COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Schulz, 2018 ONCA 598

DATE: 20180629

DOCKET: C62305

Watt, Brown and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Martin Schulz

Appellant

Martin Schulz, acting in person

Grace Choi, for the respondent

Heard: February 20, 2018

On appeal from the conviction entered by Justice Gisele M.
    Miller of the Superior Court of Justice on March 23, 2016, and from the
    sentence imposed on May 31, 2016.

Brown J.A.:

I.

OVERVIEW

[1]

The appellant, Martin Schulz, a lawyer, was convicted of one count of
    possession of child pornography contrary to s. 163.1(4) of the
Criminal
    Code
. The trial judge sentenced him to 45 days imprisonment, to be served intermittently,
    three years probation, and a 10-year prohibition order under s. 161(1)(d).
    Terms of the probation and prohibition orders limited the appellants ability
    to access the Internet and email.

[2]

The appellant appeals his conviction. He also seeks leave to appeal the
    terms of the probation and prohibition orders that limit his access to the Internet.

[3]

For the reasons set forth below, I would dismiss the appellants appeal
    from conviction. I would grant him leave to appeal the Internet-related terms of
    the probation and prohibition orders but would dismiss the appeal.

II.

THE CONVICTION APPEAL

A.

The trial application
    to exclude from evidence seized materials

[4]

Based on information obtained from Bell Canada about subscriber
    information associated with a particular IP address, the police obtained a
    warrant to search the appellants residence for electronic devices and
    documents that might contain evidence of the offences of possession of child
    pornography and making available child pornography.

[5]

As the appellant is a lawyer, the warrant contained special provisions
    to protect solicitor-client privilege. They included the appointment of a
    referee to ensure that the search and review of seized documents were conducted
    in ways that would protect solicitor-client privilege. The warrant also
    required the police to place all seized items, unread, in a package and seal
    the package until further order of the court.

[6]

The search warrant was executed on August 16, 2012.

[7]

On February 11, 2013 the Crown obtained an order, unopposed by the
    appellant, from Hourigan J., as he then was, specifying the method by which a
    designated examiner could copy and review the contents of the seized devices
    for offensive materials (the Examination Order). The order required the
    examiner, before filing a report of his review with the court and making
    available copies of the seized devices, and working with the referee (if
    necessary), to ensure no privileged information was released to the Crown or
    police.

[8]

The appellant, who was represented by counsel at trial, applied to
    exclude all evidence found on the seized devices on the ground the search had
    been conducted in a manner that infringed his rights under s. 8 of the
Canadian
    Charter of Rights and Freedoms
. The appellant challenged the validity of the
    seizure, detention, and examination of the seized devices on numerous grounds:
    (i) the police obtained the appellants IP subscriber information without a
    warrant; (ii) no report was made under s. 489.1(1)(b)(ii) of the
Criminal
    Code
until one month after the execution of the search warrant; (iii) no
    request was made under s. 490(2) to detain the seized devices for more than 90
    days; (iv) the police failed to seal all seized devices, leaving unsealed six
    devices (though they concluded these contained no relevant information); (v)
    the examiner failed to conduct his examination of the devices in strict
    compliance with the Examination Order; (vi) the police failed to return to the
    appellant seized devices that did not contain any offensive materials; (vii) the
    police failed to take detailed notes of their examination of the seized devices;
    and (viii) a police officer improperly took screen shots of directory
    structures from the examiners copies when preparing to testify at an
    anticipated discovery hearing.

[9]

On the
    application before the trial judge, the appellants counsel acknowledged that
    if obtaining the IP subscriber information without prior judicial authorization
    was the only
Charter
breach, the decision of the Supreme Court in
R.
    v. Spencer
, 2014 SCC 43, [2014] 2 S.C.R. 212, pointed to the admission of
    the evidence. However, he submitted there were multiple s. 8 breaches, the
    cumulative effect of which required the exclusion of the evidence pursuant to
    s. 24(2) of the
Charter
.

[10]

In
    comprehensive reasons, the trial judge addressed each of the appellants
    allegations regarding a breach of his s. 8
Charter
rights. She found
    that:

(i)     the
    failures of the police to file a report pursuant to s. 489.1(1)(b)(ii) for one
    month and to apply under s. 490(2) for an extension of time beyond 90 days to
    detain the seized items infringed the appellants s. 8 rights;

(ii)    the
    failure of the police to seal six seized devices, as required by the search
    warrant, rendered their subsequent search unauthorized by the warrant and therefore
    a breach of s. 8;

(iii)   the
    method and scope of review employed by the examiner was reasonable, did not
    breach the Examination Order in any way, and did not violate the appellants
    s. 8 rights;

(iv)   the
    failure of the police to return seized devices that did not contain offensive
    materials was a clear and deliberate violation of the Examination Order;

(v)    the
    failure of a police officer to take notes of his search of the unsealed seized
    devices amounted to a violation of s. 8 of the
Charter
, but the paucity
    of notes in respect of his review of devices described in the examiners report
    did not violate s. 8; and

(vi)   the
    officers taking screen shots of the directory structure from the examiners
    copies did not constitute a search because the material already had been made
    available to the police pursuant to a court order and the officer simply made a
    copy of the material in order to present evidence in the proceedings.

[11]

The
    trial judge conducted an analysis under s. 24(2) of the
Charter
in
    which she considered the breaches of s. 8 on an individual basis and then cumulatively.
    Applying the principles in
R. v. Grant
, 2009 SCC 32, [2009] 2 S.C.R.
    353, to each of the breaches, the trial judge excluded from evidence only: (i) the
    six unsealed items for which no extension to detain was obtained under s.
    490(2); and (ii) the devices on which no offensive materials were found. The
    trial judge noted, at para. 206 of her reasons for her ruling on the
Charter
motion, that [t]he result of an individual s. 24(2) analysis of each of the s.
    8 breaches would result in the exclusion of evidence of little value to the
    prosecution of these offences.

[12]

In
    considering the cumulative effect of the s. 8 breaches, the trial judge
    concluded that none of the breaches resulted from bad faith conduct, save for
    the failure to return devices on which no offensive material was found. While
    acknowledging that there were clearly serious failures in the conduct of the
    police, she stated: I do not find that there was an overall pattern of conduct
    on the part of police which would impact public confidence in the administration
    of justice: at para. 208. The trial judge recognized the appellant had a high
    expectation of privacy in respect of all of the seized items. However, there
    was a strong societal interest in the adjudication of the case on the merits.
    Taking into account all of the factors, the trial judge found that to exclude
    all of the evidence obtained in the execution of the search warrant would bring
    the administration of justice into disrepute: para. 212.

B.

The
    grounds of appeal

[13]

In
    his factum, the appellant identified the following grounds of appeal from his
    conviction:

(i)

the trial judge erred in finding that the examiners searches complied
    with the Examination Order and did not violate s. 8 of the
Charter
;

(ii)

the
    trial judge erred in finding that the failure of the police to keep detailed
    notes in respect of devices described in the examiners report did not violate
    s. 8 of the
Charter
;

(iii)

the trial
    judge erred in concluding the officers taking of screen shots of examiners
    copies did not constitute a search; and

(iv)

the trial
    judge erred in her s. 24(2) analysis by placing undue weight on the nature of
    the charges against the appellant, viewing the conduct of the police in a more
    favourable light than warranted, and not finding that the cumulative effect of
    the s. 8 violations warranted the exclusion of the evidence.

[14]

In
    respect of the last ground of appeal, the appellant seeks leave to file fresh
    evidence.

C.

Analysis

The trial judges s. 8 findings

[15]

In
    his factum, the appellant did not make specific submissions in respect of his
    first three grounds of appeal. In oral argument, the appellant repeated his
    position that the examiner did not comply with the Examination Order.

[16]

I
    am not persuaded by this submission. The trial judges interpretation of the
    Examination Order was a practical and reasonable one. Her assessment that the
    examiners conduct fell within the scope of the Examination Order was
    reasonable and well-grounded in the evidence.

[17]

As
    to his other s. 8 grounds of appeal, the appellant has not identified any error
    in law or misapprehension of the evidence by the trial judge. Accordingly, I
    would not interfere with her findings.

The trial judges s. 24(2) findings

[18]

The
    appellants main submission on his conviction appeal is that the trial judge
    erred in her assessment of the seriousness of the s. 8 infringements that she
    found. The appellant submits the overall misconduct of the police was more
    serious than the trial judge found.

[19]

In
    support of that submission, the appellant moved for leave to file fresh
    evidence on the appeal.

[20]

In
    an affidavit in support of that motion, the appellant deposed that
    notwithstanding that the trial judge had ordered on February 19, 2016 that
    seized materials which did not contain offensive materials be returned to the appellant
    pursuant to s. 20 of the Examination Order, as of September 25, 2017 the police
    had not returned those materials to him. The appellant contends that this
    evidence is relevant to the issue of the seriousness of police misconduct
    regarding their treatment of the seized materials.

