



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), (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    that could identify the complainant or a witness shall not be published in any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, 172, 172.1, 173, 210, 211, 212,
    213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii)      an offence under section 144 (rape), 145
    (attempt to commit rape), 149 (indecent assault on female), 156 (indecent
    assault on male) or 245 (common assault) or subsection 246(1) (assault with
    intent) of the
Criminal Code
, chapter C-34 of the Revised Statutes of
    Canada, 1970, as it read immediately before January 4, 1983, or

(iii)     an offence under subsection 146(1)
    (sexual intercourse with a female under 14) or (2) (sexual intercourse with a
    female between 14 and 16) or section 151 (seduction of a female between 16 and
    18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality),
    157 (gross indecency), 166 (parent or guardian procuring defilement) or 167
    (householder permitting defilement) of the
Criminal Code
, chapter C-34
    of the Revised Statutes of Canada, 1970, as it read immediately before January
    1, 1988; or

(b)     two or more offences
    being dealt with in the same proceeding, at least one of which is an offence
    referred to in any of subparagraphs (a)(i) to (iii).

(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 complainant of the
    right to make an application for the order; and

(b)     on application made by the complainant,
    the prosecutor or any such witness, 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).

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. Byers, 2017 ONCA 639

DATE: 20170804

DOCKET: C56188

Laskin, Simmons and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Matthew Byers

Appellant

Matthew R. Gourlay, for the appellant

Elise Nakelsky, for the respondent

Heard: June 13, 2017

On appeal from the conviction entered by Justice Guy P.
    DiTomaso of the Superior Court of Justice on August 24, 2007, with reasons
    reported at 2007 CanLII 34852, and from the sentence imposed on July 6, 2011,
    with reasons reported at 2011 ONSC 4159.

REASONS FOR DECISION

Introduction

[1]

On April 29, 2005, just before 9:00 a.m., two police officers came
    across the appellant, standing in a forest, drinking a beer. The forest was
    adjacent to an elementary school. After inquiring whether the appellant had any
    more liquor, the officers looked in his backpack. They found a car manual, a
    roll of duct tape, some wires, a garden hoe, latex gloves, some pornographic pictures,
    condoms and girls underwear. After a further search of the backpack, police
    found photographs of naked girls between the ages of about eight and ten, as
    well as handwritten notes, which discussed (among other things) the rape and
    torture of young girls.

[2]

Following further investigation at the appellants home, police
    discovered more child pornography, in both electronic and printed format;
    several knives, a pair of girls underwear and additional horrific writings.

[3]

Police also determined that, on April 21, 2005, at about 4:00 a.m., a
    close friend of the appellant had discovered him crouched down in her bathroom
    between the toilet and the bathtub. Among other things, upon being discovered,
    the appellant told his friend that he had gone to the third-floor spare bedroom
    and that there had been a bump in the bed. The friend had an eleven-year-old
    daughter. That night, the daughter was sleeping in the spare bedroom with her
    aunt, who was visiting. Further investigation revealed that the daughter was
    the subject of certain writings discovered at the appellants home, in which
    the appellant had meticulously planned her grotesque rape and murder. In
    addition, police found a basement location where the appellant had prepared to
    carry out his plans.

[4]

In relation to the April 21, 2005 incident involving his friends
    daughter, the appellant was charged with attempted kidnapping, attempted
    aggravated sexual assault, attempted murder and break and enter with intent to
    commit an indictable offence. In relation to the August 29, 2005 incident, he
    was charged with attempted kidnapping and attempted aggravated sexual assault
    of a young person. He was also charged with possession of child pornography.

[5]

Following a trial, the appellant was convicted of all charges.
    Ultimately, he was declared a dangerous offender and sentenced to an
    indeterminate sentence of imprisonment. The appellant does not contest the
    convictions relating to his friends daughter and for possession of child
    pornography. However, he appeals the convictions for attempted kidnapping and
    attempted aggravated sexual assault arising from the August 29, 2005 incident.
    He also appeals the dangerous offender designation and indeterminate sentence
    of imprisonment.

