COURT OF APPEAL FOR ONTARIO DATE: 20240227 DOCKET: C68880
van Rensburg, Sossin and Monahan JJ.A.
BETWEEN
His Majesty the King Respondent
and
Richard Jackman Appellant
Counsel: Brian Eberdt and Lucas Azzopardi, for the appellant Brent Kettles, for the respondent
Heard: January 15, 2024
On appeal from the conviction entered on September 20, 2017 and the dangerous offender designation and sentence imposed on December 19, 2019 by Justice Jane E. Kelly of the Superior Court of Justice with reasons at 2019 ONSC 7386.
Monahan J.A.:
[1] Between November 29, 2014, and May 30, 2015, the appellant engaged in a campaign of harassment against his former common-law spouse, Olena Jemetz, and her family. The appellant had a fixed and false delusion that members of the Jemetz family were sexually abusing the five children that he and Ms. Jemetz had together. The appellant sent hundreds if not thousands of electronic messages to members of the Jemetz family, threatening to kill them, rape their children, or attempting to extort money from them.
[2] In May 2015, after he left a voicemail for Ms. Jemetz’s brother and sister-in-law threatening to kill them, the appellant travelled from Calgary, Alberta, where he lived, to Toronto. On May 30, 2015, the appellant was arrested close to two Toronto homes occupied by members of the Jemetz family.
[3] Following a five-day judge-alone trial, the appellant was convicted of criminal harassment, uttering threats, and attempted extortion. The Crown advised that it intended to have the appellant designated a dangerous offender pursuant to s. 753 of the Criminal Code, R.S.C. 1985, c. C-46 (a “Dangerous Offender”) and sought an assessment pursuant to s. 752.1.
[4] The appellant then raised, for the first time, a defense of not criminally responsible by reason of mental disorder (NCR). After holding a hearing on criminal responsibility, the trial judge rejected the defence of NCR finding that, although the appellant suffered from a mental disorder, it did not render him incapable of knowing that his actions were morally wrong in the eyes of the community.
[5] The trial judge subsequently designated the appellant a Dangerous Offender and sentenced him to an indeterminate sentence.
[6] The appellant appeals both his conviction and sentence, alleging that: (i) he should have been declared NCR; (ii) he should not have been designated a Dangerous Offender; and (iii) he should not have received an indeterminate sentence.
[7] In my view, the trial judge correctly apprehended and applied the relevant legal tests on each of the issues raised by the appellant. Her factual findings were rooted in the evidence and available to her on the record, and her conclusions were reasonable and disclose no error that would justify appellate intervention. Accordingly, for the reasons that follow, I would dismiss the appeal.
A. BACKGROUND
1. Trial Judgment
[8] At trial, the appellant’s position was that the Crown had failed to prove beyond a reasonable doubt that he was the author of the threatening messages sent to the Jemetz family. He also argued that the Jemetz family overreacted and exaggerated the degree to which they felt threatened by the messages.
[9] After carefully analysing the voluminous communications sent to the Jemetz family, the trial judge had little difficulty in concluding that the appellant had sent the messages. She also concluded that the Jemetz family was genuinely terrified of the appellant and that their concerns were real. The trial judge pointed out that the appellant repeatedly threatened to kill various Jemetz family members or force them to perform various sexual acts. A message sent from Barrie, Ontario, on the day the appellant was arrested indicated that he would be using a hatchet to hurt the Jemetz family, and he was subsequently located by police in close proximity to their homes. Accordingly, the trial judge convicted the appellant of all 17 counts in the indictment.
2. NCR Ruling
[10] Following trial, the Crown brought a Dangerous Offender application and, pursuant to an order under s. 752.1, Dr. Jonathan Gray, a forensic psychiatrist at the Mental Health Centre of the Royal Ottawa Health Care Group, conducted an assessment of the appellant. Dr. Gray’s assessment supported the appellant’s designation as a Dangerous Offender.
[11] After receiving Dr. Gray’s report, counsel for the appellant indicated that he would be seeking a finding that the appellant was NCR pursuant to s. 16(1) of the Criminal Code. He produced a February 2016 report from Dr. Julian Gojer which, although not relied on at trial, had raised the prospect that the appellant might be NCR. Specifically, Dr. Gojer had stated that, while he lacked information about the appellant’s past criminal history and psychiatric history that would be necessary to conduct a risk assessment, “it [was] likely that [the appellant had] a defense based on section 16(1)”.