[21]

The
    respondent opposes the motion, primarily on the ground that the appellant has
    not met the cogency requirement for the admission of fresh evidence on the
    appeal:
R. v. Manasseri
, 2016 ONCA 703, 132 O.R. (3d) 401, at paras.
    202-203 & 205, leave to appeal refused, [2016] S.C.C.A. No. 513. The
    respondent submits that the continued detention of the items in issue resulted
    from an arrangement between counsel, which was disclosed to the trial judge at
    the May 31, 2016 sentencing hearing.

[22]

I
    accept the respondents submission. The transcript of the sentencing hearing
    discloses such an arrangement. Given that arrangement, the appellants proposed
    fresh evidence has no bearing on the issue of the polices handling of the
    seized materials. I would dismiss the appellants motion for leave to introduce
    fresh evidence.

[23]

In
    considering the appellants main submissions regarding the trial judges s.
    24(2) findings, one must recall that deference is the standard of review applied
    to the three-pronged assessment conducted by a judge under s. 24(2) of the
Charter
.
    Where a trial judge has considered the proper factors and has not made any
    unreasonable finding, his or her determination is owed considerable deference
    on appellate review. But where the relevant factors have been overlooked or
    disregarded, a fresh
Grant
analysis is both necessary and appropriate:
R. v. Cole
, 2012 SCC 53, [2012] 3 S.C.R. 34, at para. 82 (citations
    omitted). See also
Grant
, at para. 86.

[24]

As
    I understand the appellants submissions, he contends that the trial judge: (i)
    failed to attach sufficient severity to the s. 8 violations she found the
    police had committed, especially in view of the appellants claim of
    solicitor-client privilege over many of the seized materials; and (ii) placed
    undue weight on her findings that the police did not act in bad faith.

[25]

I
    am not persuaded by the appellants submissions. The trial judge considered the
    proper factors: she conducted an individual
Grant
assessment of each
    s. 8 violation and then applied the
Grant
factors collectively to the
    infringements. She gave detailed reasons for her findings.

[26]

As
    her reasons disclose, the trial judge was alive to the fact that some of the
    seized devices contained materials over which solicitor-client privilege was
    asserted.  She noted that: (i) the failure to seal six items involved devices
    over which no privilege was claimed; (ii) the failure to take notes involved
    those same devices; and (iii) no search of the seized items occurred during the
    period prior to the filing of the s. 489.1(1) report or before the Examination
    Order was made. There is no suggestion in the record that the police seizure of
    the devices or the subsequent review and report by the Examiner resulted in the
    disclosure of any privileged information to the police or the Crown. As well,
    the appellant acknowledges that the Crown did not seek to adduce any privileged
    information.

[27]

The
    s. 24(2) findings made by the trial judge found ample support in the evidence.
    None were unreasonable.

[28]

Consequently,
    I see no basis for interfering with her conclusion to admit certain of the
    seized materials into evidence. I would dismiss the appellants appeal from
    conviction.

III.

THE SENTENCE APPEAL

A.

The issue
    stated

[29]

As
    noted, the appellant was sentenced to 45 days imprisonment, to be served
    intermittently on weekends, and three years probation. Although the parties
    disagreed about the length of probation, they agreed on the terms of probation,
    including the term limiting the appellants use of devices to access the Internet
    or email, which he now challenges on appeal.

[30]

The
    Crown also sought a 10-year prohibition order under s. 161(1)(a)-(d) of the
Criminal
    Code
. Orders made under s. 161(1)(a)-(c) can limit where an offender may
    go, whom he may contact, and the type of employment he may undertake. Section
    161(1)(d) authorizes the court sentencing a person convicted of the possession
    of child pornography to make an order prohibiting the offender from using the
    Internet or other digital network, unless the offender does so in accordance
    with conditions set by the court. The Crown sought an order under s. 161(1)(d)
    containing similar limitations on Internet and email access as found in the
    probation order.

[31]

Defence
    counsel opposed the imposition of any s. 161 order. He argued one was not
    necessary given the evidence showing the appellant presented a low risk of
    recidivism, together with the serious probation terms imposed. However, in the
    event the court imposed a s. 161 order, defence counsel submitted the terms
    concerning computer use should be the same as those in the probation order.

[32]

Defence
    counsel sought a two-year term for probation. The sentencing judge disagreed,
    ordering probation for three years. However, the sentencing judge otherwise imposed
    the terms of probation agreed upon by counsel.

[33]

The
    sentencing judge did not make the orders under s. 161(1)(a)-(c) requested by
    the Crown. However, she did impose a 10-year order under s. 161(1)(d).

[34]

The
    probation and s. 161(1)(d) orders contain identical terms that limit the
    appellants use of any device capable of accessing the Internet or email and
    capable of storing data in a digital format. The terms state:

You shall be further limited to direct and indirect use of any
    device capable of accessing the Internet or email and capable of storing data
    in a digital format, including but not limited to computers, electronic media,
    digital or hard copy transport media or data, digital still or video cameras,
    camera phones, personal digital assistants, scanners as follows:

·

at your place of employment or as required for employment related
    purposes;

·

for the purpose of communicating with your legal counsel or, for
    the purposes of reviewing legal documents, or obtaining legal advice regarding
    ongoing legal and professional regulatory matters;

·

not to use a personal computer that does not have K9 protection
    software installed;

·

provide proof of installation of K9 protection on your personal
    computer(s) to your probation officer;

·

not engage directly or indirectly in the use of electronic media
    for the purpose of communicating with Internet websites commonly known as
    bulletin boards, whether interactive or static in nature; and

·

permit your probation officer, or a police officer requested by
    your probation officer to assist, access to your computer to ensure compliance
    with this Order, subject to reasonable precautions being taken to protect
    solicitor/client privilege respecting any client documents on those computers.

[35]

The
    appellant seeks leave to appeal from these limitations contained in the
    probation and s. 161(1)(d) orders (collectively, the Internet Limiting Terms).
     He asks this court to vary them so that the prohibition on his access to the Internet
    would forbid access only to: (i) any content that would be illegal under the
Criminal
    Code
; and (ii) any bulletin board, service or website that facilitates
    access to or makes available content that would be illegal under the
Criminal
    Code.

[36]

The
    appellant submits the Internet Limiting Terms are inconsistent with the
    evidence that he was at the low end of any risk to reoffend and tantamount to severing
    him from the Internet, which is an indisputable component of everyday life.

[37]

The
    respondent submits this court should not interfere with the Internet Limiting Terms.
    The conditions of probation  including the limits on computer use  were the
    product of a joint proposal by counsel. The s. 161(1)(d) order was reasonable
    for the purpose of protecting the community and facilitating the appellants
    reintegration into the community.

B.

Analysis:
    The probation order

[38]

The
    appellant seeks to vary the Internet Limiting Terms in his probation order.

[39]

The
    only dispute at sentencing concerning the probation order was whether it should
    extend for two or three years; the sentencing judge imposed a three-year
    probation order. The specific terms of the probation order were agreed upon by
    Crown counsel and very experienced defence counsel. In those circumstances, I
    see no basis upon which to interfere with the terms of the probation order.

C.

Analysis:
    The s. 161(1)(d) order

The statutory framework and purpose

[40]

Section
    161 of the
Criminal Code
was enacted in 1993. Amendments passed in
    2012 added s. 161(1)(d). Section 161(1) reads:

161 (1) When an offender is convicted, or
    is discharged on the conditions prescribed in a probation order under section
    730, of an offence referred to in subsection (1.1) in respect of a person who
    is under the age of 16 years, the court that sentences the offender or directs
    that the accused be discharged, as the case may be, in addition to any other
    punishment that may be imposed for that offence or any other condition
    prescribed in the order of discharge, shall consider making and may make,
subject to the conditions or exemptions that the
    court directs
, an order prohibiting the offender from

(a) attending a public park or public
    swimming area where persons under the age of 16 years are present or can
    reasonably be expected to be present, or a daycare centre, schoolground,
    playground or community centre;

(a.1) being within two kilometres, or any
    other distance specified in the order, of any dwelling-house where the victim
    identified in the order ordinarily resides or of any other place specified in
    the order;

(b) seeking, obtaining or continuing any
    employment, whether or not the employment is remunerated, or becoming or being
    a volunteer in a capacity, that involves being in a position of trust or
    authority towards persons under the age of 16 years;

(c) having any contact  including
    communicating by any means  with a person who is under the age of 16 years,
    unless the offender does so under the supervision of a person whom the court
    considers appropriate; or

(d)
using
    the Internet or other digital network, unless the offender does so in
    accordance with conditions set by the court
. [Emphasis added]

[41]

The
    overarching protective function of s. 161 of the
Criminal Code
is to
    shield children from sexual violence:
R. v. K.R.J.
, 2016 SCC 31, [2016]
    1 S.C.R. 906, at para. 44. An order under s. 161 constitutes punishment and is
    not available as a matter of course: there must be an evidentiary basis upon
    which to conclude that the particular offender poses a risk to children; the
    specific terms of the order must constitute a reasonable attempt to minimize
    the risk; and, the content of the order must respond carefully to an offenders
    specific circumstances:
K.R.J.
, at paras. 48-49.

