R. v. A.M.

R. v. A.M. Collection Decisions of the Court of Appeal Date 2024-07-25 Neutral citation 2024 ONCA 587 Docket numbers C69540 Judges Lauwers, Peter D.; Paciocco, David M.; Thorburn, Julie Subject Criminal Decision Content 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 or 486.6 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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a) any of the following offences: (i) an offence under section 151, 152,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, 162.1, 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) as soon as feasible, inform any witness under the age of 18 years and the victim of the right to make an application for the order; (b) on application made by the victim, the prosecutor or any such witness, make the order; and (c) if an order is made, as soon as feasible, inform the witnesses and the victim who are the subject of that order of its existence and of their right to apply to revoke or vary it. (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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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; (b) on application of the victim or the prosecutor, make the order; and (c) if an order is made, as soon as feasible, inform the victim of the existence of the order and of their right to apply to revoke or vary it. (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. (3.1) If the prosecutor makes an application for an order under paragraph (2)(b) or (2.2)(b), the presiding judge or justice shall (a) if the victim or witness is present, inquire of the victim or witness if they wish to be the subject of the order; (b) if the victim or witness is not present, inquire of the prosecutor if, before the application was made, they determined if the victim or witness wishes to be the subject of the order; and (c) in any event, advise the prosecutor of their duty under subsection (3.2). (3.2) If the prosecutor makes the application, they shall, as soon as feasible after the presiding judge or justice makes the order, inform the judge or justice that they have (a) informed the witnesses and the victim who are the subject of the order of its existence; (b) determined whether they wish to be the subject of the order; and (4) An order made under this section does not apply in either of the following circumstances: (a) the disclosure of information is made in the course of the administration of justice when the purpose of the disclosure is not one of making the information known in the community; or (b) the disclosure of information is made by a person who is the subject of the order and is about that person and their particulars, in any forum and for any purpose, and they did not intentionally or recklessly reveal the identity of or reveal particulars likely to identify any other person whose identity is protected by an order prohibiting the publication in any document or the broadcasting or transmission in any way of information that could identify that other person. (5) An order made under this section does not apply in respect of the disclosure of information by the victim or witness when it is not the purpose of the disclosure to make the information known to the public, including when the disclosure is made to a legal professional, a health care professional or a person in a relationship of trust with the victim or witness. 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. (1.1) A prosecutor shall not commence or continue a prosecution against a person who is the subject of the order unless, in the opinion of the prosecutor, (a) the person knowingly failed to comply with the order; (b) the privacy interests of another person who is the subject of any order prohibiting the publication in any document or the broadcasting or transmission in any way of information that could identify that person have been compromised; and (c) a warning to the individual is not appropriate. (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. Corrected decision: the text of the original judgment was corrected on September 27, 2024, and a description of the correction is appended. COURT OF APPEAL FOR ONTARIO CITATION: R. v. A.M., 2024 ONCA 587 DATE: 20240725 DOCKET: C69540 Lauwers, Paciocco and Thorburn JJ.A. BETWEEN His Majesty the King Respondent and A.M. Appellant Scott Hutchison, for the appellant Rebecca De Filippis, for the respondent Heard: May 21, 2024 On appeal from the dangerous offender designation and indeterminate sentence imposed on September 11, 2019 by Justice Anne M. Molloy of the Superior Court of Justice, with reasons reported at 2019 ONSC 5065. REASONS FOR DECISION OVERVIEW [1] The issue in this case is whether the sentencing judge erred in designating the appellant, A.M., a dangerous offender, or in imposing an indeterminate sentence. [2] The appellant, who had no prior criminal record, was convicted of violently and brazenly assaulting two different women on three separate occasions involving escalating violence and brutality. As the result of those three incidents he was convicted of two sexual assaults, two assaults, assault with a weapon, break and enter a dwelling house, intent to overcome resistance by choking, sexual assault causing bodily harm, uttering a threat, aggravated assault, assault of a police officer while attempting to resist his arrest on the sexual assault charges, and possession