



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    information that could identify the victim or a witness shall not be published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(iii)     REPEALED: S.C. 2014, c. 25,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    the victim shall not be published in any document or broadcast or transmitted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. McDonald, 2018 ONCA 369

DATE: 20180416

DOCKET: C44874

Doherty, LaForme and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Paul Arthur McDonald

Appellant

Erin Dann and Dan Stein, for the appellant

Amy Alyea, for the respondent

Heard: January 17, 2018

On appeal from the conviction entered on November 22,
    2000 and the sentence imposed on October 27, 2003, with reasons released on
    November 4, 2003 by Justice Bruce C. Hawkins of the Superior Court of Justice,
    sitting with a jury.

H.S. LaForme J.A.:

OVERVIEW

[1]

The appellant and the complainant met for the first time at the apartment of a mutual friend. The two departed around the same time and travelled in the appellant's car to his apartment. Sexual intercourse occurred, and then the appellant and complainant returned to the friend's apartment. The appellant said the complainant came with him willingly, and that the two engaged in "normal" consensual intercourse. The complainant said the appellant forced her to go with him and forced intercourse on her.

[2]

On November 22, 2000, a jury convicted the appellant of unlawful
    confinement, sexual assault causing bodily harm, and uttering a death threat.
    On November 4, 2003 - about three years later - after a lengthy hearing, the
    appellant was declared a dangerous offender and sentenced to an indeterminate
    period of incarceration.

[3]

The appellant subsequently filed a timely inmate appeal against both his
    conviction and sentence. In February 2006, his former counsel filed a
    solicitors Notice of Appeal and, in July 2007, transcripts from the trial and
    sentencing proceedings were filed.

[4]

On September 22, 2008, the appellants former counsel filed a notice of
    abandonment, and on October 3, 2008 his appeal was dismissed as abandoned.

[5]

On April 21, 2016, this court granted the appellants application to
    reopen his appeal against conviction and sentence. This court concluded that
    his former counsel had filed the notice of abandonment without clear
    instructions.

[6]

Finally, on January 17, 2018  approximately 17 years since his conviction
    and 14 years since he was sentenced  his appeal was heard. His appeal against
    conviction is without merit, but a new dangerous offender hearing is required
    because procedural fairness and the appearance of a fair trial were compromised
    during his sentence hearing.

[7]

Given that the disposition of this appeal is connected to the sentence
    only, it is unnecessary to recite the background facts in any great detail. To
    the extent they may be relevant to an issue; I will refer to them as part of
    the analysis.

ISSUES

[8]

The appellant appeals his conviction on the basis that the trial Crown
    made three misleading and inflammatory statements in his closing address to the
    jury that required correction by the trial judge. This involved what I will
    refer to as: (i) the lobby video; (ii) music in the apartment; and (iii) the
    complainants injuries.

[9]

Regarding the sentence appeal, the appellant submits that: (i) the trial
    judge declined to hear oral closing arguments during the dangerous offender
    hearing; and (ii) the reasons for the dangerous offender designation do not
    allow for appellate review.

ANALYSIS

(i)

The Conviction Appeal

[10]

Briefly,
    the three claims of misleading and inflammatory comments by Crown counsel in
    his closing address to the jury can be described as follows:

1.      The
    lobby video  involves Crown counsels comments that it appeared the appellant
    was taking the same pathway as the victim and following her, as the Crown
    simultaneously showed the lobby video of the victim leaving the building at
    4:51 a.m. and the appellant leaving at 4:53 a.m.

2.      Music
    in the apartment  here, in relation to the testimony of a witness that he
    heard someone shout to turn down the music; Crown counsel remarked this was
    strange since there is no suggestion music was playing.

3.      The
    complainants injuries  relates to Crown counsel characterizing as
    ridiculous the submission made by defence counsel for the first time in her
    closing that the victims injuries were self-inflicted.

