



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Brown, 2021 ONCA 678

DATE: 20211005

DOCKET: C66380

Hourigan, Zarnett and Coroza
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jordan Brown

Appellant

Brian H. Greenspan and Michelle M. Biddulph,
    for the appellant

Molly Flanagan, for the respondent

Heard: March 30, 2021 by video conference

On appeal from the conviction entered on
    September 9, 2014 by Justice Glenn A. Hainey of the Superior Court of Justice,
    with reasons reported at 2014 ONSC 5164, and from the sentence imposed on
    January 25, 2017, with reasons reported at 2017 ONSC 561.

Zarnett
    J.A.:

INTRODUCTION

[1]

On May 3, 2012, the appellant participated, with
    others, in an armed robbery at a car dealership. The appellant was carrying a gun.
    He used it to shoot an employee of the dealership, whom he had also punched and
    struck in the head with a hard object while demanding money and drugs, and from
    whom he stole cash and other belongings. A customer of the dealership was also assaulted
    by one of the appellants accomplices.

[2]

The trial judge convicted the appellant of thirteen
    counts arising out of the events at the dealership, including assault causing
    bodily harm, aggravated assault, robbery with a weapon, and discharging a firearm
    with intent to endanger life. He also convicted the appellant of five
    additional counts as a result of a firearm and drugs found in his possession when
    he was arrested several days after the robbery.

[3]

The appellant had a significant criminal record
    at the time of these offences, including convictions for participation in two
    home invasions in which victims were injured. In each home invasion, the
    appellant was carrying, and brandished, a shotgun. The trial judge granted the
    Crowns application to designate the appellant a dangerous offender and imposed
    a sentence of indeterminate incarceration.

[4]

The appellant appeals from his convictions on
    two of the counts on which he was convicted. He also appeals the dangerous
    offender designation and the indeterminate sentence.

[5]

For the reasons that follow, I would dismiss the
    conviction appeal. I would grant leave to appeal sentence, but would dismiss
    the sentence appeal.

BACKGROUND

The Robbery and Arrest

[6]

The appellant does not challenge the trial
    judges factual findings as to what occurred on May 3, 2012 or at the time of
    his arrest.

[7]

The trial judge found that the appellant and his
    co-accused, Jacob Jeffrey and Clarence Morrison, had a joint plan to commit a
    robbery at Humberview Motorsports, a car dealership. On May 3, they drove
    together to the dealership before it opened, parked in a discrete location
    behind it, and staked it out from a condominium lobby across the street. The
    appellant was carrying a loaded, concealed gun. After a Humberview employee, Mr.
    Cubellis (Cubellis), and a potential customer, Mr. Mazzulla (Mazzulla) went
    inside the dealership, so did the appellant, Jeffrey, and Morrison. The
    appellant demanded that Cubellis tell him the location of the cash and the
    safe, and give him drugs. The appellant punched Cubellis a number of times and struck
    him above the eye with a hard object, causing him to bleed. Nothing that the
    appellant demanded was forthcoming. The appellant stole Cubellis gold chain,
    watch, cash, drivers licence, and cellphone. Cubellis testified that he begged
    the appellant not to kill him; in response, the appellant pointed a gun at
    Cubellis, who was then on the ground, and intentionally shot him, hitting him
    in the thigh about five inches from his groin. Meanwhile, Jeffrey punched
    Mazzulla in the face and pushed him to the floor, causing injuries to his face.

[8]

The appellant was arrested on May 7, 2012. At
    the time of his arrest, the police found a rifle and cocaine in the vehicle in
    which the appellant was travelling. The trial judge found that the rifle
    belonged to the appellant and that he was in possession of the cocaine.

The Convictions

[9]

The appellant was convicted of the following
    offences arising out of the May 3 events:

·

Count #1  assault causing bodily harm on
    Cubellis. Count #1 charged aggravated assault by maiming; the trial judge was
    not satisfied that Cubellis had been maimed by the gunshot, but convicted the
    appellant of the lesser and included offence of assault causing bodily harm.

