



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Ryan, 2017 ONCA 334

DATE: 20170426

DOCKET: C56327

MacPherson, Simmons and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

James Ryan

Appellant

Marianne Salih, for the appellant

Jennifer McKee, for the respondent

Heard: April 18, 2017

On appeal from the sentence imposed by Justice Sandra
    Chapnik of the Superior Court of Justice on October 31, 2012.

By the Court:

[1]

Following an altercation on a subway platform in which
    he stabbed the victim six times, the appellant, who was 20 years old at the
    time of the offences, was convicted of aggravated assault, weapons dangerous
    and breach of probation.

[2]

The trial judge sentenced the appellant to four
    years and one day imprisonment for the aggravated assault and weapons dangerous
    charges and to six months imprisonment consecutive for the breach of probation
    charge, which, after giving credit for pre-sentence custody, yielded a total
    determinate sentence of time served plus one day, concurrent. The trial judge
    also imposed a long-term offender (LTO) designation and made a seven-year
    supervision order.

[3]

The appellant appeals from the LTO designation
    and raises three issues on appeal.

[4]

First, the appellant argues that the trial judge
    provided insufficient reasons for her decision because she failed to articulate
    how she interpreted the phrase substantial risk that the offender will
    reoffend in s. 753.1(1)(b) of the
Criminal Code
. The appellant contends
    that the trial judge identified conflicting decisions concerning the
    interpretation of that phrase but failed to determine which authority applied.

[5]

Second, the appellant argues that to the extent
    the trial judge articulated a test to determine if the appellant posed a
    substantial risk to reoffend, she wrongly identified s. 753.1(2)(b)(i) of the
Criminal
    Code
, which applies only to sexual offenders, as the governing provision
    and, in any event, misapplied the test set out in that section.

[6]

Third, the appellant argues that the trial judge
    erred by failing to consider her discretion under s. 753.1(1) of the
Criminal
    Code
not to make an LTO designation even if the statutory criteria were
    satisfied.

[7]

We would not accept these submissions.

[8]

Despite the appellant's young age, he had a
    significant youth record and, in addition, on October 4, 2008 and January 17,
    2010, had committed offences as an adult that involved stabbing another person
    following minimal provocation. As noted above, during the course of the January
    2010 offence the appellant stabbed the victim six times.

[9]

Further, at the sentencing hearing, Dr. Klassen
    provided uncontradicted threat assessment evidence (both through a report and
    oral evidence) in which he opined that the appellant is likely at a moderately
    high risk of violent re-offence and that absent significant intervention the
    appellant presents a probability of violent re-offence. Dr. Klassen stated that
    on the basis of actuarial assessment and his clinical history the appellant
    presents a substantial risk to the community and while there is a reasonable
    possibility of eventual control of the risk in the community he expected the
    appellant would likely struggle at least initially, with supervision.

[10]

Having regard to the evidence presented at the
    hearing, we are satisfied that the appellant meets the requirement of
    presenting a substantial risk to reoffend, even if that requirement is viewed
    as "a high threshold" involving a substantial risk of causing serious
    harm to individuals.

[11]

Further, while the trial judge's identification
    of s. 753.1(2)(b)(i) as the applicable section was erroneous, on the record
    before her, the trial judges findings that the appellant meets the requirement
    of presenting a substantial risk to reoffend; that a traditional period of
    incarceration would not protect the public; and that no reasonable possibility
    of eventual control in the community exists unless the appellant is placed on a
    long-term supervision order; are unassailable. These findings also meet any
    concern that the trial judge failed to consider her discretion not to make an
    order. The trial judges reasons make it abundantly clear that an order was
    required in order to protect the public

[12]

The appeal is therefore dismissed.

J.C. MacPherson
    J.A.

Janet Simmons
    J.A.

David Brown
    J.A.


