



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    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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(iii)     REPEALED: S.C.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    that could identify the victim shall not be published in any document or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. R. D., 2019 ONCA 951

DATE: 20191204

DOCKET: C56617 and C58709

Lauwers, van Rensburg and
    Hourigan JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

R. D.

Appellant

R. D., in person

Lisa Jørgensen, counsel for the
    appellant on the sentence appeal and duty counsel on the conviction appeal

Deborah Krick, for the respondent

Heard: November 13, 2019

On appeal from the convictions entered on October 21, 2009 by Justice Robert Maranger of the Superior Court of Justice, sitting with a jury, and the sentence imposed on January 16, 2013.

Hourigan J.A.:


I.

Overview

[1]

R.D. appeals his convictions and sentence for
    unlawful confinement, sexual assault causing bodily harm, and choking with
    intent.

[2]

Two grounds of appeal are asserted on the
    conviction appeal. First, the appellant submits that the trial judge erred in
    dismissing his application to prohibit Crown cross-examination on his prior
    convictions, pursuant to
R. v. Corbett
, [1988] 1 S.C.R. 670.
    Specifically, he argues that the trial judge should not have permitted
    cross-examination on his previous conviction for attempted murder. Second, the appellant
    argues that the trial Crowns cross-examination and closing argument
    compromised his right to a fair trial.

[3]

For reasons I will explain, I would not give
    effect to either ground of appeal. On the facts of this case, where the defence
    mounted an all-out attack on the complainants credibility and character, the
    trial judge properly exercised his discretion to allow cross-examination on the
    attempted murder conviction. Further, the Crowns cross-examination and closing
    were not improper and did not compromise the appellants right to a fair trial.

[4]

Regarding the sentence appeal, the Crown
    concedes that the trial judge erred in conducting the dangerous offender
    application pursuant to provisions in the
Criminal Code
, R.S.C., 1985, c. C-4,
that had been
    repealed and replaced. However, the Crown submits that the trial judge applied
    the correct legal test for the designation, since the legislative amendments
    did not change the criteria for a dangerous offender designation. It relies on
    the curative proviso and argues that the dangerous offender designation should
    remain in place. The Crown acknowledges that a new hearing should be ordered to
    consider the issue of sentence.

[5]

I conclude that the curative proviso is
    unavailable. It would be fundamentally unfair to the appellant to limit his
    submissions on a new hearing to sentence. The fresh evidence on sentence will
    undoubtedly touch on some of the same issues as the original dangerous offender
    hearing. It is unclear whether this fresh evidence will conflict with the
    evidence that was relied on in making the original designation approximately
    eight years ago. In the circumstances, it cannot be said that the trial judges
    error was inconsequential. I would order a new hearing on the dangerous
    offender designation and sentence.


II.

Analysis

(a)

Conviction Appeal

(i)

Corbett
Application

[6]

Credibility was a critical issue in this case
    because the complainant and the appellant testified and gave diametrically
    opposing accounts of what happened in the early morning hours of August 2,
    2008.

[7]

The complainants evidence was that she went out
    with the appellant and a group of friends and ended up at the appellants
    apartment. She says that she passed out at about 4 a.m. and awoke to the
    appellant choking her. The complainant testified that over the course of a
    lengthy assault, the appellant repeatedly forced vaginal intercourse and
    attempted anal intercourse. Police photographs of the complainant show
    extensive bruising.

[8]

The appellant testified that it was the
    complainant who initiated the sexual activity. His evidence was that they
    engaged in consensual vaginal and anal intercourse. According to the appellant,
    when he and the complainant parted, she did not look like she did in the police
    photographs.

[9]

The appellant brought a
Corbett
application to prohibit cross-examination on certain convictions. In 1993, he was
    convicted of attempted murder, possession of a weapon, break and enter to commit
    assault, and sexual assault. Defence counsels submission was that because the
    previous violent offences were very similar to the charges then before the
    court, the records prejudicial effect far outweighed any probative value.

[10]

In his reasons on the application, the trial
    judge quoted extensively from
Corbett
, including a review of the
    factors to consider on the application. He noted that the complainants credibility
    and character had been front and centre. The trial judge concluded that
    excluding the convictions in their entirety would leave the jury with the
    mistaken impression that the appellant had an unblemished record.

[11]

The trial judge noted that there was some prejudice
    in allowing the criminal record to go before the jury, but he found that a
    strong direction to the jury and a limited amount of the criminal record to go
    before the jury is the fairest way to deal with this matter. He ruled that the
    conviction for attempted murder could be the subject of cross-examination and
    that all other entries on the record should be excluded.

