



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    any information that could identify the complainant or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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. Hogg, 2011 ONCA 840



DATE: 20111230



DOCKET: C50544



COURT OF APPEAL FOR ONTARIO



OConnor A.C.J.O., Feldman and LaForme JJ.A.



BETWEEN



Her Majesty the Queen



Respondent



and



Derrick Anthony Hogg



Appellant



Apple Newton-Smith, for the appellant



Howard Leibovich, for the respondent



Heard: June 2, 2011



On appeal from the conviction entered by Justice David S. Crane
          of the Superior Court of Justice dated January 10, 2008 and the sentence
          imposed on January 29, 2009, with reasons reported at [2009] O.J. No. 397
          (S.C.).



Feldman J.A.:

INTRODUCTION



[1]

On New Years Eve, 2006, the appellant and his partner visited the
    complainants to celebrate together. However, the appellant ultimately attacked
    the male complainant both with a beer bottle and with his fist in the face, had
    intercourse with the female complainant, and attacked her with the telephone. He
    was convicted of a number of offences including two counts of assault with a
    weapon and one count of assault, but was acquitted of sexual assault.

[2]

The trial judge then found the appellant to be a dangerous offender and
    sentenced him to an indeterminate sentence. The appellant appeals both his
    conviction and sentence. He says that the reasons of the trial judge for
    conviction are inadequate because the trial judge failed to address
    inconsistencies in the evidence of the complainants. He also says that the
    predicate offence cannot be said to form a sufficient pattern with his previous
    convictions which were for forcible sexual assaults. For the reasons that
    follow, I would dismiss both appeals.

THE CONVICTION APPEAL

Facts of the Predicate Offence

[3]

On the evening of December 31, 2006, the appellant and his girlfriend, S.P.,
    visited S.P.s friend K.M. and her common law partner
[1]
,
    R.F.  After they drank and hung out for a while, the appellant and S.P. left in
    a cab to go to a bar. They returned a few hours later and began drinking
    together again, when the appellant made sexually explicit comments to K.M.  This
    upset R.F. who told the appellant not to speak that way to his wife. The appellants
    response was to smash a full beer bottle over R.F.s head. K.M. was very upset,
    but the appellant downplayed the event, took R.F. into the bathroom where he
    poured liquor over the cut to clean it, then took him to lie down in the
    bedroom.

[4]

While R.F. was lying down in the bedroom, K.M. was crying, sitting on
    the couch in the living room. According to K.M., the appellant told her that R.F.
    was okay, then he had intercourse with her while S.P. held her hand back and
    her leg up.  K.M. was not able to recall a lot about how this incident occurred
    including how her clothes came off. Her evidence was that she did not consent and
    said no, no, no. The appellant and S.P. testified that the intercourse was
    consensual.

[5]

When R.F. heard his wife crying out, he came from the bedroom. K.M.
    testified that the appellant was penetrating her. R.F. does not see well; he
    testified that he saw the appellant on the ground, K.M. on the couch and S.P.
    on the side holding his wife.

[6]

R.F. was very upset. He wanted the appellant and S.P. out. He made a
    disparaging remark about S.P. He asked the appellant how he could do this to
    which the appellant answered that he does what he wants. When R.F. told him
    that no niggers going to come into my house and wreck my family, the
    appellant punched him in the face, causing him to go backward hard against the
    wall. His nose was broken, his eye implant was loosened and his teeth went
    through his bottom lip.

[7]

At that point, R.F. and K.M. wanted to call the police, but the
    appellant said no because he did not want to go back to jail. He backed R.F. up
    into the bedroom and convinced him to lie down. When he emerged about 20
    minutes later, again his wife was saying no; she was on her knees on the floor
    with the appellant on the couch and S.P. on the other side. K.M. said they were
    trying to force her to perform oral sex on the appellant. When R.F. reached for
    the phone the appellant ripped it out of his hands. R.F. then ran to other
    apartments to try to get help, couldnt, then returned to see K.M. pushing a
    chair toward the appellant while he was hitting her with the phone on the head,
    the ear and the shoulder. R.F. collapsed on the couch.

