



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    that could identify the victim or a witness shall not be published in any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(iii)     REPEALED: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    shall not be published in any document or broadcast or transmitted in any way.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. Gracie, 2019 ONCA 658

DATE: 20190819

DOCKET: C63832

Rouleau, Miller and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Daniel Gracie

Appellant

Andrew Furgiuele and Angela Ruffo, for the appellant

Gregory J. Tweney, for the respondent

Heard: March 21, 2019

On appeal from the sentence imposed by Justice Peter B. Hockin
    of the Superior Court of Justice on February 24, 2015.

Rouleau J.A.:

A.

OVERVIEW

[1]

The appellant appeals from his designation as a dangerous offender and
    from his sentence of an indeterminate period of incarceration. His designation
    and sentence followed his guilty plea to two counts of aggravated sexual
    assault after endangering the lives of two women by having unprotected sex with
    them without first disclosing his HIV-positive status. Both women contracted
    the disease as a result of these offences.

[2]

In his factum, the appellant sets out three grounds of appeal. In oral
    submissions, however, we were advised that only two of these grounds were being
    pursued: the failure of the sentencing judge to conduct the necessary
    prospective risk assessment at the designation stage, as required by
R. v.
    Boutilier
, 2017 SCC 64, [2017] 2 S.C.R. 936, and the sentencing judges
    failure to consider the fact that the appellant was Indigenous and the relevant
    principles from
R. v. Gladue
, [1999] 1 S.C.R. 688.

[3]

The Crown concedes that the two errors were committed, but maintains
    that neither had an impact on either the designation of the appellant as a
    dangerous offender or the indeterminate sentence imposed on him. In the Crowns
    submission, this is one of the rarest of circumstances where, as explained in
R. v. Johnson
,
2003
    SCC 46, [2003] 2 S.C.R. 357, at para. 49, the appeal can be dismissed pursuant
    to s. 759(3)(b) of the
Criminal Code
, R.S.C., 1985, c. C-46,

because
    there is no reasonable possibility that the verdict would have been any
    different had the error of law not been made: see also
R. v. Sipos
,
    2014 SCC 47, [2014] 2 S.C.R. 423, at paras. 24, 48.

[4]

For the reasons that follow, I would dismiss the appeal.

B.

FACTS

(1)

The appellants
    background

[5]

The appellant is a 43-year-old man of Indigenous ancestry. As an infant,
    he was adopted by non-Indigenous parents, with whom he maintained a positive
    relationship. When he was approximately 15 years old, he moved out of his
    parents home and started having contact with the criminal justice system.

[6]

The appellant has now amassed a lengthy criminal record, consisting of
    25 youth convictions and 10 adult convictions. At the age of 20, he was
    convicted of sexual assault causing bodily harm for the violent rape of a
    prostitute. He had taken her to a secluded area where he had punched her, raped
    her anally and vaginally, and then ejaculated into her mouth. When the
    sentencing judge imposed a five-year sentence on the appellant, he observed
    that the appellant suddenly became a predator for absolutely no reason.

[7]

While in custody for this offence, the appellant was charged and
    convicted of the offence of counseling the murder of the police officer who had
    investigated the sexual assault causing bodily harm charge for which he was
    convicted. The sentencing judge observed that the appellant appeared to be
    motivated solely by his desire for revenge and retribution. He imposed a
    five-year penitentiary sentence, consecutive to the sentence the appellant was
    then serving.

[8]

Following his release from prison, the appellant received further
    convictions for uttering threats, possessing a weapon for a dangerous purpose,
    and assaulting a police officer. It is while he was on probation for these
    offences that he committed the predicate offences.

(2)

The predicate
    offences

[9]

The appellant pleaded guilty to two counts of aggravated sexual assault.
    He had failed to disclose to two women that he was HIV-positive and transmitted
    the HIV virus to them through sexual activity, thereby endangering their lives.

[10]

The first complainant, C.C., came to know the appellant as they spent
    time walking their dogs together. In early 2010, after an evening of drinking
    in C.C.s apartment, the appellant asked her several times to have sex with him.
    She refused every time. At approximately midnight, feeling ill and tired, she
    went to bed. The appellant said he would sleep over on the futon in the living
    room. When C.C. woke up the next morning, her vagina was sore and she observed
    semen leaking out of it. After initial denials, the appellant ultimately
    admitted that he had sex with her while she was asleep. Approximately one year
    later, after getting blood work done in relation to a pregnancy, C.C. found out
    that she had contracted HIV.

