



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    information that could identify the victim or a witness shall not be published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(iii)     REPEALED: S.C. 2014, c. 25,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    the victim shall not be published in any document or broadcast or transmitted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. Lynch, 2022 ONCA 136

DATE: 20220216

DOCKET: C66516

Tulloch, van Rensburg and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jerome Lynch

Appellant

Marianne Salih, for the appellant

Katie Doherty, for the respondent

Heard: September 9, 2021 by video conference

On appeal from the appellants designation as a dangerous
    offender and the sentence imposed on June 21, 2012 by Justice Silja S. Seppi of
    the Superior Court of Justice.

van Rensburg J.A.:

A.

Overview

[1]

The appellant appeals his designation as a
    dangerous offender and the imposition of an indeterminate sentence. The
    designation and sentence followed the appellants conviction for sexual assault
    and various prostitution-related offences in relation to D.B., who was 14 years
    old at the time of the offences. The sentencing judge designated the appellant
    a dangerous offender after concluding that the elements under s. 753(1)(b) of
    the
Criminal Code
, R.S.C., 1985,
    c. C-46,
had been satisfied: the appellant had been convicted of a sexual
    assault which was a serious personal injury offence as described in para. (b)
    of the definition of that expression in s. 752; and by his conduct in any
    sexual matter he had shown a failure to control his sexual impulses and a
    likelihood of causing injury, pain or other evil to other persons through a failure
    in the future to control his sexual impulses.

[2]

The appellant submits that, in finding him to be
    a dangerous offender under s. 753(1)(b), the sentencing judge erred by relying
    on conduct that did not demonstrate a failure to control his sexual impulses.
    The appellant also contends that the sentencing judge erred in imposing a
    dangerous offender designation and indeterminate sentence in the face of
    evidence that his risk of sexual reoffence was manageable.

[3]

The appellant asks this court to vacate the
    dangerous offender designation, and instead designate him a long-term offender,
    and impose a fixed sentence of 6.5 years imprisonment, together with a long-term
    supervision order (LTSO) for ten years. In the alternative, if the dangerous
    offender designation is upheld, the appellant requests that the indeterminate
    sentence be vacated, and a fixed sentence of 6.5 years be imposed, followed by
    an LTSO for ten years.

[4]

For the reasons that follow, I would allow the
    appeal. The sentencing judge erred in concluding, on the evidence before her, that
    the appellant had shown a likelihood of causing injury, pain or other evil to
    other persons through failure in the future to control his sexual impulses. The
    conduct relied on by the sentencing judge consisted of the appellants
    activities in relation to prostitution-related offences, including a sexual
    assault committed during the predicate offences. Although the appellants
    criminal record included one prior offence of sexual assault, which involved a
    failure to control sexual impulses, the other evidence, including the opinion
    of the psychiatrist, Dr. Pearce, did not support this necessary element for a
    designation under s. 753(1)(b). While the trial Crown also relied on 753(1)(a)(i)
    of the
Criminal Code
in support of
    the designation of the appellant as a dangerous offender, th
e Crown
    on appeal relies only on the provision invoked by the sentencing judge, s.
    753(1)(b).

[5]

I would set aside the dangerous offender
    designation and designate the appellant a long-term offender. I would impose a determinate
    sentence of
6.5 years imprisonment and an
    LTSO for ten years. In accordance with s. 759(6), the sentence is effective as
    of the date of the sentencing by the sentencing judge. With appropriate credits
    for the lengthy period of incarceration already served by the appellant in
    respect of the predicate offences, he has served his custodial sentence for the
    predicate offences. Given that the LTSO commences on the expiration of the
    determinate sentence, the LTSO will itself expire later this year.

B.

Relevant Facts

(1)

The Predicate Offences

[6]

The appellant was tried by judge alone in 2010. The
    predicate offences were alleged to have occurred during a six to nine-month
    period between late 2004 and May or June of 2005. It was alleged that the
    appellant had procured D.B., a young teenager, and during their association,
    had sexually assaulted her and committed other offences.

[7]

D.B. testified that she knew the appellant as
    Lucky. She met him when she was approximately 14 years old while she was working
    as a sex worker. He approached her, they exchanged calls and eventually she
    went to live with him, considering him to be her boyfriend. D.B. testified
    that, after a few weeks, Lucky set her up in a hotel room for in-call clients.
    He also arranged a fake I.D. for D.B. to facilitate out-call work with an
    agency, he set the fees for her services, and he controlled all the income that
    remained after the agency took its cut. D.B. was not allowed to buy basic
    necessities without Luckys permission. He threatened to knock her head off
    her shoulders after she bought tampons one day and he showed her his bloody
    knuckles to insinuate what could happen if she disobeyed him. On one occasion,
    after D.B. had bought a dress, again without Luckys permission, he forced
    non-consensual vaginal intercourse on D.B., after first unsuccessfully attempting
    anal intercourse. He told her he was doing it to punish her. D.B. testified
    that there had been other incidents of non-consensual sexual intercourse, where
    she felt obligated to comply because the appellant was putting a roof over her
    head.
[1]
Lucky also threatened to hurt D.B.s mother, implying he knew where she lived.

[8]

After spending several months with Lucky as her
    pimp, D.B. returned to her former pimp, I.N. Lucky called D.B. numerous times
    after that, making threats and verbally abusing her. In 2007 D.B. left I.N.,
    who had become controlling and violent. Shortly thereafter, the appellant was
    charged with various offences in relation to D.B.

