she decided to give little weight to Dr. Ilacqua’s evidence. She provided a comprehensive explanation for doing so, including that Dr. Ilacqua did not give his opinion on whether Mr. Wong met the criteria in ss. 753(1)(a)(i) and (ii) of the Criminal Code and whether there is a reasonable expectation that he could be controlled in the community. She also noted that Dr. Ilacqua failed to consider Mr. Wong’s criminal record and the circumstances of his offences, including the predicate offences. Finally, she noted that Dr. Ilacqua admitted making errors in some of the scoring of tests he gave Mr. Wong.
[23] After her comprehensive review of the evidence, the sentencing judge addressed each of the criteria for designation of a dangerous offender under ss. 753(1)(a)(i) and (ii) of the Criminal Code.
[24] The sentencing judge started this analysis by noting that the defence had conceded that the predicate offences were “serious personal injury offence[s]” as required by both ss. 753(1)(a)(i) and (ii) of the Criminal Code.
[25] With respect to s. 753(1)(a)(i), the sentencing judge was satisfied that the Crown had established that the predicate offences formed part of a repetitive pattern of behaviour, showing that Mr. Wong was unable to restrain himself and that he was likely to cause death or injury or severe psychological damage. In particular, the sentencing judge was satisfied that the firearms offences formed part of that pattern. Her specific reasoning on this issue is addressed more thoroughly below.
[26] With respect to s. 753(1)(a)(ii) of the Criminal Code, the sentencing judge found that Mr. Wong engaged in a pattern of persistent aggressive behaviour that showed a substantial degree of indifference to the reasonably foreseeable consequences of his behaviour on other people. Again, a fuller discussion of her reasoning on this issue is addressed below.
[27] Finally, the sentencing judge concluded that an indeterminate sentence was appropriate in this case because there was no evidence of a reasonable possibility that Mr. Wong could be controlled in the community.
Issues on Appeal
[28] Mr. Wong submits that the sentencing judge erred in designating him as a dangerous offender. He makes the following three arguments in support of his appeal:
a. The sentencing judge erred in finding a pattern based on gun possession convictions, which he says were non-violent offences;
b. The sentencing judge erred in admitting the evidence of Detective Backus on the issue of gang affiliation; and
c. The sentencing judge erred in admitting evidence that Mr. Wong’s firearm had been used in several prior shootings.
[29] As stated by this court in R. v. Sawyer, 2015 ONCA 602, 127 O.R. (3d) 686, at para. 26, appellate review of a dangerous offender designation is concerned with whether the court below made any legal errors and whether the dangerous offender designation was reasonable. In addition, while this court owes deference to the sentencing judge’s findings of fact and credibility, “appellate review of a dangerous offender designation is more robust than on a ‘regular’ sentence appeal”. Nevertheless, the sentencing judge’s factual and credibility findings are entitled to deference: Sawyer, at para. 26.
[30] As set out below, I would dismiss the appeal. In my view, the sentencing judge applied the correct legal test in finding that Mr. Wong’s prior convictions formed part of a pattern as required by ss. 753(1)(a)(i) and (ii) of the Criminal Code and her decision is reasonable. In addition, I see no error in the sentencing judge’s decision to admit and consider Detective Backus’s evidence for the purpose of assessing whether Mr. Wong should be designated as a dangerous offender. Finally, while the sentencing judge referred to the evidence the gun Mr. Wong used to commit the predicate offences had been used in other shootings, she did not rely on this evidence in concluding that Mr. Wong should be designated as a dangerous offender.
Issue 1: The sentencing judge did not err in finding a “pattern” of behaviour
[31] Pursuant to Part XXIV of the Criminal Code, there are two stages to dangerous offender proceedings: R. v. Boutilier, 2017 SCC 64, [2017] 2 S.C.R. 936, at paras. 13-15. The first stage, as set out in s. 753(1), is referred to as the “designation stage” and is concerned with whether the statutory requirements are met for an offender to be designated as dangerous. The second stage is referred to as the “sentencing stage”, and is governed by ss. 753(4) and (4.1) of the Criminal Code. The issues on this appeal focus on the designation stage and whether the sentencing judge made any errors in designating Mr. Wong as a dangerous offender.
