



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information that could identify the victim or a witness shall not be published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(iii)     REPEALED: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the victim shall not be published in any document or broadcast or transmitted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. Wilson, 2020 ONCA 3

DATE: 20200106

DOCKET: C64711

Benotto, Brown and Paciocco
JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Bruce Wilson

Appellant

Brian Snell, for the appellant

Philippe G. Cowle, for the respondent

Heard: October 31, 2019

On appeal from the conviction entered on
March 7, 2013 and the sentence imposed on July 2, 2014 by Justice Kenneth E.
Pedlar of the Superior Court of Justice, sitting with a jury.



Paciocco J.A.:





OVERVIEW

[1]

Mr. Bruce Wilson appeals his jury convictions
for sexual assault, kidnapping, and uttering death threats. Those convictions
turned entirely on male DNA consistent with Mr. Wilsons DNA that was located
on vaginal swabs taken from the complainant within hours after she was attacked
by a stranger while walking alone at night in the small town where she lived.

[2]

Mr. Wilson testified in his defence, claiming
that although the DNA on the vaginal swabs could be from his semen, someone
else perpetrated the attack. He raised the prospect that he may have had
consensual intercourse with the complainant a few days before the attack, which
could account for the DNA result.

[3]

In his jury address, Mr. Wilsons trial counsel [trial
counsel] relied heavily on DNA testing that was
not
done on fingernail clippings taken from the complainant, and a shirt worn by
the complainant. There was reason to believe that those items could contain DNA
from the perpetrator. Trial counsel argued that testing may have supported Mr.
Wilsons defence, and that he should not bear blame for this gap in the
evidence but benefit from the reasonable doubt it leaves. The trial judge
characterized trial counsels submissions as an unfair shot at the Crown and
issued a corrective instruction. Mr. Wilson claims this corrective instruction
was improper, requiring a new trial.

[4]

Mr. Wilson also appeals the determination that
he is a dangerous offender, as well as the indeterminate sentence that was
imposed. In making the dangerous offender determination, the trial judge relied
on convictions for offences that took place after the historical offences at
issue in this appeal. Mr. Wilson contends it is improper in a dangerous
offender hearing for a judge to rely on convictions that were imposed subsequent
to the commission of the offence that led to the dangerous offender application.
He contends that doing so contravenes Lord Cokes principle that prohibits treating
subsequent convictions as aggravating when sentencing an offender for an earlier
offence. He argues that the trial judge committed this error.

[5]

For reasons that follow, I would find no error
in the corrective instruction. I would also hold that Lord Cokes principle
does not prevent the consideration of subsequent convictions in determining
whether an offender is a dangerous offender.

[6]

I would therefore dismiss both the conviction
and sentence appeals.

MATERIAL FACTS

[7]

In July of 1994, a stranger overpowered the
16-year-old complainant while she was walking alone in the dark to a friends
house in a small town. He dragged her into a backyard, threatened her into
submission, and then repeatedly raped and sexually assaulted her, before making
his escape.

[8]

The complainant immediately attended a police
station and was taken to a hospital. During a rape kit examination, vaginal
swabs were taken, and her shirt and fingernail clippings were collected. The
shirt was collected because there was reason to believe that it was stained
with DNA from the rapist. The complainant said she had used the shirt to wipe
what she believed to be ejaculate from her calf. She also said she scratched
the rapist, creating the possibility that his DNA could be under her fingernails.

[9]

Investigating officers provided all samples to
the Centre for Forensic Sciences [CFS] for possible forensic testing. Although
there was a sufficient quantity and quality of DNA for analysis from the
vaginal swabs, the results obtained did not lead to the identification of any suspects.
There was insufficient DNA extracted from the shirt, and no testing was
attempted on the fingernail clippings.