·

Count #2  aggravated assault by wounding on
    Mazzulla. The appellant was convicted as a party to the offence of which
    Jeffrey was the principal, since it was a probable consequence of carrying out
    the three mens common intention to commit a robbery at the dealership that Mr.
    Mazzulla would be assaulted.

·

Count #3  carrying a concealed weapon (a gun
    that the appellant concealed in the waistband of his pants).

·

Count #4  unlawfully pointing a firearm at
    Cubellis.

·

Count #5  assault with a weapon (a gun) on
    Cubellis.

·

Count #6  robbing Cubellis with a weapon.

·

Count #7  discharging a firearm with intent to
    endanger the life of Cubellis.

·

Count #8  using a firearm while committing
    assault.

·

Count #9  possession of a weapon for the
    purpose of committing an indictable offence (robbery).

·

Count #10  using a firearm in a careless manner.

·

Count #11  possession of a firearm knowing he
    did not have a licence.

·

Count #12  possession of a firearm while
    prohibited due to a 10-year prohibition order issued against him in 2010 under
    s. 109 of the
Criminal Code
, R.S.C., 1985, c. C-46.

·

Count #14  theft under $5,000 of Cubellis.

[10]

The appellant was also convicted of the
    following offences arising out of his arrest on May 7:

·

Count #15  possession of a firearm without a
    licence.

·

Count #16  possession of a firearm knowing he
    had no licence.

·

Count #19  being the occupant of a motor
    vehicle with a firearm without a permit.

·

Count #20  possession of a firearm while
    prohibited.

·

Count #23  possession of cocaine.

The Dangerous Offender Designation and the Indeterminate
    Sentence

[11]

The appellant was 33 years old at the time of
    his sentencing. He had been continuously involved in the drug trade from the
    time he was 15. He had an extensive criminal record prior to the predicate offences.
    He was convicted in June 2003 of offences arising out of his
    participation, with others, in two violent home invasion robberies in 2002 and
    2003, in which victims were beaten with a shotgun. In one of the home
    invasions, a victim was also stabbed several times. The appellant had carried,
    and brandished, a shotgun in each home invasion.

[12]

In addition, the appellants record included
    drug and firearm offences committed not long after he completed serving his
    sentence for the home invasions, a 2007 conviction for unlawfully being in a
    dwelling house that he had broken into while a woman and two young girls were
    inside, a subsequent conviction in 2010 for drug trafficking, and convictions
    for multiple breaches of recognizance and one count of drug possession. At the
    time of the predicate offences, he was on bail on charges of kidnapping and
    forcible confinement involving a firearm.
[1]
He breached his recognizance on those charges by repeated contact with the
    alleged victim to extort information.

[13]

The Crown applied pursuant to ss. 753(1)(a)(i)
    and (ii) of the
Code
to have the appellant declared a dangerous
    offender and sentenced to an indeterminate period of incarceration. Each of
    those subsections provides a different pathway to a dangerous offender designation.

[14]

Sections 753(1)(a)(i) and (ii) provide:

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,

(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.

[15]

The trial judge found all three criteria under
    s. 753(1)(a)(i) had been met. On the first criterion, the offences of which he
    had convicted the appellant included serious personal injury offences.
[2]
On the second criterion, he
    found that the Crown had established that the appellants criminal history,
    which included two separate violent home invasions in which victims were
    injured, showed a pattern of repetitive behaviour demonstrating a failure on the
    appellants part to restrain his behaviour, and that there were significant
    similarities between his criminal conduct in the past and the predicate
    offences. On the third criterion, he found that the Crown had established a
    likelihood that the appellant would cause serious physical or psychological
    damage to others in the future as a result of his failure to restrain his
    behaviour.

[16]

The trial judge also found that the criteria
    under s. 753(1)(a)(ii) had been met. Relying on the two home invasion robberies
    and the violent robbery involved in the predicate offences, he found that the
    Crown had proven a pattern of persistent aggressive behaviour on the part of
    the appellant that showed he had a substantial degree of indifference to the
    foreseeable consequences of his behaviour. He also found that the appellant is
    a threat to the life, safety or physical or mental well-being of other persons
    on the basis of these factors.

[17]

The trial judge designated the appellant a
    dangerous offender.