[11]

The second complainant, M.N., was involved in sporadic relationships
    with the appellant between 2008 and 2011. When they dated in 2010, the
    appellant told M.N. on multiple occasions that he did not have a sexually
    transmitted disease. They engaged in unprotected sex. In 2011, they started
    dating again and engaged in unprotected intercourse after the appellant
    confirmed that he had no sexually transmitted diseases. In April of that year, M.N.
    saw a police media release naming the appellant as an HIV-infected person
    charged with aggravated sexual assault. She sought medical treatment and
    learned that she had contracted HIV from the appellant.

[12]

To establish the
mens rea
component of the offences, medical
    evidence dating back to 2002 was tendered. It demonstrated that the appellant
    had been educated by physicians on the great risk posed by unprotected sex to sexual
    partners.

(3)

The uncharged conduct
    involving a third victim

[13]

At the sentencing hearing, the Crown tendered the evidence of N.R. N.R.
    had met the appellant through a social networking site in 2009. Later that
    year, the appellant travelled to Halifax to visit N.R. He stayed with her, her
    children, and her parents. The appellant assured N.R. that he had no sexually
    transmitted disease. The appellant and N.R. had unprotected sex on several
    occasions.

[14]

When the appellant left Halifax, N.R. learned that, contrary to what he
    had told her, he did not live with a male roommate but rather with his girlfriend.
    N.R. then broke off relations with the appellant some time later.

[15]

Approximately three years later, in October 2012, N.R. learned that the
    appellant was HIV-positive. She reported the matter to police and was tested
    for HIV. The test was negative. The sentencing judge relied on N.R.s testimony
    as further evidence of the pattern of behaviour that could support a dangerous
    offender designation.

(4)

The appellants
    supervision and treatment history

[16]

While serving his ten-year penitentiary sentence commencing in 1996, the
    appellant was identified as being a High Risk/Needs offender. His
    correctional plan recommended that he attend various programs, including a sex
    offender program, an anger and emotions management program, and an educational
    upgrading program. Although the appellant attended some of the recommended
    programs, there was, overall, little progress in completion of his correctional
    plan and no observable change in his behaviour. According to his parole
    officer, there was no change in the appellants level of insight into his
    offending behaviour.

[17]

The National Parole Board, who reviewed the appellants detention on
    four occasions, also noted in its first assessment that the appellant lacked
    insight into his risk factors. The following three assessments respectively
    noted that there was no change in his level of insight, no reduction in risk,
    and no observable change in his behaviour. It determined that the appellant should
    remain incarcerated until the expiration of his sentence.

[18]

While the appellant was on probation following his 2008 convictions for
    the offences of uttering threats, possessing a weapon, and assaulting a police
    officer, the police expressed concern to the probation officer who supervised
    him that the appellant might be having unprotected sex and not disclosing his
    HIV status to potential sexual partners. As a result, the probation officer clearly
    conveyed to the appellant the moral and legal obligations of reporting his HIV
    status to potential partners. The two predicate offences and the uncharged
    assault on N.R. occurred subsequent to this caution.

[19]

Following his arrest for the predicate offences, the appellant was
    detained at the Elgin Middlesex Detention Centre. He was detained there for
    over three years while he was awaiting sentencing. During that time, the
    appellant expressed some remorse and acceptance of responsibility for the
    failure to disclose his HIV status to his sexual partners. In addition to being
    drug-free, he incurred no misconducts or occurrences during this detention.
    Moreover, the appellant was committed and motivated to address issues that had caused
    him trouble in the past and to make necessary changes to his life. He was an
    active participant in institutional programming to address his substance abuse
    and anger management issues, as well as to reduce stress.

(5)

Psychiatric evidence

[20]

Dr. Scott Woodside performed the psychiatric assessment ordered under
    s. 752.1 of the
Criminal Code
and Dr. Gary Chaimowitz provided
    expert evidence for the defence. Both experts found that the appellant suffers
    from antisocial personality disorder. A diagnosis of antisocial personality
    disorder results from meeting at least three of seven criteria, including
    failure to conform to social norms, deceitfulness, impulsivity, reckless
    disregard for the safety of self or others, and lack of remorse. The appellant
    met all seven criteria.

