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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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

CITATION: R. v. Ahmed, 2023 ONCA 676

DATE: 20231016

DOCKET: C68359

Simmons, Miller and Harvison Young JJ.A.

BETWEEN

His Majesty the King

Respondent

and

Abdirahman Ahmed

Appellant

Abdirahman Ahmed, acting in person (via videoconference)

Amy Ohler, appearing as amicus curiae

Dena Bonnet, for the respondent

Heard: March 24, 2023

On appeal from the sentence imposed by Justice Lynn Ratushny of the Superior Court of Justice on June 22, 2017, with reasons reported at 2017 ONSC 3491.

Simmons J.A.:

A. Introduction

[1] Following guilty pleas to five offences and a lengthy sentencing proceeding, on June 22, 2017, the appellant was designated as a dangerous offender under ss. 753(1)(a)(i) and (ii), and 753(1)(b) of the Criminal Code and sentenced to an indeterminate period of imprisonment.

[2] The main issues on appeal concern whether the sentencing judge failed to provide sufficient reasons for designating the appellant as a dangerous offender and whether the conduct of amicus curiae at the dangerous offender hearing (not Ms. Ohler) caused actual prejudice to the appellant or an appearance of unfairness rising to the level of a miscarriage of justice and requiring a new trial.

[3] Although represented by counsel on the guilty pleas in the court below, the appellant eventually chose to be self-represented at the dangerous offender hearing (the “DOH”). Prior to the commencement of the DOH, the appellant expressed a wish to consent to the dangerous offender designation. The sentencing judge did not accept that proposal and instead appointed amicus curiae (“trial amicus”) to ensure the fairness of the DOH.

[4] The DOH proceeded in two phases. Following her appointment, trial amicus requested that a second dangerous offender assessment be prepared under s. 752.1 of the Criminal Code. The DOH was accordingly adjourned after the bulk of the Crown’s evidence had been adduced so that the second assessment could be completed.

[5] During the second phase of the DOH, over the objections of the appellant, trial amicus called Dr. Fedoroff, the psychiatrist who prepared the second dangerous offender assessment, to testify. Although Dr. Fedoroff agreed with the Crown psychiatrist, Dr. Klassen, that from a psychiatric perspective the appellant meets the criteria for designation as a dangerous offender, he supported consideration of a determinate sentence of imprisonment combined with a long‑term supervision order (“LTSO”).

[6] The appellant participated only minimally in the first phase of the DOH but participated more actively in the second phase. By the conclusion of the DOH, it was clear he opposed a dangerous offender designation. Nonetheless, in her written closing submissions, trial amicus agreed with the Crown that the appellant meets the statutory criteria for designation as a dangerous offender but recommended that a determinate sentence of imprisonment and an LTSO should be imposed.

[7] The appellant is self-represented on appeal and filed notices of appeal against both conviction and sentence[^1]. However, he abandoned his conviction appeal at an inmate sitting of this court on September 9, 2021. This court accordingly directed that the appeal would be against sentence only.

[8] On March 30, 2021, this court appointed amicus curiae (“appeal amicus”) for the appellant’s appeal.

[9] At the appeal hearing, the appellant made brief submissions and then absented himself from the proceeding after this court held that, without a notice of motion and supporting material, we would not entertain submissions concerning re-opening his conviction appeal.

[10] In his notice of appeal, the appellant submits that the sentencing judge did not follow the law by designating him as a dangerous offender.

[11] Appeal amicus identifies four issues on appeal.

[12] Concerning the dangerous offender designation, she submits that the sentencing judge failed to provide sufficient reasons for designating the appellant a dangerous offender and further erred by failing to consider intractability and treatability at the designation stage (the Boutilier[^2] error).

[13] Concerning the indeterminate sentence of imprisonment imposed, appeal amicus submits that the sentencing judge erred by imposing an evidentiary burden on the appellant to establish a reasonable expectation of eventual control in the community.

[14] Finally, appeal amicus argued that trial amicus failed to ensure the fairness of the DOH in two crucial respects, causing actual prejudice to the appellant: i) conceding that the appellant meets the criteria for designation as a dangerous offender, and ii) adopting the Crown’s position that the appellant bore the onus of establishing a reasonable expectation of eventual control in the community, i.e., that a sentence other than an indeterminate sentence of imprisonment would adequately protect the public from the commission of murder or a personal injury offence.

[15] Following the Supreme Court of Canada’s decision in R. v. Kahsai, 2023 SCC 20, 483 D.L.R. (4th) 199, we invited submissions from the parties concerning the impact, if any, of that decision on this case. The appellant did not respond to our request. Appeal amicus submitted that this case is distinguishable from Kahsai because the appellant suffered actual prejudice resulting from trial amicus’s failure to ensure the fairness of the DOH in a manner that contributed to the sentencing judge’s errors. Further, if we are not satisfied that the appellant suffered actual prejudice, appeal amicus submitted that we must go on to consider whether trial amicus’s performance created an appearance of unfairness so serious as to amount to a miscarriage of justice.

[16] Given that the appellant withdrew from the appeal hearing, the Crown asked that we dismiss his sentence appeal as abandoned. Rather than do so, for reasons that follow, I would dismiss the appellant’s sentence appeal on the merits.

B. Relevant statutory framework

[17] To help appreciate the evidence and understand the issues, I will briefly explain the relevant dangerous offender provisions. Although only one hearing is held, a dangerous offender proceeding involves two stages: the designation stage and the penalty stage.

[18] The designation stage is governed by s. 753(1) of the Criminal Code, which provides four routes to designation. As only three of these routes are at issue in this case, I will set out the relevant provisions below, omitting s. 753(1)(a)(iii).

[19] As will be seen, the two routes at issue under ss. 753(1)(a)(i) and (ii) are premised on findings that i) the offender has been convicted of a serious personal injury offence, and ii) the offender constitutes a threat to the life, safety or physical or mental well-being of other persons based on evidence establishing one of two categories of behaviour, which must include a predicate offence.

[20] The available route under 753(1)(b) is premised on findings that i) the offender has been convicted of a serious personal injury offence, and ii) the offender by their conduct in a sexual matter, including a predicate offence, has shown a failure to control their sexual impulses and a likelihood of causing injury, pain or other evil to other persons through failure in the future to control their sexual impulses.

[21] The sections at issue read as follows:

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

(b) that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (b) of the definition of that expression in section 752 and the offender, by his or her conduct in any sexual matter including that involved in the commission of the offence for which he or she has been convicted, has shown a failure to control his or her sexual impulses and a likelihood of causing injury, pain or other evil to other persons through failure in the future to control his or her sexual impulses. [Emphasis added.]

[22] There is no dispute in this case that the offences to which the appellant pleaded guilty included serious personal injury offences as defined in s. 752 of the Criminal Code, so I will not set out those definitions.

[23] The penalty phase of the DOH is governed by ss. 753(4) and (4.1), which give a sentencing judge three options: i) an indeterminate period of imprisonment, ii) a composite sentence consisting of a determinate period of imprisonment and an LTSO, and iii) a determinate sentence for the offence(s) of which the offender was convicted. Notably, s. 753(4.1) states that the sentencing judge shall impose an indeterminate period of imprisonment unless the sentencing judge is satisfied that there is a reasonable expectation that one of the other two options will adequately protect the public against the commission by the offender of murder or a serious personal injury offence:

753 (4) If the court finds an offender to be a dangerous offender, it shall

(a) impose a sentence of detention in a penitentiary for an indeterminate period;

(b) impose a sentence for the offence for which the offender has been convicted – which must be a minimum punishment of imprisonment for a term of two years – and order that the offender be subject to long-term supervision for a period that does not exceed 10 years; or

(c) impose a sentence for the offence for which the offender has been convicted.

