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), (2.1), (2.2), (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    that could identify the victim or a witness shall not be published in any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, 171.1,
    172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02,
    279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii)      any offence
    under this Act, as it read at any time before the day on which this
    subparagraph comes into force, if the conduct alleged involves a violation of
    the complainants sexual integrity and that conduct would be an offence
    referred to in subparagraph (i) if it occurred on or after that day; or

(iii)     REPEALED:
    S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

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

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

(b)     on application made by the victim, the
    prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2), in proceedings in
    respect of an offence other than an offence referred to in subsection (1), if
    the victim is under the age of 18 years, the presiding judge or justice may
    make an order directing that any information that could identify the victim
    shall not be published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in respect of an offence other
    than an offence referred to in subsection (1), if the victim is under the age
    of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of
    their right to make an application for the order; and

(b) on application of the victim or the
    prosecutor, 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); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014,
    c. 25, ss. 22,48; 2015, c. 13, s. 18.

486.6(1)       Every person who fails to comply with
    an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is
    guilty of an offence punishable on summary conviction.

(2)     For greater certainty, an order referred to
    in subsection (1) applies to prohibit, in relation to proceedings taken against
    any person who fails to comply with the order, the publication in any document
    or the broadcasting or transmission in any way of information that could
    identify a victim, witness or justice system participant whose identity is
    protected by the order. 2005, c. 32, s. 15.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Simpson, 2020 ONCA 765

DATE:  20201203

DOCKET: C63142 and C65264

Miller, Trotter and Coroza JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Ryan Simpson

Appellant

No one appearing for the appellant on the conviction
    appeal

Ingrid Grant, for the appellant on the sentence appeal

Deborah Krick, for the respondent

Heard: August 14, 2020 by video conference

On appeal from the convictions entered by Justice Maureen
    D. Forestell of the Superior Court of Justice on August 6, 2015, with reasons
    reported at 2015 ONSC 4952, and from the sentence imposed on December 14, 2016,
    with reasons reported at 2016 ONSC 7767.

B.W. Miller J.A.:

Overview

[1]

The appellant has a history of assaulting and sexually assaulting women
    who have been his intimate partners. Following his conviction for offences
    related to a sexual assault of the complainant, N.J., he was found to be a dangerous
    offender under s. 753(1)(a)(i) of the
Criminal Code
and sentenced to
    an indeterminate period of detention. He appeals against his convictions, the
    dangerous offender designation, and the sentence imposed. For the reasons that
    follow, the appeal against the designation and the sentence are dismissed. His
    appeal against conviction was dismissed from the bench as abandoned.

Background

[2]

The appellant became involved with N.J., with whom he parented a child, in
    April 2008. He assaulted her repeatedly over the course of their relationship.
    The violence escalated when N.J. took steps to end the relationship in May
    2012.

[3]

At 11:00 p.m. on November 16, 2013, N.J. had just finished working her shift
    at a hospital. She walked to her car, which she had parked in the hospitals visitors
    parking lot. Unknown to her, the appellant was waiting for her, hiding in the
    trunk. As she began to drive home, the appellant crawled forward and grabbed her
    by her ponytail. She turned to see the appellant pointing a gun at her head. Terrified,
    she drove, at his direction, to a secluded area where he threatened to kill her
    and forced her to submit to sexual intercourse.

[4]

This was not the first time the appellant lay in wait for N.J. in a
    parking lot. It was not the first time he brought a gun. His assaults of her
    were many and various: choking, stabbing, hitting with whatever objects were at
    hand, and spraying her with pepper spray. There was also evidence from another former
    intimate partner of the appellant, whom the appellant had also subjected to repeated
    assaults during an overlapping time frame.

[5]

On multiple occasions, N.J. reported the appellants assaults to the
    police but later recanted. She testified that sometimes she recanted because the
    appellant threatened to harm members of her family in Jamaica. Other times it
    was because she wished to continue her relationship with the appellant, who is
    the father of her son.

[6]

The appellant was convicted of multiple offences with respect to N.J., including
    sexual assault with a weapon, threatening death, criminal harassment, forcible
    confinement, intimidation, and attempt to obstruct justice. The Crown brought a
    dangerous offender application. The appellant was found to be a dangerous
    offender and given an indeterminate sentence.

Issues on
A
ppeal

[7]

The appellant, who is currently serving his sentence in a federal
    penitentiary, was self-represented on his appeal against conviction. After he declined
    to leave his cell to argue the appeal, his appeal against conviction was
    dismissed as abandoned.

[8]

The appellant was represented by counsel on his appeal against the
    dangerous offender designation and the indeterminate sentence. He raised four
    issues:

1.

the sentencing judge misapprehended the evidence of the risk of
    recidivism;

2.

the sentencing judge failed to consider the issues of intractability
    and treatment prospects at the designation stage of the dangerous offender hearing;

3.

the sentencing judge placed an onus on the appellant to prove his
    conduct was not intractable at the sentencing stage of the dangerous offender
    hearing; and

4.

the sentencing judge erred in sentencing by failing to impose the least
    intrusive sentence required to protect the public.

[9]

The first two grounds of appeal relate to the designation of the
    appellant as a dangerous offender. The two last grounds of appeal relate to his
    indeterminate sentence.

Analysis

A.

The Dangerous Offender Designation

[10]

On
    an application under s. 753(1)(a)(i), a court is required to find an offender a
    dangerous offender if it is satisfied: (1) that the offence for which the
    offender has been convicted is a serious personal injury offence as defined in
    s. 752; (2) the offence is part of a broader pattern of violence; (3) there is
    a high likelihood of harmful recidivism; and (4) the violent conduct is
    intractable:
R. v. Boutilier
, 2017 SCC 64, [2017] 2 S.C.R. 936, at para.
    26.

[11]

The
    appellant does not contest that the sentencing judge properly determined that he
    was convicted of a serious personal injury offence that formed part of a
    broader pattern of violence. However, he argues that the sentencing judge erred
    in the remainder of the analysis. In particular, he argues that the sentencing
    judge: misapprehended significant evidence concerning his likelihood of
    recidivism, and failed to address the issue of intractability  that is, whether
    the appellant will be unable to surmount his impulse for violent conduct  at
    the designation stage. While he recognizes the sentencing judge assessed his
    intractability at the sentencing stage, he argues her assessment was tainted
    by error and this court cannot rely on the sentencing-stage intractability
    assessment to cure the error at the designation stage.

[12]

As
    explained below, I am not persuaded that the sentencing judge misapprehended
    the evidence on the likelihood of recidivism. In addition, although the
    sentencing judge did not address intractability at the designation stage, I am
    not persuaded that this error had any impact on the result: the sentencing
    judge did not err in her analysis of intractability at the sentencing stage, and
    her findings can be applied to the analysis of intractability at the
    designation stage.