[21]

The appellants scores on PCL-R, an instrument used to measure
    psychopathy, indicated that he had significant psychopathic traits but that he
    was situated slightly below the cut-off for a formal diagnosis of psychopathy.

[22]

The experts also found that the appellant suffered from a marijuana dependence
    disorder. From their clinical and actuarial evaluation of the appellant, the
    experts opined that he posed a moderate to high risk for both sexual and
    violent recidivism.

[23]

The experts also agreed that antisocial personality disorder and
    psychopathy are generally difficult to treat but disagreed on his future treatment
    prospects. In his report, Dr. Woodside provided the following summary:

Overall, there are significant
    issues present relating to managing this individuals risk in the community.
    This is most evident regarding the index offenses wherein Mr. Gracie was
    counseled by both medical personnel and his probation officers regarding the
    need to advise intimate partners of his HIV status but failed to do so. This
    illustrates the difficulty in attempting to manage this type of offending
    behaviour in the community, especially where the offender is duplicitous.

[24]

Dr. Woodside viewed the appellant as having a moderate-high risk for
    sexually violent recidivism and moderate-high risk for non-sexually violent
    recidivism. He was moderately pessimistic about the ability to successfully
    manage the appellants risk in the community. A specific challenge to risk management
    was the appellants demonstrated history of failing to inform his sexual
    partners of his HIV status despite the counselling he received on multiple
    occasions. Dr. Woodside also found that the appellants professed willingness
    to participate in treatment was undermined by his ambivalence about the
    necessity for treatment and what types of treatments he needed, as well as by his
    struggle to identify treatment targets.

[25]

Dr. Chaimowitz reported, like Dr. Woodside, that the appellants risk
    scores tended toward the moderate to high range, specifically in the sexual
    violence domain. However, in terms of future treatment prospects, Dr.
    Chaimowitz was slightly more optimistic than Dr. Woodside. As the appellant had
    not had the benefit of a comprehensive treatment program, it was possible that
    should he take the appropriate treatment, treatment directed towards his risk
    factors, there may be some opportunity for eventual control of his risk in the
    community. Dr. Chaimowitz noted that, although the appellant appeared much
    more stable than before, there was insufficient evidence to say with any degree
    of certainty whether the appellant could be controlled in the community.

(6)

The
Gladue
report

[26]

A
Gladue
report was filed as an exhibit in the sentencing
    proceedings. The report noted that the appellants biological mother was of
    Mikmiq heritage and a member of the Millbrook First Nations in Nova Scotia. The
    appellant was adopted by his adoptive parents when he was five months old and,
    while the appellant was young, they moved to Toronto. The appellant had four
    siblings and a normal family life. As a young child, a non-Indigenous uncle
    exposed him to sweat lodge and smudging ceremonies, and to hunting, fishing,
    and trapping.

[27]

When the appellant travelled to Nova Scotia to visit N.R. in 2009, he
    also met his biological mother. He was 33 years of age at the time. He told the
    author of the
Gladue
report that he was interested in reconnecting
    with his Indigenous roots. During his detention at the Elgin Middlesex Detention
    Centre, while he was awaiting sentencing in this case, the appellant attended
    an Indigenous cultural program called Native Sons.

C.

THE
    DECISION BELOW

[28]

In his reasons on the Crown application to declare the appellant a
    dangerous offender, the sentencing judge explained that he had adopted the
    approach of this court in
R. v. Szostak
, 2014 ONCA 15, 118 O.R. (3d)
    401, leave to appeal refused, [2014] S.C.C.A. No. 300. Pursuant to
Szostak
,
    the issue to be decided at the designation stage was whether, based on the
    evidence led, including expert evidence, the appellants past conduct
    established beyond a reasonable doubt:

1.

a pattern of repetitive
    behaviour showing a failure to restrain his 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
    behaviour (s. 753(1)(a)(i)); or

2.

a pattern of persistent aggressive behaviour showing a substantial
    degree of indifference on his part respecting the reasonably foreseeable
    consequences to other persons of his behaviour (s. 753(1)(a)(ii)).

