



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Williams, 2018 ONCA 437

DATE: 20180510

DOCKET: C61843

Hoy A.C.J.O.,
    MacPherson and Rouleau JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Taj Thaine Williams

Appellant

Wayne Cunningham, for the appellant

Rachel Young, for the respondent

Heard: January 25, 2018

On appeal from the dangerous offender designation imposed
    on November 10, 2014 by Justice T.M. Dunnet of the Superior Court of Justice,
    sitting without a jury, with reasons reported at 2014 ONSC 6418.

Rouleau J.A.:

OVERVIEW

[1]

This appeal concerns the admissibility and proper use of police synopses
    in a dangerous offender application under s. 753 of the
Criminal Code
.
    For the reasons that follow, I conclude that while these synopses are generally
    admissible, they must be treated with caution. In this case, the trial judge
    erred in finding that the police synopses in their entirety had been proven
    beyond a reasonable doubt.

[2]

However, as will be further explained, this error had no impact on the
    outcome. The disputed facts from the synopses played virtually no role in the
    sentencing judges finding that the appellant is a dangerous offender. That
    finding was well-supported by the remainder of the record and I would therefore
    dismiss the appeal under s. 759(3)(b) of the
Criminal Code
.

FACTS

[3]

Mr. Williams was found guilty of assault causing bodily harm and theft.
    The offences took place on May 8, 2011. Mr. Williams followed an 18-year-old woman
    into her own apartment building, took her phone, led her into a stairwell,
    chased her down the hall, and bit her on the forehead. He has Hepatitis C and
    exposed her but did not infect her. The appellant committed the offence after
    an evening of drinking and doing crack.

[4]

The Crown applied under s. 753 of the
Criminal Code
to have Mr.
    Williams declared a dangerous offender and sentenced to detention in a
    penitentiary for an indeterminate period of time.

[5]

In support of its application, the Crown filed multiple volumes of
    documentary evidence including Mr. Williams education record, Childrens Aid
    Society (CAS) records, Ministry of Children and Youth Services records,
    Ministry of Community, Safety and Correctional Services records, Correctional
    Service of Canada (CSC) records and program descriptions, medical records,
    psychological and psychiatric assessments, pre-sentence reports and criminal
    record. The details of the appellants criminal record were set out in
    transcripts of guilty pleas and police synopses, which were included in the records
    tendered by the Crown.

[6]

In addition, Dr. Philip Klassen carried out an assessment under s. 752.1
    of the
Criminal Code
, during which he reviewed Mr. Williams criminal
    record with him. Dr. Klassen wrote an expert report and testified at the
    hearing as an expert in forensic psychiatry including risk assessment.

(a)

Criminal Record

[7]

At the time of sentencing, Mr. Williams was 32 years old and his
    criminal record contained 33 convictions spanning a 13-year period. In her reasons,
    the sentencing judge summarized the various offences committed by Mr. Williams
    prior to the predicate offence. Her description of the offences drew from the
    transcripts of guilty pleas, police synopses and the report of Dr. Klassens
    discussions with Mr. Williams. Focussing primarily on the details of the convictions
    for assault, Mr. Williams convictions can be summarized as follows:

1.

Assault  March 16, 1998 (Youth Court)

[8]

When Mr. Williams was fifteen, he was convicted of assault. The police
    synopsis indicates that Mr. Williams put a fellow student in a headlock while
    another student assaulted the victim. The victims eye was swollen shut and he was
    bleeding heavily. Mr. Williams disputes this, claiming that he warned the
    victim that another student intended to assault him and told him to leave. When
    the other student arrived, Mr. Williams pushed the victim. He was sentenced to
    one year of probation.

2.

Assault  June 30, 1999 (Youth Court)

[9]

The police synopsis indicates that Mr. Williams head-butted the victim,
    another student. The victim sustained a cut to his lip. In Mr. Williams
    version, his head accidentally nudged the victim. He was sentenced to 5 days
    in open custody and probation for 18 months.

3.

Robbery  July 6, 1999 (Youth Court)

[10]

The
    only information on this offence comes from a note from CSC records. The note
    states that Mr. Williams was with a group of males when they decided to rob an
    ice cream vendor. Mr. Williams maintains that he simply ran with a bag of
    cigarettes stolen by his friend.

4.

Assault Causing Bodily Harm  July 28, 1999 (Youth Court)

[11]

The
    police synopsis indicates that the victim was a woman whom Mr. Williams, coming
    at her from behind a hedge, punched numerous times. Mr. Williams admitted to
    Dr. Klassen that he assaulted the victim, but said he did so because she called
    him a nigger. He served 43 days in pre-sentence custody, and received a
    resulting sentence of four months in secure custody and probation for one year.

5.

Possession of Property Obtained by Crime  January 10, 2002

[12]

The
    police synopsis states that Mr. Williams was one of five individuals found in
    possession of merchandise stolen from a shopping mall.

6.

Theft Under $5000 and Fail to Comply with Probation  July 2,
    2002

[13]

There
    was no information on this offence and Mr. Williams did not remember it.

7.

Assault Causing Bodily Harm and Fail to Comply with Probation 
    August 19, 2002

[14]

The
    police synopsis states that Mr. Williams intervened in a fight between a
    co-accused and the victim, who were hitting each other outside a fast food
    restaurant. Mr. Williams hit the victim in the head with a rock. He and the
    co-accused then struck the victim with a closed fist several times. The victim
    suffered a broken nose and a laceration above his eye requiring stitches. Mr.
    Williams admitted to striking the victim, but did not remember using a rock. He
    received a thirty day intermittent sentence and probation for one year.