[8]

S.P. told the appellant to leave. On the way out he told K.M. and R.F.
    that they were dead.

[9]

K.M. had tried to call 911 when the appellant grabbed the phone from her
    and hung up. She was able to call 911 again and the tape and transcripts were
    part of the evidence at the trial. The following is the beginning of the 911
    call:

MALE #1: ... you dont hit me like this and then
    youre gonna call ...

K.M.: Hello?

POLICE: Hi, Brantford Police.

K.M.: ...stop...stop.

POLICE: Hello?

DIAL TONE/RINGING

POLICE: Im putting this 933 on......but it might
    be related to yours, but its coming from number 15.

MALE OFFICER: Well, thats probably, Im just
    calling her back...

POLICE: Oh I didnt read yours. I just know what
    you have there and just saw the...

RINGING

POLICE: 911 first emergency.

K.M.: Hi, Anthony Hogg was at our house and he just
    punched my husband and pushed him, and slapped him, and then he, I tried to
    dial 911 and he hit me with the phone.

[10]

A police officer, Officer Gage arrived at approximately 7:30 a.m. on
    January 1, 2007. K.M. was hysterical saying that theyre going to kill us.
    She did not mention any sexual assault at that time. The next day, the
    complainants called the same police officer over and K.M. told him that the
    appellant had sexually assaulted her. She said that she had been too scared and
    embarrassed to tell him in front of her husband and because he was a male
    officer.

[11]

Both the appellant and S.P. testified. They described a consensual orgy
    among the four of them, but then R.F. got mad at K.M. and smashed a beer bottle
    over his own head. While he was lying down, the other three began the orgy
    again. R.F. got angry again and when he came at the appellant with a beer
    bottle, the appellant punched him in the face. R.F. then wanted to call the
    police but K.M. stopped him so he hit her on the head with the phone. However, K.M.
    started screaming at the appellant after he hit R.F. and the police had been
    called, and R.F. threatened to charge the appellant so the appellant took off.

The Trial Judges Reasons for Conviction

[12]

The trial lasted four days. The trial judge delivered his reasons orally
    following submissions from counsel. He began by listing the eight issues raised
    by the defence: (1) the evidence of the complainants was fabricated; (2)  the
    appellants punch was thrown in self-defence; (3) K.M. had made false sexual
    allegations in the past; (4) the sexual activity was consensual; (5) the onus
    of proof on the Crown beyond a reasonable doubt including the issue of
    credibility; (6) the application of
W.D
.; (7) K.M.s evidence was
    inconsistent with her earlier statements; and  (8) the complainants had a
    motive to lie to preserve their relationship.

[13]

The trial judge made findings about what happened that night and the
    next morning. He found that the appellant was at the complainants apartment at
    the invitation of S.P.; that the complainants had no intention of partying with
    the appellant that night and called him and S.P. a cab before midnight; and that
    the appellant and S.P. arrived back later intoxicated and quarrelling. At some
    point, the appellant made sexually explicit remarks to K.M., R.F. objected and
    the appellant struck him on the head with an unopened beer bottle. The trial
    judge rejected the defence assertion that R.F. hit himself over the head with a
    beer bottle as incredulous and rejected as well the defence complaint that it
    was deprived of evidence because the broken bottle was swept up. In fact, the
    broken bottle was in the kitchen garbage.

[14]

The trial judge found that the appellant had sexual intercourse with K.M.,
    but was not satisfied that the Crown had proved beyond a reasonable doubt that
    there was no consent. He found K.M.s evidence lacking in particulars with
    unexplained details such as how her lower garments were removed and the reason
    why she only complained the next day, and whether it was to protect her
    relationship with R.F., although he observed that through her therapy she had
    learned to block details from her mind. He concluded on the issue that he was
    making no positive finding of consent, only that lack of consent was not proved
    beyond a reasonable doubt.

[15]

R.F. heard K.M. during the sexual encounter, came into the room, and had
    a confrontation with the appellant, whereupon the appellant intentionally
    assaulted him with a heavy blow to the face. The trial judge concluded that
    the accused exercised a dominating presence over the other three occupants
    that night. He was, on the evidence before me, an egocentric and physically
    directing person. Indeed, R.F. admitted he was in fear of him.

