



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    that could identify the victim or a witness shall not be published in any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(iii)     REPEALED: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    shall not be published in any document or broadcast or transmitted in any way.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. Brissard, 2017 ONCA 891

DATE: 20171122

DOCKET: C58229 & C58632

Pardu, Huscroft and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent/
Appellant in sentence appeal

and

Timothy Dominic
    Brissard

Appellant/
Respondent in sentence appeal

John Norris and Meara Conway
    for the appellant/respondent in sentence appeal, Timothy Dominic Brissard

David Finley for the respondent/appellant
    in sentence appeal, Her Majesty the Queen

Heard: September 21,
    2017

On appeal from the conviction entered on April 30, 2012
    by Justice F. Bruce Fitzpatrick of the Superior Court of Justice, sitting
    without a jury, with reasons for judgment reported at 2012 ONSC 2481 and
    reasons for sentence reported at 2012 ONSC 7760.

Pardu J.A.:

[1]

Timothy Dominic Brissard appeals his conviction for the sexual assault
    of a 12 year old girl under s. 271 of the
Criminal Code
, R.S.C. 1985,
    c. C-46. The Crown appeals the trial judges refusal to designate Mr. Brissard a
    dangerous offender pursuant to s. 753 of the
Criminal Code
.

[2]

For the reasons that follow, I would dismiss both appeals.

MR. BRISSARDS CONVICTION APPEAL

[3]

Mr. Brissard argues that the trial judge erred in two respects.

a)

He admitted and impermissibly relied upon evidence of Mr. Brissards prior
    sexual conduct toward the complainant in contravention of the principles
    governing similar fact evidence.

b)

He failed to address:

(i)       inconsistencies
    between the complainants previous statements and her trial testimony;

(ii)      differences
    between Mr. Brissards girlfriends evidence and the complainants evidence;
    and

(iii)     aspects
    of the complainants behaviour after the sexual assault.

[4]

The Crown submits that the evidence of prior sexual conduct was properly
    admissible as evidence of motive, and that the trial judge did not misuse that
    evidence. The Crown submits further that the trial judge was aware of the evidentiary
    issues relating to the complainants evidence and ultimately decided that they did
    not undermine her credibility.

Factual background

[5]

M.W., the complainant, was 12 years old at the time of the offences in
    December 2010. She was friends with her next door neighbour, N.A., and babysat
    for her from time to time. Mr. Brissard was 26 years old at the time and lived
    with N.A.

[6]

The complainant went to N.A.s house on December 22, 2010 at around
    10:00 p.m. She planned to stay the night as she was supposed to babysit the
    next morning. After Mr. Brissard came home at around 11:00 p.m., the
    complainant, Mr. Brissard, and N.A. went to the basement and drank alcohol for
    a few hours. N.A. became so intoxicated that the complainant had to help her
    upstairs to bed where N.A. passed out.

[7]

The complainant went back to the basement and logged onto her social
    media account from her computer. She testified that Mr. Brissard then pulled
    her to the ground, touched her vagina over her clothes, and digitally
    penetrated her. According to her evidence, Mr. Brissard then pulled down her
    leggings and had intercourse with her until she pushed him away. He pulled her
    to the ground a second time, then penetrated her vagina and anus with his penis.
    She moved away and began to cry. Mr. Brissard apologized and told her that his
    uncle used to sexually assault him.

[8]

The complainant testified that she went upstairs and joined N.A. in bed
    after the sexual assault in the basement. The complainant stated that she tried
    to wake N.A. without success. Instead, she held onto N.A.s infant child who
    was also in same bed, cried, and fell asleep. The complainant testified that
    she woke to find her pants down and Mr. Brissard on top of her penetrating her vagina
    with his penis. She pushed him off and yelled at him to get out of the bed and out
    of the room.

[9]

An argument between the complainant and Mr. Brissard ensued, followed by
    a final sexual assault which the complainant described as a rape. The complainant
    testified that Mr. Brissard told her, you may be young, but your bodys not, before
    he walked out.

Prior conduct

[10]

At trial, N.A. testified that she first met the complainant in August
    2010 when N.A. moved into a house beside the complainants. N.A. stated that
    she quickly became friends with the complainant, saw the complainant almost
    every day, and that the complainant would come over to babysit about twice a
    month.