[29]

In
Szostak
, the court
explained that the
    intractability of the offending conduct was only considered at the second step
    of the analysis, when the court made the decision as to the appropriate
    sentence to be imposed pursuant to ss. 753(4) and (4.1).

[30]

The sentencing judge concluded that the criteria to designate the
    appellant as a dangerous offender had been made out. He then moved to the
    penalty stage. The sentencing judge was satisfied that there was a reasonable
    expectation that a determinate sentence coupled with a long-term supervision
    order would not adequately protect the public. He found that he was unable to
    act on Dr. Chaimowitzs opinion and instead agreed with Dr. Woodside that a prognosis
    of control in the community was unrealistic. He therefore imposed an
    indeterminate sentence on the appellant.

D.

ISSUE

[31]

As noted earlier, the Crown concedes that the sentencing
    judge committed two errors. First, the sentencing judge failed to conduct the
    necessary prospective risk assessment at the designation stage, as required by
    the Supreme Court of Canada in
Boutilier
. Second, he failed to consider the appellants Indigenous background and
    the relevant
Gladue
principles. The issue on appeal, therefore, is whether the court should
    interfere with the sentence imposed on the appellant, given these two errors.

E.

ANALYSIS

(1)

The intractability
    criteria

[32]

In his analysis, the sentencing judge, relying on
Szostak
,
    essentially removed the intractability analysis from the designation stage and
    moved it to the penalty stage. He cannot be faulted for this because, at the
    time,
Szostak
was the leading authority on the question. The Supreme
    Court of Canada, in
Boutilier
, has since
overruled
Szostak
on this point.
The court explained that prospective risk evidence
    had to be considered both at the designation and penalty stages, albeit for
    different purposes, as follows:

The designation stage is concerned with assessing the future threat
    posed by an offender. The penalty stage is concerned with imposing the
    appropriate sentence to manage the established threat. Though evidence may
    establish that an offender is unable to surmount his or her violent conduct,
    the sentencing judge must, at the penalty stage, turn his or her mind to
    whether the risk arising from the offenders behaviour can be adequately
    managed outside of an indeterminate sentence: at para. 31.

[33]

The appellant submits that, because of this error, the sentencing judge
    did not engage in a prospective risk assessment of the appellant before
    declaring him to be a dangerous offender. As a result, he maintains that the appeal
    should be allowed and the dangerous offender designation set aside. The
    appellant argues that the fact that the sentencing judge found, at the penalty
    stage, that the appellants violent pattern of conduct was intractable does not
    necessarily mean that, had the sentencing judge properly applied
Boutilier
,
    he would have found the appellant to be a dangerous offender at the designation
    stage. The appellant contends that, at the designation stage, the onus is on
    the Crown to prove intractability beyond a reasonable doubt, while at the penalty
    stage, the onus is on the appellant to show that there is a reasonable
    expectation that a lesser measure than an indeterminate sentence will
    adequately protect the public. As a result, the fact that the sentencing judge
    found that the appellant had not met its onus of showing that a lesser measure than
    an indeterminate sentence would adequately protect the public at the penalty
    stage is not equivalent to a finding that the Crown met its onus of proving
    intractability beyond a reasonable doubt at the designation stage.

[34]

In support of this submission, the appellant argues that there was
    evidence suggesting that his offending behaviour was not intractable. In this
    regard, he points to his exemplary conduct during the more than three years he
    spent awaiting sentencing at the Elgin Middlesex Detention Centre. The
    appellants record while in detention shows that he was making progress in
    addressing his issues. According to a counsellor at the detention centre, the
    appellant expressed his desire to address his substance abuse and health
    problems. She noted that he was actively involved in programs and was a model
    prisoner. This evidence addresses the issue of prospective risk but was only
    dealt with by the sentencing judge at the penalty stage, the stage at which the
    onus rested on the appellant. In the appellants submission, this evidence,
    together with other evidence such as Dr. Chaimowitzs evidence of possible
    control, should have been considered at the designation stage when the onus was
    on the Crown. Had it been considered at that stage, it may have raised a
    reasonable doubt as to the intractability requirement that must be met before a
    person can be designated as a dangerous offender.

[35]

I disagree. In my view, despite the sentencing judges error, there is
    no reasonable possibility that the verdict would have been any different. I say
    so for two reasons.