[16]

He found that the appellant fabricated the evidence that R.F. came at
    him with a beer bottle and rejected the defence of self-defence. Furthermore,
    even had there been such an attempt, the appellant was in no danger of being
    harmed, given their positions and relative size.

[17]

The trial judge found that the appellant struck K.M. with the phone
    several times to prevent her from calling 911.  Even with his drinking, the
    appellant had a conscious and directing mind, he exercised a dominating
    presence over the other three occupants, he left the two complainants in an
    emotional and physical shambles, and in effect, devastated each of them.

Issue on the Conviction Appeal

[18]

The appellant submits that the trial judges reasons for conviction did
    not address a number of inconsistencies in the evidence of the complainants and
    resulted in inconsistent verdicts that cannot be reconciled.

Analysis on Conviction Appeal

[19]

The appellants complaint focuses on the evidence of Constable Gage who
    responded to the 911 call. He observed that K.M. had showered, that the floor
    was freshly mopped, that R.F. appeared intoxicated and there were no animals
    present. In contrast, the complainants said they did not shower or clean up
    before the police arrived, R.F. said he was not drunk and K.M. mentioned having
    a number of animals in her apartment. The appellant submits that since the
    trial judge rejected K.M.s evidence on the sexual assault count, he was
    obliged to explain how he accepted her evidence on other issues when there were
    inconsistencies. Similarly with R.F.

[20]

In my view, there is no merit in this submission. The reasons for
    judgment, delivered orally immediately following the trial were brief but perfectly
    adequate to deal with the issues that were before the trial judge. He
    articulated those issues and addressed each of them, including the credibility
    of each of the witnesses.

[21]

The inconsistencies now emphasized by the appellant were neither blatant
    nor important aspects of the evidence. The complainants were unsure in
    cross-examination exactly when the showering and cleaning up occurred. There
    was no issue raised regarding the whereabouts of any animals. The trial judge
    was fully aware of the drinking that went on and made his own determination
    about R.F.s condition. Finally, the trial judge was aware that K.M. was
    hysterical and no doubt took that into account in his assessment of her
    credibility generally and how it affected his determination on important matters
    such as the sexual assault, as opposed to less significant matters. Most
    important, there was corroboration for the fact that the appellant struck the
    complainants including the broken beer bottle, the injuries and the 911 call.
    Finally, the trial judge completely rejected the story told by the appellant
    and of S.P. as totally incredible.

[22]

I would dismiss the appeal against conviction.

APPEAL AGAINST DANGEROUS OFFENDER DESIGNATION AND

INDETERMINATE SENTENCE

[23]

The appellant submits that the trial judges conclusion that the
    predicate offence was the continuation of a pattern of repetitive behaviour
    in accordance with s. 753 (1) (a)(i) of the
Criminal Code
was
    unreasonable. The prior offences were all sexual assaults, while in the
    predicate offences, the appellant was acquitted of sexual assault. Furthermore,
    in order to support his conclusion, in his reasons for decision on sentence the
    trial judge made findings of fact with respect to the predicate offences that
    were inconsistent with his findings on conviction.

History of Prior Offences

[24]

The appellant has a record consisting of 24 offences before his
    convictions on the predicate offences. They include sexual assaults, a weapon
    offence, driving offences, drug offences and failures to comply with
    recognizances. The trial Crowns position, which the trial judge accepted, was
    that the pattern established by the appellant was violent temper in response to
    any opposition to his sexual desires and inability to control his violent
    impulses. This was manifested in his failure to use any restraint in his
    pursuit of sexual gratification, either by direct sexual assault, or in the
    predicate offences, by assaulting the womans husband in order to remove the
    barrier to having sex with the woman. He also completely dominated the
    complainants in their home. R.F. was in fear while K.M. was hysterical. His
    future dangerousness resulted from the fact that he continued to deny any
    responsibility for his offences or that his behaviour was aberrant.