Misapprehension of evidence on the likelihood of harmful
    recidivism

[13]

The
    appellant was 35 years old at the time of the index offences and 38 years old
    at the time of the dangerous offender hearing. A psychiatrist, Dr. Klassen,
    prepared the requisite s. 752.1 assessment and testified at the hearing. As was
    his right, the appellant chose not to participate in the assessment and did not
    testify at the hearing. Accordingly, there was limited available information about
    the appellants background and early life. What evidence there was came from one
    of the appellants former intimate partners. There were no school records or
    family members available to provide background.

[14]

Due
    to the limited information available, aspects of Dr. Klassens opinion on the
    appellants likelihood of violent recidivism were qualified. Specifically, he
    was unable to complete some actuarial tests that the sentencing judge found
    would have been helpful in determining the likelihood of violent reoffending. However,
    Dr. Klassen was able to substantially complete the Ontario Domestic Assault
    Risk Assessment (ODARA) test, which measures an offenders risk of future
    assaults against intimate partners. Though he lacked the information to satisfy
    two items on the ODARA test, the evidence that was available placed the
    appellant in the highest risk category and predicted a high risk of violent
    recidivism.

[15]

The
    absence of evidence also left Dr. Klassen unable to offer an unqualified
    opinion as to how the appellants age may affect his level of future risk. It
    is this evidence the appellant alleges the trial judge misapprehended.

[16]

During
    cross-examination, Dr. Klassen testified about the correlation between age and declining
    risk of violent re-offence. He noted that, generally speaking, by the time an
    offender passes a particular age  on average, sometime between age 50 and 60
    the offenders propensity for aggressive behaviour begins to decline. He noted,
    however, that different types of offending behaviour decline at different
    rates. As it is important to understand the context of the full
    cross-examination on this point, I have reproduced the relevant portions of the
    transcripts.

Q.      And in [the appellants] case, my understanding is that
    when he reaches 50, that there is a precipitous or in the, in the point leading
    up to achieving the age of 50 theres this precipitous drop in, in that risk.

A.      So I  thats not exactly how I would frame it  So
risk of violent sexual offending declines relatively linearly
    with age
and one of the ways that I sometimes approach a proceeding like
    this is to say  if you imagine it declining on a graph, is, is going to hit
    the X axis of sort of zero. And, and, of course, different kinds of offending
    behaviour have different slopes to that line and hit the X axis at different
    points in time.

So by the time people pass 50 and I will say broadly between
    the decade of 50 and 60, you will have seen significant decline in propensity
    for aggressive behaviour and for what Im going to call effortful aggressive
    sexual behaviour. That is to say, typically, sexual assault or rape of adult
    females, not so much so child molestation.

If we pick the number 50, theres no magic number
then on average, and again I want to reiterate this is not
    about [the appellant]. This is on average.
On average, those individuals
    have significantly reduced rates of violent recidivism, psychopathic or not.

Q.      I appreciate all that
comprehensive
    generalized information
.

A.      Yeah.

Q.      I, I guess the bottom line is this, and you can correct
    me if Im wrong, but with respect to [the appellant], by the time he reaches
    50,
my understanding is your opinion is, at that stage,
    you would say that in terms of causing death or injury, there wouldnt be a
    likelihood of him doing that by the time he hits 50; is that fair?

A.
Well, you know, again, none of
    these things specifically refer to [the appellant]
, not the results of
    the ODARA and not age-related decline. I do think, though, that that the, that
    the numbers that we see from the ODARA right now, I would agree with you, that
    you would, you would expect that you would not offer a 70 per cent probability
    in the decade between 50 and 60. He committed this last offence in 2013, at
    which point he was 35 years of age. The difference between 35 and 50 is 15
    years, so I would [s]ay, yes, I, I would agree with you that,
on average
, you would expect to see an age-related
    decline that would take
a person
out of the
    probability bracket,
but I cant offer that specifically
    with respect to [the appellant]
any more than the ODARA score, score
    speaks to him specifically.

Q.      Right. But in terms of your expectation of that, that
    harm occurring, that  the expectation of death or injury, in terms of, like,
    more  the  on a balance of probabilities or, like, it being  not balance of
    probabilities, but it being, I guess, less than 50 per cent likely
once he hits 50, my understanding is that you can safely say
    that in terms of establishing likelihood, its less likely that it would
    happen, meaning, like, less than 50 per cent.

A.
So I, I think the source of some
    of the confusion is that most of our risk assessment tools have defined period
    of prediction that do not take us 15 years out.
So the ODARA is five
    years. The VRAG is 10 years. The Static is 10 years.

I have a prediction there on the basis of those instruments. It
    doesnt take us to 50.
If we shift slides from those
    instruments to bringing up slides, looking at average age crime curves past the
    age of 50, you  what you see is that rates of new violent crime into the
    past the age of 50 are much less than they were when they were  when the
    individuals were 40 and 35 and 25 and so on.
So it, its mixing our
    metaphors a bit to say, you know, that I would abandon the ODARA score, that I
    might say its less than 50.
What I would say is I would
    say Im, Im comfortable on the basis of age-related decline that this
    gentlemans risk would be significantly less than it is at the age of 35
.

Q.      Okay.
Perhaps I can put this in
    another way
. As a, as a clinician and having experience with lots of
    different offenders who come before the court where Crowns have applied to have
    them declared dangerous or applied to have either an indeterminate sentence or
    a fixed sentence with a, a period of, of supervision under a long-term sentence
    order, someone who has not had significant clinical intervention before like [the
    appellant] ... who has a history like [the appellant],
you
    agree with me that indefinite incarceration, it doesnt seem like the only
    reasonable way to address the public safety issues that arise; right?

A.      Yeah. I mean, I, I think the, the question that arises
    is  and, and Ive been reflecting on this, of course, a little bit in the last
    day since Ive sort of geared myself up for the testimony. I mean, it, it does
    cause you to wonder whether indefinite incarceration is the only or appropriate
    remedy for somebody who has not had serious treatment or serious community
    supervision and whose offences in the main have not been serious, although,
    again, the caveat is that multiple less serious offences can add up the trauma
    that is the equivalent of a serious offence.
The problem
    is I, I cant tell you anything about [the appellant] and reasonable
    possibility or reasonable expectation.
I, I, I think I agree with you
    that I, I share that thought of, you know, whether it would make sense to, to
    go to the next level in terms of the intensity of the treatment and in terms of
    the intensity of the supervision, which would be CSC and a supervision order.
But I, I just  I, I cant come out, obviously, in favour of
    reasonable possibility or reasonable expectation for lack of personal knowledge
    of [the appellant]
.
[Emphasis added.]

