COURT OF APPEAL FOR ONTARIO DATE: 20240408 DOCKET: C68212

van Rensburg, Roberts and Favreau JJ.A.

BETWEEN

His Majesty the King Respondent

and

Jason Eamer Appellant

Counsel: Richard Litkowski, for the appellant Katie Beaudoin, for the respondent

Heard: November 21, 2023

On appeal from the dangerous offender designation and indeterminate sentence imposed by Justice Ronald M. Laliberté of the Superior Court of Justice on May 1, 2017, with reasons reported at 2017 ONSC 2549.

REASONS FOR DECISION

[1] This is an appeal of a decision declaring the appellant a dangerous offender and imposing an indeterminate sentence. The appeal focuses on whether the sentencing judge erred in not accepting the expert opinions of two psychiatrists that the appellant’s risk of violent re-offence was, with certain strict measures, capable of being controlled in the community. The appellant contends that he should have been designated a long-term offender rather than a dangerous offender, or in the alternative, if designated as a dangerous offender, he should have received a determinate sentence followed by a long-term supervision order (“LTSO”).

[2] For the reasons that follow we dismiss the appeal.

The Dangerous Offender Application and the Psychiatric Evidence

[3] On October 9, 2015, the appellant pleaded guilty to criminal harassment, forcible confinement, assault, assault with a weapon, breach of probation and possession of a weapon for a purpose dangerous to the public peace. The victim was the appellant’s then girlfriend, S.M. The offences occurred during the one month that they were involved.

[4] The appellant had a pattern of engaging in relationships with women, which quickly became intimate, of becoming suspicious, jealous, manipulative and controlling, and subjecting his partners to angry outbursts, physical violence, and emotional abuse. His criminal record, dating back to 1994, included a number of sexual assaults and domestic-related simple assaults between July 2006 and October 2012. Although not charged in respect of all of the incidents, there was evidence that the appellant had ten relationships with women between 2005 and 2014 where he had inflicted serious physical and psychological harm. The offences against S.M. were the last in the appellant’s nearly decade-long series of incidents involving intimate partners.

[5] After the appellant pleaded guilty to the charges involving S.M., the Crown brought a dangerous offender application pursuant to s. 753 of the Criminal Code. The Crown sought an indeterminate sentence, asserting that there was no reasonable expectation that any other measure would adequately protect the public.

[6] The focus at the dangerous offender hearing was on whether and how the appellant’s risk might be controlled in the community. It was the opinion of both Dr. J. Paul Fedoroff, who conducted the psychiatric risk assessment of the appellant under s. 752.1 of the Criminal Code, and Dr. Jonathan Gray, who was called by the defence and had been the appellant’s treating psychiatrist at the Anger Disorders Clinic at the Royal Ottawa Mental Health Centre from 2007 to 2014, that the appellant constituted a serious risk of violence to potential intimate partners. Both psychiatrists diagnosed the appellant with a number of psychiatric disorders, including personality and substance abuse disorders. They opined that his condition is lifelong, and that treatment alone was incapable of reducing his risk of violent re-offence to a level that could be managed in the community.

[7] The psychiatrists were of the opinion that the appellant’s risk of violent re-offence would be sufficiently reduced if he were subject to certain strict measures, including abstaining entirely from any romantic relationships with women. Dr. Gray went even further and expressed the view that control of the appellant’s risk in the community would require him to avoid any “planned and repeated contacts with a female”, including friendships and other non-intimate relationships.

[8] The proposed plan was that, after serving a determinate sentence, the appellant would be released into the community under the terms of an LTSO that included a prohibition against romantic relationships and living with women. The LTSO would also require (i) that he live in a halfway house, where visitors would be screened and where he would have to sign in and out and be subject to a curfew; (ii) that he continue to see a psychiatrist monthly and be monitored for medication compliance; (iii) that he abstain from drugs and alcohol; and (iv) that he meet weekly with a probation officer. The imposition of a legal condition precluding romantic relationships had never been tried before. In 2013 the appellant had agreed with his most recent probation officer to abstain from romantic relationships, however he failed to do so on two separate occasions, with both partners being subjected to violence.

[9] The sentencing judge designated the appellant a dangerous offender under ss. 753(1)(a)(i) and (ii) of the Criminal Code. He imposed an indeterminate sentence after concluding that the proposed plan did not provide the required level of control over the appellant. He determined that the appellant’s risk could not be managed even by imposing a “no relationship” condition on him – a measure which the sentencing judge observed would present substantial implementation and enforcement challenges. He also concluded that the evidence did not allow for a finding that the appellant’s risk could be reduced to an acceptable level post long-term supervision.

The Appeal of the Dangerous Offender Designation and Indeterminate Sentence

[10] The appellant contends that, at both the designation and penalty stages, the sentencing judge erred by departing from the opinions and evidence of the two psychiatrists that his risk could be controlled in the community. Instead of focusing on the reasonable prospect of risk management, the sentencing judge seemed to require a solution that provided an almost 100 per cent guarantee that there would be no future risk.

