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    that could identify the victim or a witness shall not be published in any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(iii)     REPEALED: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    shall not be published in any document or broadcast or transmitted in any way.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. Farouk, 2019 ONCA 662

DATE: 20190820

DOCKET: C61320

Pardu, Nordheimer and Harvison Young JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Michael Farouk

Appellant

Mark Halfyard and Colleen McKeown, for the appellant

Luke Schwalm, for the respondent

Heard: February 27, 2019

On appeal from the convictions entered by Justice Janet
    M. Wilson of the Superior Court of Justice, sitting with a jury, on May 26,
    2014.

Harvison Young J.A.:

A.

Overview

[1]

The appellant attacked the complainant in the elevator
    of her apartment building in the early morning hours of May 25, 2013. He had
    followed her into the building after she was dropped off by friends with whom
    she had spent the evening. His entry into the building and the attack itself
    was largely captured by the buildings surveillance cameras. At trial, the
appellant
    was convicted by a jury of sexual assault, attempted choking with intent to
    overcome resistance to sexual assault, threatening bodily harm and three counts
    of breach of recognizance.

[2]

The central issues at trial were (1) identity; and (2) whether the Crown
    had established that the assault was of a sexual character, sufficient to
    ground a conviction for both sexual assault and choking to overcome resistance.

[3]

The appellant appeals from his convictions for sexual assault and
    choking to overcome resistance alone. He does not challenge those convictions
    on the basis of identity. Instead, he takes issue with the trial judges
    instructions as to the evidence the jury could consider in determining whether
    the appellant applied force in circumstances of a sexual nature (on the sexual
    assault charge) and whether the appellant choked the complainant for the
    intended purpose of enabling him to commit the offence of sexual assault (on
    the attempted choking to overcome resistance charge).

[4]

In particular, he argues that the trial judge erred in two main
    respects: (1) in instructing the jury it could consider evidence that the
    appellant had spoken with two young women at a nightclub earlier in the evening
    in determining whether the assault was of a sexual character; and (2) in
    admitting, and directing the jury it could consider, evidence that the
    appellant had called and texted a body rub service approximately 30 minutes
    after the assault in determining whether the assault was of a sexual character.

[5]

I do not agree and would dismiss the appeal for the following reasons.

B.

Factual Background

The circumstances of the assault

[6]

After spending the night with some friends, the complainant returned to
    her apartment building in Scarborough shortly after 2:30 a.m. on May 25, 2013.
    The buildings security camera footage showed the appellant follow the
    complainant into the vestibule of the building and then through doors only accessible
    by key fob. The complainant did not notice the appellant follow her into the
    building, as she was focused on her cellphone.

[7]

The complainant entered the elevator and pressed the button for the 12
th
floor. The appellant followed her into the elevator, and pressed the button for
    the 14
th
floor. The complainant testified that, as the elevator
    doors were closing, the appellant told her she was cute. She did not respond.
    She testified that the comment made her feel uncomfortable.

[8]

Once the elevator doors closed, the appellant turned and moved in front
    of the complainant. He grabbed her by the neck with both hands, and began to
    choke her. The complainant fought back by kneeing the appellant repeatedly in
    the groin. She also repeated words to the effect of if you let me go I wont
    tell anybody.

[9]

The struggle lasted approximately 12 seconds, before the appellant
    released the complainant and backed away from her. The complainant testified
    that the appellant then threatened her, saying that if she told anyone Ill
    fucking knock your teeth out or Ill fuck you and knock your teeth out.
    While she could not remember the appellants precise words, the complainant
    testified that it was a very clear threat.

[10]

About 17 seconds (as documented by the security video) after the
    appellant released the complainants neck, the elevator arrived at her floor.
    She fled the elevator, ran down the hall to her apartment, unlocked the door
    and collapsed inside on the floor.

[11]

The complainant testified that during the assault, she was fearful that
    she would be raped or badly hurt. In cross-examination, she agreed that the
    appellant had not touched her buttocks, breasts, vaginal area, thighs, back or
    stomach, but explained that this was because she had immediately begun to knee
    the appellant in the groin when he began choking her.

The appellants interactions with women at the nightclub

[12]

Following the assault, the police released a Crime-stoppers statement,
    with still images of the attacker from the buildings security footage, in an
    attempt to identify the attacker. Two individuals  Britany Munro and Daniel
    Drever  came forward and said that they recognized the perpetrator as being
    the appellant. Ms. Munro and Mr. Drever testified that they had seen the
    appellant at the same Pickering nightclub that they frequented on a number of
    occasions. They further testified that they saw him at the nightclub on May 24,
    2013, before the assault, wearing clothes that matched the still images
    released by the police.
[1]

[13]

In particular, Ms. Munro testified that she had spoken briefly to the
    appellant on the night of May 24, 2013. Ms. Munro was on the patio area of the
    nightclub with a friend, smoking. The appellant approached her and asked her
    what she was smoking. She responded that it was an electronic cigarette. The
    appellant asked if Ms. Munro wanted to know what he was smoking. She said no,
    and the appellant walked away. She testified that the entire interaction lasted
    less than a minute.

[14]

Through the appellants phone records, the police were able to identify
    another bar patron  Chelsy McGhee  who had interacted with the appellant on
    the night of May 24, 2013. Ms. McGhee testified that she was standing with her
    friend on the patio of the nightclub, while her friend smoked, when they were
    approached by three men. She began talking with one man (later identified as
    the appellant). Ms. McGhee told the appellant that they were preparing to leave
    to go to another bar. Eventually, the appellant asked for Ms. McGhees phone
    number, which she gave to him. The appellant also asked if he could share a cab
    with Ms. McGhee and her friend to the new bar. Ms. McGhee declined, but
    indicated that the appellant could text her later.

[15]

The appellants cellphone records  which were made an exhibit at trial
     established that the appellant had exchanged a series of text messages and
    phone calls with Ms. McGhee between 12:39 a.m. and 2:33 a.m. The appellant and
    Ms. McGhee did not meet up. The next morning, Ms. McGhee texted the appellant
    and asked him not to contact her anymore.

[16]

As with Ms. Munro, Ms. McGhees evidence was led by the Crown to
    establish identity. The appellants cellular phone records placed him near the
    complainants building at the time of the assault. Thus, the Crown relied on
    Ms. Munros evidence to prove that the appellant, and not someone else, was
    using his phone that night and that he had attended the nightclub on May 24,
    2013.

Post-assault conduct and communication with a body rub
    service

[17]

The jury also heard evidence that, approximately 30 minutes after the
    incident in the elevator, the appellant had exchanged a series of phone calls
    and text messages with a phone number associated with a body rub service.

[18]

The appellants cellphone records established that  between 3:15 a.m.
    and 3:50 a.m.  the appellant exchanged two phone calls and a total of 26 text
    messages  with a 647 number. In 2014, in the course of investigating the
    assault, the investigating officer performed Google searches for the 647
    number and discovered it was associated with a website offering body rub
    services for money. The investigating officer also accessed historical website
    posts (dated April 2013 and October 2013) that suggested sexual services were
    available at the same 647 number. The Crown sought to lead this evidence
    through the investigating officer as evidence of the sexual character of the
    assault.

