COURT OF APPEAL FOR ONTARIO

CITATION: Dass v. Kay, 2021 ONCA 565

DATE: 20210811

DOCKET: C68041

Strathy C.J.O., Brown and Miller
    JJ.A.

BETWEEN

Paul Dass, 1218934 Ontario
    Limited and 2169460 Ontario Limited

Plaintiffs (Appellants)

and

Mark Kay & CFO Capital

Defendants (Respondents)

Osborne G. Barnwell, for the appellants

Kim T. Duong, for the respondents

Heard: February 10, 2021 by video conference

On appeal from the judgment of Justice Judy
    A. Fowler Byrne of the Superior Court of Justice, dated January 17, 2020.

B.W. Miller J.A.:

A.

Overview

[1]

The appellants appeal from the motion judges dismissal
    of their action on a motion for summary judgment. The motion judge concluded
    that the appellants claims were statute-barred under the
Limitations Act,
    2002
, S.O. 2002, c. 24, Sched. B. The appellants argue that in reaching
    that conclusion, the motion judge committed multiple errors of law and palpable
    and overriding errors of fact.

[2]

For the reasons that follow, I conclude that the
    motion judge did not err and that the appeal should be dismissed.

B.

Background

[3]

The appellant Paul Dass is the principal of the
    two corporate appellants, 1218934 Ontario Limited and 2169460 Ontario Limited.
    In these reasons, I will refer to Paul Dass as Mr. Dass, and Mr. Dass and the
    two corporate appellants as, collectively, the appellants.

[4]

The respondent Mark Kay is a mortgage broker and
    the principal of the respondent CFO Capital, which carries on business as a
    mortgage brokerage.

[5]

In early 2015, the respondents were asked
    by their client Jaswant Dass, brother of Mr. Dass, to secure financing for the $6
    million purchase of a commercial property on Drew Road in Toronto. The
    respondents submitted the loan application to Roynat Capital (Roynat), an
    affiliate of the Bank of Nova Scotia (Scotiabank). The loan application
    listed Mr. Dass and his company 1829131 Ontario Inc. (Teletime), which is not
    a party to this appeal, as guarantors. The loan application also indicated that
    Teletime would be the tenant and included Teletimes financial statements in
    support (the Drew Road Application).

[6]

Mr. Dass, however, knew nothing about the Drew
    Road Application. He had never agreed to guarantee the loan, was not involved
    in any way with the purchase, had no intention of leasing the property, and had
    not authorized the disclosure of the financial statements. Jaswant Dass was ultimately
    unsuccessful with the Drew Road Application.
[1]

[7]

Mr. Dass first learned about the Drew Road Application
    in July 2015, during his own negotiations with Roynat. He was seeking financing
    for the purchase of a commercial property on Wolfedale Road, Mississauga (the Wolfedale
    Application).

[8]

A financial officer at Roynat, Chad Pitre,
    brought the Drew Road Application to Mr. Dasss attention on July 24, 2015. Mr.
    Dass responded that he was not involved with the Drew Road Application and he had
    never agreed to guarantee the loan. Mr. Pitre provided Mr. Dass with the name
    of the brokerage that sent the Drew Road Application to Roynats office - the
    respondent CFO Capital.

[9]

Mr. Dass testified that from the time he first
    heard from Mr. Pitre about the Drew Road Application on July 24, he was
    concerned that it could interfere with the Wolfedale Application. He testified,
    however, that he thought he could manage the situation with Roynat.

[10]

Roynat later declined the Wolfedale Application.
    Mr. Dass testified that in August, Mr. Pitre told him that the Application was refused
    because Roynat no longer wanted to finance his type of business - not because
    of his association with the Drew Road Application.

[11]

Nevertheless, on August 21, 2015, after receiving
    the news, Mr. Dass sent an email to his lawyer, copying Mr. Pitre, a
    representative of CFO Capital, and others. In the email, he complained that the
    refusal was the result of improper action by the broker and Jaswant Dass that
    harmed his reputation in the eyes of Roynat. He expressed concern that he could
    lose millions of dollars in business as a result and asked his lawyers opinion
    as to whether he could pursue criminal charges against Jaswant Dass and CFO
    Capital. The email, in its entirety, read as follows:

Hi, Osborne

Please see attached fraud application filed to
    Roynat the lender by Broker called CFO GROUP, who were hired by Jaswant Dass
    for his business loan requisition. And my name is written the loan application
    without my authority and broker filed this application without my consent.

I had request filed to Roynat for my business
    requirements, this week i got call from Roynat officer that application is
    declined.

I had 3 loan requirements in last 3 years and
    Roynat full filled without problems.

My request with Roynat was submitted in May
    2015, Roynat officer gave me term sheet also gave me term sheet for loan with
    few pending items.

Roynat officer told me he spoke to the higher
    persons in-charge at Roynat all looks good, every thing changed when
    application was submitted by mortgage broker on behalf of Jaswant Dass to
    Roynat in July, since then all have changed i started to get calls from Roynat
    that the application sent by Jaswants broker might mess up my loan request.

And in my thinking mine and my companies image
    got deteriorated in the view of the lender Roynat due to improper action by the
    broker and Jaswant Dass.

Jaswant Dass lied to my accountant to take my
    financial information.

Due to this stupid action by broker and
    Jaswant could end up i lose the property required for my business expansion.
    And it will result in MILLIONS OF DOLLARS OF LOSS IN BUSINESS.

PLEASE ALSO ADVISE ME IF I CAN GO TO LOCAL
    POLICE STATION, IF POSSIBLE TO FILE FRAUDULENT CASE AGAINST THE BROKER INVOLVED
    AND JASWANT DASS

Paul Dass [
sic
]

[12]

Around this time, Mr. Dass was also attempting
    to finalize a loan from Scotiabank to refinance another property, located at
    Dixie Road, Mississauga (the Dixie Road Application).

[13]

When Roynat denied the Wolfedale Application, Mr.
    Dass turned to Scotiabank. Scotiabank ultimately denied both the Wolfedale
    Application and the Dixie Road Application.

[14]

Mr. Dass eventually secured financing for the Wolfedale
    property through other lenders, although at a higher interest rate than what was
    offered by Roynat, and completed the purchase. He also obtained financing for
    the Dixie Road property at a higher rate than what was initially offered by
    Scotiabank.

[15]

Mr. Dass stated that in January 2018, when it
    was time to renew the loan for the Wolfedale property, he approached Roynat and
    Scotiabank again. At this time, representatives of each allegedly explained that
    he had been blacklisted due to the Drew Road Application submitted by CFO
    Capital in 2015.

C.

Procedural history

[16]

The appellants statement of claim was
    issued on April 27, 2018. In it, the appellants described their claim as
    seeking damages for the reputational and commercial harm suffered by the appellants
    and caused by the respondents submission of the Drew Road Application:

The claim seeks damages for the unauthorized
    use of personal information by the defendants in a loan application put
    forward, seemingly, on behalf of the individual plaintiff and his corporate
    interests. The unauthorized loan application was made to the plaintiffs
    commercial lenders for financing. That unauthorized application caused the
    plaintiffs commercial lender to refuse to do business with them. Implicit in
    that refusal is the irreparable reputational injury to the individual
    plaintiff.

[17]

The respondents brought a motion for
    summary judgment on the basis that the appellants claim was statute-barred, having
    been brought outside the two-year limitation period established by s. 4 of the
Limitations
    Act, 2002
.

[18]

The motion judge accepted that the claim was
    suitable for summary judgment and dismissed the action as statute-barred.

[19]

The motion judge found that the appellants:

·

knew on July 24, 2015 of the unauthorized use of
    their information in the Drew Road Application;

·

knew on July 27, 2015 of the respondent CFO
    Capitals involvement; and

·

had concluded, by August 21, 2015, that Mr. Dass
    would suffer financial loss as a result of the Drew Road Application, as
    evidenced by Mr. Dasss email on that date to his counsel.

[20]

Accordingly, the motion judge found that by
    August 21, 2015, the appellants were aware of all of the material facts
    required to advance their claim. As the statement of claim was not issued until
    April 27, 2018, more than two years later, the action was statute-barred.

D.

Issues on appeal

[21]

The appellants raise two grounds of appeal,
    alleging: (i) the motion judge erred in law by misinterpreting s. 5 of the
Limitations
    Act, 2002
and (ii) the motion judge made palpable and overriding misapprehensions
    of fact.

E.

Analysis

(1)

The Law  The
Limitations
    Act, 2002

[22]

Section 4 of the
Limitations Act, 2002
states:
    [u]nless this Act provides otherwise, a proceeding shall not be commenced in
    respect of a claim after the second anniversary of the day on which the claim
    was discovered.

[23]

The determination of when a claim was discovered
    is governed by s. 5:

5 (1) A claim is discovered on the
    earlier of,

(a)  the day on which the person with
    the claim first knew,

(i)  that
    the injury, loss or damage had occurred,

(ii)  that
    the injury, loss or damage was caused by or contributed to by an act or
    omission,

(iii)  that
    the act or omission was that of the person against whom the claim is made, and

(iv)  that,
    having regard to the nature of the injury, loss or damage, a proceeding would
    be an appropriate means to seek to remedy it; and

(b)  the day on which a reasonable
    person with the abilities and in the circumstances of the person with the claim
    first ought to have known of the matters referred to in clause (a).  2002,
    c. 24, Sched. B, s. 5 (1).

Presumption

(2) A person with a claim shall be
    presumed to have known of the matters referred to in clause (1) (a) on the day
    the act or omission on which the claim is based took place, unless the contrary
    is proved.  2002, c. 24, Sched. B, s. 5 (2).