[18]

The sentencing consequences of a dangerous
    offender designation are set out in ss. 753(4) and (4.1) of the
Code
which provide:

(4)
If the court finds an offender to be a dangerous offender, it shall

(a)
impose a sentence of detention in a penitentiary for an
    indeterminate period;

(b)
impose a sentence for the offence for which the offender has been
    convicted  which must be a minimum punishment of imprisonment for a term of
    two years  and order that the offender be subject to long-term supervision for
    a period that does not exceed 10 years; or

(c)
impose a sentence for the offence for which the offender has been
    convicted.

(4.1)
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.

[19]

The trial judge found that he did not have a
    reasonable expectation that the public could be adequately protected from the
    appellant by a lesser measure than an indeterminate sentence. He sentenced the
    appellant to concurrent indeterminate terms of detention in a penitentiary on
    Counts #1, 2, 5, and 6 (the serious personal injury offences). He entered a
    conditional stay of the convictions on Counts #4, 5, 8, 9, 10, 14, and 15,
    pursuant to the principles in
Kienapple v. R.
, [1975] 1 S.C.R. 729. He
    sentenced the appellant to a total of 12.5 years incarceration on the
    remaining counts, less 7 years credit for pre-sentence custody.

ANALYSIS

The Conviction Appeal

(1)

Count #2  Aggravated Assault by Wounding

[20]

The appellant appeals his conviction on Count #2.
    He argues that Mazzullas injuries were not sufficient to constitute wounding
    and therefore the conviction of aggravated assault by wounding was unreasonable.
    He submits that a conviction of assault causing bodily harm should be
    substituted on this count.

[21]

The trial judge found that aggravated assault by
    wounding had occurred because Mazzullas face was cut above his lip as a
    result of being punched by Mr. Jeffrey. Wounding requires a breaking of the
    skin. The photograph shows that Mr. Mazzullas skin was cut.

[22]

The appellant does not contest the finding of
    fact of a cut of the skin, but argues that, as there was no evidence Mazzulla
    received stitches or other medical treatment, the cut did not amount to a wound
    that could support a charge of aggravated assault. He submits that a wound in
    the context of aggravated assault requires breaking of the skin that rises to
    the standard of serious bodily harm; that is, harm that interferes in a
    substantial way with the integrity, health or well-being of the complainant.
    The appellant relies on a decision of the British Columbia Court of Appeal that
    was not available to the trial judge:
R. v.
    Pootlass
, 2019 BCCA 96, 373 C.C.C. (3d) 433, at
    para. 113. The appellant submits that there was no evidence that the cut
    Mazzulla suffered interfered in a substantial way with his integrity, health or
    well-being.

[23]

The Crown argues that in Ontario, the accepted
    definition of wound for the purpose of aggravated assault is reflected in
Watts
    Manual of Criminal Jury Instructions
, 2nd ed.

(Toronto: Thomson Reuters
    Canada, 2015): To wound means to injure someone in a way that breaks or cuts
    or pierces or tears the skin or some part of the persons body. It must be more
    than something trifling, fleeting or minor, such as a scratch.

[24]

This court has previously affirmed this
    definition: see
R. v. Wong
(2006), 209 C.C.C. (3d) 520 (Ont.
    C.A.), at para. 13. It continues to be referenced by trial courts  see, for
    example,
R. v. Green
, 2019 ONSC 884, at para. 60;
R. v. McQuinn
,
    2021 ONSC 4884, at para. 103.

[25]

The Crown submits that the trial judges finding
    of a wound shows that he appreciated, and applied, the accepted Ontario
    definition, and reached a conclusion that was available on the evidence. I
    agree.

[26]

The trial judge clearly found that the result of
    the assault on Mazzulla was a cut of the skin, and Mazzulla testified that he
    had been left with a scar. The trial judge was in the best position to assess
    whether the cut was trifling, fleeting, minor, or a scratch, and must be taken
    to have concluded that it was not.
[3]

[27]

The trial judges conclusion is justified under
    Ontario authorities and I would not interfere with it.

(2)

Count #7  Discharging a Firearm with Intent to Endanger Life

[28]

The appellant also appeals his conviction on
    Count #7, discharging a firearm with intent to endanger the life of Cubellis.

