



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. George, 2016 ONCA 464

DATE: 20160614

DOCKET: C55373

Weiler, Simmons and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Dwayne George

Appellant

Michael W. Lacy, for the appellant

Dayna Arron, for the respondent

Heard: April 28, 2016

On appeal from the conviction entered on May 3, 2011 and
    the sentence imposed on February 17, 2012 by Justice J. Bryan Shaughnessy of
    the Superior Court of Justice, sitting without a jury.

Weiler J.A.:

A.

Overview

[1]

The appellant was convicted of a number of offences relating to events
    that took place between August 3 and August 5, 2007, and in June 2008, all in
    respect of his former girlfriend: break and enter, assault causing bodily harm,
    unlawful confinement, uttering threats, breach of recognizance, and obstruct justice.
    The trial judge found that the appellant was a dangerous offender and imposed
    an indeterminate sentence.

[2]

In convicting the appellant, the trial judge relied on the testimony of
    the complainant as well as circumstantial evidence including police photographs
    of damage to the door of the complainants apartment, injuries to her face and
    chin, blood on the mattress in the complainants bedroom, and her fearful
    demeanor. The trial judge also ruled that evidence of the appellants prior
    convictions in 2002 for break and enter with intent to commit an indictable
    offence, unlawful confinement, assault causing bodily harm, assault with a weapon,
    and kidnapping - all in relation to the same complainant - was admissible as
    similar fact evidence.

[3]

Further circumstantial evidence consisted of post-offence conduct: in
    2008, while the appellant was incarcerated in relation to the 2007 charges, a
    prison guard found a note in the appellants handwriting urging another inmate
    to force the complainant to recant her evidence. These facts also formed the
    basis of the appellants convictions for one count of uttering a threat and for
    obstruct justice.

[4]

The appellant appeals his convictions and sentence.

[5]

In relation to his convictions, the appellant raises two grounds of
    appeal. First, he argues that the trial judge mischaracterized defence evidence
    as alibi evidence, and consequently erred in law in drawing an adverse
    inference from the failure to disclose the alibi until trial and the fact
    that the appellant did not testify. Second, he argues that the trial judges
    approach to and assessment of credibility issues was flawed, in that he (a)
    subjected defence evidence to a higher and more exacting level of scrutiny than
    the evidence of the Crown, and (b) overly relied on the similar fact evidence
    and the after the fact circumstantial evidence to satisfy himself of the
    appellants guilt. The appellant seeks a new trial.

[6]

In relation to his sentence, the appellant argues that the trial judge
    erred in failing to accord minimal weight to psychiatric evidence that was
    challenged and significantly weakened during cross-examination, and in imposing
    an indeterminate period of detention rather than a long-term supervision order.

[7]

I would dismiss the appeal.

[8]

With respect to the conviction appeal, although the term alibi was used
    by defence counsel at trial, on the facts as found by the trial judge, the
    defence evidence at issue was not an alibi and I agree with the appellant that
    the trial judge erred in treating it as such. I am, however, of the view that the
    trial judges reasons reveal that he fairly scrutinized the evidence of both
    the appellant and the Crown, including both the similar fact and after the fact
    evidence, and that he was entitled to give the weight to it he did.

[9]

While the trial judges error in relation to the alibi issue was
    serious, I would reject the appellants submissions as to the effect of the
    error, and am satisfied that the evidence of the accuseds guilt was so
    overwhelming that a trier of fact would inevitably convict. Accordingly, the
    Crown has met its burden of demonstrating the result would necessarily be the
    same and I would apply the curative proviso in s. 686(1)(b)(iii).

[10]

With respect to the sentence appeal, there is no issue that the
    appellant met the criteria for a dangerous offender designation. The trial
    judge applied the correct legal framework. On the evidence, it was open to the trial
    judge to conclude that he was not satisfied of a reasonable possibility that
    the appellants risk in the community could be controlled by the end of any
    possible long-term supervision order.

B.

Facts

[11]

A brief overview of the facts will suffice to give the necessary context
    to the appellants grounds of appeal.

(1)

Charges arising out of events occurring on August 3-5, 2007

[12]

The complainant testified that on Thursday, August 2, she came home to
    her basement apartment and discovered that the door was unlocked and there was
    damage to the frame of the doorway. Someone had attempted to enter the
    apartment. She got some wood from the hardware store and tried to repair the
    door. She slept on the couch in the living room that night.

