



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. 486.5(1), (2), (2.1), (3), (4), (5), (6), (7), (8) or
    (9) or 486.6(1) or (2) of the
Criminal Code
shall continue.  These sections of the
Criminal
    Code
provide:

486.5 (1)     Unless an order is
    made under section 486.4, on application of the prosecutor in respect of a
    victim or a witness, or on application of a victim or a witness, a judge or
    justice may make an order directing that any information that could identify
    the victim or witness shall not be published in any document or broadcast or
    transmitted in any way if the judge or justice is of the opinion that the order
    is in the interest of the proper administration of justice.

(2)     On application of the
    prosecutor in respect of a justice system participant who is involved in
    proceedings in respect of an offence referred to in subsection (2.1), or on
    application of such a justice system participant, a judge or justice may make
    an order directing that any information that could identify the justice system
    participant shall not be published in any document or broadcast or transmitted
    in any way if the judge or justice is satisfied that the order is in the
    interest of the proper administration of justice.

(2.1) The offences for the purposes
    of subsection (2) are

(a) an offence under section
    423.1, 467.11, 467.111, 467.12, or 467.13, or a serious offence committed for
    the benefit of, at the direction of, or in association with, a criminal
    organization;

(b) a terrorism offence;

(c) an offence under subsection
    16(1) or (2), 17(1), 19(1), 20(1) or 22(1) of the
Security of Information
    Act
; or

(d) an offence under subsection
    21(1) or section 23 of the
Security of Information Act
that is committed
    in relation to an offence referred to in paragraph (c).

(3)     An order made under this
    section does not apply in respect of the disclosure of information in the
    course of the administration of justice if it is not the purpose of the
    disclosure to make the information known in the community.

(4)     An applicant for an order
    shall

(a) apply in writing to the
    presiding judge or justice or, if the judge or justice has not been determined,
    to a judge of a superior court of criminal jurisdiction in the judicial
    district where the proceedings will take place; and

(b) provide notice of the
    application to the prosecutor, the accused and any other person affected by the
    order that the judge or justice specifies.

(5)     An applicant for an order
    shall set out the grounds on which the applicant relies to establish that the
    order is necessary for the proper administration of justice.

(6)     The judge or justice may
    hold a hearing to determine whether an order should be made, and the hearing
    may be in private.

(7)     In determining whether to
    make an order, the judge or justice shall consider

(a) the right to a fair and
    public hearing;

(b) whether there is a real and
    substantial risk that the victim, witness or justice system participant would
    suffer harm if their identity were disclosed;

(c) whether the victim, witness
    or justice system participant needs the order for their security or to protect
    them from intimidation or retaliation;

(d) societys interest in
    encouraging the reporting of offences and the participation of victims,
    witnesses and justice system participants in the criminal justice process;

(e) whether effective
    alternatives are available to protect the identity of the victim, witness or
    justice system participant;

(f) the salutary and deleterious
    effects of the proposed order;

(g) the impact of the proposed
    order on the freedom of
expression
of those affected by it; and

(h) any other factor that the
    judge or justice considers relevant.

(8)     An order may be subject to
    any conditions that the judge or justice thinks fit.

(9)     Unless the judge or justice
    refuses to make an order, no person shall publish in any document or broadcast
    or transmit in any way

(a) the contents of an
    application;

(b) any evidence taken,
    information given or submissions made at a hearing under subsection (6); or

(c) any other information that
    could identify the person to whom the application relates as a victim, witness
    or justice system participant in the proceedings.
2005, c. 32, s. 15; 2015, c. 13, s. 19

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. Cook, 2020 ONCA 809

DATE: 20201216

DOCKET: C66497

Strathy C.J.O., Rouleau and
    Coroza JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

William Arthur Cook

Appellant

Paul Calarco, for the appellant

Katie Doherty, for the respondent

Heard: November 24, 2020 by
    video conference

On
    appeal from the sentence imposed on March 22, 2017 by Justice Brian P. OMarra
    of the Superior Court of Justice, with reasons reported at 2017 ONSC 1434.

REASONS FOR DECISION

Overview

[1]

Following the convictions for offences related to criminal harassment of
    the victim, K.H., the appellant was found to be a dangerous offender under s. 753
    of the
Criminal Code
, R.S.C. 1985, c. C-46. He appeals against the
    dangerous offender designation and the mandatory victim fine surcharge that formed
    part of the sentence. For the reasons that follow, the appeal against the
    dangerous offender designation is dismissed. However, on consent, we would
    allow the sentence appeal with respect to the imposition of the victim fine
    surcharge and set it aside as a result of the Supreme Court of Canadas
    decision in
R. v. Boudreault
, 2018 SCC 58, [2018] 3 S.C.R. 599.

