



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. 486.5(1), (2), (2.1), (3), (4), (5), (6), (7),
    (8) or (9) or 486.6(1) or (2) of the
Criminal Code
shall continue.  These sections of the
Criminal
    Code
provide:

486.5 (1)     Unless an order is
    made under section 486.4, on application of the prosecutor in respect of a
    victim or a witness, or on application of a victim or a witness, a judge or
    justice may make an order directing that any information that could identify
    the victim or witness shall not be published in any document or broadcast or
    transmitted in any way if the judge or justice is of the opinion that the order
    is in the interest of the proper administration of justice.

(2)     On application of the
    prosecutor in respect of a justice system participant who is involved in
    proceedings in respect of an offence referred to in subsection (2.1), or on
    application of such a justice system participant, a judge or justice may make
    an order directing that any information that could identify the justice system
    participant shall not be published in any document or broadcast or transmitted
    in any way if the judge or justice is satisfied that the order is in the
    interest of the proper administration of justice.

(2.1) The offences for the purposes
    of subsection (2) are

(a) an offence under section
    423.1, 467.11, 467.111, 467.12, or 467.13, or a serious offence committed for
    the benefit of, at the direction of, or in association with, a criminal
    organization;

(b) a terrorism offence;

(c) an offence under subsection
    16(1) or (2), 17(1), 19(1), 20(1) or 22(1) of the
Security of Information
    Act
; or

(d) an offence under subsection
    21(1) or section 23 of the
Security of Information Act
that is committed
    in relation to an offence referred to in paragraph (c).

(3)     An order made under this
    section does not apply in respect of the disclosure of information in the
    course of the administration of justice if it is not the purpose of the
    disclosure to make the information known in the community.

(4)     An applicant for an order
    shall

(a) apply in writing to the
    presiding judge or justice or, if the judge or justice has not been determined,
    to a judge of a superior court of criminal jurisdiction in the judicial
    district where the proceedings will take place; and

(b) provide notice of the
    application to the prosecutor, the accused and any other person affected by the
    order that the judge or justice specifies.

(5)     An applicant for an order
    shall set out the grounds on which the applicant relies to establish that the
    order is necessary for the proper administration of justice.

(6)     The judge or justice may
    hold a hearing to determine whether an order should be made, and the hearing
    may be in private.

(7)     In determining whether to
    make an order, the judge or justice shall consider

(a) the right to a fair and
    public hearing;

(b) whether there is a real and
    substantial risk that the victim, witness or justice system participant would
    suffer harm if their identity were disclosed;

(c) whether the victim, witness
    or justice system participant needs the order for their security or to protect
    them from intimidation or retaliation;

(d) societys interest in
    encouraging the reporting of offences and the participation of victims,
    witnesses and justice system participants in the criminal justice process;

(e) whether effective
    alternatives are available to protect the identity of the victim, witness or
    justice system participant;

(f) the salutary and deleterious
    effects of the proposed order;

(g) the impact of the proposed
    order on the freedom of
expression
of those affected by it; and

(h) any other factor that the
    judge or justice considers relevant.

(8)     An order may be subject to
    any conditions that the judge or justice thinks fit.

(9)     Unless the judge or justice
    refuses to make an order, no person shall publish in any document or broadcast
    or transmit in any way

(a) the contents of an
    application;

(b) any evidence taken,
    information given or submissions made at a hearing under subsection (6); or

(c) any other information that
    could identify the person to whom the application relates as a victim, witness
    or justice system participant in the proceedings.  2005, c. 32, s. 15; 2015, c.
    13, s. 19

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. Brown, 2021 ONCA 320

DATE: 20210514

DOCKET: C65997

Watt, Hoy and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Triston
    Brown

Appellant

Richard Litkowski, for the appellant

Jennifer Epstein, for the respondent

Heard: March 25, 2021 by video conference

On appeal from
    the convictions entered on June 3, 2015, by Justice John B. McMahon of the
    Superior Court of Justice, sitting with a jury, and from the convictions
    entered on July 14, 2015, sitting without a jury, and from the sentence imposed
    on
September 5, 2017.