[13]

In the early morning hours of Friday, August 3, the complainant woke up
    sensing that someone was in the room. She saw the appellant standing over her.
    He grabbed her and assaulted her on the way to her bedroom. He hit her
    repeatedly on the back of her head, her chin and her face. He made her lay down
    on her bed and stood with his foot on her back. He forced her to undress and
    tied a piece of her clothing around her face. He threatened her and told her he
    was going to kill her  that he had already done seven years in prison and was
    not afraid to do another 15 years for killing her.

[14]

The complainant testified that after the assault, the appellant remained
    in the apartment with her. She tried to go on with life as usual for the sake
    of her children: she did not think she could leave. When Mr. Gray, a friend who
    lived nearby, came by her apartment on Saturday morning to see if she wanted to
    take her children, aged two and four, to the park, she told him to go away. He
    asked what happened to her face. She told him not to worry about it. The complainant
    testified that she let Gray take the children for a few hours while she
    remained inside with the appellant.

[15]

On Sunday, Gray drove the complainant and her two children to a tanning
    salon. He called the police on his own initiative. When he returned to the
    apartment with the complainant and her children, the police were there. The
    appellant had locked himself in the bathroom. He was arrested and charged with
    break and enter, assault causing bodily harm, unlawful confinement, uttering
    threats, and breach of recognizance.

[16]

After the appellants arrest, police searched the apartment and found a
    knapsack of the appellant on the floor in the complainants bedroom together
    with some clothing in a small grocery store bag.

(2)

Charges arising out of events occurring in June 2008the post-offence
    conduct

[17]

In June 2008 the appellant was incarcerated awaiting trial on the August
    2007 charges at issue on this appeal. A corrections officer found a note among
    another inmates possessions and immediately recognized the appellants
    unique handwriting. The officer had become familiar with the appellants
    handwriting as he regularly received request forms from the appellant and also
    reviewed the appellants correspondence.

[18]

The note began by describing the physical appearance of the complainant
    and directed that she should be lured, held hostage and tortured, leaving no
    visible injury, in order to compel her to sign a letter stating that her
    earlier allegations were false and that she wished the charges withdrawn. The
    note further directed that she better make sure not to show up for trial no
    matter what and that she should not cooperate with the Crown but instead
    cooperate with the defence.

[19]

The note also indicated that plan B was to light her head on fire
    without saying anything more than dont snitch. The note described how to
    inform the writer that the task had been accomplished and said that payment
    would be made.

[20]

After the corrections officer disclosed the note to the OPP, the
    appellant was further charged with uttering a threat and obstruct justice.

(3)

Convictions arising out of events occurring in 2000  the similar fact
    evidence

[21]

Similar fact evidence was admitted at trial relating to events in 2000
    involving the appellant and the complainant. The complainant was approximately
    19 years old at the time. In May 2000, the appellant and the complainant were
    dating. The appellant assaulted her in her apartment. She had the locks changed
    on the door and had a girlfriend stay over with her. The following day, the
    appellant broke into the complainants apartment, assaulted her, and forced her
    to shave off her hair. He and two other men who were with him then beat her to
    the point she thought she was going to die. They transported her to Montreal
    from Toronto and held her captive until she was rescued by police from a closet
    in a hotel. She was repeatedly assaulted during the time she was held captive.

[22]

In 2002, a jury found the appellant guilty of several offences relating
    to this conduct, including kidnapping. He was sentenced to four years, in
    addition to three years and four months pre-trial custody time. During the
    proceedings, the appellant was not a cooperative witness.

C.

The Conviction Appeal

(1)

Did the trial judge err in characterizing part of the defence evidence
    as an alibi and rejecting it based on a lack of timely disclosure and the
    failure of the appellant to testify?

[23]

This alleged error concerns a part of the evidence of one particular
    witness called by the defence, McFarland.

[24]

McFarlands evidence was that he picked up the appellant in Pickering
    around 11 p.m. on Friday, August 3, and drove to Toronto where they attended
    Caribana festivities. He testified that the two walked up and down Yonge
    Street, were together off and on throughout the evening, and were otherwise in
    regular telephone contact until they left Toronto and returned to Pickering
    early in the morning of Saturday, August 4. Telephone records revealed calls
    made between the appellant and McFarland between 11:52 p.m. and 4:11 a.m.
    McFarland initially testified that he and the appellant finally parted company
    in the morning of Saturday, August 4th around 7 a.m., but later changed his
    evidence to the effect it could have been as early as 5 a.m.

[25]

During the trial, the Crown objected to the lack of timely disclosure of
    this alibi. The defence did not, at that time, take issue with the Crowns
    characterization of McFarlands evidence. During his closing submissions,
    defence trial counsel (who is not counsel on this appeal) at one point referred
    to McFarlands evidence as an alibi defence that the appellant had plans to go
    out with his friends that weekend, submitting that McFarlands evidence of the
    alibi he provides for [the appellant] on Friday was reliable.

