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Criminal - Sentencing - Dangerous Offender (2). R. v. Ahmed
In R. v. Ahmed (Ont CA, 2023) the Court of Appeal focusses on the 'pattern of repetitive behaviour' element of the dangerous offender designation:[114] Even if the three sexual assaults were not sufficient, standing alone, to cross the threshold of showing “a pattern of persistent aggressive behaviour”, adding the 2015 assault causing bodily harm offence to these offences clearly pushed the appellant’s behaviour across this threshold. The fact of a four-year gap between the offences does not preclude such a finding: see R. v. Smith, 2023 ONCA 575, at paras. 33-37. Moreover, the fact that the appellant had been incarcerated since February 2012, which was mere months after he committed the second and third sexual assaults, and the further fact that he chose to commit a serious personal injury offence while incarcerated, and while facing dangerous offender proceedings, demonstrates a high level of persistence in engaging in aggressive behaviour.
[115] Appeal amicus argues that important differences in the circumstances of the sexual assaults committed by the appellant undermine the conclusion that they meet the definition of “a pattern of repetitive behaviour”. For example, she points out that the appellant was acquainted with the victim of the 2009 sexual assault. In contrast, he first met the victim of the May 2011 sexual assault a short time before it happened and then encountered her again, apparently by happenstance, at a party. The August 2011 sexual assault was effectively a home invasion perpetrated against a stranger.
[116] Appeal amicus relies on R. v. Walsh, 2017 BCCA 195, 348 C.C.C. (3d) 1, at para. 44, where the court noted that, in making a finding of “a pattern of repetitive behaviour” based on two incidents, the sentencing judge had incorrectly stated that “some similarity” in behaviours would satisfy the requirement of “a pattern of repetitive behaviour” – whereas what is actually required to find such a pattern based on so few incidents is “a very high degree of similarity”. In this case, says appeal amicus, the offences are quite different in nature.
[117] I do not view the distinctions on which appeal amicus relies as being significant. This court has considered what is meant by “a pattern of repetitive behaviour” on several occasions. In R. v. Hogg, 2011 ONCA 840, this court quoted extensively from the explanation of the meaning of that phrase set out in R. v. Dow, 1999 BCCA 177, 134 C.C.C. (3d) 232, a decision relied on in Walsh.
[118] Among other things, in Dow, at paras. 22-25, the court discussed the nature of a relevant pattern:So there must be a pattern revealed by repetitive behaviour; the pattern must contain an element that the dangerous behaviour was not restrained in the past; and there must be a likelihood that the same behaviour in the future will not be restrained and will cause death or injury.
... [T]hose three elements serve to define the relevant characteristics of the pattern for the purposes of subpara. 753(a)(i).
... [T]he significance and the relevance of common elements of the pattern must be determined by whether they tend to show first, repetitive behaviour second, that there has been a failure in each case to restrain the behaviour, and third, that there has been injury to other persons arising from that failure.
I add that it is the very essence of a pattern that there be a number of significant relevant similarities between each example of the pattern that is being considered, but that, at the same time, there may be differences between each example, some of them quite distinctive, so long as the differences leave the key significant relevant elements of the pattern in place. [Emphasis added.] [119] Importantly, in Dow, which involved four main incidents of sexual assault or attempted sexual assault, neither the fact that Mr. Dow did not penetrate his most recent victim, nor the fact that he knew one of his victims, but not the others, was sufficient to negative the existence of a pattern of repetitive behaviour.
[120] In Hogg, at para. 40, after quoting from the explanation of the nature of a relevant pattern in Dow, this court concluded that the offences involved in a pattern of repetitive behaviour need not be the same in every detail. Rather, what is important is that the pattern “has to contain 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.”
[121] More recently, in R. v. Wong, 2023 ONCA 118, citing Hogg at para. 40 and R. v. Szostak, 2014 ONCA 15, 118 O.R. (3d) 401, at para. 56, this court said the following about the essential elements of “a pattern of repetitive behaviour” at para. 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 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. [Emphasis added.] . R. v. Ahmed
In R. v. Ahmed (Ont CA, 2023) the Court of Appeal considered the law of inadequate reasons, here in a criminal dangerous offender appeal:[102] Appeal amicus submits that the sentencing judge’s reasons for designating the appellant a dangerous offender were conclusory and that she failed to make the evidentiary findings necessary to support her conclusions that the appellant meets the statutory criteria for designation.