[42]

This
    court, at para. 17 of
R. v. Brar
, 2016 ONCA 724, 134 O.R. (3d) 95,
    summarized the Supreme Courts analysis in
K.R.J.
about the purpose of
    s. 161(1)(d):

In its analysis of s. 161(1)(d), the court addressed the need
    for such a provision. Section 161(1)(d) was enacted in 2012 to close a
    legislative gap created by rapid social and technological changes. Those
    changes have created a space for harmful behaviour not captured by the former
    iteration of s. 161, which allowed sentencing judges to prohibit offenders only
    from using computer systems to contact children directly. The new harmful
    behaviours now captured by s. 161(1)(d) include accessing and distributing
    child pornography and contacting other adults for the purposes of planning and
    facilitating criminal behaviour (
K.R.J.
, at para. 107). With the
    broadened powers under s. 161(1)(d), the court is better able to monitor
    offenders use of the Internet thereby limiting their opportunities to offend
    and preventing such behaviour (
K.R.J.
, at para. 108).

[43]

Given
    the discretionary nature of an order made under s. 161(1), an appellate court
    should not interfere absent an error in principle or the imposition of a
    prohibition that is demonstrably unfit and unreasonable in the circumstances:
R.
    v. W.Q.
(2006), 210 C.C.C. (3d) 398 (Ont. C.A.), at para. 25; and
Brar
,
    at para. 26.

The jurisprudence

[44]

The
    appellant submits the Internet Limiting Terms imposed by the sentencing judge
    are unreasonable in that they exceed the scope of the s. 161(1)(d) order
    imposed by this court in
Brar
. That order restrained the offender from
    using the Internet for 20 years to access: (i) any content that violated the
    law;  and (ii) any social media sites, social networks, Internet discussion
    forums or chat rooms (or making a profile on any such service). In fashioning
    that order, this court drew upon the decision of the Quebec Court of Appeal in
R.
    v. Perron
, 2015 QCCA 601.

[45]

In
Perron
, the Quebec Court of Appeal considered the reasonableness of a
    s. 161(1)(d) order in the context of convictions for sexual interference,
    invitation to sexual touching, and luring. Offences concerning child
    pornography were not involved. The s. 161(1)(d) order imposed by the sentencing
    court prohibited use of the Internet for five years except under the
    supervision of an adult who was aware of the offences committed: at para. 35.
    On appeal, the Crown submitted that instead of a total prohibition on internet
    use, the Court of Appeal should substitute a s. 161(1)(d) order that prohibited
    contact by means of the Internet with persons under the age of 18 years. The
    Court of Appeal agreed, and it modified the s. 161(1)(d) order to prohibit, for
    five years, use of the Internet to access illegal content, communicate with
    persons under the age of 18 years other than immediate family members, or
    access social media, such as Facebook.

[46]

In
Brar
, this court set aside as demonstrably unfit and unreasonable a s.
    161(1)(d) order that consisted of a 20-year prohibition on Internet use except
    when at employment and on the ownership or use of any mobile device with
    Internet capabilities. In its place, this court substituted a 20-year
    prohibition order along the lines of that imposed in
Perron
.

[47]

Mr.
    Brar pleaded guilty to counts of sexual assault, prostitution of a person less
    than 18 years of age, and child luring. In substituting a less restrictive s.
    161(1)(d) order, this court focused on several factors: (i) the initial orders
    restriction on the ownership of Internet capable devices fell outside the permitted
    ambit of a s. 161(1)(d) order; (ii) the order imposed would be particularly
    onerous on Mr. Brars ability to secure employment given that it limited access
    to his place of employment, as well as in light of his occupational history as
    a computer science specialist and IT technician; (iii) modern life requires
    some form of access to the Internet for innocent purposes; and (iv) Mr. Brar
    did not pose many of the risks s. 161(1)(d) was designed to prevent, such as
    the possession or distribution of child pornography.

[48]

Since
Brar
, s. 161(1)(d) has been considered by other appellate courts.

[49]

In
R. v. Miller
, 2017 NLCA 22, 354 C.C.C. (3d) 58, the accused entered a guilty
    plea to a charge of possessing child pornography. The sentence imposed included
    a s. 161(1)(d) order that prohibited Mr. Miller from using a computer to
    communicate with persons under the age of 16 years. The Newfoundland and
    Labrador Court of Appeal dismissed an appeal from that order. It held that in assessing
    whether an offender poses a risk to children for the purposes of justifying an
    order under s. 161, a sentencing judge is entitled to consider not only the
    results of relevant risk assessment tests, but also the facts and circumstances
    of a particular offence and/or offender: at paras. 21 and 27-28. The court
    concluded that the large volume of images, their violent content, the tender
    ages of the children depicted, and the period of time over which Mr. Miller had
    viewed the images demonstrated that he posed a risk to children, justifying
    making the s. 161(1)(d) order: at paras. 31-35.

[50]

Finally,
    in
R. v. Athey
, 2017 BCCA 350, the offender pleaded guilty to
    possession of child pornography, the making of child pornography, and sexual
    interference. The police had seized from the offenders devices child
    pornography consisting of approximately 2,300 still images and 27 videos. As
    part of the sentence, the sentencing court imposed a 20-year prohibition order
    under s. 161(1)(d).  Unfortunately, neither the sentencing nor appeal reasons
    described the precise scope of the order. The British Columbia Court of Appeal
    reduced the duration of the prohibition order to 10 years and modified the
    order to permit the offender if his employment so requires it, to use the
    Internet or other digital networks on digital equipment provided by the
    employer during his working hours for purposes of his employers business: at
    para. 51.

The present case

[51]

At
    the time she sentenced the appellant, the sentencing judge did not have the
    benefit of the Supreme Courts decision in
K.R.J.
Nevertheless, her
    reasons, when read as a whole, disclose that she considered the factors
    relevant to making a s. 161(1)(d) prohibition order  that is, whether the
    order constitutes: (i) a reasonable attempt to minimize the risk the offender
    poses to children; and (ii) a careful response to the offenders specific
    circumstances.

[52]

Although
Brar
did not involve a conviction concerning child pornography, in
    that case this court indicated, at para. 22, that the possession of child
    pornography is one of the risks s. 161(1)(d) was enacted to prevent. Here, the
    appellant possessed a significant amount of child pornography. In her reasons,
    the sentencing judge observed that the appellant possessed some 101 images and
    155 videos of child pornography. The material consisted of 45 unique images and
    111 unique movies. As the sentencing judge stated, [t]hose are 156 victimized
    children. The Psychological Assessment Report prepared by Dr. Sandra Jackson
    noted that the files possessed by the appellant depicted pre-pubescent youth
    engaged in various sexual acts with adult males and other youth and some of the
    files involved very explicit images of child abuse.

[53]

The
    possession of child pornography poses a grave risk to children. The sentencing
    judge specifically noted the case law that characterizes the possession of
    child pornography as an abhorrent crime that causes extreme harm:
R. v.
    Nisbet
, 2011 ONCA 26, at para. 1;
R. v. Sharpe
, 2001 SCC 2, [2001]
    1 S.C.R. 45, at para. 158 (concurring); and
R. v. Lynch-Staunton
, 2011
    ONSC 218, at para. 49.

[54]

The
    risk the appellant poses to children by possessing child pornography arose from
    his use of devices that accessed the Internet. There was no evidence the
    appellant had contacted or attempted to contact children. Given those
    circumstances, the sentencing judge did not accede to the Crowns request to
    grant a prohibition order under s. 161(1)(a)-(c). Instead, she limited the
    order to the means by which the appellant posed a risk to children  his use of
    the Internet.

[55]

In
    fashioning the overall sentence, the sentencing judge also took into account
    the results of Dr. Jacksons risk assessment, which assessed him as a low risk
    for sexual recidivism.

[56]

The
    specific conditions the sentencing judge imposed in the s. 161(1)(d)
    prohibition order, while strict, nonetheless carefully responded to the
    offenders specific circumstances. The conditions imposed by the sentencing
    judge permit the use of devices capable of accessing the Internet or email not
    only at the appellants place of employment, but also as required for
    employment related purposes.

[57]

Finally,
    one must recall that the dispute at trial regarding an order under s. 161(1)(d)
    concerned the need for such an order, not the scope of the order in the event
    one was made. The Crown sought a 10-year order containing terms set out in s.
    161(1)(a)-(d). The Crown submitted the conditions to be attached to a s.
    161(1)(d) order should mirror those in the probation order. Defence counsel
    opposed the imposition of any s. 161(1) order. In the alternative, he took the
    position that the only s. 161(1) condition that might be appropriate was s.
    161(1)(d), with conditions that mirrored those of the probation order. In the
    result, the sentencing judge granted only an order under s. 161(1)(d), which
    limited the appellants access to the Internet on the terms worked out by
    counsel.

[58]

In
    those circumstances, I would not interfere with the sentencing judges s.
    161(1)(d) order. The sentencing judge considered the relevant factors and
    crafted an order that reasonably attempted to minimize the risk the appellant
    poses to children and responded to his specific circumstances.

[59]

Although
    I would grant the appellant leave to appeal from the Internet Limiting Terms, I
    would dismiss his appeal.

IV.

DISPOSITION

[60]

For
    the reasons set out above, I would dismiss the appellants appeal from
    conviction. I would grant him leave to appeal from the Internet Limiting Terms,
    but I would dismiss his appeal.

