



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    that could identify the victim or a witness shall not be published in any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(iii)     REPEALED: S.C. 2014, c. 25, s.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    the victim shall not be published in any document or broadcast or transmitted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. Radcliffe, 2017 ONCA 176

DATE: 20170302

DOCKET: C52894

Watt, Pepall and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Frederick M. Radcliffe

Appellant

Frederick M. Radcliffe, acting in person

Brian Snell, appearing as duty counsel

Christine E. Bartlett-Hughes, for the respondent

Heard: July 14, 2016

On appeal from the conviction entered by Justice Paul F.
    Lalonde of the Superior Court of Justice on June 25, 2009, and from the
    sentence imposed on October 8, 2010.

Watt J.A.:

[1]

A judge found Frederick Radcliffe guilty of sexual interference, sexual
    assault and failing to comply with a recognizance as a result of his conduct
    with a teenaged complainant one July evening several years ago.

[2]

The Crown initiated dangerous offender proceedings against Radcliffe.
    The trial judge found Radcliffe to be a dangerous offender and sentenced him to
    imprisonment in a penitentiary for an indeterminate term.

[3]

Assisted by duty counsel, Frederick Radcliffe appeals his convictions
    and the indeterminate sentence imposed upon him at the conclusion of the
    dangerous offender proceedings.

[4]

For the reasons that follow, I would dismiss both appeals.

[5]

An elaborate recitation of the evidence adduced at trial is unnecessary
    to an understanding of the grounds of appeal advanced and my decision to reject
    them. A brief overview is sufficient for both purposes.

The Background

[6]

The essence of the case for the Crown consisted of:

i.

the complainant's video-recorded statement to the police, admitted under
    s. 715.1(1) of the
Criminal Code
, the contents of which she adopted in
    giving evidence at trial; and

ii.

the complainant's trial testimony.

[7]

The complainant was 13 years old at the time of the relevant events and
    15 years old at the time of trial where she testified by closed-circuit television
    with the assistance of a support person.

[8]

The complainant described a single incident of non-consensual vaginal
    and anal intercourse in Radcliffe's truck behind a gas bar where Radcliffe took
    her as he drove her home from a coffee shop parking lot where they had met
    earlier the same evening.

[9]

Shortly after she returned home, the complainant recounted to her friend
    what had occurred. The friend called the police. When the police and paramedics
    responded to the call, they found the complainant in emotional distress. They
    took her to a local hospital for an examination.

[10]

A nurse who examined the complainant at the hospital and administered a
    sexual assault kit testified that she noticed the complainant's cervix was lumpy
    and red and her anus had a fissure. The nurse considered both findings
    unnatural.

[11]

Frederick Radcliffe's pants, as well as vaginal and rectal swabs taken
    from the complainant and a bathing suit bottom the complainant was wearing
    under her shorts, were subjected to DNA analysis. In two areas near the fly of
    Radcliffe's pants, on vaginal swabs and inside the front crotch area of the
    complainant's bathing suit bottom, an expert found a mixture of DNA from the
    complainant and a male. Frederick Radcliffe could not be excluded as the donor
    of the male portion of the DNA mixture.

[12]

The forensic analysis did not detect spermatozoa (an indicator of the
    presence of semen) and could not confirm the bodily substance from which the
    DNA originated. The expert testified that there could not have been full
    ejaculation. In the absence of condom use (as the complainant testified), the
    expert would have seen more DNA than she detected in the sample. However, she
    acknowledged that it was possible to transfer some DNA material without
    ejaculation including some from saliva transferred from a finger to a vaginal
    area.

[13]

The position of the Crown at trial was that, emboldened by the
    complainant's lack of resistance to some of his sexually suggestive comments,
    Frederick Radcliffe offered to drive her home. He deliberately made a wrong
    turn, stopped at the rear of the car wash/gas bar and entered the back seat of
    his vehicle where the complainant was sitting. In the back seat, Radcliffe
    pushed the complainant down, pulled down her shorts and bathing suit bottom and
    had non-consensual vaginal, then anal intercourse with her. Each then had a
    cigarette before Radcliffe drove her home, dropping her off at a street corner
    near her residence.