[10]

In 2008, with the benefit of advances in DNA
testing technology, the vaginal swabs yielded a DNA profile that strongly
correlated with a DNA profile secured from a blood sample from Mr. Wilson. Having
obtained this result, and consistent with its protocol to begin with bodily
fluids in sexual assault cases, CFS did not test the fingernail clippings, or
retest the shirt using more advanced technology.

[11]

Due to the DNA test result from the vaginal swab,
Mr. Wilson was charged with the offences now under appeal. Evidence presented
at his trial of those charges showed that Mr. Wilson shared the single male
source DNA profile obtained from the vaginal swabs, the random match probabilities
of which are 1 in 1.9 trillion.

[12]

Although the complainants opportunity to see her
attacker was limited by the darkness and her compliance with his threat not to
look at him, at the trial, she described her attacker as a big Caucasian man, between
20 and 35 years old, with light hair, prominent cheekbones, and a voice that
was not deep. These characteristics were shared by Mr. Wilson, who, in 1994,
was from a nearby city.

[13]

Mr. Wilson testified in his defence. He offered
alternative bases that, if accepted, would explain away the DNA evidence. The
first, unsupported by any foundation, was that the DNA analysis was mistaken.
The alternative basis was that Mr. Wilson was quite confident that, after
seeing her image in a police photo, he recognized the 16-year old complainant as
a young prostitute he had consensual sex with in the city that he lived in, around
the time of the rape. By misfortune, his DNA may have still been in her vagina
when someone else attacked her. During his testimony, Mr. Wilson did not
contest evidence that, at the time of the attack, the complainant went to
school full-time in a different small town, worked part-time at a fast-food
restaurant, and socialized with her school friends engaging in typical
small-town teenage activities.

[14]

During his closing address to the jury, trial counsel
made much of the fact that no attempt was made using the new technology to
attempt to identify DNA from the fingernail clippings or the shirt. Although he
said he was not faulting anyone for this, he emphasized that, had this testing
been performed, which could easily have been done, the jury would know whether
the DNA profile under the fingernail clippings was the same as the DNA from the
vaginal swab, or whether the DNA came from two different people. He made
similar arguments about the shirt, suggesting that, had the shirt been
re-examined using more advanced technology, the DNA on the shirt could also
have been identified. He argued that because these tests had not been performed,
we will never know. He urged that the missing pieces of this puzzle should
not be visited on Mr. Wilson but should give rise to a reasonable doubt.

[15]

The trial judge accepted the Crown position that
aspects of the submissions made by defence counsel were misleading and took an unfair
shot at the Crown. In the trial judges view, contrary to trial counsels
position, the Crown had no reason to believe that the failure to test the
fingernails or retest the shirt would be an issue, as the defence had not disclosed
its defence until trial. Moreover, had the defence requested this testing, the
testing would have been done. The implication of trial counsels submissions 
that this was a negligent or unfair investigation that prejudiced the defence 
had to be addressed. He therefore gave a corrective instruction to the jury.

[16]

In the corrective instruction, the trial judge
told the jury that: (1) the fingernail clippings were available for testing by
the defence or the Crown; (2) although the defence is not required to prove
anything in the case, testing was not requested by the defence - who knew what
its defence was going to be  or by the Crown; and (3) the Crown did not know
until trial that the defence would suggest a third-party perpetrator, since the
defence had exercised its right: (a) not to disclose its defence until trial, and
(b) not to testify at the preliminary inquiry that had been referred to in the
evidence before the jury. The trial judge then commented, So, there was no
obvious reason then to test the nail clippings, even though they were available
for testing.

[17]

In the course of the corrective instruction, the
trial judge made the following comment about the availability of the additional
samples for testing:

So, you could ask the question, why didnt the
Crown? You could also ask the question why didnt the defence ask for this
testing? It may or may not affect the weight that you give to the defence
theory.