[26]

In response to this submission, the trial judge asked: How do you say
    that counts for an alibi when the alleged home invasion is sometime in the
    early hours of  it might be two, three, four oclock, five oclock in the
    [Friday] morning?  How do you say that is an alibi?

[27]

Defence counsel acknowledged that that was part of the issue and that on
    the complainants evidence she woke up to find the appellant in her apartment
    in the early hours of Friday. He stated: Its not so much an alibi as, It
    couldnt have happened because I wasnt there, but what it is is a period of
    time that [ ] McFarland is suggesting [the appellant] was never there. The
    gist of the defences submission was that if the appellant was not at the
    complainants apartment but was instead with McFarland, he could not have
    unlawfully confined the complainant during that period of time.

[28]

The defence position at trial was that the complainant was fabricating
    her allegation that the appellant had assaulted and confined her. Despite the
    injuries inflicted by the appellant on the complainant in 2000, she had
    continued to have contact with him. The defence submitted the complainant had
    been told by the CAS that if she continued contact with the appellant she would
    lose her children. When the appellant was arrested in the complainants apartment,
    she concocted the allegations to prevent that from happening.

[29]

While there was evidence that could have given rise to the inference
    that the assault took place in the early hours of Saturday morning rather than
    Friday morning, the trial judge accepted the complainants version of events as
    to when the break and enter and assault occurred. McFarlands evidence, if
    accepted by the trial judge, instead rebutted the complainants evidence that
    she felt unable to leave the apartment at any time during August 3-5 and would
    have suggested that the complainant was being untruthful in her narration of
    the weekends events.

[30]

In his reasons relating to the alibi issue, after referring to
R.
    v. Wright
, 2009 ONCA 623, 98 O.R. (3d) 665, and observing that there was
    no timely disclosure of the alibi and that the appellant did not testify in
    support of the alibi, the trial judge stated that he was drawing an adverse
    inference against the veracity of the defence of alibi. The trial judge concluded
    this section of his reasons as follows: In any event, the alibi defence
    proffered was a denial of involvement in the offences alleged on the basis that
    the accused was elsewhere. I reject the alibi defence and I find as a fact that
    [the appellant] was present in [the complainants] apartment August 3rd through
    5th, 2007.

[31]

In light of the evidence he accepted as to when the break and enter and
    assault took place, the trial judges characterization of McFarlands evidence
    as an alibi was an error in that even if that evidence was accepted in its
    entirety it would not have been determinative of the final issue of the
    appellants guilt or innocence: see
R. v. Rawn
, 2015 ONCA 396, 326
    C.C.C. (3d) 128, at para. 23. On the evidence accepted by the trial judge, the
    absence of the appellant from the apartment over Friday night and until
    Saturday at 5 or 7 a.m. would not have resulted in an acquittal of the
    appellant because the facts making up the charges had already taken place a few
    hours after midnight Thursday. The trial judge accordingly erred in law in
    characterizing this portion of McFarlands evidence as an alibi and in drawing
    an adverse inference against its veracity.

(2)

Was the trial judges approach to and assessment of credibility issues
    flawed?

[32]

The appellant puts forward two arguments under this ground of appeal.
    The first is that the trial judge subjected the defence evidence to a higher
    and more exacting level of scrutiny than that of the Crown. The second is that
    the trial judge over-relied on the similar fact evidence and the evidence of
    after the fact conduct.

(a)

Did the trial judge subject the defence evidence to a higher and more
    exacting level of scrutiny than that of the Crown?

[33]

The appellant submits that the trial judge ought not to have rejected
    the evidence of McFarland, another long-time friend of the appellant, Okoko,
    and the complainants neighbour, Gray. He submits that the trial judge
    inaccurately characterized McFarland and Okokos evidence as vague and
    uncertain in relation to the events of August 3-5 and as to the appellant and
    complainant being in a physical relationship. He further submits that the trial
    judge failed to reconcile inconsistencies between the complainants evidence
    and Grays evidence. Overall, the appellant submits that the trial judge
    subjected the defence evidence to a higher and more exacting degree of scrutiny
    than that of the complainant.

[34]

In dealing with this submission I will first outline the general
    principles applicable to appellate review on this ground of appeal. I will then
    briefly outline McFarlands, Okokos, and Grays evidence and consider the
    trial judges treatment of it. Finally, I will review the complainants
    evidence and the trial judges treatment of it.