[17]

Ultimately,
    with the benefit of Dr. Klassens testimony and all other available evidence, the
    sentencing judge was satisfied that the evidence established beyond a
    reasonable doubt a very substantial probability that [the appellant] will
    reoffend violently against a future domestic partner. She held that:

[The appellants] pattern of controlling and assaultive
    behaviour in the context of his relationships makes it likely that he will
    inflict death, injury or severe psychological damage on intimate partners. [The
    appellants] pattern of conduct is one of persistent and escalating domestic
    violence. [The appellant] has acted violently and faced criminal charges in the
    context of three out of his four known intimate relationships in the 12 years
    that he has been in Canada.

[18]

Immediately
    after making this finding, the sentencing judge stated: while I accept the
    general proposition that risk of violent recidivism declines with age for most
    offenders, a general pattern does not necessarily predict the behaviour of an
    individual offender. She found that the appellants pattern of escalating
    behaviour did not conform to the general pattern of linearly declining
    violence with age attested to by Dr. Klassen.

[19]

The
    appellant raises two issues with the sentencing judges finding on the general
    pattern evidence. First, the appellant argues that the sentencing judge misapprehended
    the general pattern of decline with age described by Dr. Klassen. Second, he
    argues that based on that misapprehension, the sentencing judge mistakenly
    found that the appellants pattern of offending was inconsistent with the
    general pattern of decline. This culminated in the sentencing judge
    substituting her own opinion for how the age-related decline phenomenon applied
    to the appellant and predicted a level of violence not supported in the
    evidence.

[20]

First,
    with respect to the concept of linear decline, the appellant argues that the trial
    judge wrongfully characterized Dr. Klassens conception of age-related decline
    as linear: i.e., that risk of violent behaviour declines linearly as an
    offender ages. The appellant argues that this conception would be absurd: it
    would mean that offenders would be at their maximal risk of offending during infancy
    and that risk would steadily decline thereafter.

[21]

The
    appellant argues that Dr. Klassens evidence, properly characterized, is that the
    risk of different types of offending can be expected to decline at different
    rates, and that for most types of violent offending there is an expected
    decline in risk after the age of 40, and a greater decline after the age of 50.
    He submits the sentencing judges articulation of the pattern as linear was
    incorrect.

[22]

The
    appellant argues the sentencing judges mischaracterization of the evidence
    contributed to her second error. With respect to the application of age-related
    decline to the appellant, the appellant submitted that the trial judge erred in
    finding the appellant fell outside the general expectation of declining future risk.
    The fact that his pattern of violence escalated in his 30s was not evidence that
    his risk of offending would not decline with age, but rather that he had not
    yet reached the age at which his risk of re-offence could be expected to
    decline. The salient evidential point, according to the appellant, is not that the
    appellants pattern of offending up to his mid-30s showed an escalation in
    violence, but that his risk of violence could be expected  as with other
    offenders  to decline as he aged. Thus the appellant points to Dr. Klassens
    statement: Im comfortable on the basis of age-related decline that this
    gentlemans risk would be significantly less [at 50] than it is at the age of
    35. The appellant argued these errors led the sentencing judge to substitute
    her own opinion of how age-related decline applied to the appellant and
    predicted a level of violence not born out in the expert evidence.

[23]

I
    do not agree that the sentencing judge misapprehended Dr. Klassens on the
    concept of linear decline. Summarizing Dr. Klassens evidence on this point,
    the sentencing judge said: The risk generally declines linearly with age.
Past the age of 50 years there is generally a significant
    decline in the risk of violent recidivism
 (emphasis added).
    Furthermore, at all other points in her reasons, the sentencing judge
    accurately describes Dr. Klassens evidence as a general pattern of decline
    with age. Her use of the word linearly  which Dr. Klassen used in his
    testimony  does not commit her to the absurdity proposed by the appellant. It
    is implicit in the sentencing judges reasons that decline followed from a particular
    age that may not the same for all offender or all offences.

[24]

In
    addition, the sentencing judge did not find that age-related decline does not
    apply to the appellant. She merely found that a general pattern does not
    necessarily predict the behaviour of an individual offender, and that because
    of the lack of evidence of the appellants particular characteristics, she
    could not say whether it would apply to him: Without evidence of [the
    appellants] attitudes, insight and motivation I cannot say that age will
    significantly reduce risk in this offender.

[25]

This
    was consistent with Dr. Klassens testimony that he could not make
    determinations specific to the appellant because he lacked sufficient
    information. Dr. Klassens comment that he was comfortable that the appellants
    risk at age 50 would be significantly less than at age 35 must be considered in
    the context of his entire testimony. He was attempting to clarify the
    difference between the actuarial predictors and the phenomenon of age-related
    decline. He was speaking generally of age-related decline, and stated on the
    basis of the general trends alone  without considering any other measures, the
    appellants history, or personal characteristics  that he was comfortable the
    appellants risk would decline. While it may have been a poor choice of words,
    Dr. Klassen was not giving a definitive, clinical opinion, based on his
    assessment of the appellant, that the appellants risk would be significantly
    lower past the age of 50. This is clear based on his consistent comments before
    and after that particular answer, that he could not make any definitive
    findings because he lacked sufficient knowledge of the appellant. He could not
    definitively say the general pattern of age-related decline would apply to the
    appellant, nor could he say it would not.

[26]

Accordingly,
    the sentencing judge did not, as the appellant suggests, substitute her own opinion
    that age-related decline does not apply to the appellant and subsequently predict
    a level of violence not supported by the expert evidence. She merely found that
    the phenomenon of age-related decline was not something she could consider in
    determining the appellants specific risk of violent re-offence.

[27]

The
    sentencing judges conclusion that there was a high likelihood of future
    violent reoffending in the intimate partner context was based on all the
    evidence before her, including Dr. Klassens evidence. Dr. Klassens opinion
    was that the appellant presents a very high risk of future intimate partner violence
    recidivism. He also testified that, compared with other offender groups,
    offenders who engage in intimate partner violence generally have higher rates
    of recidivism. The appellant placed in the highest risk category under the
    ODARA, which predicted significant risk of violent recidivism. The appellant also
    had a long history of violent and controlling behaviour against his intimate
    partners, which escalated in the years leading up to the index offences. The
    sentencing judges findings on likelihood of harmful recidivism were open to
    her, and there is no basis on which I would interfere.