8.

Public Mischief, Fail to Comply with Recognizance, Fail to Comply
    with Probation, Assault with Intent to Resist Arrest, Uttering Threats  May
    16, 2003

[15]

Based
    on the transcript of Mr. Williams guilty pleas, the sentencing judge found
    that Mr. Williams left a phone message for the victim in which he stated that
    he would shoot her in the face. This was admitted to Dr. Klassen. On another
    occasion, he punched the head of a police officer who was trying to arrest him.
    Mr. Williams stated that he was being wrongly arrested, and pulled his arm away
    from the arresting officer. He did not recall punching the officer. After 31
    days of pre-sentence custody, he received an intermittent sentence of 90 days
    and probation for 18 months.

9.

Assault  August 26, 2003

[16]

The
    police synopsis states that Mr. Williams grabbed an 18-year-old female high
    school student in a bear hug and pulled her toward the backyard of a
    townhouse unit, saying Come with me. I want to show you something. He
    released her when she promised to return that way after school. The transcript
    of the guilty plea indicates that Mr. Williams admitted that he assaulted the
    complainant by grabbing both of her arms from behind. He did not admit, as
    proposed by the Crown, that he attempted to drag the complainant. Mr. Williams
    told Dr. Klassen that the victim had thrown rocks at his house and walked over
    his garden, which she had also done on other occasions in the past. After 58
    days of pre-sentence custody, he received a suspended sentence and probation
    for one year.

10.

Theft, Uttering Threats x 3, Fail to Comply with Probation, Fail
    to Comply with Recognizance, Criminal Harassment, Robbery, Assault Causing
    Bodily Harm, Attempt Theft, Mischief x 3, Fail to Comply with Probation 
    October 25, 2004

[17]

According
    to the transcript of the guilty plea, Mr. Williams telephoned the current
    boyfriend of his former girlfriend on three occasions to threaten him. The
    threats included putting a gun in his face and shooting him. Mr. Williams admitted
    to these events and stated that he was sorry for what he had done.

[18]

On
    another occasion, Mr. Williams admitted to having head-butted a man because he
    feared he was going to be rushed by a group of persons.

[19]

The
    other offences are also summarized. In total Mr. Williams was sentenced to
    three years in the penitentiary and three years of probation.

11.

Robbery × 2, Unlawfully in Dwelling House  February 22, 2007

[20]

On
    the first robbery charge, the transcript of the guilty plea states that Mr.
    Williams grabbed a womans purse after she made a withdrawal at an ATM. The
    other robbery was also purse snatching. After this last robbery, Mr. Williams forced
    entry into an apartment and hid in a closet.

12.

Possession of a Schedule II Substance  September 25, 2008

[21]

CSC
    records show that Mr. Williams was found in possession of three grams of
    marihuana by correctional officers.

13.

Assault Causing Bodily Harm (Predicate Offence) and Theft  June
    25, 2013

[22]

Mr.
    Williams was convicted following a trial by judge alone for the predicate
    offence of assault causing bodily harm, and for theft. The trial judge found
    that Mr. Williams bit the victim, an eighteen-year-old woman he did not know,
    in the forehead after he took her cellphone.

(b)

Assessment of Mr. Williams while in custody

[23]

The
    sentencing judge also considered Mr. Williams provincial correctional records
    that described a troubled childhood marked by violence and substance abuse.
    They indicated that he had anger issues, was known to lie and that he assaulted
    another inmate while incarcerated in 2010.

[24]

The
    CSC records describe Mr. Williams as minimizing the severity of his actions and
    posing a high risk of recidivism. Counselling for substance addiction was
    recommended, but it appears that this did not materialize. For the most part, Mr.
    Williams did not cooperate in the anger management and cognitive skills programming
    offered to him.  Throughout, he continued to minimize his actions.

[25]

A
    psychological risk assessment report from the Millhaven Assessment Unit, dated
    December 29, 2004, reported as follows under the heading Clinical
    Impressions:

Mr. [Williams] glib affect, his
    off-handed comments about being capable of doing more to defend himself
    during a confrontation, and his lengthy history of assaults and harassment
    charges are indicative of an evasive, manipulative style, that is compounded by
    a lack of impulse control. Mr. [Williams] expression of remorse for his
    victims was superficial and not a reflection of shame or desire to change
    himself.

[26]

A
    psychological assessment report prepared at the Kingston Penitentiary on
    November 16, 2007 states:

Mr. [Williams] conviction for assault cause bodily harm from
    1999 and his assault conviction from 2003 both involve what appear to be young
    females as victims being forcefully taken to relatively secluded areas and
    subsequently physically assaulted. It is uncertain what may have transpired had
    the victims not resisted as strongly as they did. It does not appear that
    robbery was the purpose of these assaults, as there is no mention of this in
    the official version of the offences. This leaves limited options as to what he
    may have been trying to accomplish.

[27]

When
    Mr. Williams was at the Keele Community Correctional Center in September 2009,
    he was interviewed by a psychiatrist, Alina Iosif. She was of the opinion that
    Mr. Williams history and presentations were consistent with a diagnosis of
    significant psychopathy and antisocial personality disorder. He displayed no
    remorse, was glib, appeared manipulative and lacked empathy and insight into
    his personality characteristics and behaviour. She was of the view that his
    risk to reoffend, and in particular to become violent or aggressive, was very
    high.

