Court File and Parties

Court File No.: 19-18063 Date: 2022/05/03 Ontario Superior Court of Justice

Between: Her Majesty the Queen, Applicant And: Danyiel Walker, Respondent

Counsel: Louise Tansey, for the Crown Michael Davies and Meaghan McMahon, for Mr. Walker Joanne Meloche for MP, CL, JL, SP, and Danielle Scarlett

Heard: April 20, 2022

Certiorari Ruling

NO INFORMATION SHALL BE PUBLISHED IN ANY DOCUMENT OR BROADCAST OR TRANSMITTED IN ANY WAY, INCLUDING BY EMAIL, SOCIAL MEDIA OR OTHER ELECTRONIC TRANSMISSION WHICH COULD IDENTIFY THE VICTIM OR A WITNESS IN THESE PROCEEDINGS, PURSUANT TO s.486.4 of the Criminal Code.

Anne London-Weinstein J.

[1] The Crown brings a motion for certiorari and mandamus from a dangerous offender application proceeding before the sentencing judge.

[2] Standing was granted to five individuals who are third parties. They include the palliative child, MP, who was sexually victimized by Mr. Walker, MP’s friend, CL who is also palliative, who Mr. Walker threatened, each child’s mother and a caregiver, all of whom wish to present Victim Impact Statements (VIS). The issue is unique in that there exists no case which has squarely dealt with the following issue: Can a victim impact statement be considered in a dangerous offender hearing where the conduct has been proven beyond a reasonable doubt but is uncharged conduct?

[3] This court was not provided with the VIS. The sentencing judge did not review the statements before ruling them inadmissible.

[4] In the reasons that follow I will explain why I found that the sentencing judge erred by failing to consider the statements before ruling them inadmissible. He is directed to permit the statements to be presented in court and to consider them before ruling on admissibility.

[5] I proceed to deal with this issue in the following manner:

1. I will outline the facts of the case and the legal history of this matter.
2. I will explain why the third parties in this case were given standing.
3. I will explain why I found that certiorari was available to the third parties despite the fact that it is an interlocutory motion in a criminal trial.
4. I will explain the legal error made, and why a legal error and not a jurisdictional error permits certiorari in this instance.
5. I will explain why the lower court should consider the VIS within a voir dire where the third parties are permitted to present their VIS.
6. I conclude that the ultimate decision as to whether the evidence in the VIS is admissible, or how much weight to accord any of the VIS remains with the sentencing judge, after consideration of the content of the VIS.

1. Facts of the Case and Legal History of the Matter

[6] Danyiel Walker pleaded guilty to 43 offences involving the sexual abuse of children. Many were members of his extended family. Other offences were perpetrated online and include possessing, distributing and making child pornography.

[7] The Crown brought an application to have Mr. Walker designated a dangerous offender and to be sentenced to an indeterminate period of incarceration.

[8] In support of that application, the Crown tendered a body of evidence relating to criminal conduct that was referred to throughout the proceedings as “uncharged conduct”. This conduct was originally charged on information 19-SA4327 and 19-RA19022. The counts relating to the two boys, who I shall refer to as MP and CL, were withdrawn in relation to information 19-SA4327 and stayed in relation to count 19-RA18022.

[9] When Mr. Walker entered pleas of guilt to the predicate offences on the dangerous offender application on November 29, 2019, Mr. Walker was aware that the Crown would be seeking an assessment pursuant to s. 752.1 of the Criminal Code, R.S.C. 1985, c. C-46, and, if dangerous offender proceedings were initiated, that the Crown would adduce the evidence relating to MP and CL in those proceedings.

[10] All of the conduct relating to MP and CL occurred at the Roger Neilson House, a pediatric palliative and respite care facility where both children were patients.

[11] The evidence tendered at the dangerous offender proceedings relating to this conduct included five civilian witnesses. They included SP, who is MP’s mother; Megan Wright, who is the Executive Director of Roger Neilson House; Kathryn Brooks, who is a caregiver and MP’s communication facilitator at Roger Neilson House; Danielle Scarlett, who is a caregiver and MP’s communication facilitator at Roger Neilson House; and Barbara Juett, who is a counsellor at Roger Neilson House. There were also two police witnesses called and 22 exhibits filed including 2 opinion letters from Dr. Nathalie Major, a pediatric palliative specialist and treating physician of MP and CL.

[12] Both MP and CL have extremely serious life limiting illnesses. MP communicates using a yes/no card system with a facilitator.

[13] MP has hundreds of seizures every day. He provided three audio/video recorded statements to police. These statements were admitted at the sentencing hearing.

[14] Relying on the statements, the sentencing judge found beyond a reasonable doubt that Mr. Walker perpetrated the following acts:

• That he exposed his penis to MP.
• That he showed child pornography to MP.
• That he threatened to kill MP.
• That he threatened to hurt CL if MP did not co-operate.