[12]

The appellant submits that the trial judge erred
    in permitting cross-examination on his conviction for attempted murder. He
    argues that its admission was highly prejudicial because it would lead to
    propensity reasoning by the jury that could not be cured by a direction. This ruling
    is also said to be prejudicial because it involved his most serious conviction
    and because the complainant testified that she feared for her life during her
    encounter with the appellant.

[13]

The legal principles underlying
Corbett
applications are well settled and need not be repeated here. However, two
    points are worth emphasizing for present purposes. First, there is no
    presumption that an accused will not be cross-examined on his or her record. To
    the contrary, cross-examination on the accuseds criminal record will be the
    usual course:
R. v. N.A.P.
(2002)
,
    167 O.A.C. 176, at para. 20. Second, deference is owed to a trial judges
    determination of a
Corbett
application, except where there is an error
    in principle, misapprehension of the material facts, or unreasonable exercise
    of discretion:
R. v. McManus
, 2017 ONCA 188, 353 C.C.C. (3d) 493, at
    para. 84;
R. v. Paul
, 2009 ONCA 443, 249 O.A.C. 199, at para. 13,
    leave to appeal refused, [2009] S.C.C.A. No. 45.

[14]

In considering whether the trial judge erred in
    exercising his discretion, this courts decision in
N.A.P.
is
    instructive. In that case, the accused was charged in a ten-count indictment
    with various offences against his wife and daughter, including assault,
    threatening death, and unlawful confinement. The defence brought a successful
Corbett
application to exclude his criminal record, which included an attempted murder
    conviction. The accused was convicted on only one count and the Crown appealed.

[15]

On appeal, Doherty J.A., writing for the court,
    ruled that the trial judge made an error in principle in her ruling on the
Corbett
application, which necessitated this court reviewing the merits of the
    application afresh. Doherty J.A. referenced
R. v. Saroya
(1994), 76
    O.A.C. 25, (Ont. C.A.) for the proposition that a conviction for attempted
    murder has significant probative value in a credibility analysis. Attempted
    murder is such a serious offence that it may indicate a conviction for perjury
    is unlikely to keep the witness honest. It is also open to the jury to find
    that the witness is unlikely to have more respect for the truth than he or she
    has shown for human life.

[16]

Doherty J.A. balanced the convictions probative
    value against the risk that the jury would conclude that someone who had
    actually tried to kill another person was dangerous and would certainly not
    hesitate to threaten and assault others:
N.A.P.
, at para. 25. He
    noted that in cases where credibility is central to the outcome of a trial, the
    balance may favour cross-examination where the accused mounts an all-out attack
    on the credibility and character of the Crown witnesses. Doherty J.A. found
    that the defence had made such an attack on the complainants. However, that
    factor was neutralized because the Crown had presented a great deal of evidence
    that established that, throughout an eighteen-year marriage, the accused had physically
    and emotionally abused his wife and children. Accordingly, there was no risk
    that the failure to permit cross-examination on the attempted murder conviction
    would leave the jury with the mistaken impression that the accused had an
    unblemished record. Doherty J.A. concluded that although it was a close case,
    the proper exercise of discretion favoured prohibiting cross-examination on the
    attempted murder conviction.

[17]

In the case at bar, similar to the situation in
N.A.P.
,
    the defence mounted an all-out attack on the complainants credibility and
    character. The nature and extent of that attack is best captured in the
    following excerpt from the defences closing argument:

But the fact of  of a conviction for an
    assault, especially one thats described by her, certainly shouldnt make you
    think in terms of truthfulness. But its interesting because it shows the type
    of behaviour she was exhibiting during that time period, and her attitude
    towards the police, and some of the outrageous things she said to them. Now
    another factor in her evidence is she talks about how she had chlamydia from
    some previous incident. Thats of some interest when we get to -to the actual
    incident itself. She talks about that thats probably from a  a abusive
    boyfriend she used to live with.

[18]

It is evident that the defence strategy was to
    attack the complainants character and credibility. Her previous conviction for
    assaulting a police officer and her lifestyle were relied on to paint her as a
    person whose testimony was unworthy of belief.

[19]

Unlike the situation in
N.A.P.
,
    however, in this case there was no other evidence about the appellant to
    neutralize his attack on the complainants character and credibility. In these
    circumstances, the trial judge did not err in principle in failing to exclude
    cross-examination on the attempted murder conviction. In my view, its inclusion
    permitted a more informed credibility assessment of the competing versions of
    events.