[29]

The appellant argues that s. 244(1) of the
Code
,
    which makes it an offence to discharge a firearm at a person with intent to wound,
    maim or disfigure, to endanger the life of or to prevent the arrest or
    detention of any person is a specific intent offence. He submits that the specific
mens

rea
of intent to endanger life cannot be automatically
    inferred from the discharging of a firearm at a person, as this would render
    redundant the other modes of committing the offence. Although one could
    generally infer an intent to endanger life when a firearm is discharged at a
    lethal area such as the head or chest, here the appellant argues it was aimed
    at a less lethal area  the leg. The trial judge did not explain why he drew
    the inference of an intention to endanger life, as opposed to a competing
    inference. The appellant submits that rather than a new trial on this count, a
    conviction for aggravated assault should be substituted.

[30]

I would not give effect to this ground of
    appeal.

[31]

The
mens

rea
for an intent to
    endanger life is different than that required for attempted murder. The
    appellant must intend to put a person at risk of losing their life:
R. v. Boomhower
(1974)
,
20 C.C.C. (2d) 89 (Ont. C.A.), at para. 7;
Watts Manual
    of Criminal Jury Instructions
, Final 244 Discharge Firearm With Intent, at
    para. 6.

[32]

The trial judge expressly found that even
    though the bullet hit Mr. Cubellis leg, his life was still endangered by the
    fact that a bullet was fired at him.

[33]

Cubellis evidence, which the trial judge
    accepted, was that the appellant punched him repeatedly and hit him in the head
    with an object, knocking him to the ground. He pointed his gun at Cubellis and
    made demands for cash and drugs, which were not fulfilled. Cubellis described
    the appellant growing more irate and being so agitated. He begged the appellant
    not to kill him. The appellant then glanced at Cubellis and shot him in the leg
    about five inches from his groin. The bullet went through the inside of his
    right thigh and came out the other side, causing extensive bleeding, and
    leading Cubellis to think he was going to die.

[34]

In my view, it was open to the trial judge on
    all of the evidence to draw the inference that the appellant intended to put
    Cubellis life at risk when he shot him, even if the shot was aimed (to use the
    appellants formulation) at a less lethal area than the head or chest.

[35]

I would accordingly dismiss the conviction
    appeal.

The Sentence Appeal

[36]

The appellant submits that the trial judge made
    numerous errors in reaching his conclusion to designate the appellant a
    dangerous offender. First, the appellant submits that the trial judge erred in
    finding the requisite pattern of behaviour within the meaning of s.
    753(1)(a)(i) had been established. He also argues that the trial judge erred in
    finding the requisite pattern of persistent aggressive behaviour under s.
    753(1)(a)(ii) was established and that the trial judge did not properly
    consider the appellants remorse in deciding whether he had shown a substantial
    degree of indifference to the consequences of his behaviour. Finally, he
    submits that the trial judge failed to consider the appellants treatment
    prospects at the designation stage of the analysis.

[37]

Even if the trial judge was right to designate
    the appellant a dangerous offender, the appellant argues that he erred in
    imposing an indeterminate sentence.

[38]

Lastly, the appellant argues that the trial
    judge committed two additional errors regarding sentencing.

[39]

Below, I address each argument and explain why I
    would not give effect to them.

(1)

The Dangerous Offender Designation  Repetitive Pattern of Behaviour
    under s. 753(1)(a)(i)

[40]

The trial judge instructed himself that:

A pattern of
    repetitive
behaviour
can be
    established on the basis of a single prior incident provided that it and the
    predicate offence display elements of similarity. As the number of prior
    incidents increases the degree of similarity required decreases.
The pattern of behaviour must contain enough of the same
    elements of unrestrained dangerous conduct to be able to predict that Mr. Brown
    will likely offend in the same way in the future.
Similarity can be found
    not only in the types of offences committed but in the degree of aggression
    used or violence inflicted. [Citations omitted.]