[11]

We
    did not call upon the Crown to respond to the music in the apartment or the
    complainants injuries issues. The trial Crowns comments in both instances
    were neither improper nor unfair. They did not require further instruction to
    the jury. The inferences suggested by the trial Crown were open on the record.
    The remarks would not have invited any deviation from proper decision-making,
    did not denigrate the defence and, most importantly, did not deprive the
    appellant of a fair trial.

[12]

I
    see nothing inflammatory or improper about the trial Crowns submission
    regarding the path the appellant took from the apartment, shortly after the
    complainant took the same path, as shown by the lobby video. The trial Crown
    was properly suggesting an inference the jury could draw from the evidence.

[13]

The
    appellant was aware that it was the trial Crowns position that when he left
    the apartment he was going after the complainant and not simply leaving as he
    had testified. He had full opportunity to respond to this part of the Crowns
    case. The Crown is not required to put by way of cross-examination of the
    accused all of the arguments it proposes to make in closing.

[14]

Certainly,
    in light of the objection by the defence, the trial judge could have reminded
    the jury that it was the defence position that the video could not support the
    argument advanced by the trial Crown. His failure to do so, however, does not
    sufficiently taint the trial to warrant reversal.

[15]

When
    the impugned remarks of trial Crown counsel are evaluated in the context of the
    trial, the addresses of both counsel, and the trial judges response, it is
    clear that they did not cause a substantial wrong or miscarriage of justice.
    The conviction appeal should be dismissed.

(ii)

The Sentence Appeal

[16]

The
    appellant seeks a new dangerous offender hearing on the basis that: (i)
    procedural fairness required the trial judge to allow oral submissions at the
    conclusion of his dangerous offender hearing; and (ii) the sentencing judges
    reasons were insufficient.

(a)

Oral Submissions

[17]

On
    May 26, 2003 - two and a half years after the jury had returned its verdict 
    the evidence at the dangerous offender hearing concluded. It is here that the
    appellant submits that his rights to procedural fairness were violated
.
He
    submits that,
by denying him the right to
    make oral submissions at the conclusion of the hearing,
the trial
    judge violated his right to a fair hearing under ss. 7 and 11(d) of the
Charter
,
    and his right to be present at his trial pursuant to s. 650(1) of the
Criminal
    Code
.

[18]

The
    Crown, on the other hand, takes the position that the trial judge did not in
    fact deny the appellant the right to make oral submissions, and that in any
    event, oral submissions were not indispensable to procedural fairness in this
    instance. It argues that it is not necessary for this court to order a new dangerous
    offender hearing, simply so that the appellant may sit through oral submissions
    fifteen years after his original hearing. If necessary, the
curative
    proviso
should be applied.

[19]

There
    are two crucial transcripts I set out below because of their importance to the
    analysis. The analysis will be broken down into two parts. First, I decide
    whether, in fact, the trial judge prohibited defence counsel from giving oral
    submissions. Second, I examine whether such a prohibition is fatal to the
    dangerous offender proceedings.

(1)

The Transcripts: Exchanges about Oral Submissions

[20]

The
    trial judge advised, on May 26, 2003, [s]ince the defence is not calling
    evidence, I will require written argument in this matter. Dates were canvassed
    and agreed upon. Counsel
[1]
 the record is unclear as to which counsel  asked, [n]ow, your Honour, were
    you anticipating this in lieu of argument or in addition to argument? The
    following exchange then took place:

THE COURT:
In lieu. I will mark it to be
    spoken to then, so that the offender could be brought back to be spoken to on
    the 31st of July, which is a Thursday.

So when I have all of those, if I feel that I can get further
    assistance by counsel I will do so, otherwise that completes this.

***

MR. RICHARDSON:
I apologize, but I was caught
    by surprise when you indicated that written argument would be made in lieu of
    oral argument.

In my submission, Mr. McDonald, who has been represented and
    required to be present for the hearing will not be present for a significant
    phase of the matter, and this is the argument portion.