[9]

The appellant did not testify at his trial. While
    there were challenges to D.B.s credibility and reliability in her
    identification of the appellant as Lucky, and assertions that she had
    continued to work for I.N., and not for the appellant, at the relevant time, the
    details of D.B.s evidence about what Lucky had done to her were not challenged.
    The trial judge concluded that there was overwhelming evidence that the
    appellant was the person D.B. knew as Lucky, including her identification of
    his mothers address where they had stayed together, and the hotel where he had
    set her up for in-calls, and where his name appeared on the invoices for the
    relevant time periods.

[10]

The appellant was convicted of four offences
    committed against D.B.: (1) aiding, abetting, and compelling D.B. to engage in
    prostitution (s. 212(1)(h) of the
Criminal Code
); (2) living off the
    avails of the prostitution of D.B. (s. 212(2.1)(b)); (3) sexual assault (s.
    271); and (4) uttering threats (s. 264.1(1)).

[11]

In her reasons for judgment the trial judge summarized
    her findings of fact as follows:

In making these determinations on counts one through five this
    court accepts the evidence of D.B., as supported by the evidence as a whole, as
    detailed earlier in this judgment about [the appellants] controlling and
    threatening conduct and his abusive treatment of D.B., by which he aided and
    compelled her to prostitute herself under his direction and control, during the
    six to nine months immediately preceding June 2005. He compelled her to engage
    in prostitution for his own personal financial gain by verbal intimidation,
    physical control and deception of a false name and promises of a future job in
    a legitimate business. He took from her all the money she received from her
    prostitution activities, whether from her work on the street or in conjunction
    with the out-call or in-call agencies that facilitated the activity. He
    arranged to have made a false ID document showing her to be 21 years of age, so
    she could work through the agency when he knew she was under 16.

D.B. was well under the age of majority and in fear of [the
    appellant]. He showed her his bloody fists, suggesting that is what happens to
    girls who do not comply with his demands. When she bought a dress without his
    permission he took her to the back of a warehouse and threatened to knock her
    head off her shoulders, and afterwards forced sexual intercourse on her. To
    make her fear him he implied he could get to her mother and brother because she
    had given him their address at his request.

[The appellant] forcefully attempted anal intercourse on D.B.,
    and when that was unsuccessful he had forced sexual intercourse on D.B. without
    her consent as a means to punish her for going against his directions by
    purchasing her own clothing. There were numerous other occasions of sexual
    intercourse in his garage without her consent during the time D.B. worked for
    [the appellant] as a prostitute. On other occasions of sexual intercourse by
    [the appellant] D.B. complied because she believed she had no choice, as he was
    putting a roof over her head.

When D.B. purchased tampons without [the appellants] permission
    he verbally intimidated and deliberately threatened her that he would knock her
    head off her shoulders, a threat of causing severe bodily harm against D.B.

(2)

The
Dangerous Offender Application

[12]

At the start of the sentencing hearing in May
    2010, the Crown indicated its intention to proceed with a dangerous offender
    application. The sentencing judge made a s. 752.1(1) order for the in-custody
    assessment of the appellant. The assessment was conducted by Dr. Mark Pearce, a
    staff psychiatrist at the Centre for Addiction and Mental Health in Toronto. Dr.
    Pearces report was provided to the court in October, and in December 2010 the
    Attorney General consented to the Crown proceeding with the dangerous offender
    application.

[13]

The Crown asserted that the appellant was a
    dangerous offender under both s. 753(1)(a)(i) and s. 753(1)(b) of the
Criminal
    Code
[2]
,
    which read as follows:

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, [or]

(b)
that the offence
    for which the offender has been convicted is a serious personal injury offence
    described in paragraph (b) of the definition of that expression in section 752
    and the offender, by his or her conduct in any sexual matter including that
    involved in the commission of the offence for which he or she has been
    convicted, has shown a failure to control his or her sexual impulses and a
    likelihood of causing injury, pain or other evil to other persons through
    failure in the future to control his or her sexual impulses.

[14]

The dangerous offender hearing took place over
    several months in 2011 and 2012. On June 21, 2012 the sentencing judge (who was
    also the trial judge) determined that the appellant met the definition of
    dangerous offender under s. 753(1)(b) of the
Code
. She also
    concluded that his risk of reoffence could not be managed in the community, and,
    therefore, exercised her discretion to designate the appellant a dangerous
    offender and impose a sentence of detention for an indeterminate period. The
    sentencing judge also imposed a lifetime firearms prohibition pursuant to s.
    109(3) of the
Criminal Code
, a DNA order and a SOIRA (
Sex Offender
    Information Registration Act
)

order.

(3)

The Evidence at the Dangerous Offender Hearing
    and the Sentencing Judges Reasons

[15]

It is unnecessary to set out a detailed summary
    of the sentencing judges comprehensive reasons. What is important for the
    appeal is to highlight the evidence she considered in concluding that the
    appellant was a dangerous offender within the meaning of s. 753(1)(b), and that
    an indeterminate sentence was required, and to summarize her findings and
    analysis based on that evidence.

(a)

The Evidence

[16]

The evidence included 16 volumes of documents
    relevant to the predicate offences, the appellants history and particulars of
    his other convictions and police occurrences, victim impact statements, records
    of his incarceration in provincial and federal institutions, and items and written
    materials seized from the appellant and his cell, while he was in custody on
    the predicate offences. Several witnesses testified, including correctional and
    police officers and various women with whom the appellant had relationships and
    dealings. The appellant had been told six years earlier that he had a nine-year-old
    daughter. The childs mother testified about the appellants positive interactions
    with the child, consistent with his statements to the court that this was a
    factor motivating him to turn his life around. Finally, the court had the
    assessment report and testimony of Dr. Pearce.