Nordheimer J.A.:

[1]

Triston Brown appeals from his convictions on a variety
    of firearms offences along with three convictions for breaches of weapons
    prohibition orders. The appellant also appeals from his designation as a
    dangerous offender. Finally, the appellant seeks leave to appeal from his
    sentence of 11 years to be followed by a long-term supervision order for 10
    years.

Background

[2]

The charges stem from events that took place on
    July 22, 2010 in the City of Toronto. There was a shooting on Bleecker Street
    that was captured by surveillance cameras at a nearby building. Based on the
    timestamp on the surveillance footage, the shooting took place at 9:14 p.m. The
    Crowns case was largely circumstantial  there was no direct evidence as to
    who the shooter was. The main Crown witness was a female friend of the appellant.
    The police located the gun used in the shooting in the friends bedroom.

[3]

The video from the surveillance camera showed a
    man running past two people sitting on a bench, followed by the shooter who was
    firing in the direction of the running man. The video is too blurry to make out
    faces, but the shooter appears to be wearing a white t-shirt with a design,
    dark pants, and light shoes. A second set of videos captures the womans apartment
    building. One video shows the appellant (admitted to be him) entering the
    building on his bicycle. He is wearing a white t-shirt with a design, dark
    pants, and light shoes. After entering the womans apartment, the appellant comes
    out wearing a tank top instead of the t-shirt.

[4]

The appellant went to a park with the woman and
    her two children. While at the park, uniformed police officers approached them
    and asked if they knew anything about a recent shooting, to which they answered
    in the negative. After the police left, the woman, who knew from a prior
    incident that the appellant had a gun, asked the appellant where his gun was.
    The appellant said that he had put the gun in her bedroom under clothes on the
    shelf, or something like that. The appellant left shortly after.

[5]

When the woman returned home, she found the gun
    under her clothes on the shelf. She tried to contact the appellant to come
    retrieve the weapon, but he refused to come and then did not further respond.
    She then left her family in the apartment and locked-up the appellants bike,
    that he had left at her apartment, at the back of the building. When she
    returned, she was met by police who wanted to know where the gun was. The woman
    testified that she lied to the police and told them that she did not know about
    a gun or a shooting. She said that the police then threatened to take her
    children away, prompting her to recant immediately, and describe where the gun
    was in her bedroom. She was eventually arrested. Shortly after her arrest, she
    told the police that the gun was the property of the appellant.

[6]

A forensic scientist at the Centre of Forensic
    Sciences testified to a practical certainty that the gun recovered from the apartment
    fired the shell casings recovered at the scene of the shooting. A fingerprint
    examiner testified that no identifiable prints could be lifted from the gun.
    The magazine was also tested for fingerprints. Although some prints were found,
    the samples were insufficient to determine a match.

[7]

At trial, the appellant testified in his own
    defence. He told the court that at no time did he possess the gun and that he
    knew nothing about the gun located in the womans bedroom. The appellant denied
    placing it there, and further denied any involvement in the shooting. The
    appellant did, however, acknowledge going to the womans apartment on the
    evening in question and to changing his shirt.

[8]

Another female friend of the appellant also gave
    evidence. On the evening in question, she said that she ran into the appellant
    at a barbeque on Bleecker Street. She testified that she was talking to the appellant
    for three to four minutes when she heard gunfire. Terrified, she ran south down
    Bleecker. She noticed that the appellant ran east.

[9]

The jury convicted the appellant of the firearms
    offences arising from the shooting. However, the jury acquitted the appellant of
    a charge of attempted murder. Subsequent to the jurys findings, the trial
    judge conducted a judge alone trial on three counts of breaches of weapons
    prohibition orders, as had been earlier agreed. He entered convictions on each
    of those counts.

[10]

The respondent then sought, and was granted, an
    order requiring the appellant to be assessed for the purpose of a dangerous
    offender application. The dangerous offender hearing proceeded before the trial
    judge in April, May and June 2017. On July 26, 2017, the trial judge gave his
    ruling finding the appellant to be a dangerous offender:
R. v. Brown
,
    [2017] O.J. No. 7276 (S.C.). He also imposed a long-term supervision order for
    a period of 10 years and decided to impose a determinate sentence of
    imprisonment. On September 5, 2017, the trial judge sentenced the appellant to
    a term of imprisonment of 11 years.