[28]

On
    November 25, 2009, a psychologist, Rafael Bergamasco, described Mr. Williams
    risk level as follows:

Risk for reactive/irritable
    violence (mostly emotional, mostly impulsive, follows a need to express a
    state/ desire, usually triggered by a perceived insult, disproportionate to
    external trigger). High, including when dealing with his father and in intimate
    relationships.

(c)

Report of Dr. Klassen

[29]

Central
    to the sentencing judges decision was the report and testimony of Dr. Klassen.
    He concluded that Mr. Williams had severe personality disorder and met DSM-5
    criteria for antisocial personality disorder with accompanying narcissistic
    personality traits. In Dr. Klassens opinion alcohol and cocaine use disorders
    were also present.

[30]

As
    for risk assessment, Dr. Klassen was of the view that testing showed
    consistently high results for reoffending and violent recidivism. The results
    were summarized by the sentencing judge as follows:

When Dr. Klassen applied the Psychopathy Checklist-Revised
    (PCL-R), his score for [Mr. Williams] was 35 out of a possible 40 points. That
    score corresponds to the 98
th
percentile of a referenced sample of
    North American offenders. A score of 35 predicts significant difficulties with
    both community supervision and treatment responsiveness.

Dr. Klassens application of the VRAG yielded a score of 29,
    which placed [Mr. Williams] at or above the 99
th
percentile of
    randomly selected members of that group. According to Dr. Klassen, 100% of
    individuals with similar scores committed further violent offences over ten
    years of opportunity in the community. Dr. Klassen testified that this figure
    may represent some overestimate of risk, because it is based on older
    statistics, and recidivism rates are generally lower today. This instrument has
    also been shown to predict domestic violence.

Finally, Dr. Klassen assessed [Mr.
    Williams] with the Historical Risk Management (HCR-20) test. [Mr. Williams]
    scored 33 points out of a possible 40. According to Dr. Klassen,
    similarly-scoring individuals from a CSC sample reoffended at a rate of 93%
    over approximately 7.5 years in the community. He testified that the HCR-20
    score may also overestimate the risk of reoffending, because base rates of
    violent behaviour were higher when the models were created.

[31]

These
    consistently high scores led Dr. Klassen to conclude that there was a high
    likelihood of Mr. Williams committing multiple offences in the future, and a
    probability of violent re-offence. As a result, Dr. Klassen believed that the
    test for a dangerous offender finding may be met.

[32]

As
    for risk management, Dr. Klassen opined that any violent reoffending would manifest
    in confrontational acquisitive criminality, opportunistic approaches with an adult
    (and perhaps stranger) female, or in an intimate relationship. Any release in
    the foreseeable future would pose a very high risk of recidivism. He opined
    that from a purely psychiatric perspective there was unlikely to be an
    effective cure for Mr. Williams behaviour and that there is no psychiatric
    evidence of reasonable possibility of eventual control of the risk in the
    community.

(d)

The sentencing judges decision

[33]

Relying
    on
R. v. Judge
, 2013 ONSC 6803, [2013] O.J. No. 5102, the sentencing
    judge was satisfied that the CAS, CSC and institutional records, which included
    police synopses, were admissible because they were prepared contemporaneously
    by professionals carrying out important and responsible public duties. The sentencing
    judge rejected Mr. Williams submission that all police synopses are
    unreliable. Rather, she was of the view that they should be approached with
    caution and assessed on a case-by-case basis.

[34]

The
    sentencing judge noted that, while Mr. Williams did not dispute any of his
    convictions, he disagreed with certain parts of the police synopses that
    described why  and, to some extent, how some of the offences transpired. She
    considered the synopses in the context of the other evidence led at the
    hearing, which revealed Mr. Williams history of lying and minimizing his
    responsibility for the offences he committed and that many of the offences were
    committed while he was under the influence of alcohol and cocaine. In the
    sentencing judges view, Mr. Williams account of the circumstances of the
    various convictions, as conveyed to Dr. Klassen, defied belief. In particular,
    the sentences imposed for the convictions suggested that the court could not
    have accepted his version of events. Weighing all of this, she then concluded
    as follows:

Accordingly, I am satisfied that
    the facts in the police synopses have been proven beyond a reasonable doubt and
    Dr. Klassens opinion can be given considerable weight.

[35]

The
    sentencing judge then proceeded to consider whether the Crowns evidence demonstrated
    a pattern of behaviour as defined in s. 753(1)(a).  She noted that while the
    pattern of behaviour that includes the predicate offence need not be the same
    in every detail, it must involve enough of the same elements of unrestrained
    dangerous conduct to be able to predict that the offender will likely offend in
    the same way in the future:
R. v. Hogg
, 2011 ONCA 840, 287 O.A.C. 82
,
at para. 40. She also observed that [s]imilarity can be found in the
    types of offences or in their circumstances:
R. v. Akbar
, 2014 ONSC
    3700, [2014] O.J. No. 2961, at para. 301.

