



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), (2.1), (2.2), (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    information that could identify the victim or a witness shall not be published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, 171.1, 172, 172.1, 172.2,
    173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281,
    286.1, 286.2, 286.3, 346 or 347, or

(ii)      any offence under this Act, as
    it read at any time before the day on which this subparagraph comes into force,
    if the conduct alleged involves a violation of the complainants sexual
    integrity and that conduct would be an offence referred to in subparagraph (i)
    if it occurred on or after that day; or

(iii)     REPEALED: S.C. 2014, c. 25,
    s. 22(2), effective December 6, 2014 (Act, s. 49).

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

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

(b)     on application made by the
    victim, the prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2), in
    proceedings in respect of an offence other than an offence referred to in
    subsection (1), if the victim is under the age of 18 years, the presiding judge
    or justice may make an order directing that any information that could identify
    the victim shall not be published in any document or broadcast or transmitted
    in any way.

(2.2) In proceedings in respect of an
    offence other than an offence referred to in subsection (1), if the victim is
    under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the
    victim of their right to make an application for the order; and

(b) on application of the victim or the
    prosecutor, 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); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014,
    c. 25, ss. 22,48; 2015, c. 13, s. 18..

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. Wesley, 2018 ONCA 636

DATE: 20180712

DOCKET: C62571

Sharpe, Brown and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

John Wesley

Appellant

Robert Sinding, for the appellant

Mabel Lai, for the respondent

Heard: June 27, 2018

On appeal from the conviction entered on March 31, 2014
    and the sentence imposed on January 25, 2016 by Justice H.M. Pierce of the Superior
    Court of Justice, sitting without a jury.

REASONS FOR DECISION

[1]

The appellant was convicted of sexual assault, designated as a dangerous
    offender and given an indeterminate sentence. He appeals both conviction and
    sentence.

A.

FACTS

[2]

The alleged offence took place at a remote First Nation community. Both
    the 18-year-old complainant and the 43-year-old appellant are Indigenous and
    both resided on the reserve. On the evening in question, the complainant had
    been seen drinking with the appellant in the bush. Three young women became
    concerned about the complainants safety and went looking for her. They looked
    into and entered a small shed in the bush, where they observed both the
    complainant and the appellant. The complainant was lying on the floor, soaking
    wet and cold to the touch, with her pants down and her legs spread in a sexual
    position. Her eyes were closed and she was unresponsive. The three women
    observed the appellant straightening up and doing up his pants. One of them
    thought she saw the appellants penis. The three women confronted the appellant
    and asked him what he had done to the complainant. According to two of the
    women, the appellant responded to the effect that the complainant wanted it
    and that it was consensual. The third woman recalled the appellant saying
    its not what you think it looks like.

[3]

The complainant was highly intoxicated and was helped to her home. She
    had no recollection of what had occurred the next morning. She complained of
    soreness in her pubic area and inner thighs, and had bruises on her hips and legs.

[4]

After a five day judge-alone trial at which the appellant did not
    testify and called no evidence, the appellant was convicted of sexual assault.

[5]

The Crown brought a dangerous offender application alleging that the
    appellants long-standing pattern of violent and aggressive behaviour aimed at
    dominance, and his lack of insight, remorse or motivation to change, justified
    a dangerous offender designation. The application was supported by the opinion
    of a forensic psychiatrist, Dr. Philip E. Klassen, that the appellant met the
    criteria for a dangerous offender designation. The trial judge considered the
    evidence and rejected the appellants submissions that he was not a dangerous
    offender and that an eight year sentence followed by a ten year long-term
    supervision order would be appropriate. The trial judge accepted the Crowns
    position, designated the appellant a dangerous offender, and imposed an
    indeterminate sentence.

B.