[41]

The trial judge found that the pattern of
    repetitive behaviour contemplated by s. 753(1)(a)(i) was established due in
    part to the significant similarities between the appellants behaviour in two
    home invasions in 2002 and 2003 and his behaviour in the predicate offences. He
    noted that [o]
n all three occasions Mr. Brown was
    armed with a weapon and invaded premises with accomplices for the purpose of
    committing a violent robbery. In all cases victims were injured as a result of
    his conduct. Both the home invasions and the predicate offences showed a very
    similar pattern of violent behaviour on Mr. Browns part.

[42]

The appellant argues that the finding of
    similarity is flawed because the appellant pled guilty to the home invasion
    offences as a party, not a principal. The appellant submits that there was no
    evidence that the appellant was the person who actually caused injury by
    applying physical force to another person in the home invasions, yet the trial
    judge proceeded on the basis that he was. The predicate offences were the only
    time that the appellant had been convicted as the principal offender who
    actually committed the act of violence in the sense of directly injuring
    another person.

[43]

The appellant submits that this is a dissimilarity
    and one that is important, for two reasons. First, the fewer the number of
    offences said to make up the pattern of repetitive behaviour, the higher the
    degree of similarity that is required:
R. v. Hogg
, 2011 ONCA
    840, 287 O.A.C. 82, at paras. 39-40. Second, the dangerous offender provisions
    are aimed at preventing future violent (or sexual) offending, not criminal
    behaviour in general. Therefore, it is significant whether each offence
    comprising the pattern involved violence by the offender resulting from the
    offenders failure to restrain his or her behaviour.

[44]

I do not accept this submission.

[45]

First, the appellants convictions as a party to
    the offences involved in the home invasions do not, in this case, create a
    meaningful dissimilarity to his convictions as a principal in the predicate
    offences. A person may be convicted as a party only where their conduct has
    extended beyond presence at the scene or passive acquiescence. They must have
    engaged in encouragement of the principal, or an act which facilitates the
    commission of the offence, or an act which tends to prevent or hinder interference
    with accomplishment of the criminal act:
Dunlop and Sylvester v. The Queen
,
    [1979] 2 S.C.R. 881, at p. 891.

[46]

In this case, the evidence was that the
    appellants behaviour in each of the home invasions included carrying and
    brandishing a shotgun. The appellant admitted that to Dr. Pearce, who performed
    a psychiatric assessment of the appellant under s. 752.1 of the
Code
. It
    was also undisputed that victims in each home invasion were beaten with a
    shotgun.

[47]

The appellant points out that Dr. Pearce testified
    that the appellant had not told him that he was the one who administered the
    beatings, and therefore the trial judge was wrong to say in his reasons that
    the appellant had struck a victim with a shotgun in the first home invasion. I
    do not accept that argument. The facts accepted by the appellant when he pled
    guilty to offences arising out of the first home invasion were that the
    appellant was one of three men who invaded the premises; one carrying a
    shotgun, one a knife, and one unarmed. When a victim resisted, he was struck on
    the head with the butt of [the] shotgun carried by one of [the] three persons.
    The appellants admission that he was the person who carried the shotgun
    supports the trial judges inference that he was the one who struck the victim.
    I am not satisfied that it was an error for the trial judge to have interpreted
    the evidence that way.

[48]

In any event, even without that inference, the appellants
    behaviour in the home invasions was violent, from two perspectives. First, he was
    a party to offences which involved the application of physical force, which his
    conduct encouraged, or facilitated, or prevented interference with. And second,
    his brandishing of a shotgun as part of a home invasion was itself a threat to
    cause harm, which falls within the definition of a serious personal injury
    offence, as it is defined in s. 752 of the
Code
: the use or attempted
    use of violence against another person:
R. v. Steele
, 2014 SCC 61, [2014]
    3 S.C.R. 138, at para. 58.

[49]

In my view, it was open to the trial judge to
    conclude that the behaviour in the home invasions and that in the predicate
    offences formed a pattern of repetitive behaviour. They each demonstrated the
    same failure of the appellant to restrain his behaviour, leading to violence. In
    all of the incidents, the appellant, armed with a shotgun, invaded premises
    with accomplices for the purpose of a violent robbery in which victims were
    injured. It was open to the trial judge to find significant similarities. The
    trial judge was not required to treat the home invasions and predicate offences
    as dissimilar types of behaviour even if in the former robberies, an accomplice
    may have inflicted the physical injury, while in the other, the appellant
    personally inflicted the physical injury. The trial judge was entitled to view
    them as a very similar pattern of violent behaviour by the appellant.