Failure to consider intractability at the designation stage

[28]

The
    appellant argues the trial judge erred in failing to consider the issue of
    intractability and treatment prospects at the designation stage of the
    dangerous offender hearing. As
Boutilier
, at para. 46, concludes, a
    finding of dangerousness has always required that the Crown demonstrate, beyond
    a reasonable doubt, a high likelihood of harmful recidivism and the
    intractability of the violent pattern of conduct. The sentencing judge did not
    have the benefit of
Boutilier
and, as the Crown concedes, did not consider
    in the designation analysis the intractability of the appellants violent
    pattern of conduct. That is, the sentencing judge did not consider the extent
    to which the risk of future violent offending could be ameliorated by future
    treatment: offenders will not be designated as dangerous if their treatment prospects
    are so compelling that the sentencing judge cannot conclude beyond a reasonable
    doubt that they present a high likelihood of harmful recidivism or that their
    violent pattern in intractable:
Boutilier
, at para. 45. The appellant
    argues this error fatally undermines the dangerous offender designation.

[29]

The
    appellant further argues that the fact that the sentencing judge addressed
    intractability in the sentencing stage in no way cures the omission to address
    intractability in the designation phase. More specifically, he argues the
    sentencing judge erred in her intractability assessment in the sentencing stage
    by imposing an onus on the appellant to prove his conduct was not intractable. Because
    of that error, this court cannot rely on the sentencing-stage analysis to
    remedy the sentencing judges error at the designation stage.

[30]

I
    disagree that the sentencing judges failure to consider intractability at the
    designation stage undermines the conclusion on designation. As I explain below,
    the sentencing judge did not impose an onus on the appellant to prove his
    conduct was not intractable, and this court can rely on the sentencing-stage
    analysis in assessing the sentencing judges determination on the dangerous
    offender designation. In my view, there is no reasonable prospect on this
    evidential record that the sentencing judge would have made a different finding
    had she expressly considered intractability at the designation stage.

B.

The Imposition of an Indeterminate Sentence

[31]

The
    appellants grounds of appeal related to the sentencing stage of the dangerous
    offender hearing centre around the sentencing judges alleged focus on the
    absence of evidence, rather than on the evidence before her. The appellant
    argues that, by focusing on what evidence she did not have instead of the
    evidence she did, the sentencing judge committed two errors. First, she imposed
    an onus on the appellant to prove his conduct was not intractable. Second, she
    failed to impose the least restrictive sentence necessary to protect the
    public, being a determinate sentence followed by a long-term supervision order
    (LTSO) served in the community.

Onus on the appellant to prove his conduct was not
    intractable

[32]

As
    the appellant argues,
Boutilier
makes it clear that intractability is
    relevant to both stages of a dangerous offender hearing: in the first with
    respect to whether the offenders risk of offending is amenable to treatment,
    and in the second with respect to what sentence is appropriate to address the
    degree of intractability. The questions that the finding of intractability help
    answer are therefore different at each stage. But one would not expect a
    sentencing judges findings with respect to intractability to vary across the
    two stages of analysis. In the present case, the findings made by the
    sentencing judge at the sentencing stage are readily transposed to the
    designation stage.

[33]

At
    the sentencing stage in this case, the sentencing judge found that the
    appellants conduct demonstrated high level intractability and that there was
    no reasonable prospect of control of the appellant in the community. As was the
    case in
R. v. Gracie
, the sentencing judges finding that there was
    no reasonable prospect of control of the appellant in the community at the penalty
    stage can  be relied on at the designation stage: 2019 ONCA 658, 147 O.R.
    (3d) 385, at para. 37.

[34]

The
    evidence before the sentencing judge was that the appellants future treatment
    prospects were poor. The most that can be said is that the appellant had been,
    historically, willing to participate in treatment programs offered to him and
    was reported to have been polite and cooperative while participating. As the
    sentencing judge noted, this is some evidence of motivation and commitment to
    treatment. But for the purposes of assessing intractability, it is at least as
    significant that programming that was undertaken effected no change in
    behaviour.

[35]

A
    survey of the appellants behaviour during and after participation in
    programming was not encouraging. After completing the Partner Assault Response
    (PAR) program in 2009, the appellant committed further intimate partner
    violence offences. While participating in the PAR program in 2012, he again committed
    further intimate partner violence offences. While participating in the PAR
    program in 2013, he committed acts of violence against N.J. After he had
    completed the program, he committed the predicate offences.

[36]

Neither
    have court orders been effective at controlling the appellant: he repeatedly
    breached terms of his recognizance by contacting his partners while prohibited,
    and he committed intimate partner violence offences while on recognizance and
    while on probation.

[37]

There
    was no evidence before the sentencing judge that would have allowed her to come
    to the conclusion that the appellants treatment prospects were so compelling
    that they cast doubt on the likelihood of violent reoffending. The most that
    can be said is that there was an absence of evidence as to whether more
    intensive programs offered through Correctional Service Canada would have more
    of an impact. Dr. Klassen was open to the possibility that a clinical
    assessment of the appellants attitudes, insights, and motivation might have
    supported a conclusion that the appellants risk of re-offence could be managed
    in the community. But because the appellant chose not to participate in such an
    assessment, this remained mere conjecture.

[38]

The
    sentencing judges approach was not, as the appellant argued, a matter of
    putting an onus on the appellant to prove that his risk of violent recidivism
    is amenable to treatment. The sentencing judge found that the evidence
    established that the appellant posed a risk of violent recidivism. The
    remaining question was whether the risk could be managed by treatment. To the
    sentencing judge, the available evidence established that it could not be. The
    appellant now raises speculative possibilities that cannot be established or
    negated because of his decision not to participate in the assessment process.
    The appellant had no obligation to participate, but having not done so, he
    cannot appeal to the evidence that might have been.

Failure to impose the least intrusive sentence required to
    protect the public

[39]

Once
    a sentencing judge has found an appellant to be a dangerous offender, the
    sentencing judge must impose sentence. Section 753(4.1) directs a sentencing
    judge to impose:

a sentence of detention in a penitentiary for an indeterminate
    period unless it is satisfied by the evidence adduced during the hearing of the
    application that there is a reasonable expectation that a lesser measure under
    paragraph 4(b) or (c) will adequately protect the public against the commission
    by the offender of murder or a serious personal injury offence.

[40]

As
    the Supreme Court of Canada explained in
Boutilier
, at para. 60, s.
    753(4) requires a sentencing judge to impose the least intrusive sentence
    required to achieve the primary purpose of the scheme, which is the goal of
    public protection. This requires a sentencing judge to conduct a thorough
    inquiry as to whether the dangerous offender can be controlled in the community,
    by considering all the evidence from the hearing to determine the most fit
    sentence. Part of this inquiry is to assess the degree of the offenders
    intractability, and whether a proposed disposition can surmount it:
Boutilier
,
    at paras. 45, 67-68. Consequently, a finding that an offenders risk can be
    managed in the community requires an evidential foundation.