[15] A forensic psychiatrist relied on these acts to diagnose Mr. Walker as a pedophile and assess the future risk he poses.

[16] The Crown will rely on these acts to establish the statutory criteria to have Mr. Walker designated a dangerous offender and sentenced to an indeterminate period of incarceration.

[17] Following the ruling, and in accordance with s. 722.2(1) of the Criminal Code, the Crown took reasonable steps to provide the persons impacted by the acts perpetrated by Mr. Walker at Roger Neilson House with an opportunity to provide VIS.

[18] Only the matters which were based on facts proven beyond a reasonable doubt were the subject matter of the VIS.

[19] Five victims prepared VIS and wish to either read their statement to the court or have the statement read by the Crown.

[20] On Monday March 7, 2022, the Crown sought to tender the VIS. The defence objected. The Crown proposed holding a voir dire and permitting the individuals to read their statements so that the evidence would be preserved should the issue have to one day be decided by a reviewing court.

[21] The sentencing judge indicated that he found nothing unfair about this procedure. Given the health concerns of the boys, and the fact the application came during the middle of a dangerous offender hearing, time was of the essence. There also existed a need to preserve the evidence on the record. The defence objected to this procedure, and suggested that the five individuals could create their own video recorded statements and file them as lettered exhibits, which would not be read by the trial judge.

[22] Although the trial judge initially indicated there was a “certain elegance” to the procedure proposed by the Crown, he declined to permit the statements to be read. The defence objected on the grounds of timing, and the introduction of “powerful statements” being put on the record.

[23] The sentencing judge did not review the statements on the voir dire. Both the sentencing judge and defence counsel acknowledged that the trial judge had the ability to disabuse himself of irrelevant, prejudicial and otherwise inadmissible evidence. The sentencing judge expressed the view that the statements were likely not admissible in his view before hearing the statements.

[24] After 60 minutes of argument by the Crown and about 10 minutes of argument by the defence, the court returned and gave a brief ruling. Given the brevity of the ruling, and its centrality to the issues to be decided, it is reproduced below:

So I am being asked to admit Victim Impact Statements for five individuals who have been affected by the actions of Mr. Walker. That these people wish to have me hear them is very understandable. Obviously, I know what Mr. Walker did with respect to MP and CL because I found that the Crown had proven those facts beyond a reasonable doubt. It takes no great leap of imagination for me to understand the pain that these five people must be feeling.

However, the admissibility of Victim Impact Statements is governed by the Criminal Code. Section 722 refers to harm “as the result of the commission of the offence and the impact of the offence on the victim.”

Here, in the case of Mr. Walker, he was not charged and found guilty of any offence with respect to MP and/or CL. I do not think that either section 757 or the Victim Bill of Rights (sic) changes that. The statements are not admissible.

[25] The certiorari was argued on April 20, 2022. In an email which shall be an exhibit on this motion, I asked counsel whether the sentencing judge had ever reviewed the statements prior to his ruling, and I was advised by the Crown on behalf of all counsel that he had not.

2. Standing for the Five Individuals Harmed by Mr. Walker’s Conduct Granted:

[26] The individuals seeking leave all had an interest in the subject matter of the proceeding and may be adversely affected by the ruling in the proceeding. The questions of law in this proceeding impact both Mr. Walker and these five individuals.

[27] Given the facts of this case and the subject matter of the motion, defence counsel conceded that the five individuals should be granted standing at the motion for certiorari. If defence counsel had not made this concession, it would have been granted given the direct interest the third parties have in the issues to be decided.

3. Certiorari Granted to Third Parties on Interlocutory Motion:

[28] Interlocutory orders in criminal proceedings are rare for good reason. Parties should not be able to do an end run around an unfavourable ruling or disrupt proceedings. Most issues can safely wait until an appeal court can review the matter.

[29] However, third parties are not in the same legal position as parties in relation to interlocutory motions. Certiorari in criminal proceedings is available to third parties in a wider range of circumstances than for parties. Third parties are outside of the actual proceedings and have no ability to seek relief from the court of first instance: see R. v. Primeau, [1995] 2 S.C.R. 60, at para. 12.

[30] Third parties also have no right of appeal. Third parties have certiorari available to review both errors of jurisdiction and to challenge errors of law on the face of the record. The test is whether the order has a final and conclusive character vis-à-vis the third party: see R. v. Awashish, 2018 SCC 45, [2018] 3 S.C.R. 87, at para. 12.

[31] The decision denying hearing the VIS is of a final and conclusive nature to the third parties in this case.

[32] The circumstances in this case warrant the immediate granting of the prerogative remedy by the Superior Court as indicated in R. v. Johnson (2001), 64 C.C.C. (3d) 20 (Ont. C.A), at p. 24-25.