of cannabis for the purpose of trafficking. [3] The Crown brought a dangerous offender application. [4] The appellant claims the sentencing judge erred in designating him a dangerous offender by: (1) mischaracterizing his willingness to engage in treatment as a refusal, when he said he was willing to engage in treatment, and (2) in finding that there was a “high likelihood of harmful recidivism” contrary to the evidence, including the expert evidence, that he poses only a moderate risk. The appellant also claims that the imposition of an indeterminate sentence was contrary to the principles of restraint and proportionality. [5] He therefore seeks an order setting aside the dangerous offender designation and imposing either a determinate sentence, or a determinate sentence followed by a long-term supervision order (“LTSO”). [6] In our view, the sentencing judge carefully and accurately reviewed the law and the evidence and provided comprehensive reasons to explain why she concluded that the dangerous offender application should be granted and an indeterminate sentence imposed. We see no error in her analysis or her conclusion and, for the reasons that follow, dismiss the appeal. THE LEGAL TEST [7] Part XXIV of the Criminal Code establishes a scheme for the designation of certain offenders as “dangerous offenders”. [8] Section 753(1) sets out the different statutory requirements to be met to designate an offender as a dangerous offender. Under s. 753(1), there are four different routes to a dangerous offender finding, each with its own criteria: R. v. Francis, 2023 ONCA 760, at para. 59. [9] Section 753(1)(a)(i) provides that an offender can be found to be a dangerous offender if the offender has engaged in a pattern of repetitive behaviour. More specifically, s. 753(1)(a)(i) provides that the court must be 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. [Emphasis added.] [10] Designation as a dangerous offender under s. 753(1)(a)(iii) focuses on the brutality of the behaviour associated with the index offence. Section 753(1)(a)(iii) provides that an offender can be found to be a dangerous offender if the court 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 (iii) any behaviour by the offender, associated with the offence for which he or she has been convicted, that is of such a brutal nature as to compel the conclusion that the offender’s behaviour in the future is unlikely to be inhibited by normal standards of behavioural restraint. [Emphasis added.] [11] Section 753(1)(b) considers whether an offender is able to control their sexual impulses. To be designated a dangerous offender under s. 753(1)(b), a court must be satisfied: 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.][1] [12] Although the different routes to designation as a dangerous offender have different criteria, they each share four common elements: (i) the index offence is a serious personal injury offence, (ii) there is a broader pattern of violence of which the index offence forms a part, (iii) the behaviour is intractable, and (iv) there is a high likelihood of harmful recidivism: see R. v. Hanson, 2024 ONCA 369, at para. 84; R. v. Lyons, [1987] 2 S.C.R 309, at p. 338; see also R. v. Boutilier, 2017 SCC 64, [2017] 2 S.C.R. 936, at paras. 26, 33. [13] Once an individual has been designated a dangerous offender, the sentencing judge should consider whether a determinate sentence or a determinate sentence followed by a LTSO would protect the public. [14] After ruling out these less restrictive alternatives, the sentencing judge may impose an indeterminate sentence. An indeterminate sentence must be the least restrictive means by which to reduce the public threat posed by the offender to an acceptable level: Boutilier, at para. 65, citing R. v. Johnson, 2003 SCC 46, [2003] 2 S.C.R. 357. Otherwise, the sentence would “overshoot the public protection purpose of the dangerous offender regime”: Boutilier, at para. 64. [15] An indeterminate sentence will be imposed unless there is a “reasonable expectation that a lesser measure” will adequately protect the public in the future from the offender committing another serious personal injury offence: Criminal Code, s. 753(4.1). [16] As noted by the sentencing judge, the burden is on the Crown to establish beyond a reasonable doubt that the criteria for designation as a dangerous offender have been met and that an indeterminate sentence should be imposed: Boutilier, at paras. 26-27, 35-37. [17] The purpose of the scheme is public protection: Boutilier, at para. 56; R. v. Steele, 2014 SCC 61, [2014] 3 SCR 138, at para. 27; and Johnson, at para. 29. Consistent with this purpose, the court seeks to identify offenders who are dangerous to prevent them from endangering the public in the future: see R. v. Knife, 2015 SKCA 82, 460 Sask. R. 287, at paras. 53-54, leave to appeal refused, [2015] S.C.C.A. No. 382. ANALYSIS OF THE EVIDENCE AND THE SENTENCING JUDGE’S REASONS [18] In this case, the appellant conceded that the first step was met: that is, these were serious personal injury offences that endangered the physical or mental well-being of others. [19] The second step is whether the appellant exhibited “a pattern of behaviour which has involved violence, aggressive or brutal conduct, or a failure to control sexual impulses”: Lyons, at p. 338. A pattern may be established on the basis of only two incidents although where there are fewer incidents, they must generally be more similar: R. v. Gibson, 2021 ONCA 530, 157 O.R. (3d) 597, at para. 223, citing R. v. Hogg, 2011 ONCA 840, 287 O.A.C. 82, at paras. 