(4.1) The court shall impose a sentence of detention in a penitentiary for an indeterminate period unless it is satisfied by the evidence adduced during the hearing of the application that there is a reasonable expectation that a lesser measure under paragraph (4)(b) or (c) will adequately protect the public against the commission by the offender of murder or a serious personal injury offence.

[24] Under s. 757 of the Criminal Code, it is open to the court to admit evidence of an offender’s character or repute at a dangerous offender hearing. When tendered by the Crown such evidence often encompasses institutional records:

757. Without prejudice to the right of the offender to tender evidence as to their character and repute, if the court thinks fit, evidence of character and repute may be admitted

(a) on the question of whether the offender is or is not a dangerous offender or a long-term offender; and

(b) in connection with a sentence to be imposed or an order to be made under this Part.

C. Background

(1) The Predicate Offences

[25] The appellant was designated as a dangerous offender after pleading guilty to a total of five offences on two different dates, October 4, 2013 and November 20, 2015.

(a) The appellant’s October 4, 2013 guilty pleas

[26] On October 4, 2013, the appellant pleaded guilty to four offences that led to the Crown initiating the dangerous offender proceeding.

[27] Three of those offences arose from an incident that occurred in August 2011: sexual assault with a weapon, unlawful confinement, and uttering threats to cause bodily harm.

[28] At around 2 or 3 a.m. on August 26, 2011, two men and a woman knocked on the victim’s apartment door, apparently looking for someone. They left after the victim confirmed they were at the wrong location. The appellant returned a few minutes later and asked to use the victim’s phone. After being allowed inside, the appellant held a knife to the victim’s throat and threatened to stab her. Over a period of time, he forced the victim to have unprotected oral, anal and vaginal intercourse with him, and digitally penetrated her. The appellant also bit her during the course of the assault. The victim testified to moving her body so that he ejaculated on her back, as she feared pregnancy and sexually transmitted diseases. The victim managed to escape from her apartment wearing only a long overshirt and eventually flagged down a passerby on the street. The appellant was arrested following a DNA match while incarcerated for a previous sexual assault committed in May 2011.

[29] The fourth offence to which the appellant pleaded guilty on October 4, 2013 was assaulting a peace officer. On April 27, 2013, while detained at the Ottawa Carleton Detention Centre (the “OCDC”) for the August 2011 offences, a correctional officer saw the appellant urinating in a toilet, felt spray on his shirt and saw the appellant scooping liquid out of the toilet and throwing it at the hatch in the door.[^3]

[30] At the time of the October 4, 2013 guilty pleas, the appellant was represented by counsel and aware that the Crown would be seeking the consent of the Attorney General to bring a dangerous offender application.

(b) The appellant’s November 20, 2015 guilty plea

[31] On November 20, 2015, prior to the commencement of the DOH, the appellant pleaded guilty to assault causing bodily harm in relation to a fellow inmate.

[32] On August 21, 2015, while detained at the OCDC pending the DOH, the appellant “sucker-punched” a fellow inmate in the head from behind, knocking him to the ground unconscious. Other inmates tried to restrain the appellant, but he managed to break free and kick the victim and stomp on the victim’s head several times.

[33] At the time of his guilty plea on November 20, 2015, the appellant was again represented by counsel, albeit not the same lawyer who represented him in October 2013.

(2) Other sexual assaults relied on by the Crown

[34] In addition to the August 2011 sexual assault with a weapon and related offences to which the appellant pleaded guilty on October 4, 2013, in support of its dangerous offender application the Crown relied on two other sexual assaults committed by the appellant, one that occurred in May 2011 and another, previously uncharged, offence that occurred in April 2009.

(a) The May 2, 2011 sexual assault

[35] After meeting the appellant with others on an earlier occasion, the 17‑year‑old homeless victim attended a house party the appellant was attending. Both consumed alcohol and then left the party together. At some point, the appellant led the victim to an alley and began to kiss her. When she resisted, he pushed her to the ground. He grabbed her cell phone and threw the battery away after she tried to call for help. He told the victim to remove her pants and threatened to stab her if she refused. He had the victim lay down, vaginally penetrated her with his penis, directed her to sit on his face, and then demanded she perform fellatio on him. After she did so, the appellant penetrated her vaginally with his penis once again. The victim cried the entire time. The appellant told her to say that she “liked it.” Eventually the appellant let her go when she persisted in telling him she did not want this.

[36] The appellant was arrested in February 2012 and convicted of sexual assault and uttering threats on April 17, 2012. The appellant was sentenced to 33 months imprisonment in addition to three months credit for pre-sentence custody for these offences, which he served to the warrant expiry date of August 30, 2015.

(b) The April 2009 sexual assault

[37] In October 2014, an uncontested Gardiner hearing was held as part of the dangerous offender proceeding with respect to an uncharged sexual assault the appellant committed in April 2009. The Crown adduced the facts underlying this uncharged offence as an aggravating factor on sentencing.

[38] On the day of the incident, the then 24-year-old appellant had just been released from custody, either that day or the previous day. He asked the 16‑year‑old victim, with whom he was acquainted, to meet him in the stairwell of an apartment building and bring some beer. Both drank a beer. The appellant tried kissing the victim and putting his hands down her pants. When she resisted, he forced her to the ground, pulled down her pants and anally penetrated her. The victim described the appellant holding her arms back as she struggled to pull herself away and screamed in pain. She was left with her hands and wrists reddened and scratched from the struggle. The sexual assault ended when a stranger entered the stairwell and attempted to call the police. In her victim impact statement, the victim said she suffered from post-traumatic stress disorder.

[39] At the time of the Gardiner hearing, the appellant was represented by the same counsel who represented him on his October 4, 2013 guilty pleas.

(3) Counsel is removed, the appellant becomes self-represented, and trial amicus is appointed

[40] Following the October 2014 Gardiner hearing, in March 2015, the appellant’s counsel at the time sought to be removed from the record due to irrevocable damage to the solicitor-client relationship. The application was granted.

[41] The appellant was able to retain new counsel by October 2015 and the dangerous offender hearing was accordingly scheduled to begin in March 2016.

[42] However, at a November 19, 2015 status hearing, the appellant indicated that he wished to take a “different course of action” and produced a letter he had written. The matter was put over to the next day to allow the appellant’s counsel an opportunity to speak with him.

[43] On November 20, 2015 (the same day as the appellant pleaded guilty to the August 2015 assault causing bodily harm), the appellant’s counsel indicated that the appellant no longer wished to contest the dangerous offender proceedings. In his letter to the court the appellant expressed remorse and indicated that he wished to “consent” to a “joint submission with the [Crown’s] position”. The matter was put over to January 2016 for a further status hearing.

[44] At the January 18, 2016, status hearing, the appellant’s counsel indicated that the appellant no longer wanted her to represent him. The appellant indicated that he wished to represent himself and that he wished to consent to the Crown’s position. The sentencing judge said she would consider appointing amicus curiae and put the matter over to the following week.

[45] At the next hearing, on January 27, 2016, the appellant reiterated that he wished to represent himself at the dangerous offender proceedings. The sentencing judge indicated that she would not accept the appellant’s consent to the Crown’s position without “further exploration.”

[46] In addition, given the complicated nature of proceedings, the sentencing judge appointed the appellant’s now-removed defence counsel as trial amicus. The sentencing judge explained to the appellant that trial amicus was appointed as counsel for the court, not him, but that the parameters of her appointment were to ensure a fair hearing for him. In the order appointing trial amicus, the duties assigned included: “ensur[ing] a fair hearing … bring[ing] to court all issues that should be explored and … question[ing] all witnesses to explore those issues”.