[32] Section 753(1) sets out the requirements for a court to designate an offender as dangerous. In this case, subs. (i) and (ii) of s. 753(1)(a) are the relevant provisions:
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
(i) a pattern of repetitive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a failure to restrain his or her behaviour and a likelihood of causing death or injury to other persons, or inflicting severe psychological damage on other persons, through failure in the future to restrain his or her behaviour,
(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
[33] As part of these statutory requirements, both ss. 753(1)(a)(i) and (ii) require the Crown to demonstrate that the predicate offence forms part of a “pattern”. Under s. 753(1)(a)(i), the Crown must demonstrate that the predicate offence forms part of a “pattern of repetitive behaviour” that shows a lack of restraint, and that the unrestrained behaviour has “a likelihood of causing death or injury to other persons, or inflicting severe psychological damage on other persons”. Under s. 753(1)(a)(ii), the Crown must show a “pattern of persistent aggressive behaviour” that includes the predicate offence and that shows substantial indifference to the reasonably foreseeable consequences of the behaviour.
[34] In this case, Mr. Wong argues that the sentencing judge erred in finding a pattern under either ss. 753(1)(a)(i) or (ii). Specifically, he argues that the sentencing judge improperly relied on the firearm possession convictions as forming part of the pattern because those convictions were not for violent offences. He thereby takes the position that a pattern must include multiple offences that involve the actual use of violence or a direct threat of violence.
[35] I reject Mr. Wong’s suggestion that the behaviour that forms part of the pattern for either s. 753(1)(a)(i) or (ii) must involve direct violence or threat of violence. That is not the wording used in those provisions. In this case, the sentencing judge was careful to explain how she arrived at the conclusion that the predicate offences formed part of a repetitive pattern under s. 753(1)(a)(i) and a pattern of aggression under s. 753(1)(a)(ii). As discussed below, her analysis and conclusions were reasonable and well supported by the evidence.
Pattern of repetitive behaviour under s. 753(1)(a)(i)
[36] For the purposes of s. 753(1)(a)(i), a pattern of repetitive behaviour is a pattern that contains “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. … However, the offences need not be the same in every detail; that would unduly restrain the application of the section”: R. v. Hogg, 2011 ONCA 840, 287 O.A.C. 82, at para. 40; R. v. Szostak, 2014 ONCA 15, 118 O.R. (3d) 401, at para. 56. “Differences in the details of the offences will not be relevant if the predicate and past offences represent [as s. 753(1)(a)(i) requires] ‘a pattern of repetitive behaviour by the offender … showing a failure to restrain his or her behaviour and a likelihood of causing death or injury to other persons, or inflicting severe psychological damage on other persons, through failure in the future to restrain his or her behaviour’”: R. v. Brissard, 2017 ONCA 891, 356 C.C.C. (3d) 494, at para. 57.
[37] In R. v. Gibson, 2021 ONCA 530, 157 O.R. (3d) 597, at para. 228, this court emphasized that the requirement for a pattern refers to a pattern of behaviour and not a pattern of offences:
The statutory requirements demand proof of a pattern of behaviour, not a pattern of offences or convictions. In its ordinary, everyday sense, a pattern refers to an arrangement or order discernible in, among other things, objects, actions or ideas. As used in s. 753(1), a pattern refers to actions, not thoughts. The required pattern is based not solely on the number of offences, but also on the elements of similarity in the offender’s behaviour. [Emphasis added.]
[38] In this case, the sentencing judge explained her approach to the requirements for finding a repetitive pattern pursuant to s. 753(1)(a)(i) of the Criminal Code. Specifically, she said that not all offences can form part of such a pattern. Rather, “[t]o be considered part of the pattern for the purpose of a dangerous offender analysis, the past behaviour must involve some degree of violence or attempted violence or endangerment or likely endangerment” (emphasis added).