[20]

The appellant submits that the trial judge
    should have exercised his discretion differently by excluding cross-examination
    on the attempted murder and sexual assault convictions but permitting it on the
    convictions for possession of a weapon and break and enter to commit assault. I
    would not give effect to this argument. As in
N.A.P.
, the potential
    probative value and prejudicial effect of cross-examination on the attempted
    murder conviction were both relatively high. The appellants desired order
    would certainly reduce any potential prejudice, but it would also significantly
    reduce the probative value of the cross-examination on the appellants record.
    It was for the trial judge to determine where the appropriate balance should be
    struck, and that balancing is owed deference on appeal.

[21]

I am not satisfied that the trial judge erred in
    exercising his discretion. Appellate interference is not warranted and I would
    therefore dismiss this ground of appeal.

(ii)

Cross-Examination and Crown Closing

[22]

The appellant argues that the trial Crowns
    cross-examination was improper and that the prejudice arising from it was
    exacerbated by her closing address. Specifically, the appellant submits that
    the cross-examination and closing were improper because the trial Crown: (i)
    required the appellant to explain the evidence against him, thereby suggesting
    a reverse onus; (ii) insinuated that the appellant was knowledgeable about the
    criminal justice system; (iii) breached the appellants right to silence and
    solicitor-client privilege; and (iv) intimidated the appellant into not giving
    full answers.

[23]

Before analyzing these complaints, some context
    is helpful. In considering a claim of improper Crown conduct, it is often
    difficult for an appellate court to understand the dynamics of a trial. A
    transcript may not accurately convey what was happening in the courtroom. The
    words are all written down, but the tone is lost. Fortunately, in this case we
    have the benefit of comments from trial defence counsel. He brought an
    unsuccessful motion for a mistrial and in the course of his submissions, he
    commented on the way the trial Crown was prosecuting the case. It was his
    position that the trial Crown had done nothing improper. He even went as far to
    say, not only is my friend not straddling the line of misconduct, shes not
    even close to the line of misconduct.

[24]

With that comment in mind, I turn to the first
    complaint about the trial Crowns cross-examination. The appellant submits that
    the trial Crown was asking the appellant to explain the evidence against him,
    which suggested to the jury a reverse onus on the appellant. In addition, the
    appellant argues that the trial Crown, in her closing, continued to suggest to
    the jury that the appellant had an obligation to explain the evidence against
    him.

[25]

I would not give effect to this argument. In one
    instance, the trial Crown asked the appellant to comment on what the
    complainant was thinking. The defence objected and the Crown agreed to rephrase
    the question. Otherwise, my reading of the impugned questions is that the Crown
    was challenging the appellant on his version of events. There is nothing
    improper in that. Indeed, it is part of the Crowns responsibilities to test
    the defence evidence. Similarly, the parts of the closing submission contested
    on this basis are instances where the trial Crown is inviting the jury to
    reject the appellants evidence. Such submissions in criminal trials are
    commonplace and are not improper.

[26]

During a question about what the appellant did
    as the complainant was leaving, the Crown stated the reason why you didnt
    give her money for a cab was that to keep track of her because
you know how
    it is
, and you  you were afraid she was gonna go to the police because of
    what had happened on that day? (emphasis added). The appellant argues that the
    underlined words suggested he was knowledgeable about the criminal justice
    system.

[27]

I see no merit in this submission. There was no
    overt reference to the appellants experience with the criminal justice system
    and it does not necessarily follow from this question that the appellant was
    known to the police. In any event, the jury was aware of his previous
    conviction for attempted murder. The appellant could not have suffered any
    prejudice by the inclusion of this phrase in the impugned question.

[28]

Next, the appellant objects to questions about
    why the appellant did not speak to his friends after the incident. When answering
    on this topic, the appellant referenced having a communication with his lawyer.
    The appellant argues that, at this point, the Crown should have abandoned this
    line of questions and that the failure to do so breached solicitor-client
    privilege and his right to remain silent.

[29]

I reject this submission. At no point was the
    appellant questioned about his communications with his lawyer. The Crown was
    trying to establish that the appellants post offence conduct was relevant.
    Accordingly, the Crown was obliged to cross-examine the appellant on his
    actions and that was the purpose of the questions. There was nothing improper
    about this area of cross-examination.

[30]

As mentioned above, the defence brought an
    unsuccessful mistrial application. The basis of the application was that the
    appellant was prevented from making full answer and defence as a result of the
    manner in which the cross-examination took place. The appellant makes a similar
    argument before us. To understand that argument some background is required.