[47] Following her appointment, trial amicus sought an order for a second s. 752.1 dangerous offender assessment. The order was made on terms that the report would only be disclosed to the appellant, trial amicus, and the court.

(4) The appellant’s participation during the first phase of the DOH

[48] The DOH began as scheduled in March 2016. The Crown called the bulk of its evidence over 13 days and the hearing was then adjourned to permit completion of the second s. 752.1 dangerous offender assessment requested by trial amicus.

[49] The Crown witnesses included Dr. Philip Klassen, the psychiatrist who prepared the s. 752.1 dangerous offender assessment requested by the Crown, and other witnesses who gave evidence concerning the appellant’s criminal record and records relating to his behavioural history and institutional conduct.

[50] The appellant’s participation during this initial phase of the hearing was minimal. He chose not to review the Crown’s application record, asked few questions of Crown witnesses and requested that trial amicus not question Crown witnesses. On a few occasions, he drew trial amicus’s attention to issues he wished to raise. In accordance with her mandate, trial amicus cross-examined the Crown witnesses.

(5) The appellant’s background

[51] Although the appellant did not testify at the DOH, the sentencing judge noted that information about his personal history was available from the psychiatric reports that were before the court.

[52] The appellant was born in Kenya in 1985 but is of Somali descent. He immigrated to Canada with his family and settled in Ottawa in 1992. He is a Canadian citizen. His parents separated three years after the family’s arrival, and his father moved to California. The appellant reported being physically abused by his father and that he was afraid of his father. He said one of his brothers was killed in 2012 as a victim of crime and another suffers from severe schizophrenia.

[53] The appellant left school at the age of 14 while in grade nine after being initially suspended for stealing and subsequently expelled. He said he first stole at age 10 and first committed a break and enter at 16. Initially such crimes were often in the company of others but later he was more likely to steal alone and when consuming alcohol.

[54] Over the years, the appellant lived with his mother or a girlfriend or on the street. The appellant held multiple short-term jobs in retail and construction. When not employed he supported himself primarily through criminal activity or Ontario Works.

[55] The appellant admitted to drinking heavily to Dr. Klassen and also experimenting with cocaine and crack cocaine, the latter between the ages of approximately 18 and 20. The appellant refused to discuss the circumstances of his 2012 conviction for sexual assault.

[56] The appellant was 32 years old when the DOH concluded and had last been in the community in 2012 at age 27.

(6) The appellant’s criminal record and behavioural and institutional history

[57] The Crown called several witnesses to lead evidence of the appellant’s criminal record and his behavioural and institutional history.

[58] The appellant’s criminal record, including his youth record, begins in 2002 when he was 17, and contains approximately 31 offences. In addition to the predicate offences and the May 2011 sexual assault relied on by the Crown, it includes findings of guilt and convictions for mischief, theft, breaches of court orders, uttering threats, obstruction of justice, robbery (2004), assault with a weapon (2007) and five break and enters (2002, 2005, two in 2010, and 2012).

[59] The appellant received his first, and only, penitentiary sentence in August 2012 following his conviction for the May 2011 sexual assault with a weapon and related offences. However, once arrested in February 2013 for the August 2011 predicate offences, he was transferred back to the OCDC from the penitentiary pending his guilty pleas and ultimately the dangerous offender proceeding.

[60] In addition to the appellant’s criminal record, the Crown also led evidence of a number of “non-charged” incidents leading to interactions with the police beginning when the appellant was 12 years old. These included incidents of shoplifting, threatening, extortion, solicitation, possession of marihuana and two domestic incidents (one involving his brother and sister and one an ex-girlfriend).

[61] Institutional records from the Ministry of Community and Correctional Services disclosed that between February 2004 and December 2014, the appellant was convicted of 38 institutional offences, including possession of contraband and homemade weapons, threats, assaults, uttering gross insults and wilfully disobeying or breaching institutional requirements as a result of which he spent significant periods of time in segregation.

[62] Two OCDC employees gave evidence concerning the appellant’s extensive history at that institution while serving short sentences or detained on remand. The misconduct for which he was sanctioned led to him spending considerable time in segregation. Correctional staff also reported observing the appellant engaging in self-harm. Medical records documented instances of the appellant hoarding medication. At times, he was reported to be hot-tempered and depressed. The OCDC health care manager reviewed the records relating to self-harm and incidents of hoarding medication and said there were times the appellant would refuse health care treatment. He said the appellant was a “challenging case” and stated that “efforts that might work for most … would not work for him.”

[63] In her reasons, the sentencing judge accepted submissions from trial amicus that the records also showed that, on a number of occasions, the appellant would apologize for his conduct and say that it would not happen again. Further, the records referred to him having feelings of helplessness, despair, depression and anxiety. The sentencing judge also accepted that it was a reasonable inference from these records and the appellant’s statements and demeanour at the DOH that he experienced desperation as a result of his numerous incarcerations.

[64] There was no evidence that the appellant received any form of treatment or educational programs while at the OCDC. In 2010, the OCDC referred him to St. Lawrence Valley Correctional Institute for treatment because of suspected “serious psychiatric, psychological problems.” During the four months he spent there, the appellant refused to take certain medications because of their side effects (breast enlargement) and often refused direct orders and dominated or otherwise disrupted therapy groups. Following an apparent suicide attempt, he was transferred back to the OCDC.

[65] Once transferred to the penitentiary in 2012, the appellant was enrolled in the high intensity sex offender treatment program. He began the assessment but refused to complete it. However, he later agreed to be placed on a waiting list for the program but was transferred back to the OCDC before being re-enrolled. He therefore had no further opportunity to access federal programming.

(7) The Crown’s psychiatric evidence

(a) Dr. Gray

[66] Dr. Gray prepared a psychiatric assessment of the appellant dated August 23, 2012 for sentencing purposes in relation to the May 2011 sexual assault. His report was filed as an exhibit at the DOH, but he did not testify.

[67] Dr. Gray diagnosed the appellant with antisocial personality disorder and polysubstance abuse. He determined the appellant’s risk of future violent or sexual offending was in the moderate range based on actuarial testing but said other factors suggested the appellant’s risk of future criminal behaviour was higher. These factors included the appellant’s history of alcohol use, criminal offences, unwillingness to submit to treatment and being disruptive in the treatment milieu. He assessed the appellant’s future treatment prospects as poor.

(b) Dr. Klassen

[68] Dr. Klassen’s report dated February 4, 2015 was entered as an exhibit and he also testified during the first phase of the DOH.

[69] Despite the appellant’s lack of formal education, Dr. Klassen noted that he presented as bright, verbally skilled, and intellectually able. He diagnosed the appellant as not suffering from a major mental illness but suffering from a personality disorder or disorders and a substance use disorder or disorders. He described the appellant’s personality structure as complex. While he concluded that the appellant meets the criteria for anti-social personality disorder he found that the appellant also presented with symptoms of borderline personality and narcissistic personality disorders. He said these “three personality styles do tend to cluster somewhat”, but his opinion was that the appellant “is most substantially anti-social.”

[70] Dr. Klassen concluded that the appellant’s actuarial risk to reoffend placed him “at high risk of serious (sexual or violent) recidivism”. These included a score of 35 out of 40 on the Psychopathic Checklist Revised (PCL-R); a score of 40 on the Sex Offender Risk Appraisal Guide, which placed him in the 99th percentile for re-offence; and a score of 7 on the STATIC-99R, which placed him in the 97th percentile for recidivism.