In my respectful submission, Mr. McDonald, should and has a
    right indeed to hear the argument made by the Crown persuading or to attempt to
    persuade the court that he fits the legislation and ought to be designated as a
    dangerous offender and incarcerated. He should also hear the arguments put
    forward on his behalf by his counsel arguing that he should not be [so]
    designated.

The sentencing judge overruled the objection resulting
    in the following exchange:

MR. RICHARDSON:
Written argument only.

THE COURT:
(Inaudible)  making him aware of
    the argument, and Crown is to make available a copy, and if there is a problem
    he can be assisted by counsel. And the same with argument on behalf of his
    counsel. He receives copies and you can  so that is how you partake in written
    argument, by seeing the written argument and seeing the assistance of the
    counsel.

[21]

Mr.
    Richardson suggested there might be some difficulty with leaving the written
    submissions with the appellant and discussing them with him in the Metro
    Detention Centre. He added, [y]ou are aware that there is a SARS issue, and
    its difficult if not impossible to have a private interview with the client.
    This led to the following exchange:

THE COURT:
Lets not put the cart before the
    horse. Its worked out, if there is a difficulty at the time, but step one is
    to get the argument prepared and submitted.

MR. RISCHARDSON:
Yes. And I have absolutely no
     I hope I am not being misunderstood. I have no difficulty preparing the
    argument. I am not suggesting that we dont.

I just suggest that its made in full and in Mr. McDonalds
    presence. I am not saying that we should not prepare argument to assist the
    court. Thats not been suggested.

THE COURT:
Oral argument in full in the court
    would seem to me  would be satisfied by everyone standing there and reading
    out written argument.

[22]

This
    exchange, in my view, makes it obvious that defence counsel wanted to present
    oral argument, which the trial judge did not accept was required. Rather, the
    trial judge appears to be of the view that if the appellant merely saw the
    written argument, this would be sufficient. I will say more about this later.

[23]

Extensive
    written argument was prepared by the Crown and the defence, and was filed with
    the trial court sometime before July 31, 2003. On that date, the trial judge
    was not available, and the matter was adjourned to August 19
th
.
    Ultimately the trial judge received 110 pages in written submissions - 58 pages
    from the Crown, 52 pages from the defence.

[24]

The
    parties returned to court on August 19, 2013 for the matter to be spoken to. On
    this occasion, after being advised by the trial judge that he was not in a
    position to render judgment, the matter was adjourned to September 26. The following
    exchange also occurred:

MR. PILLA:
. I guess the only other thing
    before we break is there was some talk of enhancing any of the written
    submissions with oral submissions. I certainly have nothing to add. I just want
    to make sure that counsel for Mr. McDonald is in the same position. Or should
    we consider an interim date for that purpose or, I take it, Ive heard nothing
    so thats the state of things, I just want to confirm that before we adjourn.

MR. RICHARDSON:
Ill let Miss Peeris speak to
    that.

MS. PEERIS:
Yes. Your honour, Im the one who
    raised this on the last occasion. You recall that I requested that we make oral
    argument in front of the court, in front of my client, and Your Honour
    indicated at that time that you werent permitting it.

THE COURT:
That I was not?

MS. PEERIS:
Yes. That written submissions were
    to be in lieu of.

THE COURT:
If I change my mind and feel that
    it would be useful, Ill let you know.

[25]

It
    is not clear what Ms. Peeris is referring to when she says Im the one who raised
    this on the last occasion. Other than the May 26
th
transcript,
    there are no transcripts in the record where this was discussed. She may have
    been referring to the statement made by Mr. Richardson on May 26
th
.
    Or, there may well have been communications, perhaps out-of-court, about this.
    There is no way to know what those discussions were and we are left with the
    record filed.

(2)

Did the Trial Judge Prohibit Oral Submissions?

[26]

As
    I have already mentioned, it is clear to me from the transcript that on May 26,
    2003 defence counsel wanted the opportunity to present oral argument. The trial
    judge, on the other hand, did not accept that this was legally required.
    Indeed, he believed it would be enough if the client merely saw copies of the
    written argument. Moreover, he was not prepared to change his position because
    of logistical difficulties that may not even arise. In the end, he ordered
    written argument in lieu of oral argument.

