



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Potvin, 2020 ONCA 299

DATE: 20200513

DOCKET: C63033

Rouleau, Zarnett and Jamal JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Roger Marcel Potvin

Appellant

Howard L. Krongold, for the appellant

Nicolas de Montigny, for the respondent

Heard: in writing

On appeal from the sentence imposed by
    Justice Jonathan Brunet of the Ontario Court of Justice on May 12, 2016.

REASONS FOR DECISION

A.

Overview

[1]

The appellant was convicted of breaching his
    long-term supervision order (LTSO) and sentenced to an indeterminate sentence
    pursuant to s. 753.01 of the
Criminal Code
, R.S.C. 1985, c. C-46
. He argues on appeal that the trial
    judge failed to properly consider the principle of proportionality and to
    consider certain mitigating factors in imposing this sentence. For the
    following reasons, we dismiss his appeal.

B.

Background

(1)

Criminal History and Dangerous Offender
    Designation

[2]

The appellant was declared a dangerous offender
    in 2012. This designation followed his conviction for criminal harassment and
    other offences. It was the culmination of a 30-year history of crimes against
    women. His conduct included breaking into victims residences, following them
    from place to place, relentless phone calls, and making threats. As noted by
    the sentencing judge, in the course of his offending conduct the appellant has
    caused severe psychological damage to several women and has left a large swath
    of misery, anxiety, mistrust and emotional scars on these individuals.

[3]

The appellant also has convictions for indecent
    acts, by exposing his penis to women he had called over to his motor vehicle
    under the pretext of asking for directions. As well, he has been convicted of
    sexual assault, obstruction of justice, break and enter, assault and uttering
    threats. A number of these offences were committed while on bail or probation.

[4]

After being declared a dangerous offender in
    2012, the appellant was sentenced to time served, equivalent to 844 days in
    jail, followed by a 10-year LTSO. One of the terms of the LTSO was that the
    appellant had to immediately report to his parole supervisor all contacts with
    females with whom he associated.

(2)

Index Offence

[5]

In the fall of 2013, the appellant became
    friendly with a 23-year old female employee of a local coffee shop. He would
    regularly walk her home and did so approximately 40 times over the course of
    two months. The woman became uncomfortable with the continued contact when the
    appellant caused the conversations to become personal and sexually explicit,
    for example when he asked how many sexual partners she had had. The appellant
    also shared with her that he had masturbated with the blinds open and a woman
    across the street had seen him. She testified that he would call her several
    times a day.

[6]

After a time, the woman made it clear to the
    appellant that she did not want him walking her home. When he continued to
    attend her workplace, she did not wish to deal with him. On one occasion, she
    left through the back door and went home feeling afraid. Shortly after arriving
    home she heard the doorbell ring and a knock on the door. She pretended not to be
    home, but the appellant rang the doorbell again and she eventually answered the
    door. She told the appellant that she needed to be left alone.

[7]

The appellant also gave the woman gift cards and
    an elliptical machine. When pressed by the appellant the woman agreed to meet
    with him to talk about us. It is then that the appellant told her that he had
    a file or a background check he had done on her and told her he had asked a
    contact to look up her name, where she was from, and her family and personal
    history. This made the woman scared and furious, after which she went to the
    police to report her concerns. As it turned out, the appellant had never
    reported to his parole officer the fact that he had been pursuing this woman
    for several months. He was therefore arrested and charged with breach of his
    LTSO.

[8]

In his reasons for conviction, the trial judge
    expressed the view that the appellants behavior could be considered courting
    or grooming and was very close to, if not tantamount to, stalking as
    described [in s.] 264 of the
Criminal Code
.

(3)

Sentencing Hearing and Reasons for Sentence

[9]

At the sentencing hearing, the Crown called two
    experts. Dr. Philip Firestone was qualified as an expert in the area of
    clinical psychology. Dr. Firestone had provided the appellant with
    psychological counseling from 2012 until his arrest in December 2013. Dr. Scott
    Woodside, a forensic psychiatrist, performed a psychiatric assessment of the
    appellant and was qualified as an expert in the area of diagnoses, risk
    assessment and risk management.

[10]

In the course of his assessment by Dr. Woodside,
    the appellant displayed no reluctance in speaking with him, but it was apparent
    that the information he provided was not always accurate or consistent.

[11]

Dr. Woodside diagnosed the appellant with a
    mixed personality disorder with paranoid, antisocial, borderline and dependent
    traits, as well as exhibitionistic disorder. Dr. Firestone agreed with this
    diagnosis.

[12]

Based on both clinical and actuarial evaluations,
    Dr. Woodside concluded that the appellant continues to pose a high risk of sexual
    recidivism. According to Dr. Woodside the risk of reoffending was highest with
    respect to exhibitionism, stalking and harassment.

[13]

Dr. Firestone was concerned that although the
    appellant had been under intense supervision, he nonetheless returned to his
    offence cycle. In his view, there was little that he could recommend to add to
    the conditions already in place that might mitigate or reduce the risk of
    reoffending. He concluded that even if subjected to an LTSO with strict
    conditions, the appellant was at a moderate to high risk to reoffend.