[24]

Although the
Limitations Act, 2002
essentially codified the existing discoverability principle (
Grant Thornton
    LLP v. New Brunswick
, 2021 SCC 31, at para. 35), s. 5(1)(a)(iv) added a
    new factor to that analysis  the appropriateness of bringing a proceeding. This
    factor is central to this appeal.

[25]

This courts jurisprudence interpreting s.
    5(1)(a)(iv) was recently distilled into three principles by Hourigan J.A. in
Sosnowski
    v. MacEwan Petroleum Inc.
, 2019 ONCA 1005, 441 D.L.R. (4th) 393, at paras.
    16-19.

[26]

First, the determination of whether a
    proceeding is an appropriate means to seek to remedy an injury, loss, or damage
    depends on the factual and statutory context of each case:
Sosnowski
,
    at para. 16.

[27]

Second, this court has recognized two
    non-exclusive factors that can operate to delay the date on which a claimant
    would know that a proceeding would be an appropriate means to remedy a loss: (i)
    when the plaintiff relied on the defendants superior knowledge and expertise,
    particularly where the defendant has taken steps to ameliorate the plaintiffs
    loss; and (ii) where an alternative dispute resolution process offers an
    adequate remedy, and it has not been completed:
Sosnowski
, at para.
    17.

[28]

Third, appropriate means that it is legally
    appropriate to bring a proceeding, rather than practically advantageous. This
    third principle excludes from consideration many practical and tactical reasons
    a claimant might have for not commencing a proceeding at an earlier time when
    it was legally appropriate to do so, such as the belief that the claim might be
    difficult to prove. Put differently, [a]ppropriate does not include an
    evaluation of whether a civil proceeding will succeed:
Sosnowski
, at
    paras. 18-19.

(2)

Standard of Review

[29]

The determination of whether a limitation
    period has expired is a question of mixed fact and law and the motion judges
    conclusion is entitled to deference in the absence of a palpable and overriding
    error in her assessment of the evidence:
Longo v.
    MacLaren Art Centre Inc.
,
    2014 ONCA 526 at para. 38.

(3)

Issue 1: The Motion Judge Did Not Err in Law in
    Her Analysis under s. 5 of the
Limitations
    Act, 2002

(i)

The Appellants Argument

[30]

The appellants argue that the motion judge erred
    in her interpretation of s. 5 of the
Limitations Act, 2002
. They allege
    that she erred in her understanding of what it means for a person to have discovered
    that damage has occurred and that, pursuant to s. 5(1)(a)(iv), a proceeding
    would be an appropriate means to seek to remedy it, including by: (i) unreasonably
    restricting her analysis to whether the appellants had knowledge of the facts
    that established the cause of action; (ii) overlooking the additional
    requirement in s. 5 that a complainant know that the defendant caused the
    complainant damage or loss; and (iii) improperly concluding that Mr. Dass had
    assumed he would suffer financial loss.

[31]

In particular, the appellants argue that they did
    not know that CFO Capitols actions had resulted in any loss worth pursuing until
    2018, when they were advised by Roynat that the appellants had been blacklisted
    due to the Drew Road Application.

[32]

The appellants claimed that Mr. Dass knew in
    2015 that Jaswant Dass and CFO Capital had submitted a fraudulent loan
    application falsely claiming that Mr. Dass and his company agreed to guarantee
    the loan. Mr. Dasss evidence was that he believed his reputation was tarnished
    by the Drew Road Application and that he would face a significant financial
    loss as a result. That loss would be the lost opportunity to expand his
    business and the loss resulting from higher financing costs.

[33]

However, Mr. Dass testified that in August 2015,
    he had no evidence to prove his suspicion that his inability to obtain financing
    was the result of the respondents conduct. He believed it to be the case, but the
    lenders denied it. This created an evidential problem. He sought counsel from
    his lawyer, who advised him that an action against the respondents would be
    unlikely to succeed given the absence of evidence that the respondents had
    caused his loss. He was told that an action was therefore inadvisable.

[34]

On Mr. Dass evidence, it was not until 2018,
    when he approached Roynat for the renewal of the mortgage for Wolfedale, that
    he knew he had suffered any loss. At that time, a representative of Roynat told
    him that he had been blacklisted in 2015 because of the Drew Road Application. Armed
    with that knowledge, he commenced his action.

(ii)

The Motion Judge Did Not Err

[35]

The motion judge did not err in her articulation
    or application of the discoverability principle as codified in s. 5(1). As
    recently restated by the Supreme Court, a claim is discovered when the material
    facts that are actually or constructively known by a plaintiff enable the
    plaintiff to determine that it has
prima facie
grounds to infer
    liability on the part of the defendant or, equivalently, enable the plaintiff to
    draw a plausible inference of liability on the part of the defendant:
Grant
    Thornton
, para. 45. The motion judge found, largely on the strength of the
    August 21, 2015 email, that Mr. Dass had the requisite knowledge by that date. The
    email speaks for itself, and the motion judge made no error in finding that the
    claim was discovered by that date.

[36]

Section 5(1)(a)(iv), as the appellants note,
    postpones the start of the limitation period until a claimant knows that a
    proceeding would be an appropriate means to seek to remedy an injury, loss, or
    damage.

[37]

The appellants argue that the motion judge erred
    by rejecting the proposition that an assessment of the appropriateness of
    litigation, within the meaning of 5(1)(a)(iv), includes an assessment of the prospect
    of the success of litigation, particularly where the party has relied on an
    assessment of merits by legal counsel.

[38]

For the reasons given below, I do not agree that
    the motion judge erred.

[39]

First, as explained above, the case law
    interpreting s. 5(1)(a)(iv) has, to date, recognized two situations delaying
    the start of the limitation period: (i) where a plaintiff relied on a
    defendants superior knowledge and expertise, especially where the defendant
    took steps to ameliorate the loss; and (ii) where the parties have engaged an
    alternative dispute resolution process offering an adequate remedy and it has
    not been completed. The appellants do not come within either situation.

[40]

Claimants such as the appellants who have relied
    on the advice of their legal counsel are not in an analogous position to
    claimants who have relied on the assessment of their situation provided by defendants.
    The case law recognizes that it would be unreasonable to discourage claimants
    from reasonably relying on a defendants good-faith efforts to remedy an issue
    and thereby potentially avoiding the need for a lawsuit:
Brown v. Baum
,
    2016 ONCA 325, 397 D.L.R. (4th) 161, at paras. 18, 24;
Presidential MSH
    Corp. v. Marr, Foster & Co. LLP
, 2017 ONCA 325, 135 O.R. (3d) 321, at
    paras. 20, 26. Here, the appellants have been in no way dependent on the
    respondents for information, an understanding of their position in relation to
    Roynat or any other lender, or efforts to remedy the damage they claim to have
    suffered. The appellants accordingly never delayed bringing an action on that
    basis.

[41]

Neither have the appellants engaged in an
    alternative dispute resolution process with the respondents, such that it would
    be unfair not to take that process into account under s. 5(1)(a)(iv):
407
    ETR Concession Co. Ltd. v. Day
, 2016 ONCA 709, 133 O.R. (3d) 762, at para.
    40, leave to appeal refused, [2016] S.C.C.A. No. 509;
Presidential
,
    at paras. 28-29.

[42]

The appellants are not, of course, restricted to
    the two categories of cases identified to date that delay the start of the
    limitation period. But if they cannot bring themselves within those two
    categories they must propose another set of circumstances in which it could be
    said, on a principled basis, that a person with a claim could not have known that
    an action would be an appropriate means to remedy the injury, loss, or damage.

[43]

What the appellants have proposed is, in effect,
    an expansion of the class of matters under s. 5(1)(a)(iv) to include any
    situation where plaintiffs know they have been wronged or suffered damage at
    the hands of the defendants, but doubt they will be able to marshal the
    evidence to prove the claim and are unsure whether the scale of the eventual
    commercial loss will make an action remunerative.

[44]

This proposal has been considered and rejected by
    courts repeatedly:
Sosnowski
, at para. 19;
Peixeiro v. Haberman
,
    [1997] 3 S.C.R. 549, at para. 18. The motion judge made no error in not
    accepting it. To give s. 5(1)(a)(iv) the meaning that the appellants propose
    would substantially reduce the certainty the
Limitations Act, 2002
is intended
    to provide.

[45]

Second, as the respondents argue, the
    appellants argument conflates the concepts of damage and damages. The
    difference has been explained by the Nova Scotia Court of Appeal in
Smith
    v. Union of Icelandic Fish Producers Ltd.
, 2005 NSCA 145, 238 N.S.R. (2d)
    145, at para. 119, adopting A.I. Ogus explanation given in
The Law of
    Damages
(London, Butterworths, 1973), at p. 2: damages should connote the
sum of money payable by way of compensation
, while the use of
    damage is best confined to instances where it refers to the
injury
    inflicted
by the tort or breach of contract (emphasis in original). See
    also
Hamilton (City) v. Metcalfe & Mansfield Capital Corporation
,
    2012 ONCA 156, 347 D.L.R. (4th) 657, at para. 55;
Brozmanova v. Tarshis
,
    2018 ONCA 523, at para. 35.

[46]

The limitation period does not commence only
    when one can ascertain what damages one would be entitled to as a remedy, such
    that one would be better able to assess whether litigation would be an
    attractive option.

[47]

Accordingly, I reject the appellants arguments
    under this ground of appeal. The motion judge did not err in law in her
    interpretation of the
Limitations Act, 2002.