[39] In analyzing the circumstances of this case, the sentencing judge did not limit the behaviour that could form part of the pattern to convictions involving the actual use of violence. Rather, she found that Mr. Wong’s prior firearms offences, and the circumstances of those offences in the context of Mr. Wong’s gang activities, formed part of the repetitive pattern. She reasoned as follows:
Mr. Wong has now been convicted of four distinct offences related to the possession, trafficking and use of firearms. The illegal possession of firearms is a tool of the trade for drug traffickers. Serious bodily harm and death are often the results (R. v. Simon, [2010] ONCA 754, at para. 1; R. v. Nur, [2015] SCC 15 at para. 137).
There are a sufficient number of significant relevant similarities between the firearm offences for which the respondent has been convicted to make the pattern required for designation pursuant to s. 753(1)(a)(i). The firearms were:
i) loaded; ii) concealed; iii) carried in a public place; iv) possessed for the purpose of drug trafficking; v) possessed while Mr. Wong was prohibited by court order for another firearm offence; vi) possessed while Mr. Wong was affiliated or conspiring with others (or while involved in a gang).
Although not required for purposes of establishing the pattern, weapon possession offences can constitute violent or serious personal injury offences. On the evidence before me, it is not difficult to find that Mr. Wong used the firearms in his possession to seek revenge on and rob innocent people and other drug dealers. I conclude that the respondent consistently, persistently and tenaciously carried and used weapons in the course of his lifestyle as a gang member and drug dealer.
[40] The sentencing judge went on to find that the predicate offences formed part of the pattern, stating that “[h]e used a firearm to drug traffic, intimidate and rob the victims. He did so in the company of two other criminal peers. The incident was planned and premeditated.” She also stated that, with the predicate offences, “his behaviour escalated dramatically”. In addition, she was satisfied that, based on all of the records she had reviewed, Mr. Wong’s pattern shows a failure to restrain his behaviour, stating that Mr. Wong was “a young boy and later a young man who has failed to restrain his behaviour, when at home, in school, incarcerated, on probation or out in the community”. Finally, she accepted Dr. Woodside’s evidence that Mr. Wong’s pattern of behaviour, including the predicate offences, showed that he was at “high risk for violent re-offence from a purely clinical perspective and also from an actuarial perspective”.
[41] Mr. Wong argues that the trial judge erred in considering that the weapons offences formed part of a repetitive pattern because they were not violent offences. I reject this argument.
[42] As reviewed above, the requirement for a pattern in s. 753(1)(a) does not focus on prior offences but on prior behaviour. Here, the sentencing judge did not just rely on the weapons possession offences in the abstract. Rather, she carefully explained how the circumstances of those offences formed part of a repetitive pattern with the predicate offences. She explained the behavioural commonalities between all offences, including that Mr. Wong was carrying a loaded firearm in public places in the context of gang affiliated drug transactions, and that he used a firearm in committing the predicate offences. Again, the sentencing judge was not only focused on the weapons possession convictions, but on Mr. Wong’s behaviour.
[43] In addition, there is no requirement that the pattern of behaviour involve the use of force or actual violence. This is clear from the definition of “serious personal injury offence” in s. 752 of the Criminal Code which includes conduct that endangers or is likely to endanger the life or safety of others:
serious personal injury offence means
(a) an indictable offence, other than high treason, treason, first degree murder or second degree murder, involving
(i) the use or attempted use of violence against another person, or
(ii) conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage on another person,
and for which the offender may be sentenced to imprisonment for ten years or more [Emphasis added.]
[44] Notably, in R. v. Steele, 2014 SCC 61, [2014] 3 S.C.R. 138, at para. 51, in addressing the meaning of “violence” in this definition, the Supreme Court stated that, to qualify as a “serious personal injury offence”, an offence does not always require the actual use of force. Rather, “judicial interpretations of the term ‘violence’ suggests that the focus is on the harm caused, attempted or threatened rather than on the force that was applied”. The court also emphasized that “[c]ontext will be paramount”.