[12] Dr. Gray prepared an addendum addressing the issue of criminal responsibility, while Dr. Gojer prepared a supplementary report to his February 2016 report focusing specifically on the NCR issue.
[13] Although both doctors differed in their exact diagnosis, they agreed that the appellant suffered from a disease of the mind. Both doctors further agreed that the appellant was capable of appreciating the nature and quality of the acts leading to the offenses, and that those actions were legally wrong. However, the doctors disagreed on whether the appellant was aware of the moral wrongfulness of his actions. Thus, the key issue in dispute at the NCR hearing was whether the appellant knew and had the capacity to know that his conduct was “morally wrong”.
[14] The trial judge accepted the evidence of Dr. Gray and rejected that of Dr. Gojer on this issue, finding that the appellant knew that his conduct was morally wrong in the eyes of the community. In reaching that conclusion, the trial judge relied on the fact that the appellant had engaged in similarly abusive, dishonest, and manipulative behaviour in the past and had never raised an NCR defence in prior criminal proceedings. She also found that he suffered from Anti-Social Personality Disorder (ASPD) and had a general disregard for societal norms, despite being aware of them. In her view, his conduct was fuelled primarily by drug use, sexual gratification, and pecuniary gain, and the content of the messages themselves, as well as his post-arrest conduct, demonstrated that he was aware of the moral wrongfulness of his actions. Although the appellant had stated to Dr. Gojer that he felt that what he was doing was “morally the right thing to do”, the trial judge found this statement to be a self-serving and contrived attempt to avail himself of the NCR defence and avoid a Dangerous Offender designation.
[15] Accordingly, the trial judge found that the NCR defence was not available to the appellant and dismissed his s. 16(1) application.
3. Dangerous Offender Designation and Sentence
[16] At the Dangerous Offender hearing, the Crown relied on the two reports that had been prepared by Dr. Gray, who had diagnosed the appellant as suffering primarily from Delusional Disorder. In his evidence at the hearing, Dr. Gray testified that the appellant had a repetitive pattern of failing to restrain behaviour which would likely cause severe psychological damage to others and was indifferent to those consequences. He also was of the opinion that the appellant presented a high risk of re-offence and would likely contact his victims if released from incarceration in the future.
[17] The appellant called Dr. Giovana de Amorim Levin, a forensic psychiatrist, and tendered a report she had prepared. Dr. Levin opined that the appellant suffered from Schizophrenia, Stimulant Use Disorder, and Anti-Social Personality Disorder (APSD). She noted that he had symptoms of subclinical PTSD and likely suffered from ADHD, although further formal testing would be required to confirm this diagnosis. In her view, if the appellant was subject to 10 years of court-ordered supervision and treatment, it was likely that his risk could be managed in the community.
[18] In her reasons, the trial judge reviewed the psychiatric evidence in some detail, preferring the evidence of Dr. Gray over that of Dr. Levin. She designated him a Dangerous Offender under both s. 753(1)(a)(i) (pattern of repetitive behaviour showing a failure to restrain) and s. 753(1)(a)(ii) (persistent aggressive behaviour with a substantial degree of indifference). She also sentenced him to an indeterminate sentence, finding that there was no meaningful prospect that he could be treated so that his risk to the public could be controlled to an acceptable level within a determinate amount of time.
B. GROUNDS OF APPEAL
[19] The appellant alleges that the trial judge erred by:
(i) Misapprehending the evidence of the appellant’s mental disorder in determining that he was not NCR; (ii) Failing to consider evidence of the appellant’s treatability and manageability at the designation stage of the Dangerous Offender analysis; and, (iii) Imposing an indeterminate sentence in the face of evidence that the appellant’s disorders were treatable.
C. STANDARD OF REVIEW IN NCR AND DANGEROUS OFFENDER PROCEEDINGS
[20] Assuming the trial judge applied the correct legal test, the standard of review for a trial judge’s decision to reject an NCR defence is reasonableness. A verdict may be unreasonable where it is not supported by the evidence, or if it is based upon a misapprehension of evidence that was essential to the reasoning process: R. v. Worrie, 2022 ONCA 471, 415 C.C.C. (3d) 45, at paras. 101-02, 106, 138 and 158.