(4)

Issue 2: The Motion Judge Did Not Commit Any
    Palpable and Overriding Errors in Her Analysis Under s. 5 of the
Limitations Act, 2002

[48]

The appellants argue that the motion judge made palpable
    and overriding errors of fact in her characterization of the loss that the
    appellants claim to have suffered.

[49]

The appellants argue that there were two
    separate claims: (i) damages for Mr. Dass loss of reputation, quantified at $200,000
    and (ii) damages for the higher interest costs payable by the appellant
    corporations, quantified at $500,000. The appellants argue that the motion
    judge only considered the latter.

[50]

They further argue that the motion judge erred
    in finding that the appellants knew they had suffered damage in July 2015, and by
    ignoring the fact that Mr. Dass sought legal advice to determine whether he
    should commence an action.

[51]

I do not agree that the motion judge made any
    error.

[52]

The motion judge made no error in finding that Mr.
    Dass knew in July 2015 that his reputation had been damaged by the actions of CFO
    Capital and that a proceeding was an appropriate means of seeking a remedy. The
    losses incurred by the corporate appellants as a result of having to pay
    disadvantageous interest rates were a direct consequence of Mr. Dass loss of
    reputation caused by the Drew Road Application. The motion judge found that Mr.
    Dass knew this in July 2015. That finding was open to her.

[53]

Similarly, the motion judge did not overlook any
    aspect of the appellants claim. She linked Mr. Dass alleged loss of
    reputation and the increased cost of borrowing incurred by the corporate
    appellants because they were, in fact, linked. The loss of reputation resulted
    in the increased carrying costs.

[54]

Finally, the suggestion that the motion
    judge overlooked the argument that the appellants relied on the advice of legal
    counsel, and that this reliance should have been considered under s. 5(1)(b) as
    a matter of when a reasonable person with the abilities and in the
    circumstances of the person with the claim first ought to have known, is of no
    assistance. On appeal, the issue is not what a reasonable person would have
    known, but what Mr. Dass in fact knew. That the appellants relied on the advice
    of legal counsel is not relevant to any matter in issue.

F.

DISPOSITION

[55]

I would dismiss the appeal and award the
    respondents costs of the appeal in the amount of $18,000, inclusive of HST and
    disbursements.

Released: August 11, 2021 G.R.S.

B.W.
    Miller J.A.

I
    agree. G.R. Strathy C.J.O.

I
    agree. David Brown J.A.

[1]
CFO Capital eventually submitted another loan application on behalf
    of Jaswant Dass to the Royal Bank of Canada. This application, which did not
    name the appellants or Mr. Dass non-party company in any capacity, was
    approved and the purchase of the Drew Road property closed on November 4, 2015.


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. Primmer, 2021 ONCA 564

DATE: 20210810

DOCKET: C66032

Doherty, Watt and van Rensburg
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Justin Primmer

Appellant

Richard Litkowski and Myles Anevich, for
    the appellant

Emily E. Marrocco, for the respondent

Heard: February 22, 2021 by
    video conference

On appeal from the conviction entered on
    July 9, 2015, and from his designation as a dangerous offender and the sentence
    imposed on May 29, 2017, by Justice Alissa K. Mitchell of the Superior Court of
    Justice, with reasons reported at 2017 ONSC 2953.

van Rensburg J.A.:

OVERVIEW

[1]

The appellant appeals his convictions for
    assault, aggravated assault, assault causing bodily harm and uttering threats
    to property. He also appeals the decision declaring him a dangerous offender
    and imposing an indeterminate sentence.

[2]

The charges
[1]
arose out of events that occurred during a two-month period in 2013. The
    complainant was the appellants intimate partner, who, among other things,
    testified about two assaults by the appellant during their brief and volatile
    relationship: the beating incident, in which the appellant allegedly injured
    the complainants face, and the cutting incident, in which he allegedly cut
    her forearms. The central issue at trial was the assessment of the credibility
    and reliability of the complainant, who admitted having lied to the police, the
    Childrens Aid Society (the CAS), to family members and to her best friend
    when asked about the cause of her injuries. The appellant did not testify.

[3]

The appellant raises four issues on his
    conviction appeal. He asserts that the trial judge erred: (1) by using the
    complainants prior consistent statements and certain other evidence to
    corroborate her trial testimony; (2) in explaining away the complainants credibility
    problems by suggesting, without expert evidence, that she suffered from
    Stockholm Syndrome; (3) in shifting the burden of proof to the appellant when
    she concluded that he was the cause of the complainants injuries; and (4) in
    relying on the ring of truth as a basis for believing the complainants
    evidence about the appellants threat toward her fathers property.

[4]

In appealing the dangerous offender finding and
    his indeterminate sentence, the appellant submits that (1) contrary to the
    Supreme Courts decision in
R. v. Boutilier
, 2017 SCC 64, [2017] 2
    S.C.R. 936, the trial judge failed to consider the factors of treatability and
    intractability at the designation phase of her dangerous offender analysis; and
    (2) the trial judge misapprehended the evidence of Dr. Philip Klassen, the
    assessor appointed under s. 752.1 of the
Criminal Code
, and set too high
    a standard for whether there was a reasonable prospect of eventual control of
    the appellant in the community.

[5]

For the reasons that follow, I would dismiss the
    conviction appeal and the appeal of the dangerous offender designation and
    indeterminate sentence.

THE CONVICTION APPEAL

A.

FACTS

[6]

The appellant and the complainant met in
    mid-March 2013 and began a volatile romantic relationship that lasted a little
    over two months. The complainant was 20 years old at the time and lived with
    her young daughter. The appellant regularly stayed overnight at the
    complainants apartment, where they would consume large amounts of alcohol and drugs.

[7]

On April 28, 2013, the appellant invited a
    friend to the complainants apartment to provide them with cocaine. The
    complainant testified that when she refused to have sex with the friend to pay
    for the drugs, the appellant struck her on the side of her head. Later that
    morning, after they drove the appellants friend home and were alone in the
    car, the appellant repeatedly punched the complainant in the head. The
    complainant had no further recollection of events until she woke up in her bed in
    the afternoon, took pictures of her injured face, and discussed what had happened
    with the appellant. She testified that the appellant admitted to continuing the
    beating after they returned to her apartment, both on the couch in the living
    room, and in the bathroom. The complainant was convinced the appellant told her
    the truth about the details of the beating after she found her broken necklace in
    the bathroom.

[8]

According to the complainant, the appellant
    became more controlling after the beating incident. He insisted that she cancel
    her social media accounts and placed spyware on her cellphone to track her
    communications. He prohibited her from wearing make-up and seeing friends. She
    stopped attending college. She also testified that, sometime after the beating,
    the appellant threatened to blow up her fathers car if she told anyone the true
    cause of the injuries to her face.

[9]

The complainant testified that the cutting
    incident took place at her apartment on May 17 or 18, 2013. She told the
    appellant she did not think they should be together anymore. In response, the
    appellant followed her into the kitchen, took a knife from the knife block, and
    cut each of her forearms. They took photos of the injuries, which were deep and
    resulted in scarring.

[10]

The appellant was arrested on May 25, 2013 for an
    unrelated assault on another woman.
[2]

[11]

The complainant did not disclose the assaults to
    the police until February 5, 2014. She had sent a text to her father, R.E., after
    the beating incident, with photos of her face and a message saying that she had
    been jumped after getting pizza. She repeated the story to R.E.s common law
    partner, S.M., who advised R.E. of the extent of the injuries. R.E. suspected
    the complainant was not telling the truth and that the appellant was
    responsible for her injuries. He contacted the police, who met with the
    complainant at her fathers house. The police in turn alerted the CAS. In repeated
    interactions with the police and the CAS, the complainant denied or failed to
    disclose that the appellant had assaulted her.

[12]

Following the cutting incident, the complainant
    told her friend, A.A., that the injuries to her forearms were caused by a freak
    gardening accident. On May 26, 2013, the police interviewed the complainant in
    relation to the appellants assault on another woman. The police observed a
    wound on the complainants left forearm that had begun to heal. The complainant
    repeated that the wound was caused by a gardening accident. On two further
    occasions she was questioned by police and she denied the appellant had
    assaulted her.

[13]

R.E. testified that he had received by text message
    from the complainants cell phone photos of her facial injuries and a message
    stating that she had been jumped while getting pizza. S.M. testified that the
    complainant had initially told her that she had been jumped, but that several
    days after the beating incident, the complainant admitted that she had lied
    about the cause of her facial injuries and told her that the appellant had
    beaten her. S.M. also testified that the complainant told her sometime in June
    2013 that the appellant was responsible for the cuts to her arms. The
    complainants mother, H.E., testified that the complainant had initially denied
    that the appellant had anything to do with her facial injuries and that she was
    unable to contact the complainant to discuss the injuries to her arms until after
    the appellants arrest on unrelated charges on May 25, 2013, when the
    complainant told her that the appellant had cut her arms.

The Trial Judges Reasons for Conviction

[14]

Certain
    aspects of the trial judges reasons are addressed below. It is sufficient at
    this point to say that the trial judge convicted the appellant based on her
    acceptance of the complainants evidence. She found that the complainant was a
    credible and reliable witness. Although the complainant lied to police, family
    and friends on several occasions, she had a reasonable explanation for doing
    so, namely, that she was afraid of the appellant and what he would do if she
    told anyone the truth. Further, the inconsistencies in her evidence were not
    material.

[15]

The trial judge concluded that the complainants evidence about
    the beating and cutting incidents and the appellants threat to destroy her
    fathers car was truthful. The trial judge found that her evidence was
    corroborated by photographs of her injuries, the broken necklace, and the
    evidence of other witnesses. The trial judge also considered and rejected
    alternate explanations for the complainants injuries that could have raised a
    reasonable doubt.