Released: DW Jun 29 2018

David Brown J.A.
I agree. David Watt
    J.A.
I agree. Grant Huscroft J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Sidhu, 2018 ONCA 591

DATE: 20180627

DOCKET: C65446

Watt, Pardu and Roberts JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Jaspal Sidhu

Respondent

Jeff Marshman, for the appellant

Kathleen Farrell, for the respondent

Heard and released orally: June 25, 2018

On appeal from the sentence imposed on April 10, 2018 by
    Justice Allan Maclure of the Ontario Court of Justice.

REASONS FOR DECISION

[1]

On April 10, 2018 the appellant pled guilty to several offences
    including theft, possession of stolen property, flight from police and two
    counts of failing to comply with the terms of a recognizance. In accordance
    with a joint submission, the presiding judge sentenced the appellant to a term
    of imprisonment of 6 months, the sentence to be served consecutively to a 12
    month sentence the parties believed the appellant to then be serving. The
    intention of the parties was that the global sentence be one of 18 months in
    custody.

[2]

As it turned out, the appellant had finished serving his earlier
    sentence about one month prior to the imposition of the sentence under appeal.
    His detention, at that time, was due to the charges to which this sentence from
    appeal relates.

[3]

Since the parties were under the erroneous impression that the appellant
    was still serving his previous sentence when the sentence under appeal was
    imposed, no credit was sought and none given for a period of 32 days between expiration
    of the prior sentence and imposition of the sentence under appeal.

[4]

It is common ground between the parties that the appellant should have
    received a credit of 48 days for the 32 days spent in pre-disposition custody
    on the charges to which this appeal relates. We agree.

[5]

In the result, leave to appeal sentence is granted, the appeal allowed
    and the sentence reduced from 184 days to 136 days. The ancillary orders
    imposed by the sentencing judge will remain in place.

David Watt J.A.

G. Pardu J.A.

L.B. Roberts J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Singh, 2018 ONCA 506

DATE: 20180601

DOCKET: C64832

Feldman, MacPherson and Rouleau JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Harjit Singh

Appellant

Arjun Vishwanth, for the appellant

Katie Doherty, for the respondent

Heard: May 28, 2018

On
    appeal from the order of Justice Leonard Ricchetti of the Superior Court of
    Justice, dated December 19, 2017, quashing the decision of His Worship Alston A.
    Gunness of the Ontario Court of Justice, dated June 1, 2017.

Reasons for Decision

[1]

On November 18, 2016, the appellants truck hit another vehicle, killing
    the passenger in that vehicle. He was charged with driving at 83 km/hr in a 50
    km/hr zone, contrary to s. 128 of the
Highway Traffic Act
, R.S.O.
    1990, c. H.8. On the first appearance on June 1, 2017, the justice of the peace
    noticed that the information stated the date of the offence as November 18,
    2017 (rather than 2016) and quashed the information of his own initiative. The
    following is a recitation of the exchange between the Crown, the justice of the
    peace, and the agent for the appellant that occurred:

Court: The information is no good. The information is no good.
    This is for the month of  were in the month of June 2017, the offence is for
    the 18th of November 2017. No, we havent  we didnt reach  Madam Clerk, its
    not the 18th of November 2017. We didnt reach that date yet, the offence date.

Crown: It should be 2016, Your Worship.

Court: No, this matter went before a justice of the peace. Just
     I dont have jurisdiction on that. No jurisdiction.

Crown: The 18th of November 2016.

Court: No, but the information was sworn. Someone went and
    swear an information before the justice of the peace.

Crown: Courts indulgence, Your Worship

Court: Thats what the courts record

Agent: Your Worship, in this instance I will not be attorning
    to this matter.

Court: No jurisdiction.

Agent: My apologies, I did not realize the error.

Crown: Well, Your Worship, this  this matter is up for the
    first time to be spoken to today. It does seem that this is  this is an MCB
    matter.

Court: I have no jurisdiction to deal with that maam, okay?

Crown: Your Worship, Ms. Whalen is in fact in the building. Perhaps
    I could ask her to come down and speak to this directly.

Court: Ive already made a decision on that.

Crown: Youre already made a decision on that?

Court: Yes.

Crown: Theres no jurisdiction.

Court: Yeah, yeah, the matter went before a justice of the
    peace and the matter- gave life to an information so its improper today.

Crown: There is a problem before the Court.

Court: Yes.

Crown: Thank you, [agent].

Agent: Thank you, Your Worship. Thank you, my friend.

Crown: We cannot proceed on this.

Court: Its unfortunate.

[2]

On a
certiorari
application brought by the Crown before a judge
    of the Superior Court of Justice, the application judge found that the justice
    of the peace had no jurisdiction to quash the information and that a
    miscarriage of justice had thereby occurred. The information was referred back
    to the provincial offences court to be dealt with in accordance with the
Provincial
    Offences Act
, R.S.O. 1990, c. P.33.

Issue on the Appeal

[3]

Did the justice of the peace commit jurisdictional error by quashing the
    information without reference to ss. 34 and 36 of the
Provincial Offences
    Act
and without granting the Crown an opportunity to make submissions?

Discussion

[4]

The appellant submits that the circumstances of this case are analogous
    to what occurred in
London (City) v. Young
, 2008 ONCA 429, 91 O.R.
    (3d) 215, and that the justice of the peace had the same jurisdiction to quash
    as in that case. He also submits that the court in
London v. Young
suggested
    that ss. 34 and 36 did not apply to a first court appearance but only later in
    a trial proceeding. Finally, he argues that the Crown was not prevented from
    putting its position on the record during the first appearance before the
    justice of the peace.

[5]

We reject each of these submissions.

[6]

London v. Young
concerned the operation of s. 9 under Part I of
    the
Provincial Offences Act
, where a charge is laid using a certificate,
    not an information, and the charged person chooses not to respond. In those
    circumstances, there is no appearance by the defendant, and s. 9(1) obliges the
    justice to either convict if the certificate is regular, or to quash where the
    certificate is not complete and regular on its face.

[7]

In this case, an information was laid, summoning the accused to appear
    on the set date. Section 9 has no application to an information. Rather, Part
    III provides for the commencement of proceedings by laying an information. Part
    IV then deals with proceedings that go to trial and sentencing. Sections 34 and
    36 are contained in Part IV. Section 34 provides the power to amend an
    information. Subsection 34(4) sets out the factors the court is to consider
    when deciding whether to amend. It provides:

The court may, at any stage of the proceeding, amend
    the information or certificate as may be necessary if it appears that the
    information or certificate,

(a) fails to state or states defectively anything
    that is requisite to charge the offence;

(b) does not negative an exception that should be
    negatived; or

(c) is in any way defective in substance or in
    form.

[8]

Section 36 is the only section that gives the court the power to quash
    an information based on a defect on the face of the information. The procedure to
    quash an information requires a motion, which may be brought without leave
    before the defendant has pleaded, and thereafter only with leave of the court.
    Subsection 36(2) precludes the court from quashing an information unless an
    amendment or particulars under section 33, 34 or 35 would fail to satisfy the
    ends of justice.

[9]

The appellant submits that these sections do not apply on a first
    appearance and that there is a gap in the legislation that allowed the justice
    of the peace to decline jurisdiction over this information and to quash it.

[10]

We
    reject this submission. Subsection 34(1) provides that the court may amend the
    information at any stage of the proceedings. That clearly includes the first
    appearance. Under s. 36, a motion to quash can be brought without leave of the
    court only before the defendant has pleaded, which would of course include the
    first appearance.

[11]

A
    motion to quash could have been brought before the justice of the peace on the
    first appearance date, and he could have proceeded to address the issue of
    amendment as required. The statement that the appellant relies on at para. 18
    of
London v. Young
regarding s. 34 that it is clear from reading the
    entire section that it is intended to apply in the context of a proceeding on
    an information or certificate that has moved forward to the hearing stage is
    an explanation of the difference between the s. 9 default proceeding where
    there is no appearance by the defendant, and any other proceeding under the
Act
, where the defendant is ordered to
    appear.

[12]

We
    agree with the application judge that the justice of the peace also committed
    jurisdictional error by failing to accord the Crown the opportunity to make
    submissions before quashing the information of his own motion.

[13]

Subsection
    141(4) of the
Provincial Offences Act
requires a court to find that a
    substantial wrong or miscarriage of justice has occurred before granting relief
    by way of
certiorari
.
We agree with the application judge that
    quashing the information without considering whether to amend it in accordance
    with the requirements in ss. 34 and 36 of the
Act
resulted in a
    miscarriage of justice, because it prevented the charge being considered on its
    merits.

Result

[14]

The
    appeal is dismissed.

K.
    Feldman J.A.

J.C.
    MacPherson J.A.

Paul
    Rouleau J.A


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Spilman, 2018 ONCA 551

DATE: 20180615

DOCKET: C59188

Rouleau, Watt and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Derek Norman Spilman

Appellant

Derek Norman Spilman, acting in person

Amy Ohler, appearing as duty counsel

Lorna Bolton, for the respondent

Heard: January 9, 2018

On appeal from the sentence imposed on July 22, 2014 by
    Justice André L. Guay of the Ontario Court of Justice, with reasons reported at
    2014 ONCJ 373.

