Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20230331 DOCKET: C67013

BEFORE: Simmons, Miller and Harvison Young JJ.A.

BETWEEN: His Majesty the King Respondent

AND: Jamie Dunlop Appellant

COUNSEL: Jessica Zita, for the appellant Roger Pinnock, for the respondent

HEARD: March 22, 2023

ON APPEAL FROM: the conviction entered on April 14, 2016 by Justice J. Robert MacKinnon of the Superior Court of Justice and the sentence imposed on January 26, 2018 by Justice John R. McCarthy of the Superior Court of Justice.

Reasons for Decision

[1] At the conclusion of the appellant’s submissions, we dismissed his appeal for reasons to follow. These are our reasons.

[2] Following a judge-alone trial, the appellant was convicted of unlawfully entering a dwelling house with intent to commit an indictable offence, robbery, and aggravated assault.

[3] The charges arose out of events that occurred on September 9, 2014. The appellant and another man, Tosh Willison-Hales, entered a crack house and beat, and severely injured, one of the occupants. When the assailants left, they took some of the victim's belongings.

[4] Following the incident, the victim was hospitalized for 21 days. Among other things, the victim suffered bleeding into the abdominal cavity, seven to nine rib fractures and isolated areas of brain injury. Although he testified at the appellant’s trial, he was unable, because of his injuries, to recall any of the events.

[5] Both assailants were arrested soon after the incident. Willison‑Hales pleaded guilty to charges arising out of the incident and was sentenced to seven years’ imprisonment.

[6] Following the appellant’s conviction on April 14, 2016, the Crown brought a dangerous offender application. As the trial judge had retired, the dangerous offender application was heard by another judge. On January 26, 2018, the sentencing judge declared the appellant a dangerous offender and sentenced him to an indeterminate period of imprisonment on the robbery and aggravated assault charges and to a concurrent sentence of six months’ imprisonment on the unlawfully entering a dwelling house charge.

[7] The sentencing judge found that the criteria under s. 753(1)(a)(i) and (ii) of the Criminal Code, R.S.C., 1985, c. C-46, for making a dangerous offender designation were satisfied. He also concluded that no lesser measure other than an indeterminate period of detention in a penitentiary would adequately protect the public against the appellant committing further serious personal injury offences.

[8] The appellant appeals from his conviction for aggravated assault [1]. He does not challenge the dangerous offender designation but appeals from the indeterminate sentence that was imposed.

The Conviction Appeal

[9] The appellant pursued one issue on his conviction appeal. He submitted that the trial judge failed to consider whether the evidence of one of the Crown witnesses, whose evidence he argues was inconsistent with another Crown witness’s evidence, raised a reasonable doubt concerning whether the appellant committed an aggravated assault or merely an assault.

[10] In addition to the victim, two witnesses to the events testified for the Crown at trial. On the evidence of the female witness, the appellant was the initial aggressor in the attack on the victim. According to her, the appellant initiated the attack on the victim, knocked him to the floor, continued punching and kicking him after he was on the floor, and even attempted to choke him.

[11] According to the male witness, Willison-Hales was the initial attacker and the assailant who knocked the victim to the floor and rendered him helpless. Willison-Hales then left the crack house for a short period but subsequently returned and resumed his attack on the victim. The male witness testified that it was only after Willison-Hales had resumed his attack on victim that the appellant joined in. The male witness believed the appellant punched the victim approximately two or more times and kicked him several times.

[12] Willison-Hales testified for the defence and claimed that he was the sole attacker, and that the appellant did not participate in beating the victim or in stealing the victim’s belongings. The appellant did not testify at trial.

[13] The trial judge rejected Willison-Hales’ evidence and found it was entitled to no weight. On appeal, the appellant did not challenge that finding. However, the appellant argued that because the trial judge found both the male and the female Crown witnesses to be credible and reliable, he erred in failing to find a reasonable doubt that the appellant was guilty of an aggravated assault, as opposed to an assault, arising from the male witness’s evidence.

[14] We did not accept this submission.

[15] As we read his reasons, the trial judge accepted the evidence of the female witness concerning the beating because she had a better vantage point to view the events than the male witness, whose view was partially blocked. Among other things, the trial judge said he was satisfied beyond a reasonable doubt that “the [appellant] hit and kicked [the victim] over and over that day, both while [the victim] was standing and also while he was defenceless on the ground.” The trial judge also found that “the force that [the appellant] used wound[ed], maimed and endangered the life” of the victim.

