



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    information that could identify the victim or a witness shall not be published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(iii)     REPEALED: S.C. 2014, c. 25,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    the victim shall not be published in any document or broadcast or transmitted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. White, 2020 ONCA 207

DATE: 20200316

DOCKET: C60260

Feldman,
    Pardu and Roberts JJ.A.

BETWEEN

Her
    Majesty the Queen

Respondent

and

Tyler
    White

Appellant

Geoff Haskell, for the appellant

Christopher Webb, for the respondent

Heard: February 26, 2020

On appeal from the sentence imposed
    by Regional Senior Justice Michelle Fuerst of the Superior Court of Justice, on
    September 24, 2014, with reasons reported at 2014 ONSC 5543.

Roberts J.A.:


A.

Overview

[1]

On September 24, 2014, the sentencing judge
    declared the appellant a dangerous offender and imposed an indeterminate
    sentence.

[2]

The appellant appeals the dangerous
    offender designation, arguing the sentencing judge made reversible errors in
    her interpretation and application of the dangerous offender criteria under ss.
    752 and 753(1)(a)(i) of the
Criminal Code
, R.S.C. 1985, c. C-46. If the designation is upheld,
    the appellant submits that based on his rehabilitative strides since his incarceration
    in 2014, he should receive a determinate sentence of four years followed by a ten-year
    long-term supervision order (LTSO).

[3]

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

B.

BACKGROUND

[4]

On May 22, 2012, the appellant pleaded
    guilty to the offences of sexual interference, child luring and making child
    pornography involving a 15-year-old girl.

[5]

The circumstances of these offences are
    not disputed. In the Fall of 2010, the appellants girlfriend at that time put
    the complainant in touch with the appellant. The complainant and the appellant communicated
    over the internet and by text. The appellant was 24 years old at that point and
    learned the complainant was 15 years old and a virgin. He told the complainant
    he really wanted to meet her. They eventually met at a coffee shop. They went
    back to the appellants apartment where he took off their shirts and kissed.
    The appellant asked if she wanted to take off her pants and she declined. He
    also told her that he wanted to have sex with her. She declined, became fearful,
    and left the apartment.

[6]

They continued to text every day, with the
    appellant initiating the majority of the time. Periodically, the appellant would
    ask if the complainant wanted to get a hotel room to have sex. On two occasions
    the appellant met up with the complainant and they kissed. Eventually, the
    appellant provided her with a cell phone. He asked her to send him naked
    pictures of herself on it, which she did. He replied with pictures of himself,
    including one of his penis. The complainants mother eventually found the cell phone,
    brought her to the police and convinced her to cooperate with the
    investigation.

[7]

Prior to these offences, the appellant had
    amassed a lengthy criminal record, spanning over a decade. It includes a prior conviction
    for sexual assault against a 14-year-old girl whom he had met online and numerous
    prior convictions for violent offences against his previous domestic partners.

[8]

The respondent brought an application to have
    the appellant declared a dangerous offender and asked the court to impose an
    indeterminate sentence. The appellant disputed that he was a dangerous offender
    or a long-term offender. However, if the court found otherwise, he submitted
    that the appropriate sentence was a further four-year custodial sentence,
    followed by a ten-year LTSO.

[9]

The parties psychiatric experts were
    largely in agreement that the appellant was at a high risk to reoffend both violently
    and sexually and that he met the criteria for a dangerous offender from a psychiatric
    point of view. Their jointly held opinion included the following factors:

·

the
    appellants high scores on the various and standard actuarial diagnostic tests
    that measure risk for violent and sexually violent recidivism;

·

his
    diagnosed antisocial personality disorder with prominent psychopathic traits;

·

his
    substance abuse of drugs and alcohol over the years that contributed to his
    violent actions; and

·

his
    significant history of violent criminal behaviour.

[10]

The experts parted company only on the
    issue of sentence. The respondents expert opined that the appellants ability to
    change his pattern of behaviour, given his diagnoses, was poor, and that even
    if he followed the recommended intensive treatment, there was little prospect
    his risk could be managed successfully in the community within ten years of close
    supervision under a LTSO. He recommended an indeterminate sentence. The
    appellants expert agreed with the treatment and supervision recommendations made
    by the respondents expert but believed the appellants risk could be managed
    with substantial treatment and a plan of control. He opined that the appellants
    antisocial traits and aggressive behaviour would attenuate over time. He
    recommended the imposition of a determinate sentence of two to four years, followed
    by a LTSO for ten years.

[11]

In her victim impact statement, the complainant said that the offences
    have had a big impact on her life. She described experiencing anxiety and depression,
    struggling with drugs and having difficulty with intimacy and showing
    affection. She has contemplated suicide.