The conviction appeal

[6]

Concerning the conviction appeal, the appellant argues that his actions
    on the morning of August 29, 2005 were not sufficient in law to constitute an
    attempt to commit the offences at issue. He does not dispute that he was in a
    park adjacent to a school with implements that could have enabled him to carry
    out the offences. However, he points to the fact that there was no evidence
    that he had approached anyone. Moreover, police encountered the appellant at
    8:53 a.m., more than 20 minutes after classes had commenced at the nearby
    school.

[7]

In these circumstances, the appellant submits that the trial judge erred
    in law in finding that his actions went beyond mere preparation and were
    sufficient to constitute an attempt to commit the offences. He also argues
    that, given the time of day, it appears that he had passed up any opportunity
    to commit the offences and may have been in the process of abandoning any
    intention to do so.

[8]

The appellant relies on several authorities which he asserts support his
    position that in the absence of any evidence that he had actually approached an
    intended victim, his actions fall short of being capable in law of amounting to
    an attempt:
R. v. Geddes
(1996), 160 J.P. 697 (Eng. C.A. (Crim. Div.));
R. v. Campbell
(1991), 93 Cr. App. R. 350 (Eng. C.A. (Crim. Div.)).

[9]

We do not accept the appellants submissions. In his reasons for finding
    the appellant guilty, the trial judge found that the appellants writings were
    central and critical to the analysis of the issues in the case. They set out
    a carefully thought-out and detailed plan to kidnap, rape, torture and kill
    his friends young daughter. Further, after the appellants implementation of
    that plan was foiled by chance on April 21, 2005, the writings revealed a
    running account  in real time of his efforts on April 29, 2005 to locate
    another victim on whom he could perpetrate similar atrocities, as well as the
    possibility that he would renew his effort to kidnap his originally intended
    victim.

[10]

The
    trial judge found that the appellants writings on April 29, 2005 were similar
    to diary entries. They indicated that before arriving at the park where police
    found him, the appellant had spent three hours wandering through [another
    park] looking for a girl to rape. After noting that he had seen one girl on a
    nearby street who interested him, the appellant states in his April 29, 2005
    writings:

Im probably going to try and get [his friends daughter]
    tonight. If nothing else comes up Im going to go to the [forest where police
    found him] now. I will just grab a girl, tape her up and rape her.

[11]

As
    noted by the trial judge, the appellants actions on April 29, 2005 cannot be
    viewed in isolation. Rather, they must be viewed in the context of the
    appellants recently thwarted attempt to kidnap, rape and kill his friends
    young daughter. Considered in that context, and in combination with the appellants
    diary-like writings, the appellants actions on April 29, 2005 can only be
    viewed as part of a crime in progress. The appellant had crossed the line into
    criminal conduct and taken steps beyond mere preparation to commit a crime; he
    was actively engaged in seeking out a child on whom to perpetrate the plans he
    had committed to writing. Moreover, he was carrying all the tools he intended
    to use to carry out his plans.

[12]

The
    appellants conviction appeal is dismissed.

The sentence appeal

[13]

Concerning
    the dangerous offender designation and indeterminate sentence of imprisonment,
    the appellant points out that at the time of committing these offences he had
    no prior record. Moreover, the serious personal injury offences of which he was
    convicted were all restricted to attempts: the appellant has never been
    convicted of a hands-on serious personal injury offence. The appellant
    submits that, particularly taking account of these circumstances, the trial
    judge erred in finding that he met the criteria for designation as a dangerous
    offender. In the alternative, the appellant submits the trial judge erred in
    holding that there was no reasonable possibility of eventual control in the
    community and in failing to impose a determinate sentence and long-term
    supervision order.

[14]

We
    do not accept these submissions.