[25]

The trial judge referred to three prior convictions for sexual assault and
    violence as the offences which formed the basis for the pattern.

[26]

The first was a sexual assault of a 13 year old girl in 1987, to which
    the appellant pled guilty in 1991. The girl was at a party at a friends apartment.
    She went to lie down in a bedroom around 2:00 a.m. She was awakened at about 5
    a.m. by the appellant who had removed her jeans down to her knees and was
    penetrating her vagina with one of his fingers. He stopped as she woke up. They
    argued and she went home when she realized she was the only one left in the
    apartment. The appellant threatened to get her if she told anyone. At the
    dangerous offender hearing, the appellant said that the allegations were made
    up by the complainants father, and that he pled guilty because he thought the
    sentence would be a peace bond.

[27]

In 1994, the appellant was a drug dealer. He and a friend picked up two
    young women, K.S., who was 17 years old, and E.R. They drank beer and smoked
    drugs together a couple of times, the appellant supplying the beer and drugs to
    the women free. The third time, the appellant suggested to K.S. alone that they
    go and smoke some drugs in his car. He then said she owed him something for the
    drugs implying that it was sex, which she refused. He then locked the doors of
    the car, held her down by the throat, tore her jeans and forced intercourse.
    When she was able to get out of the car, he pushed her around a bit before
    driving away. The victim contracted chlamydia, suffered bruising and became distrustful
    of men. At the trial the appellant took the position the sex was consensual,
    then on the dangerous offender hearing he denied having sex until his previous
    testimony was put to him.

[28]

The appellants third victim was his then current partner, M.S., in 2001.
    They had been romantically involved off and on over a 12-year period, and had
    been dating for 1.5 years prior to the June assault. This occurred in her
    apartment. They began to fight because she had been subpoenaed to testify
    against the appellants brother and he didnt want her to go. He first bent her
    fingers backward until she screamed then he put his hands on her throat and
    pressed causing her to black out momentarily.

[29]

In October, she went to his house to pick up some videos to return. He
    threw her against the steps and hit her in the left cheek. She was able to calm
    him down. By November they were no longer involved, when they happened to see
    each other in a bar. The victim was with another woman. The appellant and M.S.
    argued throughout the evening. Around 2:30 a.m. the two women left and went to
    M.S.s condo, where the appellant was waiting with the security guard. M.S.
    felt safe with her friend there with them and allowed the appellant to come up
    to the condo. When the friend left around 4:00 a.m., the appellant began to
    fight with M.S., and demanded that she take off her clothes, which she did out
    of fear. He then demanded oral sex, grabbed her by the back of the head and
    forced her head onto his penis. When she started to cry, he forced her onto her
    stomach and anally assaulted her. She couldnt breathe, got away and tried to
    get to the phone or the door. He pinned her down and anally assaulted her
    again. She suffered excruciating pain and begged him to stop. He told her to
    shut the f--- up and take it. He then grabbed her by the head and tried to
    force his penis with her blood on it into her mouth, telling her he was going
    to humiliate her as she had done to him. Later he anally assaulted her again,
    then had vaginal intercourse and ejaculated. He lay beside her with his leg
    over her to hold her down. In the morning he made her get his car which had
    been towed. She was prepared to do anything to get rid of him. She suffered
    multiple tears to her rectum, bruises on her arms, legs and shoulder as well as
    psychological trauma.

The Trial Judges Reasons on the Issue of Pattern

[30]

The trial judge approached his task by dealing with each issue required
    by s. 753(1)(a)(i) of the
Code
. I set out the section here for ease
    of reference:

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

[31]

The first issue was to determine whether the predicate offences were
    serious personal injury offences as defined by section 752 of the
Criminal
    Code
. He concluded that they were (para. 8). This was conceded on the
    appeal.

[32]

The second issue was whether there was evidence that the appellant
    constituted a threat to the life, safety or physical or mental well-being of
    other persons. I quote the reasons of the trial judge on this issue in full:

[10]     The Crown must prove a pattern of
    repetitive behaviour by Mr. Hogg from his convictions including the predicate
    offences, showing a failure of Mr. Hogg 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.