B.

Issues AND DISCUSSION

(1)

Did the trial judge err in finding corroboration
    for the complainants testimony where there was none?

[16]

This ground of appeal focusses on a passage in
    the trial judges reasons which begins: I find that [the complainants]
    evidence relating to the beating and the cutting is corroborated by the
    photographs, the broken necklace, and also the evidence of the other witnesses
    for the following reasons.

[17]

The appellant submits that the trial judge erred
    in law in concluding that the photos, the broken necklace, and the evidence of other
    witnesses corroborated her evidence. He asserts that the photos of the
    complainants injuries, including one of the cuts to her arms with the
    appellants shoe in the background, could corroborate only uncontroversial
    details, such as the fact that the complainant was injured, and that the broken
    necklace could not corroborate her evidence because it did not come from a
    source independent of the complainant. With respect to the evidence of S.M. and
    H.E., the appellant argues that the complainants prior consistent statements
    to these witnesses were used improperly, to bolster her credibility.
[3]

[18]

In the discussion that follows, I will address
    the trial judges use of the complainants prior consistent statements to S.M.
    and H.E. in her assessment of the complainants evidence. Then, I will turn to her
    treatment of the evidence of the photos and the necklace.

The Complainants Statements to S.M. and H.E.

[19]

The complainants injuries to her face and her
    arms, and the timing of such injuries were not seriously in dispute. They were
    evident in the contemporaneous photos that were introduced in evidence at the
    trial, and they were described by various witnesses. There was no question that
    the complainant had repeatedly denied that the appellant had caused her injuries,
    and that she had offered other explanations to friends and family, the police
    and the CAS. She had first told the police that the appellant caused the
    injuries in February 2014, many months after the assaults had taken place. The
    key issue at trial was the assessment of the credibility of the complainants
    testimony, particularly in view of her prior inconsistent explanations for her
    injuries and her insistence that she had not been assaulted by the appellant,
    and the reliability of her evidence, because of the effect of drugs and alcohol
    on her perception and memory.

[20]

While many of the witnesses at trial confirmed
    that the complainant denied having been assaulted by the appellant and offered
    other explanations, three witnesses, S.M., H.E. and R.E., testified about
    conversations with the complainant in which she disclosed that she had been
    assaulted by the appellant. The Crown led some of the evidence about these conversations.
    Defence counsel cross-examined each witness about the details of the
    conversations. In her reasons for conviction, the trial judge only referred to the
    consistency between S.M. and H.E.s accounts of what the complainant told them
    about the assaults, and the complainants own account.
[4]
Accordingly, the appellants
    submissions on appeal focused on whether the trial judge used for an improper
    purpose, prior consistent statements of the complainant, adduced through these
    witnesses:

·

S.M., the common law partner of the
    complainants father R.E., testified in chief that, although the complainant initially
    claimed that her facial injuries were caused when she was jumped on the way
    home from getting pizza, over time the complainant opened up to her more, and disclosed
    that they were caused by the appellant. The complainant also told her the
    details of how the appellant had cut her when S.M. saw the bandages on her arms.
    S.M. was cross-examined on the details of what she had been told by the complainant
    about both incidents.

·

The complainants mother, H.E., testified in
    chief that, after the appellant had been arrested on an unrelated matter, the
    complainant told her that the appellant cut her arms. Under cross-examination H.E.
    confirmed that, after the appellant was arrested on the unrelated matter, the
    complainant told her that the appellant caused the injuries to her face, and
    she was taken through the details of her conversations with the complainant
    about both incidents.

[21]

In closing submissions at trial, Crown counsel
    proposed that the evidence of what the complainant told S.M., H.E. and R.E. could
    be used for three purposes: first, to provide narrative of what the complainant
    told family, friends and police and how her story had changed over time;
    second, to neutralize the possibility that the complainants testimony at trial
    was the product of a faulty memory or influenced by the consumption of alcohol
    or drugs; and third, to respond to the defence argument that the complainants
    prior statements revealed inconsistencies that rendered her trial testimony
    unreliable. Crown counsel stated: It is the inconsistency of [the
    complainants] evidence that will be the focus of [the defences] submissions
    to you in your assessment of the reliability or the credibility of [the
    complainant]. He submitted that the evidence of the witnesses about what they
    were told by the complainant was remarkably consistent with her testimony.

[22]

In his closing submissions, defence counsel
    challenged the complainants credibility and reliability. He referred to the
    various versions of the complainants accounts of what had caused her injuries
    which were inconsistent with her testimony, and he suggested that she was an
    unreliable witness because of the influence of drugs and alcohol. He specifically
    invited the trial judge to focus on inconsistencies between S.M. and H.E.s versions
    of the beating and cutting incidents as relayed to them by the complainant, and
    the complainants version of the incidents in her eventual disclosure to police
    in February 2014 and in her testimony in court. He argued that, based on such inconsistencies,
    the complainant provided a third version of each of the beating and cutting
    incidents, that differed from her evidence at trial and what she had told the
    police.

[23]

The trial judge said the following about the evidence
    of S.M.:

[S.M.] testified to the extent of the facial
    injuries she observed on April 30th. She also testified as to the events
    leading up to the cutting described to her by [the complainant]. Her evidence
    is largely consistent with the evidence of [the complainant] with respect to
    these same events. Any inconsistency between her evidence and [the complainants]
    evidence does not discredit the evidence of the [complainant], rather it goes
    to the reliability of [S.M.s] evidence and its weight.

[24]

The trial judge said the following about the
    evidence of H.E.:

[The complainants] mothers evidence is
    similarly consistent with [the complainants] evidence with respect to the
    beating incident and the cutting incident. Similarly, any inconsistency between
    her evidence and [the complainants] evidence, does not discredit the evidence
    of [the complainant], rather it goes to the reliability of [H.E.s] evidence
    and its weight.

[25]

The appellant asserts that the trial judge erred
    in using the complainants prior consistent statements to H.E. and S.M. to
    bolster her credibility by comparing the statements for their truth with the
    complainants testimony. The appellant says that this is apparent from the
    trial judges use of the word corroborate in her introduction to the
    discussion of this evidence and her observation that the witnesses evidence
    and that of the complainant were consistent.

[26]

I disagree.

[27]

No objection was taken to the introduction of
    the evidence of the prior consistent statements; indeed, much of the evidence
    about the details of the conversations was elicited during cross-examination.
    The evidence was, without question, admissible for certain purposes in the
    context of the issues at trial. As Crown counsel submitted, the evidence of the
    complainants explanations for her injuries and her disclosures were part of
    the narrative: see e.g.
R. v. Vlaski
, 2019 ONCA 927, at para. 25, leave
    to appeal refused, [2020] S.C.C.A. No. 78. Moreover, her changing account,
    which was focused on by the defence, was central to the assessment of her credibility
    and reliability. She had repeatedly denied that she had been assaulted by the
    appellant, including to the CAS and the police, and it was only months after
    she sustained the injuries that she told the police they were inflicted by the
    appellant.

[28]

The fact that the complainant told others on
    earlier occasions that she had been assaulted by the appellant was relevant to
    her credibility in that it could help the trial judge assess the defence
    argument that the complainant should not be believed because of the different
    accounts of the relevant events she had given. Defence counsel not only
    highlighted the complainants lies about the cause of her injuries, he also
    attacked her credibility by arguing that there were material inconsistencies
    between what she told S.M., H.E., and R.E., when she disclosed that the
    appellant had caused her injuries, and her evidence at trial. The trial judge
    was entitled to consider that argument having regard to the entirety of the
    statements made to these witnesses. Using the complainants prior statements in
    assessing the effectiveness of the defence challenge to her credibility does
    not constitute using those statements for their truth or for the prohibited
    inference that repetition enhances credibility. In addressing the prior
    statements, the trial judge did what she was invited to do: she considered S.M.
    and H.E.s accounts of what the complainant told them about the incidents and
    the complainants testimony to assess whether the complainants account was
    materially inconsistent when looked at as a whole, and to gauge the impact that
    any differences in detail should have on the complainants overall credibility
    and reliability. This is a permissible use of prior consistent statement
    evidence: see e.g.,
R. v. L. (O.)
, 2015 ONCA 394, 324 C.C.C. (3d) 562,
    at paras. 34-36.

[29]

Nor does the trial judges reference to the fact
    that the evidence of the other witnesses corroborated the complainants
    evidence mean that she was relying on the truth of the statements or the fact
    of repetition to enhance the complainants credibility.

[30]

In a strict, legal sense,  evidence can
    corroborate the testimony of a witness only if that evidence is independent of
    the witnesss testimony. What the witness said on a prior occasion is not independent
    evidence capable of corroborating her evidence:
R. v. A.S.
, 2020 ONCA
    229, at para. 52. In this case however I am not persuaded that the trial judge
    was using the word corroborate in the strict legal sense.

