



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    that could identify the victim or a witness shall not be published in any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(iii)     REPEALED: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    shall not be published in any document or broadcast or transmitted in any way.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. 1




COURT OF APPEAL FOR ONTARIO

CITATION: R. v. C.W., 2019 ONCA 976

DATE: 20191212

DOCKET: C63934

Fairburn, Harvison Young and Thorburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

C.W.

Appellant

Geoff Haskell, for the appellant

Jennifer Epstein, for the respondent

Heard: October 28, 2019

On appeal from the conviction
    entered on August 22, 2013 and the sentence imposed on August 5, 2016 by
    Justice Alexander Sosna of the Superior Court of Justice.

REASONS FOR DECISION

OVERVIEW

[1]

At a trial by judge alone, C.W. was convicted of a number of counts in
    relation to his then domestic partner: two counts of aggravated assault and one
    count each of sexual assault, assault causing bodily harm, assault, assault
    with a weapon, uttering a death threat, and breach of a probation order. He was
    acquitted on eight other counts. All of the charges pertained to incidents that
    occurred between 2007 and 2011.

[2]

At the time of these convictions, C.W. already had a lengthy criminal
    record.

[3]

After a hearing on sentence, he was found to be a dangerous offender and
    given an indeterminate term of incarceration.

[4]

C.W. seeks to have his convictions set aside and a new trial ordered on
    the basis that the trial judge erred by allowing evidence on each count to be
    considered as similar fact evidence on the other counts. He claims the trial
    judge erred by failing to:

1.

identify the specific issues to be resolved by the evidence;

2.

evaluate the degree of similarity or pattern in the evidence across
    counts;

3.

identify which aspects of the discreditable conduct evidence he relied
    on to convict; and

4.

articulate why he relied on the cross-count application of evidence to
    convict on some counts but not others.

[5]

C.W. also claims the trial judge erred in declaring him to be a
    dangerous offender. He says the trial judge erred by failing to properly
    address whether a pattern of repetitive behaviour, sufficient to meet the
    statutory criteria in s. 753(1)(a)(i) of the
Criminal Code
, R.S.C.,
    1985, c. C-46, was met. Accordingly, he argues that the dangerous offender
    declaration should be set aside.

[6]

He also argues that, even if he was properly declared a dangerous
    offender, the trial judge erred in failing to address whether his behaviour was
    intractable such that the indeterminate sentence should be set aside.

[7]

For the reasons that follow, we dismiss both the conviction and sentence
    appeals.

THE DECISION BELOW

[8]

The charges in this indictment arose from allegations of domestic abuse.

[9]

The Crown asked the trial judge to consider the evidence across counts. The
    trial judge determined that the purpose of doing so was consistent with the
    decision in
R. v. R. (B.S.
)
(2006), 81 O.R. (3d) 641 (C.A.), at
    para. 38, which held that the evidence could be considered across counts to,

explain the nature and dynamic of the relationship between
    the appellant and [the complainant], to demonstrate the appellants animus
    toward [the complainant], to assist in explaining [the complainants] delay in
    fully disclosing the assaultive acts of her husband, and to rebut the
    appellants claim of fabrication by [the complainant].

[10]

The
    trial judge noted that he had concerns about the complainants credibility. Therefore,
    despite his ruling allowing for the cross-count consideration of evidence, he
    found C.W. guilty only on those counts where there was also other evidence to corroborate
    the complainants testimony.

ANALYSIS AND CONCLUSION

[11]

As
    noted above, the trial judge articulated the four purposes for which he allowed
    the cross-count application of evidence, namely: (1) to explain the dynamics of
    the relationship between C.W. and the complainant; (2) to demonstrate C.W.s
    animus toward the complainant; (3) to explain why she delayed in making a
    complaint; (4) and to rebut the appellants suggestion that the complainant
    fabricated her story. These four purposes are consistent with the reasons in
    this courts judgment in
B.S.R
.