Grounds of Appeal

[11]

The appellant raises the following grounds of
    appeal:

1.

The trial judge failed to draft an organized
    jury charge, and thereby failed to properly assist the jury;

2.

With respect to the dangerous offender hearing,
    the sentencing judge failed to consider future treatment prospects at the
    designation stage;

3.

The sentencing judge further failed to consider
    the appellants intractability at the designation phase; and

4.

The sentencing judge misapplied the totality
    principle.

The conviction appeal

[12]

I will deal with the conviction and sentence
    appeals first because, in my view, they can be dealt with fairly briefly.

[13]

The main challenge to the jury charge is that
    the trial judge joined together certain charges in a manner that the appellant
    says would have confused the jury. I do not agree. The jury had six charges to
    consider: three relating to possession and careless storage of the gun found in
    the womans apartment (counts 3, 4, and 5), and three relating to the shooting
    itself (counts 1, 2, and 6). The trial judge grouped these charges together in
    his instructions, which he was entitled to do.

[14]

The trial judge explained to the jury why he was
    taking this approach. He pointed out that the issue of possession of the gun
    was a central element common to a number of the counts. The trial judge was
    aware that, if the jury was not satisfied beyond a reasonable doubt that the
    gun found in the apartment belonged to the appellant, there would be little
    left to the Crowns case. Indeed, the trial judge instructed the jury that, if
    they were not satisfied on this key issue, they had to acquit the appellant on
    all charges.

[15]

While that may not be the common approach to a
    jury charge, the general tendency being to follow a count by count outline, in
    this case, and contrary to the appellants submissions, the trial judges
    approach assisted the jury in focussing on the central question that they
    needed to decide. Structuring the jury charge in this fashion was also a matter
    entirely within the discretion of the trial judge. As Bastarache J. said in
R.
    v. Daley
, 2007 SCC 53, [2007] 3 S.C.R. 523, at para. 30: The particular
    words used, or the sequence followed, is a matter within the discretion of the
    trial judge and will depend on the particular circumstances of the case.

[16]

The trial judge then set out the elements of the
    possession offences, ultimately advising that the only issue in play for those
    charges was whether the appellant possessed the gun, as the other elements had
    already been admitted by counsel. From there, the trial judge moved on to the
    counts related to the shooting. He highlighted the crucial question on those
    counts: was the appellant the shooter from the video? Following this approach would
    again assist the jury in focussing on the core issue.

[17]

During his charge, the trial judge reviewed all
    of the relevant evidence. There is no foundation for the suggestion that the
    trial judge did not adequately address the defence evidence. There is also no substance
    to the complaint that the trial judge improperly included an instruction on
    constructive possession. While it could be debated whether that instruction was
    necessary on the facts of this case, the trial judge was entitled to conclude
    that there was a sufficient basis, on the facts, to warrant including this
    particular instruction. Further, and in any event, the brief reference to it in
    the instructions did not engender any prejudice to the appellant.

[18]

I would dismiss the conviction appeal.

The sentence appeal

[19]

The appellant complains that the trial judge
    failed to respect the totality principle in imposing a sentence of 11 years, as
    the Crown had proposed, rather than a sentence of 9 years, as the defence had
    suggested. The appellant was sentenced to nine years on his gun-related charges
    and two years for the weapons prohibition breaches, with the latter to be
    served consecutively. The appellant now seeks a reduction to a global sentence
    of 10 years.

[20]

I see no merit in this complaint. The trial
    judge expressly mentioned the totality principle in his reasons. He said: In
    the circumstances, I am satisfied the position taken by the Crown of 11 years
    is both fair and just and still reflects the principle of totality.

[21]

The appellant fails to point to any real error
    of law or of principle in the trial judges sentencing reasons. The mere fact
    that the trial judge agreed with the sentence proposed by the Crown does not
    constitute one. The sentence is also not one that is demonstrably unfit for the
    counts for which the appellant was found guilty. Consequently, there is no proper
    foundation for this court to intervene:
R. v. Lacasse
, 2015 SCC 64,
    [2015] 3 S.C.R. 1089, at paras. 11, 41, and 44.

