COURT OF APPEAL FOR ONTARIO DATE: 20230905 DOCKET: C68500
Roberts, Nordheimer and Thorburn JJ.A.
BETWEEN
His Majesty the King
Respondent
and
Marvin Lancelot Smith
Appellant
Counsel: John Rosen and Rameez Sewani, for the appellant Elena Middelkamp, for the respondent
Heard: March 17, 2023
On appeal from the sentence imposed by Justice Charles H. Vaillancourt of the Ontario Court of Justice, dated October 4, 2018, with reasons reported at [2018] O.J. No. 5123 (C.J.).
Thorburn J.A.:
Overview
[1] One of the central issues on this appeal is whether the sentencing judge erred in his interpretation of the words “pattern of persistent aggressive behaviour” in finding that the appellant was a dangerous offender pursuant to s. 753(1)(a)(ii) of the Criminal Code, R.S.C. 1985, c. C-46. For the reasons set out below, I would dismiss the appeal.
[2] The appellant, Marvin Smith, viciously assaulted Pauline Malcolm, a family law lawyer, striking her with a metal baton ten to fifteen times. She suffered multiple serious injuries and was rendered unconscious. The appellant did so to intimidate her in the course of her responsibilities as a family law lawyer. He pled guilty to aggravated assault, intimidation of a justice system participant, and possession of a weapon contrary to a court order.
[3] Following his guilty plea, the Crown applied to have the appellant designated a dangerous offender and sentenced to an indeterminate sentence.
[4] Section 753(1) of the Criminal Code sets out the criteria for a finding that a person is a dangerous offender:
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, or
(iii) any behaviour by the offender, associated with the offence for which he or she has been convicted, that is of such a brutal nature as to compel the conclusion that the offender’s behaviour in the future is unlikely to be inhibited by normal standards of behavioural restraint; [Emphasis added.]
[5] Where the requirements of s. 753(1)(a) are met, detention for an indeterminate period will be imposed unless the court is satisfied by the evidence adduced during the hearing of the application that there is “a reasonable expectation that a lesser measure … will adequately protect the public against the commission [of] … a serious personal injury offence”: Criminal Code, s. 753(4.1).
[6] The Crown initially proceeded with a dangerous offender application under both ss. 753(1)(a)(i) and (ii) of the Criminal Code. However, after all of the evidence was adduced but before making closing submissions, the Crown elected to proceed only under s. 753(1)(a)(ii).
[7] The sentencing judge was satisfied that the appellant’s criminal history met the requirements of s. 753(1)(a)(ii): that is, the appellant (1) committed serious personal injury offences; and (2) constituted a threat to the life and safety of others, based on his pattern of “persistent aggressive behaviour”, showing substantial indifference to the reasonably foreseeable consequences to others. The appellant was designated a dangerous offender. He received an indeterminate sentence.
[8] The appellant claims the sentencing judge erred in finding that he exhibits a pattern of “persistent aggressive behaviour” within the meaning of s. 753(1)(a)(ii). The appellant argues that, in accepting that his behaviour was “persistent” within the meaning of that provision, the sentencing judge made the following errors:
A. At the designation stage, the sentencing judge erred by dismissing a six-year gap in the appellant’s history of aggression and by relying on non-aggressive misconduct to fill that gap. This led to the erroneous conclusion that the pattern of behaviour was persistent; and
B. At the penalty stage, the sentencing judge: (1) incorrectly admitted hearsay evidence about the appellant’s alleged plot to break out of custody; (2) ignored compelling and unchallenged evidence about the appellant’s pro-social history; and (3) failed to exhaust less coercive options before imposing an indeterminate sentence.
[9] The appellant therefore asks this court to set aside the dangerous offender designation, substitute a long-term offender designation, and impose an eight-year determinate sentence followed by a ten-year long-term supervision order (“LTSO”). In the alternative, even if the dangerous offender designation is upheld, he asks this court to set aside the indeterminate sentence and substitute an eight-year determinate sentence followed by a ten-year LTSO.
[10] The appellant further claims that if he cannot be found to be a dangerous offender on the basis of “persistent” behaviour within the meaning of s. 753(1)(a)(ii), this court should not uphold the dangerous offender designation by relying on a different provision, that is, s. 753(1)(a)(i), which involves a pattern of “repetitive” behaviour. The appellant notes that the trial Crown made a reasoned and informed decision not to seek his designation under subparagraph (i). The appellant says that he relied on the Crown’s representation and that it would be fundamentally unfair to now permit a reversal of that position, whether at the insistence of the court or the Crown. To do so, he claims, would turn this proceeding into a de novo hearing that would involve weighing evidence and making findings of fact which are generally reserved for sentencing judges. Moreover, the appellant claims he would have to respond to a theory that was not pursued by Crown counsel in the court below.
[11] The respondent asks that the appeal be dismissed. The respondent submits that the sentencing judge did not ignore a gap in the appellant’s history of aggression nor did he rely on non-aggressive misconduct to fill the gap, but rather, correctly concluded that the appellant’s behaviour over time demonstrated a pattern of “persistent aggressive behaviour … showing substantial indifference to the reasonably foreseeable consequences to others” within the meaning of s. 753(1)(a)(ii) of the Criminal Code. The respondent further submits that although the sentencing judge was incorrect in stating that the sole consideration for admissibility of evidence is relevance, his reasons demonstrate that the hearsay evidence about the appellant’s alleged plot to break out from custody was both credible and trustworthy and therefore admissible. The respondent claims that in any event, there is no reasonable possibility the result would have been any different absent this alleged error and the curative proviso is therefore applicable. The respondent also submits that the sentencing judge considered the appellant’s pro‑social behaviour and the expert evidence but properly imposed an indeterminate sentence as there was no reasonable expectation that a lesser measure would adequately protect the public against the commission of a serious personal injury offence.