(i)

General principles

[35]

An argument that the trial judge applied a more stringent standard when
    assessing the defences evidence than when assessing the Crowns evidence is
    difficult to make successfully on appeal: see
R. v. Howe
(2005), 192
    C.C.C. (3d) 480 (Ont. C.A.), at para. 59. As this court has recently observed,
    this is so for two reasons: first, credibility findings are the province of
    the trial judge and attract a very high degree of deference on appeal; second,
    appellate courts invariably view this argument with skepticism, seeing it as a
    veiled invitation to reassess the trial judges credibility determinations:
R.
    v. Aird
, 2013 ONCA 447, 307 O.A.C. 183. Absent palpable and overriding
    error, an appellate court is not entitled to reassess and reweigh evidence:
R.
    v. Gagnon
, 2006 SCC 17, [2006] 1 S.C.R. 621, at para. 20.

[36]

To succeed on an uneven scrutiny argument, the appellant must
    demonstrate, through the trial judges reasons or elsewhere in the record, that
    the trial judge applied a higher standard of scrutiny to the evidence of the
    defence: see
Howe
, at para. 59;
R. v. Rhayel
, 2015 ONCA 377,
    324 C.C.C. (3d) 362, at para. 98. Arguments that amount to an assertion that a
    different judge could have reached a different conclusion are not enough to
    succeed on this ground: see
Howe
, at para. 59.

(ii)

McFarlands evidence

[37]

In addition to his evidence about attending Caribana with the appellant,
    McFarland testified that a few times he picked up and dropped off the appellant
    from a location that was consistent with the location of the complainants
    apartment. On one occasion he came into the apartment and offered his credit
    card so that the young woman (whom he later learned from the appellants sister
    had the same first name as the complainant) could process the womans childs
    birth certificate online. McFarland was shown a photo of the complainant and
    testified he was 60% sure this was the same woman he had seen in the apartment
    with the appellant.

(iii)

Okokos evidence

[38]

Okoko testified that when the appellant was first released from prison
    in 2006, the appellant resided with his father, then with Okoko and later with
    a woman named Stacey with whom the appellant was in a relationship. According
    to Okoko, the appellant and the complainant also appeared to be in a
    relationship. He saw the two together regularly during the summer months of
    June, July and August of 2007. He identified the complainant from a photo.

[39]

Okoko also testified that he had made plans with the appellant to attend
    Caribana with friends on the weekend of August 3-5, but that, though he called
    the appellant numerous times, he could not reach him by phone on Friday or
    during the weekend.

(iv)

Grays evidence

[40]

Gray testified that he was the complainants neighbour and that he had
    known her for about a year, and that he would often see her and her children
    when he would bring his own niece to the park nearby. He also indicated that he
    had seen the appellant in the area or in the complainants apartment several
    times.

[41]

He testified that he had made plans with the complainant to attend
    Caribana, but that on Saturday, August 4, he went to her apartment and saw that
    her face was bruised. She refused to leave the apartment, so Gray instead took
    her son with him to Caribana that day. He testified that when he returned home
    early Sunday morning, he had a vision of the complainant in which her neck
    was bruised. This caused him to become scared and led him to call the police
    that morning. When the police had not arrived, he went to the complainants
    house and convinced her to leave the apartment with him. He took her and her
    children to a tanning salon. While she was inside tanning, he again called the
    police, and by the time they returned to her apartment, the police had arrived
    and arrested the appellant.

[42]

In cross-examination, Gray indicated that he had also been at the
    complainants apartment on Friday, and that he had seen her from the top of the
    stairs. He agreed that when he had given his statement to the police
    immediately after the appellant was arrested, he had said that he couldnt
    recall seeing any injuries to the complainants face on Friday, but also agreed
    that he had not seen her face very clearly until Saturday morning.

(v)

The trial judges treatment of McFarlands, Okokos, and Grays evidence

[43]

The appellant submits the evidence of these three witnesses supported
    the defences theory that the appellant was not an unwanted guest in the
    complainants apartment, and that it also suggested the complainant was lying
    about not having ongoing contact with the appellant after his release from
    prison in 2007. The appellant argues that the trial judge unfairly
    characterized McFarlands and Okokos evidence as vague and uncertain and too
    readily dismissed all of Greys evidence, failing to reconcile inconsistencies
    between Grays and the complainants evidence.

[44]

I disagree. The trial judge gave reasons for rejecting McFarlands
    evidence separate from his erroneous rejection of McFarlands alibi evidence.
    The trial judge also gave reasons for rejecting Okokos testimony, and most of
    Greys testimony, that were founded in the evidence.