CONVICTION APPEAL

Unreasonable verdict

[6]

We do not agree with the appellants submission that the verdict of
    guilty of sexual assault was unreasonable or that the trial judge
    misapprehended evidence. There was evidence, accepted by the trial judge, that
    the complainant had consumed a significant quantity of fortified wine with the
    appellant. There was also ample evidence to support the trial judges finding
    that the Crown had established, beyond a reasonable doubt, that the appellant
    sexually assaulted the complainant. Three witnesses testified that the
    complainant was unconscious, naked from the waist down with her legs spread in
    the shed. She later complained of soreness in her pubic area. This evidence, when
    combined with the observations of the appellant in the shed pulling up his
    pants and stating that what occurred had been consensual, provided strong support
    for the trial judges finding that the appellant had sexual relations with the
    complainant while she was in an unconscious state and incapable of consenting.

[7]

The appellant points to certain inconsistencies in the evidence of the
    three young women. The trial judges reasons account for those inconsistencies.
    She provided an entirely adequate explanation of how she resolved any
    differences in their evidence and why those differences did not give rise in
    her mind to a reasonable doubt. The trial judges treatment of credibility
    attracts deference in this court and we see no possible basis for appellate
    intervention.

R. v. W.(D.)
error

The appellant
    complains that the trial judge failed to caution herself in accordance with
R.
    v W.(D.)
, [1991] 1 S.C.R. 742
in relation to his exculpatory statement that the encounter had been
    consensual. The trial judge did not explicitly refer to
W.(D.)
in her decision.
    However, her reasons demonstrate that she placed the burden of proof on the
    Crown throughout and correctly applied the reasonable doubt standard. We do not
    accept the submission that her failure to mention
W.(D.)
amounted to
    an error in the context of this case. We note that the appellant did not
    testify or call any other evidence in his defence. We also question whether any
    of the appellants utterances in the shed, as described by the Crowns
    witnesses, bear exculpatory meaning. Those utterances  the complainant had
    wanted it, the encounter had been consensual, and the scene in the shed was
    not what you think it looks like  do not detract from the Crowns theory
    that the appellant had sex with the complainant when she was too intoxicated to
    consent to sexual activity, as made clear by the uncontested evidence about her
    condition in the shed.

Prior consistent statement

[8]

Nor do we accept the argument that the trial judge erred by admitting
    the complainants video statement to the police to rebut the allegation of
    recent fabrication as to when she first reported soreness in her vagina. Although
    the trial judge recognized that the complainants gesture in the video was open
    to interpretation, the gesture was consistent with the complainant pointing to
    her vaginal area. It was appropriate for the trial judge to admit the videotape
    and to permit the complainant to explain her gesture. The trial judge was
    entitled to credit the complainants testimony that she had pointed to her
    vaginal area, and to then use the video to rebut the recent fabrication claim
    the defence was making: :
R. v. Stirling
, 2008 SCC 10, [2008] 1 S.C.R.
    272, at para. 5. We see no error in the admission or use of this evidence.

Adequacy of reasons

[9]

Finally, we do not agree that the trial judges reasons were inadequate.
    The trial judge fully and fairly reviewed the evidence and engaged with the
    most important submissions advanced by the parties. She clearly explained why
    she accepted the Crowns evidence and why she was persuaded beyond a reasonable
    doubt that the appellant had sexually assaulted the complainant.

[10]

For
    these reasons, we dismiss the appeal from conviction.

C.

SENTENCE APPEAL

[11]

The
    appellant argues that the trial judges consideration of the dangerous offender
    application and appropriate sentence fails to comport with
R. v. Boutilier
,
    2017 SCC 64, [2017] 2 S.C.R. 936, a decision released after the decision under
    appeal. The appellant contends that, contrary to
Boutilier,
the trial
    judge

made the dangerous offender designation without finding
    intractability and a high likelihood of recidivism. The appellant also
    argues that the trial judge misdirected herself on the availability of
    discretion to impose a sentence other than a period of indeterminate detention.

[12]

The
    appellant further submits that his designation as a dangerous offender is
    tainted by a misapprehension of the facts underlying his prior offences. Additionally,
    in the appellants view, both the psychiatrist and the trial judge improperly
    took into account prior incidents of alleged criminality for which the
    appellant had not been convicted.