[31]

At trial, the Crown requested a direction be
    given to the appellant that he answer the questions asked and not get into
    tirades about things that are irrelevant to the question. The trial judge
    directed the appellant to answer the questions asked and not go on tangents
    about collateral matters. The appellant submits this direction effectively made
    him reluctant to give full answers, thus impairing his right to a fair trial.

[32]

The trial judge rejected a similar argument on
    the mistrial application. After reviewing the transcript, he could not find any
    instance where the appellant was prevented from answering a material question.

[33]

I agree with the trial judges analysis. It is
    evident from the transcript that the appellant had no difficulty in answering
    the questions put to him. Indeed, on occasion he was combative with the trial
    Crown, as he forcefully put his position to her. In support of this argument, the
    appellant primarily relies on a single example  a question about where the
    appellant put his shirt that night. The appellant wanted to provide details
    about the fact that he had earlier in the evening been wearing a different
    shirt. He was permitted to do so and ultimately answered the question asked. Again,
    I fail to see how the appellants ability to answer questions was compromised.

[34]

The appellant next complains that the trial
    Crown used inflammatory language in both her cross-examination of him and her
    closing address to the jury. I am not persuaded by this argument. In my view,
    there was nothing inflammatory in the cross-examination of the appellant.
    Questions were put to him that challenged his version of events. The challenged
    portions of the closing are primarily instances where the trial Crown was
    responding to submissions made by defence counsel. I am not persuaded that the
    trial Crown in responding to very aggressive defence submissions used
    inflammatory language.

[35]

Finally, the appellant submits that the trial
    Crown improperly submitted that the complainant had no motive to fabricate her
    evidence and should therefore be believed. This is a troubling argument. The
    impugned portion of the closing does not contain any reference to the
    complainant having no motive to fabricate. Rather, the trial Crown is simply
    responding to arguments made by the appellants counsel in his closing as to
    why the complainant may have lied. The trial Crown quite properly submitted to
    the jury that defence theories about why the complainant may have lied are just
    allegations and not evidence.

[36]

Overall, the difficulty with the appellants
    argument on this ground of appeal is that it fundamentally misconceives the
    Crowns role, seeking to relegate the Crowns status to that of a passive
    observer at trial. It is true that the Crown cannot adopt a purely adversarial
    role towards the defence, but the adversarial process is an accepted tool in
    our search for truth. The Crown must act as a strong advocate within this
    process, and it is both permissible and desirable that it vigorously pursue a
    legitimate result to the best of its ability:
R. v. Cook
,
[1997] 1 S.C.R. 1113, at para. 21.

[37]

Every participant in a criminal trial has a role
    to play. A Crown attorneys role is not to secure a conviction but to fairly
    present to the trier of fact credible evidence of an alleged crime. They do so as
    advocates and they fail in their duty when they do not do their utmost to
    present as strong a case as possible. The execution of this duty includes
    cross-examinations that highlight for the trier of fact the weaknesses in the
    accuseds exculpatory evidence. Where a Crown attorney leaves unchallenged what
    should be challenged, he or she breaches a public obligation to ensure that a
    clear picture of the evidence is presented to the court. In short, a Crown
    attorney must vigorously present a case without fear or favour in order for our
    justice system to function.

[38]

I agree with the submission of trial counsel for
    the appellant, the Crowns conduct in this case did not come close to crossing
    the line of misconduct. This was a hard-fought trial, where both the defence
    and Crown presented their respective cases forcefully. Nothing in Crown counsels
    conduct is worthy of censure by this court and nothing she did compromised the
    appellants right to a fair trial. For these reasons, I would reject this
    ground of appeal.

(b)

Sentence Appeal

[39]

It is common ground between the parties that the
    appellants dangerous offender proceeding should have proceeded under the
    post-2008 dangerous offender legislation. The relevant amendments of the
Tackling
    Violent Crimes Act
, S.C. 2008, c. 6, came in to force on July 2, 2008. The
    predicate offences were committed on August 2, 2008. The appellant was
    convicted on October 21, 2009 and his dangerous offender hearing commenced on
    September 6, 2011.

[40]

Under the previous dangerous offender scheme, a
    trial judge had discretion to designate an offender as dangerous, but there was
    no discretion at the sentencing stage. Once a designation was made, an
    indeterminate sentence had to be imposed.