[27]

In
    my opinion, the trial judges intention from the outset was to receive only
    written submissions from the parties. After discussing scheduling for the
    written submissions the trial judge said, [s]o when I have all of those, if I
    feel that I can get further assistance by counsel I will do so, otherwise that
    completes this. He is advising counsel how it is going to be and that
if
    he wants
further assistance he may revisit the issue of written
    submissions only.

[28]

Defence
    counsel raised the right to oral submissions and made it clear that he was open
    to alternative ways of combining written and oral argument. The trial judge
    disagreed that oral argument was required. To repeat, his view was that showing
    a copy of the written argument to the appellant would be sufficient: He
    receives copies and you can - so that is how you partake in written argument,
    by seeing the written argument and seeing the assistance of counsel.

[29]

Defence
    counsel raised the logistical challenges that could interfere with the
    appellants ability to even see the written argument. The trial judge noted
    that the logistical challenges may not materialize and if they did they could
    be raised then: lets not put the cart before the horse. I do not interpret
    this as the trial judge saying that he has changed his mind and is no longer
    ordering final argument to be in writing only.

[30]

Defence
    counsel advised that he has no objection to preparing written argument, but I
    just suggest that its made in full and in Mr. McDonalds presence. In the
    context of everything else the trial judge said, his next comment is, in my
    view, a dismissive response to counsels claim that written submissions alone
    are inadequate: Oral argument in full in the court would seem to me  would be
    satisfied by everyone standing there and reading out written argument. So.
    The trial judge is not suggesting that the parties proceed in this way; rather,
    he countered defence counsels claim with, [s]o that will be the timetable
    then, referring to written submissions.

[31]

In
    connection with the August 19, 2003 transcript, even if it could be said that
    the Crown believed oral submissions were open, the issue is not what the Crown
    believed; rather, it is what the trial judge ordered. The transcript is clear.
    The trial judge maintained his position that there would be no oral
    submissions.

[32]

Specifically,
    in connection with oral submissions, Ms. Peeris noted to the trial judge, you
    werent permitting it, which implies that permission was sought, probably on
    May 26
th
, but denied. Clearly, the defence was not abandoning its
    request to have an opportunity to make oral submissions. After the trial judge
    questioned Ms. Peeris statement  That I was not?  this exchange occurs:

Ms. Peeris:
Yes. That written submissions were
    to be in lieu of.

The Court:
If I change my mind and feel that
    it would be useful, Ill let you know.

[33]

The
    trial judges reference to change my mind affirmed that defence counsel was
    right in describing his position; that written submissions were to be in lieu
    of oral submissions. His response demonstrates that he was aware that the defence
    continued to want oral submissions. Whether Ms. Peeris reference to having
    raised this issue is to the May 26
th
appearance or another
    appearance is of no moment. The meaning of this exchange on August 19
th
does not change; the trial judge responded to a reminder that he would not
    permit oral submissions by saying that if he changes his mind he would let
    counsel know.

[34]

I
    am of the firm conclusion that the appellant has met his burden of showing that
    he was denied the right to make oral submissions at the close of his dangerous
    offender hearing. That failure on the part of the trial judge constitutes a
    breach of fundamental due process which is fatal to the dangerous offender
    proceedings. I reach this conclusion for the following reasons.

(b)

Was it Fatal to Prohibit Oral Submissions?

[35]

Part
    XXIV of the
Criminal Code
sets out the provisions dealing with
    dangerous offenders and long term offenders. Section 758(1) mandates the
    procedural right of an offender to be present at his or her dangerous offender
    application. Section 758 is a replication of s. 650(1), which provides similar
    rights to be present at trial.

[36]

Although
    nothing in Part XXIV or s. 650 specifies that the offender has a right to make
    oral submissions the appellant claims that his rights to a fair hearing and to
    be present at his trial were violated. He says the principles of fundamental
    justice required an oral hearing that included the opportunity to make final
    submissions in person. I agree with the appellant.