[71] Dr. Klassen described the appellant as having an “acquisitive stream” of offending, which he explained as “taking what [you] want, when [you] want it”. This description encompassed not only offences such as the appellant’s convictions for breaking and entering, but also the sexual assaults he committed, because they were opportunistic in nature. Further, the predicate offence of assault causing bodily harm, committed while the DOH was pending, showed the appellant’s persistent opposition to authority and continuing difficulties with criminal sentiments and impulse control, even while incarcerated. He said the appellant’s offending was “dense”, with violent offending in both the community and in custody. Moreover, the appellant’s recidivism had been serious.

[72] Concerning treatability, Dr. Klassen said the appellant had been un‑engageable in treatment. He cited at least six occasions on which the appellant declined or left treatment. He viewed the appellant’s time at St. Lawrence Valley Treatment Centre between October 2010 and February 2011 as being especially unsuccessful and noted that two of his sexual offences took place within months of his discharge (May 2011 and August 2011).

[73] Although the appellant had been polite in declining to discuss his sexual offences, this was a factor, along with the appellant’s opposition to authority, personality disorder, and PCL-R score that could hinder treatment going forward. Dr. Klassen expressed the view that the appellant was “the author of not receiving treatment” which was consistent with his high PCL-R score. While Dr. Klassen agreed that the appellant’s willingness to engage in treatment was a factor that could change over time, he said that, thus far, the appellant had not provided a reason for optimism that he could engage in treatment.

[74] Dr. Klassen opined that from a psychiatric perspective the appellant meets the test for dangerous offender designation and that, in his view, there was no evidence to support a finding that there is a reasonable possibility of eventual control in the community.

(8) The second phase of the dangerous offender hearing

[75] The dangerous offender hearing resumed in October 2016 following completion of the second dangerous offender assessment under s. 752.1 that had been requested by trial amicus. Trial amicus informed the sentencing judge that the appellant had contacted her with a list of information he required and witnesses he wished to have subpoenaed. Further, she indicated she intended to call Dr. Fedoroff, who conducted the second s. 752.1 dangerous offender assessment, and that she had disclosed his report to the Crown. Although the appellant was opposed to trial amicus leading this evidence, the sentencing judge admitted the report and permitted her to call Dr. Fedoroff as a witness.

[76] The appellant asked for an additional adjournment to review the Crown’s application, but subsequently withdrew that request. He said he had been focused on the mistreatment he had received while incarcerated since February 2012. However, he realized that was not important. He asked that the sentencing judge overlook incidents that could arise from a jail environment and focus on his violence against three women which he made no excuses for. He said, “I pled guilty, and I’ve not received any programs.”

[77] Two OCDC witnesses were called to give further evidence. For the first time at the dangerous offender hearing, the appellant conducted a meaningful cross‑examination of a witness, eliciting evidence of problems such as staffing shortages that led to lockdowns at the institution and tensions among and misconduct by inmates.

[78] Trial amicus called Dr. Fedoroff and then re-called Dr. Klassen. Other than briefly cross-examining Dr. Klassen, the appellant did not participate in examining these witnesses. However, following their testimony, the appellant expressed an interest in obtaining legal advice to set aside some of his guilty pleas. I will return to this issue and other events below.

(9) The second dangerous offender assessment – Dr. Fedoroff’s evidence

[79] As I have said, Dr. Fedoroff’s dangerous offender assessment report was filed as an exhibit and he gave oral evidence during the second phase of the DOH.

[80] Dr. Fedoroff largely agreed with the findings and opinion of Dr. Klassen. In his report, he placed the appellant at a “moderate-high risk” for re-offence, finding him to fall in the 96th percentile of adult male sex offenders, meaning only about three percent of these offenders scored higher than him. This score indicated he posed approximately five times the risk of sexual reoffending compared to the “typical sexual offender.” Dr. Fedoroff agreed in cross-examination that the appellant could even be at a “very high risk”. He also diagnosed the appellant with poly-substance abuse disorder and possible sadism.

[81] Dr. Fedoroff explained in his evidence that the latter diagnosis was because the reports of the appellant’s crimes indicated that the appellant used excessive force. He did things that not only allowed him to have sex with non-consenting partners, but he also did things that would have terrified them, such as threatening them with a knife. In Dr. Fedoroff’s words, the appellant also spoke “about sort of the rush, of doing, you know, illegal things”.

[82] Although Dr. Fedoroff also agreed that, from a psychiatric perspective, the appellant meets the statutory criteria for a dangerous offender designation, it was unclear to him if Dr. Klassen had considered whether there was a lesser measure than an indeterminate sentence that could adequately protect the community.

[83] While Dr. Fedoroff acknowledged that anti-social personality disorder is not amenable to treatment in itself, he observed that many anti-social behaviours disappear with treatment for the underlying cause of the behaviour. Dr. Fedoroff said that the appellant could benefit from avoiding substances and from having a circle of support, particularly from a group called the Circle of Support and Accountability, a volunteer-based supportive community. He also recommended treatment for depression and attention deficit disorder which could support the appellant’s ability to participate in treatment.

[84] Because the appellant had not been treated, Dr. Fedoroff was not prepared to opine that he could not be treated. Dr. Fedoroff supported consideration of a determinate sentence to be followed by a long-term supervision order (“LTSO”). In his view, because the appellant was untreated, a determinate sentence could provide the necessary motivation for the appellant to avail himself of treatment that could reduce his risk of recidivism.

(10) Trial amicus recalls Dr. Klassen

[85] Following Dr. Fedoroff’s testimony, trial amicus recalled Dr. Klassen. After reviewing Dr. Fedoroff’s report, Dr. Klassen testified that he “would not be horrified” by a lengthy determinate sentence followed by an LTSO. He gave evidence about age-related declines in recidivism and the limitations of actuarial tools to predict violent recidivism beyond 10 years. Nonetheless, he said that, while things can change, based on what he knew about the appellant, there was nothing he could point to that would permit him to say there was a reasonable expectation of eventual control in the community.

(11) Application to strike the guilty pleas

[86] Following the testimony of Drs. Fedoroff and Klassen the appellant expressed an interest in obtaining legal advice and ultimately said he wished to apply to set aside his guilty pleas to the August 2011 predicate offences (sexual assault with a weapon, unlawful confinement and uttering threats). The appellant obtained independent legal advice and the application eventually proceeded. The appellant testified and was cross-examined. However, the appellant refused to attend court on a subsequent date and the application was dismissed as abandoned.

(12) Closing submissions

[87] The Crown and trial amicus agreed to prepare written submissions on the application. When setting the schedule for written submissions, the sentencing judge asked trial amicus to provide, as much as possible, a balance to the Crown’s submissions, and to reflect the appellant’s concerns in her submissions, even if by way of separate submissions, in case the appellant failed to do so. Although the sentencing judge acknowledged that she could not compel the appellant to meet with trial amicus, the sentencing judge recommended that he do so.

[88] In written submissions, the sentencing Crown sought a dangerous offender designation under ss. 753(1)(a)(i) and (ii) and 753(1)(b) of the Criminal Code[^4]. Further, in a section titled “onus on the offender to establish manageability in the community”, the sentencing Crown argued that although “the Crown bears the onus of proof beyond a reasonable doubt to establish an offender meets the dangerous offender criteria, the Crown does not bear this onus of proof in relation to the question of whether there is a reasonable possibility of control in the community.”

[89] The sentencing Crown noted that, although there were slight differences in the particulars of their diagnoses, both psychiatrists who had prepared dangerous offender assessments agreed that the appellant meets the statutory criteria for designation as a dangerous offender. The sentencing Crown submitted that the central issue for the court was whether any evidence had been adduced demonstrating a reasonable expectation of eventual control within the community. While acknowledging that the psychiatrists diverged on the issue, the sentencing Crown argued there was no evidence beyond expressions of hope that the appellant’s risk of re-offence could be controlled within the community within an appropriate time.

