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), (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    any information that could identify the complainant or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273,
    279.01, 279.02, 279.03, 346 or 347,

(ii)  an offence under section 144 (rape), 145 (attempt to
    commit rape), 149 (indecent assault on female), 156 (indecent assault on male)
    or 245 (common assault) or subsection 246(1) (assault with intent) of the
Criminal
    Code
, chapter C-34 of the Revised Statutes of Canada, 1970, as it read
    immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse
    with a female under 14) or (2) (sexual intercourse with a female between 14 and
    16) or section 151 (seduction of a female between 16 and 18), 153 (sexual
    intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross
    indecency), 166 (parent or guardian procuring defilement) or 167 (householder
    permitting defilement) of the
Criminal Code
, chapter C-34 of the
    Revised Statutes of Canada, 1970, as it read immediately before January 1,
    1988; or

(b)       two or more offences being dealt
    with in the same proceeding, at least one of which is an offence referred to in
    any of subparagraphs (a)(i) to (iii).

(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 complainant of the right to make an application for the order; and

(b)  on application
    made by the complainant, the prosecutor or any such witness, 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).

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.

CITATION:
R. v. Hogg, 2011 ONCA 840

DATE: 20111230

DOCKET: C50544

COURT OF APPEAL FOR ONTARIO

OConnor A.C.J.O., Feldman and LaForme JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Derrick Anthony Hogg

Appellant

Apple Newton-Smith, for the appellant

Howard Leibovich, for the respondent

Heard: June 2, 2011

On appeal from the conviction entered by Justice David S. Crane
          of the Superior Court of Justice dated January 10, 2008 and the sentence
          imposed on January 29, 2009, with reasons reported at [2009] O.J. No. 397
          (S.C.).

Feldman J.A.:

INTRODUCTION

[1]

On New Years Eve, 2006, the appellant and his partner visited the
    complainants to celebrate together. However, the appellant ultimately attacked
    the male complainant both with a beer bottle and with his fist in the face, had
    intercourse with the female complainant, and attacked her with the telephone. He
    was convicted of a number of offences including two counts of assault with a
    weapon and one count of assault, but was acquitted of sexual assault.

[2]

The trial judge then found the appellant to be a dangerous offender and
    sentenced him to an indeterminate sentence. The appellant appeals both his
    conviction and sentence. He says that the reasons of the trial judge for
    conviction are inadequate because the trial judge failed to address
    inconsistencies in the evidence of the complainants. He also says that the
    predicate offence cannot be said to form a sufficient pattern with his previous
    convictions which were for forcible sexual assaults. For the reasons that
    follow, I would dismiss both appeals.

THE CONVICTION APPEAL

Facts of the Predicate Offence

[3]

On the evening of December 31, 2006, the appellant and his girlfriend, S.P.,
    visited S.P.s friend K.M. and her common law partner
[1]
,
    R.F.  After they drank and hung out for a while, the appellant and S.P. left in
    a cab to go to a bar. They returned a few hours later and began drinking
    together again, when the appellant made sexually explicit comments to K.M.  This
    upset R.F. who told the appellant not to speak that way to his wife. The appellants
    response was to smash a full beer bottle over R.F.s head. K.M. was very upset,
    but the appellant downplayed the event, took R.F. into the bathroom where he
    poured liquor over the cut to clean it, then took him to lie down in the
    bedroom.

[4]

While R.F. was lying down in the bedroom, K.M. was crying, sitting on
    the couch in the living room. According to K.M., the appellant told her that R.F.
    was okay, then he had intercourse with her while S.P. held her hand back and
    her leg up.  K.M. was not able to recall a lot about how this incident occurred
    including how her clothes came off. Her evidence was that she did not consent and
    said no, no, no. The appellant and S.P. testified that the intercourse was
    consensual.

[5]

When R.F. heard his wife crying out, he came from the bedroom. K.M.
    testified that the appellant was penetrating her. R.F. does not see well; he
    testified that he saw the appellant on the ground, K.M. on the couch and S.P.
    on the side holding his wife.

[6]

R.F. was very upset. He wanted the appellant and S.P. out. He made a
    disparaging remark about S.P. He asked the appellant how he could do this to
    which the appellant answered that he does what he wants. When R.F. told him
    that no niggers going to come into my house and wreck my family, the
    appellant punched him in the face, causing him to go backward hard against the
    wall. His nose was broken, his eye implant was loosened and his teeth went
    through his bottom lip.

[7]

At that point, R.F. and K.M. wanted to call the police, but the
    appellant said no because he did not want to go back to jail. He backed R.F. up
    into the bedroom and convinced him to lie down. When he emerged about 20
    minutes later, again his wife was saying no; she was on her knees on the floor
    with the appellant on the couch and S.P. on the other side. K.M. said they were
    trying to force her to perform oral sex on the appellant. When R.F. reached for
    the phone the appellant ripped it out of his hands. R.F. then ran to other
    apartments to try to get help, couldnt, then returned to see K.M. pushing a
    chair toward the appellant while he was hitting her with the phone on the head,
    the ear and the shoulder. R.F. collapsed on the couch.

[8]

S.P. told the appellant to leave. On the way out he told K.M. and R.F.
    that they were dead.

[9]

K.M. had tried to call 911 when the appellant grabbed the phone from her
    and hung up. She was able to call 911 again and the tape and transcripts were
    part of the evidence at the trial. The following is the beginning of the 911
    call:

MALE #1: ... you dont hit me like this and then
    youre gonna call ...

K.M.: Hello?

POLICE: Hi, Brantford Police.

K.M.: ...stop...stop.

POLICE: Hello?

DIAL TONE/RINGING

POLICE: Im putting this 933 on......but it might
    be related to yours, but its coming from number 15.

MALE OFFICER: Well, thats probably, Im just
    calling her back...

POLICE: Oh I didnt read yours. I just know what
    you have there and just saw the...

RINGING

POLICE: 911 first emergency.

K.M.: Hi, Anthony Hogg was at our house and he just
    punched my husband and pushed him, and slapped him, and then he, I tried to
    dial 911 and he hit me with the phone.

[10]

A police officer, Officer Gage arrived at approximately 7:30 a.m. on
    January 1, 2007. K.M. was hysterical saying that theyre going to kill us.
    She did not mention any sexual assault at that time. The next day, the
    complainants called the same police officer over and K.M. told him that the
    appellant had sexually assaulted her. She said that she had been too scared and
    embarrassed to tell him in front of her husband and because he was a male
    officer.

[11]

Both the appellant and S.P. testified. They described a consensual orgy
    among the four of them, but then R.F. got mad at K.M. and smashed a beer bottle
    over his own head. While he was lying down, the other three began the orgy
    again. R.F. got angry again and when he came at the appellant with a beer
    bottle, the appellant punched him in the face. R.F. then wanted to call the
    police but K.M. stopped him so he hit her on the head with the phone. However, K.M.
    started screaming at the appellant after he hit R.F. and the police had been
    called, and R.F. threatened to charge the appellant so the appellant took off.

The Trial Judges Reasons for Conviction

[12]

The trial lasted four days. The trial judge delivered his reasons orally
    following submissions from counsel. He began by listing the eight issues raised
    by the defence: (1) the evidence of the complainants was fabricated; (2)  the
    appellants punch was thrown in self-defence; (3) K.M. had made false sexual
    allegations in the past; (4) the sexual activity was consensual; (5) the onus
    of proof on the Crown beyond a reasonable doubt including the issue of
    credibility; (6) the application of
W.D
.; (7) K.M.s evidence was
    inconsistent with her earlier statements; and  (8) the complainants had a
    motive to lie to preserve their relationship.