[31]

In a case relied on by the appellant,
R. v.
    Zou
, 2017 ONCA 90, 346 C.C.C. (3d) 490, the question was whether the trial
    judge improperly used an email by the complainant as a prior consistent
    statement to bolster her credibility. The trial judge had referred to the fact
    that the email corroborated the complainants testimony, however the use of
    the word corroborate was not determinative. Doherty J.A. explained, at para.
    40, that corroboration, as commonly understood, refers to evidence from a
    source other than the witness whose evidence is challenged which is capable of
    confirming the veracity of the evidence of the challenged witness. He observed
    however that, [a] proper contextual reading of the reasons will sometimes
    demonstrate that the trial judge used the word corroboration in a more
    limited sense than it is typically used: at para. 42.
[5]

[32]

This is what occurred in
R. v. D.A.
,
    2018 ONCA 612. Although the trial judge stated that the complainants torn bra
    provided some corroboration of the complainants version of events [that she
    had been sexually assaulted], this court found that the word corroboration
    was not used to suggest that the technical legal standards of corroboration had
    been met. Rather, the trial judge was communicating no more than that the torn
    bra provides support for the allegation. Because sexual assault did not
    require technical corroboration, the trial judge would have had no reason to
    invoke the technical legal concept: at para. 17.

[33]

Similarly, in the present case, the trial judge
    was not required to find corroboration of the complainants evidence. Rather, at
    the point in her reasons where she made the impugned comments, the trial judge was
    examining the credibility and reliability of the complainants evidence, in the
    context of the various challenges that had been made by defence counsel.

[34]

When her reasons are considered as a whole, together
    with the submissions of counsel, it is apparent that the trial judge was not
    relying on what the complainant told H.E. and S.M. for the truth of the
    statements, and she was not using the statements as corroboration. The fact
    that the complainant had disclosed the events to H.E. and S.M. was relevant in
    a case where the complainant had repeatedly denied that the appellant caused
    her injuries. In remarking on the consistency between what H.E. and S.M. recounted
    about what they were told by the complainant and the complainants evidence,
    the trial judge was rejecting the defence argument that these were prior
    inconsistent statements that undermined her credibility.

The Photos and the Broken Necklace

[35]

Several photos of the complainants injuries
    were in evidence. These included photos of her facial injuries that she took immediately
    after the beating incident, photos of the facial injuries taken by S.M., photos
    the complainant had taken of the injuries to her arms, a photo of injuries to
    her arm taken by her friend A.A., and photos of scarring to her forearms taken
    by the police in February 2014. In the background of one of the photos the
    complainant had taken of her right arm both shoes and slippers were visible. She
    testified that the photo depicted her slippers and the appellants shoes. Also
    introduced in evidence was a broken necklace.

[36]

The appellants argument is essentially that the
    photos and the broken necklace were not corroborative of the complainants
    evidence about the cause of her injuries. The photos only confirmed parts of
    her evidence  that she had been injured, but not the core of her evidence
    that the appellant had caused the injuries. And the evidence about the broken
    necklace could not corroborate the complainants account because it was not
    independent of the complainant. The appellant submits that the trial judge
    erred in law in relying on such evidence as corroboration.

[37]

I disagree.

[38]

As I have already observed, in saying that the
    evidence of the complainants statements, the necklace and the photos
    corroborated the complainants evidence, the trial judge was not using the
    term in the strict legal sense. Rather, she was referring to evidence that supported
    the complainants evidence.

[39]

The fact that the evidence did not directly confirm
    the most contentious point of the complainants evidence is of no moment. The
    consideration of evidence which is capable of confirming or supporting certain
    aspects of a witnesss testimony is typically part of the assessment of
    credibility in making findings of fact. [C]onfirmatory evidence is often
    merely other circumstantial evidence that tends to support the Crowns case, or
    to dispose of alternative hypotheses put forward by the defence. Such evidence
    can be given weight even if it does not directly confirm the key allegations
    of sexual assault or directly implicate the accused:
R. v. Demedeiros
,
    2018 ABCA 241, 364 C.C.C. (3d) 271, at para. 8, affd 2019 SCC 11, [2019] 1
    S.C.R. 568.

[40]

The complainant testified that she could not
    recall the continuation of the beating by the appellant, but that he had told
    her that he continued to beat her in the bathroom, and that she had believed him
    when she found her broken necklace in the bathroom. She produced the broken
    necklace. While the broken necklace was not independent of the complainant, it
    was consistent with her account. The complainant was unable to provide direct
    evidence about the continuation of the beating, but she testified about how she
    had come to understand what had happened: that the appellant told her that he
    continued the beating in the bathroom, and that, after finding her broken
    necklace in the bathroom, she believed him. The broken necklace was simply some
    evidence that supported this aspect of her testimony: that the appellant told
    her that he beat her in the bathroom.

[41]

As for the photos, the trial judge noted the
    injuries that were depicted and their timing. She also noted that one photo
    captured a shoe worn on the foot of the appellant and the slippers on the feet
    of the complainant.

[42]

The appellant is correct in saying that the
    photos corroborated the fact of the complainants injuries, but not who caused
    them. However, the production of the photos was confirmatory not only of the
    injuries she sustained, but of the complainants evidence that she and others
    had taken photos. They were consistent with her account. The photo showing a
    pair of slippers and a set of shoes supported her evidence that the appellant was
    present when she took the photo of her arms, in the aftermath of the cutting
    incident. The trial judge did not overstate the importance of this evidence. It
    was open to her to conclude that the photos supported the complainants
    evidence relating to the beating and the cutting incidents.

(2)

Did the trial judge err by invoking Stockholm
    Syndrome as an explanation for the complainants conduct?

[43]

The complainant testified that she had
    repeatedly lied about the cause of her injuries, including to the police,
    because she was afraid of the appellant. Yet, after the appellant was arrested
    and taken into custody for an unrelated assault on May 25, 2013, the
    complainant installed a landline in her apartment to receive his collect calls,
    she scheduled a visit with him in June 2013 (though she did not follow through),
    and she met and was intimate with him on two occasions following his release.
    The defence relied on this evidence to say that the complainant was not really
    afraid of the appellant, and to urge the court to reject her explanation for
    the accounts she provided to the police and others.

[44]

In the context of addressing the complainants behaviour,
    the trial judge stated that she suffered from something akin to Stockholm
    Syndrome. The appellant says that it was an error of law for the trial judge
    to take judicial notice of this psychiatric diagnosis (as no expert evidence
    had been led on this point), and to invoke it to explain away or minimize the
    complainants lies and apparently irrational behaviour.

[45]

I agree with the Crowns submission that, in
    making a passing reference to Stockholm Syndrome, the trial judge was not employing
    a psychiatric diagnosis to explain the complainants behaviour.

[46]

Leading up to her reference to Stockholm
    Syndrome, the trial judge was considering the complainants explanation for her
    repeated lies to the police. She posed the question, Does [the complainant]s
    explanation as to why she repeatedly lied to the police make sense? Is it a
    rational or reasonable explanation in all of the circumstances? She then explained
    why it was understandable that the complainant would be afraid of the appellant
    and why her conduct following the assaults was not inconsistent with such fear:

[The complainant] knew that [the appellant]
    was trained as a mixed martial arts fighter. She knew that [the appellant] had
    a previous conviction for manslaughter. She was aware that [the appellant] had
    been charged with the assault of another woman, which occurred around the time
    of the beating, and the cutting, and of which he was later convicted and for
    which he was given a jail sentence. He had threatened her and her father if she
    told anyone the truth. She had set up a safe word with [A.A.] to use if she was
    in danger. He had effectively cut her off from the support network of family
    and friends, and controlled her by plying her with drugs and alcohol.
She
    was submissive to [the appellant]. She was in essence, his puppet, his
    property. Her complete submission to [the appellant] caused her to make
    decisions which otherwise defy a rational explanation, such as setting up a
    landline to facilitate communication while he was in jail, and being intimate
    with [the appellant] following his release.
Her conduct suggests she
    suffered from something akin to the Stockholm Syndrome. [Emphasis added.]

[47]

Contrary to the appellants argument, there was
    no evidentiary shortcut here, nor did the trial judge invoke a psychiatric
    diagnosis to explain the unexplainable. The trial judge accepted that the
    complainants otherwise irrational conduct was explained by her complete
    submission to the appellant, a conclusion that was amply supported by the
    evidence, and which is not challenged on appeal. After reaching this
    conclusion, and accordingly accepting the complainants explanation for her
    lies, the trial judge used the term Stockholm Syndrome as a descriptive label
    and not as the justification for the conclusion she had reached.

(3)

Did the trial judge shift the burden of proof to
    the appellant?

[48]

The appellant asserts that the trial judge
    shifted the burden of proof when she said, without any evidence to support an
    alternate theory, I am left wondering if not [the appellant], then who? These
    injuries did not spontaneously appear. Someone caused these injuries to [the complainant].
    The trial judge made this statement after observing that the defence called no
    evidence to support an alternate theory for the cause of the complainants
    injuries and noting that the defendant had no obligation to do so or to
    testify. The trial judge then proceeded to consider and reject alternate
    theories, including that the complainant was jumped after returning home from
    getting pizza, that her injuries were self-inflicted, and that her cuts were
    caused by a gardening accident.

[49]

The appellant submits that the trial judges
    reasoning reflects a failure to consider whether a reasonable doubt had been
    raised by the possibility that someone other than the appellant caused the
    complainants injuries. Instead, the trial judge erred by shifting the burden
    of proof to the appellant to find another explanation for the complainants
    injuries that was supported by the evidence.

[50]

I am not persuaded that, contrary to her clear
    articulation of the burden of proof elsewhere in her reasons and her specific acknowledgment
    that the defendant has no obligation to testify or to offer up an alternate
    theory, the trial judge reasoned that the appellant had the onus of advancing an
    explanation for the complainants injuries, and that his failure to do so supported
    an inference of guilt.

[51]

There was no question that the complainant had
    been injured. It was incumbent on the trial judge to consider whether she had a
    reasonable doubt as to how the injuries were caused. In grappling with the
    evidence, she considered the alternatives, including those that had been
    offered by the complainant herself, in the context of the evidence at trial.
    She found that there was no evidence to support these alternatives, and that
    they were illogical.