[14]

Frederick Radcliffe, 36 years old at the time of the offence and 38 at
    trial, testified on his own behalf. He acknowledged having had "sexual
    problems" since he was a teenager. He had received counselling and
    treatment. He discontinued use of prescribed medication  Cialis  in the
    months prior to the alleged offences because it was too expensive.

[15]

Frederick Radcliffe admitted that the complainant was in his truck  a
    sport utility vehicle  on the night she alleged he sexually assaulted her. He
    offered her cigarettes, but did not participate in any sexual talk with her or
    ask her for any sexual favours. He agreed to drive her home from the coffee
    shop parking lot.

[16]

En route to the complainant's home, Radcliffe made a wrong turn. He
    decided to turn around at a car wash/gas bar. He testified that he hit a bump
    in the pavement in the gas bar, causing his cigarettes to fall on the floor. He
    got out of the vehicle behind the gas bar to pick up the package. When he
    returned to the vehicle, he and the complainant each smoked a cigarette. After
    asking if he had a girlfriend, the complainant leaned over to kiss him. She
    fondled his penis. She put her fingers in his mouth, then in her crotch after
    pulling her shorts down. Radcliffe told the complainant he was not interested
    and then drove her home.

[17]

Frederick Radcliffe denied having had sexual intercourse with the
    complainant in his truck.

[18]

Frederick Radcliffe's wife confirmed that he had suffered from erectile
    dysfunction for at least two years prior to the alleged offence.

THE APPEAL FROM CONVICTION

[19]

On the appeal from conviction, Frederick Radcliffe ("the
    appellant"), advanced two arguments. He says that the trial judge erred:

i.

in subjecting the evidence of the appellant to a more stringent standard
    of scrutiny than the testimony of the complainant; and

ii.

in failing to adhere to the principles in
R. v. W. (R.)
, [1992]
    2 S.C.R. 122, in assessing the evidence of the complainant.

Ground #1: The Uneven Scrutiny Argument

[20]

The appellant says that the trial judge was uneven in his scrutiny of
    the testimony of the two principal witnesses, the appellant and the
    complainant. On the one hand, the trial judge subjected the evidence of the
    appellant to intense scrutiny, finding fault and rejecting it for reasons
    unrelated to its reliability or the appellant's credibility. His defensive
    posture in cross-examination. His request that simple, straightforward
    questions be repeated. His evasive responses. His characterization of some
    questions as irrelevant.

[21]

On the other hand, the appellant continues, the trial judge was markedly
    less critical and substantially more forgiving of many things that told heavily
    against her credibility and the reliability of her evidence. Her combative
    attitude in cross-examination by defence counsel. Unexplained inconsistencies
    in her testimony. Embellishments in her evidence. Her self-admitted
    unreliability. Her hasty retreat to "I don't remember" and "I
    can't recall" when challenged or faced with contradictory physical
    evidence.

[22]

In my assessment of this claim of uneven scrutiny, I keep in mind
    several basic principles.

[23]

First, as the appellant recognizes, this is a difficult argument to make
    successfully. The reasons are twofold. Credibility findings are the province of
    the trial judge. They attract significant appellate deference. And appellate
    courts invariably view this argument with skepticism, seeing it as little more
    and nothing less than a thinly-veneered invitation to re-assess the trial
    judge's credibility determinations and to re-try the case on an arid, printed
    record:
R. v. Howe
(2005), 192 C.C.C. (3d) 480 (Ont. C.A.), at para. 59;
R. v. George
, 2016 ONCA 464, 349 O.A.C. 347, at para. 35.

[24]

Second, to succeed on an uneven scrutiny argument, an appellant must do
    more than show that a different trial judge assigned the same task on the same
    evidence could have assessed credibility differently. Nor is it enough to show
    that the trial judge failed to say something she or he could have said in
    assessing credibility or gauging the reliability of evidence:
Howe
, at
    para. 59.

[25]

Third, to succeed on the argument advanced here, the appellant must
    point to something, whether in the reasons of the trial judge or elsewhere in
    the trial record, that makes it clear that the trial judge
actually
applied different standards of scrutiny in assessing the evidence of the
    appellant and complainant:
Howe
, at para. 59;
George
, at para.
    36.