[103] As noted above, the sentencing judge found that the appellant meets the statutory criteria for designation under ss. 753(1)(a)(i) and (ii), and 753(1)(b) of the Criminal Code.
[104] In oral submissions, appeal amicus submitted that the sentencing judge failed to identify what patterns of conduct she relied on to support her findings under ss. 753(1)(a)(i) and (ii). Nor did the sentencing judge explain how she reached her conclusion under s. 753(1)(b). Appeal amicus submits such analysis and findings are essential because they allow the sentencing judge to assess the future risk a particular offender poses, which, in turn, is essential to determining the appropriate sentence to manage the offender’s risk.
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[106] I would not accept appeal amicus’s submissions on this point. The task of an appellate court in assessing the sufficiency of reasons is to determine “whether the reasons, read in context and as a whole, in light of the live issues at trial, explain what the trial judge decided and why they decided that way in a manner that permits effective appellate review”: R. v. G.F., 2021 SCC 20, 163 O.R. (3d) 480, at para. 69. In conducting this analysis, an appellate court may also look to the record. Even where the trial reasons do not explain the “what” and the “why”, where the answers to those questions are obvious from the record, there is no error: G.F., at para. 70.
[107] I acknowledge that the sentencing judge did not engage in an analysis of the meaning of the expressions “a pattern of repetitive behaviour” and “a pattern of persistent aggressive behaviour” in making her findings. However, in my view, such an analysis was unnecessary in the particular circumstances of this case. That the appellant meets these thresholds and qualified as a dangerous offender under all three sections under which the sentencing judge designated him was patent from the evidence the sentencing judge reviewed. Based on the totality of the evidence, there was no live issue that the appellant meets the criteria for designation as a dangerous offender under all three subsections. . R. v. Ahmed
In R. v. Ahmed (Ont CA, 2023) the Court of Appeal considered the SOR for a dangerous offender designation appeal:(1) The standard of review
[99] Under s. 759 of the Criminal Code, an individual designated as a dangerous offender can appeal their designation or sentence on any ground of law, fact, or mixed fact and law. The Supreme Court has held that although “appellate review of a dangerous offender designation is somewhat more robust” than the regular standard of review on a sentence, deference is still owed to the findings of the sentencing judge: Boutilier, at para. 81, quoting from R. v. Sipos, 2014 SCC 47, [2014] 2 S.C.R. 423, at para. 26. In an appeal under s. 759, errors of law are reviewed on a correctness standard and errors of fact are reviewed on a reasonableness standard: Boutilier, at para. 81.
[100] Even where there has been an error of law, in rare circumstances, a court of appeal may dismiss an appeal under s. 759(3)(b) where no substantial wrong or miscarriage of justice resulted from the error: Boutilier, at para. 82. Whether a miscarriage of justice arose is a question of law reviewed on a standard of correctness: Kahsai, at para. 68.
[101] A miscarriage of justice can arise from unfairness in fact or in appearance: Kahsai, at para. 67, citing R. v Khan, 2001 SCC 86, [2001] 3 S.C.R. 823, at paras. 69 and 73. Where an appearance of unfairness, rather than actual prejudice, is alleged to result in a miscarriage of justice, the degree of unfairness must rise to a higher standard. An appellant would need to show that, considering the circumstances of the hearing as a whole, “a well-informed and objective person would find an appearance of unfairness so serious that it would shake their confidence in the administration of justice”: Kahsai, at paras. 68, 76-77. . R. v. Ahmed
In R. v. Ahmed (Ont CA, 2023) the Court of Appeal reviewed CCC dangerous offender provisions:B. RELEVANT STATUTORY FRAMEWORK
[17] To help appreciate the evidence and understand the issues, I will briefly explain the relevant dangerous offender provisions. Although only one hearing is held, a dangerous offender proceeding involves two stages: the designation stage and the penalty stage.