[45]

The trial judge found that for the most part McFarland was not a
    credible witness. The trial judge noted that McFarland testified to phone calls
    with the appellant that he later acknowledged were not shown in the phone
    records. McFarland stated he never lived with the appellants father yet he
    acknowledged getting a speeding ticket the prior year and the address provided
    on his licence and insurance were that of the appellants father. The trial
    judge noted that McFarland was calculated, deliberately vague and indeed coy
    in terms of his answers and I also found him to be inaccurate in other aspects
    of his testimony. Quite apart from his consideration of the law relating to
    the alibi defence, the trial judge indicated: [McFarland] was deliberately
    vague in his answers and calculating and I formed the impression that he was
    making up his evidence on the fly and in a manner that would place [the
    appellant] in the best light.

[46]

With respect to Okokos evidence, the trial judge noted that, contrary
    to Okokos testimony that he had not been able to reach the appellant during
    the August 3-5 weekend, telephone records showed a number of completed calls
    from Okokos cell phone to the appellants cell phone. He further noted:
    Okokos testimony was vague and often unresponsive to the questions being
    asked  I do not find Matthew Okoko to be a credible witness. In his
    recitation of Okokos evidence, the trial judge also noted that Okoko had been
    in custody for over a year awaiting trial on drug related charges, and that he
    had a criminal record for possession of stolen property.

[47]

Although the trial judge acknowledged that McFarland and Okoko testified
    they had seen the appellant and the complainant together, he found this
    evidence vague and ultimately he rejected it. In rather cryptic fashion the
    trial judge indicated that it was inconsistent for McFarland to say he had
    never seen the appellant with Stacey, the girl with whom he actually lived, yet
    he said he had seen the appellant and complainant together on numerous occasions
    over June, July and August and they were in a relationship. Instead, McFarland
    testified that he never knew Stacey. While the appellant quarrels with the
    trial judges conclusion, it was clearly open to him to find that the evidence
    of these two witnesses was vague and uncertain.

[48]

A review of the entirety of Grays evidence demonstrates a number of
    concerns with the accuracy and reliability of his testimony. The trial judge
    demonstrated in his reasons that he was alive to these concerns, stating: it
    was apparent from the testimony of Adrian Gray that he has unfortunate medical
    issues which causes him to state that he has visions and other mental
    delusions which makes his evidence unreliable in some aspects at this trial.
    Accordingly, the trial judge indicated that he did not accept any of Grays
    evidence except (a) that he attended at the complainants apartment on August
    4, (b) that he saw injuries on her face, and (c) that he called the police on
    August 5  in other words, aspects of his evidence that were corroborated by
    other evidence. Given the obvious concerns, the trial judge was properly
    entitled to be skeptical of this witnesss evidence.

(vi)

The complainants evidence

[49]

The trial judge began his assessment of the complainants evidence by
    commenting, While there is considerable difficulty with the evidence of [ ] Okoko
    and [ ] McFarland, there is [
sic
] equally troubling issues in relation
    to the evidence of [the complainant] as it relates to the phone records.

[50]

In respect of the 2000 events, the complainant admitted to lying under
    oath in relation to the allegations of violence and abuse by the appellant both
    at the preliminary inquiry and at trial. She explained her failure to abide by
    her oath on the basis that back then she was young, infatuated with the
    appellant and driven to protect him. She admitted her actions might seem
    illogical.

[51]

The trial judge reviewed the evidence relating to the records of
    telephone calls between the appellant and complainant and found, [S]he is a
    stranger to the truth in terms of her involvement and her contact with [the
    appellant]. He stated, I find her infatuation with [the appellant] continued
    even after the chance meeting in the grocery store in 2007. I find she made
    numerous calls to [the appellant] following his release from prison and prior
    to the present charges.

[52]

The trial judge then observed that the case did not rest solely on the
    complainants evidence: There is other evidence which corroborates her
    evidence relating to the assault, as well as similar fact evidence and post
    offence and other discreditable conduct, all of which provide circumstantial
    evidence to weigh and assess in terms of [the complainants] evidence.

[53]

Having admitted the evidence pertaining to the 2000 charges as similar
    fact evidence, the trial judge noted the complainant began living with the
    appellant upon his release on bail in April 2000 and continued to reside with
    him until May 2000. After the kidnapping in May 2000, the CAS became involved
    and the complainant entered the witness protection program on the understanding
    she would stay away from the appellant. She continued to have telephone and
    written communication with him. Although the complainant first testified she
    could not remember why she was kicked out of the program, she did agree that it
    was possibly because of her continued communications with the appellant.

