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Criminal - Sentencing - Dangerous Offender. R. v. Wong
In R. v. Wong (Ont CA, 2023) the Court of Appeal considers elements of a criminal dangerous offender finding under CCC 753, as part of the sentencing stage:[29] As stated by this court in R. v. Sawyer, 2015 ONCA 602, 127 O.R. (3d) 686, at para. 26, appellate review of a dangerous offender designation is concerned with whether the court below made any legal errors and whether the dangerous offender designation was reasonable. In addition, while this court owes deference to the sentencing judge’s findings of fact and credibility, “appellate review of a dangerous offender designation is more robust than on a ‘regular’ sentence appeal”. Nevertheless, the sentencing judge’s factual and credibility findings are entitled to deference: Sawyer, at para. 26.
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[31] Pursuant to Part XXIV of the Criminal Code, there are two stages to dangerous offender proceedings: R. v. Boutilier, 2017 SCC 64, [2017] 2 S.C.R. 936, at paras. 13-15. The first stage, as set out in s. 753(1), is referred to as the “designation stage” and is concerned with whether the statutory requirements are met for an offender to be designated as dangerous. The second stage is referred to as the “sentencing stage”, and is governed by ss. 753(4) and (4.1) of the Criminal Code. The issues on this appeal focus on the designation stage and whether the sentencing judge made any errors in designating Mr. Wong as a dangerous offender.
[32] Section 753(1) sets out the requirements for a court to designate an offender as dangerous. In this case, subs. (i) and (ii) of s. 753(1)(a) are the relevant provisions: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 [33] As part of these statutory requirements, both ss. 753(1)(a)(i) and (ii) require the Crown to demonstrate that the predicate offence forms part of a “pattern”. Under s. 753(1)(a)(i), the Crown must demonstrate that the predicate offence forms part of a “pattern of repetitive behaviour” that shows a lack of restraint, and that the unrestrained behaviour has “a likelihood of causing death or injury to other persons, or inflicting severe psychological damage on other persons”. Under s. 753(1)(a)(ii), the Crown must show a “pattern of persistent aggressive behaviour” that includes the predicate offence and that shows substantial indifference to the reasonably foreseeable consequences of the behaviour.
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(1) Pattern of repetitive behaviour under s. 753(1)(a)(i)
[36] For the purposes of s. 753(1)(a)(i), a pattern of repetitive behaviour is a pattern that contains “enough of the same elements of unrestrained dangerous conduct to be able to predict that the offender will likely offend in the same way in the future. … However, the offences need not be the same in every detail; that would unduly restrain the application of the section”: R. v. Hogg, 2011 ONCA 840, 287 O.A.C. 82, at para. 40; R. v. Szostak, 2014 ONCA 15, 118 O.R. (3d) 401, at para. 56. “Differences in the details of the offences will not be relevant if the predicate and past offences represent [as s. 753(1)(a)(i) requires] ‘a pattern of repetitive behaviour by the offender … 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’”: R. v. Brissard, 2017 ONCA 891, 356 C.C.C. (3d) 494, at para. 57.
[37] In R. v. Gibson, 2021 ONCA 530, 157 O.R. (3d) 597, at para. 228, this court emphasized that the requirement for a pattern refers to a pattern of behaviour and not a pattern of offences:The statutory requirements demand proof of a pattern of behaviour, not a pattern of offences or convictions. In its ordinary, everyday sense, a pattern refers to an arrangement or order discernible in, among other things, objects, actions or ideas. As used in s. 753(1), a pattern refers to actions, not thoughts. The required pattern is based not solely on the number of offences, but also on the elements of similarity in the offender’s behaviour. [Emphasis added.] ....
[42] As reviewed above, the requirement for a pattern in s. 753(1)(a) does not focus on prior offences but on prior behaviour. Here, the sentencing judge did not just rely on the weapons possession offences in the abstract. Rather, she carefully explained how the circumstances of those offences formed part of a repetitive pattern with the predicate offences. She explained the behavioural commonalities between all offences, including that Mr. Wong was carrying a loaded firearm in public places in the context of gang affiliated drug transactions, and that he used a firearm in committing the predicate offences. Again, the sentencing judge was not only focused on the weapons possession convictions, but on Mr. Wong’s behaviour.