[13]

The trial judge made findings about what happened that night and the
    next morning. He found that the appellant was at the complainants apartment at
    the invitation of S.P.; that the complainants had no intention of partying with
    the appellant that night and called him and S.P. a cab before midnight; and that
    the appellant and S.P. arrived back later intoxicated and quarrelling. At some
    point, the appellant made sexually explicit remarks to K.M., R.F. objected and
    the appellant struck him on the head with an unopened beer bottle. The trial
    judge rejected the defence assertion that R.F. hit himself over the head with a
    beer bottle as incredulous and rejected as well the defence complaint that it
    was deprived of evidence because the broken bottle was swept up. In fact, the
    broken bottle was in the kitchen garbage.

[14]

The trial judge found that the appellant had sexual intercourse with K.M.,
    but was not satisfied that the Crown had proved beyond a reasonable doubt that
    there was no consent. He found K.M.s evidence lacking in particulars with
    unexplained details such as how her lower garments were removed and the reason
    why she only complained the next day, and whether it was to protect her
    relationship with R.F., although he observed that through her therapy she had
    learned to block details from her mind. He concluded on the issue that he was
    making no positive finding of consent, only that lack of consent was not proved
    beyond a reasonable doubt.

[15]

R.F. heard K.M. during the sexual encounter, came into the room, and had
    a confrontation with the appellant, whereupon the appellant intentionally
    assaulted him with a heavy blow to the face. The trial judge concluded that
    the accused exercised a dominating presence over the other three occupants
    that night. He was, on the evidence before me, an egocentric and physically
    directing person. Indeed, R.F. admitted he was in fear of him.

[16]

He found that the appellant fabricated the evidence that R.F. came at
    him with a beer bottle and rejected the defence of self-defence. Furthermore,
    even had there been such an attempt, the appellant was in no danger of being
    harmed, given their positions and relative size.

[17]

The trial judge found that the appellant struck K.M. with the phone
    several times to prevent her from calling 911.  Even with his drinking, the
    appellant had a conscious and directing mind, he exercised a dominating
    presence over the other three occupants, he left the two complainants in an
    emotional and physical shambles, and in effect, devastated each of them.

Issue on the Conviction Appeal

[18]

The appellant submits that the trial judges reasons for conviction did
    not address a number of inconsistencies in the evidence of the complainants and
    resulted in inconsistent verdicts that cannot be reconciled.

Analysis on Conviction Appeal

[19]

The appellants complaint focuses on the evidence of Constable Gage who
    responded to the 911 call. He observed that K.M. had showered, that the floor
    was freshly mopped, that R.F. appeared intoxicated and there were no animals
    present. In contrast, the complainants said they did not shower or clean up
    before the police arrived, R.F. said he was not drunk and K.M. mentioned having
    a number of animals in her apartment. The appellant submits that since the
    trial judge rejected K.M.s evidence on the sexual assault count, he was
    obliged to explain how he accepted her evidence on other issues when there were
    inconsistencies. Similarly with R.F.

[20]

In my view, there is no merit in this submission. The reasons for
    judgment, delivered orally immediately following the trial were brief but perfectly
    adequate to deal with the issues that were before the trial judge. He
    articulated those issues and addressed each of them, including the credibility
    of each of the witnesses.

[21]

The inconsistencies now emphasized by the appellant were neither blatant
    nor important aspects of the evidence. The complainants were unsure in
    cross-examination exactly when the showering and cleaning up occurred. There
    was no issue raised regarding the whereabouts of any animals. The trial judge
    was fully aware of the drinking that went on and made his own determination
    about R.F.s condition. Finally, the trial judge was aware that K.M. was
    hysterical and no doubt took that into account in his assessment of her
    credibility generally and how it affected his determination on important matters
    such as the sexual assault, as opposed to less significant matters. Most
    important, there was corroboration for the fact that the appellant struck the
    complainants including the broken beer bottle, the injuries and the 911 call.
    Finally, the trial judge completely rejected the story told by the appellant
    and of S.P. as totally incredible.

[22]

I would dismiss the appeal against conviction.

APPEAL AGAINST DANGEROUS OFFENDER DESIGNATION AND

INDETERMINATE SENTENCE

[23]

The appellant submits that the trial judges conclusion that the
    predicate offence was the continuation of a pattern of repetitive behaviour
    in accordance with s. 753 (1) (a)(i) of the
Criminal Code
was
    unreasonable. The prior offences were all sexual assaults, while in the
    predicate offences, the appellant was acquitted of sexual assault. Furthermore,
    in order to support his conclusion, in his reasons for decision on sentence the
    trial judge made findings of fact with respect to the predicate offences that
    were inconsistent with his findings on conviction.

History of Prior Offences

[24]

The appellant has a record consisting of 24 offences before his
    convictions on the predicate offences. They include sexual assaults, a weapon
    offence, driving offences, drug offences and failures to comply with
    recognizances. The trial Crowns position, which the trial judge accepted, was
    that the pattern established by the appellant was violent temper in response to
    any opposition to his sexual desires and inability to control his violent
    impulses. This was manifested in his failure to use any restraint in his
    pursuit of sexual gratification, either by direct sexual assault, or in the
    predicate offences, by assaulting the womans husband in order to remove the
    barrier to having sex with the woman. He also completely dominated the
    complainants in their home. R.F. was in fear while K.M. was hysterical. His
    future dangerousness resulted from the fact that he continued to deny any
    responsibility for his offences or that his behaviour was aberrant.

[25]

The trial judge referred to three prior convictions for sexual assault and
    violence as the offences which formed the basis for the pattern.

[26]

The first was a sexual assault of a 13 year old girl in 1987, to which
    the appellant pled guilty in 1991. The girl was at a party at a friends apartment.
    She went to lie down in a bedroom around 2:00 a.m. She was awakened at about 5
    a.m. by the appellant who had removed her jeans down to her knees and was
    penetrating her vagina with one of his fingers. He stopped as she woke up. They
    argued and she went home when she realized she was the only one left in the
    apartment. The appellant threatened to get her if she told anyone. At the
    dangerous offender hearing, the appellant said that the allegations were made
    up by the complainants father, and that he pled guilty because he thought the
    sentence would be a peace bond.

[27]

In 1994, the appellant was a drug dealer. He and a friend picked up two
    young women, K.S., who was 17 years old, and E.R. They drank beer and smoked
    drugs together a couple of times, the appellant supplying the beer and drugs to
    the women free. The third time, the appellant suggested to K.S. alone that they
    go and smoke some drugs in his car. He then said she owed him something for the
    drugs implying that it was sex, which she refused. He then locked the doors of
    the car, held her down by the throat, tore her jeans and forced intercourse.
    When she was able to get out of the car, he pushed her around a bit before
    driving away. The victim contracted chlamydia, suffered bruising and became distrustful
    of men. At the trial the appellant took the position the sex was consensual,
    then on the dangerous offender hearing he denied having sex until his previous
    testimony was put to him.

[28]

The appellants third victim was his then current partner, M.S., in 2001.
    They had been romantically involved off and on over a 12-year period, and had
    been dating for 1.5 years prior to the June assault. This occurred in her
    apartment. They began to fight because she had been subpoenaed to testify
    against the appellants brother and he didnt want her to go. He first bent her
    fingers backward until she screamed then he put his hands on her throat and
    pressed causing her to black out momentarily.

[29]

In October, she went to his house to pick up some videos to return. He
    threw her against the steps and hit her in the left cheek. She was able to calm
    him down. By November they were no longer involved, when they happened to see
    each other in a bar. The victim was with another woman. The appellant and M.S.
    argued throughout the evening. Around 2:30 a.m. the two women left and went to
    M.S.s condo, where the appellant was waiting with the security guard. M.S.
    felt safe with her friend there with them and allowed the appellant to come up
    to the condo. When the friend left around 4:00 a.m., the appellant began to
    fight with M.S., and demanded that she take off her clothes, which she did out
    of fear. He then demanded oral sex, grabbed her by the back of the head and
    forced her head onto his penis. When she started to cry, he forced her onto her
    stomach and anally assaulted her. She couldnt breathe, got away and tried to
    get to the phone or the door. He pinned her down and anally assaulted her
    again. She suffered excruciating pain and begged him to stop. He told her to
    shut the f--- up and take it. He then grabbed her by the head and tried to
    force his penis with her blood on it into her mouth, telling her he was going
    to humiliate her as she had done to him. Later he anally assaulted her again,
    then had vaginal intercourse and ejaculated. He lay beside her with his leg
    over her to hold her down. In the morning he made her get his car which had
    been towed. She was prepared to do anything to get rid of him. She suffered
    multiple tears to her rectum, bruises on her arms, legs and shoulder as well as
    psychological trauma.