[54]

The trial judge found the complainant also lied under oath about her
    contact with the appellant after his release from prison in 2006. After the
    appellant was arrested on August 5, 2007, she attended at the police station
    and provided a videotaped statement in which she said she had not been in
    contact with the appellant for seven years. During cross-examination, she
    admitted she saw him at a grocery store in November 2006. After the chance
    meeting in the grocery store, she called the appellants fathers house.
    Initially she stated that these were the only two instances of contact prior to
    August 3, 2007. However, telephone records demonstrated over 70 calls between
    her and the appellant during the months of June, July and August. The
    complainant refused to identify her telephone numbers or the number of the
    appellant.

[55]

The defence evidence was introduced to show the complainant and the
    appellant were in a continuing physical relationship and that she fabricated
    her evidence to avoid losing custody of her children. The trial judge rejected
    the extent of contact to which the defence witnesses testified but he accepted
    that there had been further contact, at least through telephone calls, and
    rejected the complainants evidence on this point.

(vii)

Conclusion on the uneven scrutiny ground of appeal

[56]

As the review of the evidence above demonstrates, the trial judge was
    alive to the issue of the complainants credibility and the many
    inconsistencies in her evidence. He appropriately dealt with those
    contradictions. This was not a he said she said case. As the trial judge
    noted, the case against the appellant did not rest solely on the complainants
    credibility.

[57]

The trial judge appropriately scrutinized the defence evidence and also
    extensively reviewed and scrutinized that of the complainant. I see nothing in
    the trial judges reasons or the record to suggest that he subjected the
    evidence of the defence witnesses to a higher level of scrutiny than that of
    the Crown witnesses.

(b)

Did the trial judge over-rely on the similar fact evidence and the
    evidence of after the fact conduct?

[58]

This ground of appeal can be disposed of summarily.

[59]

The appellant does not challenge the admissibility of this evidence. The
    trial judge properly admitted the evidence for the following purposes: (i)
    background and context of the relationship; (ii) possible motive or
animus
;

(iii) state of mind of the complainant; (iv) actus reus;

and, (v)
    to rebut the allegation of recent fabrication.

[60]

The appellant submits that the trial judge inferred guilt through pure
    disposition reasoning. However, the trial judges reasons indicate that he
    cautioned himself against the prohibited line of propensity reasoning and that
    he properly used the evidence for the purposes for which it was admitted,
    namely, as pieces of circumstantial evidence to be considered in the context of
    the evidence in its entirety.

[61]

The appellants submission that the trial judge placed over reliance on
    this evidence is in effect a request for this court to reweigh it. As I have
    noted earlier, the weight to be given to each piece of evidence is for the
    trial judge to decide, and an appellate court is not entitled to reassess and
    reweigh evidence, absent the demonstration of a palpable and overriding error: see
Gagnon
, at para. 20. That has not been shown here.

(3)

Should the curative proviso be applied to the alibi error?

[62]

In the face of an error of law by a trial judge, an appellate court may
    nevertheless dismiss the appeal, if it is of the opinion that no substantial
    wrong or miscarriage of justice has occurred under s. 686(1)(b)(iii)  the
    curative proviso.

[63]

The prerequisites for the application of the proviso are succinctly
    stated by Moldaver J. on behalf of the majority in
R. v. Sekhon
,

2014
    SCC 15, [2014] 1 S.C.R. 272, at para. 53:

As this Court has repeatedly asserted, the curative proviso can
    only be applied where there is no reasonable possibility that the verdict
    would have been different had the error  not been made. Flowing from this
    principle  there are two situations where the use of s. 686(1)(
b
)(iii)
    is appropriate: 1) where the error is harmless or trivial; or 2) where the
    evidence is so overwhelming that, notwithstanding that the error is not minor,
    the trier of fact would inevitably convict. [Citations omitted.]

The Crown bears the burden of demonstrating that the
    curative proviso is applicable and of satisfying the court that the conviction
    should be upheld notwithstanding the legal error:
R. v. Van
, 2009 SCC
    22, [2009] 1 S.C.R. 716, at para. 34.

[64]

On appeal, the Crown submits that the trial judge did not simply reject
    McFarlands evidence of attending at Caribana with the appellant because of its
    problems as alibi evidence, but also because his evidence generally was
    calculated, deliberately vague, coy and inaccurate. The Crown submits that
    these credibility findings were supported by the record, and that the alibi
    evidence formed an inconsequential part of the trial judges reasons in an
    otherwise strong case against the appellant. As to the effect of the alibi
    error, although the trial judge rejected McFarlands alibi evidence, he did
    not convict the appellant of unlawful confinement for the entirety of the
    August 3-5 period. The trial judge referred to the jurisprudence in
R. v.
    Pritchard
,

2008 SCC 59, [2008] 3 S.C.R. 195, among other cases,
    for the proposition that what must be proved is restraint for a significant
    period of time. The trial judge accepted the complainants evidence that the
    assault by the appellant during the early hours of Friday, August 3 had gone on
    for over an hour and that this amounted to confinement for a significant period
    of time. Thus, the unlawful confinement as found by the trial judge does not
    include the period of time for which McFarlands evidence was put forward. Therefore,
    no substantial wrong or miscarriage of justice was occasioned by the alibi
    error.