Watt J.A.:

[1]

Not all dangerous offenders are sentenced to detention in a penitentiary
    for an indeterminate period.

[2]

Derek Norman Spilman is a dangerous offender. A judge concluded that
    there was a reasonable expectation that a measure lesser than an indeterminate
    sentence would adequately protect the public against violent recidivism by
    Spilman. And so the judge sentenced Spilman (the appellant) to imprisonment for
    10 years
[1]
and ordered that he be subject to long-term supervision for a further period of
    10 years.

[3]

The appellant says that the custodial portion of his sentence  10 years
    less credit for pre-disposition custody  is unfit and should be reduced. These
    reasons explain why I disagree and would dismiss the appeal.
[2]

The Background Facts

[4]

To locate the claim of error in its proper setting, some brief
    background about the predicate offence, as well as the basis for the dangerous offender
    finding and the sentence imposed is necessary.

The Predicate Offence

[5]

The appellant was tried by a judge of the Ontario Court of Justice on an
    information containing a single serious personal injury offence  assault
    causing bodily harm  and three counts of breaching a recognizance entered into
    under s. 810.2 of the
Criminal Code
.

[6]

The offences all arise out of the same circumstances. An evening of
    drinking with the complainant. More drinking at a bar. Altercations between the
    appellant and others at the bar. A severe beating of the appellant by two other
    men. Then a return to the complainants home. There the appellant, an invited
    guest, beat and kicked his host, leaving her with cuts, bruises and nerve
    damage to the right side of her face.

The Dangerous Offender Proceedings

[7]

The Crown obtained the consent necessary to institute dangerous offender
    proceedings. The hearing judge received extensive written materials as well as
    the reports and testimony of two experienced forensic psychiatrists. Both
    doctors concluded that the appellant satisfied the statutory criteria for
    designation as a dangerous offender. However, they differed about whether there
    was a reasonable expectation that a sentence other than imprisonment in a
    penitentiary for an indeterminate period would adequately protect the public
    against the appellants violent recidivism.

The Dangerous Offender Finding

[8]

The hearing judge was satisfied beyond a reasonable doubt that the
    appellant met the requirements of each subparagraph in s. 753(1)(a) of the
Criminal
    Code
for designation as a dangerous offender. The judge concluded:

A review of the evidence, including
    Derek Spilmans criminal record and the various reports submitted with respect
    to that record, clearly establishes a pattern of repetitive behaviour, which
    includes the offence for which he is being sentenced, which shows a failure to
    restrain his behaviour and the likelihood that this behaviour will in the
    future cause death or injury to other persons or inflict on them severe
    psychological damage.

In Derek Spilmans case, that behaviour involves repeated acts
    of physical violence and aggression committed against others since he was 15
    years of age. Common to many of these assaults is the emotional and apparent
    psychological consternation of the victims resulting from the unrestrained
    nature of Derek Spilmans attacks on them.

I find that Derek Spilmans behaviour, commencing at the age of
    15, and ending with his assault on C.F., constitutes a pattern of persistent,
    aggressive behaviour which shows a substantial degree of indifference on his
    part to the reasonably foreseeable consequences to other persons of that
    behaviour.

I also find that Derek Spilmans behaviour during the course of
    the offence committed by him against C.F. was of such a brutal nature as to
    compel the conclusion that his future behaviour would unlikely be inhibited by
    normal standards of behavioural restraint.

The Submissions on Sentence

[9]

Crown counsel at the dangerous offender hearing (not Crown counsel on appeal)
    sought a sentence of detention in a penitentiary for an indeterminate period.
    He emphasized that an indeterminate sentence was the presumptive sentence for
    dangerous offenders. He advocated that the evidence of Dr. Pearce, whom he had
    called as a witness for the Crown, should be preferred over that of Dr.
    McMaster who was called as a defence witness on the issue of the adequacy of
    any lesser sentence to protect the public against future violent recidivism by
    the appellant. In the alternative, the Crown sought a determinate sentence of
    3-4 years followed by long-term supervision order, though Crown counsel noted
    the custodial term might  [be] even longer based on the evidence youve heard.

[10]

Counsel
    for the appellant at the hearing (not duty counsel) sought a sentence of time
    served, and, in the alternative, a three month fixed-term sentence of
    imprisonment followed by long-term supervision. He urged the hearing judge to
    prefer the expert opinion of Dr. McMaster who concluded that such a blended
    sentence would adequately protect the public against future violent recidivism
    by the appellant.

The Reasons for Sentence

[11]

In
    his reasons for sentence, the hearing judge preferred the testimony of Dr.
    McMaster to that of Dr. Pearce.

[12]

The
    hearing judge observed that both risk and risk management were contextual. Risk
    management depended upon treatment during the custodial portion of the sentence
    and supervision thereafter. He noted the expert evidence suggested a
    significant decrease in the risk of violent recidivism beginning at age 45. He
    concluded that simply because the appellants condition would require careful
    monitoring and supervision over a period of 10-15 years was not a reason to
    conclude that the eventual supervision of the appellant in the community was
    not an appropriate legal response.

[13]

The
    hearing judge considered that the appellant was more likely to receive and
    benefit from more services if sentenced to a lengthy term of imprisonment
    followed by long-term supervision than he would if he were to receive an
    indeterminate sentence. The failure of the appellant to benefit from prior
    programs was, the judge concluded, attributable to the length of earlier
    sentences not the inefficacy of the programs themselves.

[14]

The
    hearing judge also considered that the appellants conduct in pre-disposition
    custody supported the conclusion that he was capable of controlling his violent
    impulses and nature, if motivated to do so. That said, the hearing judge was
    not satisfied that a sentence of imprisonment for a fixed-term alone, without
    community supervision, would adequately protect the public.

[15]

In
    the end, the hearing judge settled on the blended sentence option of s.
    753(4)(b) as the appropriate disposition. He explained:

While the process of change has begun with Derek Spilman, the
    time remaining under appropriate sentence for his offence, the assault causing
    bodily harm of C.F., after credit is given for pre-sentence custody, would be
    insufficient to allow him satisfactorily to deal with his violence and
    substance abuse issues. And, in fact, the  what both psychiatrists have
    concluded about his substantial risk to commit that serious violent offence
    within the next 7 or 8 years. I also believe, on the basis of the evidence
    which I heard, that there is a reasonable expectation that the lesser sentence
    measure provided under s. 753(4)(b) of the
Code
will protect the
    public against the commission by the offender of murder or a serious personal
    injury offence.

In light of the evidence adduced at this hearing, it would be
    appropriate then to impose on Derek Spilman, for the offence of assault causing
    bodily harm on C.F., a sentence of 10 years of custody, together with a long
    term supervision order of 10 years. Bearing in mind s. 719(3.1) of the
Code
,
    and the fact that the offence of assault causing bodily harm on C.F. was
    committed while Derek Spilman was bound by a recognizance made pursuant to s.
    810.2 of the
Code
, I allow Derek Spilman a credit for time served in
    pre-sentence custody calculated on a one for one day basis.

The grounds of appeal

[16]

The
    appellant challenges the fitness of the custodial portion of the blended
    sentence imposed upon him. He says that the hearing judge failed to properly
    apply the principles of sentencing of Part XXIII of the
Criminal Code
in determining the length of the custodial portion of the sentence. The quantum
    of the custody component of the blended sentence was not, as it should have
    been, in accordance with the principle of proportionality, but was determined
    by the judges assessment of how long the appellant should be in custody to
    complete correctional programs such as anger management prior to his release
    into the community under long-term supervision.

[17]

As
    an additional submission, the appellant says that the hearing judge erred in
    his calculation of the credit the appellant should receive for pre-disposition
    custody.

The Fitness of the Sentence

[18]

The
    appellant begins with a reminder that, at bottom, Part XXIV of the
Criminal
    Code
is concerned with sentencing. And as a sentencing provision, as the
    authorities make clear, the principles of sentencing in Part XXIII, especially
    ss. 718-718.2, apply to dangerous offender proceedings. Among those principles
    is the fundamental principle of proportionality in s. 718.1.

[19]

The
    application of the principles in Part XXIII, especially the fundamental
    principle of proportionality, even according primary emphasis to denunciation,
    deterrence and separation of a dangerous offender from society to ensure its
    protection, cannot sustain imposition of the custodial component of the blended
    sentence imposed here.  Quite simply, imposition of the maximum sentence in the
    circumstances of this case is disproportionate to the gravity of the offence
    and the degree of responsibility of the appellant as the offender who committed
    it. Concern for the appellants rehabilitation does not justify a departure
    from the fundamental principles of sentencing.

[20]

The
    respondent counters with a submission that no intervention with the sentence
    imposed at trial is warranted.

[21]

According
    to the respondent, the deference due to sentencing decisions under Part XXIII
    continues in connection with sentencing decisions under Part XXIV. In
    particular, in the selection of sentencing dispositions under s. 753(4). No
    less stringent standard of review than that mandated by
R. v. Lacasse
,
    2015 SCC 64, [2015] 3 S.C.R. 1089 applies when the sentence under review is
    that imposed in dangerous offender proceedings.