40, 43, and R. v. Byers, 2017 ONCA 639, at paras. 20‑23. [20] In this case, a pattern of similar assaults was established: on the first assault of M.N., the appellant forced her to perform fellatio, became violent, made threats of further violence, threatened her with a knife, and choked her until she was unconscious. He penetrated her vaginally without using a condom and fled only when interrupted by third parties who heard the victim's screams. [21] On the first assault of B.J.S., the appellant again began by forcing her to perform fellatio and choking her, which he videotaped. The fact that he videotaped the incident demonstrates escalation in his behaviour. [22] On the second assault on B.J.S., he again forced B.J.S. to perform fellatio, threatened her with a knife, videotaped the assault, choked her and threatened further harm. The sentencing judge observed that this assault was particularly cruel, resulting in B.J.S. sustaining several injuries and evidencing a steady escalation in the appellant’s violent conduct towards women. [23] Later in the day of the second assault, when police advised the appellant that he was under arrest, he punched one officer in the face with a closed fist. [24] While in custody awaiting trial, the appellant was one of three men who assaulted another inmate although he played a lesser role than the other two. [25] Like the sentencing judge, we are satisfied that the appellant exhibited a pattern of repetitive behaviour beyond the predicate offence (within the meaning of s. 753(1)(a)(i)), brutality (within the meaning of s. 753(1)(a)(iii)), and a failure to control his sexual impulses (within the meaning of s. 753(2)). [26] The third step is, whether the appellant’s pattern of behaviour is intractable. The sentencing judge held that: It is clear from the nature of these attacks, and from the escalating level of violence, that [the appellant] is unable to restrain his conduct. In the first incident, he attacked M.N. in public. He penetrated her vaginally without using a condom, leaving his DNA behind. He attacked [B.J.S.] even though she knew who he was and could identify him. Again, he left behind his DNA. He retained images of these assaults on his cellphone so that he could continue to watch them later, even though, if found, these would be highly incriminating. These are all factors demonstrating that [the appellant’s] pattern of behaviour is something he is unable to restrain. [27] The sentencing judge also held that the second attack on B.J.S. was “sadistic, inhuman, and animalistic. It was also prolonged. In short, it was brutal.” This led her to conclude that normal standards of behavioral restraint had little meaning for the appellant and did not inhibit his conduct. [28] There was ample evidence to support the sentencing judge’s conclusion that the appellant’s behaviour demonstrates a failure to restrain his conduct and is intractable. [29] The fourth step and final step involves an assessment of the appellant’s likelihood to reoffend. As noted by the sentencing judge, “[t]he Crown must establish beyond a reasonable doubt that there is a high likelihood that [the appellant] will reoffend in a harmful way and that the pattern of conduct he has demonstrated to date is substantially and pathologically intractable.” [30] The sentencing judge noted that the psychiatrist, Dr. Klassen, diagnosed the appellant with a serious paraphilic disorder, which he found was likely sexual sadism. Dr. Klassen indicated that he could have been more definitive about the sadism diagnosis if the appellant had been more forthcoming about his sexual urges and fantasies. He said that sexual sadism is usually chronic and will typically escalate. [31] The sentencing judge noted that the testing demonstrated that the appellant had a clear preference for sex in which women are “brutally beaten and sexually assaulted”. This was demonstrated by factors such as the use of gagging and knives during sex, biting his partners, inserting a plunger and disposable razor into B.J.S., and capturing these acts on video so that he could masturbate to them later. [32] Relying on the results of three standardized tests and the circumstances leading to these convictions, Dr. Klassen opined that the appellant, who was 28 years old at the time of the sentencing judge’s decision, had a 50 percent chance of reoffence and would need “external controls” until at least the age of 50. Dr. Klassen explained that his risk estimate was based on his experience and use of actuarial risk-assessment tools. [33] The sentencing judge appreciated that, while expert evidence is relevant to this inquiry, the weight and reliability of the expert evidence is determined by the sentencing judge: Lyons, at p. 366. She noted that, “the scores themselves are not conclusive” and that, although “[t]he expert evidence is also a factor to be taken into account … I cannot simply disregard the evidence, but neither am I bound by it. It is a factor to be considered.” [34] She explained why she considered the appellant a high risk to reoffend. She noted that although Dr. Klassen said that sexual paraphilia can be managed with treatment, the appellant denied preferring coercive sex or