



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), (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    that could identify the complainant or a witness shall not be published in any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, 172,
    172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or
    347,

(ii)  an
    offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent
    assault on female), 156 (indecent assault on male) or 245 (common assault) or
    subsection 246(1) (assault with intent) of the
Criminal Code
, chapter
    C-34 of the Revised Statutes of Canada, 1970, as it read immediately before
    January 4, 1983, or

(iii) an
    offence under subsection 146(1) (sexual intercourse with a female under 14) or
    (2) (sexual intercourse with a female between 14 and 16) or section 151
    (seduction of a female between 16 and 18), 153 (sexual intercourse with
    step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent
    or guardian procuring defilement) or 167 (householder permitting defilement) of
    the
Criminal Code
, chapter C-34 of the Revised Statutes of Canada,
    1970, as it read immediately before January 1, 1988; or

(b)     two
    or more offences being dealt with in the same proceeding, at least one of which
    is an offence referred to in any of subparagraphs (a)(i) to (iii).

(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 complainant of the right to
    make an application for the order; and

(b)  on application made by the complainant, the prosecutor
    or any such witness, 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).

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. Halliday, 2012 ONCA 351

DATE 20120525

DOCKET: C54229

Rosenberg, Gillese and Hoy JJ.A.

BETWEEN

Her Majesty The Queen

Respondent

and

Shane Halliday

Appellant

Michael Dineen, for the appellant

Eliott Behar, for the respondent

Heard: April 17, 2012

On appeal from the conviction entered by Justice Wren of
    the Ontario Court (General Division) on June 8, 1999, and the sentence imposed
    on June 4, 2001.

ENDORSEMENT

[1]

The appellant appeals from the finding by Wren J. in 2001 that the
    appellant is a dangerous offender and from the sentence of indeterminate
    detention. Through no fault of the appellant and his current counsel, there has
    been an extremely long delay in perfecting this appeal. Because of the delay,
    an order was made for updated psychiatric reports. Those reports have now been
    filed and the authors of those reports, Dr. Bradford and Dr. Klassen, were
    cross-examined prior to the hearing. We have also received other material
    relating to the appellants behaviour and progress in the penitentiary. The
    appellant agrees that the dangerous offender designation and indeterminate
    sentence were proper when made back in 2001. He submits, however, that the
    recently filed reports show that he should be given a determinate sentence to
    be followed by a long-term supervision order. For the following reasons we do
    not accept that submission and the appeal is dismissed.

[2]

The predicate offence that led to the dangerous offender finding
    occurred in 1997. The appellant had recently been released from prison and had
    begun a relationship with N.H., which she then ended. When the appellant was
    rebuffed in an attempt to resume the relationship, he went to the apartment of
    a friend of N.H., A.L. He gained entry to the apartment by a ruse. He then held
    a knife to the complainants throat and violently raped her vaginally and
    anally. The complainant was later treated for knife wounds and injuries to her
    genital area. The offence had a devastating psychological impact on the
    complainant.

[3]

At the dangerous offender hearing, the prosecution led evidence of
    numerous sexual offences committed by the appellant from 1987 to his
    imprisonment in 1994. Beginning in 1987 and for a four year period he
    frequently assaulted his then girlfriend, J.W., when she was between the ages
    of 13 and 17. These assaults included physical violence with his fists
    requiring medical attention, stabbing her in the arm, violence with knives
    generally and multiple sexual assaults at knifepoint. When this victim finally
    ended the relationship, the appellant raped her sister, S.W., at knifepoint in
    1993.

[4]

In 1992, when another girlfriend, A.S., broke off her relationship with
    the appellant, the appellant broke into her apartment and threatened her with a
    wrench. The appellant confined this 17-year-old victim for 30 to 60 minutes,
    until another male intervened. The appellant was charged and released on bail.
    Friends of the appellant threatened to kill the victim unless she dropped the
    charges. In the end, the victim failed to attend court and the charges had to
    be withdrawn.

[5]

Two months after raping S.W., the appellant raped another 17-year-old
    woman, T.F-L. The appellant had had a relationship with this woman, which ended
    when the appellant was jailed. In May 1993, they agreed to meet. The appellant
    took her to a field on a pretence that they were going to meet a friend. The
    appellant pulled out a knife and raped the victim while holding the knife to
    her throat. The assault had a devastating impact on the victim, who described
    extreme anxiety, panic attacks and sleep disorders.

[6]

On October 3, 1994, the appellant pled guilty to the sexual assaults
    involving T.F-L. and S.W. The appellant admitted through counsel that he
    required treatment. The presiding judge imposed a sentence of two years and
    four months imprisonment, in addition to 16 months pre-sentence custody, and
    recommended treatment, including sex offender treatment. Once he reached the
    penitentiary, the appellant refused to take any treatment. The appellant was
    classified as being at high risk for violent recidivism.  He was held in prison
    until the warrant expiry date. Ten months after being released, the appellant
    raped A.L., the victim of the predicate offences.

[7]

The psychiatric and other evidence at the dangerous offender hearing
    overwhelmingly established that the appellant was a dangerous offender and that
    an indeterminate sentence was the only possible disposition. The appellant has
    displayed aggressive behaviour from a very young age and by age 12 was drinking
    heavily and taking drugs. Despite an impressive amount of social service
    intervention, the appellant made no improvement. He either failed to respond to
    treatment programs or withdrew from them. In addition to his record for sexual
    offences, the appellant has a significant youth and adult record for theft, mischief,
    assault with a weapon, escape from lawful custody, possession of a weapon and
    break and enter. He also fared badly in various institutions, acquiring an
    extensive adult institution record.