[41]

In
    the case of the appellant, the sentencing judge canvassed a non-exhaustive list
    of factors from
R. v. D.B.
, 2015 ONSC 5900, to aid in assessing
    whether the evidence supported a reasonable expectation that something less
    than an indeterminate sentence could adequately protect the public. Among the most
    significant of the sentencing judges findings are that the treatments
    undertaken by the appellant to date had no impact on reducing or controlling
    the risk he presents; the appellant minimized and rationalized his conduct
    and blamed the victim for his conduct; and the appellant had been
    non-compliant with recognizances in the past and threatened and intimated the victim
    in order to convince her to recant her allegations.

[42]

A
    significant factor in the sentencing judges analysis is the nature of the
    offence for which the appellant was convicted: the offence was committed in the
    context of a pattern of violently exercising control and domination over a
    former intimate partner. The sentencing judge noted that high intensity treatment
    programs would be available to the appellant in the federal penitentiary system
    that had not previously been available to him during his incarceration in the
    provincial system. However, the sentencing judge was not prepared to speculate
    on the efficacy of these programs. She stated two reasons for caution:  first,
    there was no evidence that the appellant would meaningfully participate in
    them; and second, even assuming he would participate, she was unable to
    ascertain the efficacy of such programs, absent any information about the
    entrenchment of his attitudes and the factors that drive his conduct towards
    intimate partners.

[43]

It
    is the latter factor that drove the sentencing judges analysis. The sentencing
    judge could not find that treatment would likely change the appellants
    behaviour when there was no evidence before her about the nature of the
    anti-social attitudes that drove his offending or how amenable such attitudes
    would be to available treatment.

[44]

Again,
    this finding was not a matter of imposing an onus on the appellant. He had no
    obligation to testify or to submit to an assessment by Dr. Klassen. But he also
    chose not to facilitate any access to his family outside Canada who could have
    provided background information that would be useful in a clinical assessment.
    The evidentiary vacuum that existed was entirely of his making. He cannot now
    complain that it is somehow unfair that the evidence adduced at the hearing did
    not support the proposition that the public could be adequately protected from
    him by the imposition of a lesser sentence.

[45]

The
    absence of information about the attitudinal drivers of the appellants conduct
    was important to the sentencing judges conclusion that a LTSO would be insufficient
    to protect the public. The sentencing judge considered Dr. Klassens somewhat ambivalent
    evidence as to whether the appellants risk could be managed by a determinate
    sentence combined with a 10-year LTSO. However, she also characterized Dr.
    Klassens evidence on this point as a feeling or impression, rather than a
    clinical opinion, as he lacked sufficient evidence and personal knowledge of
    the appellant to give a clinical opinion. Dr. Klassen testified that to give an
    opinion, he would need evidence on how entrenched the appellants attitudes
    are, on how deviant his lifestyle is, and on how willing the appellant is to
    change his lifestyle. Accordingly, the sentencing judge concluded that this
    evidence was not sufficient to ground a conclusion that such a sentence would
    adequately protect the public, understanding that the public includes
    predominantly in this case  any future intimate partners of the appellant. The
    sentencing judge gave cogent reasons for this conclusion:

However, release to a [community correctional centre (CCC)]
    necessarily entails community access. When released to a CCC [the appellant]
    would be given access to the community at least through the day and would have
    an opportunity to forge relationships. In my view, the supervision and control
    available upon release is not adequate to protect future intimate partners
    absent meaningful treatment, insight and a willingness on [the appellants] part
    to comply with supervision. I have no evidence that Mr. [the appellant] is
    capable of changing his conduct with treatment. Treatment to this point has had
    no effect on [the appellants] conduct. Without evidence of what has driven [the
    appellants] conduct and evidence that treatment could effect a change within a
    defined period of time, I cannot conclude that there are sufficient external
    controls in the community to adequately protect the public.

[46]

The
    Supreme Court in
Boutlilier
, at para. 54, reminds that all general sentencing
    principles continue to apply in sentencing under the dangerous offender
    provisions. The sentencing judge was keenly aware of this and specifically
    addressed the application of the jump principle, and that the imposition of
    an indeterminate sentence for this offender constituted a significant jump from
    previous sentences imposed. Despite his history of offending, the appellant had
    received a series of comparatively light sentences, never having been incarcerated
    for more than six months at a time (and always in the provincial system), and
    often receiving suspended sentences. Nonetheless, on the evidence before her, the
    sentencing judge could not conclude that there was a reasonable expectation
    that a regime of treatment and supervision could adequately protect the public.
    The operation of the jump principle does not negate this conclusion.

DISPOSITION

[47]

The
    appeal against conviction is dismissed as abandoned. The appeal against
    sentence is dismissed.

Released: BWM DEC 03 2020

B.W. Miller J.A.

I agree. Gary
    Trotter J.A.

I agree. S. Coroza
    J.A.


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), (2.1), (2.2), (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 victim 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, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01,
    279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii)      any
    offence under this Act, as it read at any time before the day on which this
    subparagraph comes into force, if the conduct alleged involves a violation of
    the complainants sexual integrity and that conduct would be an offence
    referred to in subparagraph (i) if it occurred on or after that day; or

(iii)     REPEALED:
    S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

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

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

(b)     on application made by
    the victim, the prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2),
    in proceedings in respect of an offence other than an offence referred to in
    subsection (1), if the victim is under the age of 18 years, the presiding judge
    or justice may make an order directing that any information that could identify
    the victim shall not be published in any document or broadcast or transmitted
    in any way.

(2.2) In proceedings in respect of
    an offence other than an offence referred to in subsection (1), if the victim
    is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform
    the victim of their right to make an application for the order; and

(b) on application of the victim
    or the prosecutor, 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); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015,
    c.  13, s. 18.

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.

OURT OF APPEAL FOR ONTARIO

CITATION: R. v. Smith, 2020 ONCA 782

DATE: 20201209

DOCKET: C65673

Lauwers, Huscroft and Harvison
    Young JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jason Smith

Appellant

Mark Halfyard and Andrew Bigioni, for
    the appellant

Vallery Bayly, for the respondent

Heard: September 25, 2020

On appeal from the conviction entered on
    December 19, 2017 by Justice Grant R. Dow of the Superior Court of Justice,
    with reasons reported at 2017 ONSC 6308.

Harvison Young J.A.:

A.

Overview

[1]

The appellant, Jason Smith, was convicted of
    sexual assault and sentenced to three years imprisonment as a result of the
    following incident. He appeals his conviction on a number of grounds, including
    that the trial judge erred in his
W.(D.)
analysis:
R. v. W.(D.)
, [1991] 1 S.C.R. 742
. At the conclusion
    of the hearing, we allowed the appeal with reasons to follow. These are those
    reasons.