[90] In her written submissions, trial amicus agreed that the appellant meets the criteria to be designated as a dangerous offender but argued that the designation was more appropriately made under s. 753(1)(a) given his varied criminal history and the evidence that his offending behaviour was more opportunistic and not specifically sexually based. Trial amicus also took the position that the onus was on the appellant to establish a reasonable expectation of eventual control in the community. However, she urged the sentencing judge to rely on the evidence of Dr. Fedoroff and consider imposing a determinate sentence and LTSO, also noting that the appellant had served most of his sentences in provincial detention centres, where little to no programming is available.

[91] The appellant did not provide any written submissions. On the day that oral submissions were set to begin, trial amicus reported that the appellant did not want her to make oral submissions. The sentencing judge therefore declined to hear oral submissions from the Crown or trial amicus.

[92] Trial amicus advised the court that the appellant’s position was that he should not be designated a dangerous offender. The appellant made oral submissions expressing concerns about the amount of time psychiatrists spent with him and the challenges he experienced while detained. He also sought permission to bring an application for a stay of proceedings under s. 11(b) of the Charter and an application to appoint counsel to assist with that application. The appellant’s applications were dismissed.

D. The sentencing judge’s reasons

[93] As I have said, the sentencing judge designated the appellant as a dangerous offender under ss. 753(1)(a)(i) and (ii), and 753(1)(b) of the Criminal Code and imposed an indeterminate sentence of imprisonment.

[94] At the outset of her reasons, she noted that the appellant chose to call no evidence on the sentencing hearing, with the result that she accorded diminished weight to his various comments during the DOH. The sentencing judge then set out her conclusions that i) the evidence adduced overwhelmingly led to a finding that the appellant is a dangerous offender and further, ii) that because there was no evidence supporting a reasonable expectation that a determinate sentence would adequately protect the public, there was no option but to impose an indeterminate sentence of imprisonment.

[95] The sentencing judge observed that the Crown had extensively reviewed the evidence adduced at the DOH in 122 paragraphs of its written closing submissions. Accordingly, she intended to review the evidence only in broad brush terms. She then began her analysis by stating that the Crown’s evidence supported the psychiatric diagnoses and risk assessments from the two expert psychiatric witnesses, which she accepted.

[96] Before considering the appropriate sentence, the sentencing judge gave reasons for designating the appellant a dangerous offender, a subject I will return to when addressing the issues raised by trial amicus.

[97] Turning to the appropriate sentence, the sentencing judge noted that the expert evidence unanimously considered the appellant to pose a high risk of future serious sexual or violent recidivism. She accepted that evidence as persuasive and said:

The issue comes down to whether on all of the evidence the court can be satisfied that “there is a reasonable expectation that a lesser measure” of a determinate sentence followed by a long-term supervision order not exceeding 10 years or, another sentence, “will adequately protect the public against the commission by the offender of murder or a serious personal injury offence.” [Emphasis in the original.]

[98] The sentencing judge agreed with the submission of trial amicus that this issue required serious consideration. She noted that while Dr. Klassen saw no basis in the appellant’s behavioural or management history that could be relied on to support a reasonable expectation of eventual control, Dr. Fedoroff had encouraged the court to consider a determinate sentence and LTSO. Ultimately she rejected his recommendation as no more than an expression of hope for change that would not adequately protect the public:

As I understand Dr. Fedoroff’s Report and his testimony, he is influenced in making this recommendation by the fact that [the appellant] has not received any treatment to date. He is unprepared, therefore, to opine that [the appellant] is untreatable because of no evidence in this regard, and he hopes that by virtue of the encouragement and motivation of a determinate sentence, [the appellant] will turn towards appropriate treatment available in the correctional facilities. After lengthy treatment, Dr. Fedoroff is essentially saying, [the appellant’s] high risk of recidivism might be reduced.

Dr. Fedoroff’s opinion was that [the appellant’s] expression to him wanting to make himself better was genuine, particularly when referencing his daughter. … Based on all the evidence on this sentencing hearing, however, I can only conclude that this remains a speculative hope based only on words from [the appellant], without any evidence of engagement in meaningful change and without any evidence that with a new attitude, treatment might help him manage his behaviour in the community.

I understand the basis for Dr. Fedoroff’s recommendation and appreciate his empathy for [the appellant] who, for reasons no doubt related to his personality disorder(s) and his failure in “the major tasks of adulthood” as commented on by Dr. Klassen, has put himself in a situation substantially devoid of any treatment to date.

However, as in other cases [citations omitted] where expressions of hope cannot by themselves be evidence of a reasonable expectation that the determinate sentence will adequately protect the public, this is one of those cases. There is, I agree with Dr. Klassen, no evidence to support this hope. We all wish it were otherwise. As Dr. Fedoroff has stated, [the appellant] presents as a very worrisome individual. [Citations omitted, emphasis added]

E. Analysis

(1) The standard of review

[99] Under s. 759 of the Criminal Code, an individual designated as a dangerous offender can appeal their designation or sentence on any ground of law, fact, or mixed fact and law. The Supreme Court has held that although “appellate review of a dangerous offender designation is somewhat more robust” than the regular standard of review on a sentence, deference is still owed to the findings of the sentencing judge: Boutilier, at para. 81, quoting from R. v. Sipos, 2014 SCC 47, [2014] 2 S.C.R. 423, at para. 26. In an appeal under s. 759, errors of law are reviewed on a correctness standard and errors of fact are reviewed on a reasonableness standard: Boutilier, at para. 81.

[100] Even where there has been an error of law, in rare circumstances, a court of appeal may dismiss an appeal under s. 759(3)(b) where no substantial wrong or miscarriage of justice resulted from the error: Boutilier, at para. 82. Whether a miscarriage of justice arose is a question of law reviewed on a standard of correctness: Kahsai, at para. 68.

[101] A miscarriage of justice can arise from unfairness in fact or in appearance: Kahsai, at para. 67, citing R. v Khan, 2001 SCC 86, [2001] 3 S.C.R. 823, at paras. 69 and 73. Where an appearance of unfairness, rather than actual prejudice, is alleged to result in a miscarriage of justice, the degree of unfairness must rise to a higher standard. An appellant would need to show that, considering the circumstances of the hearing as a whole, “a well-informed and objective person would find an appearance of unfairness so serious that it would shake their confidence in the administration of justice”: Kahsai, at paras. 68, 76-77.

(2) Did the sentencing judge fail to provide sufficient reasons for designating the appellant a dangerous offender?

[102] Appeal amicus submits that the sentencing judge’s reasons for designating the appellant a dangerous offender were conclusory and that she failed to make the evidentiary findings necessary to support her conclusions that the appellant meets the statutory criteria for designation.

[103] As noted above, the sentencing judge found that the appellant meets the statutory criteria for designation under ss. 753(1)(a)(i) and (ii), and 753(1)(b) of the Criminal Code.

[104] In oral submissions, appeal amicus submitted that the sentencing judge failed to identify what patterns of conduct she relied on to support her findings under ss. 753(1)(a)(i) and (ii). Nor did the sentencing judge explain how she reached her conclusion under s. 753(1)(b). Appeal amicus submits such analysis and findings are essential because they allow the sentencing judge to assess the future risk a particular offender poses, which, in turn, is essential to determining the appropriate sentence to manage the offender’s risk.