[36]

The
    sentencing judge found that a pattern of repetitive behaviour within the
    meaning of s. 753(1)(a)(i) and persistent aggressive behaviour within the
    meaning of s. 753(1)(a)(ii) had been proven beyond a reasonable doubt. She
    noted that the predicate offence was Mr. Williams fourth conviction for
    assault causing bodily harm where all victims were strangers to Mr. Williams. Three
    of the four women assaulted were in high school. Another common element was
    that Mr. Williams targets the head: headlock in 1998, head-butt in 1999, hitting
    the victim in the head with a rock in 2002, threatening to shoot someone in the
    face in 2003, punching a police officers head in 2003, threatening to point a
    gun at someones face in 2004, head-butt in 2004 and biting the victims face
    in the predicate offence in 2011.

[37]

The
    sentencing judge went on to find that, within the meaning of s. 753(1)(a)(i), there
    was a likelihood that Mr. Williams would cause death, injury, or severe
    psychological damage to other persons through his failure in the future to
    restrain his behaviour. This conclusion was based on Dr. Klassens evidence
    that there was a high risk of violent recidivism, as well as Mr. Williams
    criminal history, failure to abide by court orders, minimization of his
    offending behaviour and lack of interest in treatment or work. The sentencing
    judge also found that Mr. Williams is substantially indifferent to the
    reasonably foreseeable consequences of his actions on others, meeting the
    requirements of s. 753(1)(a)(ii).

[38]

As
    a result, the sentencing judge concluded that Mr. Williams constitutes a threat
    to the life, safety or physical or mental well-being of other persons under s.
    753(1)(a). The dangerousness criteria were therefore satisfied and Mr. Williams
    was designated a dangerous offender.

[39]

The
    sentencing judge then turned to the issue of the appropriate sentence. Pursuant
    to s. 753(4.1), the court shall sentence a dangerous offender to indeterminate
    detention in a penitentiary, unless there is a reasonable expectation that a
    lesser sentence will adequately protect the public against the commission by
    the offender of a murder or serious personal injury offence.

[40]

The
    sentencing judge concluded that any release to the community in the foreseeable
    future would pose a very high risk of recidivism. In the absence of psychiatric
    evidence of possible control of this risk in the community, a determinate
    sentence would not adequately protect the public. She therefore imposed an
    indeterminate sentence for the offence of assault causing bodily harm. For the
    offence of theft, she sentenced Mr. Williams to six months concurrent.

ISSUES

[41]

There
    are five issues raised on appeal:

1.

Did the
    sentencing judge err in admitting the police synopses?

2.

Did the
    sentencing judge err in finding that the facts contained in the synopses were
    proven beyond a reasonable doubt?

3.

Did the
    sentencing judges reliance on the disputed facts contained in the synopses
    taint the dangerous offender finding?

4.

Should fresh
    evidence be admitted?

5.

What is the
    appropriate remedy?

ANALYSIS

[42]

In
    instances such as the present case, the Crown will seek to admit and rely upon
    police synopses to establish the factual basis of prior convictions in support
    of a dangerous offender application. This is often because transcripts of those
    prior trials, pleas and sentencing hearings may no longer be available or do
    not contain sufficient detail to permit a proper analysis of the offenders
    conduct. However, police synopses are often prepared at the time of arrest, or
    in the early stages of a criminal prosecution. A fuller appreciation of the
    facts often emerges later, such that the facts set out in the synopses will
    often diverge from the facts proven at trial or admitted on a guilty plea:

R. v. Gibson
, 2012 ONSC 5527, [2012] O.J. No. 4612 (admissibility
    ruling), at para. 8;
R. v. Gibson
, 2013 ONSC 589, [2013] O.J. No. 490 (dangerous
    offender designation), at para. 32;
R. v. Keizs
, 2013 ONSC 4322,

[2013] O.J. No. 3572, at para. 41, affd 2015 ONCA
    905, 342 O.A.C. 79
.

[43]

Mr.
    Williams argues that it was an error for the sentencing judge to have admitted
    the various police synopses, and that the sentencing judge further erred in
    finding their contents to be proven beyond a reasonable doubt. Without the
    synopses, which were relied upon by the sentencing judge in identifying the
    requisite pattern of behaviour under s. 753(1)(a) and by Dr. Klassen in writing
    his report, the sentencing judge could not have concluded that the statutory
    elements of dangerousness had been satisfied.

[44]

Mr.
    Williams relies on
R. v. J.K.L.
, 2012 ONCA 245, 290 O.A.C. 207, at
    paras. 88-94, leave to appeal refused, [2013] S.C.C.A. No. 116, which was not
    placed before the sentencing judge by trial counsel. In
J.K.L.
, this
    court expressed the view that it is difficult to conclude that a Crown synopsis,
    standing alone, is an accurate reflection of events. The court noted that the
    sources of information contained in the synopsis may not be specified and an
    assessment of the reliability and trustworthiness of the information contained
    within may be difficult or impossible.

[45]

I
    agree that there are issues respecting the reliability of information contained
    in synopses, be they labelled as police or Crown synopses. However, I do not
    agree with Mr. Williams submission that synopses are wholly inadmissible at a
    sentencing hearing. As further explained below, the court must take a generous
    approach to admissibility in a dangerous offender proceeding. However, once the
    evidence has been admitted, the court must then grapple with the appropriate weight
    to be accorded to the information contained within the synopses. In the present
    case, the sentencing judge properly admitted the police synopses, but erred in
    finding that their contents had been proven beyond a reasonable doubt. However,
    I conclude that there is no reasonable possibility that this error had any impact
    on the outcome. I would therefore dismiss the appeal.

1.

Did
    the sentencing judge err in admitting the police synopses?