[12]

The complainant testified at the sentencing hearing. She testified that
    she would not have gone to the police but for the fact that her mother had
    found the cell phone the appellant had given her. She also testified to having
    experienced other difficulties in her life, such that she could not be sure to
    what extent she can attribute her problems to the appellant. However, she did
    attribute issues with anxiety, depression and relationships to him.

[13]

The sentencing judge accepted that the appellant
    was a dangerous offender and preferred the opinion of the respondents expert
    that the appellants high risk to reoffend could not be reasonably managed in
    the community. She imposed an indeterminate sentence.

C.

Issues

[14]

The appellant challenges the dangerous offender
    designation and indeterminate sentence on the following grounds:

1.

The sentencing judge erred in finding that the predicate offence was a serious
    personal injury offence as defined in s. 752 of the
Criminal Code
.

2.

The sentencing judge erred in considering, for the purposes of s. 753(1)(a)(i)
    of the
Criminal Code
, the appellants previous history of domestic
    violence against his adult partners as part of the pattern of the appellants repetitive
    behaviour.

3.

If the dangerous offender designation is upheld, although it was open to
    the sentencing judge to impose an indeterminate sentence in 2014, the fresh evidence
    admitted on consent demonstrates that it is unreasonable.

[15]

The appellant submits a determinate sentence of four years followed by a
    ten-year LTSO should be imposed.

D.

Analysis

[16]

In determining whether the appellant is a dangerous offender, the
    sentencing judge was required to consider the criteria under ss. 752 and 753(1)
    of the
Code
. For this appeal, the relevant provisions are as follows:

752 In this Part,



serious personal injury offence means

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

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

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

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

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



753 (1)    On application made under this part after an assessment
    report is filed under subsection 752.1(2), the court shall find the offender to
    be a dangerous offender if it is satisfied

(a) that the offence for which the offender has been convicted
    is a serious personal injury offence described in paragraph (a) of the definition
    of that expression in section 752 and the offender constitutes a threat to the
    life, safety or physical or mental well-being of other persons on the basis of
    evidence establishing

(i)  a pattern of repetitive behaviour by the offender, of which
    the offence for which he or she has been convicted forms a part, showing a
    failure to restrain his or her behaviour and a likelihood of causing death or
    injury to other persons, or inflicting severe psychological damage on other persons,
    through failure in the future to restrain his or her behaviour .

[17]

The appellant focussed his submissions on the conviction for sexual
    interference under s. 151 of the
Criminal Code
. He does not challenge
    that the predicate sexual interference offence carries a potential sentence of
    ten years or more because the Crown proceeded by way of indictment. Rather, he
    challenges the sentencing judges finding that the predicate offence was a serious
    personal injury offence and her finding of a repetitive pattern of behaviour
    for the purposes of s. 753(1)(a)(i).

(1)

The Sentencing Judge Did Not Err in Finding the Predicate Offence Was a
    Serious Personal Injury Offence

[18]

The appellant argues that the sentencing judge erred in finding that the
    predicate offence was a serious personal injury offence.

[19]

He argues first that the sentencing judge effectively characterized the
    offence of sexual interference as a deemed serious personal injury offence under
    s. 752(b) notwithstanding its exclusion from that subsection, and disputes that
    the specific circumstances of the offence in this case constituted violence
    for the purposes of the definition of a serious personal injury offence.

[20]

He argues further that the sentencing judge erred in concluding that the
    predicate offence resulted in severe psychological damage for the purposes of
    that definition.

[21]

I am not persuaded by either of these submissions for the following reasons.

(a)

The Sentencing Judge Did Not Err in Finding the Predicate Offence Involved
    the Use of Violence

[22]

The Supreme Court of Canada considered the meaning of the term use or
    attempted use of violence for the purposes of the definition of serious personal
    injury offence in
R. v. Steele
, 2014 SCC 61, [2014] 3 S.C.R. 138. Violence
    in this context encompasses acts in which a person intentionally causes, attempts
    to cause or threatens to cause harm, rather than simply acts involving the
    application of physical force:
Steele
, at para. 58.

[23]

The sentencing judges finding that violence was used in the predicate
    offence is a factual determination:
R. v. Lebar
, 2010 ONCA 220, 101
    O.R. (3d) 263, at para. 50. Absent error there is no basis for appellate intervention.

[24]

In considering whether the predicate offence of sexual interference involved
    the use or attempted use of violence, the sentencing judge recognized that sexual
    abuse of children is inherently violent in its effects, even in the absence of
    tangible physical violence, and that it is likely to cause significant psychological
    harm. Her conclusion is well supported.