[17]

According to the evidence at the hearing, the
    appellants childhood was essentially unremarkable. He was raised by his mother
    after his parents separated when he was 12, and he had maintained a good
    relationship with his mother and older brother. The appellant completed some
    years of high school. There was no youth record, and no suggestion of any substance
    use issues or significant psychiatric history.

[18]

The appellant reported having had several
    intimate relationships and a large number of female sexual partners. Two of his
    former girlfriends (including H.D., with whom the appellant had a 6.5-year
    relationship) testified as Crown witnesses. According to the sentencing judge,
    their testimony underscored the appellants manipulative, controlling and
    unpredictable behaviour in the context of a sexual relationship. The appellant
    lied to them about his criminal past, and he relied on them financially. They testified
    about the appellants controlling nature and his verbal and physical abuse. He kept
    tabs on the women when he was in prison, calling them often, and indicating
    that he knew where they had been. When he discovered that the women had new
    partners, he became enraged and physically abused them.

[19]

The sentencing judge referred to the appellants
    lengthy criminal record which began in 1989, when he was 18 years old. The
    circumstances of three sets of charges were relevant to the dangerous offender
    application:

·

On June 9, 1997 the appellant was convicted of various offences
    involving S.M., a 19-year-old female sex worker, which took place in January
    1996. After S.M. questioned the authenticity of an American $100 bill, the appellant
    verbally abused her, forced her to remove her clothing, handcuffed her to the
    backseat of the car they were in, produced a handgun, and pretended to be a
    police officer. He then forced vaginal intercourse on S.M., without a condom, while
    continuing to verbally abuse her. The sentencing judge noted that, based on
    documentation about this previous conviction, the offences were committed in a
    violent and sadistic manner. The appellant was placed on the
SOIRA
registry following this conviction. His custodial sentence of seven years,
    three months was reduced to 4.5 years on appeal.

·

On October 15, 1997 the appellant escaped the Bath Institution
    and went to the workplace of his former girlfriend, H.D., where he waited for
    her to exit. After checking her cellphone and seeing her new partners name, the
    appellant assaulted H.D., pulling her hair and smashing the cellphone into her
    face. When the phone rang, the appellant threatened to kill the man on the
    line. He turned himself in to the police the next day. On March 25, 1998 he
    pleaded guilty to forcible confinement, escaping lawful custody and uttering
    threats, and he was sentenced to two years in custody, to be served consecutive
    to his sentence for the 1997 conviction.

·

On March 22, 2007 the appellant pleaded guilty to and was
    convicted of several prostitution-related offences in relation to two teenaged girls,
    T.B. and C.S. He was sentenced to 28 additional months in custody plus three
    years probation after serving 17 months presentence custody. The events took
    place in 2005, shortly after the appellants involvement with D.B. had ended. The
    appellant had offered C.S., who was 17, a job where she would earn $1,000 to $2,000
    per week, asked to be her pimp and then instructed her on how to do the job. T.B.,
    who was 14 years old, was introduced to the appellant by C.S. T.B. was sexually
    intimate with the appellant and believed he was her boyfriend. After instructing
    her on how to interact with clients, the appellant took T.B. to an apartment
    where she worked as an escort, offering sexual services. After five days she
    became fearful and called her mother, leading to the appellants arrest. According
    to the sentencing judge, the documentation from the appellants sentencing on
    these offences indicated that he had groomed his victims and preyed on their
    innocence, it described the appellant as manipulative and dangerous, and noted
    that the victims were terrified of him. The sentencing judge also observed that
    the appellant showed no remorse or recognition of the harm he caused his young
    victims when he discussed these past offences with Dr. Pearce.

[20]

There were victim impact statements from D.B.,
    S.M., T.B. and C.S., and H.D. testified at the hearing. According to the
    sentencing judge, their accounts highlighted how the appellants conduct
    caused extreme fear and psychological harm, including feelings of worthlessness
    and problems with intimacy.

[21]

The sentencing judge noted that there was much
    evidence about the appellants past and current conduct targeted toward the
    luring, manipulation, and recruitment of young females in addition to the
    incidents related in his criminal record. For example, according to an
    occurrence report, in September 2004 the appellant had been handing out cards
    with the name Jerry and two phone numbers to apparently intoxicated young
    females outside a university pub.

[22]

In October 2011, correctional officers found
    phonebooks and notes in the appellants possession, leading to a search of his
    cell. The books listed more than 60 female names, referring to some as
    bitches, a term a correctional officer testified he had heard used by inmates
    involved in prostitution rings. The lists included descriptive notations about
    some of the women suggestive of a grading system as to their attractiveness and
    sexual suitability. There were also notes on how to set up a fraud scheme and
    about the location of a 9 mm handgun. These items raised concerns about the
    appellants continuation of his conduct in relation to young women, even while
    incarcerated. The sentencing judge found that these developments and incidents over
    the course of the appellants time in custody shed light on his current
    behaviour in relation to the same activities for which he [had] been convicted
    in the past.

[23]

A Crown witness, C.O., testified about three-way
    calls she had with the appellant while he was in custody. After he asked for
    her help in recruiting models for a beauty supply business he was opening, she
    had provided him with contact information for several of her female friends. He
    also proposed a business where customers would pay escorts, but receive no sexual
    services, saying he could set this up right away if she knew of any girls. C.O.
    refused to be involved in the escort scam and told the appellant she would only
    partner with him in the beauty supply business. After C.O. discovered the
    appellant lied to her about why he was in jail and other matters, and she
    confronted him, he told her not to give a statement to the police or to return
    their calls. The sentencing judge found C.O. to be a credible and reliable
    witness, accepted her testimony and gave it considerable weight on the matter
    of [the appellants] behaviour and his continued preoccupation with
    manipulation, deception and victimization of young women for sexual activities
    that he controls.