[13]

Finally,
    the appellant complains that at the penalty stage, the trial judge failed to
    give proper consideration to alternative measures in the community that could
    be used to control his risk of re-offending. Related to this submission is the
    contention that the trial judge did not give adequate consideration to the
    appellants Indigenous roots and the principles espoused in
R. v. Gladue
,
    [1999] 1 S.C.R. 688 and
R. v. Ipeelee
, 2012 SCC 13, [2012] 1 S.C.R.
    433.

Intractability and High Likelihood of Recidivism

[14]

We
    agree with the appellant that
Boutilier
requires as a precondition to
    a dangerous offender designation findings of intractability and a high
    likelihood of harmful recidivism: At para. 27, Côté J., writing for the
    majority explained:

Before designating a dangerous offender, a
    sentencing judge must still be satisfied on the evidence that the offender
    poses a high likelihood of harmful recidivism and that his or her conduct is
    intractable. I understand intractable conduct as meaning behaviour that the
    offender is unable to surmount. Through these two criteria, Parliament requires
    sentencing judges to conduct a prospective assessment of dangerousness.

[15]

The
    appellant submits that the trial judge referred to a statement from
R. v.
    Szostak
, 2014 ONCA 15, 118 O.R. (3d) 40, at para. 61, that it is not
    necessary that the offenders conduct show a high level of intractability.
    However, we do not accept the submission that the trial judge failed to make
    findings bringing this case within the principle enunciated in
Boutilier
.
    While she did not use the precise labels of intractability" and high
    likelihood of harmful recidivism to characterize her findings, we are
    satisfied that in substance, her findings satisfy both tests.

[16]

The
    trial judge reviewed at length the psychiatric evidence related to the
    appellants risk of recidivism. We do not accept the submission that the trial
    judge only did so at the second stage in relation to sentence. She dealt with
    the psychiatric evidence at length in the early part of her decision and on a
    fair reading of the balance of her reasons, it is clear that she took this
    evidence into account at both the designation and penalty stages.
As pointed out at para. 58 of the Crowns factum, the trial judge made
    the following crucial findings related to intractability. At para. 119, she
    found
that the appellant has not been able to restrain himself in the
    past from using violence or the threat of violence to get what he wants, and
    that there was every indication that [the appellant] will be unable to
    restrain himself

from doing so in future. The trial judge reviewed the
    appellants lengthy history of non-compliance with community-based dispositions
    and court orders, which did not curb his offending. She observed, at para. 57,
    that in all but one case, he engaged in violent offences while on probation,
    recognizances, or peace bonds. She found, at para. 134, that the appellant is
    presently 
at high risk of serious sexual or violent re-offending.
The trial judge carefully reviewed the appellants history in various
    institutions and involvement in a chemical dependency program, AA meetings,
    Bible study, traditional activities and one-on-one counselling in his
    community, and quoted with approval, at para. 75, the following passage from
    the pre-sentence report:

Despite these efforts, the subject has been unable to sustain
    meaningful change. He continues to re-offend, remains loyal and strongly connected
    to gang culture values, beliefs and associations and has a well-established
    pattern of justifying, minimizing or blaming others for any unacceptable
    behavior. He does not identify consequences as a direct result of his own
    actions and fails to recognize or acknowledge the extent and lasting impact of
    his behaviour on his victims, their families and all members of the community.

[17]

In
    our view, these findings demonstrate that, although she did not have the
    benefit of
Boutilier
when she imposed sentence, the trial judge made
    findings of fact with a solid basis in the evidence that bring this case
    squarely within the categories of intractability and a high likelihood of
    recidivism.

Discretion

[18]

The
    trial judge proceeded on the basis that she had to declare the appellant a
    dangerous offender if the statutory criteria were met but enjoyed some discretion
    at the penalty stage to avoid imposing an indeterminate sentence: paras. 7-9.
    In our view, this comports with
Boutilier
, at para. 20.