B.

Background

(1)

Facts

[2]

The complainant, A.W., was walking home from the
    transit station on a cold, wintry night around 10:30 p.m. She sensed someone
    following her and shortly after that, the appellant grabbed her from behind in
    what she described as a bear hug.

[3]

At this point, their stories diverge. The
    complainant testified that the appellant tried to get her pants off and touched
    her between her legs and on her vagina, over her clothing. She denied that this
    touching was consistent with the appellant simply trying to get up after they
    had fallen. She struggled against him, screamed, put her gloved hand in the
    appellants mouth, and yanked her hand down as hard as she could. The
    appellants DNA was found on her glove. The complainant estimated that they
    spent around 45 seconds to two minutes on the ground.

[4]

The appellant said he thought the complainant
    was his girlfriend. They had planned to meet but he was late because he had
    been having drinks with some friends. He knew she would be annoyed. He could
    not find her at the location they agreed to meet. He went looking for her and,
    while walking, he noticed a woman walking about 40 to 50 feet ahead of him. He
    testified that he believed this woman was his girlfriend. He went up to her and
    hugged her from behind, slipped, and fell on top of her. He testified that he
    used his hands to lift himself up. He denied that he had touched her sexually
    as she claimed.

[5]

It was common ground that the entire incident
    took place over a relatively short period of time. When they got up, the
    complainant slapped the appellant and they both expressed words to the effect
    of what the fuck?. She asked where her purse was and the appellant pointed to
    a spot nearby. The appellant walked away, and the complainant immediately
    called 911.

[6]

In the course of the three-day trial, the
    appellants girlfriend testified that they were supposed to meet that evening.
    She was angry because he was late and went home to the apartment where she
    lived with the appellants mother. She stated that the route she took to get to
    the bus stop to get home took her along the same route as A.W. walked that
    night. She also testified that when she was upset or angry at him, the
    appellant would sometimes hug her from behind. She was approximately the same
    height as the complainant at the time and had a knee-length coat that was
    similar to that worn by the complainant. They both had straight black hair that
    was of a similar length.

(2)

The trial judges reasons

[7]

The trial judge rejected the appellants evidence.
    He determined that the appellants credibility was undermined by a number of
    factors, including:

·

that his estimate of the time and details of his
    unanswered phone calls to his girlfriend failed to match his girlfriends
    testimony;

·

that he had a poor recollection of minor points,
    including his girlfriends bus route to work;

·

that his consumption of alcohol may have
    contributed to his faulty memory;

·

that he did not call out to the woman he was
    following to confirm her identity; and

·

that he failed to apologize or help the woman
    after he realized she was not his girlfriend and he did not stay at the scene.

[8]

For those reasons, the trial judge did not
    accept the appellants arguments. He also found that this evidence did not
    raise a reasonable doubt. Finally, he determined that the Crown had satisfied
    its burden to prove each element of the offence beyond a reasonable doubt.

[9]

The trial judge accepted the complainants
    evidence that she was attacked from behind and that the appellant touched her
    inner thigh and against her vagina over her clothing. He said that her evidence
    was clear and consistent and that she immediately reported the incident to the
    police. Finally, he accepted her evidence that there was a struggle, as
    evidenced by the DNA found on the complainants glove.

C.

Issues on appeal

[10]

The appellant raises the following grounds on
    this appeal:

(a)

the verdict was unreasonable as a result of
    fundamental flaws in the trial judges reasoning;

(b)

the trial judge erred in failing to consider the
    appellants level of intoxication in determining whether his attempt to grab
    the complainant had amounted to a sexual assault;

(c)

the trial judge erred in his assessment of the
    post-offence conduct evidence.

(d)

the trial judge erred in his
W.(D.)
analysis by failing to
    consider the girlfriends exculpatory evidence.

D.

Analysis

[11]

The purpose of the
W.(D.)
test is to
    assist the trier of fact in evaluating conflicting testimonial accounts to
    determine whether the Crown has proven its case beyond a reasonable doubt:
R.
    v. J.H.S.
, 2008 SCC 30, [2008] 2 S.C.R. 152, at para. 9. The
W.(D.)
test is not a magic incantation:
R. v. S.(W.D.)
, [1994] 3 S.C.R.
    521, at p. 533. It is the substance of the test that must be respected:
R.
    v. Dinardo
, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 23. The test is a
    reminder that the burden never shifts from the Crown to prove every element of
    the offence:
J.H.S.
, at para. 9.

[12]

The
W.(D
.)
test applies not just to an accused persons testimony,
    but to any defence evidence and to any potentially exculpatory evidence whether
    led by the defence or the Crown:
R. v. B.D.
, 2011 ONCA 51, 266 C.C.C. (3d) 197, at para. 114;
R.
    v. Kirlew
, 2017 ONCA 171, at para. 17.

[13]

For reference, the three steps of
W.(D.)
,
    at p. 758, are as follows:

First, if you believe the evidence of the
    accused, obviously you must acquit.

Second, if you do not believe the testimony of
    the accused but you are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by
    the evidence of the accused, you must ask yourself whether on the basis of the
    evidence which you do accept, you are convinced beyond a reasonable doubt by
    that evidence of the guilt of the accused.

[14]

The heart of the appellants
W.(D.)
argument is that, despite stating the test accurately, the trial judge did not
    apply the test and in particular failed to consider whether the girlfriends
    evidence was capable of raising a reasonable doubt as to his guilt. Her
    evidence potentially confirmed the appellants version of events and, in
    conjunction with his evidence, could have led to reasonable doubt.

[15]

The respondent argues that trial judges are not
    required to explicitly engage in a full
W.(D.)
analysis in relation to
    every defence witness evidence. Instead, the trial judge is required to
    respect the substance of the
W.(D.)
instruction and consider whether
    the evidence as a whole establishes the accuseds guilt beyond a reasonable
    doubt. The respondent argues that the trial judge did that in this case.

[16]

In his reasons, the trial judge correctly
    directed himself on the
W.(D.)
test. He concluded, after considering
    all the evidence, that the Crown had proven its case against the appellant
    beyond a reasonable doubt. However, his credibility assessment was not
    responsive to the evidence as a whole in this case.The First Step of
W.(D).

[17]

W.(D.)
sets out
    a methodology for triers of fact that is intended to focus their attention on
    the analytical steps that must be taken in assessing the evidence in order to
    ensure that the trier of fact considers whether the evidence as a whole proves
    the accuseds guilt beyond a reasonable doubt.

[18]

The trial judges application of
W.(D.)
was problematic in a number of respects. Beginning with the first step, he
    stated that he did not believe the appellant and that the appellants denial of
    sexual contact was undermined in a number of respects. However, several of the factors
    he identified (as listed above) seem to corroborate rather than undermine the
    appellants version of events.