(1)     Fundamental
    Justice

[37]

Fundamental
    justice in Canadian law is the fairness underlying the administration of
    justice and its operation. The principles of fundamental justice are specific
    legal principles that command "significant societal consensus" as
    "fundamental to the way in which the legal system ought fairly to
    operate":
R. v. Malmo-Levine; R. v. Caine
, 2003 SCC 74, [2003] 3
    S.C.R. 571, at para. 113. The more a person's rights or interests are adversely
    affected, the more procedural or substantive protections must be afforded to
    that person in order to respect the principles of fundamental justice: see
Charkaoui
    v. Canada (Citizenship and Immigration)
, 2007 SCC 9, [2007] 1 S.C.R. 350,
    at para. 25.

[38]

Procedural
    fairness speaks to the principle that persons affected by the proceedings
    should have the opportunity: (i) to present their case fully and fairly, and
    (ii) have any decision affecting their rights, interests, or privileges made
    using a fair, impartial and open process: see
Baker v. Canada (Minister of
    Citizenship & Immigration)
, [1999] 2 S.C.R. 817, at pp. 837-841. As
    the Supreme Court emphasized in
Suresh v Canada (Minister of Citizenship
    and Immigration),
2002 SCC 1, [2002] 1 S.C.R. 3, at para. 118, [t]he
    greater the effect on the life of the individual by the decision, the greater the
    need for procedural protections to meet the common law duty of fairness and the
    requirements of fundamental justice under
s. 7
of the
Charter
.


[39]

The
    greater procedural protections just referenced can include the right to an oral
    hearing, where questions can be answered and submissions made in open court, with
    an opportunity for those affected by the decision to put forward their views
    and evidence fully and have them considered by the decision-maker:
Baker
at
    p. 837. In
Singh v. Canada (Minister of Employment and Immigration),
[1985]
    1 S.C.R. 177,

at para. 58, Wilson J. commented that where physical
    liberty is at stake it would seem on the surface at least that these are
    matters of such fundamental importance that procedural fairness would
    invariably require an oral hearing. This view  that where the stakes are
    serious enough an opportunity for oral submissions must be given  is in
    keeping with recognition that there are cases where the demands of natural
    justice can require an oral hearing: see
Baker
;
Re Spalding
,
    (1955) 16 W.W.R. 157 at 169;
Joly v. Canada (Attorney General)
, 2014
    FC 1253, 471 F.T.R. 190;
Patchett v. Law Society of British Columbia
,
    [1979] B.C.J. No. 1097.

[40]

The
Criminal Code
provisions regarding dangerous offenders authorize the
    most extreme and clearest form of preventive sentence that can be imposed on an
    offender in Canada. They permit the imposition of indeterminate detention in
    order to protect the public from persistent criminals with a propensity for
    committing violent crimes against the person: see
R. v. Boutilier
,
    2017 SCC 64, 42 C.R. (7th) 251, at para. 3.

[41]

The
    indeterminate sentence allows for control of offenders found to be dangerous
    for the rest of their lives. This is a significant deprivation of liberty. As such,
    procedural fairness must be jealously guarded and strictly enforced in this
    context. Subject to the right of the parties to agree otherwise, the closing
    arguments must therefore include oral submissions, held in open court, in the
    presence of the accused, counsel, the trial judge and the court reporter.

(2)     Section
    650 of the Criminal Code

[42]

Section
    650 of the
Criminal Code
gives the appellant the right to be present
    in court during the whole of his trial subject to exceptions that do not apply
    in this case. Closing arguments are part of an accused's trial, and thus are
    subject to the requirement that the accused be present. This right gives effect
    to the principle of fairness and openness that are fundamental values in our
    criminal justice system. Presence gives the offender the opportunity of
    acquiring first-hand knowledge of the proceedings leading to the eventual
    result. The denial of that opportunity may well leave the offender with a
    justifiable sense of injustice, which is the implicit and overriding principle
    underlying the right to be present: see
R. v. Hertrich
(1982),
67 CCC (2d) 510, at para. 81
.