[52]

The conviction did not rest on a reversal of the
    burden of proof; rather, it was based on the trial judges considered analysis
    and acceptance of the complainants evidence about the cause of her injuries as
    credible and reliable, and her rejection of alternative causes as potential
    sources of reasonable doubt.

(4)

Did the trial judge err by relying on the ring
    of truth to believe a witness with obvious credibility problems?

[53]

The appellant submits that the trial judge erred
    in relation to the uttering threat to property charge. He asserts that the trial
    judge accepted the complainants uncorroborated evidence that he had uttered a
    threat to destroy R.E.s vehicle based on her observation that it had the ring
    of truth. The trial judge said it had the ring of truth because she would have
    expected something far less theatrical than a threat to blow up the fathers
    car, if the threat was contrived.

[54]

The appellant relies on this courts decision in
R. v. G.(G).
(1997), 115 C.C.C. (3d) 1 (Ont. C.A.), where a trial
    judge found the complainant to be credible after observing that she gave her
    evidence in a straightforward manner and it had the ring of truth. In that
    case, the use of the words ring of truth did not constitute reversible error;
    rather the court allowed the appeal because there were several material
    inconsistencies in the complainants evidence that the trial judge had not
    considered.

[55]

In this case, by contrast, by the time the trial
    judge described the complainants evidence about the threat to damage R.E.s
    car as having the ring of truth she had already conducted a thorough
    assessment of the complainants credibility and reliability. She had accepted
    the complainants evidence as truthful.

[56]

The term ring of truth is not itself
    objectionable; the problem is that it adds nothing to the analysis. Saying that
    a witnesss evidence has the ring of truth is never sufficient to justify an
    assessment of credibility. It is simply a conclusion that the testimony sounds
    truthful. The important question is why this is so  which involves an examination
    of the various factors specific to the case that bear on the witnesss
    credibility and reliability.

[57]

I do not interpret the trial judges observation
    that the complainants evidence about the threat had the ring of truth  that
    it sounded true and not contrived  as the sole or even the main justification
    for acceptance of this evidence. Having already found the complainant to be
    credible, there was no reason for the trial judge to reject the evidence about
    the threat. The complainant was the only person to have testified about the
    threat and she was not cross-examined on this evidence.

[58]

I would also note that, in using the term ring
    of truth, the trial judge echoed and implicitly rejected a defence argument
    made in closing submissions. In addressing the complainants evidence about the
    threats  both the threat of damage to her fathers car and of having received
    death threats from the appellant  defence counsel submitted that the complainants
    ability to recall specific words and details was almost entirely limited to words
    and details that would negatively impact the appellant, and as such, does not
    have the ring of truth, [but] has the ring of vindictiveness.

THE APPEAL OF THE DANGEROUS OFFENDER
    DESIGNATION AND SENTENCE

[59]

At the time of his sentencing the appellant was
    33 years old. He had 47 convictions, 10 of which were for violent offences and
    21 for failing to comply with parole or probation orders. He had spent close to
    14 years of his adult life in prison, with only 7 months in the community
    without supervision. There were escalating situations of intimate partner
    violence that occurred in a nine month period between April 2013 and January
    2014  beginning with the beating and cutting incidents forming the predicate offences,
    continuing with a violent assault on another woman, D.G., just hours after
    meeting her, and then, while he was on probation for the assault on D.G., an
    assault on a third woman, S.S., days after meeting her on a dating website.

[60]

Three experts testified at the sentencing
    hearing. In addition to Dr. Klassen, there were two defence experts:
    psychiatrist Dr. Gary Chaimowitz and forensic psychologist Dr. Mini Mamak.
    As the trial judge noted, there was general agreement between the experts on
    the appellants diagnosis (substance use disorder and antisocial personality
    disorder with narcissistic traits) and on the risk posed by the appellant to
    the community (that the appellant had a moderate to high risk of violent
    recidivism, and a high risk of intimate partner violence).

[61]

The trial judge concluded that the criteria for finding that the
    appellant was a dangerous offender were satisfied under both ss. 753(1)(a)(i)
    and (ii) of the
Criminal Code.
His history of intimate partner
    violence and the similarities between the assaults exhibited a pattern of
    repetitive behaviour, and he had a high likelihood of committing further
    violent offences. He also displayed a pattern of persistent aggressive behaviour
    and substantial indifference respecting its foreseeable consequences to other
    persons.

[62]

Although the experts suggested that with the
    proper controls and supervision, the appellants risk to reoffend could be
    managed in the community, the trial judge was of the view that the extent of
    monitoring or verification required to ensure compliance with the proposed
    conditions of release was not possible. In arriving at her conclusion she
    considered the feasibility and likely effectiveness of the conditions for supervision
    proposed by the experts in the context of the appellants history of breach of
    conditions, his habitual lying to parole and police officers and treatment
    providers, and his recent history of intimate partner violence. She concluded:
    Only maximum control and 24 hour supervision [would] ensure the safety of the
    public and, in particular, potential intimate partners of [the appellant]. That
    level of control and supervision cannot be achieved in the community. In
    rejecting the option of a fixed sentence with a ten-year long-term supervision
    order (LTSO), the trial judge also rejected as speculative the suggestion
    that, as the appellant ages, his violent tendencies would significantly decline
    to the point at which he no longer poses a risk of danger to the community.

[63]

The appellant appeals his designation as a
    dangerous offender and the imposition of an indeterminate sentence. He makes
    two main arguments. First, he says that the trial judge erred in failing to
    consider the factors of intractability and treatability at the designation
    stage of her analysis. Second, he submits that the trial judge erred at the
    penalty stage in misapprehending certain aspects of the evidence of Dr. Klassen
    (respecting the risk of recidivism, group data and burnout) and in adopting a
    standard of absolute control, when she concluded that nothing less than 24-hour
    supervision of the appellant in the community would adequately protect the
    public against the appellants risk to reoffend.

[64]

The standard of review on a dangerous offender
    appeal was articulated by Tulloch J.A. in
R. v. Sawyer
, 2015 ONCA 602,
    127 O.R. (3d) 686, at para. 26, as follows:

Appellate review of a dangerous offender designation
    is concerned with legal errors and whether the dangerous offender designation
    was reasonable:
R. v. Sipos
, 2014 SCC 47, [2014] 2 S.C.R. 423, at
    para. 23. While deference is owed to the factual and credibility findings of
    the sentencing judge, appellate review of a dangerous offender designation is
    more robust than on a regular sentence appeal:
Sipos
, at paras.
    25-26;
R. v. Currie,
[1997] 2 S.C.R. 260, [1997] S.C.J. No. 10, at
    para. 33.

[65]

Where the error of law has not resulted in a
    substantial wrong or miscarriage of justice, an appellate court may dismiss an
    appeal against a dangerous offender declaration, relying on s. 686(1)(b)(iii)
    of the
Criminal Code
. This power may be exercised only where there is
    no reasonable possibility that the verdict would have been any different had
    the error of law not been made:
Boutilier
, at para. 82.

[66]

As I will explain, I am not persuaded that there
    was any reversible error in the trial judges designation of the appellant as a
    dangerous offender and in the imposition of an indeterminate sentence. To the
    extent that the trial judge erred in law in saying that treatability and
    intractability were not factors to be considered at the initial designation stage,
    these factors were considered in her decision, and there is no reasonable
    prospect that her decision would have been different but for the error. The
    trial judge did not err in her assessment of Dr. Klassens evidence or in
    observing that the appellants risk for violent recidivism, especially involving
    intimate partners, could not be controlled in the community. The trial judges
    assessment of the evidence was thorough, her reasons are comprehensive and her
    conclusions with respect to the appellants dangerousness and the need for an
    indeterminate sentence are reasonable.

[67]

I will address the appellants arguments in
    turn.

Considering Intractability and Treatability
    at the Designation Stage

[68]

The appellants first argument is that, not
    having the benefit of the Supreme Courts decision in
Boutilier
,

which
    was released after she delivered her reasons for sentence, the trial judge did
    not consider intractability or treatability at the designation stage of her
    dangerous offender analysis. Indeed, she specifically stated that both were
    relevant only at the penalty stage. The appellant contends that this was an
    error of law that resulted in a substantial wrong or a miscarriage of justice,
    necessitating a new dangerous offender hearing.

[69]

The appellant did not address this error in oral
    argument, and for good reason. This is a case where the trial judge thoroughly
    considered whether the appellants behaviour was intractable (in the sense of
    being something the appellant was unable to surmount) and whether he was treatable.
    Her findings on both issues fully supported the conclusion that the appellant
    met the criteria for designation as a dangerous offender, both under s.
    753(1)(a)(i) and (ii).

[70]

First, despite saying that intractability was
    not something to consider at the designation phase, the trial judge did in fact
    address the fact that the appellants behaviour was intractable when she
    assessed his future threat, and found that his conduct posed a high likelihood
    of violent recidivism. After considering the expert evidence that the appellant
    posed a moderate to high risk of violent reoffending generally and a high risk
    of intimate partner violent reoffending, the trial judge stated that common
    sense suggests the past is the best predictor of the future. She noted that the
    appellant was incapable of controlling his anger and violent impulses, without
    exception in an unsupervised environment, and frequently in a controlled
    setting. She referred to his history of reoffending, his inability to comply with
    court-ordered conditions in place to control the triggers for reoffending (prohibiting
    alcohol use, requiring intimate relationship reporting, and prohibiting
    criminal associations), as well as the testimony of Dr. Chaimowitz that [t]his
    is a man whos going to continue to offend I cant see it any other way, based
    on his history. At the conclusion of her reasons, in imposing an indeterminate
    sentence, the trial judge reiterated that, based on the appellants violent
    history having repeated itself many times over, there was no reason to believe
    that, if given the opportunity in an uncontrolled setting, history would not
    repeat itself: at para. 200.