[8]

The psychiatric diagnosis at the dangerous offender hearing was that the
    appellant had an antisocial personality disorder and sexual paraphilia that was
    most unlikely to respond to treatment. The various actuarial tools used by the
    experts scored the appellant as extremely likely to re-offend.

[9]

The fresh evidence paints a slightly more optimistic picture for the
    appellant. After years of refusing treatment, the appellant had begun to
    participate in some treatment programs and in particular had completed a high
    intensity sex offender treatment program. That said, the diagnosis and risk of
    re-offending remains largely unchanged.

[10]

Dr.
    Klassen, who also testified at the original dangerous offender proceeding,
    concluded that the appellant suffered from personality disorder of an
    antisocial type with borderline traits, alcohol dependence disorder, and a
    paraphilic coercive disorder involving a preference for non-consenting sexual
    interaction. The actuarial tools,
inter alia
, showed the appellant to be
    100% likely to re-offend within ten years. Dr. Klassen was of the view that
    there was no reasonable possibility of eventual control of risk in the
    community. The appellant would require a significant period of behavioural
    quiescence and clear substance abstinence, in the institution, along with
    evidence of increased commitment to self-change, and reflection, prior to
    contemplation of (even limited) community release.

[11]

Dr.
    Bradford agreed with Dr. Klassens psychiatric diagnosis of the appellant.
    However, he also believed that the appellant suffered from adult ADHD. He was
    of the opinion that there was a reasonable possibility of eventual control of
    the appellants risk in the community if the appellant underwent
    pharmacological treatment for ADHD and pharmacological castration and was
    subject to random urinalysis for substance abuse. Dr. Bradford was critical of
    the actuarial instruments, being of the opinion that research did not support
    the use of these instruments for determining whether an accused should be
    indefinitely incarcerated.

[12]

Correctional
    records filed on the appeal showed that the appellant had an extensive history
    of institutional charges up until 2009. Thereafter, his behaviour had improved
    and he was now classified as medium security.

[13]

In
    his very helpful submissions, Mr. Dineen mounted a substantial attack on the
    use of the actuarial instruments upon which Dr. Klassen relied. These
    instruments have come into use as a way of providing a more objective measure
    of dangerousness than may be possible through purely clinical observation. In
    our view, this is not an appropriate case to determine the usefulness of these
    instruments. Evaluation of these instruments would require a proper record,
    which was lacking in this case. All that was before us was Dr. Bradfords
    scepticism about the utility of the instruments and some journal articles filed
    by the appellants counsel. Most significantly, neither experts opinion
    depended upon these instruments.

[14]

In
    our view, the fresh evidence does not warrant allowing the appeal and
    substituting a determinate sentence followed by a long-term supervision order.
    A long-term supervision order is appropriate where there is a reasonable
    possibility of eventual control of the risk in the community: see
R. v.
    Johnson
, 2003 SCC 46, [2003] 2 S.C.R. 357. The long-term supervision order
    must be capable of reducing the threat to an acceptable level. The fresh
    evidence does not meet that test. Even Dr. Bradfords opinion was premised on
    successful use of a number of different pharmacological and behavioural tools.
    Given the appellants long history of serious sexual offences and violent
    conduct and his resistance to treatment, it was nothing more than a hope that
    the appellants dangerousness might be controlled in the community.

[15]

The
    appellants participation in the high intensity sex offender treatment program
    is to be commended, as is his most recent conduct in the institution. However,
    it must be borne in mind that the appellant has previously expressed an
    interest in treatment, at the 1994 sentencing and the 2001 dangerous offender
    proceeding. In both cases, he subsequently refused treatment. The most recent
    interest in treatment while this appeal was pending, some eight years after the
    dangerous offender finding, must be viewed with scepticism. It is too slender a
    foundation to warrant putting the safety of the public at risk, given the
    appellants history.

[16]

Given
    the record that was before the sentencing judge as supplemented on this appeal,
    the conclusion of this court in
R. v. T.L.
, 2008 ONCA 766, at paras. 5-7
    applies:

We confess to some difficulty in understanding why an appeal
    would be allowed when everyone agrees that even if the LTO order was available
    to the appellant at the time of sentencing, he was properly declared a
    dangerous offender at the trial. In other words, it is conceded by everyone
    that the dangerous offender order was the correct order. We do, however,
    acknowledge that on sentence appeals from time to time this court considers
    evidence of post sentencing events that may cause the court to vary a sentence
    that was fit when imposed.

The appellant's argument is based exclusively on alleged post
    sentence changes in the appellant which at best make him a potential candidate
    for an LTO designation. Dr. Ben-Aron's opinion is guarded but hopeful. There
    are however many contingencies or uncertainties that would have to be fully
    explored before the ultimate merits of the release of the appellant into the
    community could be determined.

From an institutional perspective, we think the parole board
    exercising its jurisdiction under section 761 of the
Criminal Code
is in
    a much better position than a trial court to make the necessary assessments.
    There would be many problems associated with a new dangerous offender hearing
    so many years after the relevant events, not the least of which would be the
    possibility of re-traumatizing all of the victims through the need to appear
    and testify at a new hearing.

[17]

It
    may be that in a proper case, this court could allow an appeal from a dangerous
    offender finding where the fresh evidence is sufficiently compelling to show
    that the original order was unnecessary. That is not this case. Accordingly,
    the appeal is dismissed.

Signed:        M. Rosenberg J.A.


E.E.
    Gillese J.A.

 Alexander
    Hoy J.A. 