The Trial Judges Reasons on the Issue of Pattern

[30]

The trial judge approached his task by dealing with each issue required
    by s. 753(1)(a)(i) of the
Code
. I set out the section here for ease
    of reference:

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

[31]

The first issue was to determine whether the predicate offences were
    serious personal injury offences as defined by section 752 of the
Criminal
    Code
. He concluded that they were (para. 8). This was conceded on the
    appeal.

[32]

The second issue was whether there was evidence that the appellant
    constituted a threat to the life, safety or physical or mental well-being of
    other persons. I quote the reasons of the trial judge on this issue in full:

[10]     The Crown must prove a pattern of
    repetitive behaviour by Mr. Hogg from his convictions including the predicate
    offences, showing a failure of Mr. Hogg to restrain his 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 behaviour.

[11]

I
    deal firstly with the first portion of this issue, namely whether there is a
    pattern of repetitive behaviour as above defined.

[12]     Although Mr. Hogg has been convicted by my
    count of 30 criminal offences, the present Application issue looks to those
    offences that may be considered as comprising a certain pattern of repetitive
    behaviour showing a failure to restrain his behaviour.  Volume 1 of the
    filed materials collects the conviction documents.

[13]

I
    conclude that the Crown has successfully met this test on the evidence in this
    Application.  References are to the 1987 offence of sexual assault on a 13
    year old girl with the conviction registered in 1991; the 1994 sexual assault
    on K.S. which had a first conviction in 1999, an appeal and a new trial with a
    conviction again in 2001 of assault causing bodily harm, the conviction in 2004
    of a sexual assault on M.S. in 2002 and the predicate convictions of January,
    2008 upon two convictions of assault with a weapon on 1 January, 2007.

[14]     The Crown has filed court transcripts and
    other records to establish the facts underlying the convictions under
    examination.  A summary of some of those facts may be found in the Crown
    Submissions on Dangerous Offender Application, filed.

[15]     In the predicate offences Mr. Hoggs motive
    was the exploitation of his sexual gratification.  He acted upon that
    motive with sudden and overwhelming force so as to crush all resistance.  He
    devastated his victims, Mr. F. and Mr. F.s partner, Ms. K.M.  He inflicted
    serious physical harm on Mr. F. and serious and likely lasting emotional
    and psychological harm to each of Mr. F. and Ms. K.M. in the commission of the
    predicate offences.  The offences occurred in a domestic setting in
    company with his sometimes common law partner, S.P.

[16]

Notwithstanding
    that Mr. Hogg had just served the full term warrant on his previous offences
    and was at the time of the predicate offences bound by a section 810 good
    conduct order, he was unable to restrain his impulses and desires and committed
    these violent crimes.

[17]     As to the 2004 offences, the Crown filed
    evidentiary materials (found at volume 1, tab 19) including the transcript of
    the reasons of judgment of Mr. Justice Caputo on the 26th of January, 2004, in
    the Superior Court, Toronto.

[18]

Caputo
    J. is an experienced trial judge.  Caputo J. outlined in great deal the
    evidence and the factual findings he made of dominating sexual violence by [the
    appellant] of a woman with whom he had been in a relationship.  In the
    sentencing, the trial judge made reference to the victim impact statement of
    Ms. M.S. in which it is noted by the trial judge that the impact of the
    offences upon her has been all encompassing and has seriously and deeply
    affected every single aspect of her life.

[19]     As to the 2001 convictions of sexual
    assault and forcible confinement of the victim, K.S., at the time when she was
    17 years of age and living on the streets of Toronto.

[20]     The Written Submission of the Crown, at
    page 17, summarizes the consequences of these offences upon the victim as
    follows:

The Victim Impact Statement completed some five
    years later disclosed that the offence continued to have a significant
    psychological impact on the Ms. K.S.  In her statement, the victim notes
    that she lives with a fear from day to day that I will be hurt again, or that
    someone is after me or watching me.  She also indicates that, in public
    events I sometimes think I see Anthony Hogg and I get terrified and leave the
    establishment right away.  She further states that, I am terrified that
    Anthony Hogg will find me one day again and hurt me really bad, maybe even kill
    me.

[21]     There is the offence in 1987 when a 13
    year old girl while sleeping was not a barrier to Mr. Hogg committing a sexual
    assault of her.

[22]

I
    conclude that Mr. Hogg has shown repetitively a violent temper to any
    opposition to his sexual desires and an inability to control his impulses of
    violence.

[23]

I
    find without doubt that the applicant has satisfied the requirement that Mr.
    Hogg on the basis of the evidence, has exhibited an established pattern of
    repetitive behaviour of which the predicate offence forms a part, that shows a
    failure to restrain his behaviour, pursuant to section 753(1)(a)(i).

[33]

The trial judges conclusion on the pattern of repetitive behaviour
    issue is found in paragraphs 22-23 of his reasons. The pattern of repetitive behaviour
    identified by the trial judge, as demonstrated by the predicate offences as
    well as the three sets of offences just described above, is repetitively a
    violent temper to any opposition to his sexual desires and an inability to
    control his impulses of violence.

Analysis of the Law and Argument on the Dangerous Offender
    Appeal

[34]

The court was provided with the written submissions of the trial Crown
    and defence counsel on the dangerous offender application. Unlike the position
    taken on the appeal, the trial defence counsel did not argue that the predicate
    offence could not form part of a pattern of repetitive behaviour. He conceded
    that the predicate offence qualified as a serious personal injury offence under
    subsection (a) or (b) of s. 752, and did not raise any challenge to the
    requirements of s 753(1)(a)(i). This would explain why the trial judge did not
    refer to the position of the defence on this issue.

[35]

The argument that was made on behalf of the appellant was that the trial
    judge should nevertheless exercise his discretion not to declare the appellant
    a dangerous offender, referring to the case law that provides that the
    sentencing judge has such discretion even when the statutory provisions
    necessary for such a finding have been met, (see:
R. v. Johnson
, 2003
    SCC 46, [2003] 2 S.C.R. 357) and instead impose a determinate sentence or a
    long-term offender designation.

[36]

Ordinarily this court would not consider an argument that was not made
    at first instance or was conceded in the court below. However, in the case of a
    dangerous offender designation, the decision of the sentencing judge must be a
    reasonable one (see
R. v. Currie
, [1997] 2 S.C.R. 260 at para. 33) including
    the finding that the predicate and prior offences meet the criteria set out in
    s. 752 of the
Code.

[37]

A useful discussion of what is meant by the pattern of repetitive
    behaviour is found in the British Columbia Court of Appeal decision in
R. v.
    Dow
, 1999 BCCA 177, 134 C.C.C. (3d) 323. I quote from paras. 21, 24, 25 and
    26:

[21] The elements of subpara.(i) of para.753(a)
    are:  (1) that there be a pattern of repetitive behaviour revealed in the
    offences and that the pattern be present in the offence which gave rise to the
    dangerous offender proceeding; and (2) that the pattern of repetitive behaviour
    contained two essential elements:  first, a failure to restrain the
    relevant repetitive behaviour and, second, a likelihood of causing death or
    injury through a failure to restrain that behaviour in the future.

...

[24] In short, the 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.  If any of those three elements is
    missing, then there may be a pattern but it will not be a relevant
    pattern.  But if all three are present then the essential elements of a
    relevant pattern are revealed.