[22]

The
    respondent accepts that the provisions of Part XXIII, in particular ss.
    718-718.2, apply to sentencing dangerous offenders under Part XXIV. But these
    principles cannot be transported without regard to the context of Part XXIV.
    After all, a dangerous offender designation has been made, not simply a
    conviction recorded for the predicate offence. The purpose of the sentence is
    to ensure the public is adequately protected against the likelihood of violent
    recidivism by one with an established record of violence. And that is very
    different from the purpose of sentencing under Part XXIII.

[23]

In
    this case, the respondent says, the custodial sentence imposed was supported by
    expert evidence accepted by the hearing judge, which suggested that the
    appellant required a lengthy sentence to ensure his completion of
    rehabilitative programs prior to supervision in the community. To do otherwise
    would put the safety of the community at risk during the period of long-term
    supervision. In any event, the respondent argues, the selection of a 10 year
    sentence enured to the benefit of the appellant. After all, the only other
    sentencing alternative was a sentence of detention in a penitentiary for an
    indeterminate period.

The Governing Principles

[24]

Dangerous
    offender proceedings are sentencing proceedings. But unlike other sentencing
    proceedings, dangerous offender proceedings entail a two-stage process.

[25]

To
    begin, the
designation
stage. This involves and requires a
    determination of whether the evidence adduced on the hearing satisfies the
    requirements of s. 753(1) of the
Criminal Code
for the offender to be
    designated a dangerous offender:
R. v. Boutilier
, 2017 SCC 64, [2017]
    2 S.C.R. 936, at para. 14.

[26]

To
    obtain a designation of dangerousness resulting from the offenders violent
    behaviour, the Crown must prove beyond a reasonable doubt that:

i.

the offence of which the offender has been convicted  the predicate
    offence  is a serious personal injury offence as defined in s. 752; and

ii.

the offender must represent a threat to the life, safety or physical or
    mental well-being of other persons on the basis of evidence establishing a
    violent pattern of conduct within ss. 753(1)(a) or (b).

See,
Boutilier
, at paras. 17-18.

[27]

The
    appellant devoted little time to contesting his designation as a dangerous offender.
[3]
I see no reason to disturb that finding.

[28]

The
    second stage of the dangerous offender regime  the
penalty
stage
    has to do with the sentencing of those found to be dangerous offenders. As in
    all sentencing proceedings, it is incumbent on the hearing judge to apply the
    principles and mandatory guidelines put in place by ss. 718-718.2 of Part XXIII
    of the
Criminal Code
:
Boutilier
, at paras. 53, 61 and 63. Parliament
    has decided that, for individuals designated as dangerous offenders, protection
    of the public is an enhanced sentencing objective. However, it does not follow
    from the mere enhanced place of protection of the public that this objective
    forecloses all others in the sentencing decision. It remains necessary to
    evaluate all the circumstances:
Boutilier
, at para. 56.

[29]

Section
    753(4) lists three sentencing dispositions available to the hearing judge for
    those found to be dangerous offenders:

i.

detention in a penitentiary for an indeterminate period;

ii.

a sentence of imprisonment of at least two years for the predicate
    offence followed by a period of long-term supervision of not more than 10
    years; or

iii.

a sentence for the predicate offence.

[30]

Section
    753(4.1) provides guidance on how hearing judges can properly exercise their
    discretion, in accordance with the applicable objectives and principles of
    sentencing, to impose the appropriate sentence to manage the established threat
    that the offender poses to society. The provision requires the judge to examine
    the evidence adduced at the hearing to determine whether there is a reasonable
    expectation that a lesser measure  a conventional fixed-term sentence or a
    fixed-term sentence of at least two years followed by a long-term supervision
    order  will adequately protect the public against the risk that the offender
    will commit murder or a serious personal injury offence. The hearing judge must
    first exhaust the less coercive sentencing options to address this risk of recidivism
    before imposing a sentence of indeterminate detention in a penitentiary:
Boutilier,
at para. 69.

[31]

The
    arguments advanced by duty counsel require consideration of two further issues
    of principle, which I would paraphrase as whether, in determining the length of
    the custodial portion of a composite sentence imposed under s. 753(4)(b), a
    hearing judge:

i.

is restricted to the range of sentence that would be appropriate for the
    offender upon conviction of the predicate offence, but in the absence of any
    dangerous offender proceedings; and

ii.

may consider the time reasonably necessary for the offender to complete
    available rehabilitative programs in the penitentiary.

[32]

As
    I will explain, I am satisfied that in determining the length of the fixed-term
    custodial component of a composite sentence under s. 753(4)(b), the hearing
    judge is not restricted to imposing a term of imprisonment that would be
    appropriate on conviction of the predicate offence but in the absence of a
    dangerous offender designation. The hearing judge must take into account the
    statutory limits of the offence for which sentence is being imposed, the
    paramount purpose of public protection under Part XXIV, and other applicable
    sentencing principles under ss. 718-718.2. This analysis may justify fixed term
    sentences lengthier than those appropriate outside the dangerous offender
    context. I reach this conclusion for six reasons.

[33]

First,
    Parliament has determined that protection of the public is an enhanced
    sentencing objective for that class of offenders who have been designated as
    dangerous in light of their previous, current and likely future conduct.
    Emphasis on the public safety component is consistent with the fact that public
    protection is the general purpose of Part XXIV of the
Criminal Code
:
Boutilier,
at para. 56;
R. v. Steele,
2014 SCC 61, [2014] 3 S.C.R. 138, at
    para. 27. This enhanced objective of public safety distinguishes proceedings
    under Part XXIV from those under Part XXIII and is of sufficient cogency to
    warrant sentencing dispositions beyond those ordinarily available for the predicate
    offence: see ss. 753(4)(a) and (b).

[34]

Second,
    a related point. The context provided by s. 753(4)(a)  the provision
    permitting sentences of indeterminate detention  makes it clear that hearing
    judges have an increased flexibility under the dangerous offender regime to
    construct a sentence  that emphasizes protection of the public, but is not
    concordant with the sentencing options available upon conviction of the
    predicate offence. A sentence of indeterminate detention represents a
    determination that the relative importance of the sentencing objectives of
    rehabilitation, deterrence and retribution are greatly attenuated in the case
    at hand and the objective of prevention correspondently increased:
R. v.
    Lyons
, [1987] 2 S.C.R. 309, at p. 329. We learn from
Boutilier
that a sentence of indeterminate detention is not an exception to the
    principles of sentencing. To the contrary, such a sentence is one mandated by
    their proper application:
Boutilier,
at para. 55. If a proper
    application of sentencing principles in the dangerous offender setting under s.
    753(4) can justify a sentence of indeterminate detention  a sentencing
    disposition not available in the traditional sentencing context  it would seem
    logically to follow that those same principles can also justify less onerous
    fixed-term sentences that extend beyond what would be appropriate outside the
    dangerous offender setting.

[35]

Third,
    nothing in the plain language of s. 753(4)(b), or for that matter of s.
    753(4)(c), indicates that the provisions do not share the general purpose of
    Part XXIV sentences. The plain language of s. 753(4)(c)  impose a sentence
    for the offence for which the offender has been convicted  requires nothing
    more than adherence to sentencing options provided for the predicate offence
    any minimum and the maximum term of imprisonment.
[4]
That wording does not preclude hearing judges from placing enhanced focus on
    public safety when imposing a sentence.

[36]

Fourth,
    the requirement that the custodial component of a composite sentence under s.
    753(4)(b) must be a minimum punishment of imprisonment for a term of two years
    signals a departure from the traditional sentencing principles of Part XXIII.

[37]

Fifth,
    conviction of a predicate serious personal injury offence is an essential
    pre-condition to designation of the offender as a dangerous offender, but it is
    not, as it is in conventional sentencing proceedings, the offence for which the
    offender is being sentenced. The appellant is being sentenced not only as a
    person who committed the predicate offence, but because he is a dangerous
    offender, albeit a person who committed the predicate offence among other
    things. The different focal points of the sentencing proceedings puts paid to
    the claim that the length of the custodial term in a composite sentence in
    dangerous offender proceedings should mirror that in stand-alone proceedings
    for the predicate offence. To do so would be to render the dangerous offender
    finding redundant.

[38]

Finally,
    the available sentencing options under ss. 753(4)(b) and (c) should be
    interpreted broadly and generously. After all, they represent the only
    available alternatives to ensure the protection of the public from dangerous
    offenders other than the most extreme form of preventive sentence that our law
    permits  detention in a penitentiary for an indeterminate period:
Boutilier
,
    at para. 3. To interpret the provisions of s. 753(4)(b) in this way, that is to
    say, by imposition of a custodial term within the sentencing options available
    for the predicate offence but beyond the range appropriate in the absence of a dangerous
    offender designation, permits the hearing judge to impose the least intrusive
    sentence required to achieve the primary purpose of Part XXIV, yet reserves
    indeterminate sentences for those for whom no other measure will adequately
    protect the public:
Boutilier,
at para. 60.

[39]

I
    turn next to the question of whether the hearing judge may consider the time
    reasonably necessary for the dangerous offender to complete available
    rehabilitative programs in determining the length of the custodial component of
    the composite sentence under s. 753(4)(b). For reasons that I will develop, I
    am satisfied that a hearing judge is entitled to take into account access to
    rehabilitative programming in a penitentiary in deciding upon the length of the
    custodial component of a composite sentence under s. 753(4)(b).