[14]

Dr. Woodside expressed significant pessimism
    regarding the appellants future manageability in the community even if strict
    conditions were in place. In his own words:

[T]his is now the
    third time he's faced dangerous offender proceedings of one kind or another.  This
    is not a good prognostic factor, right? I mean, this is someone who should have
    known, even if he says he didn't, known what was at stake. And yet he could not
    restrain his behavior and was not willing or able to make use of treatments
    that were available to him, in a way that would actually result in a different
    approach to relationships.

[15]

Dr. Woodside acknowledged that two types of
    treatment had not yet been attempted with the appellant: antipsychotic
    medication and sex drive reducing medication. Dr. Woodside however had
    significant reservations about the outcome of these potential treatment
    options. It was unclear whether the appellant would accept and persist with
    these forms of treatment, nor was it known whether they would be effective.

[16]

The sentencing judge considered the appellants
    entire history, the psychiatric and psychological evidence, and the evidence
    emanating from the offences and victim impact statements, and concluded that
    the criteria in s. 753.01(5) for the imposition of an indeterminate
    sentence were met.

C.

Analysis

[17]

The appellant argues that, in assessing what
    form of sentence would sufficiently protect the public, the trial judge does
    not appear to have considered the principles of proportionality, the
    appellant's moral culpability, or the mitigating factors that exist in this
    case. The appellant maintains that the trial judge made only tangential
    reference to the sentencing principles set out in s. 718 of the
Criminal
    Code
, the common law and relevant jurisprudence.

[18]

While the objective of public protection is
    enhanced in cases involving individuals designated as dangerous offenders, a
    court must nonetheless balance this against the other sentencing principles, including
    proportionality:
R. v. Boutilier
, 2017 SCC 64, [2017] 2 S.C.R. 936, at
    para. 53. In the present case, the appellant submits he had received few
    interventions before or while living at the halfway house. For someone exhibiting
    the depth of problems faced by the appellant, the limited intervention and
    treatment provided to him was a recipe for failure. In the appellants
    submission, this ought to have informed the trial judges disposition in this
    case.

[19]

The appellant further maintains that he posed only
    a limited risk of hands on reoffending and committing a serious personal
    injury offence. In the appellants submission, had the trial judge fully
    grappled with the mitigating factors in fashioning a sentence, he ought not to
    have imposed an indeterminate sentence.

[20]

We disagree. As conceded by the appellant, it is
    well accepted that the dominant purpose of the dangerous offender regime is
    public protection:
R. v. Steele
, 2014 SCC 61, [2014] 3 S.C.R. 138, at
    para. 29. The conduct underlying the offence for which the appellant was
    convicted was strikingly similar to that which led to the appellant's original
    dangerous offender designation. It went to the heart of his offence cycle and
    it therefore created a direct link to his risk to public safety.

[21]

The sentencing judge properly focused on the
    narrow issue of whether there was a reasonable expectation that something less
    than an indeterminate sentence could adequately protect the public against the
    commission of a serious personal injury offence by the appellant:
Criminal
    Code
, s. 753.01(5). He reviewed the sentencing principles and mitigating
    factors identified by defence counsel, including the relative lack of hands on
    violence in the record, the fact that the appellant had not spent time in a
    penitentiary with access to the programming available there, the appellant's
    expressed desire to change his ways, as well as Dr. Woodside's evidence that he
    could not completely rule out a delusional disorder diagnosis and that a trial
    of antipsychotic medication could be attempted.

[22]

The evidence at the hearing, however, was that
    the appellant had a history of declining medication and had been unable to
    meaningfully engage in treatment. He had denied responsibility for his crimes
    and demonstrated a lack of insight into his offence cycle and mental illness. The
    trial judge considered the relevant factors, both mitigating and aggravating,
    and concluded that the breach was very significant because the condition that
    was breached was directly tied to the nature of the offence that formed the
    basis of the dangerous offender designation itself. On the basis of all the
    evidence that was produced at the sentencing hearing, the sentencing judge
    concluded that there was no reasonable expectation that something less than an
    indeterminate sentence would adequately protect the public.

[23]

In our view, the trial judge was alive to the
    factors that the appellant alleges received inadequate consideration. The
    psychiatric evidence was that the appellant is likely to continue his
    longstanding pattern of criminal harassment. The sentencing judges conclusion
    that only an indeterminate sentence would adequately protect the public from
    future serious personal injury offences, specifically, further instances of
    criminal harassment causing severe psychological damage, was reasonable and
    well supported by the evidence. We see no basis to interfere with this conclusion.

D.

Disposition

[24]

As part of the appellants sentence, a $200
    victim surcharge was imposed. In accordance with
R. v. Boudreault
,
    2018 SCC 58, [2018] 3 S.C.R. 599, leave to appeal is granted and this victim
    surcharge is set aside.

[25]

For the reasons given above, the appeal is otherwise
    dismissed.

Paul
    Rouleau J.A.

B.
    Zarnett J.A.

M.
    Jamal J.A.