[11]

I
    deal firstly with the first portion of this issue, namely whether there is a
    pattern of repetitive behaviour as above defined.

[12]     Although Mr. Hogg has been convicted by my
    count of 30 criminal offences, the present Application issue looks to those
    offences that may be considered as comprising a certain pattern of repetitive
    behaviour showing a failure to restrain his behaviour.  Volume 1 of the
    filed materials collects the conviction documents.

[13]

I
    conclude that the Crown has successfully met this test on the evidence in this
    Application.  References are to the 1987 offence of sexual assault on a 13
    year old girl with the conviction registered in 1991; the 1994 sexual assault
    on K.S. which had a first conviction in 1999, an appeal and a new trial with a
    conviction again in 2001 of assault causing bodily harm, the conviction in 2004
    of a sexual assault on M.S. in 2002 and the predicate convictions of January,
    2008 upon two convictions of assault with a weapon on 1 January, 2007.

[14]     The Crown has filed court transcripts and
    other records to establish the facts underlying the convictions under
    examination.  A summary of some of those facts may be found in the Crown
    Submissions on Dangerous Offender Application, filed.

[15]     In the predicate offences Mr. Hoggs motive
    was the exploitation of his sexual gratification.  He acted upon that
    motive with sudden and overwhelming force so as to crush all resistance.  He
    devastated his victims, Mr. F. and Mr. F.s partner, Ms. K.M.  He inflicted
    serious physical harm on Mr. F. and serious and likely lasting emotional
    and psychological harm to each of Mr. F. and Ms. K.M. in the commission of the
    predicate offences.  The offences occurred in a domestic setting in
    company with his sometimes common law partner, S.P.

[16]

Notwithstanding
    that Mr. Hogg had just served the full term warrant on his previous offences
    and was at the time of the predicate offences bound by a section 810 good
    conduct order, he was unable to restrain his impulses and desires and committed
    these violent crimes.

[17]     As to the 2004 offences, the Crown filed
    evidentiary materials (found at volume 1, tab 19) including the transcript of
    the reasons of judgment of Mr. Justice Caputo on the 26th of January, 2004, in
    the Superior Court, Toronto.

[18]

Caputo
    J. is an experienced trial judge.  Caputo J. outlined in great deal the
    evidence and the factual findings he made of dominating sexual violence by [the
    appellant] of a woman with whom he had been in a relationship.  In the
    sentencing, the trial judge made reference to the victim impact statement of
    Ms. M.S. in which it is noted by the trial judge that the impact of the
    offences upon her has been all encompassing and has seriously and deeply
    affected every single aspect of her life.

[19]     As to the 2001 convictions of sexual
    assault and forcible confinement of the victim, K.S., at the time when she was
    17 years of age and living on the streets of Toronto.

[20]     The Written Submission of the Crown, at
    page 17, summarizes the consequences of these offences upon the victim as
    follows:

The Victim Impact Statement completed some five
    years later disclosed that the offence continued to have a significant
    psychological impact on the Ms. K.S.  In her statement, the victim notes
    that she lives with a fear from day to day that I will be hurt again, or that
    someone is after me or watching me.  She also indicates that, in public
    events I sometimes think I see Anthony Hogg and I get terrified and leave the
    establishment right away.  She further states that, I am terrified that
    Anthony Hogg will find me one day again and hurt me really bad, maybe even kill
    me.

[21]     There is the offence in 1987 when a 13
    year old girl while sleeping was not a barrier to Mr. Hogg committing a sexual
    assault of her.

[22]

I
    conclude that Mr. Hogg has shown repetitively a violent temper to any
    opposition to his sexual desires and an inability to control his impulses of
    violence.

[23]

I
    find without doubt that the applicant has satisfied the requirement that Mr.
    Hogg on the basis of the evidence, has exhibited an established pattern of
    repetitive behaviour of which the predicate offence forms a part, that shows a
    failure to restrain his behaviour, pursuant to section 753(1)(a)(i).