[15]

The
    trial judge found that the appellant met the criteria for designation as a
    dangerous offender under all four branches of s. 753(1) of the
Criminal
    Code
. Section 753(1) reads as follows:

753(1) On application made under this Part after an
    assessment report is filed under subsection 752.1(2), the court shall find the
    offender to be a dangerous offender if it is satisfied

(a) that the offence for which the offender has
    been convicted is a serious personal 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 the 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,

(ii) a pattern of
    persistent aggressive behaviour by the offender, of which the offence for which
    he or she has been convicted forms a part, showing a substantial degree of
    indifference on the part of the offender respecting the reasonably foreseeable
    consequences to other persons of his or her behaviour, or

(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
    offenders behaviour in the future is unlikely to be inhibited by normal
    standards of behavioural restraint; or

(b) 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.

[16]

In
    our view, it was open to the trial judge to designate the appellant a dangerous
    offender under all of ss. 753(1)(a)(i), 753(1)(a)(iii) and 753(1)(b).

[17]

We
    begin by noting that both the Crown psychiatrist and the defence psychiatrist
    testified that, from a psychiatric perspective, the appellant met the criteria
    for designation as a dangerous offender. The Crown psychiatrists opinion was
    that he met the criteria under ss. 753(1)(a)(i), 753(1)(a)(ii) and 753(1)(b);
    the defence psychiatrists opinion was that he met the criteria under s.
    753(1)(b).

[18]

Further,
    the trial judge accepted the Crown psychiatrists opinion that the appellant
    met the diagnostic criteria for several psychiatric disorders, some of which
    are intractable: severe substance dependence disorder involving alcohol and
    cocaine; pedophilia; sexual sadism; and anti-social personality disorder, with obsessive-compulsive
    personality traits.

[19]

Turning
    to the appellants specific arguments concerning s. 753 of the
Criminal
    Code
, he contends that the trial judge erred in finding that the two
    incidents forming the appellants index offences, that happened within eight
    days of each other, constituted a pattern of repetitive behaviour under s.
    753(1)(a)(i) of the
Criminal Code.

[20]

Although
    the appellant acknowledges that two incidents have in the past been found to constitute
    a pattern, he argues that, in this case, because the appellant was unsuccessful
    in his efforts on April 21, 2005, both incidents amounted, in effect, to an
    attempt to commit the same offence. Unlike other cases, here, the appellants
    conduct was not the last straw in a series of offences. Rather, it was part
    of a continuing effort to achieve a single objective. The appellants conduct
    cannot be viewed as a pattern of repetitive behaviour showing a failure to
    restrain his behaviour and a likelihood of causing injury to others through
    failure in the future to restrain his behaviour. Just because the appellants
    thoughts were persistent does not mean that his
actions
would have
    been.

[21]

We
    disagree. The trial judge found a pattern of repetitive behaviour showing a
    failure on the appellants part to restrain his behaviour in several aspects of
    the evidence, including:

·

the evidence of the strength of the appellants preoccupation
    with kidnapping his friends daughter or another child;

·

the evidence in the appellants writings that he had attempted to
    forcibly remove his friends daughter from her home on more than one occasion
    and that when he was unsuccessful in that endeavour he sought out another
    child;

·

the extent to which the appellants writings revealed he planned
    his intended crimes and also created lists of, and acquired, necessary
    supplies; and

·

the extent of the appellants other preparatory actions,
    including stealing his friends daughters underwear (which was found both in
    his backpack and at his home), putting his rape kit together and preparing the
    basement where he planned to rape torture and kill his friends daughter.

[22]

In
    concluding that the appellant met the criteria under s. 753(1)(a)(i), the trial
    judge also referred to the expert evidence relating to the appellants
    diagnoses.

[23]

In
    light of this evidence, we see nothing unreasonable about the trial judges
    conclusion that the appellants conduct demonstrated a pattern of repetitive
    behaviour showing a failure to restrain his behaviour. The evidence in his
    writings indicating he had attempted to take his friends daughter on more than
    one occasion, standing alone, demonstrated the necessary pattern. Moreover, he
    repeated the same type of behaviour when he went trolling for another child.  We
    see no error in the trial judges conclusion that the appellant met the
    criteria for designation as a dangerous offender under s. 753(1)(a)(i).