[18] The designation stage is governed by s. 753(1) of the Criminal Code, which provides four routes to designation. As only three of these routes are at issue in this case, I will set out the relevant provisions below, omitting s. 753(1)(a)(iii).
[19] As will be seen, the two routes at issue under ss. 753(1)(a)(i) and (ii) are premised on findings that i) the offender has been convicted of a serious personal injury offence, and ii) the offender constitutes a threat to the life, safety or physical or mental well-being of other persons based on evidence establishing one of two categories of behaviour, which must include a predicate offence.
[20] The available route under 753(1)(b) is premised on findings that i) the offender has been convicted of a serious personal injury offence, and ii) the offender by their conduct in a sexual matter, including a predicate offence, has shown a failure to control their sexual impulses and a likelihood of causing injury, pain or other evil to other persons through failure in the future to control their sexual impulses.
[21] The sections at issue read as follows: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, or
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(b) that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (b) of the definition of that expression in section 752 and the offender, by his or her conduct in any sexual matter including that involved in the commission of the offence for which he or she has been convicted, has shown a failure to control his or her sexual impulses and a likelihood of causing injury, pain or other evil to other persons through failure in the future to control his or her sexual impulses. [Emphasis added.] [22] There is no dispute in this case that the offences to which the appellant pleaded guilty included serious personal injury offences as defined in s. 752 of the Criminal Code, so I will not set out those definitions.
[23] The penalty phase of the DOH is governed by ss. 753(4) and (4.1), which give a sentencing judge three options: i) an indeterminate period of imprisonment, ii) a composite sentence consisting of a determinate period of imprisonment and an LTSO, and iii) a determinate sentence for the offence(s) of which the offender was convicted. Notably, s. 753(4.1) states that the sentencing judge shall impose an indeterminate period of imprisonment unless the sentencing judge is satisfied that there is a reasonable expectation that one of the other two options will adequately protect the public against the commission by the offender of murder or a serious personal injury offence:753 (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. [24] Under s. 757 of the Criminal Code, it is open to the court to admit evidence of an offender’s character or repute at a dangerous offender hearing. When tendered by the Crown such evidence often encompasses institutional records:757. Without prejudice to the right of the offender to tender evidence as to their character and repute, if the court thinks fit, evidence of character and repute may be admitted
(a) on the question of whether the offender is or is not a dangerous offender or a long-term offender; and
(b) in connection with a sentence to be imposed or an order to be made under this Part. . R. v. Wielgosz
In R. v. Wielgosz (Ont CA, 2023) the Court of Appeal considers 'intractibility', here in relation to a dangerous offender designation:[6] As described by the Supreme Court in Boutilier, at para. 46, for an offender to be found to be a dangerous offender pursuant to s. 753(1), the sentencing judge must be satisfied that the offender poses a high likelihood of harmful recidivism and that the pattern of their violent conduct is intractable. Intractability refers to behaviour that the offender is unable to surmount. This prospective risk assessment includes consideration of future treatment prospects: Boutilier, at paras. 27 and 46. .... . R. v. Tynes
In R. v. Tynes (Ont CA, 2022) the Court of Appeal considers a 'dangerous offender' appeal:[58] Part XXIV of the Criminal Code authorizes and governs the conduct of dangerous offender proceedings. The statutory scheme is divided into two stages. First, s. 753(1) lists the statutory requirements which must be met before an offender can be designated as dangerous. This is called the “designation stage”. Second, ss. 753(4) and (4.1) govern the penalty or “sentencing stage” for dangerous offenders: R. v. Boutilier, 2017 SCC 64, [2017] 2 S.C.R. 936, at paras. 13‑15.
[59] The appellant challenges the trial judge’s assessment in both stages of the dangerous offender proceeding. The standard of review on a dangerous offender appeal was articulated by this court in R. v. Sawyer, 2015 ONCA 602, 127 O.R. (3d) 686, at para. 26, as follows:Appellate review of a dangerous offender designation “is concerned with legal errors and whether the dangerous offender designation was reasonable”: R. v. Sipos, 2014 SCC 47, [2014] 2 S.C.R. 423, at para. 23. While deference is owed to the factual and credibility findings of the sentencing judge, appellate review of a dangerous offender designation is more robust than on a “regular” sentence appeal: Sipos, at paras. 25-26; R. v. Currie, 1997 CanLII 347 (SCC), [1997] 2 S.C.R. 260, [1997] S.C.J. No. 10, at para. 33. [Emphasis added.] The court continues in it's dangerous offender analysis at paras 60-76.
