



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(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1)
    or (2) 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    information that could identify the victim or a witness shall not be published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, 159, 160, 162, 163.1, 170,
    171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 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 at any time before the day on which this
    subparagraph comes into force, if the conduct alleged involves a violation of
    the complainants sexual integrity and that conduct would be an offence
    referred to in subparagraph (i) if it occurred on or after that day; or

(iii)     REPEALED:
    S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(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)     at the first reasonable
    opportunity, inform any witness under the age of eighteen years and the victim
    of the right to make an application for the order; and

(b)     on application made by
    the victim, the prosecutor or any such witness, make the order.

(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    the victim shall not be published in any document or broadcast or transmitted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; and

(b) on application of the victim
    or the prosecutor, make the order.

(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.

(4)     An order made under this
    section does not apply in respect of the disclosure of information in the course
    of the administration of justice when it is not the purpose of the disclosure
    to make the information known in the community.
2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c.
    3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18..

486.6(1)       Every person who
    fails to comply with an order made under subsection 486.4(1), (2) or (3) or
    486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(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. 2005, c. 32, s. 15.




COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Simpson-Fry, 2021 ONCA 647

DATE: 20210921

DOCKET: C63212

Doherty, Gillese and Huscroft
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jamie Simpson-Fry

Appellant

Chris Rudnicki and Mark C.
    Halfyard, for the appellant

Craig Harper, for the
    respondent

Heard: September 17, 2021 by
    video conference

On appeal from the sentence imposed on
    August 30, 2016, by Justice Joseph A. De Filippis of the Ontario Court of
    Justice, with reasons reported at 2016 ONCJ 532.

REASONS FOR DECISION

[1]

The appellant was designated a dangerous
    offender, on consent, following his convictions stemming from his brutal sexual
    assault of a young woman he did not know. He was 30 years old
[1]
at the time of the
    offence and extremely intoxicated. He was given an indeterminate sentence.

[2]

The appellant appeals against sentence. He
    contends that his risk in the community can be managed and asks this court to
    set aside the indeterminate sentence and impose a determinate sentence,
    followed by a 10-year supervision order with appropriate conditions.

BACKGROUND

[3]

In October of 2013, while extremely intoxicated,
    the appellant grabbed the complainant, a young woman walking home from a
    friends house. He said if she screamed, he would break her neck. He dragged
    her into a yard shielded from the street view by tall trees, forcibly confined
    her on the ground for two hours, and brutally sexually assaulted her twice.
    When they left the scene, he told the complainant he would kill her if she told
    anyone about what had happened.

[4]

The appellant was convicted of sexual assault,
    forcible confinement, and threatening death. It was his first conviction for a
    sexual offence. However, he had a long criminal record which began in April
    2000 when he was a youth. It contains more than fifty entries, including
    robbery with violence, forcible confinement, assault, assault with a weapon,
    and assault with the intent to resist arrest. There are also multiple
    convictions for acts of domestic violence, failures to attend court, and
    breaches of probation. Alcohol was related to many  but not all  of the
    offences. For example, when he was 19, he committed a home invasion robbery
    with an imitation firearm while sober. He threatened the occupants of the home,
    including a countdown, after which he threatened to shoot an 82-year-old
    grandmother. He committed this offence for drug money.

[5]

The Crown sought a dangerous offender
    designation under s. 753 of the
Criminal Code
, R.S.C. 1985, c. C-34 and
    an indeterminate sentence. The defence conceded that the appellant met the
    criteria for a dangerous offender but contended that a determinate sentence
    followed by a ten-year long-term supervision order (LTSO) could reasonably be
    expected to control his risk in the community.

[6]

Dr. Pearce prepared the court-ordered
    psychiatric assessment and Dr. Gojer prepared an assessment for the
    defence. These experts agreed on much of the information leading to their
    respective opinions. They concurred in their diagnosis: the appellant has an
    antisocial personality disorder and a poly-substance use disorder. Their risk
    assessment tools and test results were also consistent.

[7]

Dr. Pearce found the appellant was at high risk
    of violent re-offence. He considered the effect of an Antabuse prescription on
    the appellants risk. Antabuse renders a person violently ill if they drink
    alcohol. To be effective, Antabuse must be taken daily. Given the appellants
    history of non-compliance with court orders, Dr. Pearce did not believe that
    the appellant could be trusted to reliably report having taken his medication
    so conditions would have to be imposed such as urinalysis twice per week, and a
    staff member or medical professional watching to ensure the appellant actually
    swallowed the medication. In any event, however, Dr. Pearce found no reasonable
    prospect of control of the appellant on an LTSO, even if the appellant complied
    with anti-alcohol medication and counselling. He noted that the appellants
    risk could not be managed even under the strict conditions in a medium-security
    correctional facility where the appellant had previously been incarcerated and
    in which he had violently re-offended. Dr. Pearce also opined that the proposed
    conditions would not address the appellants substance abuse disorder nor his
    very severe, treatment-resistant antisocial personality disorder.