[19]

The trial judge conducted a
voir dire
and admitted the evidence
    of the appellants contact with the 647 number and the investigating
    officers evidence as to the connection between the 647 number and the
    website. She found that this evidence was relevant to the appellants intention
    at the time of the assault, and whether the assault was of a sexual character.
    The trial judge concluded that the probative value of the evidence outweighed
    its prejudicial effect. However, the trial judge found that a limiting
    instruction was necessary. She also directed that the jury would not be
    provided with the full 647 number, or shown the sexually explicit images on
    the website.

[20]

Partway through trial  but before the evidence of the appellants
    contact with the body rub service was put to the jury  the police recovered
    the contents of four text messages between the appellant and the 647 number.
    The text messages were of a sexually explicit nature, and included a response
    to an inquiry about pricing for sexual services.

[21]

An additional
voir dire
was held. In response to the trial
    judges suggestion that the recovered text messages were of increased probative
    value if the appellant continued to challenge the connection between the 647
    number and the website, defence counsel conceded that the 647 number was
    connected to a body rub service. The trial judge ultimately excluded the
    contents of the text messages, finding that the prejudicial effect of the
    evidence outweighed its probative value.

[22]

The evidence of the appellants contact with the body rub service was
    led through the investigating officer at trial. She described her internet
    searches, testified that the 647 number was associated with a website
    entitled
www.bodyrublist.com
,
[2]
that the
    website contained a number of sexually explicit photos, offered in calls and
    out calls for twenty four hours, contained the statement fulfill your every
    needs and desires and listed the 647 number as the contact information for
    the woman who would provide the services. She also described the frequency and
    timing of the appellants communications with the 647 number. Again, the jury
    was not shown any images of the website, nor told about the content of the
    appellants text messages to the 647 number.

[23]

Prior to the investigating officers testimony with respect to the
    appellants contact with the body rub service, the trial judge provided a
    limiting instruction to the jury as to what use they could make of this
    evidence. She cautioned that the evidence was admissible and could only be
    considered by the jury in assessing [the appellants] intention and state of
    mind during the elevator incident. She noted that there was nothing illegal
    about communicating with a body rub service, and directed the jury that they
    could not punish him for having communicated with the service, nor conclude
    that because of the appellants communication with the service he was the type
    of person more likely to have committed the offence. The trial judge repeated a
    similar limiting instruction in her final charge to the jury when describing
    the evidence of the appellants communications with the body rub service.

The Jury Charge

[24]

The appellant conceded at trial that if identity was established, he was
    guilty of the lesser offence of assault. Thus, on the sexual assault charge, if
    satisfied that the appellant was the attacker, the jury was required to
    determine whether the force that the appellant applied took place in
    circumstances of a sexual nature. On the attempted choking to overcome
    resistance charge, if satisfied that the appellant was the attacker, the jury
    was required to determine whether the appellant attempted to choke the
    complainant with the intent of rendering her incapable of resisting, and for
    the purpose of enabling him to commit the offence of sexual assault.

[25]

In her charge to the jury, the trial judge correctly outlined the
    necessary elements of the offence of sexual assault. She indicated that if the
    jury was satisfied that the appellant was the individual who attacked the
    complainant in the elevator, the only element of the offence in dispute was
    whether the appellant applied force to the complainant in circumstances of a
    sexual nature. She (again correctly) instructed the jury that they must be
    satisfied beyond a reasonable doubt that a reasonable person, viewing the
    matter objectively, would conclude that the force was applied in circumstances
    of a sexual nature. She directed the jury to consider all of the circumstances
    surrounding the application of force, including the part of the complainants
    body the appellant touched, any words or gestures that accompanied the
    touching, and the purpose of the touching.

[26]

The trial judge then identified a number of points that the jury may
    wish to consider in determining whether the force was applied in circumstances
    of a sexual nature:

·

Before
    the incident, the appellant was at a dance club, making contact with women, including
    Ms. McGhee and Ms. Munro
.
[3]

·

The
    complainant got a ride home with her friend, and would reasonably think she was
    safe when she was dropped off at the front door of her apartment building.

·

The
    security camera footage confirmed that the appellant was sneaking into the
    building in a manner to avoid detection.

·

The
    elevator incident occurred at 2:41 a.m. with no one else in sight.

·

The
    complainant was 18 years of age, and the appellant 32 years of age, at the time
    of the incident.

·

When
    the appellant got in the elevator, and before the door was closed, he told the
    complainant she was cute. The comment made her feel uncomfortable as she was in
    an enclosed space.

·

When
    the elevator door closed, the appellant immediately put both his hands around
    her throat applying pressure in a choking manner. The complainant fought back
    by kneeing the appellant in the groin.

·

The
    complainant conceded that the person did not touch her breasts, vagina or any
    traditional body part connoting sexual contact. The complainant testified that
    he wouldnt have been able to because she was fighting back so vigorously.

·

An
    indication of the degree of physical force being used in the struggle was the
    observations of the complainants hair flying around her head in the various
    photographs from the security camera footage.

·

The
    appellant then let go of her neck and retreated. His hands were visible and the
    complainant can be seen holding her neck and wiping her mouth. The time of the
    retreat appeared to be 17 seconds, compared to the attack which was
    approximately 12 seconds.

·

The
    complainant testified that she was terrified and thought that she was going to
    be very badly hurt or raped.

·

The
    complainant begged the appellant to stop and repeatedly said no, and promised
    not to tell anyone if he let her go.

·

According
    to the complainants evidence, the appellant then told her that if she told
    anyone he would fuck her and knock out her teeth or that he would knock her
    fucking teeth out.

·

The
    complainant was terrified and afraid to go to the police after this statement
    by the appellant, and only agreed to report the incident after talking to her
    friends and grandmother.

·

The
    complainants cell phone and purse were clearly visible and the appellant did
    not try to rob her of any of these items. The motive for the attack was not
    monetary gain.

·

The
    appellant came back to the building and attempted to access the building
    between approximately 3:02 and 3:09 a.m.

·

For
    a period of approximately 35 minutes, beginning 6 minutes after the appellant
    left the apartment building for the final time and 36 minutes after the
    elevator incident, the appellant was in communication with a body rub service
    offering sexual services for money
.

·

The
    complainant was traumatized by the event, was unable to talk, unable to
    breathe, and was gasping for breath after she collapsed in a heap inside her
    apartment. Initially she was too afraid to report the incident to the police.

The instructions challenged by the appellant this
    appeal are underlined, above.

[27]

On the attempted choking to overcome resistance charge, the trial judge
    correctly identified all the necessary elements of the offence. She instructed
    the jury that, in determining whether the appellant attempted to choke the
    complainant with the intended purpose of enabling the appellant to commit the
    offence of sexual assault, the jury should consider all of the surrounding
    circumstances. She then indicated the jury may wish to consider the same
    list of evidence enumerated above, in determining whether the attempt choking
    was for the intended purpose of enabling committing sexual assault.

