



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    that could identify the victim or a witness shall not be published in any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(iii)     REPEALED: S.C. 2014, c. 25, s. 22(2), effective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    shall not be published in any document or broadcast or transmitted in any way.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. H.A.K., 2015 ONCA 905

DATE: 20151222

DOCKET: C59359

Feldman, Gillese and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

H.A.K.

Appellant

Catriona Verner, for the appellant

Michael Medeiros, for the respondent

Heard: December 2, 2015

On appeal from the conviction entered on October 12, 2011
    and the sentence imposed on June 21, 2013 by Justice Michael F. Brown of the Superior
    Court of Justice, sitting with a jury.

By the Court:

[1]

A jury found the appellant guilty of several offences including counts
    of sexual assault and unlawful confinement. The complainant, who was the only
    witness at trial, had been the appellants domestic partner in a relationship
    punctuated by conflict, separation and reunion.

[2]

At trial, the Crown argued that the complainant was a truthful and
    credible witness who testified in a forthright way. The complainant provided a
    detailed account that resisted protracted cross-examination and established the
    offences alleged. Her testimony furnished the jury with the graphic details of
    events that included acts of forced intercourse that overcame her resistance.
    She readily acknowledged after-the-fact conduct that included expressions of
    affection and communications with the appellant while he was incarcerated
    awaiting trial.

[3]

The defence contended that the complainant was not a credible witness.
    Her testimony was unreliable, riddled with inconsistencies and fuelled by a
    motive to control the appellant and stop him from flirting and cheating on her
    with other women. The sexual activity was consensual, witness the continued
    cohabitation despite what the complainant alleged had occurred over the years.

[4]

After the jury had rendered its verdict, the trial Crown indicated to
    the trial judge that she contemplated an application to have the appellant
    declared a dangerous offender. In due course, the dangerous offender
    application proceeded before the trial judge who found the appellant to be a
    dangerous offender and imposed a sentence of detention in a penitentiary for an
    indeterminate period.

[5]

The appellant appeals the convictions recorded at trial and the
    indeterminate sentence imposed at the conclusion of the dangerous offender
    hearing. Although he contests the trial judges finding that he satisfied the
    requirements under s. 753(1)(a)(i) of the
Criminal Code
, R.S.C., 1985,
    c. C-46, the appellant acknowledges that the evidence adduced at the hearing
    met the statutory requirements for a dangerous offender finding under s.
    753(1)(a)(ii).

THE APPEAL FROM CONVICTION

[6]

The appellant advances three grounds of appeal against conviction. Each
    alleges a deficiency in the charge to the jury. None attracted an objection
    from trial counsel.

[7]

For our purposes, we would paraphrase the grounds of appeal from
    conviction as alleged errors:


i.

in instructing the jury that the Crown was not required to call
    witnesses to corroborate the complainants allegations;


ii.

in inviting the jury to consider as a factor relevant to the absence of
    consent the fact that the complainant was menstruating at the time of the
    alleged sexual assault; and


iii.

in failing to leave the justification of s. 27 of the
Criminal Code
to the jury.

[8]

We do not accede to any of these grounds of appeal, and dismiss the
    appeal from the underlying convictions.

Ground #1: Corroboration of the
    Complainants Evidence

[9]

The appellant contends that the trial judge erred in instructing the
    jury in connection with the burden of proof that the Crown need not call any
    witnesses to corroborate the testimony of the complainant. This instruction,
    the appellant says, was accompanied by an overemphasis on consideration of only
    the evidence adduced and an injunction against speculation about evidence that
    was not given. It had the ineluctable effect of prohibiting the jury from
    considering an absence of evidence as a basis upon which to found a reasonable
    doubt about the appellants guilt.

[10]

For
    several reasons, we reject this ground of appeal.

[11]

First,
    the law imposes no requirement that the complainants evidence be corroborated,
    whether because of the nature of the offence alleged or otherwise. Indeed, it
    would have been legally wrong for the trial judge to have instructed the jury,
    expressly or by necessary implication, that corroboration was required or that
    it was unsafe for the jury to find the appellant guilty of sexual assault in
    the absence of corroboration:
Criminal Code
, s. 274. The evidence of a
    single witness may satisfy the trier of fact beyond a reasonable doubt of the
    guilt of an accused.

[12]

Second,
    to the extent that the appellant advocates use of the term corroboration in
    the instruction, it is a term long since interred and unworthy of exhumation.
    See, for example,
Vetrovec v. R.
, [1982] 1 S.C.R. 811, at p. 831.