[26]

Fourth, in the absence of palpable and overriding error, there being no
    claim of unreasonable verdict, we are disentitled to reassess and reweigh
    evidence:
George
, at para. 35;
R. v. Gagnon
, 2006 SCC 17, [2006]
    1 S.C.R. 621, at para. 20.

[27]

After a careful review of the reasons of the trial judge, considered as
    a whole, I am not persuaded that this ground of appeal has been made out.

[28]

I begin with the obvious. The mere fact that the trial judge accepted
    the evidence of the complainant and rejected that of the appellant in
    concluding that guilt had been established beyond a reasonable doubt does not
    move the yardsticks on an argument based on uneven scrutiny.

[29]

Read as a whole, the reasons of the trial judge reveal a keen awareness
    of the issues raised about the complainant's credibility and the reliability of
    her evidence. The inconsistencies and their relationship with the core elements
    of her testimony. Her frequently denied memory about incidental events. Her
    combative attitude with defence counsel. Her age, attitude, level of education
    and lack of sophistication. The time that had elapsed between the events of
    which she testified and the time of which she gave her evidence at trial. She
    got no free pass from the trial judge.

[30]

In addition, I am mindful of the fact that, in some respects at least,
    the complainant's evidence was confirmed by other testimony and findings. The
    condition of her cervix and anus. The DNA deposits on the fly area of the
    appellant's pants and the crotch of the complainant's bathing suit bottom.

[31]

Further, the trial judge explained why he rejected the testimony of the
    appellant. His reasons were firmly grounded in the evidence and in the manner
    in which the appellant testified. There was nothing unfair, unreasonable or
    hyper critical in his approach or findings. Nor does the balance of the trial
    record suggest that the trial judge subjected the appellant's testimony to a
    more demanding level of scrutiny than that of the complainant.

Ground #2: The
W. (R.)
Error

[32]

The appellant advances a second ground of appeal against conviction, a
    complaint somewhat related to the first alleged error.

[33]

This ground of appeal has its roots in the decision in
W. (R.)
.

[34]

The appellant accepts the teachings of
W. (R).
about the manner in
    which trial judges are to assess the reliability of the evidence of children.
    Not on the basis of some inherent unreliability or special caution, but rather
    on a common sense individualized basis taking into account the strengths and
    weaknesses which characterize the evidence offered in the case:
W. (R.)
,
    at p. 134. In the assessment of the evidence of a child (even an adult) about
    things that happened during childhood, a trier of fact should consider the
    presence of inconsistencies, especially those having to do with peripheral
    issues like time and location, in the context of the age of the witness when
    the events about which she or he testifies happened:
W. (R.)
, at p. 134.

[35]

The appellant says that the trial judge failed to consider the need to
    properly scrutinize the evidence of the child complainant and failed to subject
    it to the same standard of proof as required of adult witnesses in a criminal
    case.

[36]

I would not give effect to this ground of appeal. In my view, read as
    whole, the reasons of the trial judge do not reflect either an inappropriately
    superficial level of scrutiny of the complainant's evidence or a diminution of
    the standard of proof.

[37]

After a lengthy review of the substance of the evidence adduced at
    trial, the trial judge enumerated several principles that governed his
    decision. The onus and standard of proof. The limitations on demeanour as a
    credibility determinant. The obligation to consider the whole of the evidence,
    not simply to choose between competing versions of relevant events. The value
    of inconsistencies in assessing credibility of witnesses and the reliability of
    their evidence. And that proof of the case for the Crown did not follow from
    rejection of the appellant's evidence.

[38]

The trial judge made it clear that he was not applying some
    prefabricated rule in his assessment of the complainant's credibility, rather,
    as
W. (R.)
directs, was adjudging it by reference to her mental
    development, understanding and ability to communicate. The judge also took into
    account that aspects of the complainant's testimony were confirmed by
    independent evidence of her physical and emotional condition within minutes and
    hours of the alleged assault and the results of DNA analysis of stains on the
    fly of the appellant's pants and the crotch of the complainant's bathing suit
    bottom.