sadism and refused to recognize his need for treatment. As such, Dr. Klassen could not gauge whether his condition could be managed. [35] The sentencing judge expressed serious concern that the appellant: … denies that he has a sexual preference for coercive sex, much less that he enjoys watching women suffer or is sexually aroused by hurting women. He says that his sexual urges and his sexual conduct are not deviant…. [W]ithout some insight into his paraphilia, and without a meaningful commitment to change his conduct in the future through participation in treatment programs, there is no hope that [the appellant]’s conduct will change in the future. … It is his right to refuse treatment and to deny any sexual paraphilia, but in the face of that attitude I can only conclude that his deviant conduct will continue unabated, and likely escalate, if he is released into the community. … Unless [the appellant] is in custody, I believe he is highly likely to reoffend, and further, to reoffend in an extremely violent manner. [36] Relying on the appellant’s denial of his sexual urges and unwillingness to make real effort to change, the sentencing judge found beyond a reasonable doubt that “there is a high likelihood” that the appellant would reoffend if released and “that his pattern of sexually violent conduct is intractable.” There was ample evidence to support this conclusion. [37] As such, she held that all of the criteria for his designation as a dangerous offender were met and that, “imposing a sentence to reflect the severity of the offences” and permitting the appellant to “simply be released into the community at the end of that period is out of the question” as “such a sentence would put the vulnerable women in the community directly at risk of serious harm.” [38] Contrary to the appellant’s submission on appeal, the sentencing judge did not mischaracterize the evidence of the appellant’s willingness to engage in treatment. While the appellant did tell Dr. Klassen that he would engage in treatment, he said this was only if his appeal failed, to minimize his jail time or to appease the authorities. He did not feel he needed treatment. [39] We agree with the sentencing judge that the appellant’s statement to Dr. Klassen that he would engage in treatment but only if his appeal failed does not constitute a willingness to change through treatment or an acknowledgment of his condition. It was simply a means to an end. [40] We therefore reject the appellant’s ground of appeal that the sentencing judge erred by mischaracterizing his willingness to engage in treatment as a refusal. [41] For the foregoing reasons we also reject the appellant’s submission that the trial judge erred in finding that there was a “high likelihood of harmful recidivism”. As the sentencing judge recognized, that determination was hers to make, notwithstanding the expert evidence. She understood the expert opinion, including the results and the limits of the standardized testing, and she was aware that the appellant had no prior criminal record, and had never been ordered to undertake treatment before. However, the evidence fully supported her conclusions that he lacked insight into his conduct, his serious chronic disorder (likely sexual sadism), or the need for treatment, and that his brazen offending elevated his risk of reoffending. She was entitled to conclude, notwithstanding the expert evidence that “without some insight into his paraphilia and without a meaningful commitment to change his conduct in the future through participation in treatment programs, there is no hope that [his] conduct will change in the future,” and that he is “highly likely to reoffend.” [42] The foregoing observations also assist in explaining why we do not accept the appellant’s final ground of appeal, that the indeterminate sentence is contrary to the principles of restraint and proportionality. Because the sentencing judge had no reasonable expectation that the appellant would undergo treatment for his sexual paraphilia prior to release, and there was no evidence that his risk could be managed in the community without his engagement, she concluded that there could be no expectation that the appellant could be controlled by a LTSO. The sentencing judge was not compelled to impose a determinate sentence or an LTSO because of the expert evidence about “burnout theory”. That evidence was general and theoretical. Should the appellant’s attitude change or the risk he poses otherwise abate, those contingencies can be addressed contextually by the parole board. CONCLUSION [43] For the above reasons, we see no error in the sentencing judge’s analysis or conclusion and the appeal from the dangerous offender designation and indeterminate sentence is dismissed. The conviction appeal is dismissed as abandoned. “P. Lauwers J.A.” “David M. Paciocco J.A.” “Thorburn J.A.” Erratum Correction made on September 27, 2024: The disposition at para. 43 was amended to clarify that the conviction appeal is dismissed as abandoned. [1] The fourth route to designation as a dangerous offender, s. 753(1)(a)(ii), considers whether the offender has engaged in a pattern of persistent aggressive behaviour. Given her finding that the appellant met the criteria for designation as a dangerous offender under the other three routes, the sentencing judge declined to consider whether he also met the criteria in s. 753(1)(a)(ii).