[71]

Second, while the trial judge did not address
    the appellants treatability at the designation stage, it was addressed
    extensively in the discussion of penalty. The trial judge concluded that,
    despite the appellants stated intention to seek treatment, she could not
    conclude on the evidence that his risk could be controlled through treatment. The
    appellant had participated in various kinds of treatment but there was no
    evidence that treatment had been successful in the past or would be durable. Notwithstanding
    the treatment and counselling he received during his eight year prison term,
    the appellant started using cocaine and alcohol immediately after his warrant
    expiry. The trial judge referred to Dr. Klassens evidence that approximately
    15 prior treatment interventions had not effected a change in the appellant,
    and the opinion of all three experts that treatment could at best be used as a
    means to monitor the appellant in the community.

[72]

In the circumstances, although the trial judge
    erred in saying that treatability and intractability were not factors to
    consider at the designation stage, this error occasioned no substantial wrong
    or miscarriage of justice. She considered both factors in the course of her
    reasons. There is no reasonable prospect that the trial judge would have come
    to a different conclusion about the appellants dangerousness if she had explicitly
    considered these factors at the designation phase.

Alleged Errors
    in Imposing an Indeterminate Sentence

[73]

I turn now to the essence of the appellants
    sentence appeal: his arguments based on the trial judges treatment of the
    evidence in determining whether there was a reasonable expectation that a
    sentencing option less than an indeterminate sentence would adequately protect
    the public:
Criminal Code
, s. 753(4.1).

[74]

The appellant submits that the trial judge misapprehended
    and did not give effect to certain aspects of Dr. Klassens evidence respecting
    his risk of recidivism, and the use of group data and actuarial studies in
    relation to burnout after the age of 50. He also asserts that the trial judge
    set too high a standard for the prospect of his eventual control in the
    community. By stating that only 24-hour supervision would suffice, she set an
    impossible standard of absolute compliance. It was unreasonable for the trial
    judge to conclude that nothing but 24-hour supervision would suffice, when no
    one suggested this was necessary.

[75]

I will deal with each issue in turn.

(1)

The alleged misapprehension of Dr. Klassens
    evidence

[76]

First, the appellant refers to the evidence that
    he did not reoffend during the five-year period that he was on parole after
    serving an eight year sentence for manslaughter. He contends that this is
    evidence that he responds well to supervision in the community, evidence that
    the trial judge ignored when she concluded that the appellants risk could not
    be controlled through an LTSO.

[77]

I disagree. There was no error in the trial
    judges treatment of this evidence. She recognized that, while the appellant
    did not violently reoffend while under supervision, he did breach his
    conditions of release, including the condition that he report intimate
    relationships. The five-year period did not assist in assessing the appellants
    risk to violently offend against an intimate partner. The trial judge
    recognized that the nature of the appellants violent offending had escalated
    to intimate partner violence and his substance abuse escalated from alcohol to
    cocaine.

[78]

Dr. Klassen did not suggest that the five-year offence-free
    period translated into a lower risk of recidivism for intimate partner
    violence. He was circumspect. He noted that the appellant did better in highly
    structured settings, such as when he was in federal custody and that when there
    was less structure, like on federal parole, there tended to be bigger
    problems. As the trial judge noted, at para. 98:

Dr. Klassen noted a shift after 2012 towards
    intimate partner violence and expanded addiction issues. Dr. Klassen opined
    that these shifts pose a different set of risk factors which could make
    management in the community more difficult than was management of [the appellant]
    following his manslaughter conviction.

[79]

Accordingly, there was no misapprehension of Dr.
    Klassens evidence about the impact of the five-year period when the appellant
    did not reoffend while on parole.

[80]

I turn to the appellants argument about the trial
    judges treatment of the evidence of Dr. Klassen respecting burnout: that
    after age 50 there is a significant decline in violent offending. The appellant
    asserts that, in considering the appellants risk of reoffence after the expiry
    of the proposed LTSO, the trial judge misunderstood actuarial and group data
    and its application to the issue of burnout. The appellant contends that the
    trial judge wrongly rejected Dr. Klassens evidence because he declined to provide
    a view as to how burnout might apply to the appellant, when, according to Dr.
    Klassen, this was the best tool for assessing the appellants future risk.

[81]

This was a central focus of the appellants
    submissions on the sentence appeal. As I will explain, the trial judge did not
    misapprehend Dr. Klassens evidence. Rather, the appellants argument confuses Dr.
    Klassens actuarial approach (using group data) to the assessment of the individual
    appellants risk for violent recidivism, with his evidence about the general
    trend to burnout based on studies using group data.

[82]

In order to provide an opinion about the
    appellants risk of a future serious personal injury offence, Dr. Klassen used
    an actuarial approach. In part this was necessitated by the fact that the
    appellant, on the advice of counsel, had refused to meet with him. In any event,
    Dr. Klassen said that this was the best approach. He stated:

[W]hen it comes to the issue of probability
    and percentile, whats this persons ranking compared to their peers in terms
    of risk, and what, if anything, can we say about the absolute probability of
    similar individual recidivatingyou would never use clinical judgment. It
    would, I would submit to you it would fall grossly below the standard of
    practice in forensic psychiatry.

[83]

Dr. Klassen went on to identify the available risk
    assessment tools for evaluating the appellants risk of violent offending,
    including tools specifically designed to assess the risk of intimate partner
    violence. After explaining why the tools he selected were appropriate, Dr.
    Klassen indicated that, based on the appellants individual scores, he was at a
    high risk of general violent recidivism and at a very high risk of domestic
    violent recidivism.

[84]

Dr. Klassens conclusion, based on his assessment
    using various actuarial tools, was consistent with the opinion of defence
    experts Dr. Chaimowitz and Dr. Mamak. Dr. Mamak conducted the testing on
    which Dr. Chaimowitz relied in providing his clinical assessment of the
    appellants risk to reoffend. Some of the risk assessment tools used by Dr.
    Mamak differed from those used by Dr. Klassen. The trial judge noted that, because
    of the consistency between the parties expert evidence regarding diagnosis and
    risk assessment, it was unnecessary to undertake a comprehensive assessment of
    the limitations and advantages between and among the various diagnostic tools
    used by the experts.

[85]

In utilizing the actuarial tools to assess the
    risk of violent recidivism and intimate partner violence, Dr. Klassen referred
    to and took into consideration the appellants specific diagnoses, criminal
    record and history. The result was to arrive at a conclusion about the
    appellants specific risk. This was the context in which Dr. Klassen advocated
    the use of actuarial and group data.

[86]

Later in his evidence, Dr. Klassen was asked about
    the concept of burnout, or age-related decline in violent recidivism. In
    contrast to his opinion using actuarial and group data to assess the
    appellants individual risk, at this stage in the evidence, Dr. Klassen was
    asked about general trends. He stated that there was lots of data from
    different samples showing that as people get older their rates of violent
    offending decline significantly, so that one approach was how do we get people
    to 50?. Dr. Klassen stated, while I cannot say exactly what will happen to [the
    appellant], because group data cannot always predict the behaviour of an
    individualgroup data suggests thatviolence is significantly reduced over
    time. However, he specifically declined to apply the general trend or group
    data to whether the appellant was likely to recidivate after age 50. This is
    apparent in the following exchange:

Q.  I know weve been talking about general
    trends, can we say that getting [the appellant] to 50 is gonna be the game
    changer?

A. I cant say that it, it, remember, Im just
    talkin about group data

Q. Right.

A.  I cant tell you exactly how that might
    apply to [the appellant] because I offer group data, because it might be of
    assistance, and its more likely to be accurate than my clinical opinion. But I
    cannot tell you exactly what will happen to [the appellant], whether [he] will
    actually age,
quote, unquote
, quicker than most, or,
quote,
    unquote
, slower than most, in terms of age and violenceI dont know the
    answer to that.

[87]

In his evidence on burnout Dr. Klassen was only asked
    about general trends based on group data: unlike his assessment of the
    appellants risk for violent recidivism and for intimate partner violence
    where he was able to score the appellant applying actuarial tools to the
    information about the appellant contained in his file, he was not asked for,
    nor did he express, an opinion about the likelihood that the
appellant
would reoffend after age 50. Contrary to the appellants submission, Dr.
    Klassen did not advocate an approach that would assume that the appellant would
    not require supervision after age 50. At its highest Dr. Klassens evidence about
    burnout spoke to general trends based on group data, and not to the appellants
    individual circumstances.

[88]

The trial judge accurately dealt with this
    evidence at paras. 178-182 of her reasons for sentence. She noted that
    burnout was a general trend based on group data. She referred to Dr.
    Chaimowitzs view that age-related decline did not apply to the appellant, and
    the fact that Dr. Klassen declined to provide a view as to how the concept of
    burnout might apply to the appellant. She noted Dr. Chaimowitzs
    observation that an offender will not be young forever but can be immature
    forever, and that there was no evidence that the appellants future maturation
    was anything more than a possibility. The trial judge reasonably concluded that
    it would be purely speculative to assume that as the appellant ages, his
    violent tendencies would significantly decline to the point at which he no
    longer poses a risk of danger to the community. Referring to the escalating
    aggression and brutality in the appellants most recent offences, she noted that
    [t]he theory that the likelihood of [the appellant] reoffending is
    significantly reduced from the age of 50 onward has little application to the circumstances
    of [the appellant]. Intimate partner violence is perpetrated against vulnerable
    persons away from the publics eye: at para. 182.