Background

[2]

The appellant met the victim in December 2010 when they were working at
    the same bookstore. According to the victim, the appellant had not disclosed
    that he was on parole and subject to a Long-Term Supervision Order (LTSO)
    before they started their relationship. That LTSO had been imposed in 2006 when
    the appellant was convicted of criminal harassment and threatening in relation
    to his sister and stepfather. The appellant eventually disclosed that he was on
    parole and constantly urged the victim  for example, by leaving her many text
    and voicemail messages  to speak to his parole officer and paint their
    relationship in a positive light. The appellant became obsessive and constantly
    phoned the victim and showed up at various public places unannounced to ask her
    about the conversations that she had with his parole officer. At one point, the
    appellant threatened to have her fired from her job if she did not portray him
    positively. By February 2011, the appellant was coming to her home uninvited
    and, during one heated argument, he poured water over all of the electronic
    devices that she owned. The victim finally went to the police in March 2011.

[3]

The appellant was charged with two counts of criminal harassment, and
    one count of committing mischief, extortion and breaching the LTSO. The jury
    convicted the appellant of criminal harassment and committing mischief to
    property but acquitted him of the extortion charge. The parties agreed that the
    evidence led at the jury trial would form the basis of the Crowns case in
    relation to a single charge of breaching the 2006 LTSO, which had been severed
    from the counts that proceeded with the jury. The same judge who presided over
    the jury trial heard the trial and convicted the appellant of breaching the
    LTSO.

[4]

Following the conviction, the Crown applied to have the appellant
    declared a dangerous offender pursuant to s. 753. That hearing was significantly
    delayed. By the time it was scheduled to be heard, the victim had advised the
    Crown that she no longer wished to participate in the proceeding, and she did
    not return any of the messages left for her by the police or the Crown.
    Nevertheless, the Crown sought to rely on her victim impact statement that had
    been filed at the beginning of the proceeding. Defence counsel argued that since
    he was unable to cross-examine the victim on the contents of the statement the
    sentencing judge could place no weight on the statement, which was hearsay and
    unreliable. The sentencing judge disagreed and relied on the statement.

[5]

The sentencing judge was satisfied that the appellants criminal
    harassment convictions were serious personal injury offences pursuant to s. 752(a)(ii).
    He was also satisfied that the appellant met the criteria for a dangerous
    offender designation because the appellants pattern of conduct showed a
    failure to restrain his behaviour and a likelihood that he would cause severe
    psychological damage in the future (s. 753(1)(a)(i)) and, alternatively, that
    his conduct over the years with various female partners constituted persistent
    aggressive behaviour pursuant to s. 753(1)(a)(ii)).

Grounds of Appeal

[6]

The appellant advances three submissions on the appeal against the
    designation.

[7]

First, the sentencing judge erred by relying on the victim impact
    statement without permitting defence counsel to cross-examine the victim.

[8]

Second, the sentencing judge erred in his application of s. 752(a)(ii)
    because, according to the appellant, an inquiry into severe psychological
    damage demands an objective assessment of the accuseds conduct, not just the
    victims reactions to that conduct. According to the appellant, the sentencing
    judge did not assess the objective seriousness of the appellants conduct.

[9]

Third, the sentencing judge erred in his conclusion that the appellants
    pattern of behaviour meant that he would likely inflict severe psychological
    damage in the future.

Discussion

(1)

The Sentencing Judges Reliance on the Victim
    Impact Statement

[10]

The
    appellant contends that the sentencing judge should have allowed
    cross-examination on the victim impact statement before relying on it. He
    submits that cross-examination was necessary to properly assess the victims
    suggestion in her statement that the appellants conduct had caused a total
    change in her life. There were other stressors in the victims life, unrelated
    to the appellant and the four days of harassment that formed the basis for the charges.
    For example, it was not disputed that the victims life had been affected by
    coping with her mother, who was terminally ill. The appellant submits that it
    was unfair for the sentencing judge not to permit cross-examination on the
    statement so that defence counsel could explore whether it really was the
    specific impact of the appellants conduct on the victims life that had the
    impact described in the statement. We disagree with this submission.