. R. v. F.C.
In R. v. F.C. (Ont CA, 2023) the Court of Appeal considered 'treatability' as an element of the dangerous offender determination:[1] The appellant was designated a dangerous offender and given an indeterminate sentence. He appeals from his sentence. The appellant raises one ground of appeal. He submits, that contrary to the holding in R. v. Boutilier, 2017 SCC 64, at paras. 42-45, the trial judge failed to consider the appellant’s treatability when determining whether he should be designated a dangerous offender under s. 753(1)(a) or (b). Counsel argues that the trial judge wrongly considered treatability only after he had decided the appellant should be designated a dangerous offender and turned his mind to the question of the appropriate penalty. Counsel maintains that Boutilier requires that treatability be considered at both the designation and penalty phases of the dangerous offender proceeding.
[2] We cannot agree with counsel’s submissions.
[3] Counsel for the appellant at the dangerous offender hearing identified the appellant’s treatability as the “singular issue” on the dangerous offender application. The trial judge, at paras. 119-20 of his reasons, referred to and relied on Boutilier to support the following:. Future treatment prospects, i.e., treatability, are relevant to an assessment of future risk and therefore relevant to whether a person should be designated a dangerous offender under s. 753(1)(a) or (b).
. Evidence of treatability is relevant to both the designation and penalty phases of the application. [4] The trial judge followed the law as laid down in Boutilier.
[5] We also agree with the respondent that if the trial judge did err and considered treatability only at the penalty stage of the application, the error caused no prejudice to the appellant.
[6] The trial judge was satisfied there was no realistic possibility the appellant would respond positively to treatment. The trial judge reviewed the evidence at some length and his factual findings offer strong support for his conclusion.
[7] Even if the trial judge erred in reaching the conclusion only in the context of a determination with respect to penalty, the same conclusion would inevitably have been drawn when deciding whether the appellant should be designated a dangerous offender. There is nothing in the evidence to suggest that a finding of untreatability would not have equal application at both the designation and penalty phases.
[8] Counsel also submits that when considering treatability, the trial judge confused “treatability with curability”. Once again, we cannot agree.
[9] The trial judge discussed the evidence referrable to treatability at length. Most of that evidence went strongly against the appellant. The trial judge made a single reference to curability, describing pedophilia as “incurable”.
[10] Curability is certainly relevant, although not determinative of treatability. As the remainder of the trial judge’s reasons demonstrate, he did not treat incurability as decisive, but instead looked to the prospects of controlling the risk posed by the appellant through a number of treatment modalities. The trial judge ultimately held: “There is no reasonable basis for believing the appellant’s risk can eventually be controlled in the community.” We would not interfere with that finding. . R. v. Smith
In R. v. Smith (Ont CA, 2023) the Court of Appeal considered a 'dangerous offender' on the meaning of the statutory phrasing "pattern of persistent aggressive behaviour" [CCC s.753(1)(a)(ii)]. In this quote the court reviews the SOR for 'dangerous offender' findings:ANALYSIS OF THE SENTENCING JUDGE’S REASONS
[52] To obtain a dangerous offender designation based on violent behaviour, the Crown must prove that: (1) the predicate offence is a serious personal injury offence; and (2) the offender represents “a threat to the life, safety or physical or mental well-being of other persons”: Boutilier, at paras. 17-18.