C.

analysis

(1)

Did the trial judge err in
    instructing the jury it could consider the evidence of the appellants contact
    with women at the nightclub in determining whether the assault was of a sexual
    character?

[28]

The appellant argues that the trial judge erred in instructing jury that
    it could use the fact that the appellant had been in conversation with women at
    a nightclub, prior to the assault, in assessing whether the attack was of a
    sexual character. The appellant emphasizes that the evidence of the appellants
    interaction with women at the nightclub was led by the Crown, and was only
    relevant to establish identity. The trial judges instruction that the jury
    could consider this evidence in determining whether the assault was of a sexual
    purpose was highly prejudicial, as it invited the jury to engage in
    propensity-based reasoning. As such, the prejudicial effect of this evidence
    greatly outweighed its probative value, and it should not have been left with
    the jury. The fact that the trial judge listed this as the first of the factors
    that the jury may wish to consider highlighted the evidence and heightened
    its prejudicial effect.

[29]

The respondent submits that the inclusion of this among the 18 factors
    that the jury may wish to consider in her closing instructions was relevant
    to the appellants statement of mind when he attacked the complainant later
    that evening, that the evidence was not prejudicial and that there was no risk
    that the jury would misuse the evidence through propensity-based reasoning. There
    was nothing coercive or threatening in the appellants exchanges at the
    nightclub that would suggest he was a person of bad character.

[30]

I would not give effect to this ground of appeal.

[31]

To begin, I reiterate that appellants complaint is not that the jury
    heard the evidence of the appellants contact with women at the nightclub  as
    it was highly probative of the identity issue  but rather that the trial judge
    referred to it in her charge was one of the 18 factors that the jury might
    want to consider in determining whether the attack was sexual in nature.

[32]

The probative value of evidence is a function of the extent to which it
    tends to prove an issue at trial. This requires the trial judge to engage in a
    preliminary weighing of evidence. Thus, in assessing the probative value of
    tendered evidence, the trial judge is to identify the issue in question and the
    strength of the inference sought to be drawn from the evidence, in light of the
    reliability of the evidence:
R. v. Hart
, 2014 SCC 52, [2014] 2 S.C.R.
    544, at paras. 94-95.

[33]

Here, the evidence of the appellants communications with women was left
    with the jury on the issue of whether the assault was of a sexual character. The
    test to be applied in determining whether an assault is of a sexual character
    is objective. The trier of fact must ask itself, [v]iewed in the light of all
    of the circumstances, is the sexual or carnal context of the assault visible to
    a reasonable observer:
R. v. Chase
, [1987] 2 S.C.R. 293, at p. 302.
    The circumstances to be considered include the part of the body touched, the
    nature of the contact, the situation in which the contact occurred, and any
    words or gestures accompanying the act, among other things. The intent or
    purpose of the person committing the act may also be a factor in considering
    whether the conduct was sexual, but it is only one factor to be considered in
    the analysis:
Chase
, at p. 302;
R. v. Marshall
, 2017 ONCA
    801, at paras. 51-53.

[34]

I am prepared to accept that the evidence of the appellants contact
    with women at the nightclub was probative (if minimally so) of the appellants
    state of mind and intent leading up to the assault. The fact that the appellant
    sought out interactions with Ms. Munro and Ms. McGhee in circumstances
    suggesting a sexual interest would make it more probable than not that his
    subsequent interaction with the complainant was an expression of sexual
    interest. This is particularly so when the appellants conduct is viewed in
    context: he interacted with Ms. Munro and Ms. McGhee at the nightclub,
    continued to text Ms. McGhee up until the point he was outside the
    complainants apartment building, and began his interaction with the
    complainant by telling her she was cute.

[35]

The appellants objection to this evidence at trial  and argument on
    appeal  is that this evidence invited the jury to engage in propensity-based
    reasoning. In other words, the jury might reason that because the appellant was
    the type of person who would try to pick-up women at a bar, he was more
    likely to have assaulted the complainant for a sexual purpose. I disagree. On
    the facts of this case and in the context of the trial judges jury charge as a
    whole, the inclusion of  the appellants contact with the women at the
    nightclub as a consideration relevant to whether the attack was sexually
    motivated did not invite the jury to engage in propensity-based reasoning nor
    did it result in moral or reasoning prejudice.

[36]

First, the trial judge organized her recitation of the evidence that
    might the jury may wish to consider in assessing whether the assault was of
    sexual character temporally. The appellant began his night at the nightclub, where
    he spoke with Ms. Munro and Ms. McGhee; thus it was a logical place for the
    trial judge to start in her review of the evidence. The reference to this
    evidence was only one of 18 factors that the trial judge suggested the jury
    may wish to consider. Her instruction did not elevate the importance of this
    evidence.

[37]

Second, I do not agree that, in this day and age, a jury would reason
    that a young man who encounters, speaks with, and obtains telephone numbers
    from women at a dance club is someone likely to commit violent sexual assaults.
    There was nothing coercive or threatening about the appellants conduct at the
    dance club. The appellants conduct was perfectly legal and, on Ms. Munros
    evidence, fairly typical of nightclub goers. This significantly diminished the
    risk of moral and/or reasoning prejudice.

[38]

Third, while the trial judge did not provide a limiting instruction as
    to the use that the jury could make of the appellants contact with women at
    the nightclub (nor was one requested), she did provide a limiting instruction
    with respect to the evidence of the appellants communications with the sexual
    body rub service. Thus, the jury was warned generally about the dangers of
    propensity-based reasoning.

[39]

As a result, I am not satisfied that the probative value of the evidence
    was outweighed by its prejudicial effect, or that it was an error to leave this
    factor with the jury.

(2)

Did the trial judge err in admitting the evidence of the appellants
    post-offence communication with a body rub service?

[40]

The appellant also argues that the trial judge erred in instructing the
    jury that, in determining whether the assault was of a sexual character, they
    could consider the evidence that the appellant had communicated with a sexual
    body rub service approximately 30 minutes after the assault. He argues the
    trial judge erred in admitting this evidence because: (1) the prejudicial
    effect of the evidence outweighed its probative value; and (2) the evidence was
    inadmissible hearsay. I consider both arguments, below.

(i)

Did the prejudicial effect of the evidence outweigh its probative value?

[41]

The appellant argues that the evidence of the appellants communications
    with the service was minimally probative of whether the assault was of a sexual
    character, as the communications occurred more than 30 minutes following the
    assault. On the other hand, the evidence raised a significant risk of moral
    prejudice. The appellant argues that the limiting instructions provided by the
    trial judge were not sufficient to cure this prejudice, and that the evidence
    should not have been left with the jury.

[42]

The respondent submits that the trial judge correctly admitted the
    evidence of the appellants communications with a body rub service roughly 30
    minutes after the attack. The respondent further submits that the appellants
    communications with the body rub website were probative of his intention and state
    of mind at the time of the assault.

[43]

I agree with the trial judges conclusion that the evidence of the
    appellants communications with the sexual body rub service was probative of
    the issue of whether the assault was of a sexual character. A brief chronology
    is helpful to situate the evidence as to the appellants communications with
    the body rub service within the series of events on May 25, 2013, and to
    demonstrate its relevance to the sexual character of the assault.

