



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    identify the complainant or a witness shall not be published in any document or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.






CITATION:
R. v. R.B., 2011
          ONCA 328



DATE: 20110427



DOCKET: C45738



COURT OF APPEAL FOR ONTARIO



Simmons, Rouleau and Karakatsanis JJ.A.



BETWEEN



Her Majesty the Queen



Respondent



and



R. B.



Appellant



Dirk
Derstine
and Daniel Stein, for
          the appellant



Dena Bonnet and Lisa
Joyal
, for the
          respondent



Heard:  March 8, 2011



On appeal from the conviction entered by Justice Robert M. Thompson
          of the Superior Court of Justice, dated December 10, 2002 and from the
          sentence imposed by Justice Thompson, dated June 30, 2006.



By the Court:



[1]

The appellant appeals his conviction and sentence. Following
    a jury trial, the appellant was convicted of two counts of historical sexual
    assault and sentenced to an indeterminate period of incarceration as a
    dangerous offender.

Conviction Appeal

[2]

In oral argument, the appellant focussed on the
    sentence appeal. Counsel relied upon the factum with respect to the appeal
    against conviction. We dismiss that appeal for the following reasons.

[3]

The trial judge did not err in admitting the facts read in on the
    appellants guilty pleas in relation to sexual offences against five other boys
    as similar fact evidence. The evidence was properly admissible to prove that
    the sexual assaults occurred. Although his reasons for concluding that the
    probative value of this evidence outweighed its prejudicial effect were
    limited, his ruling was not undermined by any legal error o
r
    misapprehension of material evidence and was not unreasonable.

[4]

The trial judge also did not err in admitting reply
    evidence by the Crown. The appellant raised the defence of alibi for the first
    time during his testimony. Given the late notice and expansive nature of the
    alibi defence, the Crown had no option but to call rebuttal evidence and did
    not improperly split its case by leading evidence that directly supported the
    allegations. Although one of the witnesses in reply made an utterance which
    corroborated a complainants evidence, the Crown could not have anticipated
    that she would do so. Neither that statement nor the testimony of the other civilian
    reply witness prejudiced the appellant.

[5]

We also reject the submission that the detectives
    evidence in re-examination on reply that in his experience an accused who
    presented an alibi usually did so at the time of the investigation was an
    improper attack on the appellants credibility. It followed questions by
    defence counsel during the cross-examination about the reasonableness of the
    delay in disclosing the alibi and the right to silence. It was a brief, general
    statement to respond to the issue raised by the defence and was not oath
    attacking evidence in these circumstances. In any event, defence counsel at
    trial did not object to this evidence and did not request any form of limiting
    instructions.

[6]

We do not give effect to the grounds of appeal against
    conviction.

Sentence appeal

[7]

The appellant does not dispute that he met the criteria
    for a dangerous offender designation. Rather, he submits that the sentencing
    judge erred by failing to make a long- term offender (LTO) order in place of
    the dangerous offender designation.

[8]

The appellant submits that the sentencing judge erred
    in his approach to issues involving anti-androgen medication and the role of
    the National Parole Board, and by ignoring important evidence relating to the
    reasonable possibility of the eventual control of the appellants risk in the
    community. He also seeks to admit fresh evidence regarding his suitability to
    take sex drive reducing medication.

[9]

A LTO order is available only if there is a reasonable
    possibility that an offenders risk can be addressed and eventually controlled in
    the community  supervised during the currency of the LTO supervision order and
    unsupervised at the completion of the order. The statutory scheme contemplates
    a dangerous offender designation, and not a long-term offender order, where a
    sentencing judge is not satisfied that this criterion has been met.

[10]

As a 43-year-old acknowledged alcoholic and homosexual
    pedophile with a criminal record for nine sexual offences, the appellant poses at
    least a moderate to high risk to re-offend if released into the community.
    While the appellant has shown some willingness to deal with his problems and
    has responded well to treatment in a structured environment, he has re-offended
    each time he has been released from prison, even while on community
    supervision. The experts agreed that sex drive reducing medication, taken by a
    willing and motivated patient, as part of a treatment plan, could reduce the
    risk of re-offending.

