



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    any information that could identify the complainant or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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.






CITATION:
R. v. D.A.M., 2011 ONCA 717



DATE: 20111115



DOCKET: C51274



COURT OF APPEAL FOR ONTARIO



Laskin, Cronk and Blair JJ.A.



BETWEEN



Her Majesty the Queen



Respondent



and



D. A. M.



Appellant



Christopher D. Hicks and Theodore Sarantis, for the appellant



Frank Au, for the respondent



Heard and released orally:
November 3, 2011



On appeal from the sentence imposed
          on July 15, 2009 by Justice David M. Stone of the Ontario Court of Justice,
          with reasons reported at 2009 ONCJ 362 (CanLII).



ENDORSEMENT



[1]

After approximately a 15-day hearing before the sentencing judge, the
    appellant was declared to be a dangerous offender and sentenced to an
    indeterminate sentence in the penitentiary.  He appeals from the sentence
    imposed.

[2]

In his factum, the appellant attacked his designation as a dangerous
    offender on multiple fronts, arguing that he should have been found to be a
    long-term offender.  However, during oral argument, his challenge to the
    sentence imposed focussed primarily on two alleged errors by the sentencing
    judge:

1)

misapprehension
    of the evidence regarding the appellants willingness to take Lupron, an
    anti-androgen drug, as a treatment modality for helping to control the risk to
    the public to be posed by the appellant on release to the community; and

2)

the
    impermissible admission of expert reply psychiatric evidence tendered by the
    Crown and the improper use of this evidence by the sentencing judge.

[3]

In our view, these grounds of appeal cannot succeed.

[4]

The sentencing judge concluded that, given the appellants admitted
    lengthy pattern of deceitfulness and manipulation of his victims, caregivers
    and parole supervisors, there was serious reason to doubt whether he would take
    Lupron as a condition of his eventual release into the community.  This finding
    was open to the sentencing judge on the evidence.

[5]

In particular, the record amply supports the sentencing judges finding
    that, When his parole ran out, so did his use of Lupron, and no reasonable
    effort was made by him in the next several years to do anything with Lupron but
    enhance his image with his supervisors.  Similarly, there is an evidentiary
    foundation for the sentencing judges finding that the appellant falsely
    claimed to be pursuing Lupron treatment.

[6]

In its case-in-chief, the Crown led opinion evidence from a forensic
    psychiatrist and a psychologist, both of whom offered opinions as to the
    possible containment of the appellants risk of sexually re-offending in the
    community.  In their view, the appellant was at very high risk for sexually
    violent recidivism, on both clinical and actuarial testing measures.  Dr.
    Woodside, for example, described the appellant as posing roughly triple the
    degree of risk posed by the average sex offender.

[7]

The defence expert agreed with this high risk assessment but expressed a
    more optimistic view of the chances of managing the appellants risk in the
    community at tolerable levels by the employment of a multi-faceted treatment
    and supervision plan, including the on-going administration of Lupron
    injections.

[8]

The sentencing judge considered all the expert evidence and, as he was
    entitled to do, rejected the defence experts opinion on the prospects of
    managing the appellants risk in the community.  He concluded, for example,
    that this experts view of the appellants potential reconditioning and
    possible discontinued use of Lupron was unrealistic.  This conclusion is
    reasonably supported by this record.

[9]

Taken as a whole, the appellants complaints regarding his designation
    as a dangerous offender are focused on the sentencing judges assessment of the
    evidence and related factual findings, both of which are squarely within the
    sentencing judges domain and attract considerable deference from this court. 
    In effect, the appellant seeks to have this court revisit the sentencing
    judges key factual findings, although they are grounded in the evidence.  That
    is not the function of this court.

[10]

The other main ground of appeal concerns the admission of expert
    psychiatric reply evidence regarding the significance (or lack thereof) of
    phallometric testing of the appellant.  The appellant argues that this evidence
    was inadmissible and that the sentencing judge improperly relied on it in
    concluding that there was no reasonable possibility of eventual control of the
    appellants risk in the community.

[11]

We disagree.  The impugned evidence and a will-say statement of the
    reply experts proposed testimony were admitted on consent.  In these
    circumstances, there can be no sustainable objection to the admission of the
    evidence.  Nor do we accept that the sentencing judge misused this evidence.

[12]

Accordingly, the appeal from sentence is dismissed.

John Laskin J.A.

E.A. Cronk J.A.

R.A. Blair J.A.


