



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    that could identify the victim or a witness shall not be published in any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(iii)     REPEALED: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    shall not be published in any document or broadcast or transmitted in any way.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. Simpson, 2020 ONCA 765

DATE:  20201203

DOCKET: C63142 and C65264

Miller, Trotter and Coroza JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Ryan Simpson

Appellant

No one appearing for the appellant on the conviction
    appeal

Ingrid Grant, for the appellant on the sentence appeal

Deborah Krick, for the respondent

Heard: August 14, 2020 by video conference

On appeal from the convictions entered by Justice Maureen
    D. Forestell of the Superior Court of Justice on August 6, 2015, with reasons
    reported at 2015 ONSC 4952, and from the sentence imposed on December 14, 2016,
    with reasons reported at 2016 ONSC 7767.

B.W. Miller J.A.:


Overview

[1]

The appellant has a history of assaulting and sexually assaulting women
    who have been his intimate partners. Following his conviction for offences
    related to a sexual assault of the complainant, N.J., he was found to be a dangerous
    offender under s. 753(1)(a)(i) of the
Criminal Code
and sentenced to
    an indeterminate period of detention. He appeals against his convictions, the
    dangerous offender designation, and the sentence imposed. For the reasons that
    follow, the appeal against the designation and the sentence are dismissed. His
    appeal against conviction was dismissed from the bench as abandoned.

Background

[2]

The appellant became involved with N.J., with whom he parented a child, in
    April 2008. He assaulted her repeatedly over the course of their relationship.
    The violence escalated when N.J. took steps to end the relationship in May
    2012.

[3]

At 11:00 p.m. on November 16, 2013, N.J. had just finished working her shift
    at a hospital. She walked to her car, which she had parked in the hospitals visitors
    parking lot. Unknown to her, the appellant was waiting for her, hiding in the
    trunk. As she began to drive home, the appellant crawled forward and grabbed her
    by her ponytail. She turned to see the appellant pointing a gun at her head. Terrified,
    she drove, at his direction, to a secluded area where he threatened to kill her
    and forced her to submit to sexual intercourse.

[4]

This was not the first time the appellant lay in wait for N.J. in a
    parking lot. It was not the first time he brought a gun. His assaults of her
    were many and various: choking, stabbing, hitting with whatever objects were at
    hand, and spraying her with pepper spray. There was also evidence from another former
    intimate partner of the appellant, whom the appellant had also subjected to repeated
    assaults during an overlapping time frame.

[5]

On multiple occasions, N.J. reported the appellants assaults to the
    police but later recanted. She testified that sometimes she recanted because the
    appellant threatened to harm members of her family in Jamaica. Other times it
    was because she wished to continue her relationship with the appellant, who is
    the father of her son.

[6]

The appellant was convicted of multiple offences with respect to N.J., including
    sexual assault with a weapon, threatening death, criminal harassment, forcible
    confinement, intimidation, and attempt to obstruct justice. The Crown brought a
    dangerous offender application. The appellant was found to be a dangerous
    offender and given an indeterminate sentence.

Issues on
A
ppeal

[7]

The appellant, who is currently serving his sentence in a federal
    penitentiary, was self-represented on his appeal against conviction. After he declined
    to leave his cell to argue the appeal, his appeal against conviction was
    dismissed as abandoned.

[8]

The appellant was represented by counsel on his appeal against the
    dangerous offender designation and the indeterminate sentence. He raised four
    issues:

1.

the sentencing judge misapprehended the evidence of the risk of
    recidivism;

2.

the sentencing judge failed to consider the issues of intractability
    and treatment prospects at the designation stage of the dangerous offender hearing;

3.

the sentencing judge placed an onus on the appellant to prove his
    conduct was not intractable at the sentencing stage of the dangerous offender
    hearing; and

4.

the sentencing judge erred in sentencing by failing to impose the least
    intrusive sentence required to protect the public.

[9]

The first two grounds of appeal relate to the designation of the
    appellant as a dangerous offender. The two last grounds of appeal relate to his
    indeterminate sentence.

Analysis

A.

The Dangerous Offender Designation

[10]

On
    an application under s. 753(1)(a)(i), a court is required to find an offender a
    dangerous offender if it is satisfied: (1) that the offence for which the
    offender has been convicted is a serious personal injury offence as defined in
    s. 752; (2) the offence is part of a broader pattern of violence; (3) there is
    a high likelihood of harmful recidivism; and (4) the violent conduct is
    intractable:
R. v. Boutilier
, 2017 SCC 64, [2017] 2 S.C.R. 936, at para.
    26.