[46]

In
    my view, the sentencing judge correctly admitted the police synopses tendered
    in the dangerous offender proceeding.

[47]

It
    is well established that the strict rules of evidence applicable at trial do
    not govern sentencing proceedings. Once guilt has been established beyond a reasonable
    doubt, the task of the sentencing judge is to tailor a sentence that is
    appropriate to the particular circumstances of each offender. For that reason,
    the sentencing judge must have the fullest possible information concerning the
    background of the [offender]:
R. v. Gardiner
, [1982] 2 S.C.R. 368
, [1982] S.C.J. No.
    71, at p. 414.

[48]

A
    dangerous offender proceeding is part of the sentencing process and is governed
    by the same sentencing principles, objectives and evidentiary rules:
R. v.
    Boutilier
, 2017 SCC 64, [2017] 2 S.C.R. 936, at para. 53;
R. v.
    Johnson
, 2003 SCC 46, [2003] 2 S.C.R. 357, at para. 23;
R. v. Jones
, [1994] 2 S.C.R. 229
,
[1994]

S.C.J. No. 42, at pp. 279, 294;
R. v. Ziegler
, 2012 BCCA 353,
    [2012] B.C.J. No. 1755, at para. 7, leave to appeal refused, [2014] S.C.C.A.
    No. 491. As explained by Gonthier J. in
Jones
, at p. 290, the
    importance of the sentencing judge having access to the fullest possible
    information about the offender is heightened in the context of a dangerous
    offender application:

In the case of dangerous offender proceedings, it is all the
    more important that the court be given access to the widest possible range of
    information in order to determine whether there is a serious risk to public
    safety. If there is, the dangerous offender sentencing allows the justice
    system to more precisely tailor the actual time served by the offender to the
    threat that he poses to society. The overriding aim is not the punishment of
    the offender but the prevention of future violence through the imposition of an
    indeterminate sentence.

[49]

As
    with any sentencing hearing, hearsay evidence is admissible so long as it is
    found to be credible and trustworthy:
Gardiner
, at p. 414. This
    common law principle is codified in s. 723(5) of the
Criminal Code
.
    Character evidence is also specifically admissible in a dangerous offender proceeding
    pursuant to s. 757 of the
Criminal Code
.

[50]

I
    do not, as suggested by Mr. Williams, read
J.K.L.
as suggesting that
    police synopses are wholly inadmissible. Rather, in the passage quoted by Mr.
    Williams, the court in
J.K.L.
highlights the reliability threshold
    that evidence must meet in order to be relied upon, and the concerns that arise
    in this regard due to the nature of police synopses. I agree with those
    concerns and address them further below.

[51]

In
Gibson
(admissibility ruling)
,
    the sentencing judge admitted CAS and correctional records in an advance
    admissibility ruling prior to a dangerous offender hearing. He was satisfied
    that the records, which included police synopses, met the credible and
    trustworthy threshold. For the same reasons, I am satisfied that it was
    appropriate for the sentencing judge to admit the police synopses.

2.

Did
    the sentencing judge err in finding that the facts contained in the police
    synopses were proven beyond a reasonable doubt?

[52]

In
Gibson
(admissibility ruling), the sentencing judge cautioned,
    however, that portions of certain records, such as the police synopses
    contained in the correctional records, may be less reliable. For that reason,
    when the admissible evidence is subsequently considered on the merits, the court
    must carefully consider the weight to be accorded to those portions of the
    records.

[53]

Despite
    the broad approach to admissibility at the sentencing stage, it is not the case
    that the offender is deprived of all protections:
Jones
, at p. 292. The
    Crown must prove disputed aggravating facts beyond a reasonable doubt:
Jones
,
    at p. 292, quoting
Gardiner
, at p. 414; see also s. 724(3)(e) of the
Criminal
    Code
. The corollary to this principle in a dangerous offender proceeding
    is that the Crown must prove the statutory elements of dangerousness beyond a
    reasonable doubt: Joseph A. Neuberger,
Assessing Dangerousness: Guide to
    the Dangerous Offender Application Process
, loose-leaf
(Toronto: Thomson Reuters Canada, 2017), at
    pp. 6-5 to 6-6;
Boutilier
, at para. 36, n. 1;
R. v. Jackson
(1981)
, 61 C.C.C. (2d) 540 (N.S.C.A.),
    at p. 544, leave to appeal refused, [1982] S.C.C.A. No. 423;
Ziegler
, at
    para. 6.

[54]

As
    described above, the sentencing judge accepted the entire contents of the
    police synopses as proven beyond a reasonable doubt. In my view, this was an
    error. The sentencing judge ought not to have treated this as an all or nothing
    decision. The synopses were properly admitted but the contents had to be
    considered carefully before being relied upon. Some basic facts set out in the
    synopses can be used for the purposes of establishing details such as dates and
    ages:
Gibson
(admissibility ruling), at para. 8;
Gibson
(dangerous offender designation), at para. 34. Other facts, where support can
    be found in other parts of the record, can likewise be relied upon:
Gibson
(dangerous offender designation), at para. 34. This does not, however, lead to
    the conclusion that the entire contents of the document can be taken as proven
    beyond a reasonable doubt.