[25] 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. ...

[26] It follows from what I have said that I
    think that the sentencing judge erred in law when he said that it was a
    necessary part of the pattern in this case that the victim in every incident
    must have been "identified by Mr. Dow for the purposes of venting his rage
    against a person of the female gender".  It is sufficient that all
    the victims were female and were violently assaulted in generally similar
    circumstances.  The fact that in the most recent incident the victim was
    not sexually penetrated is not a distinction which destroys the pattern, just
    as the fact that Dow knew Ms. Vannatter before he raped her does not destroy
    the pattern which covers all the other incidents in which the person assaulted
    was unknown beforehand to Dow.

[38]

Another explanation for the requirement of a repetitive pattern is
    discussed by Marshall J.A. in the Newfoundland Court of Appeal decision in
R.
    v. Newman
(1994), 115 Nfld. & P.E.I.R. 197 at para. 72: [it] guards
    against visiting one of the most serious criminal sanctions upon someone who
    has essentially abandoned a past pattern of intensely serious violence on the
    basis of a relapse of relatively less grave proportions. As Levine J.A.
    commented in
R. v. Pike
, 2010 BCCA 401, 260 C.C.C. (3d) 68, at
    para. 82, after quoting this observation by Marshall J.A.:

This explains why the pattern and predicate offence
    must be related. It would be inconsistent and unfair if the ultimate threat
    determination were to be made on the basis of a perceived threat unrelated to
    either the predicate offence or the pattern of behaviour it reveals as still
    persisting.

[39]

In
R. v. Jones
, [1993] O.J. No. 1321 (C.A.), this court observed
    that remarkable similarity was required in
R. v. Langevin
(1984), 45
    O.R. (2d) 705 (C.A.) where the pattern relied on consisted of only two
    offences, whereas in
Jones
, where there were four offences, fewer exact
    similarities were needed. In
R. v. Neve
, 1999 ABCA 206, 137 C.C.C. (3d)
    97, the Alberta Court of Appeal stated on this issue: the requirement for
    similarity in terms of kinds of offences is not crucial when the incidents of
    serious violence and aggression are more numerous. (para. 113)

[40]

To summarize, the pattern of repetitive behaviour that includes the
    predicate offence 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. This will ensure that the level of gravity of the
    behaviour is the same, so that the concern raised by Marshall J.A.  that the
    last straw could be a much more minor infraction  could not result in a
    dangerous offender designation. However, the offences need not be the same in
    every detail; that would unduly restrict the application of the section.

[41]

Having in mind these criteria, in my view, the decision of the
    sentencing judge to view the pattern of the appellants behaviour as using
    violence to achieve his sexual desires with an inability to control or restrain
    his impulses was a reasonable one. That pattern includes both direct sexual
    assaults with violence against the woman as well as in the predicate offence,
    violence against a man who would otherwise not allow the appellant to have sex
    with his wife.

[42]

Although the trial judge acquitted the appellant of sexual assault, he
    made it clear that it was because there were gaps in the Crown evidence, and
    not because he made a positive finding that there was consensual sex. He found
    that the complainants had no original intention to socialize with the appellant
    and S.P.  The trial judge found that K.M. was upset the whole time and
    hysterical by the end. The judge also found that the appellant had forced his
    will on the other three and devastated the complainants. Importantly and
    essentially, the appellant used extreme and sudden violence on R.F. in order to
    be able to immediately have sex with his wife.

[43]

Although the pattern differed in the detail of how the offences were
    carried out, the predicate and past offenses still represented a pattern of
    repetitive violent behaviour that made it likely that the appellant would
    continue to commit similar acts of violence in order to have sexual gratification
    in the future. I would not give effect to this ground of appeal.

[44]

There is no inconsistency between the trial judges findings on the
    conviction and the sentencing. In both he made the point that the appellant
    dominated both complainants. However, because of the onus of proof, he was not
    able to convict the appellant of sexual assault, given the lack of detail in
    the evidence on that issue. The fact that the pattern relied on by the trial
    judge was violence to achieve a sexual objective but not sexual assault itself,
    demonstrates that the trial judge did not effectively find sexual assault on
    the sentencing.

CONCLUSION

[45]

There was significant evidence on the hearing from correctional and
    parole officers who had read the appellants file and who had dealt with the
    appellant. They described violent offences in jail, as well as the appellants
    refusal to acknowledge any responsibility for his sexual attacks or need for
    any treatment programs to help him deal with his tendencies. There was also an
    assessment by a psychiatrist whose testing demonstrated a high risk to
    violently re-offend. One test that the appellant refused to take was the
    phallometric testing. This was consistent with the appellants refusal to
    acknowledge any possible deviance in his history of sexual attacks. The
    evidence all supported the trial judges decision to designate the appellant a
    dangerous offender and to impose an indeterminate sentence.

[46]

I would therefore dismiss the appeal against sentence.

RELEASED:

DEC 30 2011                                K.
    Feldman J.A.

KF                                                   I
    agree Dennis OConnor A.C.J.O.

I
    agree H.S. LaForme J.A.

[1]
The complainants are referred to in the evidence as common law partner, husband
    and wife at different times.


WARNING

THIS IS AN APPEAL UNDER THE

YOUTH CRIMINAL JUSTICE ACT

AND IS SUBJECT TO:

110. (1)
Subject to this section,
    no person shall publish the name of a young person, or any other information
    related to a young person, if it would identify the young person as a young
    person dealt with under this Act.

111. (1)
Subject to this section,
    no person shall publish the name of a child or young person, or any other
    information related to a child or a young person, if it would identify the
    child or young person as having been a victim of, or as having appeared as a
    witness in connection with, an offence committed or alleged to have been
    committed by a young person.

138. (1)
Every person who
    contravenes subsection 110(1) (identity of offender not to be published), 111(1)
    (identity of victim or witness not to be published), 118(1) (no access to
    records unless authorized) or 128(3) (disposal of R.C.M.P. records) or section
    129 (no subsequent disclosure) of this Act, or subsection 38(1) (identity not
    to be published), (1.12) (no subsequent disclosure), (1.14) (no subsequent
    disclosure by school) or (1.15) (information to be kept separate), 45(2)
    (destruction of records) or 46(1) (prohibition against disclosure) of the
Young
    Offenders Act
, chapter Y-1 of the Revised Statutes of Canada, 1985,

(a)       is guilty of an indictable offence and liable to
    imprisonment for a term not exceeding two years; or

(b)       is guilty of an offence punishable on summary
    conviction.

CITATION:
R. v. J.V., 2011 ONCA 807

DATE: 20111219

DOCKET: C51292

COURT OF APPEAL FOR ONTARIO

MacPherson, Juriansz and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

J.V.

Appellant

John F. Silvester, for the appellant

Emile A. Carrington, for the respondent

Heard and released orally:
December 14, 2011

On appeal from the conviction
          entered by Justice Ian B. Cowen of the Ontario Court of Justice dated
          September 3, 2009.

ENDORSEMENT

[1]

The appellant was convicted of robbery and weapons dangerous arising out
    of a robbery that took place in a van.  In this conviction appeal, he raises
    three issues.

[2]

He submits that (1) the trial judge improperly relied on a statement
    given to police by his co-accused; (2) the verdicts were unreasonable in that
    they were not supported by the evidence; and (3) the reasons were inadequate
    for the purposes of meaningful appellate review.

[3]

The respondent concedes that, in convicting the appellant, the trial
    judge erred in making brief reference to the statement of the co-accused.
    However, relying on the
proviso
, he submits that the verdicts would
    otherwise have been the same.  Furthermore, there was ample support in the
    evidence for these verdicts and the analysis of how the trial judge came to the
    conclusion that the Crown had made out its case beyond a reasonable doubt, was adequately
    explained in the reasons.

[4]

While it is clear that the trial judge did err in referring as he did to
    the information contained in the co-accuseds statement, we would not interfere
    with the verdicts.