The current version of the scheme reverts to a two stage process but
    removes the discretionary language from the designation stage. If a sentencing
    judge is satisfied that the statutory criteria have been met, the designation
    must follow. There is, however, some discretion remaining at the sentencing
    stage. Under s. 753(4.1), a sentencing judge must impose an indeterminate
    sentence on a designated individual
unless
he or
    she is satisfied that there is a reasonable expectation that a lesser measure
    will adequately protect the public.

Prior criminal record

[19]

The
    appellant submits that the trial judge misapprehended the evidence about his
    prior offences. He argues that his offending since 1992 has not been marked by
    great violence and has declined. The trial judge considered and rejected this
    submission. She found that the appellants record demonstrated a pattern of
    aggressive behaviour aimed at dominance. This finding was available to her on
    the record, which discloses incidents of physical violence, threats of violence
    and sexual assault by the appellant. Many of these incidents occurred after
    1992. The trial judges treatment of this evidence is entitled to deference and
    discloses no reviewable error.

Prior incidents of unproven criminality

[20]

The
    appellants record of criminality also includes allegations that did not result
    in conviction. On appeal, his submissions focussed on a domestic violence
    incident where charges against him were ultimately withdrawn. The appellant argues
    that the opinion of Dr. Klassen should have been discounted because he
    considered that incident.

[21]

In
    our view, Dr. Klassen provided an acceptable explanation for how and why the
    incident of uncharged domestic violence factored into his assessment. The
    actuarial tools he used to assess the risk posed by the appellant demanded that
    such incidents be included and it was only for one of those tools that the
    incident made any difference to the appellants score. Moreover, Dr. Klassen
    explained that these types of incidents gave rise to a concern about
    aggression, typically while under the influence of alcohol. The appellant
    admitted to Dr. Klassen that he had given his ex-partner and mother of his
    child, a jab and a kick while they were both intoxicated by alcohol. Dr.
    Klassen was entitled to rely upon that conduct in assessing the risk of the
    appellant re-offending.

[22]

The
    only reliance by the trial judges on the allegations that did not result in
    conviction was to reject the contention that there had been a meaningful gap in
    the appellants criminality. As she explained, at para. 42, the significance
    of these events is not the fact of the charges, but rather that he was detained
    in custody  removed from the community  and had no opportunity to reoffend.
    We see no error in this approach.

Consideration of alternate measures and
Gladue
factors

[23]

We
    do not accept the submission that the trial judge failed to give adequate
    consideration to
Gladue
factors and possible alternate measures when
    she imposed an indeterminate sentence. In our view, the trial judges
    sentencing reasons display a thorough analysis of both factors. She explicitly
    recognized that
Gladue
factors were relevant at all stages of the
    dangerous offender application. She took into account the appellants life circumstances
    and recognized that he had suffered serious trauma and loss as an aboriginal
    man and that he had suffered great disadvantage, being raised  in a violent,
    chaotic home. She considered and rejected the options of returning the
    appellant to his community on the ground that it has the right to be protected
    from the risk of his violence. These were reasonable conclusions, entitled to
    deference before this court.

[24]

The
    trial judge also considered the defences proposed alternative to an indeterminate
    sentence: an eight year sentence followed by a ten year long-term supervision
    order. The trial judge was entitled to reject that proposal on the evidence
    before her. The appellant focusses on the following sentence at para. 141 of
    the trial judges reasons: [t]his may be a realistic proposal but it does not
    guarantee that a change of scene will alter Mr. Wesleys desire to dominate and
    his use of violence to do so. In our view, that single sentence must be viewed
    in the context of the trial judges decision as a whole. Properly read, her
    reasons make it clear that based on the appellants lengthy record of
    aggressive behaviour, Dr. Klassens assessment of the risk he poses and the
    demonstrated inability of the appellant to curb his violent conduct, the trial
    judge was persuaded that he cannot safely be returned to the community and the
    only realistic option was an indeterminate sentence.

D.

DISPOSITION

[25]

For
    these reasons, the appeal against conviction and sentence is dismissed.

Robert J. Sharpe
    J.A.

David Brown J.A.

David M. Paciocco
    J.A.