[18]

The jury found Mr. Wilson guilty of the charges
against him. The Crown initiated an application to have Mr. Wilson sentenced
for these serious personal injury offences as a dangerous offender. In support
of that application, the Crown relied upon convictions against Mr. Wilson for
offences that occurred after the 1994 attack, including three rape convictions between
1995 and 2008. The trial judge took those offences into account in declaring
Mr. Wilson to be a dangerous offender and then imposed an indeterminate
sentence.

ISSUES

[19]

Mr. Wilsons conviction appeal is based on the trial
judges corrective instruction. Mr. Wilson argues that the corrective
instruction should not have been given since the submissions made by defence
counsel were proper and did not require correction.

[20]

He further argues that even if it had been
appropriate to give a corrective instruction, the trial judges instruction went
farther than it should have, including by inviting the jury to draw an adverse
inference against Mr. Wilsons defence.

[21]

He contends that the corrective instruction also
effectively deprived him of his right to refrain from disclosing his defence in
advance of the trial, and of his right to remain silent.

[22]

Finally, Mr. Wilson submits that the corrective
instruction was contrary to
Canada Evidence Act,
R.S.C., 1985, c. C-5,
s. 4(6), as the trial judge commented improperly on Mr. Wilsons failure to
testify at the preliminary inquiry.

[23]

Mr. Wilson raises only one issue on his sentence
appeal. He argues that Lord Cokes principle, affirmed in
R. v. Skolnick
,
[1982] 2 S.C.R. 47, that subsequent convictions cannot be relied upon to
aggravate the sentence imposed for a prior offence, applies to dangerous
offender proceedings. He contends that this principle is violated where, as in
his case, convictions subsequent to the commission of the offence that leads to
the dangerous offender hearing are relied upon to determine dangerousness.

[24]

The Crown disputes each of Mr. Wilsons grounds
of appeal, but argues, in the alternative, that even if the trial judge erred
in his corrective instruction, the curative proviso should apply to uphold Mr.
Wilsons conviction and sentence.

[25]

I will not address this last issue because the
trial judge committed no errors. The issues that require consideration can
fairly be stated as follows:

A.

Did the trial judge err in giving a corrective instruction?

B.

Did the trial judge err by going farther than required to correct
the problem he identified?

C.

Did the trial judge improperly invite the jury to draw an inference
of guilt against Mr. Wilson for not having arranged for the testing of the
samples?

D.

Did the trial judge err by depriving Mr. Wilson of the benefits of
his right to refrain from making disclosure and his right to remain silent?

E.

Did the trial judge err by commenting improperly on the failure by
Mr. Wilson to testify at his preliminary inquiry?

F.

Did the trial judge contravene Lord Cokes principle by relying on
subsequent convictions in declaring Mr. Wilson to be a dangerous offender?

ANALYSIS

A.

DID THE TRIAL JUDGE ERR IN GIVING A CORRECTIVE
INSTRUCTION?

[26]

The trial judge was entitled to conclude that trial
counsel launched an unfair attack on the integrity of the investigation during the
closing jury address. The trial judge was also entitled to give a corrective
instruction. I will begin with the trial judges conclusion and then address
the need for a corrective instruction.

(1)

The Trial Judges Conclusion

[27]

Whether the accused has mounted an attack on the
integrity of an investigation is a matter for the trial judge to determine. A
trial judge will have had the benefit of presiding over the trial and seeing it
unfold and is, therefore, best situated to determine if the accused has done
so. The issue is not whether an appellate panel agrees with the trial judges
characterization, but whether, approaching the matter deferentially, there was
a basis in the evidence for the trial judges conclusion:
R. v. Jackson
,
2013 ONCA 445, 308 C.C.C. (3d) 66, at para. 60.

[28]

The determination of whether there is a foundation
for a finding that trial counsel has launched an attack on the investigation is
a matter of substance, not form:
R
.
v. Candir
, 2009 ONCA 915,
250 C.C.C. (3d) 139, at para. 147, leave to appeal refused, [2012] S.C.C.A. No.
8. Trial counsels claim that he was not laying blame is relevant, but not
determinative. Looking at the whole of trial counsels jury address, there is a
clear foundation for the trial judges conclusion that despite that claim,
trial counsel was taking a shot at the Crown, as the trial judge put it.