[8]

Dr. Gojer also viewed the appellant as a high
    risk of violent re-offence. He observed that the appellants history of
    compliance while on judicial release and in custody has been problematic.
    However, in his opinion, there was a reasonable possibility of eventual control
    under an LTSO with a term to take anti-alcohol medication and under significant
    supervision. In reaching his conclusion on the appellants amenability to
    treatment, he adopted the opinion of Dr. Kalia who interviewed the appellant
    and was impressed with his insight and promise to reform. Dr. Gojer also spoke
    to the appellant and believed that he now accepts he has an alcohol problem.

[9]

The appellant did not testify at the sentencing
    hearing.

[10]

In his reasons, the sentencing judge describes
    the shocking nature of the index offences and summarizes the appellants
    background and extensive criminal record. Among other things, his criminal
    record shows an abysmal record of non-compliance with court orders  the
    appellant has been placed on probation 15 times and breached those orders every
    time. The sentencing judge also thoroughly canvassed the expert evidence and
    the evidence on management of LTSO by Correctional Service of Canada. Further,
    he accepted Dr. Pearces expert opinion that the proposed anti-alcohol
    treatment plan could not manage the appellants risk because it did not address
    the appellants dependence on other drugs or his antisocial personality
    disorder.

[11]

At para. 71 of his reasons, the sentencing judge
    considered the appellants stated promises to seek professional help and abide
    by the terms of any release plan, including taking medication to deal with his
    alcohol dependence. He then made the following statement which is central to this
    appeal (the Impugned Statement):

I note that [the appellant] made these
    promises indirectly, to the doctors, without subjecting himself to
    cross-examination. This, in itself, does not mean I refuse to trust him;
    however, it does point to the additional significance of the evidence about the
    [appellants] background, the expert opinions about his prognosis, and the
    feasibility of managing his risk in the community.

[12]

The sentencing judge declared the appellant a
    dangerous offender and sentenced him to an indeterminate custodial term. At
    para. 92 of his reasons, he concluded he was not satisfied there was a
    reasonable expectation that a fixed sentence, with or without an LTSO, would
    adequately protect the public against the appellants commission of a serious
    personal injury offence. He explained that in reaching this conclusion, he
    considered the appellants past performance as a predictor of future behaviour,
    his abysmal record of non-compliance, the expert opinions, the voluntary nature
    of treatment inside the penitentiary and in the community, the limitations
    inherent in a LTSO, the absence of treatment for all aspects of the
    poly-substance use disorder, and the substantial difficulty in addressing the
    appellants antisocial personality disorder.

THE ISSUE

[13]

The issue on appeal flows from the Impugned
    Statement in para. 71 of the sentencing judges reasons. In his factum, the
    appellant says the issue is whether the sentencing judge violated his s. 7
Charter
right to silence by, in effect, refusing to trust him because he declined
    to testify on his sentencing. In his oral submissions, the appellant says the
    Impugned Statement raises the question whether, in a dangerous offender
    hearing, the accused must testify before their statements to a psychiatric
    expert can be relied on for the truth of their contents.

ANALYSIS

[14]

We do not view the Impugned Statement as raising
    either of the issues articulated by the appellant. The sentencing judge did not
    rule the statements inadmissible or draw an adverse inference against the
    appellant because he did not testify. Nor did the sentencing judge refuse to
    accept the truth of the appellants statements. Rather, as the sentencing judge
    explained in the Impugned Statement itself, he considered those statements in
    light of the entire evidentiary record and, in part because the appellant had
    not been cross-examined on his statements, afforded them less weight than other
    pieces of evidence when determining the feasibility of managing the appellants
    risk to the community.

[15]

The sentencing judge made no error in his
    treatment of the appellants statements. There is no basis for this court to
    interfere with the sentence imposed.

DISPOSITION

[16]

Accordingly, the appeal is dismissed.

Doherty J.A.

E.E. Gillese
    J.A.

Grant Huscroft
    J.A.





[1]

In some of the documents, the appellant is said to have been
    29 years old at the time of these offences. However, this appears incorrect as
    his date of birth is September 29, 1983, and the offences took place in October
    2013.