[105] Appeal amicus points in particular to the following portion of the sentencing judge’s reasons:

Firstly, I find [the appellant] “constitutes a threat to the … safety … of other persons” on the basis of all of the evidence summarized before, including his past conduct, criminal convictions, institutional misconducts, the predicate offences and the expert evidence, because all of that evidence establishes “a pattern of repetitive behaviour… showing a failure to restrain his behaviour and a likelihood of causing … injury to other persons… through failure in the future to restrain his behaviour.” (s. 753(1)(a)(i))

Secondly, I find [the appellant] “constitutes a threat to the … safety … of other persons” on the basis of all of the evidence summarized before, including his past conduct, criminal convictions, institutional misconducts, the expert evidence and the predicate offences including more recently the predicate offences committed while in custody, because all of that evidence establishes “a pattern of persistent aggressive behaviour… showing a substantial degree of indifference” on his part “respecting the reasonably foreseeable consequences to other persons of his behaviour.” (s. 753(1)(a)(ii))

Thirdly, by his conduct in relation to his two convictions for sexual assault and the 2009 uncharged sexual assault, when considered together with all of the other evidence and in particular the expert evidence with respect to his personality disorder(s), substance use disorder(s) and high risk of serious sexual or violent recidivism, I find [the appellant], “has shown a failure to control his sexual impulses and a likelihood of causing injury, pain or other evil to other persons through failure in the future to control his sexual impulses.” (s. 753(1)(b))

As a consequence, I find [the appellant] to be a dangerous offender under each of these three subsections. [Emphasis in original.]

[106] I would not accept appeal amicus’s submissions on this point. The task of an appellate court in assessing the sufficiency of reasons is to determine “whether the reasons, read in context and as a whole, in light of the live issues at trial, explain what the trial judge decided and why they decided that way in a manner that permits effective appellate review”: R. v. G.F., 2021 SCC 20, 163 O.R. (3d) 480, at para. 69. In conducting this analysis, an appellate court may also look to the record. Even where the trial reasons do not explain the “what” and the “why”, where the answers to those questions are obvious from the record, there is no error: G.F., at para. 70.

[107] I acknowledge that the sentencing judge did not engage in an analysis of the meaning of the expressions “a pattern of repetitive behaviour” and “a pattern of persistent aggressive behaviour” in making her findings. However, in my view, such an analysis was unnecessary in the particular circumstances of this case. That the appellant meets these thresholds and qualified as a dangerous offender under all three sections under which the sentencing judge designated him was patent from the evidence the sentencing judge reviewed. Based on the totality of the evidence, there was no live issue that the appellant meets the criteria for designation as a dangerous offender under all three subsections.

[108] On their face, the facts of the three sexual assaults on which the Crown relied meet the requirements of “a pattern of repetitive behaviour” and also show a failure by the appellant to restrain his behaviour and sexual impulses (ss. 753(1)(a)(i) and 753(1)(b)).

[109] Despite protests by his victims, the appellant used force and/or threats to rape three women. In the case of the April 2009 sexual assault, the day of or after being released from jail, the appellant used force to restrain and anally rape a sixteen-year-old acquaintance with whom he was having a beer in the stairwell of an apartment building.

[110] In the case of the May 2, 2011 sexual assault, again shortly after he was released from jail, the appellant pushed to the ground and subsequently threatened to stab a 17-year-old homeless girl he had recently met. He proceeded to vaginally rape her, force her to sit on his face, demand that she perform oral sex on him, and then vaginally rape her again.

[111] In the case of the August 26, 2011 sexual assault, the appellant entered the home of a stranger under a pretext, held a knife to her throat, vaginally and anally raped her and also bit her.

[112] All three sexual assaults are examples of the appellant using threats and force to take what he wants, when he wants it, as described by Dr. Klassen. They also demonstrate a failure to control his sexual impulses. The repetition, increasing frequency, and violence involved in these attacks also demonstrate a likelihood of the appellant causing injury to other persons in the future through a failure to restrain his behaviour and sexual impulses.

[113] Similarly, the predicate offences and the other sexual assaults on which the Crown relied met the requirements of “a pattern of persistent aggressive behaviour” and showed a substantial degree of indifference on the part of the appellant respecting the reasonably foreseeable consequences to other persons of his behaviour (s. 753(1)(a)(ii)).

[114] Even if the three sexual assaults were not sufficient, standing alone, to cross the threshold of showing “a pattern of persistent aggressive behaviour”, adding the 2015 assault causing bodily harm offence to these offences clearly pushed the appellant’s behaviour across this threshold. The fact of a four-year gap between the offences does not preclude such a finding: see R. v. Smith, 2023 ONCA 575, at paras. 33-37. Moreover, the fact that the appellant had been incarcerated since February 2012, which was mere months after he committed the second and third sexual assaults, and the further fact that he chose to commit a serious personal injury offence while incarcerated, and while facing dangerous offender proceedings, demonstrates a high level of persistence in engaging in aggressive behaviour.

[115] Appeal amicus argues that important differences in the circumstances of the sexual assaults committed by the appellant undermine the conclusion that they meet the definition of “a pattern of repetitive behaviour”. For example, she points out that the appellant was acquainted with the victim of the 2009 sexual assault. In contrast, he first met the victim of the May 2011 sexual assault a short time before it happened and then encountered her again, apparently by happenstance, at a party. The August 2011 sexual assault was effectively a home invasion perpetrated against a stranger.

[116] Appeal amicus relies on R. v. Walsh, 2017 BCCA 195, 348 C.C.C. (3d) 1, at para. 44, where the court noted that, in making a finding of “a pattern of repetitive behaviour” based on two incidents, the sentencing judge had incorrectly stated that “some similarity” in behaviours would satisfy the requirement of “a pattern of repetitive behaviour” – whereas what is actually required to find such a pattern based on so few incidents is “a very high degree of similarity”. In this case, says appeal amicus, the offences are quite different in nature.

[117] I do not view the distinctions on which appeal amicus relies as being significant. This court has considered what is meant by “a pattern of repetitive behaviour” on several occasions. In R. v. Hogg, 2011 ONCA 840, this court quoted extensively from the explanation of the meaning of that phrase set out in R. v. Dow, 1999 BCCA 177, 134 C.C.C. (3d) 232, a decision relied on in Walsh.

[118] Among other things, in Dow, at paras. 22-25, the court discussed the nature of a relevant pattern:

So there must be a pattern revealed by repetitive behaviour; the pattern must contain an element that the dangerous behaviour was not restrained in the past; and there must be a likelihood that the same behaviour in the future will not be restrained and will cause death or injury.

… [T]hose three elements serve to define the relevant characteristics of the pattern for the purposes of subpara. 753(a)(i).

… [T]he significance and the relevance of common elements of the pattern must be determined by whether they tend to show first, repetitive behaviour second, that there has been a failure in each case to restrain the behaviour, and third, that there has been injury to other persons arising from that failure.

I add that it is the very essence of a pattern that there be a number of significant relevant similarities between each example of the pattern that is being considered, but that, at the same time, there may be differences between each example, some of them quite distinctive, so long as the differences leave the key significant relevant elements of the pattern in place. [Emphasis added.]

[119] Importantly, in Dow, which involved four main incidents of sexual assault or attempted sexual assault, neither the fact that Mr. Dow did not penetrate his most recent victim, nor the fact that he knew one of his victims, but not the others, was sufficient to negative the existence of a pattern of repetitive behaviour.

[120] In Hogg, at para. 40, after quoting from the explanation of the nature of a relevant pattern in Dow, this court concluded that the offences involved in a pattern of repetitive behaviour need not be the same in every detail. Rather, what is important is that the pattern “has to contain 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.”