[11]

N.A. further testified that she saw Mr. Brissard play fight with the
    complainant pretty much every time [the complainant] came over beginning in
    August 2010. N.A. also described how Mr. Brissard would bend the complainant
    over, grab her waist, and touch her buttocks with his groin.

[12]

This behaviour was also noticed by another witness, Armand Cummings, who
    lived in N.A.s house from late October 2010 until early December 2010. He
    testified that he saw Mr. Brissard grinding his pelvis against the
    complainants buttocks and that he found it to be disturbing.

[13]

Mr. Cummings testified that he mentioned what he saw to N.A. before he
    moved out. For her part, N.A. testified that although she did not notice the
    impropriety of the touching before Mr. Cummings brought it up, she thought that
    Mr. Brissard was feeling [the complainant] up in retrospect.

Trial judges use of the evidence of prior conduct

[14]

At para. 22 of his reasons, the trial judge accepted the Crowns theory
    that the appellant was exhibiting a prior sexual interest in M.W and that
    this explained objectively why he would take the occasion, when his own
    girlfriend was intoxicated to the point of passing out, to take his sexual
    interest in M.W. to a more significant level. He used this evidence of prior
    conduct to support the complainants credibility and stated at para. 31 of his
    reasons:

I also find that M.W.s evidence that she was assaulted is made
    more credible by the evidence of prior sexual interest demonstrated by Mr.
    Brissard. To the extent that both N.A. and Mr. Cummings noticed prior incidents
    of inappropriate contact between Mr. Brissard and M.W., I am assisted in
    assessing M.W.s evidence as credible. Also N.A.s evidence concerning the
    argument that occurred in the morning of December 23
rd
, and her
    evidence concerning M.W.s avoidance of Mr. Brissard corroborates her evidence
    of being assaulted. Accordingly I find that Timothy Brissard intentionally
    applied force to M.W. by touching her in a sexual nature using both his penis
    and his hands.

[15]

No one objected to the admission of this prior conduct evidence or
    suggested that a
voir dire
was required at trial.

Analysis

[16]

Mr. Brissard submits that the trial judge erred by admitting the
    evidence of prior conduct because it was similar fact evidence that should have
    been subject to a
voir dire
and the analysis set out by the Supreme
    Court of Canada in
R. v. Handy
, 2002 SCC 56, [2002] 2 S.C.R. 908. The
    Crown, on the other hand, submits that the prior conduct evidence was used to
    illustrate Mr. Brissards state of mind and sexual interest in the complainant.
    As such, the Crown argues that the prior conduct was admissible as evidence of
    motive and that its probative value outweighed its prejudicial effect.

Is the evidence relevant?

[17]

Motive is a state of mind, a specific inclination to do the very act
    charged in relation to a particular victim. Evidence of a mental state, or
    motive, may be relevant to prove the accused did the act constituting the
    offence or it may be relevant to prove his or her intention or other mental
    state.

[18]

As this court explained in
R. v. Jackson
(1980), 57 C.C.C. (2d)
    154 at 167 (Ont. C.A.), [1980] O.J. No. 1468, at para. 37, evidence of motive
    may include evidence of relevant emotions or desires:

Motive, in the sense of an emotion or feeling such as anger,
    fear, jealousy and
desire
, which are likely to
    lead to the doing of an act, is a relevant circumstance to prove the doing of
    an act as well as the intent with which an act is done. The relevant emotion
    may be evidenced by

(a) conduct or
    utterances expressing the emotion,

(b) external
    circumstances which have probative value to show the probable excitement of the
    relevant emotion, and

(c) by its prior
    or subsequent existence (if sufficiently proximate): see Wigmore On Evidence,
    3rd ed., Vol. I, pp. 557-61; Vol. II, pp. 328-29.

[Emphasis added.]

[19]

Here the prior conduct tends to establish that the accused had a sexual
    interest in a twelve year-old girl. It was proximate in time and location,
    occurring repeatedly between August and December 2010 within the same home
    where the offence was alleged to have taken place. Importantly, the prior
    conduct directly involved and was aimed at the complainant.

[20]

Evidence that the accused had a sexual interest in the complainant
    logically tends to support the position that he acted on that interest on
    December 23, 2010, the date of the offence alleged in the indictment. Accordingly,
    the evidence is relevant.