[65]

The appellants position is that the trial judges erroneous rejection
    of McFarlands evidence on this point negatively affected his assessment of
    McFarlands credibility generally, and led him to reject McFarlands evidence
    in its totality, including his evidence that the appellant and complainant had
    ongoing physical contact. The appellant refers to
R. v. Rohde
, 2009
    ONCA 463, 246 C.C.C. (3d) 18, at paras. 16-18 and
Rawn
, at para. 24,
    in this regard. McFarlands evidence was important to the defence theory that
    the appellant and complainant were in an ongoing relationship, that the
    appellant was not an uninvited guest in the complainants apartment, and that
    the complainant was fabricating the allegations to avoid losing her children to
    CAS. The appellant argues that this court cannot be sure that the trial judge
    would have reached the same conclusions as to the complainants credibility and
    so it cannot be said that the verdicts would inevitably have been the same
    absent the error. The appellant cautions that, where credibility issues are
    involved, an appellate court must be very cautious in applying the curative
    proviso.

[66]

While I agree that an appellate court must be very cautious in applying
    the proviso, I would not agree with the appellants submission that the alibi
    error alone led him to reject McFarlands evidence in its totality including
    that the appellant and complainant were in a relationship. The reason the trial
    judge specifically gave for rejecting McFarlands evidence that the appellant
    and complainant were in a relationship was that it appeared inconsistent with McFarlands
    acknowledgment he had never met Stacey, the girl with whom the appellant
    actually lived. Significantly, he found McFarlands relationship evidence vague
    and uncertain. The trial judge also observed that McFarland was lying when he testified
    that he had never lived with the appellants father, yet when he received a
    speeding ticket, the address listed on his license and insurance certificate
    were that of the appellants father. The trial judges rejection of McFarlands
    evidence was informed by other specific reasons.

[67]

Moreover, even if, contrary to the complainants evidence, the
    complainant and the appellant were in a relationship, that fact would not be a
    defence to the charges. While an appellate court must be cautious in applying
    the proviso where a case turns on credibility, there is no rule excluding its
    application in such a case: see
R. v. Raghunauth
(2005), 203 O.A.C. 54
    (C.A.). As LeBel J. observed with respect to both branches of the proviso in
Van
,
    at para. 36, the underlying question is always whether the verdict would have
    been the same if the error had not been committed:
R. v. Bevan
, [1993]
    2 S.C.R. 599.

[68]

The trial judge was alive to the credibility issues respecting the
    complainants evidence. He did not accept the complainants evidence that she
    had no ongoing contact with the appellant because the telephone records
    indicated otherwise. He accepted her evidence that on this occasion the
    appellant was not an invited guest because it was supported by circumstantial
    evidence. Evidence corroborative of the complainants account includes: the
    damage to the door frame of the complainants apartment; the injuries to the
    complainants face; the blood stain found on the complainants mattress; and
    the presence of the accused in the complainants apartment when police arrived.
    The complainants identification of the appellant as the perpetrator of the
    assault on her is further supported by the evidence of the appellants
    post-offence conduct as well as the earlier similar fact evidence. Even if the
    conclusion that the appellant and complainant had ongoing physical contact can
    be drawn, the only reasonable conclusion on the evidence is that on this
    occasion he was not a welcome guest.

[69]

The submission that the complainants motive for saying that the
    appellant assaulted her was that she risked losing custody of her children to
    CAS if she had ongoing contact with the appellant was simply that, a submission
    made by defence counsel. It was not evidence. In his cross-examination of the
    complainant at trial, defence counsel put to her that during her evidence at
    the preliminary inquiry she testified that her mother had told her she should
    go to the police station and blame the appellant for something or else she would
    risk losing her children. The complainant testified that what she had said at
    the preliminary inquiry was not true. She said the CAS became involved after
    the 2007 events to make sure she was alright and that she had voluntarily
    entered into a six-month supervision order with respect to her children. The
    complainants response could be used to assess her credibility. However,
    inasmuch as the complainant did not adopt her evidence from the preliminary
    inquiry but said she lied, and defence counsel did not seek to admit that part
    of the preliminary inquiry transcript for the truth of its contents  for
    example, under the principled exception to the hearsay rule (see e.g.
R. v.
    B. (K.G.)
, [1993] 1 S.C.R. 740, at p. 799)  what the complainant said at
    the preliminary inquiry was not evidence of the truth of its contents.