[39]

As noted in relation to the first ground of appeal, the trial judges
    assessment of the complainants credibility and reliability demonstrated clear
    awareness of the inconsistencies and frailties in her evidence. He rejected
    certain aspects of her evidence as untrue, discounting some of them as relating
    to peripheral matters. Despite the recognized issues with the complainants
    evidence, fundamentally the trial judge accepted her evidence on the central
    issue at trial  whether or not a sexual assault occurred  as truthful. He was
    fully alive to the Supreme Court of Canadas directions in
W. (R.)
. While
    the trial judge considered the complainants mental development, understanding
    and ability to communicate, he did not weaken the standard of proof by situating
    her evidence in that context. He was entitled to reach the conclusion that he
    did.

[40]

It is also worth remembering that contradictions emerging in
    cross-examination of parts of a video admitted under s. 715.1, do not render
    the contradicted parts inadmissible. Self-evidently, a contradicted videotape
    may well be accorded less weight in the final determination of the issues. But
    contradiction of the video in cross-examination does not necessarily mean that
    the video is wrong or unreliable. It is open to the trial judge to conclude
    that the inconsistences are insignificant and find the video more reliable than
    the trial testimony:
R. v.  F. (C.C.)
, [1997] 3 S.C.R. 1183, at para.
    47.

[41]

In the result, I would dismiss the appeal from condition.

THE APPEAL FROM SENTENCE

[42]

The appellant advances a single ground of appeal against the sentence of
    imprisonment in a penitentiary for an indeterminate term imposed by the trial
    judge.

[43]

The appellant does not contest the trial judge's finding that the
    evidence satisfied the requirements for a dangerous offender (DO) designation.
    Where the trial judge went wrong, according to the appellant, was in failing to
    order a
Gladue
report or to consider the influence of
Gladue
factors and s. 718.2(e) of the
Criminal Code
in determining whether
    there was a reasonable possibility of eventual control of the appellant's risk
    of re-offence in the community. Had the trial judge embarked on that

course
    and analysis, the appellant says he would have been designated a long-term
    offender (LTO) and sentenced to a term of imprisonment followed by a period of
    long-term supervision, rather than the sentence imposed.

[44]

In support of his sentence appeal, the appellant tenders two reports
    from the Correctional Service of Canada. Each describes the appellant's
    progress in the penitentiary and his participation in various programs there.

The Background

[45]

The trial judge found that the appellant met the criteria for dangerous
    offender under ss. 753(1)(a)(i), 753(1)(a)(ii) and 753(1)(b) (the last of which
    the appellant admitted).

[46]

In closing submissions at the end of the dangerous offender hearing,
    trial counsel for the appellant referred the trial judge to a brief letter from
    a staff member at the Ottawa Carleton Detention Centre where the appellant had
    been detained prior to trial and the dangerous offender proceedings.

[47]

For a portion of this time, the appellant was serving a sentence for an
    unrelated offence. The author of the letter, a native inmate liaison officer,
    reported on the appellant's self-identification as Aboriginal and participation
    in Aboriginal programs. The letter was filed as an exhibit.

[48]

In closing submissions, trial counsel for the appellant made brief
    reference to the letter and the appellant's claimed Aboriginal status. Counsel,
    relying on the then state of the law (post-
Gladue
, but pre-
Ipeelee
),
    noted that some offences required lengthy jail terms regardless of the
    offender's ethnicity. However, counsel did link Aboriginal status to a finding
    that the appellant was an LTO. The appellant self-reported that he was adopted
    at an early age by supportive adoptive parents.

[49]

The trial Crown emphasized the need for evidence of the availability of
    some measures to help manage the risk of re-offence by the appellant in the
    community. The absence of evidence, the trial Crown argued, was fatal to the
    submission that the appellant should be found an LTO.

The Arguments on Appeal

[50]

In oral argument, duty counsel contended that the trial judge's failure
    to consider
Gladue
factors in determining the designation to be made and
    sentence imposed was a fatal flaw in the sentencing proceedings and required a
    new hearing. There, duty counsel says, a
Gladue
report can be prepared
    and proper consideration given to the appellant's Aboriginal status in
    determining whether he should be found an LTO, rather than a DO, and sentenced
    to something other than imprisonment in a penitentiary for an indeterminate
    term.