[29]

In coming to this conclusion, I reject Mr.
Wilsons submission on appeal that trial counsel was doing no more than
inviting the jury to consider the gap in the evidence in determining his guilt.
If that were so, he could have pointed out the gap without featuring the
failure to have available samples tested. He could have also pointed out that
the DNA match from the vaginal swabs were consistent with the defence claim of
consensual intercourse, and that no other incriminating DNA samples were
discovered. Instead, he focused on the failure of the CFS to test the
fingernail clippings and to retest the shirt with the benefit of advances in
technology. His submissions featured the failure to test, not the gap in the
evidence.

[30]

Trial counsel argued that the further DNA
testing was easy to do, and had it been done, the jury would know whether Mr.
Wilson was the assailant. But since that testing was not done even though the
fingernails were handed over to the CFS, we will never know. Further testing
could also have been conducted on the shirt to see if there was sufficient DNA
for testing using the new technology. Trial counsel asked the jury not to visit
the failure to test the samples on the defence, thereby casting the failure to test
as a matter of blame. His submissions implied, without subtlety, that Mr.
Wilson was helpless in avoiding the unfortunate failure to conduct the tests. Trial
counsel also implied that the jury was left in an unfair position, as they
would want to know the DNA results in order to determine whether Mr. Wilson or
an unidentified attacker was responsible. In these circumstances, I would not
interfere with the trial judges determination that, in his jury address, trial
counsel was in substance presenting an inadequate or unfair investigation
defence.

(2)

The Need for a Corrective Instruction

[31]

I also accept the trial judges conclusion that
these submissions in the jury address called for a corrective instruction.

[32]

As Watt J.A. noted in
Candir
, at paras.
145-147, although the defence is entitled to raise questions about the adequacy
of the investigation, doing so presents potential pitfalls. Included among
those pitfalls is that information that is not otherwise relevant can become
relevant:
R. v. Mallory
, 2007 ONCA 46, 217 C.C.C. (3d) 266, at para.
87. Where this occurs, steps will have to be taken to ensure that the trier of
fact has such information. Where the attack on the investigation is made known
by the defence during its jury address, it may be necessary for the trial judge
to issue a corrective instruction to ensure that the jury has the non-contentious
information it requires to evaluate the situation.

[33]

In Mr. Wilsons case, the jury was not equipped
with the information it needed to properly consider trial counsels
submissions. The trial judge determined that correction was required in three
areas to ensure that the jury had the information it required to make a fair
decision about the inadequate investigation submissions. Each of these
determinations was proper.

[34]

First, trial counsels submissions implied that
Mr. Wilson had no right to call for further testing. This suggestion is
inaccurate and warranted correction.

[35]

Second, in response to trial counsels
submission that the Crown was to blame for the decision not to test, the jury needed
to know that Mr. Wilson never requested testing, even though he could have done
so. Without this information, the jury would not have a balanced picture.

[36]

Third, the implication of trial counsels submission
that the Crown should have tested the exhibits required the jury to understand
how evident that need would have been to the Crown. Mr. Wilsons defence,
looked at in isolation, would certainly underscore the importance of testing
all samples. He claimed that his DNA could innocently have been in the
complainants vagina, but that any DNA from the fingernails and the shirt would
have come from the attacker. Yet, without knowing that defence claim, investigators
and the Crown would see no practical need to conduct further testing. DNA was
collected from areas where the attackers DNA could be expected to be found,
based on the complainants report of the attack. There would be no reason to
think that the DNA may have come from different sources. Having achieved a
strong and dependable DNA result from the vaginal swabs, further testing would seem
redundant. The jury needed to be made aware that the Crown did not know of the
defence theory until trial in order to undertake a fair assessment of trial
counsels submissions.