[33] The matter is scheduled to begin sentencing proceedings on June 29, 2022, leaving the third parties with no other legal recourse to seek review of the decision to decline to hear the VIS.

4. Failure to Consider the Evidence:

[34] The failure to consider evidence relevant to an issue can constitute an error of law in certain circumstances: R. v. Stennet, 2021 ONCA 258, para. 50-51. As indicated previously, third parties may seek certiorari where an error of law has been made by the court of first instance. The evidentiary rules of sentencing favour inclusion, therefore a judge who excludes evidence tendered at sentencing without first examining it commits an error of law: see R. v. Virani, 2012 ABCA 155, 524 A.R. 328, at para. 13; R. v. E.S., 2017 BCCA 354, 356 C.C.C. (3d) 294, at para. 38; but see R. v. M.(P), 2012 ONCA 162, 282 C.C.C. (3d) 450, where the Court of Appeal for Ontario found a sentencing judge could exercise discretion to refuse to view a disc containing images of child sexual abuse at sentencing, where the victim objected to it being viewed, and the court indicated it was aware of the disc’s content.

[35] Section 723 of the Criminal Code provides that before determining the sentence, the court “shall” give the prosecutor and the offender the opportunity to make submissions with respect to any facts relevant to the sentence imposed, and “shall” hear any relevant evidence presented by the prosecutor and the offender. Further, s. 726 provides that in determining the sentence, a court “shall” consider any relevant evidence placed before it. However, a trial judge at sentencing should exclude otherwise relevant evidence proffered by the Crown where the prejudicial effect of the evidence outweighs its probative value. M.P., supra, para 25.

[36] In M.P., the court was aware of the content of the disc, and the victim objected to its being viewed. In the case of Walker, the judge was advised by the Crown that he did not have all of the evidence from the proposed witnesses, and the very questions he was asking were answered in the VIS. Given the novel legal issue presented, within the context of a dangerous offender hearing, and after being told he did not have all of the relevant evidence, the sentencing judge should have reviewed the VIS on the record, before ruling them inadmissible. In failing to do so, the court erred.

5. Why the court should consider the VIS within the voir dire:

[36] Context drives the assessment of admissibility. Evidence which is inadmissible for one purpose may be admissible for another purpose. The protection of the public is the paramount sentencing value in a dangerous offender hearing. The offender’s procedural protections are more narrowly defined. The court must avail itself of the “broadest possible range of information.”: R. v. Jones, [1994] 2 S.C.R. 229, at p. 291, per Gonthier J.

[37] Uncharged evidence may not be lead for the purpose of increasing the punishment of the offender nor to attempt to extract some punishment for those untried and uncharged offences. This would offend the presumption of innocence and s. 725 of the Criminal Code: see R. v. Edwards (2001), 54 O.R. (3d) 737 (Ont. C.A.), at para. 62.

[38] However, given the need for all relevant evidence to be made available to the sentencing judge, evidence in the VIS arising from uncharged conduct which has been proven beyond a reasonable doubt may be relevant to the statutory factors which must be considered by the sentencing judge under s. 753 of the Criminal Code, or to the character and repute of the offender under s. 757 of the Criminal Code. The evidence is not being lead for the purpose of punishment, but rather to establish the offender’s character and reputation or risk of re-offending.

[39] During submissions by the Crown, the court indicated that cross-examination on a VIS is not available. This is not correct. It is true that there is no open-ended right to cross-examination on a VIS. However, the circumstances in this case are unique. There are various proposed routes to admissibility. The court is able to exercise discretion in a sentencing hearing to ensure procedural fairness to Mr. Walker. Cross-examination on a VIS is available where an air of reality has been demonstrated that a fact is in dispute. R v. V.W., 2008 ONCA 55 at paras 28-29. The sentencing judge may determine that more latitude in cross-examination is warranted to ensure procedural fairness to Mr. Walker and exercise the court’s discretion accordingly. Cross-examination under s.757 of the Criminal Code is also available. Other safeguards might also be able to substitute for the lack of cross-examination where it may not be available. The prejudicial impact of this evidence is negligible within the context of this dangerous offender hearing. The court should assess the proposed evidence to determine if its probative value warrants reception.

[40] The sentencing judge indicated that he had already heard from the witnesses on the Crown’s hearsay application regarding admitting uncharged conduct. He pointed out that MP was “not a cipher to him.”

[41] The Crown informed the sentencing judge that he had not already heard all of the relevant evidence on the prior uncharged conduct hearsay application. The Crown pointed out that the very questions posed to her by the sentencing judge were addressed in the VIS.

[42] The Crown proposed that the court hear the statements presented on a voir dire and reserve its ruling, thus preserving the evidence for review.

