ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-11-50000134-0000
DATE: 20120622

BETWEEN:

HER MAJESTY THE QUEEN – and – DONALD CHARLES WALTERS

Ms. Alex Rourke, for the Crown
Mr. Tony Paas, for the Respondent

HEARD : June 7, 2012

McWatt J.

RULING

SECTION 752.1(1) CRIMINAL CODE APPLICATION
For An Assessment For Dangerous Offender / Long-Term Offender Designation

1The Crown applies between conviction and sentencing for an assessment of Mr. Walters in order shat she may then bring an application to have the Respondent declared a dangerous or long-term offender.

2Mr. Walters was convicted on November 29, 2011 on one count of Criminal Harassment and four counts of Failing to Comply with a Probation Order. The Crown alleges that the criminal harassment charge is a serious personal injury offence as defined by s. 752 (a) of the Criminal Code .

3The Respondent, through counsel, challenges the Crown's contention that the facts of this case – the criminal harassment – warrant an assessment pursuant to s. 752.1(1) of the Code, because the offence is not a serious personal injury offence. As well, he submits there is no evidence that the offence had the likelihood of inflicting severe psychological damage on the victim.

4The facts I found in this case to convict Mr. Walters can be summarized as follows:

5Around 9:00p.m. or later, the complainant, Ms. Black, got off a TTC bus and walked south on Kipling Avenue towards a women's shelter where she was living at the time. She was alone when Mr. Walters, a stranger to her, came out from behind a bush, drooling and eyes bulging. There was no one else around. Mr. Walters followed the victim for about two minutes at a close distance (about one foot away) so that she could almost feel his breath at her back. Ms. Black sped up to try to lose the defendant. He also sped up. Ms. Black slowed down. Mr. Walters slowed down. He did not pass. As she got near her home, Mr. Walters asked Ms. Black for a cigarette – no doubt to get her to turn and see that he was masturbating. She testified that she was terrified and did not turn around, instead typed in the pass code to get into the shelter's grounds. As she got through the gate into the yard of the shelter, she turned to see Mr. Walters, his pants open, penis erect and masturbating. She slammed the gate closed and ran to the shelter in utter panic.

6Although there were no verbal threats, Mr. Walter's conduct was clearly threatening and harassing.

7Section 752.1(1) provides as follows:

On application by the prosecutor, if the court is of the opinion that there are reasonable grounds to believe that an offender who is convicted of a serious personal injury offence or an offence referred to in paragraph 753.1(2)( a ) might be found to be a dangerous offender under section 753 or a long-term offender under section 753.1, the court shall, by order in writing, before sentence is imposed, remand the offender, for a period not exceeding 60 days, to the custody of a person designated by the court who can perform an assessment or have an assessment performed by experts for use as evidence in an application under section 753 or 753.1.

(i) " Serious Personal Injury Offence "

8The first issue is whether Mr. Walters has been convicted of a serious personal injury offence.

9Defence counsel stresses that there was no violence used by Mr. Walters nor did his conduct endanger the life of Ms. Black. In fact, there is no specific evidence, other than from Ms. Black, that she was scared or panicked, to conclude that this incident could cause serious psychological damage to her.

10Section 752 defines what a serious personal injury offence is:

(a) an indictable offence, other than high treason, treason, first degree murder or second degree murder, involving:

i. the use or attempted use of violence against another person, or

ii. conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage on another person,

and for which the offender may be sentenced to imprisonment for ten years or more, or

(b) an offence or attempt to commit an offence mentioned in section 271 (sexual assault), 272 (sexual assault with a weapon, threats to a third party or causing bodily harm) or 273 (aggravated sexual assault).

11First, the Crown proceeded by indictment in this case, therefore the requirement that Mr. Walters may be sentenced to imprisonment for ten years or more is met.

12The Crown maintains that criminal harassment in the context of this case is a serious personal injury offence as defined under the definition in s. 752 (a)(ii), because Mr. Walters' behaviour was likely to inflict severe psychological damage upon Ms. Black.

13I agree. This offence, if not violent in the usual way due to the fact that Mr. Walters did not touch Ms. Black, was nonetheless physically and psychologically violent in all other circumstances. It was dark. Mr. Walters is male and the victim female. He came out from behind bushes on a lonely street. He was drooling and his eyes were bulging. Ms. Black felt Mr. Walter's breath on her – some touching if not the traditional sort in physically violent offences. Mr. Walters was masturbating and following Ms. Black. If the sexual component of this offence were coupled with some sort of actual touching of Ms. Black, and he had been found guilty of a sexual assault or other designated offence, then there would be no issue that a serious personal injury offence had been committed.

14Lesser offences on their facts have been considered serious personal injury offences. In R. v. Morgan (2005), 2005 7254 (ON CA), 195 C.C.C. (3d) 408 (Ont. C.A.); leave to appeal refused (2005), 347 N.R. 196 n (S.C.C.), the Court found that "serious personal injury offence" is not restricted to offences against the person. Provided that the offence involves conduct that inflicts or is likely to inflict severe psychological damage on another person (in that case sending threatening letters to dissuade the victim from giving evidence), the offence of obstructing justice may be a "serious personal injury offence."

