



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Walters, 2018 ONCA 391

DATE: 20180423

DOCKET: C58176

Rouleau, Tulloch and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Donald Charles Walters

Appellant

Donald Charles Walter, in person

Erika Chozik, duty counsel

Gregory J. Tweney, for the respondent

Heard: April 5, 2018

On appeal from the conviction entered on November 29,
    2011 and the sentence imposed on November 20, 2013 by Justice Faye E. McWatt of
    the Superior Court of Justice, sitting with a jury.

REASONS FOR DECISION

[1]

The appellant was declared a dangerous offender following his conviction
    for one count of criminal harassment and four counts of failure to comply with probation
    orders. In addition to just over three years of pre-sentence custody, a two
    year custodial term was imposed, along with a ten year long term supervision
    order (LTSO).

[2]

This is an appeal from the dangerous offender finding and from the two
    year custodial sentence imposed.

[3]

The appellant argues that the trial judge erred in two ways.

(a)

Finding that the criminal harassment constituted a serious personal
    injury offence as required under s. 753(1)(a) of the
Criminal Code
.

(b)

Finding under s. 753(1)(a)(i) that there was a pattern of repetitive
    behaviour, of which the predicate offence formed a part, showing a failure to
    restrain his behaviour and a likelihood of inflicting severe psychological
    damage on others through a failure in the future to restrain his behaviour. It
    is said that this finding was without an evidentiary foundation because:

(i)
    the Crowns expert only opined as to the likelihood of future significant
    psychological harm, which is said to fall short of the statutory requirement
    of the likelihood of future severe psychological damage; and

(ii) based
    upon the types of offences committed in the past, which primary consisted of what
    are described as indecent exposure types of offences, severe psychological harm
    could not be inferred. As the appellants former victims did not testify about
    psychological damage that they may or may not have suffered, it is unclear as
    to whether any future offences of a similar ilk would result in the statutory
    requirement for the infliction of severe psychological damage.

[4]

We disagree.

[5]

Section
752 defines a
    serious personal injury offence as including an indictable offence involving
    the infliction or likely infliction of severe psychological damage upon
    another person. The trial judge found as a fact that the complainant in the
    predicate offence suffered severe psychological damage:
R. v. Walters
,
    2012 ONSC 3567, at paras. 12-16. Although the trial judge noted that the
    offence was not violent in the usual way, because there was no physical touching,
    she concluded that it was physically and psychologically violent in all other
    circumstances.

[6]

The criminal harassment arose from the appellant emerging from the
    bushes in the dark, on a lonely street. He was close enough that the
    complainant could feel his breath. He was masturbating as he followed her. The
    finding of severe psychological damage is well supported on the record,
    including the complainants evidence that she panicked, was scared and
    terrified, could no longer go out without fear, and now hears footsteps when
    she is outside. As she said, her life flashed before [her] eyes  not knowing
    if [she] would be seriously harmed or killed. She maintained in her victim
    impact statement that the crime had changed her. In these circumstances, it was
    reasonable for the trial judge to conclude that this was a serious personal
    injury offence and that the complainant had suffered severe psychological
    damage.

[7]

The fact that Dr. Glancy did not use terminology that precisely tracks
    the language of the
Criminal Code
is not determinative of the issue.
    The legal determination was for the trial judge to make. She properly
    considered Dr. Glancys evidence, along with the complainants evidence and the
    appellants criminal record of 15 prior sexual offences and 19 prior non-sexual
    violent offences and 21 breaches of court orders, in reaching her conclusion.

[8]

Although the appellant maintains that the nature of his prior conduct
    falls largely at the lower end of seriousness for sexual and other violent
    misconduct, the trial judge was required to consider the conduct as a whole,
    along with the expert evidence as to the future likelihood of severe
    psychological damage. The entire package of conduct is what led to the
    conclusion about the appellants ongoing dangerousness.

[9]

We see no basis to interfere with this decision. It was a reasonable
    conclusion.

[10]

In
    addition, we note that the trial judge also found that the appellant met the
    criteria for designation as a dangerous offender under 753(1)(a)(ii) of the
Criminal
    Code
. We see no error in her analysis under this provision.

[11]

The
    appellant also maintains that the custodial sentence of two years, in addition
    to three years of pre-sentence custody, along with an LTSO of 10 years, was
    excessive. He has completed the custodial portion of his sentence and continues
    to serve his LTSO in a halfway house.

[12]

The
    appellant argues that the sentence was excessive in light of the jump principle
    and the trial judges failure to consider the circumstances of the offender. We
    disagree.

[13]

We
    are satisfied that the trial judge properly approached her task of sentencing
    the appellant, after he had been found a dangerous offender, in a manner that
    emphasized the least intrusive sentence required to achieve the primary purpose
    of the statutory scheme:
R. v. Boutilier
, 2017 SCC
64, [2017] 2 S.C.R. 936, at para. 60. In
    particular, the trial judge had regard to the need for the appellant to be in a
    penitentiary setting in order to access necessary high intensity sexual
    assault programs. The trial judge determined this to be necessary treatment to
    address the significant threat posed by the appellant to the community.

[14]

The
    appeal is dismissed.

Paul Rouleau J.A

M. Tulloch J.A.

Fairburn J.A.