[11]

We do not agree that the trial judges reasoning with
    respect to the appellants potential for treatment with sex drive reducing
    medication was tainted with legal and factual error for the following
    reasons.

[12]

The sentencing judge rightly understood that the parole
    board could order that a LTO take medication as prescribed by his qualified
    medical practitioner, but that a psychiatrist could not administer medication
    if consent was withdrawn either capriciously or reasonably, based upon
    potential side effects. The sentencing judge noted that a condition requiring
    an offender take medication as prescribed was not the same as a condition that would
    ensure that an offender could be released only if he was, in fact, taking the
    medication. The sentencing judge found that without the medical component of
    any treatment and release plan, the appellant was bound to re-offend. There was
ample  evidence
to support such a finding.

[13]

The sentencing judge did not materially misapprehend
    the process or the ability of the parole board to deal with any breach of a LTO
    condition. It may well be possible to fashion a condition to ensure that the
    appellant could be released only if taking the medication as initially
    recommended by a psychiatrist. However, the sentencing judge recognized that
    there are many factors which independently make the successful enforcement of a
    condition requiring that the appellant continue to take medication problematic.
    The sentencing judge found that he lacked reasonable assurance that the medical
    component of the controls would be implemented and enforced. Further, the
    appellant would not be found in breach of such a condition under s. 753.3(1) of
    the
Criminal Code

if he had a reasonable excuse
    for refusing to take the prescribed medication.

[14]

In these circumstances, the sentencing judge did not err by focussing
on
    whether the appellant would consent to take the medication. The evidence of the
    appellants attitude towards treatment was a factor that was highly relevant to
    the assessment of risk. Given the circumstances of this case, where the risk is
    created by a life-long condition, and controlling the risk is premised to a
    significant extent, if not entirely, upon the appellants willingness and
    capacity to take the medication, both during the currency of and potentially following
    the expiry of any LTO supervision order, the judge was appropriately concerned
    with whether the evidence specific to this offender demonstrated a sufficient motivation,
    commitment, and capacity to take the medication on an ongoing basis.

[15]

The sentencing
    judge did not ignore evidence of the appellants motivation for change. The
    appellant had responded well to programs while incarcerated and had expressed a
    willingness to take the medication to his defence expert. Nonetheless, the
    appellant did not testify and there was limited evidence regarding the
    appellants willingness and capacity to take the medication.

[16]

In the end, the sentencing judge found that the
    evidence that the appellant could be treated with sex drive reducing medication
    amounted merely to hope and speculation that his risk to children could be
    controlled if he were released back into the community. Reading the reasons as
    a whole, it is clear that the sentencing judge understood and applied the
    correct test of whether there was a reasonable possibility of eventual control
    in the community of the appellants risk to re-offend. He made no error in
    principle and his findings were supported by the evidence.

[17]

Although the fresh evidence provides further evidence
    of the appellants physiological suitability to start the medication and of his
    taking of test doses, it does not go far enough to demonstrate his suitability
    and his genuine motivation to do so, particularly on a longer term basis.

[18]

Despite the additional evidence related to the
    side-effects of the medication, the evidence is clear that both the
    side-effects and patient tolerance of the side-effects are highly variable.

[19]

Further, the appellant did not provide an affidavit as
    part of the fresh evidence application, nor, other than the test doses, has he
    begun actually taking the medication.

[20]

As we have said, the appellants risk is created by a
    life-long condition and controlling that risk is premised almost entirely upon
    his willingness and capacity to take the medication on a long-term basis. In
    the circumstances, in our view, the fresh evidence simply does not go far
    enough to demonstrate the appellants motivation, commitment, and capacity to
    take the medication on an ongoing basis.

[21]

Accordingly, we not satisfied that the fresh evidence
    could reasonably have affected the outcome of the dangerous offender application.

[22]

As a result, we conclude that the sentencing judge did
    not err in declaring the appellant to be a dangerous offender or in finding
    that he did not meet the criteria for a long-term offender designation. The
    appeal from conviction and sentence is therefore dismissed.

RELEASED:  April 27,
2011  
JS                                    Janet
    Simmons J.A.

Paul
    Rouleau J.A.

Karakatsanis
    J.A.