[22]

While I would grant leave to appeal the sentence,
    I would dismiss the sentence appeal.

The dangerous offender designation

[23]

I now turn to the more difficult issue regarding
    the designation of the appellant as a dangerous offender. The respondent
    concedes that there is an error of law in the trial judges reasoning through
    which he concluded that the appellant was a dangerous offender. That error
    arises from the failure of the trial judge to consider the future treatment prospects
    and intractability of the appellant in his analysis regarding the dangerous
    offender designation as required by s. 753(1) of the
Criminal Code
, R.S.C.
    1985, c. C-46:

see
R. v. Boutilier
, 2017 SCC 64, [2017] 2 S.C.R.
    936, at paras. 26-27, 36 and 46. I would point out that the Supreme Court of
    Canada did not render its decision in
Boutilier
, until after the trial
    judge had rendered his decision in this case. In
Boutilier
, the
    Supreme Court of Canada clarified, and confirmed, that this has always been a
    requirement of the designation analysis.

[24]

To be clear, the decision in
Boutilier
confirms that courts are required to consider the issue of control of future
    risk in the community at both the designation and sentencing phases of
    dangerous offender proceedings: Clayton C. Ruby
et al., Sentencing
,
    9th ed. (Toronto: LexisNexis Canada, 2017), at
§
17.49 (QL). This is true notwithstanding the 2008 amendments to the
Criminal

Code
provisions respecting dangerous offenders: see Ruby
et al
.
,
    at
§§ 17.49-17.50.

[25]

In light of this error of law, it must be
    determined whether the trial judges designation of the appellant as a
    dangerous offender is nonetheless reasonable. I note, on this point, that the
    standard of review on appeal from a dangerous offender designation is different
    than it is from a regular sentence appeal. As Cromwell J. said in
R. v.
    Sipos
, 2014 SCC 47, [2014] 2 S.C.R. 423, at para. 26: The Court in
Currie
held that appellate review of a dangerous offender designation is somewhat more
    robust.

[26]

On the issue of future treatability, one of the
    first problems that arises is that the appellant did not participate in either
    of the assessments that were undertaken. The conclusions contained in the
    assessments must be considered in light of that fact. Dr. Penney, the
    psychologist, did not directly address this issue because she was unable to
    ascertain the appellants willingness to attend future treatment programs. Dr.
    Wilkie, the psychiatrist, did find that there was a reasonable possibility
    that [the appellant] could respond to interventions designed to manage his risk
    in the community. Dr. Wilkie also considered the appellants prognosis for
    successful treatment to be average compared to other offenders. Dr. Wilkie further
    noted that there is a general decrease in violent offending conduct in
    individuals after the age of 40 to 45. The appellant is currently 37 years old.

[27]

The respondent contends that the psychiatric/psychological
    evidence on future treatability was not so compelling as to warrant a
    conclusion different from the finding that the designation of a dangerous
    offender was made out. This language is taken from
Boutilier
where C
ô
t
é
J. said, at para. 45:

Thus, offenders will not be designated as
    dangerous if their treatment prospects are so compelling that the sentencing judge
    cannot conclude beyond a reasonable doubt that they present a high likelihood
    of harmful recidivism or that their violent pattern is intractable. [Citation
    omitted.]

[28]

Contrary to the respondents submissions, I do
    not consider C
ô
t
é J.s
use of the words so compelling as being
    intended to establish a new and extremely high bar applicable to this factor in
    the overall determination of the dangerous offender question. She does not
    suggest that she was intending to introduce any special hurdle for an
    individual to surmount, or special test to be applied, when their future
    treatability is taken into account in the dangerous offender analysis. Rather, C
ô
t
é J. is
simply explaining that evidence about treatability, that is not
    sufficiently cogent as to affect a trial judges conclusion on dangerousness,
    may still be relevant in deciding on the sentence that is required to
    adequately protect the public. Nevertheless, future treatability is still but
    one factor to be considered in the overall assessment. I also note, on this
    point, that the Crown bears the onus of establishing that the dangerous
    offender designation is made out, a conclusion which must, of course, be established
    beyond a reasonable doubt.