[40]

No
    one gainsays the relevance of evidence about a dangerous offenders prospects
    for treatment to the determination of the sentencing disposition required to
    adequately protect the public against the prospect of future violent
    recidivism:
Boutilier,
at para. 45. It is also well settled that
    outside the dangerous offender environment, sentencing judges are disentitled
    to determine the length of a sentence of imprisonment solely by reference to
    the period of time necessary to complete essential or recommended
    rehabilitative programs: see, for example,
R. v. M.B.
(1987), 36
    C.C.C. (3d) 573 (Ont. C.A.), at pp. 574-575;
R. v. Legere
(1995), 22 O.R.
    (3d) 89 (C.A.), at p. 101.

[41]

Implicit
    if not explicit in the appellants complaint is that to take cognizance of the
    time needed for rehabilitative treatment or programs in a penitentiary in
    fixing the length of the custodial component of composite sentence results in
    the unwarranted extension of the appropriate range of sentence, and does not
    accord the fundamental principle of the proportionality its proper due.

[42]

As
    it seems to me, this argument assumes that the range of sentence appropriate
    for the predicate offence
outside
the dangerous offender regime
    provides the benchmark against which to measure sentences imposed under ss.
    753(4)(b) or (c) within Part XXIV. But, as we have already seen, these are not
    comparable regimes. The submission fails to give effect to the indelible fact
    that the offender has been designated a dangerous offender and to the enhanced
    sentencing objective of protection of the public which is the focus of Part
    XXIV. Rather than comparing the sentence imposed to the appropriate sentence
    outside the dangerous offender context, the relevant question should be whether
    the hearing judge has reasonably assess[ed] the relative importance of the
    sentencing objectives in [a] particular case:
Boutilier
, at para. 55.

[43]

Second,
    accounting for a dangerous offenders access to rehabilitative programs within
    the federal correctional system is consistent with the primary purpose of the
    dangerous offender sentencing provisions in Part XXIV: protection of the
    public. Facilitating access to treatment or other rehabilitative programs factors
    into the hearing judges decision about whether there is a reasonable
    expectation that a sentence other than detention in a penitentiary for an
    indeterminate period will adequately protect society from the risk of future
    violent recidivism.

[44]

This
    point is well made in
R. v. Hopley
, 2015 BCCA 499, 380 B.C.A.C. 160. The
    appellant was found to be a long-term offender. The hearing judge imposed a
    composite sentence under s. 753.1(3). Hopley appealed his sentence on the basis
    that he had not been given adequate credit for the time he had spent in
    pre-disposition custody. Central to the decision of the hearing judge was the
    need for Hopley to have access to rehabilitative programs in the penitentiary
    before the long-term supervision order began. The British Columbia Court of Appeal
    dismissed the appeal and made the following observations:

Sentences under Part XXIV of the Code are structurally
    different and have a different focus than those under Part XXIII of the Code.
    Sentences under Part XXIII draw upon the principles and purposes of sentencing
    in ss. 718, 718.1 and 718.2 to determine the scope of the circumstances in s.
    719(3.1) that would justify enhanced credit. The principles and objectives of
    sentencing set out in ss. 718, 718.1 and 718.2 must also be considered in
    determining if a long-term offender order should be imposed (see
R. v.
    Johnson
, 2003 SCC 46 at para. 28 for a discussion in the dangerous
    offender context), however, the principal focus of sentences under Part XXIV is
    on the protection of the public.
With respect to a long-term offender
    order, the protection of the public is sought to be achieved by reducing the
    offenders risk through programming and treatment while serving the determinate
    sentence in order to facilitate the offenders supervised reintegration into
    the community.
[Emphasis added.]

The ultimate sentence, including the effective sentence and its
    adjustment for pre-sentence custody at the lower rate, carefully balanced all
    the relevant considerations of Mr. Hopleys antecedents, his ongoing sentencing
    needs, and the paramount objective of the protection of the public from Mr.
    Hopleys high risk to reoffend against children. The judge found that it was
    unlikely Mr. Hopleys substantial risk to reoffend would be sufficiently
    reduced to a level that could be managed in the community without a lengthy
    period of incarceration, during which it was hoped that he would successfully
    complete the high intensity Sex Offender Program or alternatively have his risk
    to reoffend reduced through the aging process.

The overarching objective of the protection of the public, through
    the formulation of a determinate period of imprisonment adjusted for credit for
    pre-sentence custody at the lower rate in order to facilitate the offenders
    supervised reintegration into the community, distinguishes this case from [
R.
    v. Gazeley
, 2006 BCCA 240, 210 C.C.C. (3d) 218]. In this case, the judges
    discretionary application of the lower credit rate for the qualitative
    rationale, and impliedly for the quantitative rationale, was justified through
    a principled analysis that focused on the objective of the publics protection.

See,
Hopley
, at paras. 59, 63 and 64. In
    connection with the use of a reduced rate of credit for pre-disposition custody
    to achieve this purpose, see also
R. v. Cote
, 2015 SKCA 52, 457 Sask.
    R. 237, at paras. 78-81; and
R. v. D.(E.E.)
, 2007 SKCA 99, 304 Sask.
    R. 192, at para. 74.

[45]

Third,
    imposition of a fixed-term custodial sentence that accounts for access to
    rehabilitative programs in a penitentiary at the front end of a composite
    sentence under s. 753(4)(b) may also allow a hearing judge to avoid imposition
    of an unnecessary sentence of indeterminate detention with its profoundly
    devastating impact on the dangerous offender:
Lyons
, at p. 339.

[46]

To
    illustrate, take the facts of
R. v. Walters
, 2013 ONSC 6551.

[47]

Walters
    was convicted of criminal harassment and designated a dangerous offender. His
    counsel sought a four to six month sentence in a reformatory in addition to
    three years of pre-disposition custody, prior to commencement of a ten year
    long-term supervision order. But expert evidence indicated that Walters
    required access to high intensity sexual assault programs only available in the
    penitentiary absent which he was at risk to reoffend.

[48]

The
    hearing judge imposed a two year penitentiary sentence followed by a ten year long-term
    supervision order. She refused to compare the sentence to be imposed in the
    case with one that should be imposed in a non-dangerous offender case:
Walters
,
    at para. 59. The hearing judge accepted the evidence that Walters required
    access to programming only available in the penitentiary and tailored the
    sentence accordingly.

[49]

On
    appeal, this court upheld the hearing judges decision in brief reasons which,
    in their relevant part, are:

We are satisfied that the trial judge properly approached her
    task of sentencing the appellant, after he had been found a dangerous offender,
    in a manner that emphasized the least intrusive sentence required to achieve
    the primary purpose of the statutory scheme:
R. v. Boutilier
, 2017 SCC
     64, [2017] 2 S.C.R. 936, at para. 60.
In particular, the trial judge
    had regard to the need for the appellant to be in a penitentiary setting in
    order to access necessary high intensity sexual assault programs. The trial
    judge determined this to be necessary treatment to address the significant
    threat posed by the appellant to the community.
[Emphasis added.]

See,
R. v. Walters,
2018 ONCA 391, at para.
    13. This court reached a similar conclusion in
R. v. McCauley
(2004),
    187 O.A.C. 139, at paras. 3-5. See also,
R. v. Edwards
, 2008 ONCA 414,
    237 O.A.C. 40, at paras. 18-22;
R. v. Wilton
, 2016 SKCA 131, at paras.
    53-54.

[50]

Had
    the hearing judge in
Walters
been prohibited from fashioning a
    sentence responsive to Walters need for treatment in the penitentiary, she may
    well have been forced to impose a sentence of indeterminate detention under s. 753(4)(a).
    The unfairness to Walters would have been manifest. He would have faced, at a
    minimum, a seven year term of imprisonment before being entitled to a parole
    hearing under s. 761(1) of the
Criminal Code
, even though
no
evidence at the hearing suggested that a sentence of that length was necessary
    to safeguard the public. This outcome would have contradicted the Supreme
    Courts clear guidance in
Boutilier
, at para. 65, and in
R. v. Johnson
,
    2003 SCC 46, [2003] 2 S.C.R. 357, at para. 44, that courts should impose an
    indeterminate period of detention, if, and only if, an indeterminate sentence
    is the least restrictive means by which to reduce the public threat posed by
    the offender to an acceptable level.

[51]

For
    these reasons, I am satisfied that when imposing a sentence under ss. 753(4)(b)
    or (c), a hearing judge may impose a fixed-term sentence that exceeds the
    appropriate range in the non-dangerous offender context, to ensure the offender
    has access to treatment programs in a penitentiary. The length of the sentence
    imposed, however, should be subject to three constraints.

[52]

First,
    the punishment provisions for the predicate offence. Any custodial sentence
    imposed as a component of a composite sentence under ss. 753(4)(b) or as a standalone
    disposition under s. 753(4)(c), cannot exceed the maximum term of imprisonment
    for the predicate offence.