[45] In R. v. Neve, 1999 ABCA 206, 71 Alta. L.R. (3d) 92, which is often cited for its comprehensive review of the requirements for designation of a dangerous offender, and which the sentencing judge relied on in this case, the Court of Appeal for Alberta explained the types of behaviour that could form part of a pattern having regard to the definition of “serious personal injury offence”:
Does all criminal behaviour form part of the pattern? In our view, it does not. We read s.753(a) as requiring that the court be satisfied on two points: (a) that the predicate offence is part of a pattern of behaviour which has involved violent, aggressive or brutal conduct; and (b) that it is likely that this pattern of conduct will continue and will lead to conduct endangering the life, safety or physical well-being of others: see Lyons, supra. Since a predicate offence under s.753(a) must be a “serious personal injury offence” (meaning that it itself must meet either a violence or endangerment requirement under s.752 (a)), it follows logically that the past behaviour must also have involved some degree of violence or attempted violence or endangerment or likely endangerment (whether more or less serious than the predicate offence). Otherwise, the predicate offence would not be part of that pattern. [Emphasis added.]
[46] In this case, the sentencing judge specifically explained how Mr. Wong’s weapons possession convictions formed part of the pattern of repetitive behaviour. As mentioned above, she did so by explaining the broader context in which those offences occurred.
[47] The sentencing judge’s view that the circumstances of Mr. Wong’s prior weapons offences formed part of a pattern of endangerment is consistent with case law on this issue. For example, in R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773, the Supreme Court considered the constitutional validity of minimum sentences for possession of a loaded firearm. In that context, the majority quoted with approval this court’s description, at para. 82, citing R. v. Nur, 2013 ONCA 677, 117 O.R. (3d) 401, at para. 51, of the severity of this offence when committed in circumstances such as here:
At one end of the range, as Doherty J.A. observed, “stands the outlaw who carries a loaded prohibited or restricted firearm in public places as a tool of his or her criminal trade. . . . [T]his person is engaged in truly criminal conduct and poses a real and immediate danger to the public”. [Emphasis added.]
[48] The appellant relies on R. v. Jackson, 2013 ONCA 632, 301 C.C.C. (3d) 358, at para. 39, to argue that the possession of firearms is not an act of violence. However, Jackson did not deal with a dangerous offender application. In that case, the court considered whether earlier convictions for the possession and sale of weapons showed a propensity to commit acts of violence. The underlying convictions did not relate to the possession of loaded firearms taken into public places in the context of gang related drug trafficking. In the context of that case, the court stated that “[p]ossession and sale of firearms are not acts of violence.”
[49] However, as mentioned above, Mr. Wong’s pattern of behavior is not to be considered stripped of its context. In this case, it was open to the sentencing judge to find that Mr. Wong’s prior weapons offences, looked at in context, formed part of a pattern of repetitive behaviour that showed a lack of restraint and endangered the public, culminating in the significant escalation of his behaviour with the predicate offences.
[50] I see no errors in the sentencing judge’s approach to this issue.
Pattern of aggressive behaviour under s. 753(1)(b)(ii)
[51] The test under s. 753(a)(ii) “does not depend upon similarities among the predicate offences”: R. v. C.W., 2019 ONCA 976, at para. 28. Rather, it requires a pattern of aggressive behaviour that shows indifference to its impact on others.
[52] In finding a pattern of aggressive behaviour in this case, the sentencing judge stated that aggressive behaviour did not require the use of physical force. She found that the fact that Mr. Wong’s “behaviour is persistent and aggressive is without doubt.” In reaching this conclusion, the sentencing judge relied in part on Detective Backus’s evidence regarding Mr. Wong’s involvement in a street gang and the activities he participated in as a member of that gang. The sentencing judge also found that Mr. Wong showed indifference toward the consequence of his aggressive behaviour and, again, that he posed a threat to the life, safety or physical or mental well-being of other persons.
[53] Mr. Wong’s complaint about the sentencing judge’s finding that Mr. Wong meets the requirements of s. 753(1)(a)(ii) are essentially the same as for (i). He argues that the firearms possession offences cannot form part of a pattern of aggressive behaviour because they are not violent offences. Again, as reviewed above, the pattern does not require the actual use of violence or threatened violence. In this case, the evidence before the sentencing judge, including the evidence regarding the circumstances of the prior offences and his behaviour since the age of 13, support her conclusion that Mr. Wong has engaged in a pattern of aggressive behaviour and that he has shown indifference to the consequences of his actions on other people.