[37]

The trial judge was therefore entitled to
conclude that a corrective instruction was needed to address these
shortcomings.

B.

DID THE TRIAL JUDGE ERR BY GOING FARTHER THAN
REQUIRED TO CORRECT THE PROBLEM HE IDENTIFIED?

[38]

The trial judge did not err by going farther
than required to correct the problem he identified. I do not accept Mr.
Wilsons position on appeal that the trial judges focus on this issue in his
charge was disproportionate. I appreciate that the trial judges corrective instruction
was more elaborate than it could have been. The failure to test was, however, a
central plank in trial counsels jury address, and warranted careful attention.
The question on appeal is not whether the trial judge could have said less, but
whether what he said was unfair or legally inappropriate.

[39]

Mr. Wilson contends that the trial judge made
the error of including unfair or legally inappropriate comments in his
corrective instruction. Rather than considering those specific submissions altogether
under the general rubric of whether the trial judge went farther than required,
I will now consider each of those particularized submissions as discrete
issues.

C.

Did the trial judge IMPROPERLY INVITE THE JURY
TO DRAW AN INFERENCE OF GUILT AGAINST MR. WILSON FOR NOT HAVING ARRANGED FOR
THE TESTING OF THE SAMPLES?

[40]

The fact that Mr. Wilson did not arrange for the
testing of the samples could potentially be used either: (a) to evaluate Mr.
Wilsons position that the Crown bears the blame for not having the further
samples tested; or (b) as evidence that Mr. Wilson did not want the truth to be
known about his guilt. The Crown contends that the former use is appropriate but
concedes that the latter use would not be.

[41]

Appeal counsel does not concede that the first
use was appropriate, which I will discuss more directly below. In the argument
currently under consideration, appeal counsel argues that regardless of whether
the first use was appropriate, the trial judge erred by inviting the second
inference, that the jury could use Mr. Wilsons failure to request testing as
proof of his guilt.

[42]

In advancing this argument, appeal counsel
relies most directly on the portion of the trial judges corrective instruction
where the trial judge said:

So, you could ask the question, why didnt the
Crown? You could also ask the question why didnt the defence ask for this
testing? It may or may not affect the weight that you give to the defence
theory.

[43]

This comment is ambiguous enough that, taken in
isolation, it could be interpreted as an invitation to the jury to draw an
adverse inference of guilt against Mr. Wilson for not having the testing done. The
inference could have been: Mr. Wilson did not ask for further testing because
he did not want the jury to know what those samples showed.

[44]

However, taken in context, as it must be, it
would have been clear to the jury that the reference to the defence theory in
this passage does not relate to Mr. Wilsons claim that there was another
perpetrator, nor was the trial judge inviting an inference of guilt. Instead,
it would have been plain to the jury that this was a reference to the defence
theory that the Crown bears responsibility for the failure to test, which
should not be visited on Mr. Wilson but on the Crown. I say this for several
reasons.

[45]

First, when the trial judge made this comment,
he was not summarizing the evidence of Mr. Wilsons guilt. He was addressing the
fact that the defence questioned the absence of DNA testing on the fingernail
clippings.

[46]

Second, the impugned comment describes the fact
that neither the Crown nor the defence had requested such testing. The Crowns
failure to request testing is irrelevant to whether an inculpatory inference
should be drawn against Mr. Wilson. It is relevant, however, to the question of
responsibility for failing to test, which Mr. Wilson had raised.

[47]

Third, immediately after saying, It may or may
not affect the weight you give to the defence theory, the trial judge said,
That is for you to decide, whether there was just no reasonable chance for the
Crown to investigate. Taken together, these sentences make clear that the
defence theory at issue relates to the Crowns responsibility to investigate,
not the guilt of Mr. Wilson.