[24]

There was other evidence about the appellants
    behaviour while incarcerated. Evidence from the institutional authorities
    indicated that the appellant was intimidating and manipulative with other
    inmates, but was typically friendly, smooth, polite and cooperative with
    authorities, particularly where there was an advantage to be gained.

[25]

Dr. Pearce prepared a report and testified at
    the sentencing hearing. His assessment included seven hours interviewing the
    appellant, interviews of other people, and a review of the records concerning
    the appellants criminal history, correctional and custodial records,
    psychiatric and health records. Dr. Pearce used various risk-assessment
    actuarial tools to measure the appellants risk of violent or sexual reoffence.
    Noting that there were no actuarial tools to predict the risk of future
    prostitution-related offences, he relied on his clinical judgment to assess the
    appellants risk in relation to such offences.

[26]

Dr. Pearce was satisfied the appellant did not
    have a mental illness or any substance abuse issues. The appellant did not have
    a deviant sexual disorder or any clear conduct disorder, although he likely met
    the criteria for a mixed personality disorder, with anti-social and
    narcissistic personality disorder attributes.

[27]

Based on the results of various actuarial tests,
    Dr. Pearce concluded that the appellant was in the moderate to high risk
    category for reoffending in a sexual offence. And, based on his clinical
    assessment, he concluded that the appellant was at a moderate to high risk of
    future prostitution-related charges. This was based on the pattern of
    adolescent girls who were strangers to the appellant being quickly victimized
    in rapid succession, suggesting a more likely repetition and greater number of
    victims in the future.

[28]

As for the possibility of controlling the
    appellants risk for reoffence in the community, Dr. Pearce noted as positive
    factors the recognition that as sexual offenders enter into their sixth decade,
    there is a dramatic reduction in their propensity for reoffence (since the
    appellant was in his fifth decade at the time); the appellants ability to
    complete programming if motivated; and the availability of supports for him in
    the community. The fact that he had a relationship with his daughter was also positive.
    Dr. Pearce noted as a negative factor the appellants poor record of responding
    to past supervision. The appellants past work history and vague aspirations
    for future employment suggested a guarded prognosis.

[29]

Dr. Pearces opinion about the possibility that the
    appellant would be manageable in the community on the expiry of his LTSO was
    somewhat mixed. It was possible or even likely he could be managed under an
    LTSO as a sexual offender, based on his advancing age, the absence of a
    definitive paraphilic diagnosis, and the likelihood of incarceration for the
    next several years. As for the risk of the appellant returning to pimping, Dr.
    Pearce was much less optimistic about risk managing him. He had significant
    concerns about the risk to the community even under an LTSO because of the size
    of the potential victim pool, the fact that the appellant was so well-equipped
    to function as a pimp, and his activities while in custody. Indeed, Dr. Pearce
    testified that he was at a loss to create a plan for [the appellant] to keep
    him out of trouble.

[30]

Dr. Pearces report provided recommendations for
    the management of the appellants risk in the community in the event he was sentenced
    as a long-term offender. These included participation in a wide variety of
    programs during incarceration, with booster programming to continue in the
    community; intense supervision in the community, with release on a graduated
    and slow basis, allowing for rapid intervention should the appellant fail to
    comply with conditions; verification of the appellants whereabouts outside the
    facility, initially on a daily basis with unannounced visits; contacting any
    intimate partner of the appellant; a prohibition against employment in the
    adult entertainment, night club or bar industry and against contact with any
    criminally-oriented peers; and full financial disclosure and monitoring to
    ensure the appellant does not return to criminal activity.

(b)

The Sentencing Judges Dangerous Offender Analysis

[31]

The sentencing judge referred to the three elements
    for a dangerous offender designation under s. 753(1)(b). First, she had no
    difficulty concluding that the appellants sexual assault conviction, one of
    the predicate offences, was a serious personal injury offence within para.
    (b) of its definition in s. 752. She went on to determine whether the appellant
    by his conduct in any sexual matter, including the predicate sexual assault of
    D.B., had shown (1) a failure to control his sexual impulses, and (2) a
    likelihood of causing injury, pain or other evil to other persons through
    failure in the future to control his sexual impulses.

[32]

The sentencing judge stated that there was no
    issue on the first prong of the test: [The appellant] clearly failed to
    control his sexual impulses in the commission of the sexual assault on D.B. In
    a rage he tried to force anal sex on D.B. as punishment, and when that did not
    succeed he raped her vaginally, despite her cries begging him to stop.

[33]

In addressing the second prong, the sentencing
    judge rejected defence counsels argument that there was no reliable evidence
    on which the court should conclude the appellant by his conduct in any sexual
    matter had shown a likelihood of causing injury, pain or other evil to others
    through failure in the future to control his sexual impulses.