[89]

There is no misapprehension or error in the
    trial judges treatment of Dr. Klassens evidence about the appellants
    risk of recidivism based on the fact that he did not reoffend during his five
    years of parole following his manslaughter sentence, or Dr. Klassens evidence
    about burnout.

(2)

The requirement for 24-hour supervision to
    control the appellants risk

[90]

The appellant contends that the trial judge set too
    high a standard with respect to whether there was a reasonable prospect of his
    eventual control in the community. The three experts agreed that with proper
    controls and supervision  including prevention plans for substance abuse and
    intimate partner violence  the appellants risk to the public could be managed
    in the community. The appellant submits that the trial judge erred in not
    accepting their evidence and instead concluding that only 24-hour supervision
    would suffice.

[91]

I disagree. The trial judge was required to
    assess, based on the evidence, whether there was a reasonable expectation that
    a determinate sentence followed by an LTSO with conditions would adequately
    protect the public against the commission of another serious personal injury offence
    by the appellant. This entailed an assessment of the proposed conditions in the
    context of her findings about the appellants risk and risk factors.

[92]

The trial judge described as [t]he most
    compelling evidence to support a lesser sentence, the agreement among the
    three experts that the risk to the public could be managed with proper controls
    in place. She set out the conditions of release into the community that were
    proposed by each of Dr. Klassen and Dr. Chaimowitz (which were quite
    similar). Dr. Klassens proposed conditions were as follows:

·

Treatment with respect to values and attitudes
    and management of aggressive behaviour only as a monitoring function;

·

Treatment for substance use, again as a
    monitoring function;

·

Abstinence from the use of alcohol and
    non-prescribed agents and the requirement to submit samples of breach or urine;

·

Maintenance of employment subject to
    verification by third parties;

·

Refraining from associating with individuals
    known to have a criminal record other than when such association is inevitable;
    and

·

Regular disclosure of financial circumstances
    and any current or anticipated intimate relationships.

[93]

Dr. Klassen was examined on the proposed conditions
    and their purpose and feasibility in the context of the appellants history. He
    had testified that the key element was control, since treatment of the
    appellant was not an option, and that reoffence would occur if there were a
    lack of supervision or external controls. Dr. Klassen testified that the goal
    of the specific conditions he proposed was not to change the appellants
    behaviour, but to monitor it. He observed that the conditions about abstinence
    from drugs and alcohol, maintenance of employment, and refraining from associations
    with people with criminal records, were asking for a lifestyle change: these were
    empirically risk-reducing factors, although whether they were risk-reducing
    in the appellants case was a little harder to say. Dr. Klassen noted that,
    if the offender wanted to conceal his criminal associations, the condition
    prohibiting such associations would be a lot tougher to monitor without 24-hour
    supervision, and he agreed that the appellant had violated such a condition in
    the past (when his association with the Hells Angels, which he denied, led to
    the suspension of his parole on the manslaughter sentence). Dr. Klassen acknowledged
    that when an offender is residing in a community correctional facility or a community
    residential facility (halfway house), these kinds of controls are dependent
    upon luck, surveillance, or the offender being truthful about what they are
    doing, and that offenders are typically not supervised when they are away from
    the facility.

[94]

As for the condition requiring disclosure of
    intimate relationships, Dr. Klassen stated that this condition was
    included because intimate partner violence was the issue of greatest concern in
    this case. He acknowledged this was another condition the appellant had
    violated while on parole, when he had not disclosed that he was living with his
    girlfriend and her parents. He agreed that the condition depended on the
    appellant to be truthful, and that the appellant had lied to his probation
    officer in January 2014 about whether or not he knew a woman named S.S. (S.S. became
    his next victim). When Dr. Klassen was asked whether they would be trusting the
    appellant to provide the information about his intimate relationships and to respond
    truthfully when asked, he responded, well, one would hope.

[95]

I do not accept the appellants argument that
    the trial judge erred in refusing to impose a determinate sentence followed by
    an LTSO, based on the conditions proposed by Dr. Klassen. Having heard and
    considered the evidence, she reasonably concluded that the extent of the
    monitoring and verification required to ensure the appellants compliance with
    the various conditions was not possible. This was not, as the appellant
    submits, a standard of perfection, or a requirement for absolute compliance
    with supervision conditions rather than preventing violent offences. The trial
    judge focussed on the most pertinent risk  that of intimate partner violence.
    She concluded, reasonably, that the requirement to self-report intimate
    partners, even assuming that the appellant complied with the condition, would
    not have protected D.G., who was assaulted by the appellant mere hours after
    they met. Because of the appellants history of non‑compliance with court
    orders, lying and intimate partner violence, the safety of the public, and in
    particular of potential intimate partners of the appellant, could only be
    achieved with maximum control and 24-hour supervision. The trial judge
    concluded, at para. 193:

I am not satisfied that intensive supervision
    of [the appellant] in the community as proposed by the experts is a realistic
    means of protecting the public. There is no evidence of available resources
    adequate to ensure the level of supervision and the extent of controls needed
    in a long-term supervision order can be achieved. Because [the appellant] is a
    habitual liar and cannot be trusted to do as he is court-ordered and furthermore,
    his offending has expanded to intimate partner violence, the checks and
    balances needed to ensure the protection of the public are not workable. Only
    maximum control and 24 hour supervision will ensure the safety of the public
    and, in particular, potential intimate partners of [the appellant]. That level
    of control and supervision cannot be achieved in the community.

[96]

In
R. v. K.P.
, 2020 ONCA 534, 152 O.R.
    (3d) 145, this court dismissed an appeal from a dangerous offender designation
    and indeterminate sentence where the sentencing judge concluded that the
    conditions for an LTSO proposed by two experts were inadequate to protect the
    public. As in this case, K.P.

had limited success with treatment and
    had battled substance abuse for decades, including on the night of the
    predicate offence. The sentencing judge, like the trial judge in the present
    case, was concerned about the feasibility of monitoring intimate relationships
    that can form and escalate quickly. She had identified the specific frailties
    in the experts proposed plan of supervision, including that monitoring
    intimate relationships depends on self-reporting, and she had concluded that, due
    to his history of fast attachment and tendency to resort to violence in
    intimate relationships no amount of supervision could prevent yet another
    victim being attacked by [K.P.] should he be released into the community too
    soon: at para. 68. This court upheld the indeterminate sentence, finding
    that the sentencing judge properly engaged in an individualized assessment of
    all relevant circumstances.

[97]

Similarly, in the present case the trial judge
    considered the proposed conditions in the context of an individualized
    assessment of the relevant circumstances. There was a troubling history of
    non-compliance with conditions of release and extreme violence within hours of
    meeting someone. The appellant had no real response to treatment. His
    transition into domestic abuse enhanced the risk of uncontrollability. The
    trial judges finding that there was no reasonable possibility of eventual
    control of the appellants risk to reoffend in the community reveals no error.
    The terms of an LTSO were not feasible for the reasons that the trial judge
    explained.

DISPOSITION

[98]

For these reasons, I would dismiss the conviction
    appeal and the appeal of the decision that the appellant is a dangerous
    offender and of his indeterminate sentence.

Released: DD August 10, 2021

K. van Rensburg J.A.

I agree. Doherty J.A.

I agree. David Watt J.A.

[1]

The
    appellant was charged with six counts. He was acquitted of charges of uttering
    a death threat and attempted procuring.

[2]
The
    circumstances of the assault, the appellants guilty plea, and his conviction were
    relevant to the dangerous offender application.

[3]
The
    appellants factum also asserts that the trial judge erred in saying that the
    testimony of the complainants friend, A.A., and C.B., someone the appellant
    had previously dated, corroborated certain evidence of the complainant. It is
    unnecessary to address this submission, which was not pursued in oral argument.
    It is sufficient to note that, in challenging the trial judges reliance on
    such evidence as corroborating (or supporting) certain aspects of the
    complainants evidence, the appellant simply takes issue with the trial judges
    reasonable interpretation of the evidence of A.A. and C.B., without identifying
    any reversible error.

[4]
In her
    reasons for conviction t
he trial judge did not refer to
    R.E.s evidence about what he was told by the complainant about the beating
    incident and the cutting incident. Rather, in describing their evidence as
    consistent,
the trial judge restricted herself to R.E.
    and the complainants respective accounts of the photos and text messages sent
    to R.E after the beating incident. She said that both testified that three
    photos and a text were sent to [R.E.] on April 28th, 2013. Any inconsistency between
    his evidence and her evidence
as to the sequence and timing of the photos
    and text being sent and received
is not material (emphasis added). This
    responded to defence counsels submissions challenging the complainants
    credibility on the basis that there were inconsistencies in the complainants
    evidence with respect to the timeline after the beating when she took the
    pictures and sent them to her father, and used her cellphone to text her
    father.

[5]

Unless
    the court intends to use corroboration in its strict legal sense, this term
    is best avoided. The use of the term corroboration for evidence that supports
    or confirms material aspects of a witnesss evidence - but is not independent
    of its source - invites the argument that the trial judge misapprehended the
    evidence: David M. Paciocco, Palma Paciocco & Lee Stuesser,
The Law of
Evidence,
    8
th
ed. (Toronto: Irwin Law, 2020), at pp. 674-75. See, for example,
R. v. Mackenzie
, 2015 ONCA 93 and
R. v. Flores
, 2020 ONCA 158.