[11]

The
    appellant does not contest that the sentencing judge properly determined that he
    was convicted of a serious personal injury offence that formed part of a
    broader pattern of violence. However, he argues that the sentencing judge erred
    in the remainder of the analysis. In particular, he argues that the sentencing
    judge: misapprehended significant evidence concerning his likelihood of
    recidivism, and failed to address the issue of intractability  that is, whether
    the appellant will be unable to surmount his impulse for violent conduct  at
    the designation stage. While he recognizes the sentencing judge assessed his
    intractability at the sentencing stage, he argues her assessment was tainted
    by error and this court cannot rely on the sentencing-stage intractability
    assessment to cure the error at the designation stage.

[12]

As
    explained below, I am not persuaded that the sentencing judge misapprehended
    the evidence on the likelihood of recidivism. In addition, although the
    sentencing judge did not address intractability at the designation stage, I am
    not persuaded that this error had any impact on the result: the sentencing
    judge did not err in her analysis of intractability at the sentencing stage, and
    her findings can be applied to the analysis of intractability at the
    designation stage.

Misapprehension of evidence on the likelihood of harmful
    recidivism

[13]

The
    appellant was 35 years old at the time of the index offences and 38 years old
    at the time of the dangerous offender hearing. A psychiatrist, Dr. Klassen,
    prepared the requisite s. 752.1 assessment and testified at the hearing. As was
    his right, the appellant chose not to participate in the assessment and did not
    testify at the hearing. Accordingly, there was limited available information about
    the appellants background and early life. What evidence there was came from one
    of the appellants former intimate partners. There were no school records or
    family members available to provide background.

[14]

Due
    to the limited information available, aspects of Dr. Klassens opinion on the
    appellants likelihood of violent recidivism were qualified. Specifically, he
    was unable to complete some actuarial tests that the sentencing judge found
    would have been helpful in determining the likelihood of violent reoffending. However,
    Dr. Klassen was able to substantially complete the Ontario Domestic Assault
    Risk Assessment (ODARA) test, which measures an offenders risk of future
    assaults against intimate partners. Though he lacked the information to satisfy
    two items on the ODARA test, the evidence that was available placed the
    appellant in the highest risk category and predicted a high risk of violent
    recidivism.

[15]

The
    absence of evidence also left Dr. Klassen unable to offer an unqualified
    opinion as to how the appellants age may affect his level of future risk. It
    is this evidence the appellant alleges the trial judge misapprehended.

[16]

During
    cross-examination, Dr. Klassen testified about the correlation between age and declining
    risk of violent re-offence. He noted that, generally speaking, by the time an
    offender passes a particular age  on average, sometime between age 50 and 60 
    the offenders propensity for aggressive behaviour begins to decline. He noted,
    however, that different types of offending behaviour decline at different
    rates. As it is important to understand the context of the full
    cross-examination on this point, I have reproduced the relevant portions of the
    transcripts.

Q.      And in [the appellants] case, my understanding is that
    when he reaches 50, that there is a precipitous or in the, in the point leading
    up to achieving the age of 50 theres this precipitous drop in, in that risk.

A.      So I  thats not exactly how I would frame it  So
risk of violent sexual offending declines relatively linearly
    with age
and one of the ways that I sometimes approach a proceeding like
    this is to say  if you imagine it declining on a graph, is, is going to hit
    the X axis of sort of zero. And, and, of course, different kinds of offending
    behaviour have different slopes to that line and hit the X axis at different
    points in time.



So by the time people pass 50 and I will say broadly between
    the decade of 50 and 60, you will have seen significant decline in propensity
    for aggressive behaviour and for what Im going to call effortful aggressive
    sexual behaviour. That is to say, typically, sexual assault or rape of adult
    females, not so much so child molestation.



If we pick the number 50, theres no magic number
then on average, and again I want to reiterate this is not
    about [the appellant]. This is on average.
On average, those individuals
    have significantly reduced rates of violent recidivism, psychopathic or not.



Q.      I appreciate all that
comprehensive
    generalized information
.

A.      Yeah.

Q.      I, I guess the bottom line is this, and you can correct
    me if Im wrong, but with respect to [the appellant], by the time he reaches
    50,
my understanding is your opinion is, at that stage,
    you would say that in terms of causing death or injury, there wouldnt be a
    likelihood of him doing that by the time he hits 50; is that fair?