[34]

The sentencing judge characterized the
    appellants commission of the predicate offence of sexual assault as egregious,
    and she referred to his sexual assault of S.M. as another extremely serious
    instance of such failure to control his sexual impulses. She stated that there
    was also a weight of other evidence from the hearing about the appellants
    conduct in sexual matters which strongly supported the conclusion of a failure
    to control his sexual impulses. The evidence she pointed to consisted of the
    opinion of Dr. Pearce about the appellants high likelihood of reoffending in
    the future; the other predicate offences in addition to his convictions for
    sexual assault, which were evidence of his conduct in sexual matters which
    have caused serious injury, pain and psychological harm to the victim; the
    appellants luring of girls into prostitution for his benefit and without
    appreciating the harmful effects to the victims; and most recently, his efforts
    to talk C.O. into helping him use girls in a scam of private dancing for money.
    She noted the appellants recurring pattern and repeated events of unrestrained
    and harmful sexual behaviour with young girls and women, stating that [h]e has
    demonstrated an overwhelming need and uncanny ability to control and manipulate
    girls into performing sexual favours to further his own selfish pursuits. Finally,
    the sentencing judge referred to the appellants collection of names and
    identifying data on young females, and concluded that [h]aving regard to this,
    the sheer number of women listed, and the evidence of his plans to operate an
    escort service scam, the only and inescapable conclusion is that he is
    intending to resume his sexual exploitation of girls and young women when
    released from jail.

[35]

Having found that the appellant met the
    requirements for a dangerous offender designation, the sentencing judge went on
    to assess whether there was a reasonable possibility of eventual control of the
    appellants risk in the community in order to determine the appropriate sentence
    under s.753(4). She concluded that there was no such reasonable possibility, when
    all that the court is offered is hope and speculation. She noted that the
    appellant had provided no plan or strategy for the eventual control of his
    risk, and Dr. Pearce had testified he was at a loss to create a plan for [the
    appellant] to keep him out of trouble. The appellants ability to deceive and
    manipulate made it effectively impossible to control the risk he posed if
    released into the community.

[36]

In the result, the sentencing judge designated
    the appellant a dangerous offender and sentenced him to a period of
    indeterminate detention.

C.

The Grounds of Appeal

[37]

Under s. 759(1) of the
Criminal Code
a
    person who is found to be a dangerous offender may appeal on any ground of law
    or mixed fact and law. The standard of review was articulated by Tulloch J.A.
    in
R. v. Sawyer
, 2015 ONCA 602, 127 O.R. (3d) 686, at para. 26 as
    follows:

Appellate review of a dangerous offender
    designation is concerned with legal errors and whether the dangerous offender
    designation was reasonable:
R. v. Sipos
, 2014
    SCC 47, [2014] 2 S.C.R. 423, at para. 23. While deference is owed to the
    factual and credibility findings of the sentencing judge, appellate review of a
    dangerous offender designation is more robust than on a regular sentence
    appeal:
Sipos
, at paras. 25-26;
R.
    v. Currie
, [1997] 2 S.C.R. 260, at para. 33.

[38]

Where the error of law has not resulted in a
    substantial wrong or miscarriage of justice, an appellate court may dismiss an
    appeal against a dangerous offender designation, relying on s. 686(1)(b)(iii)
    of the
Criminal Code
. This power may be exercised only where there is
    no reasonable possibility that the verdict would have been any different had
    the error of law not been made:
R. v. Boutilier
, 2017 SCC 64, [2017] 2
    S.C.R. 936, at para. 82.

[39]

The appellant contends that the sentencing judge
    made two reversible errors. First, he says that, at the designation stage, the
    sentencing judge erroneously relied on conduct that did not demonstrate that he
    was incapable of controlling his sexual impulses in the past and future, to
    find him a dangerous offender under s. 753(1)(b) of the
Criminal Code
.
    Second, the appellant asserts that the sentencing judge improperly exercised
    her discretion (1) to impose a dangerous offender designation at the
    designation stage; and (2) to impose an indeterminate sentence at the penalty
    stage, in the face of evidence that his risk of sexual reoffence was
    manageable.

[40]

It is sufficient for the determination of this
    appeal to address only the first ground. I will address the sentencing judges
    error in designating the appellant a dangerous offender under s. 753(1)(b), where
    the evidence did not demonstrate the likelihood of harm through failure in the
    future to control his sexual impulses. I will then turn to the question of
    the appropriate sentence once the dangerous offender designation is vacated.

D.

DISCUSSION

[41]

The Crown sought to have the appellant
    designated as a dangerous offender under both ss. 753(1)(a)(i) and 753(1)(b) of
    the
Criminal Code
,

based on his history of offences and the
    risk of future offences, including sexual assaults and prostitution-related
    offences. The appellant notes that prostitution-related offences are
    specifically mentioned under s. 753.1 as a basis for a long-term offender designation
    and suggests that the Crowns dangerous offender application in this case was
    misconceived.

[42]

In fact, prostitution-related offences have been
    the basis for dangerous offender applications in the past. See, for example,
R.
    v. F.E.D.
, [2009] O.J. No. 819 (S.C.J.), affd 2012 ONCA 800, [2012] O.J.
    No. 5399, where the designation was made under s. 753(1)(a), and
R. v.
    Burton
, 2018 ONCJ 153, [2018] O.J. No. 1250, where a designation under s. 753(1)(a)
    was refused in favour of an LTO designation, as no pattern of behaviour was
    made out.

[43]

In this case, however, the sentencing judge
    relied only on s. 753(1)(b) of the
Criminal Code.
The issue is whether
    the appellant was properly designated as a dangerous offender under this
    provision in circumstances where the sentencing judge relied on his propensity
    to commit prostitution-related offences to assess his future risk.

[44]

Section 753(1)(b) allows for a dangerous
    offender designation where three conditions are met. First, the offender must
    have been convicted of a serious personal injury offence as defined in the
    second part of the definition under s. 752, that is, an offence or attempt to
    commit an offence under ss. 271, 272 or 273. Second, the court must be
    satisfied that the offender, by his conduct in any sexual matter, including
    that involved in the commission of the predicate offence, has shown a failure
    to control his sexual impulses. Third, the court must conclude that such
    conduct has shown a likelihood of the offender causing injury, pain or other
    evil to other persons through failure in the future to control his sexual
    impulses.