[44]

The incident in the elevator occurred between 2:39 a.m. and 2:41 a.m.
    The appellant left the building shortly thereafter. Between 2:47 a.m. and 2:57
    a.m., the appellant made three phone calls to various taxi companies. At 3:02
    a.m., the appellant re-entered the main foyer of the apartment building. On
    security camera footage, he could be seen trying to use the keypad of the
    buildings intercom system. At 3:07 a.m., while still inside the foyer of the
    building, he made another call to a taxi company.

[45]

The appellants cellphone records established that  between 3:15 a.m.
    and 3:50 a.m.  the appellant exchanged two phone calls and a total of 26 text
    messages  with a 647 number. As I have noted above (and will return to in
    the my discussion of the hearsay nature of the evidence) the investigating
    officer was able to connect the 647 number to a website offering sexual body
    rub services for money by conducting Google searches and accessing
    historical website posts.

[46]

In this context, the evidence of the appellants communications with the
    body rub service were significantly probative of the sexual character of the
    assault. In particular, it was probative of the appellants intention or
    purpose at the time of the assault. The appellants communications with the
    body rub service give rise to the common sense inference that the appellant was
    interested in engaging in a sexual encounter. Given the temporal proximity
    between the assault, the appellants attempt to regain entry into the apartment
    building and the communications with the body rub service, this evidence gives
    rise to the further common sense inference that the appellants intention or
    purpose was to engage in a sexual encounter at the time of the assault.

[47]

I agree with the appellants submission that the evidence of his
    communications with the body rub service was prejudicial  in the sense that it
    raised the risk of both reasoning and moral prejudice. There was a risk that
    the jury would engage in propensity-based reasoning, and conclude that because
    the appellant was type of person who would pay for a sexual encounter, he was
    more likely to have sexually assaulted the appellant. Similarly, while the
    appellants communications with the body rub service were legal, paying for a
    sexual encounter may be perceived as immoral behaviour.

[48]

However, the trial judge was alive to the potential prejudicial effect
    of this evidence. She ordered that the jury would not be shown any sexually
    explicit images from the website. She refused to admit the contents of the
    appellants text messages, which contained sexually explicit language and a
    discussion of pricing.

[49]

The trial judge also provided a comprehensive mid-trial limiting instruction
    and final instruction that addressed all the necessary elements of such an
    instruction: see
R. v. J.A.T.
, 2012 ONCA 177, 288 C.C.C. (3d) 1 at
    para. 53;
R. v. Largie
, 2010 ONCA 548, 101 O.R. (3d) 561, at para.
    107. The trial judge identified the evidence at issue (the evidence of
    appellants communications with the body rub service), told the jury that they
    could use the evidence only to assess the appellants intention and state of
    mind at the time of the elevator assault (the permitted use), and expressly
    instructed the jury that they could not punish the appellant for this
    behaviour or engage in propensity-based reasoning (the impermissible use).

[50]

In these circumstances, I am satisfied that it was appropriate to admit
    the evidence of the appellants communications with the text messages with the
    body rub service. The communications were significantly probative of the sexual
    character of the assault, and the potential prejudicial effect of the evidence
    was adequately addressed through the trial judges limiting instructions. I
    would note in this regard that our jury system is predicated on the proposition
    that jurors follow a trial judges limiting instructions:
R. v. White
,
    2011 SCC 13, [2011] 1 S.C.R. 433, at para. 56. I am also mindful of the principle
    that a trial judges weighing of probative value and prejudicial effect is
    entitled to significant deference  as the trial judge is generally better
    positioned to understand the likely impact of the evidence on the jurors:
R.
    v. Araya
, 2015 SCC 11, [2015] 1 S.C.R. 581, at para. 31.

[51]

As such, I would not give effect to this ground of appeal.

(ii)

Was the evidence
    of the appellants communications inadmissible hearsay or unauthenticated real
    evidence?

[52]

The appellant argues that the evidence of the appellants communications
    with a body rub service was based on inadmissible hearsay, as the Crown sought
    to rely on the truth of the websites contents  i.e. that the 647 number was
    in fact connected to a sexual service because it was listed on the impugned
    website. The appellant also argues that the contents of the website  as
    described by the investigating officer  was unauthenticated real evidence.

[53]

The respondent submits that this evidence was not introduced for the
    truth of its contents because the relevance of the evidence was that a person
    reading or accessing the website would believe that sexual services would be
    provided. Similarly, the respondent takes the position that the contents of the
    website was not unauthenticated real evidence. The jury did not in fact receive
    any real evidence, as the trial judge ruled the screenshots of the website were
    inadmissible. The investigating officer only generally described the website,
    and testified that the 647 number was associated with sexual body rub
    services.

The website contents as hearsay

[54]

First, I do not agree that the evidence of the appellants
    communications with the body rub service was based on inadmissible hearsay. The
    relevance of the investigating officers evidence that the same 647 number
    the appellant was in communication with on the night of the assault was
    connected to a website offering sexual services did
not
depend on the truth of the websites contents. Stated differently, the
    probative value of the evidence did not depend on the fact that the 647
    number was actually connected to the provision of sexual services, but rather
    that a person who accessed the website would believe the 647 number to be
    connected to the provision of sexual services. The related inference is that a
    person in communication with the 647 number  such as the appellant  would
    believe they were communicating with a sexual body rub service.

[55]

On appeal, the appellant argues that the trial Crowns emphasis in her
    closing submissions as to the number of exchanges and length of time over which
    the appellant communicated with the 647 number belies any suggestion that the
    relevance of this evidence was only that the appellant believed he was
    communicating with a sexual body rub service. I do not agree. The Crowns arguments
    with respect to the frequency and duration of the communications are not
    inconsistent with its position that the appellant need only believe that 647
    number he was communicating with was connected to a sexual service. The
    frequency of the appellants communications with the 647 number supported the
    inference that he was committed to obtaining sexual services  and had not
    accidentally made contact with the 647 number  which in turn strengthened
    the inference that the appellants motive or intention was to seek out a sexual
    encounter when he assaulted the complainant. To the extent this argument also
    supported the inference that the sexual services were
actually
available
    at the

647 number, this did not depend on the purported hearsay quality
    of the websites contents.

[56]

Moreover, the defence conceded at trial  for legitimate strategic
    reasons  that the 647 number was associated with a sexual body rub service.
    The defence did so in the context of the continuing
voir dire
on the
    admissibility of the contents of the appellants four recovered text messages.
    Those text messages tended to show, at the very least, that the appellant
believed
he was in communication with a sexual body rub service and was attempting
    to obtain sexual services.

[57]

The trial judge, correctly in my view, identified that the contents of
    the text messages acquired greater probative value if the defence continued to
    contest the connection between the 647 number and the sexual services. As she
    noted in her
voir dire
ruling, it seemed glaringly obvious based on
    the contents of the text messages that the 647 number was in fact a body
    rub service.