Conclusion on Issue 1
[54] Ultimately, the sentencing judge did not only rely on the convictions for prior firearm possession offences in finding patterns under ss. 753(1)(a)(i) and (ii) of the Criminal Code. Rather, there was extensive evidence that supported her finding that the appellant’s behaviour formed both part of a repetitive pattern and a pattern of aggression, and that he met the other criteria under these subsections.
[55] While Mr. Wong was young at the time he committed the predicate offences, his aggressive and impulsive behaviour has been persistent since the age of 13. The predicate offences represented a dramatic escalation in that behaviour, and clearly supported a finding that Mr. Wong has difficulty restraining himself and that he is indifferent to the consequences of his behaviour. In the circumstances, the sentencing judge’s determination that the appellant should be designated as a dangerous offender was not unreasonable.
[56] I would emphasize that the sentencing judge’s decision and this decision on appeal should not be taken as suggesting that, on their own, convictions for possession of a firearm followed by a violent offence, including where the person is gang-involved, would be sufficient to designate that person as a dangerous offender. However, in this case, given all the circumstances of Mr. Wong’s history and the nature of the predicate offences, the sentencing judge’s decision to designate Mr. Wong as a dangerous offender was not unreasonable.
Issue 2: The evidence of gang affiliation was not biased
[57] Mr. Wong argues that the sentencing judge erred in accepting Detective Backus as an expert qualified to give evidence regarding Mr. Wong’s gang affiliation. Specifically, given that Detective Backus was previously involved in the investigation of Project Kryptik, Mr. Wong argues that Detective Backus could not give an unbiased expert opinion. Mr. Wong also argues that the trial judge misapprehended some of the evidence Detective Backus relied on in giving his opinion that Mr. Wong was gang affiliated. I would not give effect to this ground of appeal.
[58] The strict rules of evidence that apply to a trial do not govern sentencing proceedings. At the sentencing stage, the objective is to ensure that the judge has access to the “fullest possible information concerning the background of the [offender]”: R. v. Gardiner, [1982] 2 S.C.R. 368, at p. 414. In the context of a dangerous offender application, the importance of ensuring that the sentencing judge has the fullest possible information about the offender is heightened: R. v. Jones, [1994] 2 S.C.R. 229, at p. 290; and R. v. Williams, 2018 ONCA 437, at para. 48.
[59] Moreover, on appeal, this court owes deference to a trial judge’s decision to admit expert evidence. The court will only interfere if the judge below made an error in principle, made a material misapprehension of the evidence or reached an unreasonable conclusion: R. v. Shafia, 2016 ONCA 812, 341 C.C.C. (3d) 354, at para. 248. It is not the role of this court to assess afresh whether the expert evidence should have been admitted by the court below.
[60] In deciding whether to admit expert evidence, the judge below is to engage in a two-stage analysis. At the first stage, the court considers four factors: 1) relevance; 2) necessity; 3) the absence of an exclusionary rule; and 4) whether the expert is properly qualified. At the second stage, the judge is to balance the probative and prejudicial effects of admitting the evidence: White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182, at para. 23.
[61] In White Burgess, at para. 42, Cromwell J. explained that the issue of bias is to be considered at both stages of the analysis.
[62] At the first stage, bias is relevant to the issue of whether the expert is properly qualified. In R. v. Mills, 2019 ONCA 940, 151 O.R. (3d) 138, this court also dealt with a challenge to the admissibility of evidence provided by Detective Backus on the basis of bias. At para. 39 of Mills, the court explained that, in deciding whether a proposed expert is properly qualified, a trial judge is to consider whether the proposed expert is:
(a) impartial, in the sense that they give only an “objective assessment of the questions at hand”; (b) independent, in the sense that their opinions result from an exercise of “independent judgment, uninfluenced by who has retained” them or the “outcome of the litigation”; and (c) unbiased, in the sense that they do not “unfairly favour one party's position over another”.