[19]

For example, the first factor the trial judge
    mentioned was the appellants claim that he mistook the complainant for his
    girlfriend, and the trial judge noted at that point that I do logically
    conclude that [the complainant and the girlfriend] would appear somewhat
    similar in appearance from behind. In another bullet point, the trial judge
    specifically noted that the appellants consumption of alcohol left him
    feeling a little bit tipsy [which] may explain his faulty recollection of
    events as the evening progressed. The trial judge did not, however, explain
    how these points undermine the appellants version of events. The similar
    appearance of the two women seems to bolster the likelihood that the appellant
    was simply mistaken. This might have been further reinforced by the fact (as
    accepted by the trial judge) that the appellants tipsiness at the time might
    have helped to explain why he failed to recognize that the woman in front of
    him was not his girlfriend, especially given their similar appearance and dress
    viewed from behind.

[20]

The trial judge also noted that the appellant
    was aware that he was late to meet his girlfriend and was walking the route he
    knew she would likely take to get home but didnt call out to her. However, the
    appellant testified that his intention was to surprise her by hugging her from
    behind, because she was upset that he was late. His girlfriend testified that
    the appellant would hug her from behind when she was upset. Given that
    evidence, his failure to call out to her before approaching A.W. was not
    necessarily a fact that would tend to undermine his story.

[21]

Similarly, the trial judge stated that the
    appellants lack of apology to the complainant after they got up from the
    ground undermined his story that he mistook the complainant for his girlfriend.
    It seems the trial judge placed some emphasis on this fact. Later in his
    reasons, he wrote: [i]mportantly, in cross-examination, Jason Smith admitted
    that after getting up from being on top of AW and realizing she was not his
    girlfriend, he did not say that he was sorry. He did not explain he thought AW
    was his girlfriend. During cross-examination the appellant testified that he
    thought he said he was sorry and said that he didnt do anything. He also
    testified that the events happened very quickly and that he might have been
    mumbling when he apologized. His testimony during cross-examination, that he
    attempted to apologize but might have mumbled, was not something that would necessarily
    tend to undermine his story.

[22]

In short, listing these factors and stating that
    he does not accept the evidence does not explain why the trial judge rejected
    the appellants evidence. Although the trial judge recited a number of factors
    he considered when assessing credibility, it is unclear how these factors
    affected his credibility assessment.

[23]

In applying
W.(D.)
, the trial judge also must consider
    whether any of the evidence at the trial raises a reasonable doubt.
It is not clear from the trial judges reasons that
    he was alive to this.
On the first step of
W.(D.)
, he did
    not consider whether he believed the appellants girlfriends evidence and he
    did not consider whether it raised a reasonable doubt. This evidence is
    discussed in greater detail below.

(1)

The Second Step of
W.(D.)

[24]

On the second step of the
W.(D.)
test,
    the trial judge was very brief in his discussion, stating at para. 58:

Having reached this conclusion, the next part
    is to address whether a reasonable doubt has been raised based on Jason Smith's
    evidence. For the reasons stated above, I conclude that I do not have a
    reasonable doubt. His evidence about what occurred after he wrapped his arms
    around AW and when they were both standing again is neither credible nor does
    it raise a reasonable doubt. In saying that, I am totally mindful that the
    burden of proof is entirely upon the Crown to prove the commission of this
    offence beyond a reasonable doubt. There was no burden whatsoever on the
    accused at any time in this criminal case.

[25]

At the outset, the initial problem with the trial
    judges consideration of the second step flows from the first step. The factors
    cited by the trial judge to which I have referred above may well have raised a
    reasonable doubt even if the trial judge did not accept his evidence. Given his
    recognition that there were some possible explanations, it was incumbent on the
    trial judge to explain why these factors did not raise a reasonable doubt
    beyond saying simply that he didnt accept the appellants evidence and that it
    did not raise a reasonable doubt. In short, the trial judges reasons are
    merely conclusory.

[26]

The second step of
W.(D.)
is admittedly
    difficult to apply. The central flaw in the trial judges application of
W.(D.)
was his failure to consider whether the appellants girlfriends evidence gave
    rise to a reasonable doubt as to the appellants guilt.
In referring to the second step of
W.(D.)
, the trial judge referred only to the appellants
    testimony and not to any of the other evidence or, in particular, to his
    girlfriends evidence.
Although the trial judge set out her
    evidence at the beginning of his reasons, there is no discussion or analysis of
    whether he accepted some, all, or none of it, and whether it left him in a
    reasonable doubt as to the appellants guilt.

[27]

Although she was not a witness to the alleged
    assault, the appellants girlfriends evidence was relevant to the appellants
    credibility. She testified that they planned to meet that night, near the
    location where the appellant saw A.W.; she and A.W. had similar looking winter
    coats; she had similar hair and was around the same height as A.W.; and she
    said that the appellant would hug her from behind when she was upset. This
    evidence was capable of confirming the appellants evidence and thus bolstering
    his credibility.

[28]

Had the trial judge addressed this evidence in
    his reasons and explained why he accepted or rejected it, his findings would
    have attracted deference from this court. In the absence of any discussion,
    however, there is no way to know whether the trial judge was alive to the need
    to examine whether the girlfriends evidence gave rise to a reasonable doubt in
    the context of all the other evidence.

[29]

Nor is there any reference to the fact that there
    were inconsistencies between the complainants police statement on the night of
    the incident and her evidence at trial. For example, at trial, A.W. testified
    that the appellant attempted to pull down her pants while they were on the
    ground. When challenged on this, A.W. testified that she was 70% sure that she
    told the police this in her statement. However, she did not volunteer that
    point. It was suggested to her by the interviewing officer.

[30]

It would have been open to the trial judge to
    determine, after scrutinizing the complainants evidence, that the inconsistency
    between her police statement and her in-court testimony was not material. Trial
    judges are not required to address every inconsistency however minor in a
    witness evidence:
R. v. A.M.
, 2014 ONCA 769, 123 O.R. (3d) 536, at
    para. 14;
R. v. R.P.
, 2020 ONCA 637, at para. 21. However, the trial
    judge did not scrutinize or resolve this inconsistency, nor did he find that it
    was not material.