[12] In the alternative, the respondent submits that even if this court finds that the sentencing judge erred in finding that the appellant met the test for designation as a dangerous offender pursuant to s. 753(1)(a)(ii), his decision can be upheld pursuant to the curative proviso in s. 759(3)(b) on the basis that the error “occasioned no substantial wrong or miscarriage of justice”, as the appellant could have been found a dangerous offender pursuant to s. 753(1)(a)(i), that is on the basis of his “pattern of repetitive behaviour”. Whether the appellant had engaged in a “pattern of repetitive behaviour” showing a failure to restrain his behaviour and a likelihood of causing death or injury to other persons, was a live issue during the evidentiary portion of the proceeding. Both parties’ expert psychiatrists opined on the psychiatric component of s. 753(1)(a)(i) and were available for cross-examination. It was only at the time of closing submissions that the Crown advised that it no longer intended to rely on s. 753(1)(a)(i) as a pathway to a dangerous offender designation. Further, the appellant has been provided the opportunity to make submissions on the applicability of s. 753(1)(a)(i) before this court, on the same record as was before the sentencing judge. As such, had the sentencing judge considered whether the appellant’s criminal history disclosed a pattern of repetitive behaviour, there is no reasonable possibility that the verdict would have been different.
[13] Before engaging in the analysis of the issues, I will outline the stated purpose and legal framework of the dangerous offender provision.
Stated Purpose of the Dangerous Offender Provision
[14] Section 753(1)(a) of the Criminal Code sets out the requirements for designating an offender a “dangerous offender” as a result of violent behaviour: R. v. Boutilier, 2017 SCC 64, [2017] 2 S.C.R. 936, at paras. 16-18. The grounds for finding a person a dangerous offender have not changed since the enactment of the scheme in 1977: Boutilier, at para. 19.
[15] The stated purpose of the reforms to the dangerous offender scheme in 1977 was to protect the public against the rising incidence of violent crime and “people who really indicated a pattern of violence”: Minutes of Proceedings and Evidence of the Standing Committee on Justice and Legal Affairs, 30th Parl., 1st Sess., vol. 4, issue no. 67 (June 17, 1976), at p. 11. The regime was meant to target “[d]angerous offender[s] ... who by reason of character disorder, emotional disorder, mental disorder or defect constitute a continuing danger and who [are] likely to kill, inflict serious bodily injury, endanger life, inflict severe psychological damage or otherwise seriously endanger the personal safety of others”: Report of the Canadian Committee on Corrections, Toward Unity: Criminal Justice and Corrections (Ottawa: Canadian Committee on Corrections, 1969), at p. 258. See also R. v. Lyons, [1987] 2 S.C.R. 309, at p. 323; R. v. Johnson, 2003 SCC 46, [2003] 2 S.C.R. 357, at para. 19; R. v. Steele, 2014 SCC 61, [2014] 3 S.C.R. 138, at para. 29; and Boutilier, at para. 106.
[16] A report, published shortly before the scheme’s enactment, noted that the dangerous offender legislation should “not be based so much on the number of offences as on the type and circumstances of the offences and on the character of the offender”; a pattern of similar offences was to be a relevant consideration: The Honourable H. Carl Goldenberg, Q.C., Parole in Canada (Ottawa: Standing Senate Committee on Legal and Constitutional Affairs, 1974), at pp. 118-21.
[17] Consistent with the stated purpose of public protection, the Court of Appeal for Saskatchewan in R. v. Knife, 2015 SKCA 82, 460 Sask. R. 287, at para. 55, leave to appeal refused, [2015] S.C.C.A. No. 382, observed that past conduct is used as a proxy for assessing future threat in dangerous offender proceedings:
The dangerous offender provisions are not intended to punish the offender again for his or her past offences, regardless of how similar (or dissimilar) they may be. What is important is that, based on those past offences, the offender is likely to continue to offend violently and endanger the public in the future. The past conduct provides the evidentiary basis for assessing the future threat, but it is the future threat that Part XXIV is aimed at curbing. [Emphasis omitted.]
Legal Interpretation of “Pattern of Persistent Aggressive Behaviour” in S. 753(1)(a)(ii)
[18] Where the Crown relies on violent behaviour to obtain a dangerous offender designation, it must satisfy the court that the offender: (1) has been convicted of “a serious personal injury offence”; and (2) constitutes “a threat to the life, safety or physical or mental well-being of other persons” based on one of three enumerated grounds: Boutilier, at paras. 17-18; see also Criminal Code, s. 753(1)(a). One of these grounds is “a pattern of persistent aggressive behaviour … 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”: Criminal Code, s. 753(1)(a)(ii).
[19] But what constitutes “a pattern of persistent aggressive behaviour” in s. 753(1)(a)(ii)?
[20] To answer this question, it is helpful to consider legal interpretations of the provision.
[21] I start with the statutory provisions. Modern statutory interpretation requires “one principle or approach, namely, the words of an Act are to read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament”: E.A. Driedger, Construction of Statutes, 2nd ed. (Toronto: Butterworths, 1983) at p. 87. Statutory interpretation of bilingual statutes such as the Criminal Code “begin[s] with a search for the shared meaning between the two versions”: Ruth Sullivan, The Construction of Statutes, 7th ed. (Toronto: LexisNexis, 2022), at p. 142.
[22] The interpretation of the word "persistent" in the English language version of s. 753(1)(a)(ii) as chronic behaviour that persists over time but need not be continuous, is consistent with the French language version of s. 753(1)(a)(ii). The French version of s. 753(1)(a)(ii) refers to “la répétition continuelle [des] actes d’agression”. One of the synonyms for “continuelle” in Le Petit Larousse (Paris: Larousse, 2003) is “chronique”, which in turn is defined as “qui dure, persiste”: Le Petit Larousse (Paris: Larousse, 2003), at pages 215 and 255.
[23] This interpretation is also consistent with the case law as further outlined below.
[24] The court in Knife, at para. 66, defined a “pattern of persistent aggressive behaviour” as “repetitive behaviour [that] must show a substantial indifference on the part of the offender respecting the reasonably foreseeable consequences to other persons of his or her actions.” See also Courtemanche c. R., 2016 QCCA 881, at para. 23, citing R. v. Hogg, 2011 ONCA 840, 287 O.A.C. 82; and R. v. Neve, 1999 ABCA 206, 71 Alta. L.R. (3d) 92.
[25] Two acts may give rise to a “repetitive” behaviour but, where there are fewer instances, the repetitive acts must generally be more similar: R. v. Gibson, 2021 ONCA 530, 157 O.R. (3d) 597, at para. 223, citing Hogg, at paras. 40 and 43; R. v. Szostak, 2014 ONCA 15, 118 O.R. (3d) 401, at paras. 56-57, leave to appeal refused, [2014] S.C.C.A. No. 300.