[50]

Second, the appellants argument that the trial
    judge failed to distinguish a pattern that supports a prediction of future
    violent behaviour, as opposed to criminal behaviour in general, is
    unpersuasive. The trial judge expressly noted that the pattern of behaviour
    must contain enough of the same elements of unrestrained dangerous conduct to
    be able to predict that Mr. Brown will likely offend in the same way in the
    future. He focussed on the correct question. His conclusion, that a very
    similar pattern of violent behaviour on Mr. Browns part had been established,
    was open to him.

[51]

As this court stated in
R. v. Sawyer
,
    2015 ONCA 602, 127 O.R. (3d) 686, although this court will perform a more
    robust review of a dangerous offender designation than it otherwise would on
    a sentence appeal, it is still appellate review, not a rehearing. Appellate
    review of a dangerous offender designation is concerned with legal errors and
    whether the dangerous offender designation was reasonable. The factual and
    credibility findings of the trial judge are entitled to deference:
Sawyer
,
    at para. 26.

[52]

In my view, the trial judge did not make a legal
    error. Nor is his conclusion unreasonable.

(2)

Pattern of Persistent Aggressive Behaviour Under s. 753(1)(a)(ii) and
    Effect of Expressions of Remorse

[53]

The appellant also argues that the trial judge
    erred in finding a pattern of persistent aggressive behaviour by the offender 
    showing a substantial degree of indifference as required under s.
    753(1)(a)(ii).

[54]

The appellant submits that the requirement of
    persistent aggressive behaviour requires a more consistent pattern  more
    examples of the behaviour and greater similarity among them  than that needed to
    satisfy the requirement of repetitive behaviour under s. 753(a)(i). Therefore,
    the trial judges approach of finding the same conduct satisfied both ss.
    753(a)(i) and (ii) was flawed.

[55]

I would not give effect to this argument. The
    test under s. 753(a)(ii) does not depend upon similarities among the predicate
    offences:
R. v. C.W.
, 2019 ONCA 976, at para. 28. In my
    view, it was reasonable for the trial judge to reach the conclusion that the
    home invasions and the predicate offences formed a pattern of persistent
    aggressive behaviour. They each involved aggressive behaviour that was
    persistent  the appellant returned to the behaviour even after having been
    convicted and incarcerated for prior episodes of it.

[56]

The appellant also argues that the trial judge
    was obliged to consider the appellants expressions of remorse on the question
    of whether the appellants behaviour exhibited a substantial degree of
    indifference to the reasonable consequences of his actions to other persons.
    The appellant relies on a statement made by the appellant to Dr. Pearce in
    which he told Dr. Pearce that he had apologized to a victim of one of the home
    invasions. The appellant also relies on a letter he wrote to the trial judge at
    the time of sentencing expressing remorse for the injuries to Cubellis.

[57]

In my view, the trial judge was not required to
    accept the expressions of remorse as preventing the inference that the
    appellant showed a substantial degree of indifference to the consequences of
    his actions. He accepted the evidence of Dr. Pearce who wrote in his report
    that:

Overall  it is my opinion that Mr. Brown is
    likely to re-offend violently absent significant interventions. In my view, he
    has demonstrated a repetitive pattern of behaviour with respect to his assaults
    on others. He has committed serious violent offences towards several victims by
    virtue of his involvement in the drug trade and he has repeatedly returned to
    this career. Such behaviour could quite easily cause serious physical injury
    and/or severe psychological damage to his victims.

He has nonetheless
    and without fail, continued to use substances, interact with
    criminally-inclined peers and immersed himself in the drug culture. Thus there
    is, in my opinion, significant psychiatric support for the notion that
Mr. Brown has manifested indifference to the
    reasonably foreseeable consequences of his behaviour
. [Emphasis added.]