[45]

There is no dispute with respect to the first
    condition, since the appellant was convicted of a sexual assault against D.B.,
    contrary to s. 271 of the
Code.
The appellant contends that neither
    the second nor the third condition was satisfied in this case.

[46]

The appellant submits that there was no evidence
    of a pattern of behaviour to suggest a lack of sexual impulse control. There
    was only one such incident: the sexual assault on S.M. Even if the appellant demonstrated
    a failure to control his sexual impulses in the sexual assault on D.B., this
    offence occurred ten years after the sexual assault on S.M. and in very
    different circumstances. Moreover, in addressing his prospective risk, the sentencing
    judge relied on his record of pimping activities, which, according to the
    appellant, did not demonstrate an inability to control his sexual impulses,
    any more than a drug dealers trafficking demonstrates an inability to control
    a drug addiction. The other evidence relied on by the sentencing judge did not
    support the likelihood of the appellant causing harm in the future because of a
    failure to control his sexual impulses.

[47]

The Crown asserts that the evidence met the test
    for a dangerous offender designation under s. 753(1)(b). The appellant had
    sexually assaulted S.M. and D.B., which demonstrated a failure to control his
    sexual impulses. Although the offence against D.B. occurred in the course of
    the appellants pimping activities, those activities should not be understood
    as financial transactions divorced from his exploitative conduct and the
    violence involved with them. This is the context in which the appellant sexually
    offended in the past, and it was open to the sentencing judge to find that the
    appellant posed a prospective risk of similar offences in the future.

[48]

It is important to preface the consideration of
    this issue  that is, whether the elements for a s. 753(1)(b) dangerous
    offender designation were made out on the evidence relied on by the sentencing
    judge  with the understanding that the dangerous offender provisions must be
    interpreted strictly so as to remain within their constitutional bounds. In
Boutilier
,
    C
ô
t
é
J., writing for the majority, confirmed that the 2008 amendments to
    the dangerous offender provisions, like the 1977 regime they replaced, target
    a small group of persistent criminals with a propensity for committing violent
    crimes against the person: at para. 3. The careful tailoring of the
    legislation to limit its reach is fundamental to its constitutionality:
R.
    v. Lyons
, [1987] 2 S.C.R. 309, at p. 339;
Boutilier
, at paras.
    28, 34.

[49]

Section 753(1)(b) is addressed at a particular
    kind of offender  one who has engaged in a pattern of behaviour showing a
    failure to control sexual impulses, and who because of that, constitutes a future
    risk. The elements of this provision have always included a reference to the
    offenders lack of control over his or her sexual impulses. See M. Cole,
    Dangerous and Long-Term Offenders in D. Cole and J. Roberts, eds.,
Sentencing in Canada, Essays in Law, Policy and Practice
(Toronto: Irwin
    Law, 2020) at pp. 293 to 297, where the author

outlines the history of
    this section, beginning with its origins in the
Criminal

Sexual
    Psychopath Act, an Act to amend the Criminal Code
, S.C. 1948, c. 9, which
    allowed preventive detention for an individual who by a course of misconduct
    in sexual matters has evidenced a lack of power to control his sexual impulses
    and who as a result is likely to attack or otherwise inflict injury, loss, pain
    or other evil on any person.

[50]

In
Boutilier
, the Supreme Court dealt
    with a dangerous offender designation under s. 753(1)(a)(i) of the
Code
,

which expressly speaks of the need for a pattern of repetitive behaviour
.
The court affirmed, however, that
all
cases under s. 753(1) require
    that the offender engaged in a pattern of dangerous conduct. The court noted
    that s. 753(1)(b) required in addition to evidence of a pattern of past
    conduct, an independent assessment of future risk: at para. 38. Accordingly,
    to support a designation under s. 753(1)(b), after proving that the offender
    has been convicted of an offence under ss. 271, 272 or 273 of the
Code,
the
    Crown must prove, beyond a reasonable doubt, both a pattern of offending in the
    past showing a failure to control sexual impulses (which can be found in the
    circumstances of the predicate offence or the offenders conduct in any sexual
    matter), and a prospective risk of harm to others through a failure to control
    sexual impulses.

[51]

In many of the reported cases of dangerous
    offender designations under s. 753(1)(b) or its equivalent, there was no
    dispute about whether the offenders past conduct reflected a failure to
    control sexual impulses, and there was clear evidence of a pattern of such
    conduct. In
R. v. Currie
, [1997] 2 S.C.R. 260, for example, it was
    undisputed that the offender, who was a pedophile and hebephile, with a long
    history of sexual offences, some of which were extremely violent, engaged in
    sexually impulsive criminal behaviour. A biological anomaly in the offenders
    brain made his deviant sexual impulses uncontrollable and he was described as
    having a sexually impulsive and volatile nature. Similarly, in
R. v. Skookum
,
    2018 YKCA 2, 45 C.R. (7th) 168, the Crown proceeded with a dangerous offender
    application under s. 753(1)(b) after the offenders third conviction for sexual
    assault, where the predicate offence involved a sexual assault on a teenaged
    acquaintance with whom he had sexual intercourse after she had blacked out from
    drinking, and there had been an earlier conviction for sexual assault on a four-year-old
    in which he claimed to be out of control during an alcoholic blackout.