[11]

The
    sentencing judge noted that s. 722 of the
Criminal Code
provides that a
    victim impact statement shall be received by the court and may be presented in
    various ways. He also recognized that there is no automatic or open-ended right
    to insist that victims attend for cross-examination any time the Crown files
    such a statement:
R. v. V.W.
, 2008 ONCA 55, 89 O.R. (3d) 323, at
    paras. 28-30.

[12]

The
    reality is that by the time this proceeding started, police efforts to locate the
    victim were unsuccessful. The Crown and the police had made efforts to remain
    in contact with the victim, but she had advised the Crown that she no longer
    wished to participate in the proceedings. It appears to have been accepted that
    the victim could not be produced for cross-examination. Defence counsels
    argument before the sentencing judge was that the statement had to be admitted
    but, in the absence of the victim, the statement should not be relied upon
    because its reliability could not be tested. In our view, it was open to the
    sentencing judge to consider the absence of the victim, but to find that he
    could rely on the statement and give to it whatever weight he thought it
    deserved. We see no basis to interfere with his decision.

[13]

In
    any event, it is apparent to us that the statement played a limited role in the
    sentencing judges decision. As the sentencing judge noted during submissions
    and in his reasons, the evidence of the impact of the appellants conduct on
    the victim was not limited to what was disclosed by the statement. He noted
    that the victim had been extensively cross-examined at trial and that the
    significant impact of the events on her personal and work life was manifest
    from her testimony. Even if it was an error to rely on the statement without further
    exploring whether she could be produced for cross-examination, this error
    occasioned no prejudice to the appellant because the sentencing judges
    determination was fully supported by the victims testimony at trial, testimony
    that was tested through cross-examination.

[14]

The
    appellant also submits that the sentencing judge should have restricted his
    reliance on the victim impact statement to just those parts related to the
    narrow time period of four days that formed the basis of the criminal
    harassment charges. He argues that the victim impact statement did not
    distinguish between events related to those charges and events related to the
    charge of extortion, which took place over the longer time period of January to
    March. Since the jury acquitted the appellant of extortion, the victims
    account of events pertaining to that charge over the longer time period should
    not have been relied upon. We reject this submission.

[15]

During
    a dangerous offender application under s. 753, access to the widest possible
    information is important:
R. v. Williams
, 2018 ONCA 437, at para. 48. In
    our view, the sentencing judge was required to examine not only the conduct of
    the appellant and impact that it had on the victim over the four days, but also
    the surrounding circumstances, which included their entire relationship and the
    time period from January to March.

(2)

The Sentencing Judges Application of s. 752(a)(ii)

[16]

The
    appellants second argument is that the sentencing judge erred in his
    application of s. 752(a)(ii). The first threshold question in any dangerous
    offender proceeding is whether the offender has committed a serious personal
    injury offence, which is defined in s. 752 of the
Criminal Code
to
    mean:

(a) an indictable offence, other
    than high treason, treason, first degree murder or second degree murder,
    involving

(i) the use or attempted use of
    violence against another person, or

(ii) conduct endangering or likely
    to endanger the life or safety of another person or
inflicting
    or likely to inflict severe psychological damage upon another person
,

and for which the offender may be
    sentenced to imprisonment for ten years or more, or

(b) an
    offence or attempt to commit an offence mentioned in section 271 (sexual
    assault), 272 (sexual assault with a weapon, threats to a third party or
    causing bodily harm) or 273 (aggravated sexual assault) [Emphasis added.]

[17]

In
    this case, the offence of criminal harassment could have met the definition if
    it involved conduct inflicting or likely to inflict severe psychological damage
    on another person.

[18]

The
    appellant argues that the sentencing judges finding that he had inflicted
    severe psychological damage on the victim cannot stand because he did not apply
    an objective assessment to the appellants conduct and he made no finding that
    the appellants conduct was reasonably capable of inflicting such damage. According
    to the appellant, the sentencing judge improperly focused only on the victims
    reactions to the appellants conduct. The appellant relies on this courts
    comments in
R. v. Morgan
(2005), 195 C.C.C. (3d) 408 (Ont. C.A.),
    leave to appeal refused, [2005] S.C.C.A. No. 247, and a trial decision of
    Karakatsanis J. (as she then was) in
R. v. Tremblay
, 2010 ONSC 486. We
    disagree with this submission.

[19]

First,
    we note that a plain reading of s. 752(a)(ii) does not suggest that the judge
    is required to undertake an objective assessment of the conduct of the
    offender. We agree with the respondents submission that Parliament appears to
    have limited the conduct captured by this section by reference to the impact,
    or potential impact, of an offenders conduct on the victim.