[58]

Dr. Pearce was expressly asked whether he had
    taken into account any expressions of remorse in reaching that conclusion and
    he confirmed he had, but gave greater significance to the repetition of the
    conduct that followed such expressions. He testified that the appellant said he
    felt bad about the 2002 and 2003 home invasions but then again he has, sort
    of, more violence in, in similar type crimes leading to this current assessment
     [H]e can say hes remorseful but then if his actions indicate otherwise then we
    have to take that into account. The trial judge was similarly entitled to take
    into account both the appellants words and actions. The appellants
    expressions of remorse did not preclude a finding that he was indifferent to
    the consequences of his actions.

(3)

Treatment Prospects at the Designation Stage

[59]

The appellant argues that in determining whether
    to designate him a dangerous offender, the trial judge erred by not considering
    the appellants treatment prospects. The trial judge did not address whether
    the Crown had established beyond a reasonable doubt that the appellant, in
    light of his treatment prospects, presented a high likelihood of harmful
    recidivism or that his violent pattern was intractable. This assessment is
    required at the designation stage by the Supreme Courts decision in
R. v.
    Boutilier
, 2017 SCC 64, [2017] 2 S.C.R. 936, at para. 45.

[60]

The Crown concedes this error. The trial judge
    did not have the benefit of the decision in
Boutilier
when he
    sentenced the appellant. However, such an error will not undermine the
    designation if there is no reasonable possibility that the verdict would have
    been any different if the error of law had not been made:
C.W.,
at
    paras. 29-30.

[61]

In my view, that is the situation here. Dr.
    Pearce gave evidence about the appellants high risk of violent recidivism,
    that he suffered from treatment resistant conditions, and that his poor history
    of treatment and supervision made the chances of his successfully accepting
    more treatment low. The trial judge considered the appellants treatment
    prospects on the question of whether the appellants risk could be managed in
    the community, which was relevant to whether there was a reasonable expectation
    that something less than an indeterminate sentence could manage the appellants
    future risk. As the trial judge stated, The determination of whether Mr.
    Browns risk can be reduced to an acceptable level requires consideration of
    all factors, including whether he can be treated, so as to bring about
    sufficient risk reduction to ensure protection of the public.

[62]

The trial judge concluded that there was no such
    reasonable expectation.

[63]

Given the above and the other findings the trial
    judge made that satisfied him that the criteria for a designation had been met,
    in my view there is no reasonable possibility that the trial judge would not
    have made the designation even if he had considered treatment prospects at that
    stage.

(4)

The Indeterminate Sentence

[64]

The appellant argues that the trial judge, in
    imposing an indeterminate sentence, applied an overly onerous, legally
    incorrect standard that is virtually impossible for an offender to meet. He
    submits that the trial judge erred in concluding that there was no reasonable
    possibility that a lesser measure than an indeterminate sentence could
    adequately protect the public, because he misunderstood the statutory scheme for
    a long-term supervision order (LTSO).

[65]

The alleged misunderstanding relates to an
    example the trial judge gave of [o]ne of the potential problems with
    supervision of an offender on an LTSO. He expressed his view that if the
    appellant breached a condition of an LTSO, his release into the community could
    only be suspended for 90 days unless he was successfully prosecuted under s.
    753.3 of the
Code
, and even if he was successfully prosecuted, he
    would be released into the community after he served the sentence for this
    offence regardless of risk to the community.

[66]

The appellant submits that the trial judges
    example demonstrates that he misapprehended the statutory scheme for an LTSO in
    four respects. First, the appellants release into the community could be
    suspended before he breached any condition of an LTSO, if the Parole Board
    believed such a suspension was necessary to prevent a breach or protect
    society. Second, if the appellant breached a condition of his LTSO, he could be
    charged criminally, denied bail, and committed to custody. Third, if convicted
    of a breach of condition, the Crown could apply for an indeterminate sentence
    or a further LTSO. Fourth, while an LTSO can only be suspended for 90 days at a
    time (in contrast to an indeterminate sentence in which parole can be revoked
    permanently), the Parole Board may order multiple 90-day suspensions where
    necessary. The trial judge expressed the view that if an indeterminate sentence
    was imposed, the Parole Board would be best positioned to determine, at a later
    date, if the risk created by the appellant could be managed in the community
    and grant him parole. In the appellants submission, this view made the trial
    judges failure to appreciate the role of the Parole Board in the LTSO scheme
    important.

