



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Verdon, 2017 ONCA 721

DATE: 20170918

DOCKET: C58234

Laskin, Trotter and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jeffrey Verdon

Appellant

Eva Taché-Green, for the appellant

Michelle Campbell, for the respondent

Heard and released orally: September 14, 2017

On appeal from the conviction entered on May 4, 2012, and
    the sentence imposed on November 22, 2013, by Justice J. F. Réginald Lévesque of
    the Ontario Court of Justice.

REASONS FOR DECISION

[1]

The appellant was convicted of intimidation, criminal harassment and two
    counts of assault. He was declared a dangerous offender and sentenced to an
    indeterminate term. A different panel of this court dismissed the appeal from
    conviction in 2014:
R. v. Verdon
, 2014 ONCA 807. Accepting the
    validity of the dangerous offender designation, the appellant challenges the
    trial judges decision to impose an indeterminate sentence.

[2]

The appellant raises four grounds of appeal. Ms. Taché-Green argues that
    the trial judge: 1) misapprehended the evidence by reaching the conclusion that
    the appellant has consistently refused treatment; 2) misapprehended evidence
    relating to the phenomenon of burnout as it applies to aging offenders; 3) applied
    the wrong test in determining whether the appellant would be manageable in a
    community, subject to a long-term supervision order; and 4) placed an unfair burden
    on the defence to establish that resources necessary to manage his risk in the
    community were available immediately.

[3]

We would not give effect to any of these grounds of appeal.

[4]

First, the trial judge did not err in his analysis of the evidence dealing
    with the appellants past experiences with treatment interventions. The record
    supports the conclusion that, while the appellant has participated, albeit
    intermittently, in interventions in the past, they have been completely
    ineffective. Moreover, there are numerous instances when the appellant has been
    offered treatment, both while incarcerated and while in the community, which he
    has resisted. On the evidence that the trial judge accepted, and most
    especially the assessment of Dr. Booth, it was open to him to conclude that the
    appellant has little insight into his treatment needs, and has showed no real
    interest in addressing these issues. In the meantime, he is engaged in a course
    of behaviour characterized by unabated violence, some that have resulted in
    criminal convictions, and some that have not.

[5]

Second, the trial judge did not misapprehend the evidence related to burnout.
    Both Drs. Booth and McMaster provided opinions on the matter. Dr. McMasters
    evidence was general, even statistical in nature, whereas Dr. Booths opinion
    was more focused on the appellant as an individual. The trial judge accepted
    Dr. Booths evidence that the appellant showed no signs of calming as he aged.
    As he said in his report, In Mr. Verdons case, he does not appear to have calmed
    given his presentation in the interviews, institutional conduct, and most
    recent offences. Instead, he has been fortunate that his behaviour did not
    result in more significant harm to the victims. Moreover, the evidence
    demonstrated that the appellant has shown no reduction in his impulsivity, a
    durable feature of most of his offending. Looking ahead, Dr. Booth testified,
    And I dont, again, see evidence at this point, that his risk would decrease
    significantly enough such that he could be managed safely in the community. At
    this point, whether the appellant will burnout, or when, is completely
    speculative.

[6]

Third, we reject that Ms. Taché-Greens contention that the trial judge
    erred by requiring the appellant to demonstrate that his risk to society would
    be eliminated by a long-term supervision order, rather than being adequately
    controlled in the community. Ms. Taché-Green acknowledges that the trial judge
    articulated the correct test, however, she says it was applied incorrectly.

[7]

We disagree. The trial judge did not look for proof of risk elimination.
    Instead, he rejected Dr. McMasters evidence that the appellant could be
    controlled in the community. It was open to the trial judge to reject Dr.
    McMasters evidence that the appellant was more manageable in the community
    because his level of violence has been historically decreasing. The definition
    of a serious personal injury offence in s. 753(4.1) of the
Criminal
Code
    does not require that the predicate offences be of comparable severity to
    previous offences. The record fully supported the conclusion that the appellant
    posed a serious risk of committing further serious personal injury offences if
    not detained, and that a long-term supervision order would be inadequate to
    manage this risk.

[8]

Fourth, we disagree that the trial judge erred by requiring the
    appellant to demonstrate that resources were immediately available to manage
    his risk in the community. The trial judges focus on this very practical issue
    was necessitated by the position of defence counsel at trial (not Ms. Taché-Green)
    that, in view of 23 months of pre-sentence custody, the appellant should be
    released and placed on a long-term supervision order immediately. This position
    required the trial judge to address his mind to this issue.

[9]

In summary, the trial judges conclusions were soundly rooted in the
    evidence adduced at the sentencing hearing. He was entitled to accept the
    opinion of Dr. Booth. He gave sufficient reasons for rejecting Dr. McMasters
    opposing opinion.

[10]

We would not interfere.

John Laskin J.A.

Gary Trotter J.A.

Fairburn J.A.