[48]

Fourth, after making this comment, the trial
judge immediately repeated that the onus remains on the Crown to prove Mr.
Wilsons guilt and never shifts. This direction is inconsistent with the
suggestion that Mr. Wilsons failure to get the testing done is evidence of his
guilt.

[49]

Finally, the trial judge concluded his remarks
on this topic by next telling the jury that it is up to them to determine how
worried they should be about the fingernail clippings not having been tested,
and at whose request this could have been done. In doing so, he directed them
to the issue he was addressing, namely, the defence theory that the Crown was
to blame for the failure to test the further samples.

[50]

There is no reasonable possibility the jury
would have understood otherwise. I would reject this ground of appeal.

D.

DID THE TRIAL JUDGE ERR BY DEPRIVING MR. WILSON
OF THE BENFITS OF HIS RIGHT TO REFRAIN TO MAKE DISCLOSURE AND HIS RIGHT TO
REMAIN SILENT?

[51]

In the corrective instruction, the trial judge
alerted the jury to the uncontentious fact that Mr. Wilson did not disclose his
defence to the Crown until trial, and that he did not ask for further DNA
testing to be done. Appeal counsel argues that including this information in
the corrective instruction deprived Mr. Wilson of his right not to be forced to
participate in the prosecution of his case. Mr. Wilson also argues that
inviting reliance on the failure of the defence to disclose its defence before
trial is inconsistent with his entitlement as an accused person not to make
disclosure to the Crown.

[52]

I do not agree. The trial judge specifically
alerted the jury to the fact that Mr. Wilson was under no obligation to disclose
his defence until trial, and that he had no obligation to give evidence or
prove his innocence at trial. The trial judge was simply pointing out that since
Mr. Wilson chose to exercise his rights, the Crown was not alerted to Mr.
Wilsons defence, a material consideration in evaluating whether the defence theory
of blame should be accepted.

[53]

I would not give effect to this ground of appeal.

E.

DID THE TRIAL JUDGE ERR BY COMMENTING IMPROPERLY
ON THE FAILURE BY MR. WILSON TO TESTIFY AT HIS PRELIMINARY INQUIRY?

[54]

Mr. Wilson contends that it was inappropriate
for the trial judge to mention that Mr. Wilson did not testify at the
preliminary inquiry. He argues that this violated his right not to testify and
contravened the bar in s. 4(6) of the
Canada Evidence Act
on
commenting on the failure of an accused person to testify. I disagree. The
trial judge did not err by commenting improperly on the failure by Mr. Wilson
to testify at his preliminary inquiry.

[55]

The trial judges decision to alert the jury
that Mr. Wilson had not testified at the preliminary inquiry did not deprive
Mr. Wilson of his right not to testify, for the same reason that telling the
jury that Mr. Wilson had exercised his right not to disclose his defence did
not violate Mr. Wilsons disclosure rights.

[56]

The trial judge did not rule or direct the jury
that Mr. Wilson was compelled to testify at the preliminary inquiry. He
specifically told the jury that Mr. Wilson was not compelled to do so, and that
few accused persons choose to testify at their preliminary inquiries.

[57]

Although the trial judge could simply have
directed the jury that the Crown did not know until trial what Mr. Wilsons
defence would be, it was not unreasonable for the trial judge to forestall
improper jury speculation by explicitly stating that Mr. Wilson did not testify
at the preliminary inquiry. The jury was aware that there was a preliminary
inquiry involving witness testimony. Without knowing that Mr. Wilson had not
testified, the jury might assume inaccurately that he gave the same evidence at
the preliminary inquiry as he did at trial, thereby alerting the Crown to the
need to test the fingernail clippings and the shirt. The trial judge was
entitled to steer the jury away from such reasoning by alerting them to the
uncontentious fact that Mr. Wilson did not testify at the preliminary inquiry. The
trial judges decision to do so does not contravene Mr. Wilsons right not to
testify.