[24]

The
    appellant also argues that the trial judge erred in holding that the brutality
    criterion under s. 753(1)(a)(iii) was satisfied. He submits that entirely
    unconsummated, inchoate conduct cannot meet the threshold.

[25]

We
    do not accept this submission. The threshold set out in s. 753(1)(a)(iii) is
    met where the Crown proves beyond a reasonable doubt that the offender
    constitutes a threat to the life, safety, physical or mental well-being of
    other persons on the basis of evidence establishing  any behaviour by the
    offender, associated with the offence  that is of such a brutal nature as to
    compel the conclusion that the offenders behaviour in the future is unlikely
    to be inhibited by the normal standards of behavioural restraint.

[26]

Brutality
    under this provision has been interpreted as meaning conduct that is coarse,
    savage, and cruel and which is capable of inflicting severe psychological
    damage on the victim:
R. v. Langevin
(1984), 45 O.R. (2d) 705 (C.A.),
    at p. 718. As noted by the trial judge, the horrors to which [the appellant]
    intended to visit upon [his intended victims] fell well within the kind of
    behaviour contemplated by this section.

[27]

In
R. v. Melanson
(2001), 152 C.C.C. (3d) 375 (Ont. C.A.), leave to
    appeal refd, [2001] 3 S.C.R. viii, this court found that writings can meet the
    description of brutality set out in
Langevin
. Melanson was a security
    officer in an apartment building. He hit his victim on the head with a rock and
    began dragging her towards his office in the underground parking lot of the
    building. The victim managed to escape and suffered only a minor abrasion to
    her head, which healed within a few days. On a Crown appeal from the trial
    judges refusal to designate Melanson as a dangerous offender, this court
    ordered a new hearing. However, in the course of doing so, this court said:

[Section] 753(1)(a)(iii) permits consideration of any conduct
    associated with the offence. Certainly the writings and articles found in the
    appellants office fit within that description.
[1]
[Emphasis in original.]

Although this court considered that it might be able
    to determine whether the brutality threshold had been met, it was not in a
    position to make findings about Melansons future dangerousness based on
    conflicting psychiatric evidence. This court therefore ordered a new hearing.

[28]

Contrary
    to the appellants submissions, we are not persuaded that the fact that Melanson
    had commenced an attack on his victim is a basis for distinguishing that case
    from this one. As noted by this court at para. 37 of
Melanson
, s.
    753(1)(a)(iii) permits consideration of any behaviour by the offender,
    associated with the offence when considering the brutality threshold. In our
    view, the trial judge made no error in considering the appellants writings to conclude
    that threshold was met. See also
R. v. Leopold
, 2001 BCCA 396, 155
    C.C.C. (3d) 251, leave to appeal refd, [2002] 1 S.C.R. viii, and request for
    reconsideration of leave decision refd, 2002 CarswellBC 1616 (S.C.C.).

[29]

The
    appellant also argues that the trial judge erred in finding that the failure
    to control sexual impulses threshold under s. 753(1)(b) was satisfied.

[30]

In
    his reasons for concluding the s. 753(1)(b) criteria were satisfied, the trial
    judge said, among other things:

A review of all the findings of fact and the reasons for
    judgment and the evidence on this sentence hearing establishes that [the
    appellant] has a preference for coercive sex with children. On more than one
    occasion, he unsuccessfully attempted to realize his goal. On more than one
    occasion, he failed to control his sexual impulses. Failure of success did not
    prevent him from continuing to pursue his ultimate objective which led to
    further unsuccessful attempts.



The evidence further establishes his failure to control his
    sexual impulses while in custody. He continued to write about a pedophilic sexual
    relationship between an adult male and young girl.