[11] Under s. 759 of the Criminal Code, a person designated as a dangerous offender can appeal their designation or sentence on any ground of law, fact or mixed fact and law. The standard of review was articulated by Tulloch J.A. (as he then was) in R. v. Sawyer, 2015 ONCA 602, 127 O.R. (3d) 686, at para. 26:

Appellate review of a dangerous offender designation “is concerned with legal errors and whether the dangerous offender designation was reasonable”. While deference is owed to the factual and credibility findings of the sentencing judge, appellate review of a dangerous offender designation is more robust than on a “regular” sentence appeal. [Citations omitted.]

[12] In short, in s. 759 appeals, errors of law are reviewed on a correctness standard and errors of fact are reviewed on a reasonableness standard: R. v. Ahmed, 2023 ONCA 676, at para. 99.

(i) The Alleged Boutilier Error

[13] As his first ground of appeal, the appellant raises a “Boutilier” error (R. v. Boutilier, 2017 SCC 64, [2017] 2 S.C.R. 936). The appellant contends that the sentencing judge, who decided this case before Boutilier was released by the Supreme Court of Canada, erred in failing to consider whether his risk was intractable at the designation stage.

[14] In oral argument the appellant’s counsel also asserted that, in designating him as a dangerous offender, the sentencing judge failed to take into consideration the ten-year gap in his criminal record between 1996 and 2005, when he was apparently able to control his behaviour in the community without re-offending. This ought to have been considered in any assessment of the appellant’s intractability.

[15] We do not give effect to this ground of appeal. First, while the sentencing judge did not explicitly advert to the need to find that the appellant’s risk was intractable at the designation stage, his discussion indicates that he took into consideration all of the relevant evidence, including the significant amount of counselling and therapy the appellant had received and his continued violent conduct despite such treatment, before concluding that the evidence established beyond a reasonable doubt the appellant’s future inability to control his violent behaviours. Second, the sentencing judge made explicit findings of intractability at the sentencing stage, where he stated, at para. 285, that the appellant had gone through “significant treatment, counselling and therapy with very limited, if any success”, and that “[t]he true measure of this failure [was] that he [had] continued to re-offend violently notwithstanding this continuous treatment”. The sentencing judge also observed, at para. 313, that “[t]he unfortunate reality is that, at best, the risk can possibly be managed within a very structured and monitored environment” and that “[the appellant’s] condition is described as intractable”.

[16] The evidence at the dangerous offender hearing was uncontroverted that the appellant had a history of treatment interventions in the community and in prison, and that he had continued to offend violently. The psychiatrists were in agreement that the appellant posed a lifelong risk of dangerous re-offence, that he was not amenable to treatment, and that the only option was to attempt to control the risk through continual monitoring.

[17] As for the appellant’s “ten-year gap” in offending, the sentencing judge referred to this period in setting out the appellant’s history. However, the evidence was clear that his violence against women had begun in 1992 and had become increasingly violent and uninterrupted since 2005, when the appellant was involved in a series of violent assaults against ten women. In such circumstances, the sentencing judge reasonably avoided treating the gap in the appellant’s criminal record as predictive of his subsequent risk.

[18] The focus of the hearing, as stated above, was on whether the appellant’s risk could be managed in the community, not on the prospects of successful treatment. The evidence of both psychiatrists as accepted by the sentencing judge was that the appellant’s condition was lifelong and untreatable. In any event, as noted earlier, the sentencing judge considered the appellant’s prospects of successful treatment and intractability elsewhere in his reasons. There is simply no reason to believe that the sentencing judge would have come to a different conclusion about the appellant’s dangerousness if he had also explicitly referred to the factors of treatability and intractability at the designation stage.

(ii) The Alleged Sentencing Error

[19] We now turn to the central issue on appeal: whether the sentencing judge erred in determining there was no reasonable expectation that a sentencing option less than an indeterminate sentence would adequately protect the public (Criminal Code, s. 753(4.1)). The appellant contends that the sentencing judge erred in departing from the opinion of the two psychiatric experts that his risk of violent re-offence could be controlled in the community.

[20] We disagree. The sentencing judge, tracking the language of s. 753(4.1), conducted a detailed review of all of the evidence in order to determine whether there was a reasonable expectation that the plan that was proposed by the psychiatrists would adequately protect the public against the appellant’s commission of a serious personal injury offence.

[21] The sentencing judge noted that the appellant had a history of re-offending despite measures taken to manage his risk while in the community. These measures included ongoing counselling and therapy; psychiatric treatment by Dr. Gray from 2007 to 2014; regular monitoring to ensure that the appellant complied with the taking of medication; probation orders; conditional sentences; and being regularly reminded by his last probation officer not to enter into any romantic relationships. The sentencing judge properly considered the appellant’s history as a predictor of his future control. He noted, at para. 256, that “[t]he unfortunate reality is that [the appellant] has continuously re-offended violently notwithstanding the measures taken to manage the risk he poses while in the community”.

[22] The sentencing judge then considered whether the evidence established a reasonable expectation of control from a “looking-forward” perspective, noting that for the most part this issue revolved around the evidence of the two expert witnesses. The sentencing judge considered the evidence of the two psychiatrists and concluded that their evidence, “when analyzed in the context of the whole of the evidentiary record, [did] not allow for a finding that a lesser measure [than an indeterminate sentence] will adequately protect the public from Mr. Eamer”: at para. 259.