A.
Well, you know, again, none of
    these things specifically refer to [the appellant]
, not the results of
    the ODARA and not age-related decline. I do think, though, that that the, that
    the numbers that we see from the ODARA right now, I would agree with you, that
    you would, you would expect that you would not offer a 70 per cent probability
    in the decade between 50 and 60. He committed this last offence in 2013, at
    which point he was 35 years of age. The difference between 35 and 50 is 15
    years, so I would [s]ay, yes, I, I would agree with you that,
on average
, you would expect to see an age-related
    decline that would take
a person
out of the
    probability bracket,
but I cant offer that specifically
    with respect to [the appellant]
any more than the ODARA score, score
    speaks to him specifically.

Q.      Right. But in terms of your expectation of that, that
    harm occurring, that  the expectation of death or injury, in terms of, like,
    more  the  on a balance of probabilities or, like, it being  not balance of
    probabilities, but it being, I guess, less than 50 per cent likely
once he hits 50, my understanding is that you can safely say
    that in terms of establishing likelihood, its less likely that it would
    happen, meaning, like, less than 50 per cent.

A.
So I, I think the source of some
    of the confusion is that most of our risk assessment tools have defined period
    of prediction that do not take us 15 years out.
So the ODARA is five
    years. The VRAG is 10 years. The Static is 10 years.



I have a prediction there on the basis of those instruments. It
    doesnt take us to 50.
If we shift slides from those
    instruments to bringing up slides, looking at average age crime curves past the
    age of 50, you  what you see is that rates of new violent crime into the 
    past the age of 50 are much less than they were when they were  when the
    individuals were 40 and 35 and 25 and so on.
So it, its mixing our
    metaphors a bit to say, you know, that I would abandon the ODARA score, that I
    might say its less than 50.
What I would say is I would
    say Im, Im comfortable on the basis of age-related decline that this
    gentlemans risk would be significantly less than it is at the age of 35
.

Q.      Okay.
Perhaps I can put this in
    another way
. As a, as a clinician and having experience with lots of
    different offenders who come before the court where Crowns have applied to have
    them declared dangerous or applied to have either an indeterminate sentence or
    a fixed sentence with a, a period of, of supervision under a long-term sentence
    order, someone who has not had significant clinical intervention before like [the
    appellant] ... who has a history like [the appellant],
you
    agree with me that indefinite incarceration, it doesnt seem like the only
    reasonable way to address the public safety issues that arise; right?



A.      Yeah. I mean, I, I think the, the question that arises
    is  and, and Ive been reflecting on this, of course, a little bit in the last
    day since Ive sort of geared myself up for the testimony. I mean, it, it does
    cause you to wonder whether indefinite incarceration is the only or appropriate
    remedy for somebody who has not had serious treatment or serious community
    supervision and whose offences in the main have not been serious, although,
    again, the caveat is that multiple less serious offences can add up the trauma
    that is the equivalent of a serious offence.
The problem
    is I, I cant tell you anything about [the appellant] and reasonable
    possibility or reasonable expectation.
I, I, I think I agree with you
    that I, I share that thought of, you know, whether it would make sense to, to
    go to the next level in terms of the intensity of the treatment and in terms of
    the intensity of the supervision, which would be CSC and a supervision order.
But I, I just  I, I cant come out, obviously, in favour of
    reasonable possibility or reasonable expectation for lack of personal knowledge
    of [the appellant]
.
[Emphasis added.]

[17]

Ultimately,
    with the benefit of Dr. Klassens testimony and all other available evidence, the
    sentencing judge was satisfied that the evidence established beyond a
    reasonable doubt a very substantial probability that [the appellant] will
    reoffend violently against a future domestic partner. She held that:

[The appellants] pattern of controlling and assaultive
    behaviour in the context of his relationships makes it likely that he will
    inflict death, injury or severe psychological damage on intimate partners. [The
    appellants] pattern of conduct is one of persistent and escalating domestic
    violence. [The appellant] has acted violently and faced criminal charges in the
    context of three out of his four known intimate relationships in the 12 years
    that he has been in Canada.