[25]

In
R. v. Stuckless
, this court concluded that sexual abuse of children
    is an act of violence, representing the use of compulsion against a
    population that is inherently vulnerable: (1998) 41 O.R. (3d) 103 (C.A.), at p.
    117. Similarly, in
Bossé v. R.
, Deschênes J.A. found that having a
    child engage in sexual acts through persistent requests, as opposed to physical
    acts or threats, remained a violent act: 2005 NBCA 72, 288 N.B.R. (2d) 82, at
    para. 10.

[26]

This court has recognized that devastating consequences often follow
    from the sexual abuse of children, including both immediate psychological harm,
    and ongoing issues that may persist into adulthood:
R. v. Woodward
, 2011
    ONCA 610, 107 O.R. (3d) 81, at para. 72, citing
R. v. D.(D.)
(2002), 58
    O.R. (3d) 788 (C.A.). Notably, the harm caused to a child complainant may not
    always be fully apparent at the time of sentencing but may manifest later when
    the child reaches adulthood:
R. v. G.R.B.
, 2013 ABCA 93, 544 A.R. 127,
    at para. 14.

[27]

Unsurprisingly then, offences of sexual interference have been found to
    constitute serious personal injury offences even in the absence of immediate physical
    harm. See for example:
R. v. T.L.P.
, 2017 BCSC 1868, at para. 225;
R. v.
    Groves
, 2015 ONSC 2590, at para. 91, affd 2020 ONCA 86.

[28]

Further, it is clear from her reasons that the sentencing judge did not simply
    conclude that because the predicate offence was sexual interference it was
    inherently violent. Rather, she went on to consider the particulars of the offence
    in issue before she concluded that she was satisfied beyond a reasonable doubt
    that the specific predicate offence involved the use of violence against the
    victim:

There is no dispute that the touching of [the complainant] by Mr.
    White was not accompanied by threats of harm or the use of overt force. Mr.
    White, however, was 24 years old at the time, while [the complainant], as he
    well knew, was only 15. She could not in law consent to the sexual touching.
    Mr. White knew that, as a result of his prior conviction in Edmonton. The
    circumstances of the offence against [the complainant] show the exploitative
    and abusive nature of Mr. Whites conduct, including the manner in which he and
    she met over the internet; the fact that he knew she was only 15 and a virgin
    but initiated sexual contact with her the very first time they met and suggested
    that they have sexual intercourse; that on subsequent occasions he again suggested
    that they have sexual intercourse even though she had previously declined; that
    he provided her with a cell phone; and that he convinced her to send him naked pictures
    of herself and he sent her a picture of his penis, over that cell phone.

[29]

While the sentencing judge did not have the benefit of
Steele
, her
    approach is consistent with the Supreme Courts endorsement of a harm-based, rather
    than force-based, interpretation of the term violence, which is not defined
    in the
Criminal Code
.

[30]

In my view, the predicate offence, viewed in the context of the appellants
    exploitative and abusive pursuit of a 15-year-old girl, as found by the sentencing
    judge, involved intentionally causing harm and therefore constitutes violence
    for the purpose of the definition of serious personal injury offence under s.
    752 of the
Criminal Code
. This is also consistent with Parliaments
    recognition by its enactment of s. 151 of the
Criminal Code
that sexual
    interference is inherently harmful to both children and society and that children
    are in need of protection:
R. v. Hajar
, 2016 ABCA 222, 338 C.C.C. (3d)
    477, at para. 1. In
R. v. A.B.
, 2015 ONCA 803, 333 C.C.C. (3d) 382, at
    para. 45, Feldman J.A. described the gravamen of the offence of sexual interference
    as follows:

[T]he protection for children is not simply from sexual
    exploitation but from any sexual contact or the invitation to sexual contact
    with adults. Parliament viewed the protection to be necessary because of the
    inherent power imbalance that undermines consent, and because of the physical
    and psychological consequences of a sexual encounter between a child and an adult
    stemming from that imbalance.

[31]

I see no error in the sentencing judges analysis. I agree that the
    predicate offence involved the use of violence.

(b)

The Sentencing Judge Did Not Err in Finding the Predicate Offence Inflicted
    Severe Psychological Damage

[32]

Given that the predicate offence involved the use of violence, it is a
    serious personal injury offence. As a result, while not strictly necessary, for
    completeness I consider whether the trial judge erred in determining that the
    offence inflicted severe psychological damage.

[33]

I do not accept the appellants submission that there was no evidence that
    the appellants actions caused harm to the complainant as understood under clause
    (a)(ii) of the definition of serious personal injury offence in s. 752. The appellant
    relies on the cross-examination of the complainant that he says undermined her
    victim impact statement.