[58]

In these circumstances, there is no merit to the argument that the fact
    of the communications between the appellant and the body rub service shortly
    after the assault was based on inadmissible hearsay. The appellant conceded
    that the 647 number was in fact connected to the website, and clearly did so
    for legitimate strategic reasons. Moreover, the relevance of the investigating
    officers evidence that the same 647 number the appellant was in
    communication with on the night of the assault was connected to website
    offering sexual services did
not
depend on the
    truth of the websites contents.

The website contents as unauthenticated real evidence

[59]

Second, I do not agree that the website contents were unauthenticated
    real evidence. While s. 31.1 of the
Canadian Evidence Act
, R.S.C.
    1985, c. C-5, provides that any person seeking to admit an electronic document
    as evidence has the burden of proving its authenticity, the website contents
    were
not
actually adduced as real evidence at
    trial. Rather, the trial judge ruled the screenshots of the website
    inadmissible on the basis that the probative value of such evidence was
    outweighed by its prejudicial effect, due to the sexually explicit language and
    photos depicted. The investigating officer testified  in general terms  as to
    the contents of the website and its association with the 647 number. While
    the process by which the investigating officer connected the 647 number to
    the website was properly the subject of cross-examination and submissions as to
    the weight that could be afforded to her evidence, it was not a bar to the
    admissibility of her testimony.

[60]

Even if the website contents were to be construed as real evidence
    actually adduced at trial, the investigating officers testimony would appear
    sufficient for the purpose of authentication. The threshold for authentication
    of evidence, both at common law and under s. 31.1 of the
Canadian Evidence
    Act
,

is modest: there must be evidence that is capable of supporting
    a finding that the electronic document is that which it is purported to be:
R.
    v. C.B.
, 2019 ONCA 380, at para. 68. Both circumstantial and direct
    evidence may be relied upon for this purpose:
C.B.
, at para. 68. Here,
    the investigating officer described her Google search for the 647 number
    and the website in general terms. In the circumstances, this would have been
    sufficient for the purpose of authentication. In light of the appellants
    concession at trial that the telephone number to which he sent text messages
    was associated with the website for the body rub service and the operation of
    that business, no further authentication was required in any event.

Disposition

[61]

For the foregoing reasons, I would dismiss the appeal.

Released: August 20, 2019

GP

Harvison Young J.A.

I agree G. Pardu
    J.A.

I agree I.V.B.
    Nordheimer J.A.

[1]
Ms. Munro and Mr. Drevers evidence was led by the Crown to establish identity,
    which was a live issue at trial. Their recognition evidence was the subject of
    a
voir dire
at trial and ruled admissible by the trial judge.

[2]
The investigating officer provided the name of the website in her testimony,
    even though the trial judge had earlier stated that the websites name should
    not be put before the jury.

[3]

At the pre-charge conference, defence counsel objected to the
    inclusion of the appellants contact with women at the nightclub as evidence
    the jury could consider in determining whether the assault was of a sexual
    character. Defence counsel argued that this evidence could lead to
    propensity-based reasoning. The trial judge dismissed the objection, and left
    the evidence with the jury.


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. Gracie, 2019 ONCA 658

DATE: 20190819

DOCKET: C63832

Rouleau, Miller and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Daniel Gracie

Appellant

Andrew Furgiuele and Angela Ruffo, for the appellant

Gregory J. Tweney, for the respondent

Heard: March 21, 2019

On appeal from the sentence imposed by Justice Peter B. Hockin
    of the Superior Court of Justice on February 24, 2015.

Rouleau J.A.:

A.

OVERVIEW

[1]

The appellant appeals from his designation as a dangerous offender and
    from his sentence of an indeterminate period of incarceration. His designation
    and sentence followed his guilty plea to two counts of aggravated sexual
    assault after endangering the lives of two women by having unprotected sex with
    them without first disclosing his HIV-positive status. Both women contracted
    the disease as a result of these offences.

[2]

In his factum, the appellant sets out three grounds of appeal. In oral
    submissions, however, we were advised that only two of these grounds were being
    pursued: the failure of the sentencing judge to conduct the necessary
    prospective risk assessment at the designation stage, as required by
R. v.
    Boutilier
, 2017 SCC 64, [2017] 2 S.C.R. 936, and the sentencing judges
    failure to consider the fact that the appellant was Indigenous and the relevant
    principles from
R. v. Gladue
, [1999] 1 S.C.R. 688.

[3]

The Crown concedes that the two errors were committed, but maintains
    that neither had an impact on either the designation of the appellant as a
    dangerous offender or the indeterminate sentence imposed on him. In the Crowns
    submission, this is one of the rarest of circumstances where, as explained in
R. v. Johnson
,
2003
    SCC 46, [2003] 2 S.C.R. 357, at para. 49, the appeal can be dismissed pursuant
    to s. 759(3)(b) of the
Criminal Code
, R.S.C., 1985, c. C-46,

because
    there is no reasonable possibility that the verdict would have been any
    different had the error of law not been made: see also
R. v. Sipos
,
    2014 SCC 47, [2014] 2 S.C.R. 423, at paras. 24, 48.

[4]

For the reasons that follow, I would dismiss the appeal.

B.

FACTS

(1)

The appellants
    background

[5]

The appellant is a 43-year-old man of Indigenous ancestry. As an infant,
    he was adopted by non-Indigenous parents, with whom he maintained a positive
    relationship. When he was approximately 15 years old, he moved out of his
    parents home and started having contact with the criminal justice system.

[6]

The appellant has now amassed a lengthy criminal record, consisting of
    25 youth convictions and 10 adult convictions. At the age of 20, he was
    convicted of sexual assault causing bodily harm for the violent rape of a
    prostitute. He had taken her to a secluded area where he had punched her, raped
    her anally and vaginally, and then ejaculated into her mouth. When the
    sentencing judge imposed a five-year sentence on the appellant, he observed
    that the appellant suddenly became a predator for absolutely no reason.

[7]

While in custody for this offence, the appellant was charged and
    convicted of the offence of counseling the murder of the police officer who had
    investigated the sexual assault causing bodily harm charge for which he was
    convicted. The sentencing judge observed that the appellant appeared to be
    motivated solely by his desire for revenge and retribution. He imposed a
    five-year penitentiary sentence, consecutive to the sentence the appellant was
    then serving.

[8]

Following his release from prison, the appellant received further
    convictions for uttering threats, possessing a weapon for a dangerous purpose,
    and assaulting a police officer. It is while he was on probation for these
    offences that he committed the predicate offences.

(2)

The predicate
    offences

[9]

The appellant pleaded guilty to two counts of aggravated sexual assault.
    He had failed to disclose to two women that he was HIV-positive and transmitted
    the HIV virus to them through sexual activity, thereby endangering their lives.

[10]

The first complainant, C.C., came to know the appellant as they spent
    time walking their dogs together. In early 2010, after an evening of drinking
    in C.C.s apartment, the appellant asked her several times to have sex with him.
    She refused every time. At approximately midnight, feeling ill and tired, she
    went to bed. The appellant said he would sleep over on the futon in the living
    room. When C.C. woke up the next morning, her vagina was sore and she observed
    semen leaking out of it. After initial denials, the appellant ultimately
    admitted that he had sex with her while she was asleep. Approximately one year
    later, after getting blood work done in relation to a pregnancy, C.C. found out
    that she had contracted HIV.