[18]

Immediately
    after making this finding, the sentencing judge stated: while I accept the
    general proposition that risk of violent recidivism declines with age for most
    offenders, a general pattern does not necessarily predict the behaviour of an
    individual offender. She found that the appellants pattern of escalating
    behaviour did not conform to the general pattern of linearly declining
    violence with age attested to by Dr. Klassen.

[19]

The
    appellant raises two issues with the sentencing judges finding on the general
    pattern evidence. First, the appellant argues that the sentencing judge misapprehended
    the general pattern of decline with age described by Dr. Klassen. Second, he
    argues that based on that misapprehension, the sentencing judge mistakenly
    found that the appellants pattern of offending was inconsistent with the
    general pattern of decline. This culminated in the sentencing judge
    substituting her own opinion for how the age-related decline phenomenon applied
    to the appellant and predicted a level of violence not supported in the
    evidence.

[20]

First,
    with respect to the concept of linear decline, the appellant argues that the trial
    judge wrongfully characterized Dr. Klassens conception of age-related decline
    as linear: i.e., that risk of violent behaviour declines linearly as an
    offender ages. The appellant argues that this conception would be absurd: it
    would mean that offenders would be at their maximal risk of offending during infancy
    and that risk would steadily decline thereafter.

[21]

The
    appellant argues that Dr. Klassens evidence, properly characterized, is that the
    risk of different types of offending can be expected to decline at different
    rates, and that for most types of violent offending there is an expected
    decline in risk after the age of 40, and a greater decline after the age of 50.
    He submits the sentencing judges articulation of the pattern as linear was
    incorrect.

[22]

The
    appellant argues the sentencing judges mischaracterization of the evidence
    contributed to her second error. With respect to the application of age-related
    decline to the appellant, the appellant submitted that the trial judge erred in
    finding the appellant fell outside the general expectation of declining future risk.
    The fact that his pattern of violence escalated in his 30s was not evidence that
    his risk of offending would not decline with age, but rather that he had not
    yet reached the age at which his risk of re-offence could be expected to
    decline. The salient evidential point, according to the appellant, is not that the
    appellants pattern of offending up to his mid-30s showed an escalation in
    violence, but that his risk of violence could be expected  as with other
    offenders  to decline as he aged. Thus the appellant points to Dr. Klassens
    statement: Im comfortable on the basis of age-related decline that this
    gentlemans risk would be significantly less [at 50] than it is at the age of
    35. The appellant argued these errors led the sentencing judge to substitute
    her own opinion of how age-related decline applied to the appellant and
    predicted a level of violence not born out in the expert evidence.

[23]

I
    do not agree that the sentencing judge misapprehended Dr. Klassens on the
    concept of linear decline. Summarizing Dr. Klassens evidence on this point,
    the sentencing judge said: The risk generally declines linearly with age.
Past the age of 50 years there is generally a significant
    decline in the risk of violent recidivism
 (emphasis added).
    Furthermore, at all other points in her reasons, the sentencing judge
    accurately describes Dr. Klassens evidence as a general pattern of decline
    with age. Her use of the word linearly  which Dr. Klassen used in his
    testimony  does not commit her to the absurdity proposed by the appellant. It
    is implicit in the sentencing judges reasons that decline followed from a particular
    age that may not the same for all offender or all offences.

[24]

In
    addition, the sentencing judge did not find that age-related decline does not
    apply to the appellant. She merely found that a general pattern does not
    necessarily predict the behaviour of an individual offender, and that because
    of the lack of evidence of the appellants particular characteristics, she
    could not say whether it would apply to him: Without evidence of [the
    appellants] attitudes, insight and motivation I cannot say that age will
    significantly reduce risk in this offender.

[25]

This
    was consistent with Dr. Klassens testimony that he could not make
    determinations specific to the appellant because he lacked sufficient
    information. Dr. Klassens comment that he was comfortable that the appellants
    risk at age 50 would be significantly less than at age 35 must be considered in
    the context of his entire testimony. He was attempting to clarify the
    difference between the actuarial predictors and the phenomenon of age-related
    decline. He was speaking generally of age-related decline, and stated on the
    basis of the general trends alone  without considering any other measures, the
    appellants history, or personal characteristics  that he was comfortable the
    appellants risk would decline. While it may have been a poor choice of words,
    Dr. Klassen was not giving a definitive, clinical opinion, based on his
    assessment of the appellant, that the appellants risk would be significantly
    lower past the age of 50. This is clear based on his consistent comments before
    and after that particular answer, that he could not make any definitive
    findings because he lacked sufficient knowledge of the appellant. He could not
    definitively say the general pattern of age-related decline would apply to the
    appellant, nor could he say it would not.