[26] In interpreting the dangerous offender legislation, some courts have equated “persistent” with “repetitive”: see e.g., Neve, at para. 111, citing R. v. J.Y. (1996), 141 Sask. R. 132 (C.A.), at para. 25; R. v. Primmer, 2017 ONSC 2953, at para. 139, aff’d 2021 ONCA 564, leave to appeal refused, [2021] S.C.C.A. No. 462; R. v. Naess, [2005] O.J. No. 936 (S.C.), at para. 61; and R. v. Byers, 2011 ONSC 4159, at para. 365, aff’d 2017 ONCA 639.
[27] However, although the earliest decision in J.Y., at paras. 25-26, rejected an argument that the term “persistent” required proof that the behaviour continued in the face of obstacles or opposition, the court did not say the terms were analogous:
The appellant argued that since Parliament had used the term “repetitive behaviour” in s. 753(a)(i), and the term “persistent aggressive behaviour” in s. 753(a)(ii), the term “persistent” in the latter clause should be read as meaning something more than merely repetitive: that there should be proof that the behaviour continued in the face of obstacles or remonstrance, something which was not established in this case, since the appellant had never been previously convicted or otherwise impeded in the pursuit of his activities. However, the Oxford Concise Dictionary defines the word persistent as meaning “enduring” or “constantly repeated”. The judge made no error in finding that the behaviour of the appellant was persistent in view of the fact that the period of time during which he committed the offences of which he was convicted extended from 1964 to 1992 without any significant periods during that time when no offences were being committed.
As noted above, only two of the offences of which the appellant was convicted, counts 1 and 2, are predicate offences for an application under s. 753. However, those two offences were found by the trial judge to be a part of the pattern of persistent aggressive behaviour as required by s. 753. [Bold in original; underlining added.]
[28] Authors Gary Botting, Vincent LaRochelle and Alison Yule in Dangerous Offender Law (Toronto: LexisNexis Canada, 2021), at p. 27, describe “persistence” as “subsistence through a long period of time, a concept quite different from the notion of repetition. While a repetitive pattern of harmful conduct is the main predictive element of paragraph 753(1)(a)(i), the main predictive element of paragraph (ii) is the offender’s indifference to future harm to others arising from their conduct.”
[29] To determine “which past conduct goes on the pattern scale”, the Court of Appeal of Alberta emphasized in Neve, at para. 118, that an understanding of the surrounding circumstances is important as:
Without understanding that context, it would not be possible for a judge to make an informed, reliable assessment on whether the offender’s past behaviour will be likely to lead to harm in the future. After all, whether something is likely to be repeated in the future is linked not only to what happened in the past but why it happened. This being so, it will be evident that if the analysis of past behaviour is undertaken without reference to the surrounding circumstances, this can lead to an undermining of a judge’s conclusion on two different levels – first, in terms of assessing which past conduct goes on the pattern scale; and second, in assessing the likelihood of that behaviour continuing in the future as a result of the offender’s failure to restrain or substantial indifference. [Emphasis added.]
[30] Thus, while the definitions in s. 753(1)(a)(i) and (ii) are different, the patterns under each may overlap. “After all, that is what a pattern entails – repetition”: R. v. McCallum, 2016 SKCA 96, 484 Sask. R. 175, at para. 46, leave to appeal refused, [2016] S.C.C.A. No. 406.
[31] In R. v. Fulton, 2012 ONCA 781, this court held that although the appellant had exhibited a similar pattern of behaviour demonstrating a substantial degree of indifference, this was not enough to designate him a dangerous offender under s. 753(1)(a)(ii) as the sentencing judge had not specifically addressed whether the pattern was “persistent”. The court reasoned, at paras. 13 and 14, that:
In her detailed description of the appellant’s behaviour in the 2003 and 2008 offences, the sentencing judge stressed the features that led her to conclude there was a “pattern”. There is nothing to indicate that she separately considered whether that pattern was persistent. The circumstances of this case required an express discussion of that question.
In this case, the two sets of offences that formed the pattern identified by the sentencing judge were separated by some five years. The appellant had not exhibited violent behaviour otherwise in his history. The complainant in the predicate offences indicated that the appellant had never been violent with her before, and the appellant had not been violent while institutionalized. It is worth noting that the expert called by the Crown, though weakly suggesting one could say there was a pattern in the appellant’s behaviour, did not address whether that pattern was “persistent”. [Emphasis added.]
[32] A pattern of “persistent aggressive behaviour” has been found however, even where there is a lengthy gap between the predicate and earlier offences, where the offender returns to the impugned behaviour.
[33] In R. v. Williams, 2018 ONSC 2030 (“Williams (ONSC)”), aff’d 2022 ONCA 182, the sentencing judge was satisfied that the offender met the criteria for designation as a dangerous offender under ss. 753(1)(a)(i) and (ii) and 753(1)(b) even in the face of a 12-year gap between sexual crimes. The sentencing judge held, at para. 252, that persistence described in s. 753(1)(a)(ii) “connotes behaviour which is enduring, continuous, obstinately persevering, interminable or sustained” and concluded, at para. 287, that:
Review of the s. 753(1)(a)(ii) criteria relating to proclivity for violence reveals a pattern of persistent aggressive behaviour on the part of the offender. The offender has a criminal record for assault in 1990 and 1994 and a history of assault of domestic partners and one of his sons. Apart from this generalized history of violence, the sexual crimes of the offender are all instances of domination of a female victim with a substantial degree of indifference on his part respecting the reasonably foreseeable consequences for his victims. Sexual crimes are inherently offences of violence against the person .... In terms of pattern, the forcible confinement of the female victims in 1997 and 2014, and the forceful acting out on his partialism paraphilia with all his victims, shows a determined, persevering and enduringly repeated course of behaviour of sexual impulses giving way to victimization of others with disregard of the consequences to his victims. The observations respecting s. 753(1)(a)(i) are apposite here respecting future threat based upon high likelihood of harmful recidivism and the intractability of the offender’s conduct. [Emphasis added; footnotes omitted.]
