Publication Ban Warning

WARNING

The President of the panel hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.4(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences;

(i) an offence under section 151, 152, 153, 153.1, 155, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and

(b) on application made by the victim, the prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of their right to make an application for the order; and

(b) on application of the victim or the prosecutor, make the order.

(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community.

486.6(1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order.

Court of Appeal for Ontario

DATE: 20230920 DOCKET: C67038

Doherty, Rouleau and Zarnett JJ.A.

BETWEEN

His Majesty the King Respondent

and

F.C. Appellant

Counsel: Jolene Hansell, for the appellant Rebecca De Filippis, for the respondent

Heard and released orally: September 18, 2023

On appeal from the sentence imposed on February 1, 2018 by Justice Colin McKinnon of the Superior Court of Justice.

Reasons for Decision

[1] The appellant was designated a dangerous offender and given an indeterminate sentence. He appeals from his sentence. The appellant raises one ground of appeal. He submits, that contrary to the holding in R. v. Boutilier, 2017 SCC 64, at paras. 42-45, the trial judge failed to consider the appellant’s treatability when determining whether he should be designated a dangerous offender under s. 753(1)(a) or (b). Counsel argues that the trial judge wrongly considered treatability only after he had decided the appellant should be designated a dangerous offender and turned his mind to the question of the appropriate penalty. Counsel maintains that Boutilier requires that treatability be considered at both the designation and penalty phases of the dangerous offender proceeding.

[2] We cannot agree with counsel’s submissions.

[3] Counsel for the appellant at the dangerous offender hearing identified the appellant’s treatability as the “singular issue” on the dangerous offender application. The trial judge, at paras. 119-20 of his reasons, referred to and relied on Boutilier to support the following:

• Future treatment prospects, i.e., treatability, are relevant to an assessment of future risk and therefore relevant to whether a person should be designated a dangerous offender under s. 753(1)(a) or (b).
• Evidence of treatability is relevant to both the designation and penalty phases of the application.

[4] The trial judge followed the law as laid down in Boutilier.

[5] We also agree with the respondent that if the trial judge did err and considered treatability only at the penalty stage of the application, the error caused no prejudice to the appellant.

[6] The trial judge was satisfied there was no realistic possibility the appellant would respond positively to treatment. The trial judge reviewed the evidence at some length and his factual findings offer strong support for his conclusion.

[7] Even if the trial judge erred in reaching the conclusion only in the context of a determination with respect to penalty, the same conclusion would inevitably have been drawn when deciding whether the appellant should be designated a dangerous offender. There is nothing in the evidence to suggest that a finding of untreatability would not have equal application at both the designation and penalty phases.

[8] Counsel also submits that when considering treatability, the trial judge confused “treatability with curability”. Once again, we cannot agree.

[9] The trial judge discussed the evidence referrable to treatability at length. Most of that evidence went strongly against the appellant. The trial judge made a single reference to curability, describing pedophilia as “incurable”.

[10] Curability is certainly relevant, although not determinative of treatability. As the remainder of the trial judge’s reasons demonstrate, he did not treat incurability as decisive, but instead looked to the prospects of controlling the risk posed by the appellant through a number of treatment modalities. The trial judge ultimately held: “There is no reasonable basis for believing the appellant’s risk can eventually be controlled in the community.” We would not interfere with that finding.

[11] The appeal is dismissed.

“Doherty J.A.”

“Paul Rouleau J.A.”

“B. Zarnett J.A.”