[23] In arriving at this conclusion, the sentencing judge reviewed each condition that was proposed to control the appellant’s risk in order to determine whether the proposed controls were feasible and realistically capable of controlling the appellant’s risk. In concluding that they were not, the sentencing judge considered not only the opinions of the psychiatric experts, but also the appellant’s past behaviour while on probation, and the evidence of the lay witnesses: a Correctional Service of Canada (“CSC”) Parole Supervisor, a CSC Regional Program Manager, a Parole Board of Canada (“PBC”) Regional Manager of Conditional Release Programs, and a Deputy Superintendent at Central East Correctional Centre. These witnesses, according to the sentencing judge, provided a “roadmap of how the various sentencing options in this matter are administered by authorities”: at para. 104.

[24] While the sentencing judge observed that a prohibition against any romantic relationships and residing with a female was a theoretically sound and logical proposition, the difficulties lay in the implementation and enforcement of such a measure. He began by pointing out that it was uncertain whether the PBC would impose an absolute prohibition against romantic relationships, citing the evidence of the PBC Regional Manager that she had never seen such a condition before. The sentencing judge also noted that the expert opinion about the effectiveness of such a prohibition was predicated on significant control over the appellant’s whereabouts while residing at a halfway house, but there was no evidence to support the suggestion that halfway houses provide any control while an offender is outside the halfway house. He observed that a significant weakness in the plan was that it depended on the appellant’s willingness and ability to comply with the terms of probation, including abstinence from any romantic relationships. Probation in the past had not controlled the appellant, who had been on probation for the most part since July 2006, and had continued to commit crimes of violence against women. Importantly, the appellant had failed to disclose two separate relationships with women to his most recent probation officer and had misled him about the true nature of his relationship with one of the women.

[25] The sentencing judge also concluded that none of the requirements for medication monitoring, monthly appointments with a psychiatrist, and abstinence from drugs and alcohol would assist in controlling the appellant’s risk. The appellant had committed violent offences while compliant with medication requirements and while under Dr. Gray’s care. Dr. Gray testified that he was unsure whether he would report breaches of conditions by the appellant to the authorities, as this would affect his relationship with the appellant. And the past offences were not committed while the appellant was under the influence of drugs or alcohol.

[26] Another concern identified by the sentencing judge was that the appellant’s ability to get into a relationship and to become violent happens quickly. He noted that, according to the psychiatric evidence, the risk associated to any type of relationship with a female was so far-reaching that the appellant should even avoid female volunteers.

[27] A further problem identified by the sentencing judge was that the proposed treatment plan and prospective evidence did not speak to risk management after the expiry of the maximum ten-year period of long-term supervision. As the sentencing judge noted, it was fundamental to the plan that risk control required strict supervision to ensure that the appellant did not enter into a relationship with a woman, but the bulk of the evidence – and here the sentencing judge referred to specific aspects of the psychiatric evidence – established that the appellant could not be relied on to avoid such relationships.

[28] Contrary to the appellant’s argument, the sentencing judge did not err in departing from the opinions of the expert witnesses with respect to the potential for the control of the appellant’s risk in the community. The psychiatrists spoke to the elements of a plan that provided for a reasonable “possibility” of control under the terms of an LTSO, which only went so far. Their opinions were based on certain assumptions about the availability and effectiveness of the various controls that were proposed. The sentencing judge was required to consider all of the evidence in order to evaluate whether under s. 753(4.1) of the Criminal Code, there was a reasonable expectation of control, which included an assessment of the feasibility of the measures that were proposed.

[29] As in R. v. Primmer, 2021 ONCA 564, which was another case involving an indeterminate sentence imposed on a dangerous offender where the risk of violent re-offence involved intimate partner violence, the sentencing judge did not err in departing from conditions for an LTSO that were endorsed in the psychiatric evidence. In that case, as here, the sentencing judge reasonably concluded that “the extent of the monitoring and verification required to ensure the appellant’s compliance with the various conditions was not possible”: at para. 95. See also R. v. K.P., 2020 ONCA 534, 152 O.R. (3d) 145, at paras. 66-69.

[30] Given the totality of the evidence, the sentencing judge reasonably concluded that there was no reasonable expectation that anything less than an indeterminate sentence would adequately protect the public.

[31] Finally, we note that, in oral argument on the appeal, the appellant’s counsel downplayed the severity of the appellant’s risk of violent re-offence. Counsel relied on the appellant’s relatively short criminal record, the fact that he had never had a custodial sentence in a penitentiary, and the evidence that he did not have a sexual deviance or prey on strangers. While it may be true, as counsel argues, that the appellant does not fit the “usual profile” for a dangerous offender, the dangerous offender designation and indeterminate sentence are available and appropriate in a case such as this, where the offender’s risk of serious harm to a particular type of victim – a future domestic partner or even a romantic interest – is significant and intractable.

[32] For these reasons we dismiss the appeal.

“K. van Rensburg J.A.”

“L.B. Roberts J.A.”

“L. Favreau J.A.”