[34]

The sentencing judge was alert to the inconsistencies between the victim
    impact statement and the complainants evidence at the sentencing hearing. However,
    as she was permitted to do, the sentencing judge accepted that while the
    complainant could not attribute all her issues to the appellant, she found that
    his conduct caused [the complainant] anxiety, depression, relationship problems
    and some fear, all of which constitutes severe psychological damage. These
    findings are firmly rooted in the evidence that was before the sentencing judge.
    Moreover, I agree with the sentencing judges further conclusion that the appellants
    conduct was likely to inflict severe psychological damage upon the victim,
    which, as already noted, is well-founded in the jurisprudence.

(2)

The Sentencing Judge Did Not Err in Finding the Predicate Offence Formed
    Part of a Repetitive Pattern of Behaviour

[35]

With respect to the pattern of behaviour, the appellant concedes that
    the predicate offence and his prior conviction for sexual assault of a 14-year-old
    constitutes a pattern of behaviour. However, he argues that the sentencing judge,
    in finding a pattern of repetitive behaviour for the purposes of s. 753(1)(a)(i),
    erred by referring to his previous history of violence against his former,
    adult domestic partners when the particulars of that history are completely
    different from the two sets of offences against girls.

[36]

I disagree. It was open to the sentencing judge to rely on the appellants
    past history as reflecting a failure on Mr. Whites part to recognize and
    observe boundaries in his relationships with females and that this pattern of behaviour
    is a manifestation of his antisocial personality disorder. She correctly
    concluded:

Mr. Whites pattern of repetitive behaviour, including the
    predicate offence, shows a failure to restrain his behaviour with females. It also
    shows a likelihood of causing injury to other persons, or inflicting severe
    psychological damage on other persons, through failure to restrain his
    behaviour in the future.

[37]

The sentencing judges conclusions are consistent with this courts
    approach in
R. v. Hogg
, 2011 ONCA 840, 287 O.A.C. 82, to the meaning
    of a pattern of repetitive behaviour. As this court concluded, at para. 40, this
    pattern must contain enough of the same elements of unrestrained dangerous conduct
    to be able to predict that the offender will likely offend in the same way in
    the future. I agree with the respondents submissions that the appellants history
    supports a general pattern of criminal misconduct against females with whom he
    has intimate relationships, and that this history speaks directly to his lack of
    amenability to treatment and management in the community.

[38]

Accordingly, I find no error in the sentencing judges designation of the
    appellant as a dangerous offender. The predicate offence was a serious personal
    injury offence, both because it involved the use of violence and because it inflicted
    severe psychological harm. The appellant constitutes a threat to the safety or
    well-being of others based on a pattern of repetitive behaviour that includes
    the predicate offence.

(3)

An Indeterminate Sentence Is Reasonable Despite the Fresh Evidence

[39]

The appellant concedes that given the record before her in 2014, the sentencing
    judge made no error in imposing an indeterminate sentence at that time.
    However, he argues that in light of the fresh evidence concerning his significant
    rehabilitative progress, he no longer represents an unmanageable risk to reoffend,
    warranting the substitution of a determinate sentence and a LTSO.

[40]

The fresh evidence consists primarily of the appellants affidavit. It
    speaks to his treatment and rehabilitation since commencing his sentence. In
    particular, the appellant has completed all available programming for violent and
    sex offenders, and his high school equivalency courses. He is currently housed
    in a responsibility based unit which requires him to be actively involved in his
    correctional plan; employed full-time; free of any misconducts; and free of drugs
    and alcohol. He is employed as a plumbers assistant, which allows him entry into
    restricted areas and use of otherwise unauthorized tools.

[41]

On appeals of dangerous offender designations, this court may admit
    fresh evidence when it is in the interests of justice to do so:
R. v. Sipos
,
    2014 SCC 47, [2014] 2 S.C.R. 423, at para. 28;
Criminal Code
, ss.
    759(7), 683(1). Here the fresh evidence was admitted on consent of the parties.

[42]

I am of the view that notwithstanding the fresh evidence, the sentencing
    judges decision to impose an indeterminate sentence was not unreasonable. An
    appellate court reviews the imposition of an indeterminate sentence for legal
    error and reasonableness:
R. v. Sawyer
, 2015 ONCA 602, 127 O.R. (3d) 686,
    at para. 29. While the appellants evidence shows progress within his highly
    structured custodial environment, in light of the entire record before the sentencing
    judge it falls considerably short of demonstrating that an indeterminate
    sentence is unreasonable. Specifically, the appellants evidence fails to
    address the forensic psychiatric evidence of both experts given on the
    dangerous offender application, including the actuarial risk assessment testing,
    that speaks to his unmanageable high risk of reoffending upon his release into
    the community.

E.

Disposition

[43]

I would dismiss the appeal.

Released: March 16, 2020 (K.F.)

L.B. Roberts J.A.

I agree. K. Feldman
    J.A.

I agree. G. Pardu J.A.