[16] In our view, these findings make it clear that the trial judge accepted the female witness’s evidence. Moreover, we are satisfied that these findings were entirely open to the trial judge on the record before him.

The Sentence Appeal

[17] Concerning sentence, as we have said, the appellant does not challenge the dangerous offender designation. However, he submits that the sentencing judge made two errors in deciding to impose an indeterminate sentence.

[18] First, the appellant contends that the sentencing judge erred by failing to refer in his reasons to Willison-Hales’ participation in beating the victim and by proceeding as if the appellant was the sole attacker. The appellant points to R. v. Aragon, 2022 ONCA 244, 413 C.C.C. (3d) 79, at para. 119, where this court held that the sentencing judge in a dangerous offender proceeding erred by relying on a finding that the appellant in that case was the primary author of the beating that constituted the basis for the index offence. This court held that relying on this erroneous finding was a material error because “the characterization of the seriousness of the index offence heavily influenced the sentencing judge’s decision to sentence Mr. Aragon to an indeterminate sentence as a dangerous offender.”

[19] In this case, at paragraph 100 of his reasons, the sentencing judge described the index offence as “particularly brutal” and stated that it “involved [the appellant] beating the Victim so badly that he remained in hospital for three weeks with very serious injuries.” Further, the victim was left with “pitiable mental, emotional and cognitive problems”. This, said the sentencing judge, was an aggravating factor.

[20] The appellant contends that the sentencing judge erred in describing the index offence and the appellant’s participation in it in this way without making any reference in his reasons to the participation of another attacker.

[21] We did not accept this submission. Aragon was a jury trial. In Aragon, the sentencing judge’s error was in concluding that a finding that Mr. Aragon was the “primary author of the beating [that constituted the index offence]” was essential to the jury’s verdict in that case. This court held that that finding was not essential to the jury’s verdict. Nor had the sentencing judge engaged in his own analysis of the evidence to make that finding beyond a reasonable doubt. It was thus an error for the trial judge to rely on that finding.

[22] Here, as we have said, the trial judge’s reasons demonstrate that he was satisfied beyond a reasonable doubt that the appellant participated in beating the victim by knocking him to the ground and hitting him and kicking him both while the victim was standing and as he lay defenceless on the ground. The trial judge’s findings concerning the appellant’s participation in the attack thus demonstrated that the appellant was guilty of an extremely serious aggravated assault. The sentencing judge was entitled to rely on these findings made by the trial judge. While it may have been preferable for the sentencing judge to have referred to the fact that the appellant had an accomplice in the attack, we are not persuaded that his failure to do so leads to a conclusion that the sentencing judge erred in his characterization of the seriousness of the index offences. Moreover, the sentencing judge cited several other factors in support of his conclusion that an indeterminate sentence was required. These included the appellant’s violent history, the failure of rehabilitation efforts in the past, the intractability of his conditions (anti-social personality disorder and poly-substance abuse disorder), and his lack of insight.

[23] Second, the appellant submits that rather than focus on the risk of the appellant committing serious personal injury offences in the future, the sentencing judge erred by focusing on future risk of harm generally.

[24] We did not accept this submission.

[25] The trial judge’s reasons indicate he was aware of and correctly applied the test for imposing an indeterminate sentence. He referred to the test on more than one occasion in his reasons. He considered the evidence before him that indicated the appellant was a high risk to violently reoffend, including the psychiatric evidence, the appellant’s criminal record, and evidence of the appellant’s institutional behaviour. On the basis of that evidence, he concluded that the appellant posed a risk of violently reoffending and a lesser sentence could not adequately protect the public from the risk of him committing a serious personal injury offence. The sentencing judge’s reasons do not indicate that he was focused on the risk of generalized harm, as the appellant argues.

Conclusion

[26] Based on the foregoing reasons, we dismissed the appeal.

“Janet Simmons J.A.”

“B.W. Miller J.A.”

“A. Harvison Young J.A.”

Footnote

[1] The appellant filed a notice of appeal formally appealing all of the convictions. At the oral hearing, he abandoned his conviction appeal save with respect to the aggravated assault conviction.