[70]

The fact that the accused did not give evidence in the face of
    inculpatory facts may properly be taken into account in deciding whether or
    not a substantial wrong or miscarriage of justice has occurred:
R. v.
    Nalon
(1973), 14 C.C.C. (2d) 49, at p. 63,
per
Martin J.A.; see
    also
Avon v. R.
, [1971] S.C.R. 650, at p. 657;
Sellars v. R.
,
    [1980] 1 S.C.R. 527, at p. 535.

[71]

The case against the appellant was overwhelming and the verdict would
    have been the same if the error had not been committed. I would apply the
    curative proviso in s. 686(1)(b)(iii).

D.

The Sentence Appeal

[72]

After the appellant was convicted, the Crown applied under
    s. 752.1(1) for the preparation of an assessment report. A psychiatrist,
    Dr. Hucker, prepared that report and it was introduced as evidence during the
    appellants dangerous offender hearing. Dr. Hucker was also cross-examined
    during the hearing.

[73]

The appellant contends primarily that Dr. Huckers opinion was weakened
    significantly during the course of his cross-examination and that the trial
    judge, though demonstrating in his reasons that he was aware of the need to
    critically assess reports prepared by psychiatrists in connection with a
    dangerous offender application, nevertheless erred in not according minimal
    weight to Dr. Huckers opinion.

[74]

While I agree generally with the appellants observation that Dr. Hucker
    conceded that the scores the appellant received on the various tests completed
    as part of his assessment report should be revised, I would disagree that this
    alone suggested that the trial judge should have accorded minimal weight to
    Dr. Huckers evidence. Indeed, it would appear that a large part of the
    reason why Dr. Hucker was forced to revise his scoring on the various tests was
    because the appellant refused to participate in any assessment. As a result
    Dr. Hucker was forced to complete his assessment based on materials
    provided to him by the Crown.

[75]

The trial judge did not accept Dr. Huckers evidence uncritically. He
    noted the legal principles applicable to the assessment of this evidence,
    including the need to critically assess and not merely rubberstamp a
    psychiatrists opinion. As the Crown notes, the standard of review that applies
    to a trial judges finding that a person is a dangerous offender is
    reasonableness: see
R. v. Sipos
, [1997] 2 S.C.R. 260, at para. 35.
    Further, deference is to be accorded to the sentencing judge on issues of fact
    finding and credibility, including the critical question of the reasonable
    possibility of eventual control of the offender in the community:
R. v.
    Ramgadoo
, 2012 ONCA 91, 293 C.C.C. (3d) 157, at para. 42.

[76]

Therefore, the question is whether the trial judges conclusion was
    reasonably supported by the evidence. In my view, it was. Here, even after
    Dr. Hucker revised his opinion on the scoring of the various psychiatric
    assessment tests, he testified that he remained of the opinion that the
    appellant remained a risk to re-offend. Another significant factor in Dr.
    Huckers assessment was the appellants ongoing refusal to participate not just
    in the preparation of the assessment report, but in treatment generally. For
    example, in connection with the discussion of his bottom line assessment of
    the appellants risk in light of his adjustment of the VRAG (Violence Risk
    Assessment Guide) and PCL-R (Psychopathy Checklist-Revised) scores, designed
    to assess the appellants risk for violent re-offence and possibility of
    eventual control in the community, he noted that:

That risk is based primarily on the record but also on his lack
    of co-operation with individuals who might have been able to point him in the
    direction of counseling, relevant programming, and all the things that were
    identified in the correction plan that was made for him in the early 2000s.

[77]

Dr. Hucker also further commented that:

the big problem is his failure to cooperate with professionals
    and get into treatment programs. So theres been nothing done to ameliorate his
    risk, so that although psychopathy is one major variable in making treatment
    approaches successful, the other reasons are failure to accept responsibility
    and to realize that youve got a problem and in this case, a very serious
    problem.

[78]

In other words, while the scores were one part of Dr. Huckers opinion,
    the appellants failure to participate meaningfully in previous treatment
    possibilities was also an important factor driving his conclusion.

[79]

In my view, the trial judges reasons demonstrate that he was aware of
    the relevant legal principles and appropriately took into consideration the
    shortcomings in Dr. Huckers report. His conclusions, that the appellant met
    the criteria for a dangerous offender designation and that there was no
    reasonable possibility of eventual control in the community, are accordingly
    entitled to deference.

[80]

I would dismiss the sentence appeal.

Released: GE June 14, 2016

K.M. Weiler J.A.

I agree Janet
    Simmons J.A.

I agree Gloria
    Epstein J.A.