[33]

The trial judges conclusion on the pattern of repetitive behaviour
    issue is found in paragraphs 22-23 of his reasons. The pattern of repetitive behaviour
    identified by the trial judge, as demonstrated by the predicate offences as
    well as the three sets of offences just described above, is repetitively a
    violent temper to any opposition to his sexual desires and an inability to
    control his impulses of violence.

Analysis of the Law and Argument on the Dangerous Offender
    Appeal

[34]

The court was provided with the written submissions of the trial Crown
    and defence counsel on the dangerous offender application. Unlike the position
    taken on the appeal, the trial defence counsel did not argue that the predicate
    offence could not form part of a pattern of repetitive behaviour. He conceded
    that the predicate offence qualified as a serious personal injury offence under
    subsection (a) or (b) of s. 752, and did not raise any challenge to the
    requirements of s 753(1)(a)(i). This would explain why the trial judge did not
    refer to the position of the defence on this issue.

[35]

The argument that was made on behalf of the appellant was that the trial
    judge should nevertheless exercise his discretion not to declare the appellant
    a dangerous offender, referring to the case law that provides that the
    sentencing judge has such discretion even when the statutory provisions
    necessary for such a finding have been met, (see:
R. v. Johnson
, 2003
    SCC 46, [2003] 2 S.C.R. 357) and instead impose a determinate sentence or a
    long-term offender designation.

[36]

Ordinarily this court would not consider an argument that was not made
    at first instance or was conceded in the court below. However, in the case of a
    dangerous offender designation, the decision of the sentencing judge must be a
    reasonable one (see
R. v. Currie
, [1997] 2 S.C.R. 260 at para. 33) including
    the finding that the predicate and prior offences meet the criteria set out in
    s. 752 of the
Code.

[37]

A useful discussion of what is meant by the pattern of repetitive
    behaviour is found in the British Columbia Court of Appeal decision in
R. v.
    Dow
, 1999 BCCA 177, 134 C.C.C. (3d) 323. I quote from paras. 21, 24, 25 and
    26:

[21] The elements of subpara.(i) of para.753(a)
    are:  (1) that there be a pattern of repetitive behaviour revealed in the
    offences and that the pattern be present in the offence which gave rise to the
    dangerous offender proceeding; and (2) that the pattern of repetitive behaviour
    contained two essential elements:  first, a failure to restrain the
    relevant repetitive behaviour and, second, a likelihood of causing death or
    injury through a failure to restrain that behaviour in the future.

...

[24] In short, the significance and the relevance
    of common elements of the pattern must be determined by whether they tend to
    show first, repetitive behaviour, second, that there has been a failure in each
    case to restrain the behaviour, and third, that there has been injury to other
    persons arising from that failure.  If any of those three elements is
    missing, then there may be a pattern but it will not be a relevant
    pattern.  But if all three are present then the essential elements of a
    relevant pattern are revealed.

[25] I add that it is the very essence of a
    pattern that there be a number of significant relevant similarities between
    each example of the pattern that is being considered, but that, at the same
    time, there may be differences between each example, some of them quite distinctive,
    so long as the differences leave the key significant relevant elements of the
    pattern in place. ...

[26] It follows from what I have said that I
    think that the sentencing judge erred in law when he said that it was a
    necessary part of the pattern in this case that the victim in every incident
    must have been "identified by Mr. Dow for the purposes of venting his rage
    against a person of the female gender".  It is sufficient that all
    the victims were female and were violently assaulted in generally similar
    circumstances.  The fact that in the most recent incident the victim was
    not sexually penetrated is not a distinction which destroys the pattern, just
    as the fact that Dow knew Ms. Vannatter before he raped her does not destroy
    the pattern which covers all the other incidents in which the person assaulted
    was unknown beforehand to Dow.

[38]

Another explanation for the requirement of a repetitive pattern is
    discussed by Marshall J.A. in the Newfoundland Court of Appeal decision in
R.
    v. Newman
(1994), 115 Nfld. & P.E.I.R. 197 at para. 72: [it] guards
    against visiting one of the most serious criminal sanctions upon someone who
    has essentially abandoned a past pattern of intensely serious violence on the
    basis of a relapse of relatively less grave proportions. As Levine J.A.
    commented in
R. v. Pike
, 2010 BCCA 401, 260 C.C.C. (3d) 68, at
    para. 82, after quoting this observation by Marshall J.A.:

This explains why the pattern and predicate offence
    must be related. It would be inconsistent and unfair if the ultimate threat
    determination were to be made on the basis of a perceived threat unrelated to
    either the predicate offence or the pattern of behaviour it reveals as still
    persisting.