[52]

In a recent decision, the British Columbia Court
    of Appeal, in allowing an appeal from a dangerous offender designation and
    directing a new hearing, addressed the failure to control sexual impulses
    element of s. 753(1)(b), and in particular the evidence relevant to the assessment
    of the offenders future risk of reoffending. In
R. v. Patel
, 2020
    BCCA 92, [2020] B.C.J. No. 432, the offender (who identified as male at the
    time of her convictions and as female at the dangerous offender hearing) had
    been convicted of sexual offences in relation to a 13-year-old. The pattern of
    behaviour that formed the basis for the dangerous offender application was a
    series of sexual assaults by the offender, who was assessed as having hebephilia
    with a probable paraphilic disorder. The sentencing judge had characterized the
    predicate offences as serious sexual offences committed to satisfy the
    offenders sexual impulses. At issue in the appeal was the evidence relevant to
    the assessment of the offenders prospective risk under s. 753(1)(b).

[53]

Fitch J.A., for the majority, concluded that the
    sentencing judge erred in relying on a prior conviction for manslaughter in her
    consideration of the risk of reoffence in the context of s. 753(1)(b), where
    the Crown had conceded that there was no evidence that the manslaughter offence
    was driven or motivated by a sexual impulse. Referring to authorities from
    across Canada, he observed that the assessment of future risk must be tied to
    the past type of criminal behaviour anchoring the application that an offender
    be designated dangerous, and that this principle has also been applied in
    the context of dangerous offender applications under s. 753(1)(b): at paras.
    220-224. He noted that the predicate offence must form part of a pattern of
    behaviour that gives rise to the likelihood that the same type of behaviour
    will continue in the future, and that the Crown must prove beyond a
    reasonable doubt the likelihood that the offenders past failure to control his
    or her sexual impulses will manifest itself in the future.: at para. 225.

[54]

The error in
Patel
was for the
    sentencing judge to rely on other violent conduct that did not arise out of a
    failure to control sexual impulses in assessing the offenders prospective
    risk when determining whether she was a dangerous offender.

[55]

In my view, the sentencing judge made a similar
    error in this case, when she relied on conduct that was unrelated to the
    appellants failure to control sexual impulses in the assessment of his
    prospective risk under s. 753(1)(b).

[56]

There is no question that the evidence supported
    the conclusion that the appellant was likely to continue to engage in
    prostitution-related activities, including the procurement and exploitation of
    young women. This was the risk that was emphasized by Dr. Pearce, and that the
    sentencing judge concluded was supported by the voluminous evidence at the dangerous
    offender hearing. This was not, however, evidence that was tied to the type of
    criminal behaviour that anchored the dangerous offender application: the commission
    of sexual offences demonstrating a failure to control sexual impulses.

[57]

The appellant was convicted of sexual assaults on
    two occasions, which involved very different circumstances. There is no dispute
    that the sexual assault on S.M. in 1996 demonstrated a failure to control
    sexual impulses, and, although the appellant emphasizes the sentencing judges
    conclusion that the predicate offence of sexual assault was motivated by the
    need to dominate or control D.B., the sentencing judge also found that the appellant
    had failed to control his sexual impulses when he lashed out in a rage, and
    after trying to force anal sex as a punishment, he raped her vaginally. I agree
    with the appellant that these two incidents were not sufficient to show a
    pattern of his failure to control sexual impulses. And with respect to the
    offences against T.B. and C.S., although there was evidence of serious
    psychological harm resulting from the appellants victimization of the young
    women  in this sense there was a pattern of harmful conduct by the appellant 
    there was no indication that these offences resulted from a failure to control
    sexual impulses.

[58]

I agree with the appellant that the central
    concern here is that the sentencing judge, in assessing his future risk and the
    ability to control such risk in the community, conflated his conduct in sexual
    matters, including prostitution-related activities, with an inability to
    control sexual impulses. Her focus was on the harmful effects of the
    appellants pimping conduct, and his proclivity to exploit young victims by
    selling their sexual services for his own selfish ends. The sentencing judge relied
    on evidence of a pattern of behaviour in relation to prostitution-related activities,
    including the appellants efforts to establish a business with C.O., and his
    collection of names, numbers and personal data on young females, which led to her
    inescapable conclusion  that he is intending to resume his sexual
    exploitation of girls and young women when released from jail. While this
    evidence supported the appellants likelihood of causing injury, pain or other
    evil to other persons, it did not speak to his likelihood of causing such harm
    through a failure to control sexual impulses. Nor did Dr. Pearces evidence
    support this conclusion. He did not diagnose the appellant as having a sexual
    disorder, and he confirmed that the actuarial testing spoke to the likelihood
    of conviction for a sexual offence, but not to an offenders ability to control
    his sexual desires.

[59]

As such, in concluding that the appellant met
    the definition of a dangerous offender under s. 753(1)(b), the sentencing
    judge did not give proper effect to the failure to control sexual impulses
    requirement in her assessment of the appellants risk of reoffence. For these
    reasons I would set aside the dangerous offender designation.

E.

THE APPROPRIATE SENTENCE

[60]

The appellant and the Crown agree that, in the
    event that the dangerous offender designation is set aside on appeal, this
    court should impose a determinate sentence followed by an LTSO of ten years. The
    appellant, at first instance and on appeal, proposed a determinate sentence of
    6.5 years in custody for the predicate offences. There was no suggestion on the
    part of the Crown that a sentence of this duration would have been
    inappropriate, nor did the Crown argue for a longer determinate sentence. In my
    view, a custodial sentence of 6.5 years would meet the sentencing objectives
    set out in s. 718 of the
Criminal Code.