[11]

The second complainant, M.N., was involved in sporadic relationships
    with the appellant between 2008 and 2011. When they dated in 2010, the
    appellant told M.N. on multiple occasions that he did not have a sexually
    transmitted disease. They engaged in unprotected sex. In 2011, they started
    dating again and engaged in unprotected intercourse after the appellant
    confirmed that he had no sexually transmitted diseases. In April of that year, M.N.
    saw a police media release naming the appellant as an HIV-infected person
    charged with aggravated sexual assault. She sought medical treatment and
    learned that she had contracted HIV from the appellant.

[12]

To establish the
mens rea
component of the offences, medical
    evidence dating back to 2002 was tendered. It demonstrated that the appellant
    had been educated by physicians on the great risk posed by unprotected sex to sexual
    partners.

(3)

The uncharged conduct
    involving a third victim

[13]

At the sentencing hearing, the Crown tendered the evidence of N.R. N.R.
    had met the appellant through a social networking site in 2009. Later that
    year, the appellant travelled to Halifax to visit N.R. He stayed with her, her
    children, and her parents. The appellant assured N.R. that he had no sexually
    transmitted disease. The appellant and N.R. had unprotected sex on several
    occasions.

[14]

When the appellant left Halifax, N.R. learned that, contrary to what he
    had told her, he did not live with a male roommate but rather with his girlfriend.
    N.R. then broke off relations with the appellant some time later.

[15]

Approximately three years later, in October 2012, N.R. learned that the
    appellant was HIV-positive. She reported the matter to police and was tested
    for HIV. The test was negative. The sentencing judge relied on N.R.s testimony
    as further evidence of the pattern of behaviour that could support a dangerous
    offender designation.

(4)

The appellants
    supervision and treatment history

[16]

While serving his ten-year penitentiary sentence commencing in 1996, the
    appellant was identified as being a High Risk/Needs offender. His
    correctional plan recommended that he attend various programs, including a sex
    offender program, an anger and emotions management program, and an educational
    upgrading program. Although the appellant attended some of the recommended
    programs, there was, overall, little progress in completion of his correctional
    plan and no observable change in his behaviour. According to his parole
    officer, there was no change in the appellants level of insight into his
    offending behaviour.

[17]

The National Parole Board, who reviewed the appellants detention on
    four occasions, also noted in its first assessment that the appellant lacked
    insight into his risk factors. The following three assessments respectively
    noted that there was no change in his level of insight, no reduction in risk,
    and no observable change in his behaviour. It determined that the appellant should
    remain incarcerated until the expiration of his sentence.

[18]

While the appellant was on probation following his 2008 convictions for
    the offences of uttering threats, possessing a weapon, and assaulting a police
    officer, the police expressed concern to the probation officer who supervised
    him that the appellant might be having unprotected sex and not disclosing his
    HIV status to potential sexual partners. As a result, the probation officer clearly
    conveyed to the appellant the moral and legal obligations of reporting his HIV
    status to potential partners. The two predicate offences and the uncharged
    assault on N.R. occurred subsequent to this caution.

[19]

Following his arrest for the predicate offences, the appellant was
    detained at the Elgin Middlesex Detention Centre. He was detained there for
    over three years while he was awaiting sentencing. During that time, the
    appellant expressed some remorse and acceptance of responsibility for the
    failure to disclose his HIV status to his sexual partners. In addition to being
    drug-free, he incurred no misconducts or occurrences during this detention.
    Moreover, the appellant was committed and motivated to address issues that had caused
    him trouble in the past and to make necessary changes to his life. He was an
    active participant in institutional programming to address his substance abuse
    and anger management issues, as well as to reduce stress.

(5)

Psychiatric evidence

[20]

Dr. Scott Woodside performed the psychiatric assessment ordered under
    s. 752.1 of the
Criminal Code
and Dr. Gary Chaimowitz provided
    expert evidence for the defence. Both experts found that the appellant suffers
    from antisocial personality disorder. A diagnosis of antisocial personality
    disorder results from meeting at least three of seven criteria, including
    failure to conform to social norms, deceitfulness, impulsivity, reckless
    disregard for the safety of self or others, and lack of remorse. The appellant
    met all seven criteria.

[21]

The appellants scores on PCL-R, an instrument used to measure
    psychopathy, indicated that he had significant psychopathic traits but that he
    was situated slightly below the cut-off for a formal diagnosis of psychopathy.

[22]

The experts also found that the appellant suffered from a marijuana dependence
    disorder. From their clinical and actuarial evaluation of the appellant, the
    experts opined that he posed a moderate to high risk for both sexual and
    violent recidivism.

[23]

The experts also agreed that antisocial personality disorder and
    psychopathy are generally difficult to treat but disagreed on his future treatment
    prospects. In his report, Dr. Woodside provided the following summary:

Overall, there are significant
    issues present relating to managing this individuals risk in the community.
    This is most evident regarding the index offenses wherein Mr. Gracie was
    counseled by both medical personnel and his probation officers regarding the
    need to advise intimate partners of his HIV status but failed to do so. This
    illustrates the difficulty in attempting to manage this type of offending
    behaviour in the community, especially where the offender is duplicitous.

[24]

Dr. Woodside viewed the appellant as having a moderate-high risk for
    sexually violent recidivism and moderate-high risk for non-sexually violent
    recidivism. He was moderately pessimistic about the ability to successfully
    manage the appellants risk in the community. A specific challenge to risk management
    was the appellants demonstrated history of failing to inform his sexual
    partners of his HIV status despite the counselling he received on multiple
    occasions. Dr. Woodside also found that the appellants professed willingness
    to participate in treatment was undermined by his ambivalence about the
    necessity for treatment and what types of treatments he needed, as well as by his
    struggle to identify treatment targets.

[25]

Dr. Chaimowitz reported, like Dr. Woodside, that the appellants risk
    scores tended toward the moderate to high range, specifically in the sexual
    violence domain. However, in terms of future treatment prospects, Dr.
    Chaimowitz was slightly more optimistic than Dr. Woodside. As the appellant had
    not had the benefit of a comprehensive treatment program, it was possible that
    should he take the appropriate treatment, treatment directed towards his risk
    factors, there may be some opportunity for eventual control of his risk in the
    community. Dr. Chaimowitz noted that, although the appellant appeared much
    more stable than before, there was insufficient evidence to say with any degree
    of certainty whether the appellant could be controlled in the community.

(6)

The
Gladue
report

[26]

A
Gladue
report was filed as an exhibit in the sentencing
    proceedings. The report noted that the appellants biological mother was of
    Mikmiq heritage and a member of the Millbrook First Nations in Nova Scotia. The
    appellant was adopted by his adoptive parents when he was five months old and,
    while the appellant was young, they moved to Toronto. The appellant had four
    siblings and a normal family life. As a young child, a non-Indigenous uncle
    exposed him to sweat lodge and smudging ceremonies, and to hunting, fishing,
    and trapping.