[34] Similarly, in R. v. Brown, 2021 ONCA 678, 158 O.R. (3d) 275, leave to appeal refused, [2021] S.C.C.A. No. 460, this court affirmed a trial judge’s finding that the offender had a pattern of persistent aggressive behaviour and his designation as a dangerous offender under s. 753(1)(a)(ii) even where there was a ten-year gap between the predicate offences and earlier home invasions. In that case, the offender was convicted of various assault and weapons-related offences stemming from a 2012 armed robbery at a car dealership. At the time, he had a significant criminal record, including convictions resulting from two violent home invasion robberies in 2002 and 2003. In addition, his record included drug and firearm offences committed not long after he completed serving his sentence for the home invasions, a 2007 conviction for unlawfully being in a dwelling house, a 2010 conviction for drug trafficking, and convictions for multiple breaches of recognizance and one count of drug possession.
[35] In upholding the trial judge’s decision in Brown, this court noted that it was reasonable to conclude that the predicate offences and home invasions formed a pattern of persistent aggressive behaviour, notwithstanding the ten-year gap:
The appellant submits that the requirement of persistent aggressive behaviour requires a more consistent pattern — more examples of the behaviour and greater similarity among them — than that needed to satisfy the requirement of repetitive behaviour under s. 753(a)(i). Therefore, the trial judge’s approach of finding the same conduct satisfied both ss. 753(a)(i) and (ii) was flawed.
I would not give effect to this argument. 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. In my view, it was reasonable for the trial judge to reach the conclusion that the home invasions and the predicate offences [committed ten years apart] formed a pattern of persistent aggressive behaviour. They each involved aggressive behaviour that was persistent – the appellant returned to the behaviour even after having been convicted and incarcerated for prior episodes of it. [Emphasis added.]
[36] Likewise, in R. v. Robinson, 2011 BCSC 728, at para. 122, the Supreme Court of British Columbia was satisfied that the Crown had proven a pattern of persistent aggressive behaviour despite the absence of “a continuous chain of offences without any significant periods where [the offender] did not offend.” In that case, the court was not ultimately satisfied that all the criteria in s. 753(1)(a)(ii) were met, but it held that the offender had engaged in a pattern of persistent aggressive behaviour because when he “was subjected to stressors”, he “became unstable and resorted to violence”: Robinson, at para. 122.
[37] As the above cases demonstrate, the fact that there is a gap between offences is not determinative provided: (i) there is a pattern of behaviour (ii) involving persistent acts of aggression causing serious harm and demonstrating a substantial degree of indifference to the consequences of the offender’s actions that (iii) creates a serious risk of ongoing harm to the public: see Williams (ONSC), at para. 287; Brown, at para. 55; and Robinson, at para. 122. See also R. v. C.W., 2019 ONCA 976, at para. 28; Neve, at para. 108; R. v. Tynes, 2022 ONCA 866, 165 O.R. (3d) 321, at para. 70.
Evidence About the Offender
[38] In dangerous offender proceedings, the sentencing judge must have a range of information to evaluate “both the public interest in safety and the general sentencing interest of developing the most appropriate penalty for the particular offender”: R. v. Jones, [1994] 2 S.C.R. 229, at pp. 289-90.
[39] In this case, the sentencing judge had evidence of the appellant’s pattern of “aggressive” criminal behaviour, the circumstances of the predicate and prior offences, and the appellant’s indifference to future harm to his victims as set out below.
[40] The appellant is a Guyanese citizen born in 1981 who had been living in Canada since childhood. He became a permanent resident but was deported to Guyana on October 19, 2011 because of his criminal history. In 2012, he returned to Canada unlawfully with the assistance of unnamed parties.
The Appellant’s Criminal Record
[41] As noted by the sentencing judge, the appellant has a significant criminal record that dates back to 1997, beginning when he was a youth offender.
[42] From 1997 to 1999, he was convicted of two counts of assault, two counts of escape lawful custody, three counts of robbery, one count of using a firearm during the commission of an offence, and one count of disguise with intent. After this string of offences, he was incarcerated until August 2000.
[43] In August and September 2002, he committed another series of offences and was convicted on several counts of armed robbery, disguise with intent, and pointing a firearm.
[44] Shortly after his release on these charges, he committed further offences including being party to an assault causing bodily harm in 2009 and engaging in a physical confrontation with police while trying to escape lawful custody in 2010. After serving his time on these offences, he was deported in October 2011.
[45] In total he was convicted of 9 firearm-related offences, 12 robberies (9 as an adult), and 16 further offences. Many involved the use of weapons. In six of the robberies, the appellant used an imitation firearm. In all of the robberies, property was stolen and damaged. In every robbery, the appellant wore a face mask to conceal his identity. Moreover, he threatened correctional officers and escaped lawful custody three times. While at all levels of custody, he committed acts of violence.
The Index Offences
[46] After he was deported in October 2011, the appellant claims that unnamed parties in a criminal organization assisted him to return to Canada in 2012. They told him he was in their debt and that at some point in the future, he would need to “settle up”. At the time, the appellant did not know that repaying this debt would involve an attack on Ms. Malcolm. In 2016, the unnamed parties instructed the appellant to attack Ms. Malcolm, so he did.
[47] The appellant admits he was aware that Ms. Malcolm was a family law lawyer and that the attack was meant to intimidate her in the course of her responsibilities as a family law lawyer.
[48] On June 28, 2016, the appellant approached Ms. Malcolm as she walked to her car after work and assaulted her, striking her with a metal baton 10 to 15 times, rendering her unconscious. The appellant showed indifference to her well-being and continued to beat Ms. Malcolm about the head and body even after she became unconscious. When bystanders came to assist, the appellant fled on foot.
[49] The appellant was identified through DNA from a water bottle that he left at the scene. His image was also captured on surveillance footage.
[50] Ms. Malcolm suffered serious injuries to her jaw, back, hands, and face. She suffers from post-traumatic stress disorder as a result of the attack as well as nightmares and lack of sleep. She said that she constantly replays the day of the crime in her mind and cannot begin to describe the feelings of terror that she felt when the appellant confronted her and hovered over her as he started his attack. She cannot bring herself to return to the building where she had her legal practice.
[51] After the Crown disclosed the surveillance footage and the appellant’s DNA on the inside of a water bottle and found shoes similar to those identified by Ms. Malcolm in his home, the appellant pled guilty to aggravated assault, intimidation of a justice system participant, and possession of a baton contrary to a court order, and the Crown brought this application.