[58]

Nor does the mention by the trial judge of Mr.
Wilsons failure to testify at the preliminary inquiry offend s. 4(6) of the
Canada

Evidence Act
. This provision is not to be interpreted literally, but purposively,
to prevent comments that invite the inference that the accused chose not to
testify to cloak his guilt:
R. v. Prokofiew
, 2012 SCC 49, [2012] 2
S.C.R. 639, at paras. 74-79. A jury could not interpret the trial judges
comment as inviting such inferences. The trial judge commented on the failure
of Mr. Wilson to testify at the preliminary inquiry while explaining why the
Crown would have no reason to know to do the testing. Moreover, Mr. Wilson did
testify at the trial. In those circumstances, a jury would not infer that Mr.
Wilson did not testify at the preliminary inquiry as a cloak for his guilt.

[59]

I would dismiss this ground of appeal, as well.

F.

DID THE TRIAL JUDGE CONTRAVENE LORD COKES
PRINCIPLE BY RELYING ON SUBSEQUENT CONVICTIONS IN DECLARING MR. WILSON TO BE A
DANGEROUS OFFENDER?

[60]

Lord Cokes principle is a common law rule
applicable to sentencing proceedings unless ousted by a clear statutory
provision or by necessary implication:
R. v. Hexamer
, 2019 BCCA 285, at
para. 171, leave to appeal requested, [2019] S.C.C.A. No. 343, citing
Skolnick
,
at p. 58.

It holds that subsequent convictions cannot be relied upon
to aggravate the sentence imposed for a prior offence.

[61]

Lord Cokes principle makes sense. A repeat
offender who has already been sentenced for offending may require increased
punishment to achieve specific deterrence since they have not learned from
their earlier sentence. Their degree of responsibility is heightened by the
contempt their subsequent conduct may show for the sentencing process:
R.
v. Cheetham
(1980), 53 C.C.C. (2d) 109 (Ont. C.A.), at p. 114. These
considerations do not operate where the offender committed the offence being
sentenced before being punished for subsequent offences.

[62]

Mr. Wilson argues that this principle applies in
dangerous offender proceedings. He relies on this courts decision in
Ficko
v. Ontario (Registrar of Motor Vehicles)
(1989), 33 O.A.C. 120 (C.A.), to
buttress his argument. He contends that Lord Cokes principle is so fundamental
that it can be removed only by the kind of clearly designed statutory provision
found in the
Highway Traffic Act
, R.S.O. 1980, c. 198, s. 26. At the
time, this provision specified that in imposing licence suspensions, attention
is to be paid solely to the sequence of convictions, not the sequence of the
commission of offences. He says that there is no such language in
Criminal
Code
, R.S.C., 1985, c. C-46, Part XXIV, dealing with dangerous offenders.

[63]

Mr. Wilson therefore argues the trial judge
erred in finding him to be a dangerous offender. He argues that the trial judge
should not have relied on crimes committed subsequent to the predicate offences
linked to the dangerous offender designation.

[64]

I disagree. It is entirely appropriate, and
necessary, to consider subsequently committed offences when considering
dangerousness. Hence, Lord Cokes principle does not apply in dangerous
offender proceedings. The British Columbia Court of Appeal arrived at this
conclusion in
Hexamer
, at para. 174, in a slightly different context.
There, the appellant argued that it contravenes Lord Cokes principle to even
bring a dangerous offender application with respect to a first offence. The British
Columbia Court of Appeal rejected the argument as unsupported by precedent, and
because of its inconsistency with the elaborate dangerous offender sentencing
scheme. I agree and will provide some elaboration.

[65]

Mr. Wilsons submission fails to recognize that sentencing
dangerous offenders under
Criminal Code
, Part XXIV [dangerous
offender sentencing], differs in material ways from other sentencing proceedings
governed by
Criminal Code
,

Part XXIII [ordinary sentencing].
Although some of the purposes of ordinary sentencing spelled out in s. 718 are forward-looking,
the fundamental principle of sentencing in s. 718 demands that the sentence
imposed be proportionate to the gravity of the offence being sentenced and the
degree of responsibility of the offender. When making these determinations and
imposing a fit sentence, the focus is on circumstances at the time of the
offence.