[55]

Due
    to the evidentiary frailties inherent in the nature of a police synopsis,
    caution is required when the sentencing judge is considering whether the
    contents of those records can, along with the rest of the record, provide the
    basis for a finding that the statutory elements of dangerousness have been
    proven beyond a reasonable doubt. The incidents set out in the synopses must be
    considered in light of all of the evidence led at the hearing. Certain parts of
    a synopsis may find support and confirmation, either directly or by reasonable
    inference, in other parts of the record. If so, it is open to the sentencing
    judge to rely on those incidents as evidence in support of a finding that the
    statutory elements of dangerousness, such as the requisite pattern of behaviour,
    are made out.

[56]

To
    provide one example, the police synopsis of Mr. Williams 1999 assault states
    that Mr. Williams head-butted the complainant. The incident resulted in a youth
    court conviction and a sentence of five days in open custody and 18 months
    probation was imposed. In his discussions with Dr. Klassen, Mr. Williams
    admitted that his head nudged the complainants face but he maintained that
    this was accidental. These pieces of information, together, allowed the
    sentencing judge to reasonably infer that the police synopsis correctly
    described the offence as involving Mr. Williams head-butting the complainant. As
    such, this portion of the synopsis was properly considered by the sentencing
    judge in assessing whether a pattern of behaviour was established.

3.

Did the sentencing judges reliance on the disputed facts contained in
    the synopses taint the dangerous offender finding?

[57]

As
    I will explain, however, the error committed by the sentencing judge in
    concluding that the entirety of the police synopses had been proven beyond a reasonable
    doubt did not seriously undermine Dr. Klassens opinion or the sentencing judges
    finding that Mr. Williams was a dangerous offender. This is because unsupported
    statements contained in the police synopsis played virtually no role in Dr.
    Klassens and the sentencing judges reasoning.


i.

Dr. Klassens opinion

[58]

Mr.
    Williams argues that the sentencing judges error in her treatment of the
    police synopses infected her assessment of the weight to be given to Dr.
    Klassens opinion. As a result, it cannot be relied on in support of the dangerous
    offender finding.

[59]

I
    disagree. In his testimony at the hearing, Dr. Klassen acknowledged that in
    preparing his report he considered information contained in the police synopses
    and assumed that there was no significant difference between what was contained
    therein and what was agreed to in court at the time the convictions were
    entered. He explained, however, that he proceeded on the basis that the judges
    reasons or the transcript of the plea, if available, trumped what might be
    contained in the synopsis.

[60]

Dr.
    Klassen also considered the information he received from Mr. Williams concerning
    each offence. In his report, Dr. Klassen recites Mr. Williams version of the
    events underlying each conviction. Where Mr. Williams explanation of the
    events minimized the offences to the point that the conduct would not be viewed
    as criminal, Dr. Klassen discounted Mr. Williams description because it could
    not have resulted in the conviction that was entered.

[61]

Mr.
    Williams only explicitly raised the issue of the admissibility and reliability
    of the facts contained in the police synopses the evening before the dangerous
    offender hearing began. Dr. Klassens report had already been finalized and
    could not be changed. The Crown asked Dr. Klassen during his evidence in chief to
    consider what the impact on his opinion would be if the disputed facts
    contained in the police synopses (the Disputed Facts) were disregarded. Dr.
    Klassen identified where in his report the Disputed Facts were taken into
    account. He then explained that, even without regard to the Disputed Facts, his
    opinion as to dangerousness would not change.

[62]

Dr.
    Klassen was also asked to consider whether Mr. Williams scores on the various actuarial
    risk assessment instruments would be significantly different if the Disputed
    Facts were disregarded. He opined that this would not have a significant impact
    on his scoring. He explained that the Disputed Facts in the police synopses that
    were not substantially confirmed by other evidence had only minor significance.

[63]

As
    a result, the record fully supports the sentencing judges conclusion that Dr.
    Klassens opinion warranted considerable weight and this conclusion is
    unaffected by the error in how she treated the police synopses.


ii.

Pattern of behaviour

[64]

Mr.
    Williams argues that even if the police synopses were admissible and portions
    of these could be relied on by the sentencing judge, the sentencing judges
    reliance on the Disputed Facts tainted her reasoning and, quite apart from the
    impact on Dr. Klassens opinion, materially contributed to the dangerous
    offender finding.

[65]

As
    explained earlier, I agree with Mr. Williams that the sentencing judge
    committed a legal error in finding that the police synopses in their entirety,
    including the Disputed Facts, were proven beyond a reasonable doubt. I also
    agree that because of this error, some use was made by the sentencing judge of
    the Disputed Facts in concluding that a pattern existed. However, I do not
    agree that the use she made of these Disputed Facts had a material impact. As
    will be further explained, these errors played only a minor role in her
    reasoning process. I have concluded that the error was harmless in that it occasioned
    no substantial wrong or miscarriage of justice. There is no reasonable
    possibility that the verdict would have been any different had the error of law
    not been made:
R. v. Sipos
, 2014 SCC 47, [2014] 2 S.C.R. 423, at
    para. 24;
Johnson
, at para. 49.