[29]

Further, reading C
ô
t
é J.s
reasons as a
    whole, the thrust of the decision is to reinforce the point that designating an
    individual as a dangerous offender is a finding of last resort. In other words,
    it is a finding that should only be arrived at if no lesser determination is
    appropriate in all the circumstances. This approach is consistent with C
ô
t
é J.s
explanation of the rationale as to why it was important for future
    treatment to be considered as part of the designation process. She concluded on
    this issue, at para. 46:

In sum, a finding of dangerousness has always
    required that the Crown demonstrate, beyond a reasonable doubt, a high
    likelihood of harmful recidivism and the intractability of the violent pattern
    of conduct. A prospective assessment of dangerousness ensures that only
    offenders who pose a tremendous future risk are designated as dangerous and
    face the possibility of being sentenced to an indeterminate detention.

[30]

The respondent contends that there is no
    reasonable possibility that the finding of dangerousness would be any
    different, had the trial judge considered treatment prospects and
    intractability at the designation stage. I do not agree. To the contrary, the
    trial judge expressly referred to recidivism and intractability in determining
    that the risk posed by the appellant could be managed through a determinate sentence
    with a long-term supervision order.

[31]

Had the trial judge considered the appellants future
    treatment prospects at the designation stage, it would follow from the
    considerations on which he relied, to impose the sentence that he did, that he
    would have likely chosen to designate the appellant as a long-term offender. That
    designation would still have allowed the trial judge to impose the sentence that
    he did.

[32]

This conclusion is consistent with what the
    trial judge said about the future treatability of the appellant. He mentioned:

·

The psychiatrists opinion that there was a
    reasonable possibility that the appellant could respond to interventions
    designed to manage his risk in the community;

·

The general decrease in violent offending
    conduct in individuals after the age of 40 to 45. The trial judge noted that
    the appellant would not likely be released from custody before he was in his
    early 40s;

·

The appellants score on the psychopathy scale
    placed him at the same risk as approximately 50 percent of all people in the
    prison population;

·

That the appellant had made significant headway
    in addressing his behavioural issues, progress that he had not made in the past;
    and,

·

That, while the appellant had not taken
    advantage of courses and programs in the past, there was now concrete evidence
    that he had done so.

[33]

All of this speaks to a more positive, if still
    guarded, view of the appellants future treatability than a dangerous offender designation
    would warrant.

[34]

I do not accept that the finding of
    dangerousness would have remained the same had the trial judge considered the
    appellants treatment prospects at the designation stage. To the contrary,
    given what the trial judge said about the prospects of managing the risks posed
    by the appellant in the community, and given that the trial judge said he would
    consider the long-term offender provisions pursuant to s. 753(5) of the
Criminal

Code

if the Crown did not meet its onus under the dangerous
    offender criteria, I view it as probable that he would have designated the
    appellant as a long-term offender.

[35]

Given that conclusion, and the legal error in
    the trial judges process, the dangerous offender designation must be set
    aside. I do not consider it necessary, though, to order a rehearing of the
    dangerous offender application. Given my conclusion as to what the trial judge
    would have done, but for the error identified, I consider it appropriate to substitute
    a designation of the appellant as a long-term offender under s. 759(3)(a)(i) of
    the
Criminal

Code
. In conjunction with that
    designation, I would leave intact the sentence imposed by the trial judge and
    the accompanying long-term supervision order.

Conclusion

[36]

I would dismiss the conviction appeal. I would
    grant leave to appeal the sentence but dismiss the sentence appeal. I would
    allow the appeal on the dangerous offender designation, set aside that
    designation, and substitute a designation of long-term offender. I would not
    interfere with the 11 year determinate sentence or the 10 year long-term
    supervision order.

Released: May 14, 2021 D.W.

I.V.B.
    Nordheimer J.A.

I
    agree. David Watt J.A.

I
    agree. Alexandra Hoy J.A.