[5]

In our view, the evidence against the appellant provided by those in the
    van at the time of the robbery, including that of the complainant, was
    compelling, as long as the trial judge accepted it.  And he did.  This
    evidence, coming from people who were acquainted with the appellant through
    school, put the appellant in the van as a participant in the victimization of
    the complainant.

[6]

While the specific part of the reasons where the trial judge brings
    together the evidence relevant to his analysis of whether the Crown had made
    out its case in relation to the appellant are brief, other parts of the 25-page
    judgment contain qualitative comments on this evidence.  These comments assist
    in explaining how the trial judge came to reject the appellants evidence and
    find that it did not raise a reasonable doubt and then conclude that the
    prosecution, on the evidence upon which it relied, had proven the charges
    against the appellant.

[7]

For these reasons, the appeal is dismissed.

J.C. MacPherson J.A.

R.G. Juriansz J.A.

G.J. Epstein J.A.


CITATION:
R. v. James, 2011
          ONCA 839

DATE:20111228

DOCKET: C50113

COURT OF APPEAL FOR ONTARIO

Doherty, Goudge and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Rodger James

Appellant

Catriona Verner, for the appellant

David Lepofsky and Gayle Karding, for the respondent

Heard: October 26, 2011

On appeal from the convictions
          entered by a jury, presided over by Justice W. Brian Trafford of the Superior
          Court of Justice, dated April 18, 2008 and from the sentence imposed on May
          20, 2008.

Doherty J.A.:

I

OVERVIEW

[1]

The appellant was charged with first degree murder and robbery while
    using a firearm.  The Crown alleged that the appellant and another man, Jeffrey
    Whyte, robbed two persons at gunpoint and shot and killed Cameron Alkins, one
    of the robbery victims.  Identification was the main factual issue at trial,
    although the defence also argued that even if the appellant was present at the
    scene of the robbery, he was not involved in the robbery or the homicide.  The
    appellant did not testify.

[2]

The jury acquitted on the murder charge, but convicted on the included
    offence of manslaughter and on the charge of robbery while using a firearm.
    The trial judge imposed a sentence of 11 years.

[3]

The appellant appeals from the manslaughter and robbery convictions and
    seeks leave to appeal his sentence.  The Crown does not appeal from the
    acquittal on the murder charge.

[4]

The conviction appeal focuses on two alleged errors, each of which have
    a direct impact on the identification issue.  Counsel for the appellant submits
    that the trial judge erred in admitting hearsay evidence in the form of the testimony
    of the witness Alison Diedrick at the earlier trial of Mr. Whyte.  In the part
    of the prior testimony admitted by the trial judge, Ms. Diedrick identified the
    appellant from a photo array as the person who was with her and Mr. Whyte in
    her car near the scene of the robbery immediately before it occurred.

[5]

Counsel further submits that the trial judge erroneously instructed the
    jury that evidence that a black man was seen fleeing the scene of the robbery could
    be used by the jury as circumstantial evidence that the appellant, a black man,
    was one of the robbers.

[6]

I would allow the appeal.  The prior testimony of Ms. Diedrick,
    identifying the appellant from a photo array, was not shown to be sufficiently
    reliable to warrant its admissibility under the principled exception to the
    hearsay rule.  The jury instruction that evidence of flight by a black man from
    the scene of the robbery was evidence that the appellant was the robber was
    unclear and potentially misleading.  It could have been understood by the jury
    as an instruction that the fact that the appellant was black and one of the
    robbers was black was sufficient to move the Crowns identification evidence
    from proof on a balance of probabilities to proof beyond a reasonable doubt.
    If members of the jury so understood that instruction, and I think they well could
    have, this was a serious misdirection.

II

FACTS

[7]

In the early evening of March 29, 1996, two teenagers, Yomanga Lawrence
    and Cameron Alkins, were robbed at gunpoint by two men.  One of the robbers was
    white and the other was black.  Both victims had connections to the drug world
    and the neighbourhood where the robbery occurred was well known for drug-related
    activity.

[8]

Mr. Lawrence testified that he and Mr. Alkins were approached by two
    armed gunmen.  Shots were fired and Mr. Lawrence fled the scene.  He returned
    moments later to find Mr. Alkins lying on the ground badly wounded.  Mr. Alkins
    died a short time later.  Mr. Lawrence could not describe or identify either
    robber.  Mr. Devin Constable, the only other witness to see any part of the actual
    robbery, also could not identify either robber.

[9]

The police investigation focussed on Mr. Whyte, a white man, and his
    friend, the appellant, a black man.  Mr. Whyte had escaped from prison about
    two weeks before the robbery.  The police theorized that Mr. Whyte needed money
    to flee the jurisdiction and decided that robbing drug dealers would be a quick
    and relatively risk-free way of getting cash.

[10]

Mr. Whyte was arrested and charged with murder and robbery in June 1996.
    In October 1997, he was convicted of robbery and manslaughter.

[11]

The appellant fled to the United States shortly after the robbery and was
    not found and then extradited to Canada until years later.  He was tried in
    March 2008.  At the appellants trial, it was accepted that Mr. Whyte was the
    white robber.

III

THE IDENTIFICATION EVIDENCE

[12]

The Crowns case identifying the appellant as the black robber relied on
    the evidence of Alison Diedrick and Fiona Baxter.  The evidence of Ms. Diedrick
    consisted of her trial testimony and, pursuant to the trial judges ruling on
    the Crowns application to adduce hearsay statements made by Ms. Diedrick, her
    audiotaped statement to the police on December 16, 1996, and her testimony at Mr.
    Whytes trial, identifying a photo of the appellant from a photo array as the
    black person with her and Mr. Whyte immediately before the robbery and
    homicide.

[13]

Ms. Baxters evidence consisted only of her trial testimony.  The trial
    judge refused to admit various hearsay statements made by Ms. Baxter.  Ms.
    Baxter did not give identification evidence, but she did testify to certain
    telephone conversations in the days following the robbery that were capable of
    supporting the inference that the appellant was one of the robbers.

(i)

Ms. Diedricks Trial Testimony

[14]

Ms. Diedrick had known Mr. Whyte for a few years before March 1996.  She
    had made his acquaintance through a friend while Mr. Whyte was in custody.  Ms.
    Diedrick described herself as a friend of Mr. Whyte and denied that there was a
    romantic relationship between them.

[15]

Ms. Diedricks trial testimony offered no support for the Crowns case
    against the appellant.  She testified that at some time prior to the robbery
    and homicide in March 1996, and 12 years before the appellants trial, Mr.
    Whyte had introduced her to a friend who went by the nickname Rebel.  At the
    time of the introduction, both Mr. Whyte and Rebel were inmates in a federal
    penitentiary.  Ms. Diedrick testified that she could not describe Rebel other
    than to indicate that he was a black man.  In her trial testimony, she said:

I can look at him [meaning the appellant] and
    describe him, but if I didnt see him here, I wouldnt even know him.

[16]

Ms. Diedrick did not identify the appellant as Rebel at trial.  In
    cross-examination, she testified that she could not say that she had ever met
    the appellant.

[17]

Ms. Diedrick professed to have no recollection of the events of March
    29, 1996.  Nor could she recall talking to the police on April 3, 1996 or
    providing them with an audiotaped statement in December 1996.  Listening to the
    audiotaped statement did not refresh her memory.  Ms. Diedrick also could not
    recall testifying at Mr. Whytes trial in October 1997.

[18]

Ms. Diedrick attempted to account for her inability to recall any of
    these events by explaining that she had gone through many difficult issues with
    her family in the years between 1996 and her testimony at the appellants
    trial.  She said that she was very upset and nervous on the witness stand.  Ms.
    Diedrick denied being afraid of the appellant or Mr. Whyte.