Does the prior conduct cast the accused in a disreputable
    light?

[21]

The prior conduct ascribed to the accused is outside the time period
    described in the indictment. It tends to show that he committed other sexual acts
    against the complainant at earlier times. There can be no doubt that these
    earlier acts would be viewed as disreputable by a reasonable person.

[22]

As such, this evidence is presumptively inadmissible. Once these two
    elements are present, even where the evidence is tendered as proof of motive, it
    is not admissible unless a trial judge first concludes that the probative value
    outweighs its prejudicial effect:
R. v. Johnson
, 2010 ONCA 646, at
    paras. 92 and 97
per
Rouleau  J.A.

[23]

The procedural rules of the Superior Court of Justice applicable to
    criminal proceedings recognize this presumptive inadmissibility.  Rule 30.01 of
    the Criminal Proceedings Rules for the Superior Court of Justice (Ontario),
    SI/2012-7 provides that a party who wishes to tender evidence that is
    presumptively inadmissible, including evidence of disreputable conduct by an
    accused, other than the conduct charged in the indictment must serve an
    application asking for that relief 30 days before trial or the date set for
    pre-trial motions. The application must include a precise, case-specific
    statement of the basis and grounds upon which the evidence is said to be
    admissible.

Does the probative value of the evidence outweigh the
    potential prejudice associated with admission of this evidence?

[24]

I would conclude that this evidence was admissible. It was relevant. The
    risk of prejudice was low in this judge alone trial. The prior conduct was much
    less serious than the offence covered by the indictment.

[25]

Each assessment of the balance of probative value and potential
    prejudice depends on the facts of a particular case and the purpose for which
    the evidence is tendered. The evidence here is not general bad character
    evidence as, for example, use of child pornography, or writings expressing a
    desire to sexually assault children generally. It is more akin to evidence that
    an accused shot and missed the victim who was ultimately killed in a shooting
    shortly thereafter. Or, for example, writings that express an intention to
    commit a sexual assault on the very person ultimately targeted:
R. v. Byers
,
    2017 ONCA 639. The proximity in time and location, and the identity of the
    victim enhance the probative value of this evidence. The probative value of
    this evidence outweighed the potential for prejudice from misuse of the
    evidence.

[26]

The appellant relies on
R. v. J.H.
(2006), 215 C.C.C. (3d) 233
    (Ont. C.A.), [2006] O.J. No. 4832 in support of his argument that the prior
    conduct evidence should have been excluded. However, that case is very
    different from the present one. In
R. v. J.H.
,
a man was accused of forced sexual
    intercourse with a step-sibling some 20 years earlier when they were both
    underage. The Crown attempted to introduce evidence of sexual activity between
    them at least four years before the incident giving rise to the charge. There
    was no temporal connection between those previous activities and the offence at
    bar. As a result, this court held that the evidence of the accuseds prior
    conduct was more in the nature of general propensity rather than motive. Sexual
    contact four years before an alleged assault has little probative value in
    relation to motive to commit the alleged assault. The trial judge in that case,
    therefore, erred in admitting the evidence and using it to support a finding of
    guilt.

Did the trial judge misuse the evidence?

[27]

The trial judge did not misuse the evidence. He did not reason that the
    accused was a person of bad character who was therefore likely to have
    committed the offence. According to the trial judge, the appellants sexual
    interest in the victim made it more likely that he acted on that interest. That
    interest supported the complainants credibility.

Guidance for trial judges

[28]

Despite the presumptive inadmissibility of bad character evidence, this
    court has frequently held that motive evidence is admissible  even if it tends
    to show bad conduct:
R. v. Chenier
(2006), 205 C.C.C. (3d) 333 at
    362-65 (Ont. C.A.), [2006] O.J. No. 489, at paras. 80-86; and
R. v. Carroll
,
    2014 ONCA 2, 304 C.C.C. (3d) 252, at paras. 121-27. Evidence of prior familial
    violence is frequently admitted where an accused is charged with the homicide
    of a domestic partner. Evidence of sexual grooming to facilitate commission of
    a sexual assault on a child is frequently admitted, even where the conduct is
    outside the time frame defined by the indictment. Both are evidence of motive.