[66]

In marked contrast, dangerous offender
sentencing, while not disregarding these considerations, focuses on future societal
protection from demonstrated threats to life, safety, or the physical or mental
well-being of other persons. Although dangerous offender sentencing is
triggered by proof of a specific designated serious personal injury offence, the
criteria for the designation goes well beyond the specific offence. It includes:
(1) a proved pattern of repetitive behaviour of which the designated offence
forms part; (2) a pattern of persistent aggressive behaviour; or (3) behaviour
that is of such a brutal nature as to compel the conclusion that the
offenders behaviour in the future is unlikely to be inhibited by normal
standards of behavioural restraint. Whereas subsequent convictions are not
relevant in ordinary sentencing in determining the proportional fitness of the
sentence for an offence, subsequent convictions are of utmost relevance in dangerous
offender sentencing in establishing patterns of behaviour and evaluating future
risks to public safety. Put simply, the purpose of Lord Cokes principle does
not apply in dangerous offender proceedings because its mischief is not raised in
dangerous offender sentencing.

[67]

Second, even with ordinary sentencing, Lord
Cokes principle prevents using subsequent offences as aggravating factors in
determining a fit sentence. It does not prohibit reliance on earlier
convictions as evidence of the character or rehabilitative potential of the
accused:
R. v. Finelli
, [2008] O.J. No. 2537 (S.C.), at para. 44;
R.
v. Cuff
, 2003 NLSCTD 49, 224 Nfld. & P.E.I.R. 322, at para. 28, appeal
allowed in part for other reasons, 2004 NLCA 38, 238 Nfld. & P.E.I.R. 14. Here,
the subsequent convictions were not being used as factors that aggravate the
seriousness of the earlier offence. They were used in assessing Mr. Wilsons
dangerousness according to the statutory criteria.

[68]

It follows that appeal counsel oversimplifies matters
by arguing that only clear statutory language can set aside Lord Cokes
principle. As the British Columbia Court of Appeal recently reaffirmed in
Hexamer
,
at para. 171, Lord Cokes principle can be ousted by necessary implication. By
necessary implication, the principle does not operate where its application
will not serve its purpose.

[69]

Nor do I agree with Mr. Wilson that, by
implication, s. 752.01 of the
Criminal Code
supports the view that
Lord Cokes principle is to apply to dangerous offender proceedings. That
section, imposing a duty on the prosecutor to advise the court in the case of
some dangerous offender proceedings, provides:

752.01
If the prosecutor is of the opinion that an offence for which
an offender is convicted is a serious personal injury offence that is a
designated offence and that the offender was
convicted
previously at least twice of a designated offence
and was sentenced to
at least two years of imprisonment for each of those convictions, the
prosecutor shall advise the court, as soon as feasible after the finding of
guilt and in any event before sentence is imposed, whether the prosecutor
intends to make an application under subsection 752.1(1). [Emphasis added.]

[70]

The reference in this section to convicted
previously at least twice of a designated offence cannot be taken to reflect Parliaments
view that later convictions cannot be considered in a dangerous offender
proceeding involving an earlier offence. The language of this provision is entirely
capable of including previous convictions for subsequent offences. Interpreted
purposively, that is undoubtedly how it should be read. A dangerous offender
designation cannot realistically depend on the fortuity of the order in which offences
are identified and prosecuted.

[71]

I would therefore dismiss this ground of appeal.

CONCLUSION

[72]

I would dismiss both the conviction appeal and
the sentence appeal.

Released: January 6, 2019

DB

David
M. Paciocco J.A.

I
agree M.L. Benotto J.A.

I
agree David Brown J.A.