[51]

The respondent points out that the trial judge did consider the limited
    evidence about the appellant's Aboriginal status. While it may have been
    preferable to have a more robust record on the issue, the respondent reminds us
    that Aboriginal status and s. 718.2(e) have a diminished role in dangerous
    offender proceedings. They exert no influence on the fundamental decision of
    whether the requirements for designation of an offender as a DO have been met.
    Further, to the extent that it has anything to say about eventual control of
    the risk in the community, what is critical, and lacking here, is evidence
    about the availability of programs realistically likely to achieve that goal.
    Here, the risk resides in the appellant's paraphilias and his personality
    disorder, neither of which can be ameliorated  by Aboriginal programming.

The Governing Principles

[52]

It is now firmly established that when sentencing an Aboriginal
    offender, a judge must consider:

i.

the unique systemic or background factors which may have played a part
    in bringing the particular Aboriginal offender before the court; and

ii.

the types of sentencing procedures and sanctions which may be
    appropriate in the circumstances for the offender because of his or her
    particular Aboriginal heritage and connection.

See
R. v. Gladue
, [1999] 1 S.C.R. 688, at para.
    66;
R. v. Ipeelee
, 2012 SCC 13, [2012] 1 S.C.R. 433, at para. 59.

[53]

Systemic and background factors may bear on the culpability of the
    offender, to the extent they illuminate the offender's level of moral
    blameworthiness:
Ipeelee
, at para. 73. The second set of circumstances 
    the types of sanctions that may be appropriate  has to do with the
    effectiveness of the sentence itself:
Ipeelee
, at para. 74.

[54]

Courts are required to take judicial notice of the systemic and
    background factors affecting Aboriginal people in Canadian society. But, on
    their own, these matters about which judicial notice must be taken do not
    necessarily justify a different sentence for Aboriginal offenders. They provide
    the necessary
context
for understanding and evaluating the case-specific
    information which counsel have a duty to present, absent express informed
    waiver of the right to have it presented:
Ipeelee
, at para. 60.

[55]

Although systemic and background factors provide the necessary context
    to enable a judge to determine an appropriate sentence, rather than to excuse
    or justify the underlying conduct, it is only where the unique circumstances of
    an offender bear on culpability, or indicate which sentencing objective can and
    should be actualized, that they will influence the ultimate sentence:
Ipeelee
,
    at para. 83.

[56]

Section 718.2(e) of the
Criminal Code
imposes a statutory duty on
    a sentencing judge to consider the unique circumstances of Aboriginal
    offenders. Failure to apply
Gladue
in any case of an Aboriginal offender
    offends this statutory obligation and constitutes an error justifying appellate
    intervention:
Ipeelee
, at para. 87.

[57]

As a matter of general principle, characteristics that make an offender
    "less blameworthy" have little impact on a dangerous offender
    application:
R. v. B. (D.V.)
, 2010 ONCA 291, 254 C.C.C. (3d) 221, leave
    to appeal refused, [2011] S.C.C.A. No. 207, at para. 80. Where
Gladue
factors serve to establish the existence and availability of alternative
    Aboriginal-focused means aimed at addressing the environmental, psychological
    or other circumstances which aggravate the risk of re-offence posed by the
    Aboriginal offender, a sentencing judge must make reference to them:
R. v.
    Jennings
, 2016 BCCA 127, 384 B.C.A.C. 152, at paras. 35, 38;
R. v.
    Standingwater
, 2013 SKCA 78, 417 Sask. R. 158, at para. 51.

[58]

To determine whether a lesser measure will adequately protect the
    public, there must be evidence before the sentencing judge that the dangerous
    offender can be safely released into the community. Mere hope, even a judicial
    assumption about the existence of community programs or other necessary
    resources, is inadequate to the task of addressing the reasonable expectation
    of protection of the public. Evidence of the existence and availability of
    community resources that will provide the essential level of extra-custodial
    supervision to adequately protect the public is necessary:
R. v. Smarch
,
    2015 YKCA 13, 374 B.C.A.C. 291, at para. 48.