[63] In Mills, at para. 42, this court further explained the process a trial judge is to follow in deciding whether a proposed expert is properly qualified, including on the issue of bias:
An assessment of whether the witness is a properly qualified expert must take into account the proposed witness' ability to understand and to fulfill an expert's duty to the court to provide impartial, independent and unbiased evidence: Abbey (2017), at para. 48; White Burgess, at para. 53. This is not a high threshold. Once the expert testifies to this effect, the burden shifts to the party opposing the admission of the evidence to show a “realistic concern” as to why the expert might not comply with that duty: White Burgess, at para. 48. If that realistic concern is shown, the burden shifts back to the party proffering the evidence to demonstrate on a balance of probabilities why the expert is a properly qualified expert. Expert evidence should only be excluded in “rare” and “very clear cases”, where the proposed expert is found to be unable or unwilling to provide “fair, objective and non-partisan evidence”: White Burgess, at para. 49; R. v. Natsis (2018), 140 O.R. (3d) 721, [2018] O.J. No. 2383, 2018 ONCA 425, at para. 11. [Emphasis added.]
[64] In Mills, at para. 43, the court pointed out that “apparent bias” is not relevant to the issue of whether an expert is properly qualified. Rather, the expert must be actually biased to be disqualified. The question is “whether the relationship or interest results in the expert being unable or unwilling to carry out his or her primary duty to the court to provide fair, non-partisan and objective assistance”: White Burgess, at para. 50.
[65] At the second stage, the trial judge retains the residual discretion not to admit the evidence on the basis that its prejudicial effect will outweigh its probative effect. As explained in Mills, at para. 45:
“[w]hile anything short of an expert's clear unwillingness or inability to meet his or her obligations should not lead to exclusion under the first stage of admissibility, the trial judge must still take into account any concerns regarding the expert's independence and impartiality at the second stage, weighing those concerns in the final equation.”
[66] Ultimately, even once expert opinion evidence is admitted, its probative value is “directly related to the amount and quality of admissible evidence on which it relies”: R. v. Lavallee, [1990] 1 S.C.R. 852, at p. 897. Furthermore, the burden remains on the Crown to “prove the statutory elements of dangerousness beyond a reasonable doubt”: Williams, at para. 53.
[67] In this case, the sentencing judge qualified Detective Backus as an expert for the purpose of providing opinion evidence on:
(1) whether or not Mr. Wong was a member of a street gang; (2) the interpretation of guarded language used in wiretap interceptions; (3) voice identification on the wiretaps; and (4) Project Kryptic.
[68] In her ruling, the sentencing judge reviewed Detective Backus’s credentials, including his experience in investigating street gangs in Toronto and in listening to wiretap intercepted communications. She also reviewed his involvement with Project Kryptic, including that Mr. Wong was one of the targets of the investigation. Ultimately, the sentencing judge explained that Detective Backus’s evidence was “necessary and relevant” to the determination of whether Mr. Wong is a dangerous offender.
[69] As indicated above, Mr. Wong argues that the sentencing judge erred in admitting Detective Backus’s evidence because of bias. Specifically, he argues that Detective Backus’s prior involvement in Project Kryptic means that he could not have an open mind on the issue of whether Mr. Wong was a member of a street gang.
[70] Mr. Wong’s trial counsel did not raise the issue of bias before the sentencing judge. Detective Backus’s involvement in Project Kryptic was obviously known at that time. On appeal, Mr. Wong does not claim ineffective assistance of counsel. The issue of bias should have been raised before the sentencing judge. This would have given Detective Backus the opportunity to answer questions from the Crown and the defence about whether he could give his evidence impartially and with an open mind. In addition, it would have given the sentencing judge the opportunity to address the issue of bias, based on the test outlined above.
[71] The general rule is that it is not appropriate to raise an issue for the first time on appeal: R. v. Reid, 2016 ONCA 524, 132 O.R. (3d) 26, at paras. 39-40. As held in Reid, at para. 43, in order to avoid the application of this general rule, Mr. Wong would have to satisfy the court that, amongst other matters, the evidentiary record is sufficient to allow this court to address the issue of bias “fully, effectively and fairly”. In this case, given that Detective Backus was not asked any questions going to the issue of his potential bias, including his ability to keep an open mind, the court does not have a proper evidentiary record to decide the issue. Therefore, on this basis alone, I would dismiss this ground of appeal.