[29]

This court has held that prior conduct evidencing motive does not
    require a cautionary jury instruction against propensity reasoning even where
    that conduct amounts to disreputable behaviour:
R. v. Pasqualino
, 2008
    ONCA 554, 233 C.C.C. (3d) 319, at para. 65;
R. v. Moo
, 2009 ONCA 645,
    247 C.C.C. (3d) 34, at para. 100;
R. v. Carroll
, at para. 123; and
R.
    v.

Salah
, 2015 ONCA 23, at para. 88.

[30]

This does not mean, however, that a court can disregard the need for an
    admissibility inquiry in relation to this evidence. In some cases, evidence
    suggesting motive may be tenuous, or remote, and where it amounts to bad
    character evidence, the probative value may be outweighed by the risk of
    prejudice, particularly in a jury trial.

[31]

On the other hand, in this post
R. v. Jordan
, 2016 SCC 27,
    [2016] 1 S.C.R. 631 era, trial judges should not be required to embark on
    unnecessary evidentiary hearings. In many cases where admissibility is evident,
    and there is no opposition to admission of the evidence, trial judges should
    note that agreement on the record, or a prehearing judge should record that
    agreement, so that the consensus is clear, and no lengthy evidentiary hearing
    will be necessary.

[32]

In this case, questions posed to the complainant did not clearly elicit
    evidence about whether the prior disreputable conduct took place. Defence counsel
    expressly consented to the Crown asking N.A. about the prior improper touching
    by way of re-opening its examination in chief. Defence counsels theory was
    that the complainants repeated visits to N.A.s home were inconsistent with
    her allegations of the sexual assaults. All participants at trial proceeded on
    the assumption that the prior conduct evidence was admissible. It was
    appropriate for the trial judge to rely on the position expressed by defence
    counsel.

Weighing the evidence

[33]

Mr. Brissard submits that the trial judge failed to adequately deal with
    inconsistencies between the complainants pre-trial statements and trial
    testimony, differences between N.A.s and the complainants evidence as to what
    occurred in N.A.s bed, and aspects of the complainants behaviour when she
    continued to visit N.A.s home after the sexual assault.

[34]

The complainant was 14 years old at the time of trial. She had
    difficulty relating to the events underlying the charge. She cried, covered her
    face, and became non-responsive at times. Rather than putting the various alleged
    inconsistencies to her, Crown and defence counsel submitted an agreed statement
    of facts outlining those differences to the trial judge:

Five Inconsistencies agreed upon  Re. M.W. Testimony

First Statement  video statement taken after hospital visit,
    after midnight on January 9, 2011

Second Statement  video statement taken on 11 January 11

Preliminary Inquiry Testimony  given on August 16, 2011

1.  In the first and second
    statements, M.W. indicated that T.B. put his penis into her butt upstairs in
    her bed. She did not mention this at the preliminary inquiry. In the testimony
    at trial, M.W. indicated that T.B. put his penis into her butt in the basement.

2.  In the first statement, M.W.
    indicated she was pulled down from behind by the waist by Tim. In her testimony
    at trial, she indicated she was pulled down by her shoulders.

3.  In her first statement, M.W.
    indicated she was being licked down there indicating her vagina. She did not mention
    that here, nor at the preliminary inquiry.

4.  In her second statement, M.W.
    said that Tim put his fingers in her butt upstairs. She did not mention that at
    trial.

5.  In her first statement to the
    police, M.W. indicated that Tim was jacking off on the bed upstairs after the
    sexual contact in [N.A.s] bed. She did not mention that at the trial.

[35]

On appeal, Mr. Brissard further submits that the trial judge also failed
    to adequately address how N.A. did not notice the sexual assault beside her in
    bed and materially misapprehended the evidence as to why the complainant returned
    to N.A.s home after the sexual assaults.

[36]

The trial judge recognized the alleged inconsistencies in the
    complainants evidence at paras. 29 to 40 of his reasons but held that they did
    not raise a reasonable doubt because the complainant did not waver from her
    essential allegations of penile penetration. In his view, the strength of the Crowns
    evidence was not undermined by the complainants visits to N.A.s home after
    the sexual assaults.