(ii)  Ms. Diedricks Audiotaped Statement
    from December 16, 1996

[19]

Ms. Diedrick spoke to the police at her home on April 3, 1996, about
    five days after the robbery and homicide.  She told the police she had not seen
    Mr. Whyte for a few months, but had spoken to him about a week earlier.  She
    denied having anything to do with Mr. Whyte on the evening of the robbery.
[1]

[20]

On December 16, 1996, Ms. Diedrick was interviewed by the investigating
    officers at the courthouse.  Mr. Whytes preliminary inquiry was scheduled to
    begin that day.  She gave an audiotaped statement after being cautioned that if
    she was not truthful she could be charged.  She explained that she had lied to
    the police on April 3, 1996 because her father was present.  Ms. Diedrick told
    the police that she had met Mr. Whyte through a corrections program when she went
    to the penitentiary to visit her cousin.  Ms. Diedrick indicated that in March
    1996 she picked Mr. Whyte up at a restaurant near the penitentiary and drove
    him to Toronto.  She understood that he was on a pass from the penitentiary.
    In fact, he was unlawfully at large.

[21]

In the audiotaped statement, Ms. Diedrick said that she received a
    telephone call from Mr. Whyte on March 29, 1996.  He asked her to drive him to
    a location in Ajax.  When Ms. Diedrick picked Mr. Whyte up, he was with a black
    man known to Ms. Diedrick as Rebel.  She had met Rebel through Mr. Whyte at
    the penitentiary.

[22]

When Mr. Whyte entered the vehicle, he had a gym bag with him.  Both Mr.
    Whyte and Rebel had guns.  Mr. Whyte had two weapons and Rebel had one or
    two.  According to Ms. Diedricks statement, both men were showing off the weapons
    in the vehicle.

[23]

As they drove toward Ajax, Mr. Whyte told Ms. Diedrick he wanted to stop
    on the way to pick up some money.  Mr. Whyte directed Ms. Diedrick to drive to
    a certain location where Mr. Whyte and Rebel left the car.  Ms. Diedrick
    waited in the car.  About ten minutes later, Mr. Whyte returned to the car
    alone.  Ms. Diedrick asked where Rebel had gone and Mr. Whyte replied, Hes
    gone.  Just leave him, lets go.  Ms. Diedrick did not see Rebel again.  When
    she learned of the homicide the next day through media reports and her
    boyfriend, she worried that she could be seen as an accomplice.

[24]

The trial judge ruled that the December 16, 1996 audiotaped statement
    was admissible under the principled exception to the hearsay rule.  He found
    that Ms. Diedrick was dishonestly feigning her loss of memory, thereby
    establishing the necessity criterion.  He went on to hold that there were other
    substitutes for the contemporaneous cross-examination of Ms. Diedrick that
    rendered her December 16, 1996 statement sufficiently reliable to warrant its
    admission into evidence.

[25]

The admissibility of Ms. Diedricks December 16, 1996 statement is not
    challenged on appeal, although counsel for the appellant submits that it should
    have been edited to delete the reference to the name Rebel because the police
    elicited that name using leading questions.  I see no merit to that submission
    and will proceed on the basis that the entire December 16, 1996 audiotaped
    statement was properly admitted.

(iii)  Ms. Diedricks
    Testimony at Mr. Whytes Trial

[26]

The Crown also sought to introduce Ms. Diedricks testimony at Mr. Whytes
    preliminary inquiry in February 1997 and at his trial in October 1997.  The
    trial judge concluded that, with one exception, the preliminary inquiry
    testimony and the trial testimony were inadmissible in that they merely
    repeated information already provided by Ms. Diedrick in her December 1996
    statement.  The one exception arose out of Ms. Diedricks selection of a
    photograph of the appellant as the person she knew as Rebel from a photo
    array that was presented to her both at the preliminary inquiry and at the
    trial.  Ms. Diedrick had not identified the appellant as Rebel in her
    December 1996 statement, but had indicated that Mr. Whyte and Rebel were in
    the car together.  The trial judge held that the Crown could adduce Ms.
    Diedricks testimony identifying the photograph of the appellant from the photo
    array at either the preliminary inquiry or the trial.  The Crown chose to lead
    the evidence of Ms. Diedricks identification of the appellants photograph at
    Mr. Whytes trial in October 1997.

[27]

The Crown filed a two-page extract from Ms. Diedricks testimony at Mr.
    Whytes trial.  In that extract, Ms. Diedrick testified that she had been
    presented with two sets of six photographs on sheets of paper sometime prior to
    testifying at Mr. Whytes preliminary inquiry.  She indicated that she recognized
    one of the photos as Rebel, and that he was the person who was with her and
    Mr. Whyte in the car.  Ms. Diedrick was then shown the same photo array while
    on the witness stand at Mr. Whytes trial.  She selected photograph #4 as a photograph
    of Rebel.  Photograph #4 was a photograph of the appellant.

(iv)  The Trial Testimony of
    Fiona Baxter

[28]

Ms. Baxter had known Mr. Whyte for a number of years before 1996.  They
    had been romantically involved.  She considered him a good friend in March
    1996.  She knew a man named Rodger James [the appellants name] through Mr.
    Whyte.  He was black, tall and slim.  He went by the nickname Rebel.  At the
    appellants trial, Ms. Baxter could not identify the appellant as the Rodger
    James she knew some 12 years earlier.  She described the appellant as larger
    with a chubbier face.  It was agreed at trial that the Rodger James referred to
    by Ms. Baxter was the appellant.

[29]

Ms. Baxter testified that she met with Mr. Whyte at his request late on the
    evening of March 29, 1996.  Mr. Whyte was distraught and afraid.  While with Mr.
    Whyte, Ms. Baxter called a relative and asked her if she had seen the news.
    The relative told her that there was news of a homicide in the neighbourhood.
    Ms. Baxter told Mr. Whyte.  She spent several hours with Mr. Whyte and spoke to
    him the next day over the telephone.

[30]

The appellant called Ms. Baxter the day after the homicide.  She accused
    him of killing the boy.  Ms. Baxter could not recall the appellants response.
    She testified that the appellant asked her to help him get in touch with Mr.
    Whyte.  Ms. Baxter did not know how to contact Mr. Whyte.

[31]

According to Ms. Baxter, the appellant called her a second time either
    the same day or the next day.  He wanted to know whether Ms. Baxter had spoken
    with Mr. Whyte.  He also wanted Ms. Baxter to arrange a three-way telephone
    conversation between himself, Mr. Whyte and Alison.  Ms. Baxter knew a girl
    named Alison who was a friend of Mr. Whytes and who worked at a Harveys
    restaurant.  She had that persons phone number.  This was in fact Alison
    Diedrick.  Ms. Baxter attempted to arrange the three-way phone call requested
    by the appellant, but could not reach Ms. Diedrick.

[32]

In her testimony, Ms. Baxter professed to have no further recollection
    of anything the appellant said to her during the conversations.  She did
    testify, however, that she had given a statement to the police within a day or
    two of speaking to the appellant and that she believed that what she said to
    the police was the truth.  In that statement, Ms. Baxter indicated that the
    appellant wanted to speak with Alison because he was concerned that she might
    go to the police and he wanted to know what was on her mind.  Ms. Baxter also told
    the police that, based on her conversation with the appellant, she understood
    that Alison was the driver.

IV

THE ADMISSIBILITY OF MS. DIEDRICKS TESTIMONY AT MR. WHYTES TRIAL
    IDENTIFYING THE APPELLANTS PHOTOGRAPH

[33]

The trial judges hearsay ruling dealt at length with the admissibility
    of several hearsay statements made by Ms. Baxter and Ms. Diedrick.  In setting
    out the applicable legal principles and reviewing the admissibility of the
    statements made by Ms. Baxter and the audiotaped statement of Ms. Diedrick in
    December 1996, the trial judge considered the necessity and reliability
    components of the principled exception to the rule excluding hearsay evidence.
    However, in addressing the admissibility of Ms. Diedricks testimony at Mr. Whytes
    preliminary inquiry and trial, the trial judge focussed exclusively on the necessity
    component of the admissibility inquiry.  Relying on
R. v. D.(G.N.)
(1993), 81 C.C.C. (3d) 65 (Ont. C.A.), leave to appeal to S.C.C. refused, [1993]
    S.C.C.A. No. 257, at p. 78, he held that with the exception of the
    identification of the appellants photo, Ms. Diedricks testimony at the
    preliminary inquiry and trial did not meet the necessity criterion because it added
    nothing of substance to the information she had provided in her December 1996
    audiotaped statement.  That holding is not challenged.