Analysis of the Sentencing Judge’s Reasons
[52] To obtain a dangerous offender designation based on violent behaviour, the Crown must prove that: (1) the predicate offence is a serious personal injury offence; and (2) the offender represents “a threat to the life, safety or physical or mental well-being of other persons”: Boutilier, at paras. 17-18.
The Standard of Review of Dangerous Offender Applications
[53] Appellate review of a dangerous offender designation is focused on legal errors and whether the designation was reasonable: R. v. Sipos, 2014 SCC 47, [2014] 2 S.C.R. 423, at para. 23. The sentencing judge’s determinations of credibility and the appropriate sentence are entitled to deference: Boutilier, at paras. 81 and 88; R. v. Sawyer, 2015 ONCA 602, 127 O.R. (3d) 686, at para. 29; and R. v. Hunter, 2015 ABCA 276, 26 Alta. L.R. (6th) 348, at para. 5. While appellate review in dangerous offender cases is “somewhat more robust” than “regular” sentence appeals, it does not amount to a trial de novo of the dangerous offender application: Sipos, at paras. 23-27; Sawyer, at paras. 26-29; and Boutilier, at para. 81.
[54] Section 759(3)(b) allows an appellate court to dismiss an appeal, even in the face of legal error, provided the court is satisfied that there is “no reasonable possibility that the verdict would have been any different had the error of law not been made” and that the error “has resulted in no substantial wrong or miscarriage of justice”: R. v. Johnson, 2003 SCC 46, [2003] 2 S.C.R. 357, at paras. 47-49; Boutilier, at paras. 82-83; and Sipos, at para. 24.
Issues at the Designation Stage
[55] The first issue is whether the sentencing judge erred in concluding that the appellant’s behaviour formed a “pattern of persistent aggressive behaviour”.
[56] The sentencing judge correctly instructed himself on the criteria for designation as a dangerous offender pursuant to s. 753(1)(a)(ii): a pattern of persistent aggressive behaviour, the predicate offence forming a part of that pattern, and substantial indifference to the foreseeable consequences of the offender’s behaviour. He held that to qualify as “persistent”, the past aggressive behaviour must be enduring, which, as I have found, is the correct interpretation of s. 753(1)(a)(ii). This can be established either by showing a pattern of similar kinds of offences or similar degrees of violence inflicted on the victims: Neve, at para. 111.
Was There a Pattern of Persistent Aggressive Behaviour?
[57] The index offences are serious personal injury offences. As noted by the sentencing judge, they include aggravated assault, possession of a weapon while prohibited, and intimidation of a justice system participant, offences that were “gratuitously violent and resulted in significant physical and psychological harm to the victim.” Aggravated assault is a serious offence for which the maximum sentence is 14 years’ imprisonment: Criminal Code, s. 268(2).
[58] For the purpose of determining whether these serious personal injury offences are part of a “pattern” of “persistent aggressive behaviour”, the sentencing judge examined the appellant’s criminal record, the circumstances under which those offences and the predicate offences were committed, and the evidence of indifference to the consequences for victims.
[59] The sentencing judge noted that the appellant engaged in a course of persistent aggressive behaviour over the last 20 years, including assaults of escalating severity. His robberies, like the index offences, were “inherently threatening and aggressive.” He brandished weapons to force compliance and many of his attacks resulted in bodily harm and trauma to his victims. The sentencing judge held that the appellant’s use of weapons “speaks to his willingness to engage in highly dangerous conduct.”
[60] He also noted that:
In addition to the offences for which he was convicted, Mr. Smith also has a number of documented incidents of aggression while in custody that may be considered part of the pattern. Mr. Smith engaged in assaults … at Millhaven in July 2008 where the victim was stabbed six times with a makeshift shank. This shows continuing aggressive behaviour even in the face of penitentiary-level controls and a sentence that should have acted as a strong deterrent.
[61] There is no question that the period from 1997 to 2010 reflects a long pattern of violent offences using weapons, that resulted in serious harm to innocent persons. The question remains whether this pattern was broken during the period from 2010 to 2016.
Was the Pattern of Persistent Aggressive Behaviour Broken?
[62] The appellant claims that the sentencing judge erred in failing to consider that the pattern of “persistent aggressive behaviour” was broken by the appellant’s pro-social behaviour in the six years prior to the commission of the index offences and that the sentencing judge erred by using non-aggressive behaviour to dismiss the gap.
[63] I do not agree that the sentencing judge erred. The evidence of the appellant’s persistent aggressive behaviour relied upon by the sentencing judge amply supported his conclusion that there was no meaningful gap.
[64] The evidence of the appellant’s persistent aggressive behaviour during the alleged “gap” is as follows.
[65] In November 2009, the appellant was party to an assault causing bodily harm and in March 2010, he engaged in a physical altercation with police while trying to escape lawful custody. He was incarcerated until he was deported to Guyana on October 19, 2011. As noted by the Crown’s expert psychiatrist Dr. Woodside in his report, the appellant remained in Guyana for six to eight months trying to arrange his return to Canada.
[66] While trying to arrange his return to Canada, the appellant participated in trafficking both humans (sex workers) and drugs into South America. In his report, Dr. Woodside recounted in part what the appellant told him about his efforts to return to Canada:
Mr. Smith also disclosed he became involved with criminals in Guyana as part of his efforts to return to Canada, after being introduced by one of his cousins. He explained he promised to help them/repay them if they helped him to return to Canada. He also reported saying he could act as an intermediary for individuals in Canada and Guyana. Mr. Smith stated these individuals were involved in shipping guns and drugs to Canada. He noted he had been exposed to a “whole criminal subculture” while serving his federal sentence.
The criminals in Guyana arranged for fake ID for him and he took a boat from Guyana to Suriname. Mr. Smith then took a bus and a boat with prostitutes to French Guyana. Once there, he flew to St. Vincent where he met up with other individuals in a pre-arranged fashion. Mr. Smith explained he paid off various officials as part of his travels, using money supplied by criminal associates in Guyana. He noted he was paid in part for escorting the prostitutes and drugs to French Guyana. [Emphasis added.]