[12]

Contrary
    to a submission made by the appellant, there is no requirement to demonstrate
    the

cause of animus toward the complainant. The fact that there was a
    pattern of animus is sufficient
to
assist
the
trier
of
fact to understand the nature
of

the
relationship in which
the
violence is said
to
have occurred:
R. v. F. (D.S.)
(1999),
43 O.R. (3d) 609 (C.A.), at para. 25
;
R. v. P.S.
,
2007 ONCA 299, 221
    C.C.C. (3d) 45, at para. 36.

[13]

The
    evidence was not used across counts to assist in determining the identity of
    the perpetrator, but whether the offences were committed. The cross-count
    evidence informed that question because, among other things, it addressed the
    issue of C.W.s animus and the nature of his relationship with the complainant:
R. v. Batte

(2000), 49 O.R. (3d) 321 (C.A.), at paras. 102-103.

[14]

Bearing
    in mind the purposes for which the cross-count application of evidence was
    permitted, and given that identity was not in issue,
the
    trial judge was under no obligation to assess the degree of similarity or
    patterning between the various incidents of alleged violent assaults
:
R.
    v. Handy
,
2002 SCC 56, [2002] 2 S.C.R. 908, at paras. 78-80.

[15]

Moreover,
    we do not accept that the trial judge was unclear about the evidence he relied
    on to convict. On those counts where he considered evidence from other counts,
    he explained his approach to that evidence. For example, he explained that
    evidence from some counts was relevant to other counts to demonstrate that C.W.
    had animus toward the complainant and that C.W.s relationship with the
    complainant was violent and controlling.

[16]

However,
    given his concerns regarding the complainants credibility, the trial judge
    only convicted C.W. on those counts where there was other evidence, external to
    the cross-count application of evidence, to corroborate those convictions, such
    as photographs of the injuries, and/or evidence from witnesses to the assaults.
    Where that evidence was lacking, acquittals flowed.

[17]

For
    these reasons, we see no error in the trial judges approach to the cross-count
    application of evidence. The conviction appeal is dismissed.

SENTENCE

[18]

C.W.
    argues that the Crown did not establish a pattern of repetitive behaviour
    within the meaning of s. 753(1)(a)(i) of the
Criminal Code
and the
    reasons for sentence do not demonstrate that the Crown proved his behaviour was
    intractable.

[19]

Section
    753(1)(a) provides that 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  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,


ii.

a pattern
    of persistent aggressive behaviour by the offender, of which the offence for
    which he or she has been convicted forms a part, showing a substantial degree
    of indifference on the part of the offender respecting the reasonably
    foreseeable consequences to other persons of his or her behaviour, or

Pattern of Repetitive Behaviour

[20]

C.W.
    agrees that the predicate offence was a serious personal injury offence. The
    sentencing judge concluded that C.W. exhibited a pattern of repetitive
    behaviour that shows a failure to restrain his behaviour and a likelihood of
    causing death, injury, or severe psychological harm to others through the
    failure in the future to restrain his behaviour.

[21]

C.W.
    claims the reasons for sentence do not articulate that there was a pattern of
    behaviour or what the pattern of behaviour was.

[22]

We
    disagree.

[23]

While
    the reasons did not provide a detailed explanation as to why and how the
    pattern of repetitive behaviour was found, that is because the matter was
    conceded by the appellant at the sentencing hearing. In its Notice of Response
    to the dangerous offender designation, C.W.s counsel agreed that [t]here is
    no issue in these proceedings that there is a pattern of repetitive behaviour 
    which shows a lack of restraint by [C.W.] in the past. Given this concession,
    the reasons did not focus upon an explanation as to why the trial judge was
    satisfied that this statutory prerequisite was met.

[24]

In
    any event, there was ample evidence to support that conclusion.

[25]

C.W.s
    history of offences involving domestic violence, including some more dated
    offences, combined with the many offences he was found guilty of in this
    proceeding, were extremely serious. In addition, two forensic psychiatrists
    provided expert opinions that C.W. is at a high risk of reoffending violently,
    particularly in a domestic context.

[26]

Taken
    together, this evidence demonstrated the necessary pattern of repetitive
    behaviour.

We agree with the trial judges conclusion that there was
    overwhelming evidence that the statutory criteria had been met to find a
    pattern of repetitive behaviour that demonstrates a failure to restrain his
    behaviour and a likelihood he will cause serious injury to others.