[41]

The current version of the scheme establishes a
    two-stage process wherein the first stage determines whether a dangerous
    offender designation will be made. In the second stage, the court considers the
    appropriate sentence. This new scheme removes the discretionary language from
    the designation stage, such that if the statutory criteria have been met, the
    designation must follow. However, there is some discretion at the sentencing
    stage. A sentencing judge must impose an indeterminate sentence on a designated
    offender
unless
there is a reasonable expectation that a lesser measure
    will adequately protect the public:
Criminal Code
, s. 753(4.1).

[42]

The 2008 amendments only changed the opening
    words of s. 753(1) of the
Criminal Code

to remove a sentencing
    judges discretion regarding a dangerous offender designation. The amendments
    did not impact the criteria that must be established to impose the designation.
    Since the language for the criteria is the same between the two legislative
    schemes, the Crown relies on the curative proviso and asks that this court
    uphold the designation as a dangerous offender. The Crown does not seek to rely
    on the curative proviso for the imposition of an indeterminate sentence because
    the 2008 amendments introduced changes to the sentencing of dangerous
    offenders.

[43]

I would not give effect to this submission. My
    concern is that a hearing focussed only on the issue of sentence could be
    unfair to the appellant. I say this because of the overlap in the evidence in
    the two stage process.

[44]

In
R. v. Boutilier
, 2017 SCC 64, [2017]
    2 S.C.R. 936, the Supreme Court considered several issues regarding the
    dangerous offender provisions, including their constitutionality. One of the
    issues before the Court was whether a sentencing judge is entitled to consider
    evidence of future treatment prospects when deciding whether to designate an
    offender as opposed to when imposing a sentence. Côté J., writing for the Court,
    concluded that a sentencing judge could have regard to future treatment
    prospects when deciding whether to designate an offender.

[45]

In reaching this conclusion, Côté J., at paras.
    44 and 45, commented on the overlap in evidence between the two stages of the
    dangerous offender process:

Given that a dangerous offender application is
    typically conducted in one hearing, it would be artificial to distinguish
    evidence that should be considered to designate an offender as dangerous from
    evidence that should be considered to determine the appropriate sentence. All
    of the evidence adduced during a dangerous offender hearing must be considered
    at both stages of the sentencing judges analysis, though for the purpose of
    making different findings related to different legal criteria. During the
    application hearing, the Crown or the accused must present any prospective
    evidence concerning risk, intractability, or treatment programs, including the
    required assessment report addressing prospective treatment options. Many
    aspects of clinical evaluations provide evidence going to both the assessment
    of the offenders future risk and the sentence necessary to manage this risk

The same prospective evidence of treatability
    plays a different role at the different stages of the judges decision-making
    process. At the designation stage, treatability informs the decision on the
    threat posed by an offender, whereas at the penalty stage, it helps determine
    the appropriate sentence to manage this threat. Thus, offenders will not be
    designated as dangerous if their treatment prospects are so compelling that the
    sentencing judge cannot conclude beyond a reasonable doubt that they present a
    high likelihood of harmful recidivism or that their violent pattern is
    intractable. However, even where the treatment prospects are not compelling
    enough to affect the judges conclusion on dangerousness, they will still be
    relevant in choosing the sentence required to adequately protect the public.
    [Citations omitted.]

[46]

It is evident from the foregoing that there is
    significant evidentiary overlap between the two stages of the dangerous offender
    process. If we accede to the Crowns submission, the decision on the first
    stage of the process would be based on evidence that was current as of 2011.
    The second stage would necessarily require fresh evidence that would update the
    court on what has happened since the designation.

[47]

It is possible that a judge conducting a new sentencing
    only hearing would be placed in a position where fresh evidence would lead the
    judge to find that the appellant should not be designated a dangerous offender.
    Yet, the Crowns proposal means that the trial judges designation, which is based
    on evidence that may be out of date, would bind the sentencing judge.

[48]

In my view, the Crown has not established that
    the error was harmless such that no substantial wrong or miscarriage of justice
    would result. Nor has the Crown established that the evidence is so
    overwhelming that a dangerous offender designation would inevitably follow. To
    the contrary, we do not know at this stage what the evidence will be regarding
    the appellant's current and future prospects and cannot say that he would
    inevitably be designated a dangerous offender. Therefore, this is not a case
    for application of the curative proviso.


III.

Disposition

[49]

For the forgoing reasons, I would dismiss the
    conviction appeal. I would grant leave to appeal sentence and, pursuant to s.
    759(3) of the
Criminal Code
, order a new hearing on the issues of the
    appellants designation as a dangerous offender and sentence.

Released: K.M.v.R. December 4, 2019

C.W. Hourigan J.A.

I agree. P. Lauwers J.A.

I agree. K. van Rensburg J.A.