[121] More recently, in R. v. Wong, 2023 ONCA 118, citing Hogg at para. 40 and R. v. Szostak, 2014 ONCA 15, 118 O.R. (3d) 401, at para. 56, this court said the following about the essential elements of “a pattern of repetitive behaviour” at para. 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 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. [Emphasis added.]

[122] Walsh also demonstrates that the context of behaviour is important. In Walsh, there were only two incidents (both serious assaults), and one appeared to lack rational motivation while the other was preceded by attacks on the accused. The incidents could not therefore meet the threshold of a pattern.

[123] Here, the appellant used force and/or threats to commit three sexual assaults against his female victims in what, as I have said, appear to be examples of the appellant using force to take what he wants when he wants it. Two of the sexual assaults involved both vaginal and anal intercourse. The two most recent sexual assaults were committed within months of each other (May and August 2011). The appellant was subsequently incarcerated in February 2012, and remained incarcerated thereafter. These offences combined with the appellant’s personality disorders, PCL-R score, past adversity to treatment, and reluctance to discuss his sexual offences all contribute to the likelihood that the appellant would cause injury to others in the future through a failure to restrain his behaviour. I conclude that the sexual assaults patently pass the thresholds under s. 753(1)(a)(i) and (b).

[124] Appeal amicus also contends that to make a dangerous offender designation under s. 753(1)(a)(ii) requires that the sentencing judge make findings concerning what was in the offender’s mind, specifically, the sentencing judge must find “a substantial degree of indifference on the part of the offender respecting the reasonably foreseeable consequences to other persons of his actions.”

[125] However, once again, I conclude it is patent from the circumstances of the offences that the appellant’s persistent aggressive behaviour as reflected in the sexual assaults and assault causing bodily harm offence showed a substantial degree of indifference on his part respecting the reasonably foreseeable consequences to other persons of his behaviour. Dr. Fedoroff’s evidence about possible sadism clearly illustrated this point. The appellant employed excessive force to achieve his ends and engaged in behaviour that would terrify the victims of his sexual assaults. In the particular circumstances of this case, I conclude that, having recited the evidence, it was unnecessary that the sentencing judge engage in a detailed analysis of this point.

[126] Overall, I conclude that the appellant patently meets the relevant thresholds to support a dangerous offender designation, and that the sentencing judge’s reasons on this issue are sufficient to permit appellate review.

(3) Did the sentencing judge err by failing to consider intractability and treatability at the designation stage?

[127] In Boutilier, at para. 42, the Supreme Court of Canada stated that “[a]n offender’s future treatment prospects are, and have always been, a relevant consideration at the designation stage.” At para. 45, the Court also clarified that prospective evidence of treatability plays a different role at the different stages of a dangerous offender proceeding. At the designation stage, treatability informs the decision on the threat posed by an offender. At the penalty stage, treatability helps to determine the appropriate sentence to manage that threat.

[128] Appeal amicus submits that the sentencing judge erred in law by failing to consider intractability and treatability at the designation stage. She acknowledges that, in some circumstances, a reviewing court may effectively transpose the sentencing judge’s findings concerning these criteria to the designation stage and make an appropriate inference as to the impact of those findings on the decision to designate the offender dangerous. However, based on her submission that the sentencing judge erred at the penalty stage by imposing an evidentiary burden on the appellant to establish a reasonable expectation of eventual control in the community, appeal amicus submits that the sentencing judge’s findings on these issues at the penalty stage cannot be transposed to the designation stage in this case.

[129] I would not accept these submissions.

[130] As a starting point, I note that the sentencing judge considered intractability and treatability to some extent at the designation stage. In particular, at para. 77 of her reasons she noted that, during cross-examination, Dr. Fedoroff agreed with the following passages of Dr. Klassen’s report addressing intractability and treatability:

This gentleman is significantly antisocial, and in addition to being antisocial is, with authority figures and potentially also treatment providers, defiant and reluctant (at least thus far) to submit to treatment.

I note that this gentleman indicates that he would like to receive treatment for sexual offending, and substance abuse. I would parenthetically submit that this gentleman’s true appreciation of his characterlogical difficulties remains quite limited or superficial, despite his ability to use treatment language such as “personality disorders” with the undersigned.

Empirically a PCL-R score of 35 militates against significant, sustained self-change.

[131] As I have said, the sentencing judge accepted the expert evidence.

[132] However, assuming that the sentencing judge erred in failing to adequately consider intractability and treatability at the designation stage, for reasons that I will explain in the next section, I do not accept that the sentencing judge erroneously placed a burden of proof on the appellant. I am therefore satisfied that the sentencing judge’s findings at the penalty stage concerning intractability and treatability make it clear that had she fully considered those issues at the designation stage, she would still have declared the appellant a dangerous offender.

(4) Did the sentencing judge err at the penalty stage by imposing an evidentiary burden on the appellant to establish a reasonable expectation of eventual control in the community?

[133] As described above, in their written submissions both the sentencing Crown and trial amicus suggested that the appellant had an evidentiary burden at the penalty stage to demonstrate a reasonable prospect of eventual control in the community.

[134] No such burden exists. At para. 68 of Boutilier, the Supreme Court of Canada observed that under s. 753(4.1), the sentencing judge is under an obligation to conduct a “thorough inquiry” into the possibility of control in the community. The judge must consider all the evidence presented at the hearing to determine the fittest sentence for the offender. There is no obligation on any of the parties to prove on any standard the adequate sentence one way or another.

[135] Appeal amicus submits that the sentencing judge erred in law by adopting the position of the sentencing Crown and trial amicus and imposing an evidentiary burden on the appellant to establish a reasonable possibility of eventual control in the community. Appeal amicus points, in particular, to paras. 9, 99 and 103 of the sentencing judge’s reasons, where the sentencing judge referred to the appellant’s failure to call evidence and the absence of any evidence of his treatability beyond a hope for change as illustrating this error. Those paragraphs read as follows:

[The appellant] chose not to call any evidence on the sentencing hearing. However, during the course of the hearing and in representing himself he made many comments to the court of the hardships he said he suffered while incarcerated at what has been widely accepted as an over-crowded and under-resourced Ottawa Carleton Detention Centre for a large and earlier portion of his custody at that facility. He has said that conditions have improved over recent months. He also advised the court during the Crown’s calling of evidence that he did not agree with some of it. However, as [the appellant]’s comments have not been sworn evidence or subject to cross-examination, I have noted his comments but I have accorded them diminished weight.

Amicus Curiae asks me to take into account the effect on [the appellant] of his many transfers from institution to institution and primarily his incarceration in detention or remand centres where little or no treatment is available. [The appellant] has said these frequent transfers have been stressful and disruptive to his ability to stabilize and work with treatment programs. As Amicus Curiae has also pointed out, however, [the appellant] chose not to call any evidence on his sentencing hearing in this respect and these assertions by him are noted but remain untested and, consequently, unable to be accorded any significant weight.

Based on all of the evidence on this sentencing hearing and without any evidence of [the appellant]’s treatability beyond a hope for change, I cannot risk the safety of the community by imposing at this time a speculative pre-assessed timeline for [the appellant]’s rehabilitation by way of either a determinate sentence or a determinate sentence followed by a long-term supervision order. [Emphasis added.]

[136] I would not accept appeal amicus’s submissions on this point. The sentencing judge’s statements speak to the reality that the appellant did not call any evidence on the DOH as well as the sentencing judge’s finding that Dr. Fedoroff’s evidence established no more than a hope for treatability. The statements were no more than observations concerning the state of the record and an expression of the sentencing judge’s conclusion concerning Dr. Fedoroff’s evidence. By making these observations, the sentencing judge did not impose a burden on the appellant to call evidence.