[72] In any event, based on the evidence that is available, I do not agree that Detective Backus should have been disqualified to testify due to his prior knowledge of Mr. Wong through Project Kryptic. The sentencing judge’s task was to understand as much of Mr. Wong’s background as possible to be able to assess his dangerousness. This included understanding the context of his prior offences. Detective Backus was obviously in a good position to provide this evidence given his expertise in Toronto street gang activities, including decoding the language used in their intercepted communications.
[73] Moreover, on its own, Detective Backus’s prior knowledge or involvement with Mr. Wong did not make him biased. While there is a “heightened concern” with the ability of police officers offered as expert witnesses to ensure that they are able to give an impartial opinion, their prior knowledge of an offender on its own is not sufficient to ground a finding of bias: Mills, at para. 62. In such circumstances, “[t]he question is not whether there is a relationship to one of the litigants, but whether the relationship results in the witness being unable or unwilling to carry out his or her duty to the court”: Mills, at para. 62.
[74] This case is distinguishable from R. v. McManus, 2017 ONCA 188, 353 C.C.C. (3d) 493, which Mr. Wong relies on to argue that Detective Backus should have been disqualified on the grounds of bias. In McManus, this court held that a police officer who investigated the offence with which the appellant was charged should have been disqualified as an expert witness. These concerns do not arise in this case. First, the issue before the sentencing judge was not about whether Mr. Wong should be convicted but, rather, about whether he should be found to be a dangerous offender. In that context, as reviewed above, it was important for the sentencing judge to have a broad understanding of Mr. Wong’s previous criminal activities and the context in which they occurred. Second, Detective Backus did not provide evidence on the predicate offences but, rather, on Mr. Wong’s gang affiliation based on wiretap communications intercepted in the context of Project Kryptic. Third, Detective Backus had specific knowledge about Project Kryptic and the relevant gang and its language, such that it would likely have been difficult to advance the evidence through another witness: see Mills, at para. 65.
[75] Accordingly, the primary basis on which I would not give effect to Mr. Wong’s argument that the sentencing judge erred in failing to find that Detective Backus was biased is that this issue was not raised at first instance. In addition, based on the record before the court, it was not inappropriate for the sentencing judge to rely on Detective Backus’s expert evidence in the context of the dangerous offender application.
[76] Besides the issue of bias, Mr. Wong argues that Detective Backus’s evidence was unreliable because he misunderstood some of the evidence on the wiretaps as referring to drug trafficking activities when it actually referred to a music video. This does not affect the admissibility of Detective Backus’s evidence. Rather, it may affect the weight to be given to his evidence. However, ultimately, Detective Backus’s evidence about the meaning of Mr. Wong’s statements on the wiretaps, and how they showed his gang affiliation and the types of activities he was involved in was based on far more than this impugned evidence. It was open to the sentencing judge to rely on his evidence and reach the conclusions she did on Mr. Wong’s gang affiliation and activities.
[77] I would not give effect to this ground of appeal.
Issue 3: The evidence of the prior uses of the gun did not affect the outcome
[78] Mr. Wong submits that the sentencing judge erred in admitting the evidence of a ballistics expert who gave evidence that the three guns involved in the predicate offences, including the gun Mr. Wong had discarded at the time of his arrest, had been used in prior shootings. I would dismiss this ground of appeal.
[79] Trial counsel did not challenge the admissibility of the ballistics evidence. More importantly, while the sentencing judge describes this evidence in her reasons, it is evident that it played no role in her determination that the appellant should be designated as a dangerous offender. When considering the criteria under both ss. 753(1)(a)(i) and (ii), the sentencing judge does not refer to this evidence and it is clear that she only relies on evidence of the offences committed by Mr. Wong. At no time does she suggest that Mr. Wong was in any way implicated in the commission of the other shootings committed with those guns.
[80] Accordingly, in my view, this evidence played no role in the sentencing judge’s decision and I would not give effect to this ground of appeal.
Disposition
[81] I would dismiss the appeal.
Released: February 23, 2023 “D.D.” “L. Favreau J.A.” “I agree Doherty J.A.” “I agree Copeland J.A.”