[31]

The appellant maintained that this was a case
    of mistaken identity and denied that he had touched A.W. sexually. There was
    potentially exculpatory circumstantial evidence that supported the appellants
    story that he was looking for his girlfriend in the area and that he approached
    the complainant mistakenly thinking she was his girlfriend. Some of the
    potentially exculpatory evidence was corroborated by the girlfriends testimony
    and was consistent with A.W.s evidence. In these circumstances, the trial
    judge erred by not turning his mind to whether this evidence, which could have
    corroborated the appellants story, raised a reasonable doubt. This potentially
    exculpatory evidence included the following:

·

the two women were about the same size and
    wearing similar winter clothing;

·

the appellant sometimes surprised the
    complainant by hugging her from behind when she was upset;

·

The appellant was supposed to meet his
    girlfriend earlier that evening but had been drinking with his friends. He was
    a little tipsy and he knew she would be upset with him for being late; and

·

The complainant was walking close to the spot
    the appellant and his girlfriend agreed to meet. She was walking in the
    direction his girlfriend traveled to reach the bus stop to go home.

[32]

In the absence of any analysis of the evidence,
    other that what appears to have been a complete rejection of the appellants testimony,
    it is not clear whether or how the trial judge resolved these issues.

[33]

As discussed above, the appellants version of
    events was corroborated in key respects by his girlfriends evidence and his
    version of events was not entirely inconsistent with some of the complainants
    evidence. In these circumstances, the trial judge was required to examine the
    potentially exculpatory evidence and explain why it did not raise a reasonable
    doubt.

(2)

The Third Step of
W.(D.)

[34]

The trial judge correctly refused to consider
    the limited criminal record of the appellant at this stage. However, in
    concluding that the Crown had proved the appellants guilt beyond a reasonable
    doubt, he referred again to the appellants evidence and the complainants
    evidence, stating that he rejected the appellants and accepted the
    complainants.

[35]

This was not, as the trial judge described it, a
    case that turned entirely on the evidence of two persons. Although there are
    some cases in which the only evidence before the court is two witnesses
    testimony, which occurs frequently in sexual assault cases, this was not such a
    case: see, e.g.,
R. v. J.J.R.D.
(2006), 215 C.C.C. (3d) 252 (Ont.
    C.A.). In
J.J.R.D.
, the key piece of defense evidence was the
    appellants testimony, which the trial judge totally rejected, despite the fact
    that it contained no obvious flaws. This court concluded that the trial judges
    statement that the accuseds evidence did not raise a reasonable doubt was
    justifiable, in light of the trial judges complete rejection of that evidence,
    along with his acceptance of the complainants testimony and her diary entries.

[36]

This case was quite different from such
    two-witness cases because of the girlfriends evidence and the potentially
    corroborative aspects of the appellants evidence that could have raised a
    reasonable doubt. Credibility is not an either/or proposition; treating it as
    such shifts the burden of proof to the accused by suggesting that the accused
    can only be acquitted if the accuseds story is believed rather than that of
    the complainant:
S.(W.D.)
, at p. 535;
W.(D.)
, at p. 757.
    Avoiding that error lies at the heart of the
W.(D.)
methodology; that
    is what it is designed to avoid.

[37]

In this case, the cumulative effect of these
    errors in the application of
W.(D.)
was the conviction of the accused
    on something less than proof beyond a reasonable doubt.

E.

Disposition

[38]

Given my conclusion on the
W.(D.)
issue, it will not be necessary to address the other grounds of appeal raised
    by the appellant.

[39]

I would allow the appeal and order a new trial.

Released: December 09, 2020

PL

A. Harvison
    Young J.A.

I
    agree P. Lauwers J.A.

I
    agree Grant Huscroft J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Smithen-Davis, 2020 ONCA 834

DATE: 20201218

DOCKET: M52031 (C65661)

Brown J.A.
    (Motion Judge)

BETWEEN

Her
    Majesty the Queen

Respondent

and

Haldane
    Smithen-Davis

Applicant (Appellant)

Alan D. Gold and Laura Metcalfe
, for the applicant

Samuel Greene
,
    for the respondent

Heard: December 11, 2020 by video conference

REASONS
    FOR DECISION

[1]

The applicant, Haldane Smithen-Davis, applies
    for bail pending appeal pursuant to s. 679 of the
Criminal Code
,
    R.S.C. 1985, c. C-46.

[2]

On December 11, 2020, I granted bail on terms
    agreed to by the parties. Given the unusual procedural circumstances that gave
    rise to this application, I received submissions from the parties about the
    jurisdiction of a single judge of an appeal court to grant bail. This brief
    endorsement explains why I was satisfied that such jurisdiction exists.

[3]

The applicant and his co-accused, Jason
    Hamilton, were each charged with one count of break and enter with intent,
    arising out of a home invasion. Both were convicted and sentenced to
    imprisonment for a term of nine years. Both appealed. On October 24, 2019, this
    court dismissed both appeals.

[4]

Earlier this year, the applicant applied to the
    same panel to re-open his appeal against conviction. He seeks to adduce
    evidence that, if believed, denies his participation in the home invasion.

[5]

The Crown sought to quash the application to
    re-open. By reasons released December 1, 2020, the panel dismissed the Crowns
    application and has permitted the applicant to proceed with his application to
    re-open his appeal against conviction: 2020 ONCA 759.

[6]

This application for bail pending appeal was
    then brought before me. Section 679(1)(a) of the
Criminal Code
states:

A judge of the court of appeal may,
    in accordance with this section, release an appellant from custody pending the
    determination of this appeal if,

(a) in the case of an appeal to
    the court of appeal against conviction, the appellant has given notice of
    appeal or, where leave is required, notice of his application for leave to
    appeal pursuant to section 678.

[7]

Section 678(1) states:

An appellant who proposes to appeal
    to the court of appeal or to obtain the leave of that court to appeal shall
    give notice of appeal or notice of his application for leave to appeal in such
    manner and within such period as may be directed by rules of court.

[8]

In its reasons dismissing the Crowns
    application to quash, the panel stated that a court has a limited power to
    reconsider its judgment disposing of a case as long as the court is not
functus
    officio
. A court continues to be seized of the case and is not
functus
until the formal judgment has been drawn up and entered: at para. 40. Since no
    formal order had been issued or entered dismissing the applicants appeal, the
    panel concluded that it had the jurisdiction to permit re-opening his appeal:
    at para. 45. It directed that the application to re-open the respondents appeal
    could continue: at para. 70.

[9]

In the circumstances of the present case, this
    court retains the jurisdiction to consider and modify its prior judgment
    regarding the applicants conviction. Pending that determination, the court
    also continues to have jurisdiction under s. 679(1)(a) of the
Criminal Code
to entertain the applicants request for bail. As a practical matter, the
    applicants original notice of appeal remains operative, with the result that
    the applicants request for bail falls within the language of s. 679(1)(a) of
    the
Criminal Code
.

[10]

On that basis, I was
    satisfied that I possessed the jurisdiction to consider the applicants bail
    request, which I granted.

David Brown J.A.