(5) Did trial amicus fail to ensure the fairness of the DOH and thereby cause actual prejudice to the appellant? In the alternative, did trial amicus’s performance create an appearance of unfairness so serious as to amount to a miscarriage of justice?

[137] While acknowledging that trial amicus conducted herself admirably in many respects in what was undoubtedly a difficult role in a very challenging proceeding, appeal amicus submits that trial amicus failed to ensure the fairness of the DOH in two important ways resulting in actual prejudice to the appellant.

[138] First, trial amicus failed in her role as amicus curiae by joining the Crown’s position, in her written submissions, and conceding that the appellant meets the statutory criteria for designation as a dangerous offender.

[139] Second, trial amicus joined the Crown in the erroneous submission that the appellant bore the onus of establishing a reasonable expectation that a sentence other than an indeterminate sentence of imprisonment would adequately protect the public from the commission of murder or a personal injury offence.

[140] Relying on R. v. Walker, 2019 ONCA 765, 381 C.C.C. (3d) 259, at paras. 109-11, appeal amicus submits that trial amicus failed in the role the sentencing judge assigned to her concerning both the designation issue and the penalty issue in a manner that prejudiced the appellant.

[141] In the order appointing trial amicus, the sentencing judge emphasized that trial amicus was appointed to ensure a fair hearing, to bring to court all issues that should be explored, and to question all witnesses to explore those issues. Later, in her verbal instructions to trial amicus when scheduling closing submissions, the sentencing judge specifically asked trial amicus to provide in her submissions a balance to the Crown’s submissions and also to reflect the appellant’s concerns.

[142] However, rather than doing so, appeal amicus argues that trial amicus advocated in a manner that was directly contrary to the appellant’s position and interests. This in itself, says appeal amicus, undermined the impartiality of the court and the fairness of the proceeding.

[143] Equally important, appeal amicus asserts, trial amicus failed to make arguments that should have been made concerning whether the appellant meets the statutory criteria for designation as a dangerous offender and concerning the reliability of, and weight to be afforded to, certain aspects of the evidence adduced by the Crown.

[144] For example, trial amicus made no submissions concerning what was required to meet the pattern requirements set out in the statutory thresholds for designation in ss. 753(1)(a)(i) and (ii). Even if the appellant met the criteria for designation under s. 753(1)(b) (failure to control sexual impulses and a likelihood of causing injury to others through failure to do so in the future), limiting the basis for the designation was important because identifying the nature of any future risk posed by an offender is significant when determining the appropriate sentence.

[145] Further, appeal amicus submits that while trial amicus made some submissions summarizing the appellant’s concerns and explanations regarding the Crown’s evidence about the appellant’s criminal record and institutional behaviour, trial amicus effectively undermined those submissions by noting that the appellant called no evidence on the DOH. In addition, trial amicus failed to make submissions emphasizing that the Crown’s evidence arising from institutional records and police incident reports does not amount to proof beyond a reasonable doubt of the underlying facts.

[146] Overall, appeal amicus submits that the errors in approach by trial amicus caused actual unfairness to the appellant, because they contributed to errors by the sentencing judge. In the alternative, she submits that this court must consider whether trial amicus’s performance created an appearance of unfairness that rises to the level of creating a miscarriage of justice.

[147] I would not accept these submissions. For reasons I have already explained, I am not satisfied that the sentencing judge made any error in designating the appellant as a dangerous offender under any of ss. 753(1)(a)(i) and (ii) or s. 753(1)(b) of the Criminal Code. Further, I am not satisfied that the sentencing judge imposed an evidentiary burden on the appellant to establish a reasonable expectation of eventual control in the community.

[148] That said, I accept that, by the end of the DOH, the appellant was opposed to both a dangerous offender designation and the indeterminate sentence of imprisonment sought by the Crown. In these circumstances, I agree that particularly given the adversarial functions she had been assigned, trial amicus should not have made submissions that were in direct conflict with the appellant’s position. To the extent there may have been nothing to say in the appellant’s favour concerning a particular issue, trial amicus should have refrained from saying anything: Walker, at para. 119.

[149] However, I see no actual prejudice to the appellant arising from trial amicus’s submissions or want of submissions. Appeal amicus submitted that trial amicus’s failings caused actual prejudice to the appellant because they contributed to the sentencing judge’s errors. But as I have found no such error, there can be no such prejudice.

[150] Nor do I think that any shortcomings in trial amicus’s performance create an appearance of unfairness giving rise to a miscarriage of justice. Although trial amicus conceded that the appellant meets the statutory criteria for designation as a dangerous offender, she did not go farther, as happened in Walker, and actively advocate for that designation.

[151] In Walker, amicus actively advocated in favour of both the dangerous offender designation and imposing an indeterminate sentence “in a manner entirely antagonistic to Ms. Walker’s best interests”: such that by the end of the hearing, “Ms. Walker was in a worse position in the context of closing submissions than if amicus had not been appointed at all”: at paras. 118, 119. This court remarked that the hearing in Walker “looked like there were two Crown counsel present in the courtroom”: at para. 120.

[152] That is not what happened here. Although trial amicus did concede the dangerous offender criteria had been met, she did not actively advocate for a dangerous offender designation. Overall, it cannot fairly be said that the appellant was worse off as a result of trial amicus’s closing submissions. Again, the appellant patently meets the thresholds for a dangerous offender designation. Trial amicus led evidence to support a determinate sentence and LTSO and submitted that the court should carefully consider whether a determinate sentence together with an LTSO would adequately protect the public. And although she joined the Crown in asserting that the appellant bore the onus of demonstrating a reasonable expectation of eventual control in the community, she took many steps with a view toward showing that burden had been met, including: obtaining an order for a second dangerous offender assessment under s. 752.1 of the Criminal Code; cross-examining Crown witnesses to elicit evidence that could be helpful to the appellant; calling Dr. Fedoroff despite the appellant’s objections; and recalling Dr. Klassen.

[153] In the end, while trial amicus’s performance was imperfect, I am not satisfied it created any unfairness or appearance of unfairness rising to the high standard articulated in Kahsai: that considering the circumstances of the hearing as a whole, “a well-informed and objective person would find an appearance of unfairness so serious that it would shake their confidence in the administration of justice”: at paras. 68, 76-77. I repeat, patently the appellant meets the criteria for designation as a dangerous offender. Moreover, as I have said, trial amicus led evidence in support of, and submitted that the court should carefully consider, whether a determinate sentence together with an LTSO would adequately protect the public.

[154] In fairness to trial amicus, I simply wish to note that both Walker and Kahsai, which go some distance in clarifying the duties and responsibilities of amicus curiae, were decided after this matter was heard.

F. Disposition

[155] Based on the foregoing reasons, I would dismiss the appeal.

Released: October 16, 2023 “J.S”

“Janet Simmons J.A.”

“I agree. B.W. Miller J.A.”

“I agree. A. Harvison Young J.A.”

[^1]: The appellant filed two inmate notices of appeal in 2017. A solicitor’s notice of appeal was subsequently filed in May 2020, but counsel was removed at the appellant’s request in March 2021.

[^2]: R. v. Boutilier, 2017 SCC 64, [2017] 2 S.C.R. 936.

[^3]: In her written closing submissions, trial amicus noted that the appellant was adamant in submissions made to the court that what was thrown was toilet water, not urine.

[^4]: The overview of the sentencing Crown’s written submissions could be read as also relying on s. 753(1)(a)(iii), however the sentencing Crown did not refer to that subsection when setting out the details of the Crown's position.