[66]

Mr.
    Williams was found to be a dangerous offender pursuant to s. 753(1)(a), which provides
    as follows:

753(1)
On application made under this
    Part after an assessment report is filed under subsection 752.1(2), the court
    shall find the offender to be a dangerous offender if it is satisfied

(a)
that the offence for which the offender has been convicted is a
    serious personal injury offence described in paragraph (a) of the definition of
    that expression in section 752 and the offender constitutes a threat to the
    life, safety or physical or mental well-being of other persons on the basis of
    evidence establishing


(i)
a pattern of repetitive behaviour by the offender, of which the
    offence for which he or she has been convicted forms a part, showing a failure
    to restrain his or her behaviour and a likelihood of causing death or injury to
    other persons, or inflicting severe psychological damage on other persons,
    through failure in the future to restrain his or her behaviour,

(ii)
a pattern of persistent aggressive behaviour by the offender, of which
    the offence for which he or she has been convicted forms a part, showing a
    substantial degree of indifference on the part of the offender respecting the
    reasonably foreseeable consequences to other persons of his or her behaviour,
    or

(iii)
any behaviour by the offender, associated
    with the offence for which he or she has been convicted, that is of such a
    brutal nature as to compel the conclusion that the offenders behaviour in the
    future is unlikely to be inhibited by normal standards of behavioural restraint;
    or

[67]

To
    obtain a designation of dangerousness pursuant to this section, the Crown must
    prove two elements. First, the Crown must prove that the predicate offence is a
    serious personal injury offence. This criterion is an objective one. There is
    no dispute that the predicate offence committed by Mr. Williams is a serious
    personal injury offence.

[68]

The
    second element the Crown must establish is that the offender represents a
    threat to the life, safety or physical or mental well-being of other persons.
    The requisite threat must be found on the basis of evidence establishing beyond
    a reasonable doubt the presence of one of three violent patterns of conduct
    listed in s. 753(1)(a)(i)-(iii). In the present case the sentencing judge found
    that the Crown had established that the pattern of conduct listed in both ss.
    (i) and (ii) had been established.

[69]

The
    sentencing judge noted three similarities between the offences on Mr. Williams
    criminal record: three of the four victims of assault causing bodily harm were
    young women in high school, all four were strangers to Mr. Williams, and, more
    generally, Mr. Williams targeted the head. Mr. Williams argues that these three
    similarities were based in large measure on Disputed Facts and on other errors
    committed in the sentencing judges assessment of the evidence.

[70]

Because
    of these errors, Mr. Williams argues that the sentencing judges dangerous
    offender finding is wrong or, at a minimum, unsafe, and that a new sentencing
    hearing is required.

[71]

I
    disagree. First, I do not accept that the sentencing judges finding of the requisite
    pattern rests exclusively on the three similarities listed, nor that an error
    in her findings in that regard would, as suggested by the appellant,
    necessarily be fatal. Although the sentencing judge explicitly enumerated three
    specific similarities between the offences, her finding of the requisite pattern
    was properly made and ought to be assessed taking into account the totality of
    the record. That record includes the overall number and violent nature of Mr.
    Williams convictions for assaults and threats, together with his reactive
    anger and record of impulsive violence, and Dr. Klassens opinion that he posed
    a high risk of violent recidivism.

[72]

However,
    given that I have concluded that the three points of commonality identified by
    the sentencing judge are made out, even without considering the Disputed Facts
    taken from the police synopses, I need not pursue this point further. I turn
    now to the three similarities and deal with each in turn.

(a)

Did Mr. Williams target the head of his victims?

[73]

The
    sentencing judge found that a common element of Mr. Williams assaultive and
    threatening behaviour is that he targets the victims head. The sentencing
    judge noted this and then listed eight examples drawn from the various records
    of Mr. Williams convictions.

[74]

Mr.
    Williams submits that if the Disputed Facts are disregarded, four of the eight
    examples cited by the sentencing judge cannot be relied upon as contributing to
    the pattern of targeting the head: the 1998 and 1999 simple assaults, the 2002
    assault causing bodily harm and the 2003 uttering threat.

[75]

The
    Crown acknowledges that in one instance, the 1998 simple assault, the trial
    judges finding that the assault involved Mr. Williams putting the victim in a
    headlock cannot be supported without reference to the Disputed Facts. It was
    drawn solely from the police synopsis and was not corroborated elsewhere in the
    record, nor was it admitted by Mr. Williams. I agree, however, with the Crowns
    submission that the other three examples that Mr. Williams challenges are
    supported by the record even without reference to the Disputed Facts.

[76]

With
    respect to the 1999 assault, Mr. Williams admitted to Dr. Klassen that his head
    contacted the victims face. As I have explained earlier, it was open to the
    sentencing judge to rely on this admission, together with the fact of Mr.
    Williams conviction and the severity of the sentence imposed  5 days open
    custody and 18 months probation for a youth conviction  to reject Mr.
    Williams statement that the head contact was accidental and to then conclude
    that the assault for which he was convicted involved the victims head.

[77]

As
    for the 2002 assault causing bodily harm, the police synopsis referred to Mr.
    Williams hitting the victims head with a rock. Mr. Williams told Dr. Klassen
    that he recalled hitting the victim. He did not deny targeting the head, but said
    that the victim fell and hit his head. He could not recall using a rock. However,
    the offence itself was admitted and Mr. Williams admission nevertheless refers
    to the victims head. Mr. Williams history of minimizing his offences is
    well-documented and this explanation could be read as an attempt to explain
    away the victims injuries, namely, a broken nose and laceration above his eye
    that required stitches. It was reasonable for the sentencing judge to infer
    that, whether or not a rock was used, Mr. Williams caused injuries to the
    victims head.

