COURT OF APPEAL FOR ONTARIO

DATE: 20230817 DOCKET: C68544

Pepall, Hourigan and Brown JJ.A.

BETWEEN

His Majesty the King Respondent

and

Alexander Wielgosz Appellant

Counsel: Michael Bury, for the appellant Vallery Bayly, for the respondent

Heard: August 16, 2023

On appeal from the dangerous offender designation and indeterminate sentence imposed by Justice Paul F. Monahan of the Ontario Court of Justice on July 17, 2020.

REASONS FOR DECISION

Introduction

[1] The appellant was found guilty of two counts of aggravated assault, two counts of possession of a weapon for a dangerous purpose, and one count of breach of recognizance. The sentencing judge found the appellant to be a dangerous offender and imposed an indeterminate sentence. The appellant seeks to appeal his dangerous offender designation and sentence, submitting that the sentencing judge erred in finding beyond a reasonable doubt that he is a dangerous offender and in finding that only an indeterminate sentence would adequately protect the public. In addition, while making his oral submissions, counsel for the appellant raised a new issue not contained in his factum or the notice of appeal. He argued that there was inconsistent evidence regarding whether the appellant was NCR and that the sentencing judge was obliged to order another NCR assessment. After the appellant’s oral submissions, the court dismissed the appeal with reasons to follow. These are our reasons, which explain why we do not give effect to the appellant’s arguments.

Background

[2] The index offences related to an incident when the appellant went to his neighbour’s house and attacked her with a knife without provocation. Another neighbour intervened when he heard the first victim screaming and the appellant stabbed him. Both neighbours were seriously injured.

[3] The appellant suffers from schizoaffective disorder and polysubstance use disorder. He has a lengthy criminal record with criminal offences against family and acquaintances, along with a record of institutional misconduct.

[4] At the dangerous offender hearing, the Crown sought a determinate sentence of 12 years followed by a ten-year long-term supervision order. Defence counsel submitted that the dangerous offender criteria were not met, and that the appellant should be sentenced to time served and three years’ probation. The sentencing judge notified the parties that he was considering imposing an indeterminate sentence. He requested and received written submissions on this point.

[5] The sentencing judge found that the appellant is a dangerous offender. He was satisfied that the appellant poses a high likelihood of harmful recidivism and that his conduct is intractable, pursuant to s. 753(1) of the Criminal Code and R. v. Boutilier, 2017 SCC 64, [2017] 2 S.C.R. 936. He imposed an indeterminate sentence, finding that a lesser measure would not adequately protect public safety.

Analysis

(a) Dangerous Offender Designation

[6] As described by the Supreme Court in Boutilier, at para. 46, for an offender to be found to be a dangerous offender pursuant to s. 753(1), the sentencing judge must be satisfied that the offender poses a high likelihood of harmful recidivism and that the pattern of their violent conduct is intractable. Intractability refers to behaviour that the offender is unable to surmount. This prospective risk assessment includes consideration of future treatment prospects: Boutilier, at paras. 27 and 46. The appellant submits that the sentencing judge erred in ignoring the evidence of his treating psychiatrist, Dr. Iosif, that he is treatable, and, therefore, his conduct is not intractable. We do not accept this argument.

[7] The sentencing judge considered in detail the appellant’s treatment prospects and concluded that, while the appellant’s illnesses are potentially treatable, his treatment prospects are not compelling. In making this finding, he considered the evidence related to treatability, including Dr. Iosif’s opinion that she did not think that the appellant’s violent conduct was intractable because his illnesses are treatable. The sentencing judge was not obliged to accept that opinion. He explained why he did not do so, referencing the appellant’s history of non-compliance with treatment, his lack of insight and motivation to change, and Dr. Iosif's opinion that the appellant was unlikely to accept treatment voluntarily. The sentencing judge also reasonably relied on the appellant’s assaultive behaviour while incarcerated following the index offences and that the appellant continues to believe he does not require regular medication.

(b) Indeterminate Sentence

[8] Regarding the indeterminate sentence, the sentencing judge reasonably relied on the appellant’s lengthy history of failing to follow treatment consistently, the appellant’s ongoing lack of insight and motivation, and the lack of a realistic plan to control the appellant’s risk in the community to conclude that there was no reasonable expectation that a lesser measure would adequately protect public safety. We see no error in that analysis and no basis to intervene.

[9] We also reject the appellant’s submission that the stringent public interest test for departing from a joint submission is applicable. This was not a joint submission but a situation where the sentencing judge contemplated imposing a sentence that exceeded the Crown’s position at the contested sentencing hearing. The sentencing judge followed the appropriate procedure. He informed the parties that he was considering imposing an indeterminate sentence and sought further submissions. In response, the defence filed submissions on the issue. This is how the process is supposed to work in these circumstances.

(c) NCR Assessment

[10] The issue of whether the appellant was NCR was raised during the course of the proceeding. The sentencing judge ordered an NCR assessment and received an opinion that the appellant did not meet the criteria to be declared NCR. The issue was not raised again and neither the Crown nor the defence argued that the appellant was NCR or that a further NCR assessment was necessary.

[11] The appellant relies on a statement made by Dr. Iosif to the effect that treatment in the NCR system might be best for him. He argues that this evidence was inconsistent with the NCR assessment and that, in light of this inconsistency, the sentencing judge was obliged to order another NCR assessment. We do not give effect to this argument. The evidence was not inconsistent. Dr. Iosif’s testimony was not that the appellant was NCR but that he might respond best in the NCR system. The sentencing judge was not obliged to order another NCR assessment in these circumstances.

Disposition

[12] The appeal is dismissed.

“S.E. Pepall J.A.”

“C.W. Hourigan J.A.”

“David Brown J.A.”