[43]

It
    is true that we can infer from the record that all counsel were satisfied with
    the contents of the written arguments filed. Furthermore, with the evidence
    complete, the content of the written argument could not have affected the
    conduct of the appellants defence. Indeed, it could be argued that oral
    submissions of the appellant would have had no meaningful impact on the written
    submissions made by his counsel.

[44]

Nevertheless,
    the appellant's prohibition from the opportunity to make oral arguments at the
    close of his dangerous offender hearing limited the appellants right to be
    present when the arguments were received by the trial judge. This fouled the
    appearance of fairness, compromised the transparency of the proceedings, and
    was at odds with the open court principle. This amounted to a miscarriage of
    justice. A review of written submissions in jail with his counsel through a
    plexi-glass barrier was no substitute for being present during oral argument.

[45]

In
    holding that counsel for the appellant was entitled to make oral submissions in
    the presence of the appellant, I do not suggest that the trial judge could not
    require written submissions as a first step in the argument process.  It is now
    common practice in the criminal courts to require written submissions, not only
    at the end of the evidence in judge alone cases, but also in respect of various
    evidentiary motions, or pre-charge discussions held before or during trial.  In
    those cases, written argument is used, not in lieu of oral argument, but in
    addition to and usually as a precursor to oral argument.

[46]

If
    a trial judge requires written argument as a first step in the argument
    process, the trial judge must allow counsel, after a written argument has been
    exchanged, to make oral arguments in the presence of the accused to supplement,
    correct, or otherwise amplify the written argument.  The trial judge, of
    course, controls oral argument as he does other facets of the trial.  The right
    to make oral submissions is not the right to repeat what has already been said
    in written or oral submissions, or to otherwise waste valuable court time. Counsel
    may, of course, agree to waive oral argument either entirely or as a supplement
    to written argument.

[47]

In
    the normal course, when a trial judge requires written submissions and allows
    counsel the opportunity to make additional oral submissions in the presence of
    the accused, procedural fairness requirements and the accuseds right to be
    present throughout his trial will be satisfied by the combination of written
    and oral argument.  The trial judge is entitled to assume that counsel has
    taken the steps necessary to ensure that the accused, to the extent that he or
    she wishes to do so, has had the opportunity to review the submissions with
    counsel and participate in the formulation of defence submissions.

[48]

Circumstances
    may arise, however, in which the accused does not have the opportunity to
    review written submissions with counsel and participate in the preparation of
    oral submissions.  When counsel for an accused brings those circumstances to
    the attention of the trial judge, the trial judge must take the appropriate
    procedural steps to ensure procedural fairness and to protect the accuseds
    right to be present at trial.  In some cases, it may even be necessary to
    require that the submissions be made orally and without regard to any prior
    written submissions that were filed.

[49]

The
    trial judge has discretion to decide how best to address the kinds of problems
    referred to above. This discretion, however, must be exercised in a manner that
    protects the fairness of the proceeding. Experience indicates that in the vast
    majority of cases there will be no problems.  Written argument coupled with the
    opportunity to make additional oral submissions after written argument has been
    exchanged and filed will suffice.

(3)     The
    Curative Proviso

[50]

The
    Crown takes the alternative position that the appellant was not actually
    prejudiced in the sense that no substantial harm or miscarriage of justice was
    occasioned, and that any error was harmless. Sections 686(1)(b)(iii) and (iv)
    of the
Criminal Code
provide:

(iii) notwithstanding that the court is of the
    opinion that on any ground mentioned in subparagraph (a)(ii)
[2]
the appeal might be decided in favour of the appellant, it is of the opinion
    that no substantial wrong or miscarriage of justice has occurred, or

(iv) notwithstanding any procedural irregularity at
    trial, the trial court had jurisdiction over the class of offence of which the
    appellant was convicted and the court of appeal is of the opinion that the
    appellant suffered no prejudice thereby

[51]