[37]

The trial judge reasoned that frailties in the complainants account of
    certain details of the assaults could be explained by her young age and the
    nature of the offences. He also found that the complainant returned to N.A.s
    home after the sexual assaults because she wanted to pretend the assaults never
    happened. Finally, the trial judge concluded that N.A. did not see the sexual
    assault happening in bed beside her because she was just waking from a drunken
    stupor. As such, the trial judge adverted to and addressed all of the matters
    now raised in this ground of appeal.

[38]

Mr. Brissard is essentially asking this court come to different
    conclusions on the credibility of the complainant and other Crown witnesses. However,
    as noted in
R. v. R.E.M
, 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 32, where
    credibility is a determinative issue, deference is in order and intervention
    will be rare

[39]

Further in
R. v. Gagnon
, 2006 SCC 17, [2006] 1 S.C.R. 621, at
    para. 20, the court stated: Assessing credibility is not a science. It is very
    difficult for a trial judge to articulate with precision the complex
    intermingling of impressions that emerge after watching and listening to a
    witness and attempting to reconcile the various versions of events  in the
    absence of palpable and overriding error by the trial judge, his or her
    perceptions should be respected. See also
R. v. Szczerbaniwicz
, 2010
    SCC 15, [2010] 1 S.C.R. 455, at para. 2.

[40]

I therefore see no basis to interfere with the trial judges assessments
    of credibility and find no palpable and overriding error. Accordingly, I would
    dismiss the appeal from conviction.

[41]

I turn now to the Crowns appeal from the trial judges refusal to
    declare Mr. Brissard a dangerous offender pursuant to s. 753 of the
Criminal
    Code
.

THE CROWNS DANGEROUS OFFENDER APPEAL

[42]

The trial judge refused to designate Mr. Brissard a dangerous offender,
    but designated him a long-term offender under s. 753.1 of the
Criminal Code
and sentenced him to nine years imprisonment and a long-term supervision order
    of ten years. The Crown does not ask this court to alter the sentence imposed,
    but asks that this court declare Mr. Brissard to be a dangerous offender.

[43]

There are consequences to a dangerous offender designation even if the
    sentence and supervision order are untouched.

[44]

Under ss. 753.01(1) and 753.01(4), the Crown may apply for an assessment
    of a person who has previously been designated a dangerous offender and is later
    convicted of a serious personal injury offence or breach of a long-term
    supervision order. The Crown can then apply for an indeterminate sentence or a
    new period of long-term supervision following that assessment.

[45]

Section 753.01(5) provides that the court shall impose an indeterminate
    sentence where the Crown makes such an application, unless the court is
    satisfied that a determinate sentence for the subsequent offence will
    adequately protect the public against the commission of another murder or
    serious personal injury offence by the dangerous offender.

[46]

Mr. Brissard concedes that the index offence of which he was convicted is
    a serious personal injury offence as defined in s. 752 of the
Criminal Code
.
    The parties also agreed to a joint submission as to the length of any determinate
    sentence and long-term supervision order in the event that the trial judge
    found Mr. Brissard was a long-term offender or designated him a dangerous
    offender and decided that a determinate sentence was appropriate.

[47]

The issue during the application below was whether the Crown had proven that
    Mr. Brissard met the statutory definition of a dangerous offender under ss. 753(1)(a)(i)
    or 753(1)(b) of the
Criminal Code
beyond a reasonable doubt.

[48]

Under s. 753(1)(a)(i), the Crown must prove that Mr. Brissard constitutes
    a threat to the life, safety or physical or mental well-being of other persons
    on the basis of evidence establishing:

a)

a pattern of repetitive behaviour by Mr. Brissard, which includes a
    consideration of the index offence;

b)

a failure to restrain his behaviour; and

c)

a likelihood of causing death, injury, or severe psychological damage to
    other persons in the future if he fails to restrain his behaviour.

[49]

Under s. 753(1)(b), the Crown must prove that Mr. Brissard has been
    convicted of a serious personal injury offence and has shown by his conduct in
    any sexual matter, including the index offence:

a)

a failure to control his sexual impulses; and

b)

a likelihood that he will cause injury, pain, or other evil to other
    persons if he fails to control his sexual impulses in the future.