Persistent Aggressive Behaviour

[27]

The
    sentencing judge also considered the second avenue to the dangerous offender
    finding: a pattern of persistent aggressive behaviour.

[28]

This
    test does not depend upon similarities among the predicate offences; it is the
    fact that C.W.s behaviour demonstrates a pattern of persistent aggression and
    a substantial degree of indifference to the consequences of his actions. C.W.
    did not dispute that his numerous prior convictions for assault and uttering
    threats demonstrate persistent aggressive behaviour.

Future Treatment Prospects

[29]

The
    trial judge did not have the benefit of the decision in
R. v. Boutilier
,
2017 SCC 64, [2017] 2 S.C.R. 936, at paras. 44-46, which provides that in
    deciding whether to impose a dangerous offender designation, future treatment
    prospects must be considered. He relied on legal authorities in existence
    before the
Boutilier
case was released. The Crown concedes that the
    failure to address future treatment prospects is an error of law.

[30]

However,
    the failure to address C.W.s future prospects will not undermine the
    designation if there is no reasonable possibility that the verdict would have
    been any different had the error of law not been made:
R. v. Gracie
,
    2019 ONCA 658, at paras. 3, 35, and 53.

[31]

It
    is clear from the evidence that there is nothing that would suggest that the
    finding of dangerousness would be any different had the trial judge considered
    C.W.s treatment prospects at the designation stage. In fact, C.W.s prospects
    for future treatment are poor for the following reasons:

1.

C.W. has
    anti-social personality disorder with significant psychopathic traits. This is
    a serious mental illness;

2.

This type of mental illness is difficult to treat and manage;

3.

According to the two forensic psychiatrists who gave expert testimony,
    he is at high risk for recidivism and there is no treatment so compelling
    that it could mitigate this risk;

4.

He is a heavy and chronic drug and substance abuser;

5.

He minimized his assaultive behaviour; and

6.

He has a history of disobeying court orders.

[32]

Taken
    together, there was ample evidence of C.W.s high likelihood of violent
    recidivism and poor prospects for rehabilitation.

[33]

Lastly,
    the sentencing judge considered lesser sentencing options but concluded that:

Based on all the evidence, I have no confidence, let alone
    reasonable expectation that a measure less than an indeterminate sentence will
    adequately protect the public from the harm referred to in s. 753(4)(1) of the
Criminal
    Code
.

I am satisfied that  there is a pattern of behaviour by [C.W.]
    including the index offences, showing a failure to restrain his behaviour and a
    likelihood of causing death or injury to other persons, including intimate or
    domestic partners, or inflicting severe psychological damage on other persons
    through a failure in the future to restrain his behaviour.

There is a pattern of persistent aggressive behaviour showing
    a substantial degree of indifference respecting the reasonable foreseeable
    consequences to other persons of his behaviour.

[34]

His
    determination that
there was no
    reasonable prospect of controlling C.W.s behaviour in the community at the
    penalty stage can also be relied on at the dangerous offender designation
    stage:
Gracie
,
at para. 37.

[35]

Lastly,
    s. 753(4.1) of the
Criminal Code

requires the court to impose
    an indeterminate sentence in the following circumstances, as later interpreted
    in
Boutilier
.
Section 753(4.1) states:


The court shall impose a sentence of detention in a
      penitentiary for an indeterminate period unless it is satisfied by the evidence
      adduced during the hearing of the application that
there is a reasonable
        expectation that a lesser measure under paragraph (4)(b) or (c) will adequately
        protect the public against the commission by the offender of murder or a
        serious personal injury offence
. [Emphasis added.]


[36]

Consistent
    with
Boutilier
, at para. 71, the sentencing judge did not impose an
    onus, a rebuttable presumption, or mandatory sanctioning. Rather, he
    considered all of the evidence, turned his mind to lesser sentencing options
    but found they were insufficient to adequately protect the public. We see no
    error in his decision to impose an indeterminate sentence.

[37]

The
    appeals are dismissed.

Fairburn J.A.

A.
    Harvison Young J.A.

J.A.
    Thorburn J.A.


