



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    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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(iii)       REPEALED: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    information that could identify the victim shall not be published in any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. Last, 2017 ONCA 406

DATE: 20170519

DOCKET: C60157

MacPherson, Blair and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Gregory Last

Appellant

Daniel J. Brodsky, for the appellant

Dayna Arron, for the respondent

Heard: May 18, 2017

On appeal from the sentence imposed on January 15, 2013
    by Justice Lynne Leitch of the Superior Court of Justice, sitting without a
    jury.

REASONS FOR DECISION

[1]

We are satisfied that the appeal must be dismissed. The appellant met
    the criteria for a finding that he was a dangerous offender. Under the
    legislation as it then stood, the trial judge had a discretion to decline to
    declare the appellant a dangerous offender even though he met the criteria in
    the legislation. The judge appreciated that she had that discretion and
    declined to exercise it. Her exercise of that discretion is entitled to
    deference in this court.

[2]

In the course of her analysis, the trial judge found there to be a
    pattern of repetitive behaviour containing enough of the same elements of
    unrestrained conduct to predict that the appellant would likely offend in the
    same way in the future. The trial judge therefore found that the Crown had
    proven beyond a reasonable doubt that the appellant engaged in a pattern of
    repetitive behaviour.

[3]

From there the trial judge turned to whether the Crown had proven that
    there had been a failure on the part of the appellant to restrain his
    behaviour. The trial judge held that both the repetitive behaviour together
    with his in-custody conduct demonstrate an on-going inability to restrain his behaviour.

[4]

The trial judge finally considered whether the appellants failure to
    restrain his behaviour created a likelihood of causing death or injury to other
    persons or inflicting severe psychological damage on others. She found all of
    the medical evidence supported such a finding.

[5]

Against this background the trial judge, tracking the wording of s. 753
    (a) (i) of the
Criminal Code
,
said this:

I am satisfied that the Crown has proven beyond a reasonable
    doubt that there is a pattern of repetitive behaviour by [the appellant]
    showing a failure to restrain his behaviour and it has also proved beyond a
    reasonable doubt the likelihood of [the appellant] causing injury to other
    persons through failure in the future to restrain his behaviour.

[6]

The trial judge went further.  She also found that she was satisfied
    beyond a reasonable doubt that the Crown had demonstrated a pattern of
    persistent aggressive behaviour showing a substantial degree of indifference on
    his part respecting the reasonably foreseeable consequences to others of his
    behaviour under s.753 (a) (ii) of the
Code
.

[7]

The trial judge recognized that she was entitled to exercise her
    discretion in favour of designating the appellant as a long-term offender set
    out in s. 753.1 on the basis that there was a reasonable possibility of
    eventual control of the risks in the community. After an extensive review of
    the evidence relevant to this issue the trial judge concluded as follows:

I am not satisfied that the hope that [the appellant] will
    follow through his now stated intention to seek treatment allows me to conclude
    that the public threat can be reduced to an acceptable level through either a
    determinant period of  detention or a determinate period of detention followed
    by a long-term supervision order.

[8]

The trial judge noted that the hope that treatment might be successful
    had existed since 2006. She found that the appellants refusal to accept
    responsibility for his actions, his resistance to the high-intensity treatment
    available to him and his relentless in-custody misconduct illustrated that he
    poses a risk from which the public must be protected.

[9]

In this court, counsel for the appellant challenges the trial judges
    finding of a pattern of behaviour and her rejection of his position that the
    risk he posed could be managed in the community with the aid of a determinate
    sentence or a determinate sentence and a long-term supervision order.

[10]

In her comprehensive reasons, with which we entirely agree, the trial
    judge carefully considered the elements of the test set out in s. 753 of the
Code
and the related evidence. The findings she made, set out above, were open to
    her on this record. Consequently, those findings are entitled to deference. And
    on the basis of the trial judges findings, her determination that the
    appellant should be declared a dangerous offender was reasonable.

[11]

The appeal is therefore dismissed.

J.C. MacPherson J.A.

R.A. Blair J.A.

Gloria Epstein J.A.