[26]

Accordingly,
    the sentencing judge did not, as the appellant suggests, substitute her own opinion
    that age-related decline does not apply to the appellant and subsequently predict
    a level of violence not supported by the expert evidence. She merely found that
    the phenomenon of age-related decline was not something she could consider in
    determining the appellants specific risk of violent re-offence.

[27]

The
    sentencing judges conclusion that there was a high likelihood of future
    violent reoffending in the intimate partner context was based on all the
    evidence before her, including Dr. Klassens evidence. Dr. Klassens opinion
    was that the appellant presents a very high risk of future intimate partner violence
    recidivism. He also testified that, compared with other offender groups,
    offenders who engage in intimate partner violence generally have higher rates
    of recidivism. The appellant placed in the highest risk category under the
    ODARA, which predicted significant risk of violent recidivism. The appellant also
    had a long history of violent and controlling behaviour against his intimate
    partners, which escalated in the years leading up to the index offences. The
    sentencing judges findings on likelihood of harmful recidivism were open to
    her, and there is no basis on which I would interfere.

Failure to consider intractability at the designation stage

[28]

The
    appellant argues the trial judge erred in failing to consider the issue of
    intractability and treatment prospects at the designation stage of the
    dangerous offender hearing. As
Boutilier
, at para. 46, concludes, a
    finding of dangerousness has always required that the Crown demonstrate, beyond
    a reasonable doubt, a high likelihood of harmful recidivism and the
    intractability of the violent pattern of conduct. The sentencing judge did not
    have the benefit of
Boutilier
and, as the Crown concedes, did not consider
    in the designation analysis the intractability of the appellants violent
    pattern of conduct. That is, the sentencing judge did not consider the extent
    to which the risk of future violent offending could be ameliorated by future
    treatment: offenders will not be designated as dangerous if their treatment prospects
    are so compelling that the sentencing judge cannot conclude beyond a reasonable
    doubt that they present a high likelihood of harmful recidivism or that their
    violent pattern in intractable:
Boutilier
, at para. 45. The appellant
    argues this error fatally undermines the dangerous offender designation.

[29]

The
    appellant further argues that the fact that the sentencing judge addressed
    intractability in the sentencing stage in no way cures the omission to address
    intractability in the designation phase. More specifically, he argues the
    sentencing judge erred in her intractability assessment in the sentencing stage
    by imposing an onus on the appellant to prove his conduct was not intractable. Because
    of that error, this court cannot rely on the sentencing-stage analysis to
    remedy the sentencing judges error at the designation stage.

[30]

I
    disagree that the sentencing judges failure to consider intractability at the
    designation stage undermines the conclusion on designation. As I explain below,
    the sentencing judge did not impose an onus on the appellant to prove his
    conduct was not intractable, and this court can rely on the sentencing-stage
    analysis in assessing the sentencing judges determination on the dangerous
    offender designation. In my view, there is no reasonable prospect on this
    evidential record that the sentencing judge would have made a different finding
    had she expressly considered intractability at the designation stage.

B.

The Imposition of an Indeterminate Sentence

[31]

The
    appellants grounds of appeal related to the sentencing stage of the dangerous
    offender hearing centre around the sentencing judges alleged focus on the
    absence of evidence, rather than on the evidence before her. The appellant
    argues that, by focusing on what evidence she did not have instead of the
    evidence she did, the sentencing judge committed two errors. First, she imposed
    an onus on the appellant to prove his conduct was not intractable. Second, she
    failed to impose the least restrictive sentence necessary to protect the
    public, being a determinate sentence followed by a long-term supervision order
    (LTSO) served in the community.

Onus on the appellant to prove his conduct was not
    intractable

[32]

As
    the appellant argues,
Boutilier
makes it clear that intractability is
    relevant to both stages of a dangerous offender hearing: in the first with
    respect to whether the offenders risk of offending is amenable to treatment,
    and in the second with respect to what sentence is appropriate to address the
    degree of intractability. The questions that the finding of intractability help
    answer are therefore different at each stage. But one would not expect a
    sentencing judges findings with respect to intractability to vary across the
    two stages of analysis. In the present case, the findings made by the
    sentencing judge at the sentencing stage are readily transposed to the
    designation stage.