[59]

Some courts have pointed out that the application of
Gladue
factors must be practical. Sometimes, the long-standing problems of a person
    declared a dangerous offender simply cannot be adequately ameliorated, the risk
    of re-offence reduced to an acceptable level, by Aboriginal programs or
    facilities alone. The failure to consider Aboriginal circumstances may be
    overcome by evidence regarding risk of re-offence and the absence of any
    reasonable possibility of eventually controlling that risk in the community:
Jennings
,
    at paras. 40-41.

[60]

A final point has to do with the admissibility of fresh evidence on
    appeals from indeterminate sentences imposed in dangerous offender proceedings.
    Among other things, fresh evidence must be sufficiently cogent that it could
    reasonably be expected to have affected the result of the dangerous offender
    proceedings had it been adduced there along with the other evidence:
R. v.
    Angelillo
, 2006 SCC 55, [2006] 2 S.C.R. 728, at para. 15;
R. v.
    Peekeekoot
, 2014 SKCA 97, 446 Sask. R. 22, leave to appeal refused, [2014]
    S.C.C.A. No. 502, at para. 46. We are concerned here with a review of the
    sentence imposed by the trial judge in 2010, not with what the outcome might be
    were the proceedings held today. For the most part, evidence of institutional
    progress since sentence, including participation in and completion of various
    programs, exerts no meaningful influence on the trial judge's sentencing
    determination:
Peekeekoot
, at paras. 48-52;
R. v. Sipos
, 2014 SCC
    47, [2014] 2 S.C.R. 423, at para. 40.

The Principles Applied

[61]

As I will explain, I would decline to admit the proposed fresh evidence
    and would not give effect to this ground of appeal.

[62]

At the outset, we acknowledge that the trial judge did not refer to
    either
Gladue
or to s. 718.2(e) in reaching his conclusion on sentence.
    Section 718.2(e) requires that, as a matter of substantive decision-making, an
    offender's Aboriginal status and related circumstances must be considered when
    determining an appropriate sentence. Despite this error, we are satisfied that
    express consideration of
Gladue
factors and s. 718.2(e) would have made
    no difference in the result.

[63]

It is well settled that
Gladue
factors and s. 718.2(e) of the
Criminal
    Code
have limited relevance in dangerous offender proceedings. They have no
    say in whether an offender meets the statutory requirements for designation as
    a dangerous offender. Their influence has to do with the subsidiary question of
    whether there is a reasonable possibility of eventually controlling the
    offender's re-offence risk in the community, thus on the divide between
    dangerous and long-term offenders. With the paramount sentencing objective of
    protection of the public, the judicial discretion to determine an appropriate
    sentence is significantly circumscribed.

[64]

The trial judge gave extensive consideration to whether there was a
    realistic possibility of eventual control of the risk of the appellant
    re-offending in the community. He concluded that the evidence disclosed no such
    possibility. The evidence revealed that the appellant had an abysmal record of
    response to treatment. He lacked any recorded history of completion of any
    treatment program. Repeated breaches of court orders. Unmotivated. Continued
    involvement in high-risk situations. An unreliable source of historical fact
    and promise of future conduct.

[65]

In this case, the trial judge had to determine whether there was a
    realistic possibility of eventually controlling the risk that the appellant
    would re-offend in the community. It was not a close contest. An offender with
    an incurable anti-social personality disorder, several equally-incurable
    paraphilias and a significantly elevated likelihood of violent recidivism. One
    who had a richly documented history of treatment avoidance. It is inconceivable
    in these circumstances that
Gladue
considerations, especially without
    evidence of the availability, much less the nature of ameliorative programs,
    could have converted an unmanageable risk into a manageable one.

[66]

I would not admit the proposed fresh evidence for want of cogency. We
    are not concerned here with the appellant's current situation, or with whether,
    if sentenced today, there would be a realistic possibility of controlling the
    risk of his re-offence in the community. Our focus is historical, statutorily
    locked into a consideration of the sentence imposed about seven years ago.

CONCLUSION

[67]

For these reasons, the appeals against conviction and sentence are
    dismissed.

Released: March 3, 2017 ("DW")

"David Watt J.A."

"I agree. S.E. Pepall J.A."

"I agree. M. Tulloch J.A."