[78]

The
    final challenged incident is the 2003 threat to shoot the victim in the face.
    Mr. Williams acknowledged the threat to shoot, but submits that the fact that
    the head was targeted in the threat came solely from the police synopsis. That
    is not the case. As was pointed out by the Crown, Mr. Williams lawyer at the
    time of the guilty plea admitted the facts put forward by the Crown. These
    facts included a phone message saying Ill shoot you right in the fucking
    face. I will merc you with a 35. Mr. Williams acknowledged the merc
    statement to Dr. Klassen.

[79]

In
    fact, there is an additional instance of targeting the head that was not listed
    by the sentencing judge. Mr. Williams lawyer at the above-noted 2003 guilty
    plea also admitted to a separate phone call the following day, during which Mr.
    Williams told the same complainant over the phone that he would kick her in
    the fucking head.

[80]

As
    a result, seven of the eight examples given by the sentencing judge of Mr.
    Williams targeting the head are supported by the record without reliance on the
    Disputed Facts.

(b)

Were the victims of the assaults causing bodily harm strangers to Mr.
    Williams?

[81]

The
    sentencing judge stated that another common feature was that all four of the assaults
    causing bodily harm were committed against strangers. Mr. Williams argues that
    in his conversation with Dr. Klassen, he denied that two of the victims were in
    fact strangers. Mr. Williams explained that he had previously seen the victim
    of the 1999 assault causing bodily harm on the bus. He acknowledged, however,
    that they had never spoken. The second case referenced by Mr. Williams is the
    victim of the 2003 simple assault. I note first that this is not one of the
    assault causing bodily harm convictions referred to by the sentencing judge. In
    any event, even if it were one of the four referenced by the sentencing judge, it
    was not unreasonable for the sentencing judge to infer, on either account of
    the facts, that Mr. Williams did not have any real prior relationship with the
    victim. Mr. Williams told Dr. Klassen the victim went to his high school, and
    that he had likely spoken with her briefly, previously. The transcript of the
    guilty plea indicates that the Crown stated that they had no prior relationship
    but acknowledged that they had seen each other prior to the incident. Counsel
    for Mr. Williams stated that they knew each other because they went to the same
    school and walked home not together, but along the same route.

[82]

The
    qualifications put forward by Mr. Williams, even if accepted, do not detract in
    any significant way from the underlying point made by the sentencing judge. Mr.
    Williams was prone to excessive physical response reactions to people,
    essentially strangers, who make him angry.

(c)

Were three out of four victims women in high school?

[83]

The
    sentencing judge also noted that three of the four victims of assault causing
    bodily harm were high school-aged women. Mr. Williams submits that the
    sentencing judge erred and only two of the female victims, the target of the
    1999 assault causing bodily harm and the predicate offence, were in fact known
    to be in high school. The other two victims of assault causing bodily harm were
    men.

[84]

Mr.
    Williams is correct and the sentencing judge was either mistaken or, more
    likely, misspoke. When stating that there were three high school-aged women,
    the sentencing judge may well have counted the woman who was the victim of the
    2003 simple assault. I view this error as having little significance. The fact
    remains that this commonality was present in several assaults, whether the
    conviction that ultimately resulted was for simple assault or assault causing
    bodily harm.

[85]

As
    a result, therefore, I see no basis to interfere with the sentencing judges
    conclusion that Mr. Williams assaulting and threatening behaviour displays a
    pattern of behaviour that meets the requirements of s. 753(1)(a)(i) and (ii).

4.

Should
    fresh evidence be admitted?

[86]

Mr.
    Williams seeks to admit fresh evidence to show how he has been progressing in
    the programs he has taken since being sentenced.

[87]

Despite
    the more flexible evidentiary approach at the sentencing stage, the
Palmer
test for the admissibility of fresh evidence nevertheless applies:
Sipos
,
    at para. 29. The material proposed by Mr. Williams post-dates the sentencing
    hearing and in my view does not meet the
Palmer
test. Nor is there a link
    between the legal error committed by the sentencing judge and the proposed
    fresh evidence:
Sipos
,
at paras. 36-40. The sentencing judges erroneous approach to the police
    synopses is unrelated to any progress made by Mr. Williams while in detention,
    which is a matter for the probation authorities. As a result, I would not admit
    this fresh evidence.

5.

What is the
    appropriate remedy?

[88]

For
    the reasons set out above, the sentencing judge erred in concluding that the contents
    of the police synopses in their entirety were proven beyond a reasonable doubt.
    However, it is well established that although the curative proviso under s. 686(1)(b)(iii)
    is not directly applicable to appeals from dangerous offender designations, a
    court can, by analogy, dismiss the appeal under s. 759(3)(b) despite the
    presence of an error of law:
Johnson
, at paras. 48-49. It can do so
    only if the error of law did not occasion a substantial wrong or miscarriage of
    justice and there is no reasonable possibility that the verdict would have been
    any different had the error not been made.

[89]

There
    is a heavy burden on the Crown to show that the error did not have any impact
    on the outcome:
Sipos
, at para. 35. I conclude that the Crown has met
    that burden. There is no reasonable possibility that the result would have been
    different had this error not been made. As I have explained, the legal error
    played virtually no role in the sentencing judges analysis. The conclusion
    that Mr. Williams is a dangerous offender was amply supported by the remainder
    of the record.

DISPOSITION

[90]

For
    these reasons, I would dismiss the appeal.

Paul Rouleau J.A.

I agree Alexandra
    Hoy J.A.

I agree J.C.
    MacPherson J.A.

Released: May 10, 2018