Justice
    Trotter, when he was a trial judge, properly noted in
R. v. Kankis
,
    2012 ONSC 378, 281 C.C.C. (3d) 113, at para. 37 that factors such as the
    appearance of fairness are engaged when considering whether there was a
    miscarriage of justice within the meaning of s. 686(1). As he observed,
    this court has held on numerous occasions that a miscarriage of justice need
    not always be supported by the demonstration of actual prejudice to an
    appellant; sometimes, public confidence in the administration of justice is
    just as shaken by the appearance as by the fact of an unfair proceeding: see
    also
R. v. Cameron
(1991), 2 O.R. (3d) 633, at p. 639;
R. v.
    Morrissey
(1995), 22 O.R. (3d) 514, at pp. 541-542.

[52]

The
    term "prejudice" in s. 686(1)(b)(iv) refers not only to prejudice to
    an individual accused's ability to properly defend her or himself and to
    receive a fair trial, but also to prejudice in the broader sense of prejudice
    to the appearance of the due administration of justice: see
R. v.
    Kakegamic
, 2010 ONCA 903, 265 C.C.C. (3d) 420, at para. 36;
R. v.
    F.E.E.
, 2011 ONCA 783, 108 O.R. (3d) 337, at para. 33.

[53]

A
    breach of s. 650(1) by exclusion of an accused from a part of his or her trial
    is a procedural irregularity to which s. 686(1)(b)(iv) can apply. However,
    unless there are exceptional circumstances, s. 686(1)(b)(iv) will not save a
    breach of s. 650(1) caused by the absence of the accused during closing
    arguments at the conclusion of dangerous offender proceedings. This is
    precisely what occurs when exclusively written argument is ordered by the trial
    judge and an opportunity to provide oral argument by the offender is denied.
    Such circumstances impair the appearance of fairness, compromise the
    transparency of the trial proceedings and are at odds with the open court
    principle: see
F.E.E.
, at paras. 50-52.

[54]

Closing
    argument to a trial judge in dangerous offender proceedings is of the utmost
    importance to the person whose liberty - perhaps permanently - is at stake.
    Those arguments explain the basis upon which the offenders designation will be
    decided and his or her period of incarceration will be assessed. The exclusion
    of an offender from the hearing of closing arguments, where his or her
    opportunity to make oral submissions is denied, undermines both the appearance
    and the reality of the due administration of justice.

[55]

For
    these reasons, the appearance of fairness at the appellants dangerous offender
    hearing was seriously undermined by his prohibition from making oral
    submissions during closing argument. Accordingly, I would allow this ground of
    appeal.

(c)

Adequacy of Reasons

[56]

When
    evaluated in the context of the record as a whole, the reasons for sentence are
    adequate. While brief and somewhat conclusory, this was a single-issue case
    turning on the manageability of the appellant in a non-custodial context. The
    evidence was strongly against the appellant.

[57]

The
    reasons sufficiently inform the appellant why the trial judge found that there
    was no reasonable possibility of eventual control of the appellants risk in
    the community such as would warrant a long term offender finding. The reasons
    also demonstrate consideration of the then recent Supreme Court of Canada
    decision in
R. v. Johnson,
2003 SCC 46, [2003] 2 S.C.R. 357. And
    finally, the reasons are sufficient to allow for appellate review.

[58]

I
    would dismiss this ground of appeal.

DISPOSITION

[59]

For the reasons given, I would dismiss the appeal
    against conviction. I would allow the appeal against sentence and quash the
    order declaring the appellant a dangerous offender as well as the indeterminate
    sentence. I would order a new dangerous offender hearing.

Released: DD APR 16 2018

H.S. LaForme J.A.

I agree. Doherty
    J.A.

I agree. David M.
    Paciocco J.A.





[1]

Trial Crown counsel was Mr. A. Pilla; defence counsel was Mr.
    R. Richardson and Ms. S. Peeris.



[2]
That section provides:
(ii)
the judgment of the trial court
    should be set aside on the ground of a wrong decision on a question of law