[53]

Second,
    the sentencing objectives, principles and factors in ss. 718-718.2. While
    factors such as the degree of responsibility of the offender and the gravity of
    the offence play a lesser role in determining a sentence under Part XXIV, these
    considerations cannot be entirely ignored. Even where their significance is
    attenuated, they prevent the imposition of lengthy fixed-term sentences that
    are entirely disconnected from the circumstances of the offence giving rise to
    the sentencing proceedings.

[54]

Third,
    the length of sentence imposed must be responsive to evidence adduced at the
    hearing. The evidence about treatment programs should be specific, preferably
    indicating an approximate length or range of time within which the offender may
    be expected to complete the programming said to be necessary to protect the
    public. There must be a clear nexus between that programming and future public
    safety, sufficient to support a reasonable expectation that the overall
    sentence will adequately protect the public against the commission by the
    offender of murder or a serious personal injury offence: s. 753(4.1). And the
    evidence must account for the offenders amenability to treatment and the
    prospects for the success of treatment in reducing or containing the offenders
    risk of reoffending:
R. v. Little
, 2007 ONCA 548, 225 C.C.C. (3d) 20,
    at para. 40.

The Principles Applied

[55]

For
    the brief reasons that follow, I would not interfere with the fixed-term
    custodial sentence imposed by the hearing judge. After credit for time spent in
    pre-disposition custody, the term of imprisonment in a penitentiary was for
    slightly less than 7 years.

[56]

To
    begin, for the reasons expressed above, I do not accept the submission advanced
    by the appellant that the custodial term of a composite sentence authorized by
    s. 753(4)(b) should be equivalent or near equivalent in length to the sentence
    that would be appropriate for the predicate offence standing alone. Nor did the
    hearing judge err in principle by having regard for the appellants need for
    rehabilitative programming in the penitentiary in determining the fixed term of
    imprisonment to impose.

[57]

The
    hearing judge considered the available programs in the penitentiary to be
    necessary to address the significant threat the appellant posed to the
    community. Evidence was given about the availability of these programs and
    their suitability to address the root causes of the appellants recidivism. And
    there was expert evidence about the period during which such programming would
    be required so as not to put at risk public safety during the period of
    long-term supervision.  In the end, the hearing judge settled upon a composite
    sentence that he was satisfied would adequately protect the public against the
    appellants future commission of murder or a serious personal injury offence.
    It was the less intrusive of the only viable sentencing options, the other
    being a sentence of detention in a penitentiary for an indeterminate period. I
    am not prepared to say that he erred in doing so.

Pre-Sentence Custody

[58]

Duty
    counsel submits that the hearing judge erred by refusing to award the appellant
    enhanced credit for presentence custody. The hearing judge relied on s.
    719(3.1) of the
Criminal Code
to justify awarding credit on a 1:1
    basis. Following the appellants hearing, s. 719(3.1) was declared
    unconstitutional by this court:
R. v. Meads
, 2018 ONCA 146.

[59]

I
    would not give effect to this submission, for three reasons. First, in this
    case, the appellants proven breaches of a s. 810.2 recognizance militate
    against an award of enhanced credit even absent the former prohibition in s.
    719(3.1):
R. v. Morris
, 2013 ONCA 223, 282 C.R.R. (2d) 1, at para. 19;
R. v. McBeath
, 2014 BCCA 305, 314 C.C.C. (3d) 531, at para. 20. Second,
    the appellant was held until warrant expiry when serving his prior sentence and
    is unlikely to be a candidate for early release. In these circumstances, [e]nhanced
    credit for presentence custody could not be justified on the basis of a lost
    opportunity to gain credits toward some form of early release:
R. v. O.
    (M.)
, 2016 ONCA 236, 348 O.A.C. 216, at para. 31. Third, enhanced credit
    would unduly interfere with the length of custodial sentence deemed necessary
    by the trial judge to adequately protect the public from the risk of the
    appellants recidivism:
Hopley
, at paras. 63-66;
Cote
, at
    para. 80;
Walters
(ONSC), at para. 59.

Conclusion

[60]

In
    the result, I would dismiss the appeal.

Released: PR Jun 15 2018

David
    Watt J.A.
I agree. Paul Rouleau J.A.
I agree. David Brown J.A.

[1]

The actual sentence imposed was 10 years less credit of 1118
    days for time spent in pre-disposition custody. The net sentence is six years
    343 days.

[2]

The appellants appeal from conviction was dismissed at the
    conclusion of oral argument.

[3]

The appellant briefly raised two points potentially relevant
    to his designation as a dangerous offender. First, he complained that both psychiatric
    experts who testified at his hearing worked at the same office. I see no
    evidence that the independence and impartiality of either witness was thereby
    compromised. The appellant also argued that hearing judge failed to consider the
    possibility of a long-term offender designation. I disagree. The hearing judge
    extensively canvassed the case law interpreting the long-term offender provisions,
    and was clearly alive to the possibility of designating the appellant as a
    long-term offender. His reasons make clear that he did not view such an order
    as a viable option in this case.

[4]
Compare, for example, the inclusion of the language for which it would be
appropriate
to impose a sentence of imprisonment of two years of more in ss. 753(1.1) and
    753.1(1)(a) (emphasis added).


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. 539(1),
    (2), (3) or (4) of the
Criminal Code
shall continue.  These sections of
    the
Criminal Code
provide:

539(1)          Prior to the
    commencement of the taking of evidence at a preliminary inquiry, the justice
    holding the inquiry

(a) may, if application therefor is
    made by the prosecutor, and

(b) shall, if
    application therefor is made by any of the accused,

make an order directing
    that the evidence taken at the inquiry shall not be published in any document
    or broadcast or transmitted in any way before such time as, in respect of each
    of the accused,

(c) he or she is
    discharged; or

(d) if he or she is
    ordered to stand trial, the trial is ended.

(2)     Where an accused is not
    represented by counsel at a preliminary inquiry, the justice holding the
    inquiry shall, prior to the commencement of the taking of evidence at the
    inquiry, inform the accused of his right to make application under subsection
    (1).

(3)     Everyone who fails to comply
    with an order made pursuant to subsection (1) is guilty of an offence
    punishable on summary conviction

(4)      [Repealed, 2005, c. 32, s.
    18(2).]

R.S., 1985, c. C-46, s. 539; R.S., 1985,
    c. 27 (1st Supp.), s.97; 2005, c. 32, s. 18.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Tingle, 2018 ONCA 572

DATE: 20180622

DOCKET: C65396

Sharpe, Roberts and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Sheldon Tingle

Appellant

Marianne Salih, for the appellant

Chris Webb, for the respondent

Heard: June 19, 2018

On appeal from the judgment of
    Justice A. OMarra of the Superior Court of Justice, dated January 22, 2018, denying
certiorari
to quash the order of Justice Lloyd Budzsinski of the
    Ontario Court of Justice, dated April 19, 2017, committing the appellant to
    trial.

REASONS FOR DECISION

[1]

We are not persuaded that the application judge
    erred by refusing to grant
certiorari
with
mandamus
-in-aid in
    relation to the preliminary inquiry judges decision to commit the appellant
    for trial on a charge of first-degree murder and knowingly participating in the
    activity of a criminal organization for the purpose of facilitating the
    organization to commit the offence of first degree murder.

[2]

In view of the application judges careful and
    detailed reasons with which we are in essential agreement, this appeal may be
    disposed of with brief reasons.

[3]

[This paragraph refers to the evidence taken at the preliminary inquiry
    and has been edited pending completion of the proceedings pursuant to the non-publication
    order of Justice Lloyd Budzinski of the Ontario Court of Justice. The full text
    of the decision is available at the Registry of the court.]

[4]

[This paragraph refers to the evidence taken at the preliminary inquiry
    and has been edited pending completion of the proceedings pursuant to the
    non-publication order of Justice Lloyd Budzinski of the Ontario Court of
    Justice. The full text of the decision is available at the Registry of the
    court.]

[5]

The preliminary inquiry judge recognized that:
    The evidence must be capable of reasonable inferences, not mere speculation
    and that the drawing of inferences was a decision for the jury, or of weighing
    the evidence, and not [a decision] of the preliminary inquiry judge. The
    preliminary inquiry judge fairly considered the evidence and decided that the
    Crown had met the minimal threshold required to justify committal.

[6]

The appellant does not suggest that the
    application judge misdirected himself on the legal test for
certiorari
to quash a committal for trial. As the application judge stated, at para. 5:
    The task of the reviewing court is to consider whether there is any evidence
    before the committing justice, acting judicially, upon which he or she could
    form an opinion that the evidence is sufficient to put the accused on trial.

[7]

[This paragraph refers to the evidence taken at
    the preliminary inquiry and has been edited pending completion of the
    proceedings pursuant to the non-publication order of Justice Lloyd Budzinski of
    the Ontario Court of Justice. The full text of the decision is available at the
    Registry of the court.]

[8]

[This paragraph refers to the evidence taken at
    the preliminary inquiry and has been edited pending completion of the
    proceedings pursuant to the non-publication order of Justice Lloyd Budzinski of
    the Ontario Court of Justice. The full text of the decision is available at the
    Registry of the court.]

[9]

Accordingly, the appeal is dismissed.

Robert
    J. Sharpe J.A.

L.B.
    Roberts J.A.

G.T.
    Trotter J.A.