[67] Trafficking has come to be understood as an offence of violence giving way to the victimization of others: R. v. Parranto, 2021 SCC 46, 463 D.L.R. (4th) 839, at para. 89, per Moldaver J. (concurring); see also R. v. Mack, [1998] 2 S.C.R. 903, at p. 978. The Supreme Court has long recognized that the illicit drug trade is a “pernicious scourge” on society that “permits sophisticated criminals to profit by inflicting suffering on others”: R. v. Grant, [1993] 3 S.C.R. 223, at p. 241. The same can be said about human trafficking. As such, the appellant’s admitted involvement in human and drug trafficking during this period does not constitute a break in his pattern of persistent aggressive behaviour.
[68] The sentencing judge considered the gap in the appellant’s criminal record between the time of his return to Canada sometime between April and June 2012 and June 28, 2016, when the index offences were committed:
The one “gap” in Mr. Smith’s record was the 4-year period from 2012 to 2016 after he illegally returned to Canada. This period does not represent a meaningful break in his offending. After illegally sneaking back into the country with the help of criminals, Mr. Smith attempted to lay low to avoid detection. He acknowledged in the s. 752.1 report that he was still tied to his criminal associates during this time, committing non-violent crimes at their behest. When his associates came calling, instructing him to violently assault an innocent person, he did so with minimal resistance…. The circumstances just happened to be such that the need to commit further aggressive acts did not arise until June 2016. Once they did, Mr. Smith immediately re-engaged with his pattern: one of committing crimes for instrumental purposes with substantial indifference to the consequences for his victim. The pattern was still in full force.
The persistence of Mr. Smith’s aggressive behaviour is evidenced by the regularity of his offending, which has continued with virtually no breaks since he was 15 years old. This regularity is underscored by the fact that Marvin Smith breached every court order that was imposed against him. His violence escalated, He remains undeterred and uncontrollable. [Emphasis added.]
[69] Viewed in the context of the appellant’s complete record of violent offences, the sentencing judge found that the gap did not break the pattern of persistent aggressive behaviour.
[70] The sentencing judge also addressed the fact that the appellant showed a substantial degree of indifference to the reasonably foreseeable consequences of his behaviour on others. In particular, he noted the findings of the Crown’s expert psychiatrist, Dr. Woodside. While Dr. Woodside acknowledged the appellant’s stated fear for his safety and that of his family, he opined that the appellant expressed no emotion toward his victims. The sentencing judge also noted that while Dr. Woodside was told of the appellant’s apparent reliability as a construction worker, this was “qualified by the fact [the appellant] had maintained ongoing contact and involvement with criminally oriented peers (eventually leading to the index offence).”
[71] The sentencing judge also considered that the appellant’s common law partner, with whom he lived between 2012 and 2016, described him as a “supportive caregiver to her handicapped son and a person who supports the family unit”. He noted however, that Dr. Woodside testified that the appellant continued to engage in criminal activity despite his supports and opined that:
[I]t is not uncommon for offenders (even psychopaths) to be capable of having loving relationships with family, but that empathy must extend to others. He testified that Mr. Smith’s supports have not been a protective influence for him (as he has continued to engage in criminal activity and has deceived them in this regard).
[72] In his report, Dr. Woodside noted that the appellant continued to associate with his criminal contacts, hoping “to make some money from them on the side, becoming involved as a middle-man in the drug trade.” This was despite his insistence to Dr. Woodside that his partner “showed [him] a new way of life” and that he “became a regular guy when [he] met her.” Moreover, Dr. Woodside observed that the appellant had refused to allow his family members and social supports to be notified that he had pleaded guilty to an offence, the facts of the offence, the fact that he was subject to a dangerous offender proceeding, or his ongoing association with criminals.
[73] When looking at the evidence as a whole, the sentencing judge concluded that the appellant’s pro-social relationships did not serve to deter him from his ongoing escalation of criminal activity culminating in the gratuitous violent beating of Ms. Malcolm with a metal baton even after she had become unconscious. The sentencing judge concluded that the appellant had engaged in a pattern of persistent aggressive behaviour:
The predicate offence forms part of the pattern of persistent aggressive behaviour and is the culmination of that pattern. The repeated and persistent commission of orchestrated and instrumental violence in association with others is inherently dangerous conduct. [Emphasis in original.]
[74] He noted that the persistence was repeated and occurred “despite court orders and carceral containment.”
[75] Deference is owed to a sentencing judge’s findings of fact and taken together,
i. the number of prior similar offences (a cluster of violent offences in 1997-1998, another cluster of violent offences in 2005, another violent offence in 2010, and the most violent offence in 2016);
ii. the lengthy period over which they were committed;
iii. the fact that all of these offences “involved aggressive behaviour that was persistent – the appellant returned to the behaviour even after having been convicted and incarcerated for prior episodes of it” (as in the case of Brown, at para. 55);
iv. the prolonged escalation of violence of which this offence is the most serious; and
v. the appellant’s ongoing association with a criminal organization,
support the sentencing judge’s conclusion that, viewed in the context of the evidence as a whole, the appellant’s behaviour in committing the index offences was part of a pattern of persistent aggressive behaviour.
[76] While I agree with the sentencing judge that the period between 2012 and 2016 is the actual gap, even if the period were 2010 to 2016 as submitted by the appellant, for the reasons set out above, the evidence is sufficient to constitute a longstanding pattern of persistent and escalating aggressive behaviour.
[77] As noted above, the fact that there is a gap between offences is not determinative provided there is a persistent pattern of aggression and a substantial degree of indifference to the consequences of the offender’s actions: see e.g., C.W., at para. 28; Neve, at para. 108; Williams (ONSC), at para. 287; Brown, at para. 55; and Robinson, at para. 122.
[78] The appellant cites R. v. Caston, 2019 BCPC 140, at para. 267, for the proposition that “significant periods … during which no offences occurred” (between 1987 to 1996 and 2000 to 2016 in Caston) undercut any finding of persistent aggressive behaviour. However, unlike Caston, in this case, there was only one 4-year gap during which no violent offences occurred and this does not undercut the finding of frequency of violent offences when looked at in the context of the appellant’s 20-year criminal history. As the sentencing judge observed, “[t]he circumstances just happened to be such that the need to commit further aggressive acts did not arise” during this period and that “[a]ny gaps in [the appellant’s] criminal record can be attributed to the fact that he was either incarcerated or deported.”