[50]

The conditions for a long-term offender designation, by contrast, are
    defined in s. 753.1(1) of the
Criminal Code
. A long-term offender
    designation may be ordered if the court is satisfied that:

a)

it would be appropriate to impose a sentence of imprisonment of two or more
    years for the index offence;

b)

there is a substantial risk that the offender will reoffend; and

c)

there is a reasonable possibility of eventual control of the risk posed
    by the offender in the community.

[51]

Section 753.1(2) provides that there is a substantial risk that the
    offender will reoffend if the offender has been convicted of a prescribed
    offence (such as sexual assault) and the offender:

a)

has shown a pattern of repetitive behaviour, including the index
    offence, that shows a likelihood of causing death, injury, or severe
    psychological damage to other persons; or

b)

by conduct in any sexual matter, including the index offence, has shown
    a likelihood of causing injury, pain, or other evil to other persons in the
    future through similar offences.

[52]

The Crown submits that the trial judge erred in refusing to designate
    Mr. Brissard a dangerous offender on the following grounds:

a)

He unreasonably concluded that there was no pattern of repetitive
    behaviour, which is a necessary precondition to a dangerous offender designation
    under s. 753(1)(a)(i).

b)

He considered extraneous factors going beyond the elements of the
    statutory test even though a dangerous offender designation was mandatory once
    the elements of the statutory test were met.

c)

He considered an irrelevant intractability factor in wrongly concluding
    that the Crown had not proven a likelihood of future harm to others.

Pattern of repetitive behaviour and consideration of
    extraneous factors

[53]

Mr. Brissard had a criminal record of 27 convictions prior to the
    instant conviction. Many of his previous convictions were for breaches of
    probation, conditional sentences, recognizances, and failures to appear. Two of
    the previous convictions, however, are alleged to form part of a pattern of
    repetitive behaviour for the purposes of the dangerous offender test.

[54]

The first of these previous convictions related to conduct occurring on July
    10, 2005, the day after he was released from prison. On that date, Mr. Brissard
    went to a bar where he saw his former partner with her new boyfriend. There was
    conflict between them. Mr. Brissard became angry when she refused to have
    intercourse with him. He left the bar drunk and enraged. Mr. Brissard entered
    his half-brothers house and got into a bed where a nine year-old child was
    sleeping. He pulled down her shorts and underwear and touched her genitals. She
    woke, screamed, and got out of the bed. Mr. Brissard fled the residence. A
    nurse examined the child and observed that her genitals were red and that there
    were abrasions around her vagina and anus.

[55]

The second of these previous convictions related to conduct on September
    12, 2006. On that date, the adult complainant was sleeping in her bed and woke
    to find Mr. Brissard standing beside her bed. He had entered through an open
    kitchen window; his plan was to steal cigarettes. He had been drinking and
    smoking cannabis. He got into the bed, put a knife to her throat, and covered
    her mouth. She recognized him as her upstairs neighbour. He told her not to
    scream, said he would not hurt her, and asked for money. When he left the room
    to go to the kitchen, she locked the door and yelled at him to get out. He left
    and she called 911.

[56]

The trial judge accurately summarized the parties positions and the
    jurisprudence they raised with respect to the pattern of behaviour element.

[57]

The pattern of repetitive behaviour relevant to s. 753(1)(a)(i) is a
    pattern that contains 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  however, the offences need not be the same in every detail;
    that would unduly restrain the application of the section:
R. v. Hogg
,
    2011 ONCA 840, at para. 40; and
R. v.

Szostak
, 2014 ONCA 15,
    118 O.R. (3d) 401, at para. 56. Differences in the details of the offences will
    not be relevant if the index and past offences represent a pattern of
    repetitive behaviour by the offender  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:
Criminal Code
, s.
    753(1)(a)(i). As this court confirmed in
Szostak
, at para. 63: Similaritycan
    be found not only in the types of offences but also in the degree of violence
    or aggression threatened or inflicted on the victims (citation omitted).

[58]

The Crown argues that the trial judges analysis of Mr. Brissards
    pattern of behaviour was inadequate because it amounted to nothing more than the
    following conclusory statement at para. 64 of his reasons: I do not accept
    that the Crown has demonstrated that the offences for which Mr. Brissard has
    been convicted are of a nature that the pattern required  has been made out.
    The Crown submits that the trial judge did not relate the evidence to the law,
    articulate the evidence he relied upon for his conclusion, or provide adequate reasons.