[33]

At
    the sentencing stage in this case, the sentencing judge found that the
    appellants conduct demonstrated high level intractability and that there was
    no reasonable prospect of control of the appellant in the community. As was the
    case in
R. v. Gracie
, the sentencing judges finding that there was
    no reasonable prospect of control of the appellant in the community at the penalty
    stage can  be relied on at the designation stage: 2019 ONCA 658, 147 O.R.
    (3d) 385, at para. 37.

[34]

The
    evidence before the sentencing judge was that the appellants future treatment
    prospects were poor. The most that can be said is that the appellant had been,
    historically, willing to participate in treatment programs offered to him and
    was reported to have been polite and cooperative while participating. As the
    sentencing judge noted, this is some evidence of motivation and commitment to
    treatment. But for the purposes of assessing intractability, it is at least as
    significant that programming that was undertaken effected no change in
    behaviour.

[35]

A
    survey of the appellants behaviour during and after participation in
    programming was not encouraging. After completing the Partner Assault Response
    (PAR) program in 2009, the appellant committed further intimate partner
    violence offences. While participating in the PAR program in 2012, he again committed
    further intimate partner violence offences. While participating in the PAR
    program in 2013, he committed acts of violence against N.J. After he had
    completed the program, he committed the predicate offences.

[36]

Neither
    have court orders been effective at controlling the appellant: he repeatedly
    breached terms of his recognizance by contacting his partners while prohibited,
    and he committed intimate partner violence offences while on recognizance and
    while on probation.

[37]

There
    was no evidence before the sentencing judge that would have allowed her to come
    to the conclusion that the appellants treatment prospects were so compelling
    that they cast doubt on the likelihood of violent reoffending. The most that
    can be said is that there was an absence of evidence as to whether more
    intensive programs offered through Correctional Service Canada would have more
    of an impact. Dr. Klassen was open to the possibility that a clinical
    assessment of the appellants attitudes, insights, and motivation might have
    supported a conclusion that the appellants risk of re-offence could be managed
    in the community. But because the appellant chose not to participate in such an
    assessment, this remained mere conjecture.

[38]

The
    sentencing judges approach was not, as the appellant argued, a matter of
    putting an onus on the appellant to prove that his risk of violent recidivism
    is amenable to treatment. The sentencing judge found that the evidence
    established that the appellant posed a risk of violent recidivism. The
    remaining question was whether the risk could be managed by treatment. To the
    sentencing judge, the available evidence established that it could not be. The
    appellant now raises speculative possibilities that cannot be established or
    negated because of his decision not to participate in the assessment process.
    The appellant had no obligation to participate, but having not done so, he
    cannot appeal to the evidence that might have been.

Failure to impose the least intrusive sentence required to
    protect the public

[39]

Once
    a sentencing judge has found an appellant to be a dangerous offender, the
    sentencing judge must impose sentence. Section 753(4.1) directs a sentencing
    judge to impose:

a sentence of detention in a penitentiary for an indeterminate
    period unless it is satisfied by the evidence adduced during the hearing of the
    application that there is a reasonable expectation that a lesser measure under
    paragraph 4(b) or (c) will adequately protect the public against the commission
    by the offender of murder or a serious personal injury offence.

[40]

As
    the Supreme Court of Canada explained in
Boutilier
, at para. 60, s.
    753(4) requires a sentencing judge to impose the least intrusive sentence
    required to achieve the primary purpose of the scheme, which is the goal of
    public protection. This requires a sentencing judge to conduct a thorough
    inquiry as to whether the dangerous offender can be controlled in the community,
    by considering all the evidence from the hearing to determine the most fit
    sentence. Part of this inquiry is to assess the degree of the offenders
    intractability, and whether a proposed disposition can surmount it:
Boutilier
,
    at paras. 45, 67-68. Consequently, a finding that an offenders risk can be
    managed in the community requires an evidential foundation.

[41]

In
    the case of the appellant, the sentencing judge canvassed a non-exhaustive list
    of factors from
R. v. D.B.
, 2015 ONSC 5900, to aid in assessing
    whether the evidence supported a reasonable expectation that something less
    than an indeterminate sentence could adequately protect the public. Among the most
    significant of the sentencing judges findings are that the treatments
    undertaken by the appellant to date had no impact on reducing or controlling
    the risk he presents; the appellant minimized and rationalized his conduct
    and blamed the victim for his conduct; and the appellant had been
    non-compliant with recognizances in the past and threatened and intimated the victim
    in order to convince her to recant her allegations.