[43] There was much to commend in the procedure suggested by the Crown. A voir dire where the statements were read would have preserved the evidence on the record for future review if necessary. There is no doubt that MP and CL and their families and caregivers have been victimized, in the ordinary sense of that word, by the actions of Mr. Walker. The sentencing judge found that the underlying facts relating to the victimization of MP had been proven beyond a reasonable doubt. Whether these individuals are victims within the context of s. 722 of the Criminal Code and whether or not their evidence is nonetheless admissible, or not admissible remains to be determined by the sentencing judge. The issue is a novel one in law and to date, counsel could not provide a single case dealing with this exact issue.

[44] There was little to no prejudice which would inure to the defence if the procedure suggested by the Crown had been followed. Defence counsel and the sentencing judge both recognized that the court is capable of disabusing itself of irrelevant, or inadmissible evidence. The defence objected to the statements being read on the voir dire due to powerful statements being made. Given the nature of the other evidence already heard in this matter, the relative prejudice of the proposed VIS is not likely to engender prejudice to Mr. Walker. However, if prejudicial information emerges when the statements are read, the court can disabuse itself of it.

[45] The criminal justice system is predicated on the ability of judges to disregard inadmissible evidence.

[46] The Crown also asked the court for a ruling on why the statements could not be presented on a voir dire. While initially describing this procedure as having a “certain elegance”, the court ultimately declined to permit the statements to be read on a voir dire. The court indicated there was nothing unfair about the procedure suggested by the Crown.

[47] The court did not provide the ruling requested by the Crown explaining the reasons for declining to permit the statements to be presented on the voir dire. The court expressed doubt about the admissibility of the statements, without having reviewed them, and simply indicated that the court wished to decide the matter without reviewing the statements.

6. Final decision rests with the sentencing judge:

[48] Counsel for the third parties adopted the factum of the Crown. There were other alleged errors argued to give rise to certiorari, including that the reasons provided were not capable of appellate review. This court heard argument regarding: Statutory interpretation, the impact of the Canadian Victims Bill of Rights on the interpretation of s.722 of the Criminal Code, the definition of victim in s.2 of the Criminal Code, the direction of the Supreme Court regarding child victims of sexual abuse in R. v. Friesen, 2020 SCC 9, 391 C.C.C. (3d) 309, the Charter rights of victims, and a complex discussion of various avenues of admissibility for this proposed evidence.

[49] This matter is highly time-sensitive due to the health of the children, and the fact that this is an interlocutory motion during a dangerous offender proceeding. Given the time constraints and having found that the sentencing judge erred by failing to permit the statements to be read in court so they could be considered in full, and the record preserved, prior to refusing to admit them, I did not provide a ruling regarding the many arguments which were made on this application.

[50] The issues are complex and require a balancing of Mr. Walker’s rights to procedural fairness and the need to protect the public. The individuals who were harmed by Mr. Walker may not be ultimately determined to be victims within the lens of s.722 of the Criminal Code, however, they may nonetheless have evidence relevant to the decisions which the sentencing judge must make. Their evidence contained in the VIS should be heard by the court before admissibility is determined.

[51] I agree with the Crown and counsel for the third parties, that the history of our criminal justice system towards individuals who have suffered harm at the hands of offenders has sometimes fallen short. The issue before the sentencing judge is a novel and difficult one. Having reviewed all of the material on the certiorari application, I do not envy his task.

[52] Procedural fairness to Mr. Walker must be maintained, even if his rights are circumscribed in a dangerous offender hearing by the need for the sentencing judge to have the broadest possible range of information available, due to the paramountcy placed on the protection of the public.

[53] Procedural fairness is not the sole province of the offender. The Crown is also entitled to procedural fairness. R v. Parker-Ford, 2020 ONSC 5951, at para 11. In this instance, the Crown suggested a procedure which was fair according to the sentencing judge, and which would preserve the record given the unique legal question posed. There was limited to no prejudice to the defence in adopting this procedure given the sentencing judge’s ability to disabuse himself of inadmissible evidence and given the nature of the evidence already heard in this matter. The outcome of this case may have impact not only in this instance, but in future cases.

[54] The sentencing judge is directed to hear the VIS of the five individuals prior to ruling on admissibility. The sentencing judge is free to refuse to admit the statements or to give them as much or as little weight as the court finds appropriate. The sentencing judge has discretion to permit and control cross-examination as the court sees fit.

[55] The defence requested that this court order the sentencing judge to also re-consider the admissibility of the statements of the uncharged conduct if the VIS were found to be admissible. Given my ruling, which orders the court to hear the full statements but contains no direction as to whether they are admissible in part or in whole, I have declined to make an order regarding re-consideration of the statements on the uncharged conduct hearsay hearing.

Anne London-Weinstein J. Released: May 03, 2022