[36]

First, I disagree with the appellants submission that, at the penalty
    stage, there is an onus on the offender of demonstrating that an indeterminate
    sentence ought not to be imposed because there is a reasonable expectation that
    a lesser measure will adequately protect the public. In
Boutilier
, the
    court rejected this suggestion. At para. 71, the court explained that there is
    no onus at the penalty stage:

Properly read and applied, s.
    753(4.1) does not impose an onus, a rebuttable presumption, or mandatory
    sanctioning. Nor does it prevent a sentencing judge from considering sentencing
    objectives and principles. Every sentence must be imposed after an
    individualized assessment of all of the relevant factors and circumstances.

[37]

The sentencing judges finding that there was no reasonable prospect of
    control of the appellant in the community at the penalty stage can therefore be
    relied on at the designation stage.

[38]

Second, and more importantly, from my review of the reasons, it is
    apparent that the sentencing judge did not improperly place an onus on the
    appellant. The evidence supporting a finding of intractability was
    overwhelming.

[39]

The clinical and actuarial assessments established that the appellant
    posed a moderate to high risk for violent or sexual recidivism. The appellants
    substance abuse disorder exacerbated this risk. It served to inhibit his
    judgment and empathy. The appellants antisocial personality disorder and his
    significant psychopathic traits suggested that he would be less responsive to
    treatment and more likely to refuse or discontinue treatment, all of which
    increases the likelihood that he would reoffend.

[40]

While in the penitentiary, the appellant showed no signs of insight or willingness
    to engage in a corrective plan. While there were signs of optimism because of
    his conduct at the Elgin Middlesex Detention Centre, the sentencing judge
    determined that this evidence amounted only to a possibility of eventual
    control in the community, not a reasonable expectation of such control.

[41]

The sentencing judge assessed all of the evidence and was satisfied that
    there was no reasonable expectation that anything other than an indeterminate
    sentence would adequately protect the public. This conclusion that there was no
    reasonable expectation of controlling the appellants offending behaviour was necessarily
    premised on the sentencing judges finding that the appellants harmful
    recidivism and violent pattern of behaviour was intractable. This finding of
    fact is fully supported by the evidence led by the Crown and, as explained by the
    sentencing judge, is anchored in his acceptance of Dr. Woodsides opinion. The
    sentencing judge explained that the convergence of the two diagnoses of
    antisocial personality disorder and substance abuse disorder makes it
    unrealistic to expect for Mr. Gracie his control in the community. A mere hope
    of control is simply not enough to raise a reasonable doubt in this case.

(2)

The
Gladue
error

(a)

The
    impact of the
Gladue
factors

[42]

The sentencing judges reasons do not reference the
Gladue
report and
Gladue
principles. The appellant submits that the
    sentencing judge erred by failing to consider the fact that he is Indigenous. He
    argues that his Indigenous background may have played a role in his offending
    and the possibility of his accessing Indigenous programs and treatment options
    should have been considered at the penalty stage. As set out earlier, the
    appellant demonstrated an interest in reconnecting with his Indigenous heritage
    by attending the Native Sons program while at the Elgin Middlesex Detention
    Centre. The steps he took and the interest he has shown in his community and
    culture were, in the appellants view, relevant to both his risk assessment and
    treatment prospects.

[43]

Despite the fact that a
Gladue
report had been prepared and
    marked as an exhibit to the sentencing proceedings, the sentencing judge made
    no reference to the report and to
Gladue
factors in his reasons. The
    Crown agrees that the absence of any consideration in the sentencing judges
    reasons of the appellants Indigenous heritage constitutes an error of law.

[44]

In the Crowns submission, however, on the evidence before the
    sentencing judge, this error had no impact on the outcome of the case. The
Gladue
report and
Gladue
principles were barely mentioned by defence counsel
    at the sentencing hearing and no submissions were made on the relevance of the
Gladue
factors to the issues to be addressed on the dangerous offender application.
    This may well explain why the sentencing judge, despite having indicated that
    he had considered all of the material filed, made no specific mention of the
    report. While this does not justify the sentencing judges failure to address
    these principles and apply them to the case, it reflects the marginal role that
    the parties themselves attributed to the
Gladue
report and factors.

[45]

The appellant was adopted as an infant and raised in a loving and
    supportive family. He was introduced to Indigenous practices as a young child
    through a non-Indigenous relative. His life of crime began in his teenage years
    and he did not meet members of his biological family until much later in life,
    after he committed the predicate offences.

