



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    that could identify the victim or a witness shall not be published in any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(iii)     REPEALED: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    shall not be published in any document or broadcast or transmitted in any way.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. D.M., 2021 ONCA 780

DATE: 20211105

DOCKET: C64045

Rouleau, Huscroft and Thorburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

D.M.

Appellant

Michael Crystal, for the appellant

Gregory J. Tweney, for the respondent

Heard: October 29, 2021 by video conference

On appeal from the sentence imposed on May 18, 2017 by
    Justice Michael J. Epstein of the Ontario Court of Justice.

REASONS FOR DECISION

[1]

The appellant pleaded guilty and was convicted of three counts of sexual
    assault, four counts of making child pornography, and one count of possession
    of child pornography. The offences were committed while the appellant was on
    parole following convictions for invitation to sexual touching, assault causing
    bodily harm, sexual assault and sexual interference. They were committed
    against the appellants girlfriends son and the son of a couple who were
    friends with the appellant and his girlfriend.

[2]

In sum, the appellant has amassed 15 convictions for a range of sexual
    offences against five different boys, crimes of violence, child pornography,
    and failing to comply with court orders.

[3]

The Crown brought a dangerous offender application and reports from two
    psychiatrists were adduced. The sentencing judge found that the appellant was high
    risk to reoffend. He rejected the appellants argument that his drug use played
    a role in the offences and rejected the appellants assurance that he was
    amenable to treatment and supervision. The sentencing judge was satisfied the
    appellant will likely reoffend violently or sexually and was satisfied that
    there was no reasonable expectation that the appellant could be managed in the
    community by any means except an indeterminate sentence.

[4]

The appellant argues that the sentencing judge erred in designating him
    as a dangerous offender and in imposing an indeterminate sentence. He says the
    sentencing judge failed to consider his future treatment prospects and based his
    decision almost entirely on his past behaviour, rather than his changed
    circumstances. The appellant argues that the risk he posed could be managed
    through a determinate sentence followed by a long-term supervision order.

[5]

The Crown concedes that the sentencing judge erred in failing to
    consider the appellants future treatment prospects in the course of
    designating the appellant a dangerous offender, as required by
R. v. Boutilier
,

2017 SCC 64, [2017] 2 S.C.R.
    936, at para. 43. We accept this concession, though in fairness to the
    sentencing judge note that
Boutilier
was decided subsequent to his
    decision in this case.

[6]

Nevertheless, in our view this is one of those cases in which there was
    no reasonable possibility that the result would have been different had the
    error not been made:
R. v. Johnson
, 2003 SCC 46, [2003] 2 S.C.R. 357.
    The findings made by the sentencing judge in deciding whether to impose an
    indeterminate sentence compel the conclusion that the appellant was properly
    found to be a dangerous offender at the first stage of the inquiry.

[7]

There was broad agreement between the psychiatrists who testified for
    the defence and Crown. Both agreed that the appellant is a pedophile and poses a
    significant risk for sexual recidivism involving male children. Furthermore,
    they agreed on the following: pedophilia is a life-long condition with no known
    cure; the risk is not significantly attenuated by age; substance abuse is an
    important factor in managing risk; the appellant requires a sex offender
    treatment program; and pharmacological intervention is the best way to control
    the risk posed by the appellant, albeit that most sex offenders either decline
    the treatment or discontinue it.

[8]

The psychiatrists disagreed on the question of risk management. Dr. Pallandi
    testified that the risk posed by the appellant could be managed by a long-term
    supervision order if the appellant undertook intensive sexual offending therapy
    over a long period of time, took medication to reduce his sex drive, and was
    carefully monitored in the community. Dr. Klassen testified that there was at
    best a reasonable possibility of eventual control of the risk in the community
    if these measures were taken, but it would not continue beyond the 10-year supervision
    period that was possible under the
Criminal Code
, R.S.C. 1985, c. C-46
. In his view, only
    a dangerous offender finding with an indefinite sentence would minimize the
    possibility of recidivism for the entire at-risk period.

[9]

Plainly, the sentencing judge considered the appellants future
    treatment prospects in imposing an indeterminate sentence. He rejected the
    appellants evidence that he realized that what he did was wrong; that he could
    control his sexual urges towards children and his drug use; that he would abide
    by the terms of a long-term supervision order; and that he was prepared to take
    medication to reduce his sex drive. The sentencing judges key finding  that
    the appellant was simply not believable  is amply supported by the evidence.
    The sentencing judge aptly described the appellants credibility as thoroughly
    destroyed: the appellant is, by his own admission, adept at lying and
    manipulation.

[10]

Had
    the sentencing judge considered future treatment prospects at the designation
    stage, there is no doubt that his findings would have compelled the conclusion
    that the appellant met the criteria to be designated a dangerous offender.

[11]

There
    is no merit to the argument that the sentencing decision is unreasonable. We
    agree with the sentencing judge that the evidence in this case was
    overwhelming. There was no reasonable expectation that a determinate sentence
    with or without a long-term supervision order was adequate to protect the
    public from the appellant. The accused offered nothing but his good
    intentions, and he had no credibility to offer them. It was open to the
    sentencing judge to reject Dr. Pallandis evidence as based on hope rather than
    evidence, and to accept Dr. Klassens evidence that only an indeterminate sentence
    would suffice.

[12]

The
    appellant makes an application to admit fresh evidence concerning his
    psychological risk, proffering an assessment completed in 2020. He submits that
    the evidence should be admitted concerning his designation as a dangerous offender
    and the reasonableness of the decision to impose an indeterminate sentence.

[13]

In
    our view the fresh evidence could not have affected either the decision that
    the appellant is a dangerous offender or the decision to impose an
    indeterminate sentence. Among other things, the evidence indicates attempted
    deception and that the appellant may be prone to aggression and hostility,
    although he is considered a low-moderate risk for criminal conduct generally
    and violently. But significantly, the evidence indicates that his risk for
    sexual reoffending is in the high range, and it says nothing about the
    appellants willingness to take medication to reduce his sex drive, one of the
    key components of management of his future risk.

[14]

Accordingly,
    the application to admit fresh evidence is dismissed. The appeal is dismissed.

Paul Rouleau J.A.

Grant Huscroft J.A.

J.A. Thorburn J.A.