[59]

I do not need to determine whether the trial judge erred in failing to
    find a pattern of behaviour or whether such an error is an error of law that is
    amenable to the Crowns appeal. Nor do I need to resolve whether the trial
    judges consideration of factors outside the statutory test amount to a
    reversible error of law. This is because the trial judge found that the Crown
    failed to prove the necessary likelihood element of the dangerous offender
    statutory test. That finding, as described beginning at para. [68]
    below, is dispositive of this appeal.

The intractability element

[60]

The Crown submits that the judge erred by requiring proof that there was
    no reasonable possibility of controlling Mr. Brissards risk of re-offending
    before a dangerous offender designation could be made.

[61]

This intractability element was a factor in determining whether to
    make a dangerous offender designation under the regime in force until July 2,
    2008. Under the former regime, a judge had discretion to refuse a dangerous
    offender designation even if the statutory test was met. That discretion had to
    be exercised according to fundamental sentencing principles, including the
    principle of proportionality. If a judge was satisfied that the accused met
    both the test for a dangerous offender and long-term offender designation, the
    judge was obliged to order a long-term offender rather than dangerous offender
    designation:
R. v. Johnson
,
2003 SCC 46, [2003] 2 S.C.R. 357, at para. 40.

[62]

However, the dangerous offender sections of the
Criminal Code
were amended on July 2, 2008. Section 753(1) now provides that the court shall
    find the offender to be a dangerous offender if the statutory criteria are
    satisfied. As such, the regime now in force mandates a dangerous offender designation
    if the statutory test is met.

[63]

Due to these statutory amendments, intractability is no longer a
    required element in ordering a dangerous offender designation:
Szostak
,
    at para. 52. A judges discretion in respect of a dangerous offender
    declaration can now only be exercised with respect to the sentence imposed on a
    designated dangerous offender under s. 753(4).

[64]

The trial judge did not have the benefit of
Szostak
at the time
    of his sentencing decision. As a result, he relied upon jurisprudence
    interpreting the prior statutory regime at para. 62 of his reasons that held
    that proof of intractability was a necessary consideration in deciding whether
    to make a dangerous offender designation.

[65]

He was also led in this direction in part by the evidence of the Crown
    psychiatrist who embarked on a discussion as to whether the appellant was more
    appropriately described as a long-term offender rather than a dangerous
    offender due to the statistical risk assessment of Mr. Brissards recidivism.
    The psychiatrist agreed that his opinion isnt that Mr. Brissard fits into
    those categories where he should be, absolutely be a DO [dangerous offender]
    as opposed to a long-term offender. The trial judge adopted this evidence at
    para. 65 of his reasons:

I make the findings concerning likelihood primarily on the
    basis of the evidence of Dr. Klassen. In particular, I put emphasis on his
    testimony to the effect that Mr. Brissard does not absolutely fit in the category
    of a dangerous offender. I agree with the submissions of the defence that Mr.
    Brissard fits more in the middle range of these types of extreme offenders.
    Parliament has accounted for this by providing for a designation of a Long-term
    Offender and in this case, in my view, this is the appropriate designation for
    Mr. Brissard.

[66]

While Dr. Klassens evidence that Mr. Brissard might have been
    classified as a long-term offender rather than a dangerous offender may have
    been relevant to the designation of an offender as a dangerous offender under
    the former statutory regime, it no longer has any application for this purpose under
    the amended provisions. The trial judge erred by using this evidence as a
    factor in determining whether a dangerous offender designation should be made.

[67]

In the same vein, the trial judge also erred in considering
    proportionality in determining whether to make a dangerous offender
    designation. Given that there is no discretion to refuse a dangerous offender
    designation if the statutory criteria are met, proportionality is only a factor
    in determining the appropriate sentence to be imposed under s. 753(4).

Factual findings regarding likelihood of re-offending

[68]

Despite these errors of law, the trial judge made certain factual
    findings relating to the requisite likelihood elements of the ss. 753(1)(a)
    and 753(1)(b) statutory tests at para. 64 of his reasons:

I do not find the evidence on this hearing has proven a
    likelihood either:

1.

that his behavior will cause death or injury to others, or inflicting
    severe psychological damages on others through a failure to restrain his
    behavior (s. 753(1)(
a
)(ii); and

2.

that his failure in future to control his sexual impulses will cause
    injury, pain or other evil to persons.