[13]

Third,
    in a criminal trial, the Crown has a discretion about whom it will call as
    witnesses. It is obliged to put forward sufficient witnesses so that the
    essential elements of the offences charged can adequately be proven. A decision
    not to call certain witnesses carries the attendant risk of failing to meet the
    burden of proof imposed on it. But that is for the Crown to decide absent
    evidence that the discretion is being abused:
R. v. Yebes
, [1987] 2
    S.C.R. 168, at pp. 190-91;
R. v. Cook
, [1997] 1 S.C.R. 1113, at paras.
    30-31, 54.

[14]

Fourth,
    at least twice in his instructions on the burden and standard of proof, the
    trial judge told the jury that a reasonable doubt could arise from an absence
    of evidence. In his canvass of the position of the defence, the trial judge
    repeated counsels submission about the absence of evidence as a source of
    reasonable doubt about the appellants guilt.

[15]

Fifth,
    the trial judges more specific reference to the jurys obligation to decide
    the case on the evidence adduced at trial and not to speculate about evidence
    that had not been given was unexceptionable. This commonplace direction points
    up the injunction against speculation that is properly the subject of a final
    instruction.

[16]

Finally,
    the absence of confirmation does not appear to have been a principal component
    of the defence position advanced at trial. There, counsel emphasized the
    complainants bias or animus against the appellant for his serial philandering as
    fuelling her fictional account, not the lack of independent confirmation of that
    account.

Ground #2: Non-consent and Menstruation

[17]

The
    second ground of appeal relates to an omission from the trial judges final
    instructions to the jury that is said to amount to misdirection on the issue of
    consent.

[18]

The
    appellant says that the trial Crowns repeated references in her closing
    address to the fact that the complainant was menstruating at the time of the
    alleged sexual assault improperly invited the jurors to conclude that she did
    not consent to the sexual activity because of her menstruation. It was
    incumbent on the trial judge, the appellant contends, to instruct the jury, in
    express terms, that the complainant never asserted that she did not consent
    because she was menstruating, and that the jurors were not entitled to conclude
    that consent had been negated on this basis.

[19]

Three
    reasons persuade us not to give effect to this ground of appeal.

[20]

First,
    we are unable to read the trial Crowns closing address to the jury as
    advancing a link between the complainants menstruation and her lack of consent
    to sexual intercourse with the appellant. The simple juxtaposition of the
    language in consecutive sentences of a closing address does not sustain the
    conclusion asserted by the appellant. Nor did the complainants evidence
    suggest any such cause and effect relationship.

[21]

Second,
    the complainant testified about a violent encounter in which she physically
    resisted the appellants unwanted advances. His accomplishment of his goal
    directly resulted from his overpowering of her resistance. The jury would have
    been under no misapprehension about the basis of her non-consent.

[22]

Third,
    trial counsel for the appellant did not object to the closing address of Crown
    counsel at trial. It would not be unreasonable to conclude that he did not
    consider it to have attributed the absence of consent to the complainants
    menstruation. Nor did trial counsel object to the absence of an instruction of
    the nature now said to constitute non-direction amounting to misdirection.

Ground #3: Failure to Instruct on s. 27 of the
Criminal
    Code

[23]

The
    final ground of appeal against the underlying convictions challenges the
    failure of the trial judge to instruct the jury on the justification for which
    s. 27 of the
Criminal Code
provides:

27. Every one is
    justified in using as much force as is reasonably necessary

(a) to prevent the
    commission of an offence

(i) for which, if it were committed, the person
    who committed it might be arrested without warrant, and

(ii) that would be likely to cause immediate and
    serious injury to the person or property of anyone; or

(b) to prevent anything being done that, on
    reasonable grounds, he believes would, if it were done, be an offence mentioned
    in paragraph (a).

[24]

The
    appellant says that the justification was engaged because he broke the
    complainants cellphone, pushed her and prevented her from leaving the
    apartment solely to prevent her from calling police to make a
false
report against him. His conduct was reasonable in the circumstances, thus
    leaving open the justification afforded by s. 27.

[25]

As
    we will explain, this ground of appeal fails.

[26]

A
    defence, justification or excuse need only be left to the jury if there is an
    air of reality about it. A trial judge must decide whether there is any
    evidence upon which a properly instructed jury, acting reasonably, could
    acquit, if the jury believed the evidence to be true:
R. v. Cinous
,
    [2002] 2 S.C.R. 3, at paras. 49, 82.

[27]

Here,
    there is no evidence that the complainant was about to falsely accuse the
    appellant of a crime he had not committed, and thus that his conduct was
    reasonably necessary to prevent the commission of public mischief under s.
    140(1)(a) of the
Criminal Code
, or that he reasonably believed that
    she was about to do so. The appellant did not testify. The complainants
    speculation about his state of mind at the time was inadmissible on that issue.

[28]

Moreover,
    the offence prevented  public mischief  at least in these circumstances falls
    well short of the standard required by s. 27(a)(ii). That provision requires
    that the offence prevented be one that would be likely to cause immediate and
    serious injury to the person of the appellant or anyones property.