[34]

Having concluded that the part of Ms. Diedricks testimony in which she
    identified the photograph of the appellant met the necessity requirement, the
    trial judge should have gone on to consider whether that evidence was
    sufficiently reliable to justify its admission at the appellants trial despite
    its hearsay nature.  The trial judges failure to conduct that inquiry is an
    error in law.  On my review of the
voir dire
record, the Crown failed to
    offer evidence on which a finding of threshold reliability could reasonably have
    been made.

[35]

Hearsay is presumptively inadmissible because it is inherently unreliable.
    The unreliability of hearsay flows in large measure from the difficulties
    encountered in effectively challenging hearsay evidence.  The threshold reliability
    component of the admissibility inquiry protects the integrity of the trial process
    by insisting that the party proffering hearsay evidence demonstrate that it is
    sufficiently reliable to overcome the dangers inherent in hearsay evidence:
R.
    v. Khelawon
, 2006 SCC 57, [2006] 2 S.C.R. 787, at paras. 49, 59-65;
R.
    v. Blackman
, 2008 SCC 37, [2008] 2 S.C.R. 298, at para. 35;
R. v. Devine
,
    2008 SCC 36, [2008] 2 S.C.R. 283, at para. 19.

[36]

Threshold reliability is usually met in one of two ways, although they
    are not mutually exclusive.  First, the court may be satisfied that the
    circumstances in which the statement was made provide sufficient guarantees of
    the trustworthiness of the statement to negate reliability concerns.
R. v.
    Khan
, [1990] 2 S.C.R. 531 provides an excellent example of a case in which
    the circumstances surrounding the making of the statement by the young
    complainant, as well as the content of the statement itself, provided a level
    of reliability that justified its admission.

[37]

Threshold reliability may also be established if there are means by
    which the reliability of the statement can be sufficiently tested at trial despite
    its hearsay nature.  Cross-examination by the party against whom the hearsay
    statement is tendered at the time the hearsay statement was made is perhaps the
    most powerful way in which to establish the threshold reliability of a hearsay
    statement.  For example, where a witness testifies in a prior proceeding in
    relation to the charge and is cross-examined by the accuseds counsel, that
    statement may well be admitted at a subsequent trial on the basis that the contemporaneous
    cross-examination of the declarant rendered the statement sufficiently reliable
    to justify its admission at that subsequent trial:
R. v. Hawkins
,
    [1996] 3 S.C.R. 1043, at paras. 76-80.

[38]

Even where there was no opportunity to cross-examine when the statement
    was made, the ability to meaningfully cross-examine the hearsay declarant on
    the hearsay statement at trial will also often suffice to establish threshold
    reliability:
Khelawon
, at paras.
76-79;

R
.
    v. Couture
, 2007 SCC 28, [2007] 2 S.C.R. 517, at paras. 87-88;
Devine
,
    at paras.
22-25.

[39]

In considering threshold reliability, it is easiest to look first to the
    possibility of cross-examination at trial as providing sufficient reliability
    to warrant admission into evidence:
Couture
.  Ms. Diedrick was subject
    to cross-examination at Mr. Whytes trial by counsel for Mr. Whyte.  The
    appellant was not a party to that trial.  There is no suggestion that counsel
    for Mr. Whyte explored Ms. Diedricks identification of the appellants photo
    in his cross-examination or that his cross-examination could provide an
    adequate substitute for cross-examination on behalf of the appellant.

[40]

Ms. Diedrick was available for cross-examination at the appellants
    trial.  If appellants counsel had been able to engage Ms. Diedrick in a meaningful
    cross-examination on her purported identification of the appellants photograph
    at Mr. Whytes trial, that cross-examination would have gone a long way to
    establishing the threshold reliability of Ms. Diedricks testimony at Mr.
    Whytes trial.

[41]

Although Ms. Diedrick was physically present for cross-examination at
    the appellants trial, her professed total loss of memory of the relevant
    events, including the making of the identification, rendered any
    cross-examination of her concerning that identification of little value.  Identification
    evidence is inherently suspect.  A proper assessment of a witnesss purported
    identification evidence can only be made if the process that led to that identification
    is fully and carefully explored.  One can imagine a litany of questions that
    could have been put to Ms. Diedrick about the identification process and her
    selection of the appellants photograph.  These would include questions like:

·

When did she first see a photo array?

·

What was said to her by the police before she was shown the photo
    array?

·

When did she first identify a photograph of the appellant?

·

How certain was she of that identification?

·

What did the police say when she made the identification?

·

How many times had she seen the photograph of the appellant before
    it was shown to her at Whytes trial?

·

Had she seen photographs of the appellant as a person connected
    to the homicide in media reports before she was asked to look at the photo
    array?

[42]

The questions set out above and many others, all pertinent to the
    identification process, would have fallen unanswered against the wall of Ms.
    Diedricks purported complete loss of memory of the relevant events.

[43]

The inability to meaningfully cross-examine Ms. Diedrick on her
    identification of the appellant makes this case distinguishable from
Devine
,
    also a case where the hearsay statement involved an identification.  In
Devine
,
    the witness had offered an explanation for recanting her out-of-court
    identification.  Charron J., in upholding the admissibility of the witnesss
    out-of-court statement, observed, at paras. 28-29, that the witness who had
    provided a detailed description of the person she identified could be
    cross-examined both on that statement and on her explanations for resiling from
    that statement.

[44]

This case is more like
R. v. Post
, 2007 BCCA 123, leave to appeal
    to S.C.C. refused, [2007] S.C.C.A. No. 207, at para. 65, where the witnesss
    prior statement was found inadmissible in part because the witnesss professed
    inability to recall the statement or the relevant events rendered the
    opportunity to cross-examine that witness at the trial valueless as a means of
    testing the reliability of that statement: see also
R. v. T.G.N.
, 2007
    BCCA 2, at paras. 16-17.

[45]

Where, as here, the hearsay statement involves identification evidence,
    the ability to meaningfully cross-examine the declarant on that statement takes
    on added significance.  In
R. v. Tat
(1997), 35 O.R. (3d) 641 (C.A.),
    where the Crown sought to introduce a hearsay statement in which the witness
    had selected an accused from a photo line-up,  this court said, at p. 669:

[T]he absence of contemporary cross-examination, is
    said to be the most important of the dangers associated with the admission of
    hearsay evidence.
If the proffered hearsay consists of a previous statement
    made by a person who testifies, that danger will usually be alleviated by the
    ability to cross-examine that witness at trial.  If, however, the prior
    statement is one of identification and the witness denies making the
    identification, special problems arise and cross-examination at trial may not
    provide a suitable substitute for contemporaneous cross-examination.

Cross-examination of the maker of the statement at
    trial will certainly assist in assessing the credibility of the witness, but
    may not assist in testing the reliability of the out-of-court statement.  [Emphasis
    added.] [Footnotes omitted.]

[46]

The comments in
Tat
have equal application where the witness does
    not recall making the prior identification.  While Ms. Diedricks credibility
    can be undermined by cross-examination to show she was feigning her memory
    loss, cross-examination of her at the appellants trial could not undermine the
    reliability of her identification of the appellant at Mr. Whytes trial.  Absent
    the ability to meaningfully cross-examine Ms. Diedrick on her identification of
    the appellants photograph at Mr. Whytes trial, there were no means by which
    the truth of that statement could be tested at the appellants trial in a
    manner that would render the evidence sufficiently reliable to justify its
    admission despite its hearsay nature.