[69]

There was some support for these factual findings in Dr. Klassens expert
    opinion evidence. For example, the doctor revised his calculation of Mr.
    Brissards probability of re-offending after re-characterizing his September
    2006 offences as non-sexual. This reduced the probability of recidivism to less
    than 50%, a change the doctor acknowledged had significant ramifications for determining
    whether Mr. Brissard was likely to re-offend. Other testing instruments, by
    contrast, suggested a higher probability of recidivism. However, the doctor
    acknowledged in direct examination that such discordance in the test results
    could give him pause with respect to his conclusions on recidivism:

And sometimes its useful to, to see whether the instruments
    are concordant or discordant with respect to risk processes. I feel most
    confident about a persons risk when both instruments say theres a likelihood
    of re-offence. I feel a bit less confident about re-offence when the two
    instruments are discordant, and they are a bit discordant in this case, and I
    think Ive indicated that in the body of my report.

[70]

In addition, Dr. Klassen also testified that Mr. Brissards risk of
    re-offending would attenuate with age.

[71]

Although intractability is no longer a factor in deciding whether to
    designate someone a dangerous offender, certain other prospective inquiries are
    nevertheless inherent in the statutory test. Does the offender constitute a
    threat to other persons? Is there a likelihood he will cause injury to others?
    Will this result from a failure in the future to restrain his behaviour? Will
    the offender fail in the future to control his sexual impulses?

[72]

These residual prospective inquiries, however, are questions of mixed
    fact and law. The Crown is proscribed from advancing an appeal based on such
    questions since it is restricted to appeals on any ground of law under s.
    759(2) of the
Criminal Code
:
Szostak
, at para. 24.

[73]

Where the Crown has a right of appeal on a question of law only, the
    Crown must satisfy the appellate court that any errors on the part of the trial
    judge might reasonably be thought, in the concrete reality of the case at
    hand, to have had a material bearing on the outcome:
R. v. Graveline
,
    2006 SCC 16, [2006] 1 S.C.R. 609, at para. 14; and
R. v. Lewis
, 2014
    ONCA 95, 312 C.C.C. (3d) 339, at para. 19. The Crowns appeal cannot succeed if
    it is purely hypothetical that the disposition would have been different but
    for the error of law.

A dangerous offender designation application relies upon
    psychiatric evidence predicting future risk. That evidence may sometimes be unreliable.
    (See
R. v. Lyons
, [1987] 2 S.C.R.
    309 at 367, [1987] S.C.J. No. 62)

[74]

In
Lyons
, Justice La Forest held that, due to the inherent
    frailties and difficulties with such evidence, the procedural protections
    afforded to an offender, especially on review, ought to be very rigorous:
Lyons
,
    at 368.

[75]

Here, Dr. Klassen highlighted the fallibility of psychiatric evidence
    when he explained that statistical testing instruments have become the accepted
    approach in these sorts of cases since clinical psychiatric judgments are not
    an accurate basis for predicting risk of recidivism. Moreover, the doctor
    acknowledged that he became less confident about the likelihood Mr. Brissard
    would re-offend because of the discord in the various test results.

[76]

Given the Crowns burden of proving the elements of the statutory dangerous
    offender test beyond a reasonable doubt, and the inherent fallibility
    associated with the prediction of recidivism, despite the errors in law, I am
    not persuaded that there is any basis to interfere with the trial judges
    largely factual conclusion that the Crown failed to prove a likelihood of
    recidivism beyond a reasonable doubt.

[77]

The trial judges legal errors are immaterial to the disposition of this
    appeal because the Crown failed to prove the requisite likelihood element of
    the dangerous offender test beyond a reasonable doubt. Mr. Brissard cannot be
    declared a dangerous offender absent such proof.

DISPOSITION

[78]

For the reasons above, I would dismiss Mr. Brissards conviction appeal and
    also would dismiss the Crowns appeal from the refusal to designate him a
    dangerous offender.

G. Pardu J.A.

I agree Grant Huscroft
    J.A.

I agree Fairburn
    J.A."

Released: November 22, 2017