[43] In addition, there is no requirement that the pattern of behaviour involve the use of force or actual violence. This is clear from the definition of “serious personal injury offence” in s. 752 of the Criminal Code which includes conduct that endangers or is likely to endanger the life or safety of others:serious personal injury offence means
(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 [Emphasis added.] [44] Notably, in R. v. Steele, 2014 SCC 61, [2014] 3 S.C.R. 138, at para. 51, in addressing the meaning of “violence” in this definition, the Supreme Court stated that, to qualify as a “serious personal injury offence”, an offence does not always require the actual use of force. Rather, “judicial interpretations of the term ‘violence’ suggests that the focus is on the harm caused, attempted or threatened rather than on the force that was applied”. The court also emphasized that “[c]ontext will be paramount”.
[45] In R. v. Neve, 1999 ABCA 206, 71 Alta. L.R. (3d) 92, which is often cited for its comprehensive review of the requirements for designation of a dangerous offender, and which the sentencing judge relied on in this case, the Court of Appeal for Alberta explained the types of behaviour that could form part of a pattern having regard to the definition of “serious personal injury offence”:Does all criminal behaviour form part of the pattern? In our view, it does not. We read s.753(a) as requiring that the court be satisfied on two points: (a) that the predicate offence is part of a pattern of behaviour which has involved violent, aggressive or brutal conduct; and (b) that it is likely that this pattern of conduct will continue and will lead to conduct endangering the life, safety or physical well-being of others: see Lyons, supra. Since a predicate offence under s.753(a) must be a “serious personal injury offence” (meaning that it itself must meet either a violence or endangerment requirement under s.752(a)), it follows logically that the past behaviour must also have involved some degree of violence or attempted violence or endangerment or likely endangerment (whether more or less serious than the predicate offence). Otherwise, the predicate offence would not be part of that pattern. [Emphasis added.] ....
[51] 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. Rather, it requires a pattern of aggressive behaviour that shows indifference to its impact on others. ....
(3) Conclusion on issue 1
[54] Ultimately, the sentencing judge did not only rely on the convictions for prior firearm possession offences in finding patterns under ss. 753(1)(a)(i) and (ii) of the Criminal Code. Rather, there was extensive evidence that supported her finding that the appellant’s behaviour formed both part of a repetitive pattern and a pattern of aggression, and that he met the other criteria under these subsections.
[55] While Mr. Wong was young at the time he committed the predicate offences, his aggressive and impulsive behaviour has been persistent since the age of 13. The predicate offences represented a dramatic escalation in that behaviour, and clearly supported a finding that Mr. Wong has difficulty restraining himself and that he is indifferent to the consequences of his behaviour. In the circumstances, the sentencing judge’s determination that the appellant should be designated as a dangerous offender was not unreasonable.
[56] I would emphasize that the sentencing judge’s decision and this decision on appeal should not be taken as suggesting that, on their own, convictions for possession of a firearm followed by a violent offence, including where the person is gang-involved, would be sufficient to designate that person as a dangerous offender. However, in this case, given all the circumstances of Mr. Wong’s history and the nature of the predicate offences, the sentencing judge’s decision to designate Mr. Wong as a dangerous offender was not unreasonable.
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[58] The strict rules of evidence that apply to a trial do not govern sentencing proceedings. At the sentencing stage, the objective is to ensure that the judge has access to the “fullest possible information concerning the background of the [offender]”: R. v. Gardiner, 1982 CanLII 30 (SCC), [1982] 2 S.C.R. 368, at p. 414. In the context of a dangerous offender application, the importance of ensuring that the sentencing judge has the fullest possible information about the offender is heightened: R. v. Jones, 1994 CanLII 85 (SCC), [1994] 2 S.C.R. 229, at p. 290; and R. v. Williams, 2018 ONCA 437, at para. 48.
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