[47]

Having found that there are no other means available to adequately test
    the reliability of Ms. Diedricks prior testimony, I turn to the circumstances
    in which that testimony was given.  Ms. Diedricks testimony was given under
    oath in a court proceeding and was recorded.  Those features tend to give some
    circumstantial guarantee of trustworthiness to the testimony.  However, in
    considering whether the circumstances render her prior testimony sufficiently
    reliable, the subject matter of that prior testimony is of prime importance.
    This was not a statement about something that had just happened to Ms. Diedrick
    or a statement about her state of mind.  This was a statement identifying the
    appellant as the person who was in the car with her many months earlier.  With
    identification evidence, the concern is not just with the witnesss veracity,
    but also with the reliability of the evidence.  That reliability depends on an
    assessment of the entirety of the identification process and not an examination
    in isolation of the act of selecting a photograph from a photo array.

[48]

Ms. Diedrick purported to identify a photograph of the appellant many months
    after the relevant events.  She had seen the photograph at least once before.
    Apart from the availability of the photo array itself for inspection and Ms.
    Diedricks evidence that she had identified the same photograph some time
    earlier, there was nothing in Ms. Diedricks evidence or any of the
voir
    dire
evidence about the circumstances of her identification of the
    appellants photograph.  Evidence that a witness selected a photograph from a
    photo array without evidence of what happened before and during that selection
    process is of little value.  In
Tat
, this court said, at p. 656:

However, where
identification

evidence is
    involved, it is the in-court identification of the accused which has little or
    no probative value standing alone.  The probative force of identification
    evidence is best measured by a consideration of the entire identification
    process which culminates with an in-court identification
.  The central
    importance of the pre-trial identification process in the assessment of the
    weight to be given to identification evidence is apparent upon a review of the
    cases which have considered the reasonableness of verdicts based upon
    identification evidence.

If a witness identifies an accused at trial,
    evidence of previous identifications made and descriptions given is admissible
    to allow the trier of fact to make an informed determination of the probative
    value of the purported identification.  The trier of fact will consider the
    entirety of the identification process as revealed by the evidence before
    deciding what weight should be given to the identification made by the
    identifying witness.  Evidence of the circumstances surrounding any prior
    identifications and the details of prior descriptions given will be central to
    that assessment.  [Emphasis added.] [Footnotes omitted.]

[49]

The Crown led no evidence on the
voir dire
of the process of
    identification culminating in Ms. Diedricks identification of the appellant at
    Mr. Whytes trial.
[2]
A bald in-court identification of an accused from a photo array carries no
    circumstantial guarantees of trustworthiness.  The circumstances in which Ms.
    Diedrick purported to identify the appellants photograph at Mr. Whytes trial give
    no comfort as to the reliability of that identification.

[50]

The Crown failed to establish that Ms. Diedricks identification of the
    appellants photograph at Mr. Whytes trial was sufficiently reliable to
    justify its admission at the appellants trial.  The prior testimony of Ms.
    Diedrick should have been excluded.

V

THE JURY INSTRUCTION ON FLIGHT

[51]

In the pre-charge discussions, the trial judge struggled with the
    connection, if any, between the flight of a black man from the scene of the
    robbery and evidence capable of identifying the appellant as that person.  Over
    the strong objections of counsel for the appellant, the trial judge instructed
    the jury in these terms:

These instructions are based upon an assumption that
    you are satisfied on a balance of probabilities given the testimony of Allison
    Diedrick and Fiona Baxter that Rodger James was the black man.  The evidence of
    the flight of the black man may be considered by you in that context and in the
    context of the evidence as a whole in determining whether the Crown has
    satisfied you beyond a reasonable doubt on the issue of identity; that is, that
    Rodger James was the black man.

[52]

With respect, evidence of the flight of the black man, regardless of
    the context, was not in and of itself capable of supporting the Crowns
    contention that the appellant was the black man.  At best, the evidence of the
    flight of the black man had some minimal indirect value to the Crowns case on
    the issue of identification.  Members of the jury could infer from the flight
    of the black man that he was involved in the robbery.  If they drew that
    inference, it offered some minimal support for the Crowns case that the
    appellant was one of the robbers since the appellant was in fact a black man.
    In this sense, the evidence had relevance to the identification issue in the
    same way that evidence that someone saw a young man fleeing from the scene
    would have relevance because the appellant was a young man.  The evidence had
    minimal probative value on the issue of identification.

[53]

The trial judges instruction, however, suggested that a more direct and
    powerful inference could be drawn from the flight of the black man.  As I read
    the charge, jury members were told they could use the evidence of the flight by
    a black man from the scene of the robbery, a fact that was not disputed, to
    lift what would otherwise be an insufficient case for the Crown on
    identification over the reasonable doubt hurdle.  The evidence of the flight of
    the black man could not possibly carry that heavy load on the identification
    issue.  The instruction constitutes misdirection.

VI

THE
CURATIVE PROVISO
:  SECTION 686(1)(b)(iii)

[54]

Both errors outlined above go to identification, the central issue at
    trial.  The case for the Crown on identification was not overwhelming.
    Significant legal errors in cases that are not overwhelming cannot be overcome
    by the
curative proviso
:
R. v. Khan
, 2001 SCC 86, [2001] 3
    S.C.R. 823;
R. v. Sarrazin
, 2011 SCC 54, at paras. 22-28.

[55]

In invoking the
proviso
, Mr. Lepofsky makes a novel argument.  He
    submits that the trial judge in his hearsay ruling wrongly excluded significant
    evidence that supported the Crowns case.  Mr. Lepofsky argues that if the excluded
    evidence is added into the evidentiary mix, the Crowns case becomes overwhelming
    and the
proviso
could be applied.

[56]

The application of the
proviso
must be considered in the context
    of the evidence heard by the jury, not the evidence it might have heard had the
    trial judge made different rulings.  To consider excluded evidence, even
    wrongly excluded evidence, in deciding whether the
proviso
should be applied,
    is to apply the
proviso
to a different case than the one heard by the
    jury.  Because the evidence was excluded at trial, the appeal court has no way
    of knowing how the defence would have met that evidence and, consequently, no
    way of knowing how strong that evidence might have been.  An appellant who has
    demonstrated an error in law and is otherwise entitled to a new trial should
    not be deprived of that new trial based on assumptions about the probative
    force of evidence he was never called upon to answer at trial.  The excluded
    evidence can play no role in determining the application of the
curative
    proviso
to the legal errors made at trial.

[57]

Where, however, the issue is not the application of the
curative
    proviso
, but whether a successful appellant is entitled to an acquittal or
    a new trial, the Crown may argue that probative evidence was improperly
    excluded in support of a submission that the court should direct a new trial and
    not enter an acquittal.  Counsel for the appellant, quite properly, does not
    suggest that an acquittal would be an appropriate remedy here.  The Crown can
    re-litigate the admissibility rulings made by the trial judge at the new trial:
    see
R. v. Duhamel
, [1984] 2 S.C.R. 555.

VII

CONCUSION

[58]

I would allow the appeal and order a new trial on the charges of
    manslaughter and robbery while using a firearm.

RELEASED:
December 28, 2011 (D.D.)

Doherty
    J.A.

I
    agree S.T. Goudge J.A.

I
    agree Gloria Epstein J.A.

[1]
This statement was not admitted for its truth, but was, however, available to
    the jury in their assessment of Diedricks credibility.

[2]
Even at the trial proper, apart from the photo array itself, there was little
    evidence available as to the reliability of the identification process.  All of
    the officers notes had been lost and it was even unclear which officer had
    shown Ms. Diedrick the photographs.  On the limited information available,
    however, there were obvious flaws in the identification process.  The photos
    had been shown to the witness six at a time rather than one at a time and they
    had been shown to her by one of the investigating officers rather than an
    officer who was not involved in the case.