[67]

I would not give effect to this argument. First,
    the trial judges example followed a more general statement that after
    considering the evidence of a parole officer, it was unclear to him

whether the level
    of supervision that can be provided by [Correctional Service Canada] would be
    sufficient to ensure the safety of the public should Mr. Brown be released into
    the community on a LTSO.

[68]

Second, I do not read the trial judges example
    as purporting to set out an exhaustive list of ways in which the appellants risk
    to the community could be managed under an LTSO, and therefore do not conclude
    that he failed to appreciate that legislative scheme. He correctly set out one consequence
    of a finding of a breach of the LTSO, which he considered one of the potential
    problems with an LTSO. It was not necessary for him to review all other
    aspects of the scheme, since the focus of the trial judges determination that
    an LTSO was insufficient was that [t]he evidence before me does not support a
    finding that [the appellant] can be reasonably managed in the community within
    a definite period of time.

[69]

The trial judge accepted Dr. Pearces evidence
    about whether the appellant could be considered treatable and whether such
    treatment could be effective in lowering the risk to the public both during the
    period in which he would be subject to an LTSO and after its expiry. Based on a
    number of factors, including the appellants diagnosis and prognosis, previous
    poor response to treatment, poor chances of successful treatment, and poor record
    of compliance with supervision, Dr. Pearces ultimate conclusion was that: while
    there is a possibility of eventual control of the risk in the community, I am
    not able to conclude that there is a reasonable expectation of same from a
    psychiatric perspective. Dr. Pearce reached that conclusion while
    acknowledging that possible employment prospects of the appellant with family
    members, and other family supports, had positive aspects to them.

[70]

The trial judges conclusion followed that of
    Dr. Pearce. He explained that he did not have a reasonable expectation that the
    public could be adequately protected from the appellant by any measure less
    than an indeterminate sentence. He concluded that on the evidence before him, it
    would be far too speculative and unreasonably hopeful to conclude that [the
    appellant] will submit to appropriate treatment and supervision so that he will
    no longer pose a risk to the safety of society within a definite period of
    time. This conclusion was not unreasonable.

(5)

Additional Alleged Sentencing Errors

[71]

The appellant complains that although the trial
    judge, on Count #1, convicted the appellant of assault causing bodily harm, he
    referred to the conviction as one for aggravated assault in his reasons designating
    the appellant as a dangerous offender. In my view, that error in nomenclature
    had no impact on the result the trial judge reached.

[72]

The appellant also notes that the trial judge
    conditionally stayed the conviction on Count #5 under
Kienapple
, but
    imposed an indeterminate sentence for Counts #1, 2, 5, and 6. He argues that
    the trial judge should have imposed a stay of proceedings on Count #5 because
    the assault with a gun was subsumed by Count #1. In my view, the stay under
Kienapple
was appropriate and does not affect the dangerous offender designation on the
    charges that were not stayed or any other aspect of the sentence otherwise
    imposed.

CONCLUSION

[73]

For these reasons, I would dismiss the conviction
    appeal. I would grant leave to appeal sentence, but would dismiss the sentence
    appeal.

Released: October 5, 2021 C.W.H.

B. Zarnett J.A.

I agree. C.W. Hourigan J.A.

I agree. S. Coroza J.A.





[1]

These charges were withdrawn after the alleged victim died
    in a car accident.



[2]
A serious personal injury offence is defined in s. 752 of the
Code

as:
(a) an indictable offence, other than high treason, treason, first degree
    murder or second degree murder, involving
(i) the use or attempted use of violence against another person, or
(ii) conduct endangering or likely to endanger the life or safety of another
    person or inflicting or likely to inflict severe psychological damage on
    another person,
and for which the offender may be sentenced to imprisonment for ten years or
    more, or
(b) an offence or attempt to commit an offence mentioned in section 271 (sexual
    assault), 272 (sexual assault with a weapon, threats to a third party or
    causing bodily harm) or 273 (aggravated sexual assault).



[3]

The photograph showing the injury, which was an exhibit at
    trial, was not made available for the appeal.