[61]

Pursuant to s. 759(6), the sentence imposed by
    this court in an appeal under Part XXIV of the
Code
(with respect to
    dangerous and long-term offenders) is deemed to have commenced when the offender
    was sentenced by the court by which he was convicted. The appellant was
    sentenced on June 21, 2012. While the appeal was under reserve, the court
    communicated with counsel about the appellants credit for custodial time
    served, and the effective date of the LTSO, in the event that the appellants
    dangerous offender designation was to be set aside.

[62]

According to the joint calculations of counsel,
    at the time he was sentenced, the appellant had spent just over three years
    real time in pre-sentence custody, which, if enhanced at the rate of 2:1 (which
    would have been the norm at the time), would amount to just over six years
    credit. From the date of sentencing to the date of these reasons, the appellant
    has served an additional nine years and seven months in custody.

[63]

Again, according to counsel, at the time of his
    sentencing, the appellant would have had six months left to serve on his 6.5‑year
    sentence. He would have thus finished serving his custodial sentence on or
    about December 20, 2012.

[64]

While counsel agree on the calculation of the
    appellants custodial time served, they disagree about the effective date of
    the LTSO. The appellant, relying on s. 759(6), submits that the ten-year LTSO is
    deemed to have commenced on December 20, 2012, and would therefore expire on
    December 19, 2022. The Crown contends that none of the time the appellant has
    spent in custody should be credited toward the ten-year LTSO, and that it
    should only take effect on the date of his release. Crown counsel asserts that
    it would run counter to the purposes of LTSOs, to protect the public and rehabilitate
    and reintegrate offenders, if any of the time the appellant has spent serving
    his indeterminate sentence is credited against the LTSO. Pointing to the
    evidence at the dangerous offender hearing in 2012, she submits that there is
    grave cause to be concerned about the appellants risk should he be released
    from custody without a ten-year LTSO.

[65]

I am not persuaded by the Crowns submission,
    which in my view is inconsistent with the clear words of s. 759(6) and the appellants
    legitimate liberty interests. First, an LTSO, like an indeterminate sentence,
    is part of the sentencing options provided for dangerous and long-term
    offenders: see
R. v. Straub
, 2022 ONCA 47, where Watt J.A. describes
    sentences under Part XXIV as composite sentences. Section 759(6) directs that
    the sentence, which can only mean the entire sentence, is deemed to have
    commenced on the date the original sentence was imposed. Second, treating the
    LTSO as having run while the appellant was in custody following completion of
    his determinate sentence is consistent with the treatment of custodial time for
    offenders who are incarcerated after suspension of an LTSO. The time on an LTSO
    continues to run while the offender is in custody, except if they have been
    sentenced to additional time in custody for breach of the LTSO, in which case
    the LTSO is interrupted: see
R. v. Bourdon
, 2012 ONCA 256,
110
    O.R. (3d) 168,
where a long-term offender had been credited
    with more than one half of his original seven-year LTSO for pre-sentence
    custody on charges following repeated breaches of the LTSO. See also the
Corrections
    and

Conditional Release Act
, S.C. 1992, c. 20, s. 135.1(3);
R.
    v. Wilson
, 2010 BCCA 65,
252 C.C.C. (3d) 117, leave to appeal
    refused, [2010] S.C.C.A. No. 108
; and
R. v. Payne
,
    2012 NLCA 72,

330
    Nfld. & P.E.I.R. 181
.

[66]

Finally, the objective of protection of the
    public, including through the appellants rehabilitation and reintegration,
    cannot justify an interpretation of s. 759(6) that would result in the
    continued restriction of his liberty. The public has been protected during the
    period of the appellants ongoing incarceration for more than nine years of the
    LTSO. I would echo comments made in
R. v. Hoshal
, 2018 ONCA 914,
    [2018] O.J. No. 6439. In allowing an appeal from the determinate sentence
    component of a long-term offenders sentence, recognizing that the LTSO took
    effect immediately, and refusing the Crowns request to increase the length
    of the determinate sentence to provide time for the crafting of an appropriate
    LTSO, Fairburn J.A. stated, [i]t is not for this court to increase the
    appellants punishment and further jeopardize his liberty interests to
    accommodate the development of a plan for the LTSO. There is no basis to do so:
    at para. 22. Similarly, in the present case, it is not for this court to
    interpret s. 759(6) in the manner proposed by the Crown. Ignoring the time the
    appellant has spent in custody after serving his sentence for the predicate
    offences, and imposing a ten‑year LTSO going forward would increase the
    appellants punishment and further jeopardize his liberty interests.

F.

DISPOSITION

[67]

For these reasons, I would allow the appeal. I
    would set aside the designation of the appellant as a dangerous offender, and
    instead designate him a long-term offender. I would sentence the appellant to a
    custodial sentence of 6.5 years, to be followed by a period of ten years under
    an LTSO. Pursuant to s. 759(6) of the
Code
, the sentence is deemed to
    have commenced on the date the appellant was sentenced by the sentencing judge,
    that is June 21, 2012. The appellant has served his determinate sentence and
    his LTSO will expire on December 19, 2022.

Released: February 16, 2022 M.T.

K. van Rensburg J.A.

I agree. M. Tulloch
    J.A.

I agree. I.V.B.
    Nordheimer J.A.





[1]
At the time the predicate offences were committed, the age of consent under
    s. 151 of the
Criminal Code
was 14.



[2]
The parties proposed, and the sentencing judge agreed, that the dangerous and
    long-term offender provisions in force at the date of sentencing, rather than
    the regime in place at the date of the predicate offences, would be more
    favourable to the appellant, and would therefore apply.