[21] Appellate review in Dangerous Offender proceedings is more robust than in regular sentence appeals. Nevertheless, assuming once again that the sentencing judge applied the correct legal test, the standard of review at both the designation and penalty phase [1] is reasonableness, particularly with respect to the sentencing judge’s credibility and factual findings: R. v. Sawyer, 2015 ONCA 602, 328 C.C.C. (3d) 523, at paras. 26-29.
D. ANALYSIS
1. The trial judge did not err in designating the appellant a Dangerous Offender. [2]
[22] The appellant argues that the trial judge erred by failing to consider his risk of harmful recidivism and treatability before designating him a Dangerous Offender.
[23] It is well established that an offender’s future risk, and whether that risk could be appropriately managed through treatment, must be considered at both the designation stage and the penalty stage in a Dangerous Offender proceeding: R. v. Boutilier, 2017 SCC 64, [2017] 2 SCR 936, at para. 42; R. v. Francis, 2023 ONCA 760 at para. 62. That said, it is not necessary for the trial judge to use particular terms such as “intractability” in assessing an offender’s future risk or treatability. What matters is whether the trial judge’s reasons, read as a whole, demonstrate an understanding and application of the Boutilier principles, namely, that treatability must inform the decision at both the designation and penalty stage: Francis, at para. 63.
[24] In my view, the trial judge in this case both understood and properly applied Boutilier. To be sure, her detailed analysis of the appellant’s future risk and whether that risk could be managed through treatment was set out in the section of her reasons dealing with whether the appellant should be sentenced to an indeterminate sentence. But the trial judge expressly incorporated her analysis of those issues into the designation section of her reasons where she stated at para. 53 of her reasons that “[t]he prospect of him being successfully treated and manageable in the community is poor for the reasons set out below.” Moreover, the trial judge was clearly alive to Boutilier’s requirement that she consider the appellant’s treatability at both the designation and penalty stage, since she directly or indirectly cited Boutilier twice in her reasons, including in para. 53. [3]
[25] The appellant nevertheless argues that this attempt by the trial judge to simply incorporate her later analysis of the appellant’s risk of reoffending and treatability into the designation stage of her analysis was insufficient. He relies upon this court’s statement in R. v. Tynes, 2022 ONCA 866, 165 O.R. (3d) 321, at paras. 84-85, to the effect that a sentencing judge must conduct an “independent analysis” of the offender’s future risk at both the designation and penalty stage of a Dangerous Offender proceeding.
[26] In my view, the appellant’s reliance upon Tynes is misplaced. In Tynes, the sentencing judge had incorrectly interpreted s. 753(4.1) as mandating that, once an offender had been designated a Dangerous Offender, he should be preemptively sentenced to indeterminate detention. The sentencing judge in Tynes therefore erroneously failed to consider at the penalty stage whether the offender’s future risk could be managed through a sentence that was less onerous than indeterminate detention.
[27] No such error occurred in this case. The trial judge’s analysis of the appellant’s future risk and treatability, set out in the penalty portion of her reasons, took into account the same evidence and relevant considerations that the trial judge was required to consider at the designation phase. In these circumstances, I see no difficulty with the trial judge simply incorporating her later analysis of these factors into the designation portion of her reasons by reference.
[28] As Francis explains, the issue is whether in substance the sentencing judge’s reasons reflect an adherence to the Boutilier principles. I am satisfied that the trial judge appropriately considered, as required by Boutilier, the appellant’s future risk of reoffending and his treatability before designating him a Dangerous Offender. I therefore would dismiss this ground of appeal.
2. The trial judge’s imposition of an indeterminate sentence was reasonable.
[29] The appellant argues that the trial judge failed to appropriately consider his progress in responding to treatment while in custody at the Toronto South Detention Centre (TSDC). Dr. Levin had relied upon this progress in concluding that the appellant was a suitable candidate for a 10-year long-term supervision order.
[30] The appellant further argues that the trial judge erred in stating that treatment could not be legally imposed upon him without his informed consent. The appellant submits that this statement is contrary to R. v. Ramgadoo, 2012 ONCA 921, 293 C.C.C. (3d) 157, at paras. 53-59, which requires a sentencing judge at the penalty stage to consider the possibility of imposing mandatory treatment conditions in a long-term supervision order.