[20]

Second,
    in our view, neither
Morgan
nor
Tremblay
assists the
    appellant. In
Morgan
, this court confirmed that to qualify as a
    serious personal injury offence under s. 752(a)(ii), the conduct of the
    offender must be such that it was "inflicting or likely to inflict severe
    psychological damage upon another person". However, MacFarland J.A.
    pointed out that [t]rivial conduct or conduct
de minimis
would not
    meet the severity requirement: at para. 13. In
Tremblay
, Karakatsanis
    J. held that the offence of criminal harassment does not necessarily constitute
    a serious personal injury offence. She held that severe psychological damage
    acts as a threshold and must be something more than serious psychological
    harm and requires at a minimum substantial interference with the victims
    physical or psychological integrity, health or well-being: at para. 76.

[21]

The
    sentencing judge was aware of
Morgan
, having reviewed it in his
    decision. On his findings, the appellants conduct interfered significantly
    with the victims personal life and well-being and actually caused severe
    psychological damage to the victim. His specific findings regarding the
    appellants conduct placed it well beyond trivial or
de minimis
conduct as described in
Morgan
and are consistent with
Tremblay
in that the appellant substantially interfered with the victims psychological
    integrity, health or well-being. We see no error in the sentencing judges
    application of s. 752(a)(ii) and his determination that the criminal
    harassment in this case was a serious personal injury offence.

(3)

The Sentencing Judges Application of s. 753(1)(a)(i) and (ii)

[22]

Finally,
    the appellant argues that the sentencing judge erred in his application of s.
    753(1)(a). Since the sentencing judge found that criminal harassment was a
    serious personal injury offence, he was required to go on to determine whether
    the appellant satisfied any of the pathways to the dangerous offender
    designation as set out in s. 753(1)(a). Two pathways are relevant to this case:

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
, [or]

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 behavior [Emphasis added.]

Criminal Code
, s. 753;
R. v. Boutilier
, 2017 SCC 64, [2017] 2 S.C.R.
    936, at paras.
14, 16.

[23]

The
    appellant argues that the sentencing judge erred in reaching the conclusion
    that the appellants pattern of behaviour meant that he would likely inflict
    severe psychological damage in the future (s. 753(1)(a)(i)). The appellant
    submits that even if there was a basis to find that his conduct met the serious
    personal injury threshold, the sentencing judge failed to properly consider
    whether the pattern of behaviour by the appellant demonstrated an escalation of
    misconduct, greater violence or threats of violence. We disagree.

[24]

It
    is clear that the sentencing judge properly considered the requirements of s. 753(1)(a)(i)
    and was satisfied that they were met. The sentencing judge took into account
    the facts related to the appellants convictions for criminal harassment and
    prior convictions for similar offences, and that prior incarceration and court
    orders had not been successful in restraining the appellants behavior. Of
    significance is the fact that the appellant had committed these offences while
    bound by a LTSO. As the sentencing judge expressly noted, the appellant had, in
    the past, inflicted severe psychological harm on women in the context of
    relationships and displayed a total lack of sympathy. On the totality of the
    evidence, the sentencing judge was satisfied that the appellant had
    demonstrated a clear pattern of repetitive criminal behavior, failed to
    restrain his behavior, and would in the future likely cause severe
    psychological damage.

[25]

Although
    the appellant concedes that it was open to the sentencing judge to find that
    the conduct also met the requirements of the persistent aggressive dangerous
    offender pathway (s. 753(1)(a)(ii)), he argues that the sentencing judge
    provided very little analysis on this point. We disagree. Several of the findings
    that the sentencing judge made in relation to the s.753(1)(a)(i) pathway were
    equally applicable to this pathway. The sentencing judge concluded that the
    appellant lacked insight into the harm caused to the victims, lacked empathy
    for them, and demonstrated a substantial indifference to the reasonably
    foreseeable consequences of his behaviour on other persons. This conclusion was
    open to him. Indeed, the sentencing judge found that the appellant perceived
    himself to be the true victim of his circumstances. These conclusions must be
    read in the context of the entire decision and, in our view, there is no basis
    to interfere with them.

Disposition

[26]

For
    these reasons, we would set aside the victim fine surcharge. Otherwise, the
    appellants appeal from his dangerous offender designation is dismissed.

G.R. Strathy C.J.O.

Paul Rouleau J.A.

S. Coroza J.A.