15In R. v. S.M., 2005 7254 (ON CA), [2005] O.J. No. 1041, the Ontario Court of Appeal found an attempt to obstruct justice charge where the defendant had written threatening letters to his former girlfriend to dissuade her from testifying against him was a serious personal injury offence as defined by s. 752 .

16In R. v. Goforth (2005), 2005 SKCA 12 (), 193 C.C.C. (3d) 354 (Sask. C.A.), the Court held that there is no requirement that an indictable offence involving violence or endangerment also involve a serious degree of violence and endangerment. Section 752 (a) does not invite a qualitative assessment of the degree of violence or endangerment in the predicate offence.

(ii) " Likely to Inflict Severe Psychological Damage "

17There is no doubt on the facts of this case that the criminal harassment found in this case is a serious personal injury offence as defined in s. 752(a)(ii) of the Code.

18It is unnecessary for there to be expert evidence about the likelihood of Mr. Walters' conduct inflicting severe psychological damage upon Ms. Black. An objective viewing of the evidence in the trial is all that is necessary to determine the issue [ R. v. Walker, 2000 16974 (ON CA), [2000] O.J. No. 4091 at para. 7; R. v. McGraw, 1991 29 (SCC), [1991] 3 S.C.R. 72.]

19Ms. Black testified that she was panicked, scared and terrified. She had to close a gate in order to get away from Mr. Walters, who was unrelentingly approaching her while masturbating. I find that his behaviour likely inflicted severe psychological damage upon her.

(iii) Reasonable Grounds to Believe Mr. Walters Might Be Found to be a Dangerous or Long-Term Offender

20In all of the circumstances of this case, there are reasonable grounds to believe that Mr. Walters might be found to be a dangerous offender or a long-term offender. The grounds are succinctly set out in the Crown's Application Record and I repeat them here.

21The Respondent has a Criminal Record that includes fifteen (15) convictions for violent offences.

22The Respondent has a Criminal Record that includes fifteen (15) convictions for sexual offences.

23The Respondent has a Criminal Record that includes twenty-four (24) convictions for breaches of court orders.

24The Respondent had seventy-one (71) criminal convictions on his record prior to the matters now before the Court, with at least one criminal conviction in nearly each and every year from 1986 to present.

25The Respondent has had a lengthy history of being under Probation Orders and a demonstrated history of failing to comply with Probation.

26The Respondent has a lengthy history of being under Recognizances and a demonstrated history of failing to comply with those Recognizances.

27The Respondent has been convicted of failing to comply with the provisions of the Provincial Sex Offender Registry.

28There is a substantial likelihood that the Respondent will commit further violent or sexual offences upon his release from custody.

29The Respondent has demonstrated behaviour described in section 753(1)(a)(i), 753(1)(a)(ii):

753(1) The court shall, on application made under this Part following the filing of an assessment report under subsection 752.1(2), find an 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; or

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.

30The Respondent has demonstrated behaviour described in section 753(1) (b) of the Criminal Code of Canada :

753(1) The court shall, on application made under this Part following the filing of an assessment report under subsection 752.1(2), find an offender to be a dangerous offender if it is satisfied:

(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.

31The Respondent has demonstrated behaviour described in section 753.1(1) and 753.1(2):

Section 753.1

(1) The court may, on application made under this Part following the filing of an assessment report under subsection 752.1(2), find an offender to be a long-term offender if it is satisfied that

a. it would be appropriate to impose a sentence of imprisonment of two years or more for the offence for which the offender has been convicted;

b. there is a substantial risk that the offender will re-offend; and

c. there is a reasonable possibility of eventual control of the risk in the community.

(2) The court shall be satisfied that there is a substantial risk that the offender will re-offend if:

a. the offender has been convicted of an offence under section 151 (sexual interference), 152 (invitation to sexual touching) or 153 (sexual exploitation), subsection 163.1(2) (making child pornography), subsection 163.1(3) (distribution etc., of child pornography), subsection 163.1(4) (possession of child pornography) , subsection 163.1(4.1) (accessing child pornography), section 172.1 (luring a child), subsection 173(2) (exposure) or section 271 (sexual assault), 272 (sexual assault with a weapon) or 273 (aggravated sexual assault), or has engaged in serious conduct of a sexual nature in the commission of another offence of which the offender has been convicted; and

b. the offender:

i. has shown a repetitive behaviour, of which the offence for which he or she has been convicted forms a part, that shows a likelihood of the offender’s causing death or injury to other persons or inflicting severe psychological damage on other persons, or

ii. by conduct in any sexual matter including that involved in the commission of the offence for which the offender has been convicted, has shown a likelihood of causing injury, pain or other evil to other persons in the future through similar offences.

32For all of these reasons, the Crown's application is granted. Mr. Walters shall be remanded for no more than sixty days for an expert assessment to determine whether he is a dangerous or long-term offender.

McWatt J.