[29]

Finally,
    trial counsel did not suggest the jury should be instructed on this issue.

THE APPEAL FROM THE INDETERMINATE SENTENCE

Ground #1: Designation under s. 753(1)(a)(i)

[30]

The
    trial judge found that the appellant met the requirements of both ss.
     753(1)(a)(i) and 753(1)(a)(ii), designated him a dangerous offender and
    imposed a sentence of detention in a penitentiary for an indeterminate period.

[31]

The
    appellant does not contest his designation as a dangerous offender under s.
    753(1)(a)(ii) of the
Criminal Code
. He submits, however, that the
    finding under s. 753(1)(a)(i) is flawed because the trial judge failed to
    consider the requirement that there be a likelihood of the appellant causing
    death or injury to other persons, or inflicting severe psychological damage on
    other persons, through failure in the future to restrain hisbehaviour.

[32]

Although
    the appellant would have been designated a dangerous offender regardless of
    this ground, we note that in our view the trial judges finding that the
    statutory requirements for a designation under s. 753(1)(a)(i) had been met is
    neither unreasonable nor marred by legal error.

[33]

The
    evidence admitted at the hearing disclosed twenty-two convictions for assault,
    including four of assault causing bodily harm and three of assault with a
    weapon. The victims on more than a dozen occasions were the appellants
    domestic partner. Both psychiatrists who testified at the hearing agreed that
    the appellant represented a high risk for future violent offences, especially
    crimes of domestic violence, and diagnosed the appellant with anti-social
    personality disorder and psychopathy, treatment-resistant personality disorders.

[34]

In
    our view, the finding of dangerous offender status under s. 753(1)(a)(i) is
    unassailable. A pattern of repetitive behaviour, extending over nearly a
    quarter century and proceeding with depressing regularity from one event of physical
    violence to another. The likelihood of causing injury to others, palpable. An
    ingrained history of violence and lack of restraint. Personality disorders
    resistant to treatment. Case closed.

Ground #2: Imposition of an
    Indeterminate Sentence

[35]

The
    appellant further contends that the trial judge erred in imposing a sentence of
    detention in a penitentiary for an indeterminate period. A lesser sentence  a
    fixed term of imprisonment followed by a long-term supervision order (LTSO) 
    would adequately protect the public against the appellants commission of
    murder or a serious personal injury offence (SPIO) in the future. He summons
    the evidence of Dr. Julian Gojer in support of his claim.

[36]

We
    see no reason to depart from the sentencing disposition made by the trial
    judge.

[37]

We
    begin with the observation that the sentencing regime put in place by Part XXIV
    of the
Criminal Code
differs from the general sentencing provisions of
    Part XXIII. Section 753(4.1) requires the imposition of an indeterminate sentence
    for a dangerous offender unless the evidence satisfies the court that some
    lesser measure can be reasonably expected to adequately protect the public
    against the commission by the offender of murder or an SPIO.

[38]

Second,
    the trial judge recited and applied s. 753(4.1) to the evidence adduced at the
    hearing. He imposed no burden on the appellant to justify a lesser sentence. He
    appreciated that the phrase reasonable expectation did not require certainty
    that lesser sentences would adequately protect the public against the
    proscribed risk. He canvassed the relevant evidence and concluded it fell short
    of a reasonable expectation that a lesser sentence could control the risk. This
    finding was well grounded in the evidence.

[39]

Third,
    the evidence on which the appellant relies to support the adequacy of a lesser
    sentence to protect the public is the psychiatric opinion of Dr. Gojer. Dr.
    Gojer testified that the appellants prior history did not involve violence of
    high lethality or serious bodily harm to anyone. But to qualify as an SPIO,
    an offence or potential offence does
not
require the nature or extent
    of violence described by Dr. Gojer:
Criminal Code
, at s. 752, serious
    personal injury offence. It follows that Dr. Gojers opinion cannot support a
    lesser measure as adequately protecting the public within s. 753(4.1).

[40]

Fourth,
    an inquiry into the relative seriousness or gravity of the predicate offence, any other SPIO, or, for that matter, any offence committed by an offender may lend to an assessment of the risk posed by the offender and whether it can be adequately managed by some sentence less than indeterminate detention. But the focus of the inquiry mandated by s. 753(4.1) is the nature and quality of the offender's propensity for committing violent crimes in the future, not the proportionality of the sentence to the relative severity of violent crimes committed in the past:
R. v. Toutsaint
, 2015 SKCA 117, at para. 24.

CONCLUSION

[41]

For
    these reasons, we dismiss the appeals from the underlying convictions and from the
    sentence of indeterminate detention.

Released: December 22, 2015 (KF)

K. Feldman
    J.A.


E.E. Gillese J.A.


David
    Watt J.A.