[27]

When the appellant travelled to Nova Scotia to visit N.R. in 2009, he
    also met his biological mother. He was 33 years of age at the time. He told the
    author of the
Gladue
report that he was interested in reconnecting
    with his Indigenous roots. During his detention at the Elgin Middlesex Detention
    Centre, while he was awaiting sentencing in this case, the appellant attended
    an Indigenous cultural program called Native Sons.

C.

THE
    DECISION BELOW

[28]

In his reasons on the Crown application to declare the appellant a
    dangerous offender, the sentencing judge explained that he had adopted the
    approach of this court in
R. v. Szostak
, 2014 ONCA 15, 118 O.R. (3d)
    401, leave to appeal refused, [2014] S.C.C.A. No. 300. Pursuant to
Szostak
,
    the issue to be decided at the designation stage was whether, based on the
    evidence led, including expert evidence, the appellants past conduct
    established beyond a reasonable doubt:

1.

a pattern of repetitive
    behaviour showing a failure to restrain his behaviour and a likelihood of
    causing death or injury to other persons, or inflicting severe psychological
    damage on other persons, through failure in the future to restrain his
    behaviour (s. 753(1)(a)(i)); or

2.

a pattern of persistent aggressive behaviour showing a substantial
    degree of indifference on his part respecting the reasonably foreseeable
    consequences to other persons of his behaviour (s. 753(1)(a)(ii)).

[29]

In
Szostak
, the court
explained that the
    intractability of the offending conduct was only considered at the second step
    of the analysis, when the court made the decision as to the appropriate
    sentence to be imposed pursuant to ss. 753(4) and (4.1).

[30]

The sentencing judge concluded that the criteria to designate the
    appellant as a dangerous offender had been made out. He then moved to the
    penalty stage. The sentencing judge was satisfied that there was a reasonable
    expectation that a determinate sentence coupled with a long-term supervision
    order would not adequately protect the public. He found that he was unable to
    act on Dr. Chaimowitzs opinion and instead agreed with Dr. Woodside that a prognosis
    of control in the community was unrealistic. He therefore imposed an
    indeterminate sentence on the appellant.

D.

ISSUE

[31]

As noted earlier, the Crown concedes that the sentencing
    judge committed two errors. First, the sentencing judge failed to conduct the
    necessary prospective risk assessment at the designation stage, as required by
    the Supreme Court of Canada in
Boutilier
. Second, he failed to consider the appellants Indigenous background and
    the relevant
Gladue
principles. The issue on appeal, therefore, is whether the court should
    interfere with the sentence imposed on the appellant, given these two errors.

E.

ANALYSIS

(1)

The intractability
    criteria

[32]

In his analysis, the sentencing judge, relying on
Szostak
,
    essentially removed the intractability analysis from the designation stage and
    moved it to the penalty stage. He cannot be faulted for this because, at the
    time,
Szostak
was the leading authority on the question. The Supreme
    Court of Canada, in
Boutilier
, has since
overruled
Szostak
on this point.
The court explained that prospective risk evidence
    had to be considered both at the designation and penalty stages, albeit for
    different purposes, as follows:

The designation stage is concerned with assessing the future threat
    posed by an offender. The penalty stage is concerned with imposing the
    appropriate sentence to manage the established threat. Though evidence may
    establish that an offender is unable to surmount his or her violent conduct,
    the sentencing judge must, at the penalty stage, turn his or her mind to
    whether the risk arising from the offenders behaviour can be adequately
    managed outside of an indeterminate sentence: at para. 31.

[33]

The appellant submits that, because of this error, the sentencing judge
    did not engage in a prospective risk assessment of the appellant before
    declaring him to be a dangerous offender. As a result, he maintains that the appeal
    should be allowed and the dangerous offender designation set aside. The
    appellant argues that the fact that the sentencing judge found, at the penalty
    stage, that the appellants violent pattern of conduct was intractable does not
    necessarily mean that, had the sentencing judge properly applied
Boutilier
,
    he would have found the appellant to be a dangerous offender at the designation
    stage. The appellant contends that, at the designation stage, the onus is on
    the Crown to prove intractability beyond a reasonable doubt, while at the penalty
    stage, the onus is on the appellant to show that there is a reasonable
    expectation that a lesser measure than an indeterminate sentence will
    adequately protect the public. As a result, the fact that the sentencing judge
    found that the appellant had not met its onus of showing that a lesser measure than
    an indeterminate sentence would adequately protect the public at the penalty
    stage is not equivalent to a finding that the Crown met its onus of proving
    intractability beyond a reasonable doubt at the designation stage.

[34]

In support of this submission, the appellant argues that there was
    evidence suggesting that his offending behaviour was not intractable. In this
    regard, he points to his exemplary conduct during the more than three years he
    spent awaiting sentencing at the Elgin Middlesex Detention Centre. The
    appellants record while in detention shows that he was making progress in
    addressing his issues. According to a counsellor at the detention centre, the
    appellant expressed his desire to address his substance abuse and health
    problems. She noted that he was actively involved in programs and was a model
    prisoner. This evidence addresses the issue of prospective risk but was only
    dealt with by the sentencing judge at the penalty stage, the stage at which the
    onus rested on the appellant. In the appellants submission, this evidence,
    together with other evidence such as Dr. Chaimowitzs evidence of possible
    control, should have been considered at the designation stage when the onus was
    on the Crown. Had it been considered at that stage, it may have raised a
    reasonable doubt as to the intractability requirement that must be met before a
    person can be designated as a dangerous offender.

[35]

I disagree. In my view, despite the sentencing judges error, there is
    no reasonable possibility that the verdict would have been any different. I say
    so for two reasons.

[36]

First, I disagree with the appellants submission that, at the penalty
    stage, there is an onus on the offender of demonstrating that an indeterminate
    sentence ought not to be imposed because there is a reasonable expectation that
    a lesser measure will adequately protect the public. In
Boutilier
, the
    court rejected this suggestion. At para. 71, the court explained that there is
    no onus at the penalty stage:

Properly read and applied, s.
    753(4.1) does not impose an onus, a rebuttable presumption, or mandatory
    sanctioning. Nor does it prevent a sentencing judge from considering sentencing
    objectives and principles. Every sentence must be imposed after an
    individualized assessment of all of the relevant factors and circumstances.

[37]

The sentencing judges finding that there was no reasonable prospect of
    control of the appellant in the community at the penalty stage can therefore be
    relied on at the designation stage.

[38]

Second, and more importantly, from my review of the reasons, it is
    apparent that the sentencing judge did not improperly place an onus on the
    appellant. The evidence supporting a finding of intractability was
    overwhelming.

[39]

The clinical and actuarial assessments established that the appellant
    posed a moderate to high risk for violent or sexual recidivism. The appellants
    substance abuse disorder exacerbated this risk. It served to inhibit his
    judgment and empathy. The appellants antisocial personality disorder and his
    significant psychopathic traits suggested that he would be less responsive to
    treatment and more likely to refuse or discontinue treatment, all of which
    increases the likelihood that he would reoffend.