[39]

In
R. v. Jones
, [1993] O.J. No. 1321 (C.A.), this court observed
    that remarkable similarity was required in
R. v. Langevin
(1984), 45
    O.R. (2d) 705 (C.A.) where the pattern relied on consisted of only two
    offences, whereas in
Jones
, where there were four offences, fewer exact
    similarities were needed. In
R. v. Neve
, 1999 ABCA 206, 137 C.C.C. (3d)
    97, the Alberta Court of Appeal stated on this issue: the requirement for
    similarity in terms of kinds of offences is not crucial when the incidents of
    serious violence and aggression are more numerous. (para. 113)

[40]

To summarize, the pattern of repetitive behaviour that includes the
    predicate offence has to 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. This will ensure that the level of gravity of the
    behaviour is the same, so that the concern raised by Marshall J.A.  that the
    last straw could be a much more minor infraction  could not result in a
    dangerous offender designation. However, the offences need not be the same in
    every detail; that would unduly restrict the application of the section.

[41]

Having in mind these criteria, in my view, the decision of the
    sentencing judge to view the pattern of the appellants behaviour as using
    violence to achieve his sexual desires with an inability to control or restrain
    his impulses was a reasonable one. That pattern includes both direct sexual
    assaults with violence against the woman as well as in the predicate offence,
    violence against a man who would otherwise not allow the appellant to have sex
    with his wife.

[42]

Although the trial judge acquitted the appellant of sexual assault, he
    made it clear that it was because there were gaps in the Crown evidence, and
    not because he made a positive finding that there was consensual sex. He found
    that the complainants had no original intention to socialize with the appellant
    and S.P.  The trial judge found that K.M. was upset the whole time and
    hysterical by the end. The judge also found that the appellant had forced his
    will on the other three and devastated the complainants. Importantly and
    essentially, the appellant used extreme and sudden violence on R.F. in order to
    be able to immediately have sex with his wife.

[43]

Although the pattern differed in the detail of how the offences were
    carried out, the predicate and past offenses still represented a pattern of
    repetitive violent behaviour that made it likely that the appellant would
    continue to commit similar acts of violence in order to have sexual gratification
    in the future. I would not give effect to this ground of appeal.

[44]

There is no inconsistency between the trial judges findings on the
    conviction and the sentencing. In both he made the point that the appellant
    dominated both complainants. However, because of the onus of proof, he was not
    able to convict the appellant of sexual assault, given the lack of detail in
    the evidence on that issue. The fact that the pattern relied on by the trial
    judge was violence to achieve a sexual objective but not sexual assault itself,
    demonstrates that the trial judge did not effectively find sexual assault on
    the sentencing.

CONCLUSION

[45]

There was significant evidence on the hearing from correctional and
    parole officers who had read the appellants file and who had dealt with the
    appellant. They described violent offences in jail, as well as the appellants
    refusal to acknowledge any responsibility for his sexual attacks or need for
    any treatment programs to help him deal with his tendencies. There was also an
    assessment by a psychiatrist whose testing demonstrated a high risk to
    violently re-offend. One test that the appellant refused to take was the
    phallometric testing. This was consistent with the appellants refusal to
    acknowledge any possible deviance in his history of sexual attacks. The
    evidence all supported the trial judges decision to designate the appellant a
    dangerous offender and to impose an indeterminate sentence.

[46]

I would therefore dismiss the appeal against sentence.

RELEASED:

DEC 30 2011                                K.
    Feldman J.A.

KF                                                   I
    agree Dennis OConnor A.C.J.O.

I
    agree H.S. LaForme J.A.





[1]
The complainants are referred to in the evidence as common law partner, husband
    and wife at different times.