[42]

A
    significant factor in the sentencing judges analysis is the nature of the
    offence for which the appellant was convicted: the offence was committed in the
    context of a pattern of violently exercising control and domination over a
    former intimate partner. The sentencing judge noted that high intensity treatment
    programs would be available to the appellant in the federal penitentiary system
    that had not previously been available to him during his incarceration in the
    provincial system. However, the sentencing judge was not prepared to speculate
    on the efficacy of these programs. She stated two reasons for caution:  first,
    there was no evidence that the appellant would meaningfully participate in
    them; and second, even assuming he would participate, she was unable to
    ascertain the efficacy of such programs, absent any information about the
    entrenchment of his attitudes and the factors that drive his conduct towards
    intimate partners.

[43]

It
    is the latter factor that drove the sentencing judges analysis. The sentencing
    judge could not find that treatment would likely change the appellants
    behaviour when there was no evidence before her about the nature of the
    anti-social attitudes that drove his offending or how amenable such attitudes
    would be to available treatment.

[44]

Again,
    this finding was not a matter of imposing an onus on the appellant. He had no
    obligation to testify or to submit to an assessment by Dr. Klassen. But he also
    chose not to facilitate any access to his family outside Canada who could have
    provided background information that would be useful in a clinical assessment.
    The evidentiary vacuum that existed was entirely of his making. He cannot now
    complain that it is somehow unfair that the evidence adduced at the hearing did
    not support the proposition that the public could be adequately protected from
    him by the imposition of a lesser sentence.

[45]

The
    absence of information about the attitudinal drivers of the appellants conduct
    was important to the sentencing judges conclusion that a LTSO would be insufficient
    to protect the public. The sentencing judge considered Dr. Klassens somewhat ambivalent
    evidence as to whether the appellants risk could be managed by a determinate
    sentence combined with a 10-year LTSO. However, she also characterized Dr.
    Klassens evidence on this point as a feeling or impression, rather than a
    clinical opinion, as he lacked sufficient evidence and personal knowledge of
    the appellant to give a clinical opinion. Dr. Klassen testified that to give an
    opinion, he would need evidence on how entrenched the appellants attitudes
    are, on how deviant his lifestyle is, and on how willing the appellant is to
    change his lifestyle. Accordingly, the sentencing judge concluded that this
    evidence was not sufficient to ground a conclusion that such a sentence would
    adequately protect the public, understanding that the public includes 
    predominantly in this case  any future intimate partners of the appellant. The
    sentencing judge gave cogent reasons for this conclusion:

However, release to a [community correctional centre (CCC)]
    necessarily entails community access. When released to a CCC [the appellant]
    would be given access to the community at least through the day and would have
    an opportunity to forge relationships. In my view, the supervision and control
    available upon release is not adequate to protect future intimate partners
    absent meaningful treatment, insight and a willingness on [the appellants] part
    to comply with supervision. I have no evidence that Mr. [the appellant] is
    capable of changing his conduct with treatment. Treatment to this point has had
    no effect on [the appellants] conduct. Without evidence of what has driven [the
    appellants] conduct and evidence that treatment could effect a change within a
    defined period of time, I cannot conclude that there are sufficient external
    controls in the community to adequately protect the public.

[46]

The
    Supreme Court in
Boutlilier
, at para. 54, reminds that all general sentencing
    principles continue to apply in sentencing under the dangerous offender
    provisions. The sentencing judge was keenly aware of this and specifically
    addressed the application of the jump principle, and that the imposition of
    an indeterminate sentence for this offender constituted a significant jump from
    previous sentences imposed. Despite his history of offending, the appellant had
    received a series of comparatively light sentences, never having been incarcerated
    for more than six months at a time (and always in the provincial system), and
    often receiving suspended sentences. Nonetheless, on the evidence before her, the
    sentencing judge could not conclude that there was a reasonable expectation
    that a regime of treatment and supervision could adequately protect the public.
    The operation of the jump principle does not negate this conclusion.

DISPOSITION

[47]

The
    appeal against conviction is dismissed as abandoned. The appeal against
    sentence is dismissed.

Released: BWM DEC 03 2020

B.W. Miller J.A.

I agree. Gary
    Trotter J.A.

I agree. S. Coroza
    J.A.