a. The Standard of Review of Dangerous Offender Applications
[53] Appellate review of a dangerous offender designation is focused on legal errors and whether the designation was reasonable: R. v. Sipos, 2014 SCC 47, [2014] 2 S.C.R. 423, at para. 23. The sentencing judge’s determinations of credibility and the appropriate sentence are entitled to deference: Boutilier, at paras. 81 and 88; R. v. Sawyer, 2015 ONCA 602, 127 O.R. (3d) 686, at para. 29; and R. v. Hunter, 2015 ABCA 276, 26 Alta. L.R. (6th) 348, at para. 5. While appellate review in dangerous offender cases is “somewhat more robust” than “regular” sentence appeals, it does not amount to a trial de novo of the dangerous offender application: Sipos, at paras. 23-27; Sawyer, at paras. 26-29; and Boutilier, at para. 81. . R. v. Smith
In R. v. Smith (Ont CA, 2023) the Court of Appeal considered a 'dangerous offender' on the meaning of the statutory phrasing "pattern of persistent aggressive behaviour" [CCC s.753(1)(a)(ii)]. In these quotes the court reviews some of the background behind the dangerous offender provisions:[4] Section 753(1) of the Criminal Code sets out the criteria for a finding that a person is a dangerous offender: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, or
(iii) any behaviour by the offender, associated with the offence for which he or she has been convicted, that is of such a brutal nature as to compel the conclusion that the offender’s behaviour in the future is unlikely to be inhibited by normal standards of behavioural restraint; [Emphasis added.] [5] Where the requirements of s. 753(1)(a) are met, detention for an indeterminate period will be imposed unless the court is satisfied by the evidence adduced during the hearing of the application that there is “a reasonable expectation that a lesser measure … will adequately protect the public against the commission [of] … a serious personal injury offence”: Criminal Code, s. 753(4.1).
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STATED PURPOSE OF THE DANGEROUS OFFENDER PROVISION
[14] Section 753(1)(a) of the Criminal Code sets out the requirements for designating an offender a “dangerous offender” as a result of violent behaviour: R. v. Boutilier, 2017 SCC 64, [2017] 2 S.C.R. 936, at paras. 16-18. The grounds for finding a person a dangerous offender have not changed since the enactment of the scheme in 1977: Boutilier, at para. 19.
[15] The stated purpose of the reforms to the dangerous offender scheme in 1977 was to protect the public against the rising incidence of violent crime and “people who really indicated a pattern of violence”: Minutes of Proceedings and Evidence of the Standing Committee on Justice and Legal Affairs, 30th Parl., 1st Sess., vol. 4, issue no. 67 (June 17, 1976), at p. 11. The regime was meant to target “[d]angerous offender[s] ... who by reason of character disorder, emotional disorder, mental disorder or defect constitute a continuing danger and who [are] likely to kill, inflict serious bodily injury, endanger life, inflict severe psychological damage or otherwise seriously endanger the personal safety of others”: Report of the Canadian Committee on Corrections, Toward Unity: Criminal Justice and Corrections (Ottawa: Canadian Committee on Corrections, 1969), at p. 258. See also R. v. Lyons, 1987 CanLII 25 (SCC), [1987] 2 S.C.R. 309, at p. 323; R. v. Johnson, 2003 SCC 46, [2003] 2 S.C.R. 357, at para. 19; R. v. Steele, 2014 SCC 61, [2014] 3 S.C.R. 138, at para. 29; and Boutilier, at para. 106.
[16] A report, published shortly before the scheme’s enactment, noted that the dangerous offender legislation should “not be based so much on the number of offences as on the type and circumstances of the offences and on the character of the offender”; a pattern of similar offences was to be a relevant consideration: The Honourable H. Carl Goldenberg, Q.C., Parole in Canada (Ottawa: Standing Senate Committee on Legal and Constitutional Affairs, 1974), at pp. 118-21.
[17] Consistent with the stated purpose of public protection, the Court of Appeal for Saskatchewan in R. v. Knife, 2015 SKCA 82, 460 Sask. R. 287, at para. 55, leave to appeal refused, [2015] S.C.C.A. No. 382, observed that past conduct is used as a proxy for assessing future threat in dangerous offender proceedings:The dangerous offender provisions are not intended to punish the offender again for his or her past offences, regardless of how similar (or dissimilar) they may be. What is important is that, based on those past offences, the offender is likely to continue to offend violently and endanger the public in the future. The past conduct provides the evidentiary basis for assessing the future threat, but it is the future threat that Part XXIV is aimed at curbing. [Emphasis omitted.]
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