[79] Likewise, the appellant’s reliance on Fulton is misplaced. In that case, there were only two sets of domestic assault offences separated by five years and the appellant never otherwise exhibited violent behaviour. Here, in contrast, there was an extensive pre-existing record of violent offences that persisted over many years.
[80] I therefore see no error in the sentencing judge’s conclusion that the appellant exhibited persistent aggressive behaviour. Moreover, the sentencing judge recognized that his long pattern of violent behaviour showed his indifference to the suffering of his victims:
Mr. Smith has done so much more than attack Ms. Malcolm with this inherently dangerous weapon. Marvin Smith has ruined the lives of small business owners, disfigured the face of another inmate, caused injuries to correctional staff, threatened and advocated for planned violence against others as a group effort, and planned to break out of prison to bypass his sentencing on the predicate offences. He has remained indifferent to the harm or suffering of others.
[81] For these reasons, I would dismiss this ground of appeal.
Issues at the Penalty Stage
Did the Sentencing Judge Err in Admitting Hearsay Evidence of the Appellant Seeking to Break Out of Custody?
[82] The appellant claims that in determining sentence, the sentencing judge erred in admitting the hearsay evidence of his alleged “break-out” attempt from pre-sentence custody. [1] This evidence was relevant to the issue of whether the appellant’s behaviour could be controlled.
[83] As noted above, it is important for the sentencing judge to have as much information as possible to evaluate “the public interest in safety and the general sentencing interest of developing the most appropriate penalty for the particular offender” and to properly evaluate the risk posed by the offender, as the overriding aim is not to punish the offender but to prevent future violence through the imposition of an indeterminate sentence: Jones, at pp. 289-90; R. v. Williams, 2018 ONCA 437 (“Williams (ONCA)”), at paras. 47-49, leave to appeal to refused, [2019] S.C.C.A. No. 164. As with any sentencing hearing, hearsay evidence is admissible in a dangerous offender proceeding provided it is “credible and trustworthy”: Williams (ONCA), at paras. 48-49; R. v. Gardiner, [1982] 2 S.C.R. 368, at p. 414.
[84] The sentencing judge permitted the introduction of hearsay evidence on a Go-Pro video from Kurt Downer, an individual who claimed that the appellant confided in him about a breakout. At the time of the sentencing hearing, Mr. Downer had an outstanding warrant for his arrest and the police were unable to locate him. As a result, Mr. Downer was not present to testify.
[85] On the Go-Pro video, Mr. Downer described to two other individuals a request he said he received from the appellant to assist him in escaping from custody while the appellant was at the Centre for Addiction and Mental Health for psychiatric assessments.
[86] In determining whether this video was admissible, the sentencing judge incorrectly stated that the sole consideration for admissibility of the evidence was relevance. While he did undertake some analysis of the reliability of the video, he did not directly address whether the evidence from Mr. Downer, who had a serious criminal record, was credible and trustworthy. Nor did he address the fact that Mr. Downer did not testify, or that Mr. Downer may have lied, misrepresented, or otherwise exaggerated his purported conversation with the appellant: see e.g., R. v. Blackman, 2008 SCC 37, [2008] 2 S.C.R. 298, at para. 51. Instead, he permitted the introduction of this evidence as he found it to be reliable given the specificity, detail, and accuracy of the information provided. Although the corroborative evidence that Mr. Downer used the appellant’s nickname and that his discussion coincided with the timing of the appellant’s meetings with the psychiatrist, confirm that he was talking about the appellant, they do not confirm that the appellant in fact asked Mr. Downer for help to escape from custody.
[87] However, assuming the Go-Pro evidence was improperly admitted, the incident was only one of many instances of the appellant’s attempts to evade the jurisdiction of the courts, escape lawful custody, and enter Canada illegally in contravention of a deportation order. The sentencing judge noted that:
Mr. Smith has been convicted of escape lawful custody. He has circumvented detection efforts at the border. He has remained undetected, despite committing multiple criminal acts, for four years subsequent to his unlawful return to Canada. His past efforts and present intentions buttress a very real concern for supervision and management. These intentions are directly relevant to the phase two analysis on a Dangerous Offender application. More generally, since the Supreme Court of Canada’s decision in Boutilier, his efforts in trying to escape from custody are also directly relevant to this Court’s risk assessment at the designation phase.
[88] The sentencing judge’s concern about the appellant’s lengthy history of violence, his indifference to the consequences for others, and the ongoing serious risk to public safety for the foreseeable future would not have been altered by the removal of the evidence from Mr. Downer about one more alleged attempt to break out of custody.
[89] For these reasons, even if Mr. Downer’s evidence was inadmissible, I would invoke s. 759(3)(b) and dismiss this ground of appeal on the basis that there is no reasonable possibility that the verdict would have been any different had the error of law not been made and thus the error resulted in no substantial wrong or miscarriage of justice.
Did the Sentencing Judge Ignore Evidence of the Appellant’s Pro-Social Behaviour in Assessing his Likelihood to Reoffend?
[90] The appellant claims that in considering whether the appellant’s risk could be managed in the community, the sentencing judge failed to consider his pro-social behaviour.
[91] The sentencing judge did consider the evidence of the appellant’s pro-social behaviour but held that his pattern of violence was intractable:
His personal traits, history of instrumental violence, and specifically his vulnerability to external pressures intensify his future risk, not attenuate it (as Dr. Gojer would have the Court accept). External pressures in life are inevitable. Mr. Smith is clearly deeply engrained in a criminal subculture. The record provides little confidence that he will suddenly disengage from that lifestyle. His attempt in October 2017 to “break-out” is but one example.
“Intractability” has been established. … He has not been motivated for treatment in the past. He failed to integrate what he did learn. He has made no effort to address these issues since his arrest. He has failed to be deterred despite incarceration, attempts at programming and family supports. [Anti-social personality disorder] is resistant to change. The disorder is managed, not treated. Mr. Smith has demonstrated that he is not manageable. … The evidence on the record suggests that Mr. Smith’s behaviour is “intractable” in that his violent offending presents a future risk of harm and indifference to others that will not abate in the near future.