[46]

The record does not suggest that the appellants Indigenous background might
    have had a significant impact on his future prospects for treatment. The
    appellant never mentioned reconnecting with his Indigenous roots to either Dr.
    Chaimowitz or Dr. Woodside. The culturally-specific recommendations contained
    in the
Gladue
report were not responsive to most of the risks factors
    identified by the experts. The risk of sexual and violent recidivism was the
    product of his serious personality disorder, his substance use disorder, his
    poor treatment and supervision history, and the dim prognosis for meaningful
    change. The only recommendation in the
Gladue
report of any relevance
    to addressing these risks was the suggestion that he attend a healing lodge
    offering traditional and cultural teachings to address a wide variety of
    concerns, including alcohol and drug addictions.

[47]

As a result, there is simply no evidentiary foundation for the
    appellants suggestion that the Indigenous programming or treatment options he
    might access would have any prospect of addressing the risk he poses to the
    community such that a sentence other than an indeterminate sentence would be
    appropriate. While the appellant should have access to Indigenous programming,
    this would not be sufficient to move him from being an offender considered by
    Dr. Woodside to be unmanageable in the community, to one who could be managed.

(b)

The
    reliability of the actuarial assessment tools

[48]

The appellant argues that the risk assessments made by the experts are
    undermined by concerns about the reliability of the actuarial tests they used.
    In his submission, the decision in
Ewert v. Canada
, 2018 SCC 30,
    [2018] 2 S.C.R. 165, made it clear that there are legitimate concerns about the
    validity of the psychological and actuarial tools used to do risk assessments
    when these tests are applied to Indigenous offenders.

[49]

As the experts relied on these impugned tools, the appellant submits
    that the conclusion that he poses a continuing risk is not reliable and that
    the sentencing judges designation and penalty decisions should be set aside.

[50]

I would reject this ground of appeal. The accuracy of the assessment
    tools was not a concern raised at the sentencing hearing. In fact, the
    appellants own expert relied on several of these tests. I acknowledge that,
    since
Ewert
was decided after the decision under appeal, the appellant
    was not aware of this concern at the time of the sentencing proceedings. The fact
    remains, however, that the failure to raise this concern means that there was
    no evidence called at the hearing. This court is thus being asked to make a
    finding in the absence of a factual basis.

[51]

Further, at his highest,
Ewert
stands for the proposition that
    these actuarial tools are susceptible to cultural bias. Dr. Hart, the psychologist
    whose testimony during proceedings at first instance in
Ewert
advanced
    the concern as to reliability, has since testified in at least two dangerous
    offender proceedings. In
R. v. Haley
, 2016 BCSC 1144, the trial judge
    noted that Dr. Hart accepted that actuarial tools have been shown to be
    moderately predictive of risk, including when they are applied to Indigenous
    offenders: at para. 258. In
R. v. Awasis
, 2016 BCPC 219, Dr. Hart testified
    that he was unaware of any research supporting the conclusion that there is
    inherent bias in actuarial tests when they are applied to Indigenous offenders.
    Based on the testimony of Dr. Hart and another expert, the court in
Awasis
concluded that actuarial tools are reliable predictors of the future risk of
    recidivism in Indigenous offenders. The court went on to find Mr.
Awasis

to be a dangerous
    offender and imposed an indeterminate period of incarceration.

[52]

Moreover, actuarial testing was only one of many factors taken into
    account by the experts in this case. They also considered their own clinical
    assessment of the appellant together with other information concerning him,
    such as his criminal history. Based on their broad assessment of the appellant,
    both experts concluded that he posed a moderate to high risk for both sexual
    and violent recidivism. Placed in context, the concerns raised by the appellant
    as to the reliability of the risk assessment tools as they apply to Indigenous
    offenders do not undermine the force of the expert evidence or the conclusions
    of the sentencing judge.

F.

CONCLUSION

[53]

In my view, there is no reasonable possibility on this record that the
    verdict would have been any different had the two errors committed by the
    sentencing judge not been made.

[54]

For these reasons, I would dismiss the appeal.

Released: August 19, 2019

PR

Paul Rouleau J.A.

I agree B.W. Miller
    J.A.

I agree Fairburn
    J.A.