[40]

While in the penitentiary, the appellant showed no signs of insight or willingness
    to engage in a corrective plan. While there were signs of optimism because of
    his conduct at the Elgin Middlesex Detention Centre, the sentencing judge
    determined that this evidence amounted only to a possibility of eventual
    control in the community, not a reasonable expectation of such control.

[41]

The sentencing judge assessed all of the evidence and was satisfied that
    there was no reasonable expectation that anything other than an indeterminate
    sentence would adequately protect the public. This conclusion that there was no
    reasonable expectation of controlling the appellants offending behaviour was necessarily
    premised on the sentencing judges finding that the appellants harmful
    recidivism and violent pattern of behaviour was intractable. This finding of
    fact is fully supported by the evidence led by the Crown and, as explained by the
    sentencing judge, is anchored in his acceptance of Dr. Woodsides opinion. The
    sentencing judge explained that the convergence of the two diagnoses of
    antisocial personality disorder and substance abuse disorder makes it
    unrealistic to expect for Mr. Gracie his control in the community. A mere hope
    of control is simply not enough to raise a reasonable doubt in this case.

(2)

The
Gladue
error

(a)

The
    impact of the
Gladue
factors

[42]

The sentencing judges reasons do not reference the
Gladue
report and
Gladue
principles. The appellant submits that the
    sentencing judge erred by failing to consider the fact that he is Indigenous. He
    argues that his Indigenous background may have played a role in his offending
    and the possibility of his accessing Indigenous programs and treatment options
    should have been considered at the penalty stage. As set out earlier, the
    appellant demonstrated an interest in reconnecting with his Indigenous heritage
    by attending the Native Sons program while at the Elgin Middlesex Detention
    Centre. The steps he took and the interest he has shown in his community and
    culture were, in the appellants view, relevant to both his risk assessment and
    treatment prospects.

[43]

Despite the fact that a
Gladue
report had been prepared and
    marked as an exhibit to the sentencing proceedings, the sentencing judge made
    no reference to the report and to
Gladue
factors in his reasons. The
    Crown agrees that the absence of any consideration in the sentencing judges
    reasons of the appellants Indigenous heritage constitutes an error of law.

[44]

In the Crowns submission, however, on the evidence before the
    sentencing judge, this error had no impact on the outcome of the case. The
Gladue
report and
Gladue
principles were barely mentioned by defence counsel
    at the sentencing hearing and no submissions were made on the relevance of the
Gladue
factors to the issues to be addressed on the dangerous offender application.
    This may well explain why the sentencing judge, despite having indicated that
    he had considered all of the material filed, made no specific mention of the
    report. While this does not justify the sentencing judges failure to address
    these principles and apply them to the case, it reflects the marginal role that
    the parties themselves attributed to the
Gladue
report and factors.

[45]

The appellant was adopted as an infant and raised in a loving and
    supportive family. He was introduced to Indigenous practices as a young child
    through a non-Indigenous relative. His life of crime began in his teenage years
    and he did not meet members of his biological family until much later in life,
    after he committed the predicate offences.

[46]

The record does not suggest that the appellants Indigenous background might
    have had a significant impact on his future prospects for treatment. The
    appellant never mentioned reconnecting with his Indigenous roots to either Dr.
    Chaimowitz or Dr. Woodside. The culturally-specific recommendations contained
    in the
Gladue
report were not responsive to most of the risks factors
    identified by the experts. The risk of sexual and violent recidivism was the
    product of his serious personality disorder, his substance use disorder, his
    poor treatment and supervision history, and the dim prognosis for meaningful
    change. The only recommendation in the
Gladue
report of any relevance
    to addressing these risks was the suggestion that he attend a healing lodge
    offering traditional and cultural teachings to address a wide variety of
    concerns, including alcohol and drug addictions.

[47]

As a result, there is simply no evidentiary foundation for the
    appellants suggestion that the Indigenous programming or treatment options he
    might access would have any prospect of addressing the risk he poses to the
    community such that a sentence other than an indeterminate sentence would be
    appropriate. While the appellant should have access to Indigenous programming,
    this would not be sufficient to move him from being an offender considered by
    Dr. Woodside to be unmanageable in the community, to one who could be managed.

(b)

The
    reliability of the actuarial assessment tools

[48]

The appellant argues that the risk assessments made by the experts are
    undermined by concerns about the reliability of the actuarial tests they used.
    In his submission, the decision in
Ewert v. Canada
, 2018 SCC 30,
    [2018] 2 S.C.R. 165, made it clear that there are legitimate concerns about the
    validity of the psychological and actuarial tools used to do risk assessments
    when these tests are applied to Indigenous offenders.

[49]

As the experts relied on these impugned tools, the appellant submits
    that the conclusion that he poses a continuing risk is not reliable and that
    the sentencing judges designation and penalty decisions should be set aside.

[50]

I would reject this ground of appeal. The accuracy of the assessment
    tools was not a concern raised at the sentencing hearing. In fact, the
    appellants own expert relied on several of these tests. I acknowledge that,
    since
Ewert
was decided after the decision under appeal, the appellant
    was not aware of this concern at the time of the sentencing proceedings. The fact
    remains, however, that the failure to raise this concern means that there was
    no evidence called at the hearing. This court is thus being asked to make a
    finding in the absence of a factual basis.

[51]

Further, at his highest,
Ewert
stands for the proposition that
    these actuarial tools are susceptible to cultural bias. Dr. Hart, the psychologist
    whose testimony during proceedings at first instance in
Ewert
advanced
    the concern as to reliability, has since testified in at least two dangerous
    offender proceedings. In
R. v. Haley
, 2016 BCSC 1144, the trial judge
    noted that Dr. Hart accepted that actuarial tools have been shown to be
    moderately predictive of risk, including when they are applied to Indigenous
    offenders: at para. 258. In
R. v. Awasis
, 2016 BCPC 219, Dr. Hart testified
    that he was unaware of any research supporting the conclusion that there is
    inherent bias in actuarial tests when they are applied to Indigenous offenders.
    Based on the testimony of Dr. Hart and another expert, the court in
Awasis
concluded that actuarial tools are reliable predictors of the future risk of
    recidivism in Indigenous offenders. The court went on to find Mr.
Awasis

to be a dangerous
    offender and imposed an indeterminate period of incarceration.

[52]

Moreover, actuarial testing was only one of many factors taken into
    account by the experts in this case. They also considered their own clinical
    assessment of the appellant together with other information concerning him,
    such as his criminal history. Based on their broad assessment of the appellant,
    both experts concluded that he posed a moderate to high risk for both sexual
    and violent recidivism. Placed in context, the concerns raised by the appellant
    as to the reliability of the risk assessment tools as they apply to Indigenous
    offenders do not undermine the force of the expert evidence or the conclusions
    of the sentencing judge.

F.

CONCLUSION

[53]

In my view, there is no reasonable possibility on this record that the
    verdict would have been any different had the two errors committed by the
    sentencing judge not been made.

[54]

For these reasons, I would dismiss the appeal.

Released: August 19, 2019

PR

Paul Rouleau J.A.

I agree B.W. Miller
    J.A.

I agree Fairburn
    J.A.