[92] The sentencing judge held that not only was there a long history of escalating violent offences, but the gap between violent offences was not due to any change in the appellant’s behaviour but instead to the fact that the criminal organization did not call on him to commit a violent offence until 2016. He noted that the appellant was still tied to his criminal associates during this period and that, once he was called on to assist again in 2016, he “immediately re-engaged with his pattern” of “committing crimes for instrumental purposes with substantial indifference to the consequences for his victim.” He held that:
Mr. Smith’s actions were instrumental in nature. He owed a debt to a criminal organization that had facilitated his illegal re-entry into Canada and he paid this debt by viciously attacking Ms. Malcolm. I find that any “fear component” has materialized as a result of the current position Mr. Smith now finds himself.
[93] The sentencing judge accepted Dr. Woodside’s evidence that, while the appellant exhibited some pro-social behaviour in his family and employment relationships, this did not lessen his danger to the public because, at the same time, “he maintained ongoing contact and involvement with criminally oriented peers (eventually leading to the index offence)”, he expressed no emotion toward the victim of the index offences, and he saw the commission of these offences as a “means to an end”.
[94] The sentencing judge also considered the expert evidence about the appellant’s psychiatric condition, namely that:
i. The appellant suffers from anti-social personality disorder, which is resistant to change, and risk management for the disorder focuses on supervision rather than treatment;
ii. The appellant is at an above average risk to re-offend;
iii. He possesses a significant number of psychopathic traits such as impulsivity, deficiencies in conscience development related to his dysfunctional personality, and association with criminals; and
iv. He has shown a substantial degree of indifference respecting the reasonably foreseeable consequences of his behaviour on others.
[95] In short, the sentencing judge properly considered the pro-social evidence but found that there was ample evidence of the appellant’s likelihood to reoffend given his past response to supervision and inability to constrain his aggressive criminal behaviour. I would therefore dismiss this ground of appeal.
Did the Sentencing Judge Err in Determining the Appropriate Sentence?
[96] The appellant submits that even if this court upholds the dangerous offender designation, it should substitute a determinate sentence of eight years followed by a ten-year LTSO for the indeterminate sentence imposed. The appellant claims that the sentencing judge did not consider options other than an indeterminate sentence or conduct any meaningful analysis of the options.
[97] As noted above, where the requirements of s. 753(1)(a) are met, detention for an indeterminate period will be imposed unless the court is satisfied by the evidence adduced during the hearing of the application that there is “a reasonable expectation that a lesser measure … will adequately protect the public against the commission of … a serious personal injury offence”: s. 753(4.1).
[98] A reasonable expectation in this context was described by this court in R. v. Straub, 2022 ONCA 47, 160 O.R. (3d) 721, at para. 62, as suggesting a “likelihood”, “a belief that something would happen”, or “a confident belief, for good and sufficient reasons.” The standard of “reasonable expectation” is more stringent than reasonable possibility: Straub, at para. 71; Tynes, at para. 99.
[99] Absent any material error of law, a dangerous offender designation is a question of fact entitled to deference: Boutilier, at para. 85.
[100] The sentencing judge was clearly aware of the sentencing framework, which he set out under the heading “Label versus sentence”. He also cited the goal of protection of the public, the need for evidence of treatability, and a reasonable expectation that the offender can be treated within a defined period, failing which an indefinite sentence must be imposed: Straub, at paras. 62-63. The sentencing judge, referencing Boutilier, at para. 69, and R. v. Spilman, 2018 ONCA 551, 362 C.C.C. (3d) 415, at para. 30, also noted that he must “exhaust the least coercive sentencing option required to address recidivism before imposing an indeterminate sentence.”
[101] The sentencing judge accepted Dr. Woodside’s negative prognosis about the appellant’s risk to reoffend. In both his report and testimony, Dr. Woodside concluded that the appellant had an extremely poor history of response to supervision which he considered significantly negative in terms of manageability in the community and which distinguished him from most other offenders. Dr. Woodside did not believe that supervision and treatment would be sufficient to manage the appellant’s risk of violent recidivism based in part on the limited data about previous treatment the appellant had received, how he had done upon release, the inability to control him even in supervised settings which was “more towards the negative end”, and the fact that it was “concerning, to say the least” that the appellant was deported, returned to Canada, and continued to engage in criminal activity leading up to the index offences. He also opined that the fact that the appellant was able to be in Canada, undetected, for approximately four years, meant that it might be possible for the appellant to disappear again. Therefore, while recognizing the ten-year limit of a LTSO, Dr. Woodside testified that the appellant would best be treated and supervised in perpetuity, with the most intense level of supervision possible.
[102] The sentencing judge found that there was no reasonable expectation that anything less than an indeterminate sentence would protect the public from the appellant committing another serious personal injury offence. He accepted Dr. Woodside’s expert evidence that his personality disorder can only be managed and not treated, his opinion that the appellant could not be safely controlled or treated and would have to be supervised in perpetuity (without which there is a substantial likelihood that he will reoffend using violence), and the evidence about the appellant’s lack of motivation to change (as evidenced by his ongoing association with criminals and criminal organizations over a 20-year period).
[103] While the sentencing judge did not give extensive reasons for finding the appellant intractable, unmanageable, at high risk to reoffend and untreatable, it is clear from reading the reasons as a whole that the sentencing judge considered and concluded that a lesser sentence could not be imposed. On the evidence adduced, I see no reason to interfere with the sentence imposed. I would therefore dismiss this ground of appeal.
Conclusion
[104] I would dismiss the appeal on the basis that the appellant meets the requirements of s. 753(1)(a)(ii), as he has demonstrated a pattern of persistent aggressive behaviour and an indifference to the consequences on his victims, and nothing short of an indeterminate sentence would adequately protect the public against the commission of a serious personal injury offence.
[105] I therefore need not deal with whether this court ought to substitute a finding that the appellant satisfies the requirements of s. 753(1)(a)(i).
[106] I would grant leave to appeal the sentence but would dismiss the sentence appeal.
Released: September 5, 2023 “L.B.R.” “Thorburn J.A.” “I agree. L.B. Roberts J.A.” “I agree. I.V.B. Nordheimer J.A.”
[1] The sentencing judge’s reasons for admitting the “break-out” evidence are available at R. v. Smith, [2018] O.J. No. 5124 (C.J.).