[31] I would not give effect to either of these arguments.
[32] First, the trial judge expressly considered the improvements in the appellant’s condition while at the TSDC, along with Dr. Levin’s opinion about treatability. While the trial judge acknowledged that the appellant had made recent improvements, she ultimately preferred the evidence of Dr. Gray that the appellant’s Delusional Disorder, substance use, and ASPD diagnosis meant that his prospects for treatability were poor. In her view, any plan for meaningful treatment of the appellant in the community was based on a “mere hope of control”, a hope, moreover, that was speculative. She therefore concluded, reasonably in our view, that an indeterminate sentence was required because any lesser sentence would not serve the purpose of protecting the public.
[33] Nor did the trial judge err in proceeding on the basis that the appellant’s informed consent was legally required before he could be subjected to treatment. In fact, Ramgadoo (the authority relied upon by the appellant), confirms this to be the case. Moreover, while it is open to a court to recommend that mandatory treatment can be made a condition of a long-term supervision order, such a condition is only appropriate when the offender is willing to accept treatment: Ramgadoo, at paras. 53-54.
[34] The trial judge’s concern was that the appellant had refused treatment several times while incarcerated at TSDC, which led her to conclude that it was unlikely that he would be compliant with treatment and would likely not abstain from using drugs once released into the community. This factual finding is entitled to deference on appeal and, as Ramgadoo confirms, tends to support the imposition of an indeterminate sentence.
[35] The appellant has failed to identify any legal error or misapprehension of the evidence by the sentencing judge, and essentially asks this court to undertake our own de novo assessment of the appellant’s treatability. I decline to do so. In my view, the trial judge’s finding that the appellant’s risk could not be managed in the community through treatment was amply supported in the evidence and was reasonable. I would therefore dismiss this ground of appeal.
3. The trial judge reasonably rejected the NCR defence
[36] The appellant argues that the trial judge erred in failing to accept Dr. Gojer’s opinion that the appellant believed that he was doing what he thought was necessary in order to protect his children from sexual abuse by the Jemetz family. Dr. Gojer therefore concluded that, through the distorted lens of his mental illness, the appellant saw his conduct as being morally justified.
[37] The trial judge understood Dr. Gojer’s opinion and carefully considered his findings in great detail in her reasons. However, the trial judge ultimately preferred the opinion of Dr. Gray who concluded that, even accepting that the appellant believed that members of the Jemetz family were sexually abusing his children, he knew that the right thing to do would have been to contact police rather than directly threaten the family. Dr. Gray further opined that the appellant committed these offenses primarily due to his use of stimulants, as well as for pecuniary gain and sexual gratification, rather than because of his delusions.
[38] I see no legal error in the trial judge’s analysis and her weighing of the evidence is entitled to deference. She engaged carefully with the psychiatric evidence and clearly explained why she preferred the evidence of Dr. Gray over that of Dr. Gojer. Her finding that the appellant was not credible in claiming that he felt morally justified in his action was amply supported in the record, including by his post-arrest conduct denying or minimizing his harassment. In short, her ruling that the NCR defence was not available to the appellant was reasonable, and I see no basis for appellate intervention.
[39] I would therefore dismiss this ground of appeal.
E. DISPOSITION
[40] For the above reasons, the appeal is dismissed.
Released: February 27, 2024 “K.M.v.R.” “P.J. Monahan J.A.” “I agree. K. van Rensburg J.A.” “I agree. L.Sossin J.A.”
Footnotes
[1] There are two stages to every dangerous offender proceeding: (i) the designation stage, where the sentencing judge determines whether to designate the offender as a Dangerous Offender; and (ii) the penalty stage, where the sentencing judge determines whether to impose an indeterminate sentence, a determinate sentence or a determinate sentence followed by a long-term supervision order.
[2] Although the issue of whether the appellant should have been found to be NCR is logically prior to the issue of his designation as a Dangerous Offender, I begin with the latter issue since this was the primary focus of the appellant’s submissions in oral argument.
[3] Paragraph 53 of the trial judge's reasons footnotes paragraph 32 of this court's decision in R. v. Gracie, 2019 ONCA 658, 147 O.R. (3d) 385, which includes a quotation from Boutilier at para. 36.