[31]

The
    appellant argues that his totally unconsummated conduct on April 29, 2005 and his
    subsequent sexual writings while in custody cannot amount to a failure to
    control his sexual impulses. In neither case, did the appellant act on his
    fantasies.

[32]

While
    such fantasies can be considered as part of the psychiatric assessment of
    future dangerousness, the appellant submits they cannot be considered when
    determining whether the threshold of s. 753(1)(b) has been satisfied. That
    threshold requires that the offender, by his or her conduct in any sexual
    matter  has shown a failure to control his or her sexual impulses and a
    likelihood of causing injury  to other persons through failure in the future
    to control his or her sexual impulses.

[33]

We
    do not accept this submission. As we have said, the trial judge properly
    convicted the appellant of attempted kidnapping and attempted aggravated sexual
    assault in relation to the April 29, 2005 incident. The fact that the appellant
    may have been thwarted in his efforts to carry out his fantasies on that date does
    not operate as a bar to considering his conduct on April 29, 2005 when
    determining whether the threshold under s. 753(1)(b) has been satisfied.

[34]

In
    light of these conclusions, it is unnecessary that we consider the appellants
    arguments in relation to s. 753(1)(a)(ii).

[35]

The
    appellants final argument is that the trial judge erred in holding that there
    was no reasonable possibility of eventually managing the appellants risk in
    the community and therefore in declining to impose a determinate sentence and
    long-term supervision order. He points, in particular, to the trial judges
    statement:

I am not satisfied that [the appellant] will be willing to take
    anti-androgen medication in perpetuity, that the National Parole Board will
    compel him to take sex drive reducing medication, or that the doctor treating
    him would prescribe such medication.

[36]

The
    appellant argues that in finding that he might not be willing to take the
    medication, the trial judge relied unreasonably on a passing comment by the
    Crown psychiatrist that taking such medication was not the appellants first
    choice. He also argues that the trial judge ignored clear authority regarding
    the appropriateness of imposing a condition requiring administration of
    anti-androgen medication to reduce an offenders risk in the community.

[37]

The
    appellant also contends that the trial judge demonstrated unreasonable
    scepticism about the prospects of treatment and supervision in this case.
    Particularly having regard to the evidence concerning decreasing risk with
    advancing age and available community supervision, the trial judges conclusion
    that there was no reasonable possibility of eventual control in the community
    was unreasonable.

[38]

We
    do not accept these submissions. The trial judge gave several reasons for
    concluding there was uncertainty about the appellants willingness to take sex
    drive reducing medication, about the impact such medication could have in
    reducing the appellants risk to the community and about enforcement challenges
    that could arise in relation to anti-androgen medications. These reasons
    included the fact that there was no evidence of whether the appellant would be
    able, medically, to take the drugs, and if he is, evidence of whether the drugs
    might have potential harmful side-effects to the appellant which could affect
    his ability to take drugs of the necessary potency. There is still no such
    evidence before this court.

[39]

As
    for the prospects of treatment and adequate supervision, the trial judge found
    that the appellant suffers from life-long disorders (including pedophilia,
    sexual sadism and substance dependence disorder) for which there is no cure and
    that the evidence directed to a possibility that [the appellant] could be
    treated sufficiently to reduce his risk to an acceptable level amounts to no
    more than an expression of hope. Moreover, the trial judge fully considered
    the evidence relating to available supervision in the community and the effects
    of aging.

[40]

Having
    regard to the whole of the trial judges reasons for declining to impose a
    determinate sentence and a long-term supervision order, we see nothing unreasonable
    about the trial judges decision. The appellants sentence appeal is dismissed.

Disposition

[41]

Based
    on the foregoing reasons, the appellants appeal from conviction and sentence is
    dismissed.

Released:

GP                                                  Janet
    Simmons J.A.

AUG -4 2017                                    John
    Laskin J.A.

G.
    Pardu J.A.





[1]
Among other things
the writings authored by
Melanson
included "incident reports" describing disabling a woman
    in the parking garage, taking her to the security office, raping and torturing
    her, and killing her with a knife.


