WARNING

The President
    of the panel hearing this appeal directs that the following should be attached
    to the file:

An order
    restricting publication in this proceeding under ss. 486.4(1), (2), (3) or (4)
    or 486.6(1) or (2) of the
Criminal Code
shall continue.  These
    sections of
the Criminal Code
provide:

486.4     (1)
Subject to subsection (2), the presiding judge or
    justice may make an order directing that any information that could identify
    the complainant or a witness shall not be published in any document or
    broadcast or transmitted in any way, in proceedings in respect of

(a)     any of
    the following offences;

(i)   an offence
    under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172,
    172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or
    347,

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

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

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

(2)
In
    proceedings in respect of the offences referred to in paragraph (1)(a) or (b),
    the presiding judge or justice shall

(a)  at the first
    reasonable opportunity, inform any witness under the age of eighteen years and
    the complainant of the right to make an application for the order; and

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

(3)
In
    proceedings in respect of an offence under section 163.1, a judge or justice
    shall make an order directing that any information that could identify a
    witness who is under the age of eighteen years, or any person who is the
    subject of a representation, written material or a recording that constitutes
    child pornography within the meaning of that section, shall not be published in
    any document or broadcast or transmitted in any way.

(4)
An
    order made under this section does not apply in respect of the disclosure of
    information in the course of the administration of justice when it is not the
    purpose of the disclosure to make the information known in the community. 2005,
    c. 32, s. 15; 2005, c. 43, s. 8(3)(b).

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

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

COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. J.K.L., 2012 ONCA 245

DATE: 20120418

DOCKET: C47031

Laskin, Simmons and Armstrong JJ.A.

BETWEEN

Her Majesty The Queen

Respondent

and

J.K.L.

Appellant

Catriona Verner, for the appellant

Lisa Joyal, for the respondent

Heard: October 20, 2011

On appeal from
          the convictions entered by Justice M. J. Perozak of the Ontario Court of
          Justice dated May 12, 2004 and from the sentence imposed dated June 29,
  2006.

Simmons
  J.A.:

I.        Introduction

[1]

Following a trial before Perozak J., the appellant was convicted of
    sexual touching, sexual assault and invitation to sexual touching. These
    offences involved two young complainants: seven-year-old D.R.,
[1]
the daughter of the appellants girlfriend (the sexual touching and sexual
    assault charges); and nine-year-old A.L., a neighbourhood girl and friend of
    D.R. whom the appellant occasionally babysat (the invitation to sexual touching
    charge).

[2]

The offences against D.R. involved sexual touching while she was Barbie
    modelling. D.R. described Barbie modelling as pulling her dress up just above
    her waist while the appellant watched. The appellant touched her bum and on
    some occasions her vagina. He pulled down his pants. D.R. described white stuff
    coming from his weenie.

[3]

A.L. described two types of interaction with the appellant: underwear
    modelling and a truth or dare game.

[4]

During underwear modelling, A.L. removed her top, bra and pants, walked
    into a bedroom and turned around as the appellant lay on the bed rubbing his
    penis. On some occasions, A.L. had to remove her underwear.

[5]

Truth or dare involved A.L., her 14-year-old sister, J.L., and the
    appellant. On one occasion, A.L. heard the appellant dare J.L. to suck on his
    penis. The Crown alleged that on another occasion, the appellant dared A.L. to
    touch his penis.

[6]

After the trial judge made findings of guilt on the three charges that
    were tried, the appellant pleaded guilty to breach of a probation order, breach
    of a prohibition order and breach of
Christophers Law (Sex Offender
    Registry), 2000,
S.O. 2000, c. 1.

[7]

The probation order prohibited the appellant from being in the presence
    of children under the age of 16 unless accompanied by an adult aware of his
    sexual criminal background. The prohibition order prohibited the appellant from
    babysitting.
Christophers Law
required that the appellant report to
    the police within 15 days of any change in his address.

[8]

Following a sentencing hearing, the trial judge designated the appellant
    as a dangerous offender and sentenced him to an indeterminate period of
    imprisonment.

[9]

The appellant appeals from the convictions on the charges that were
    tried and from the sentence imposed.

[10]

For
    the reasons that follow, I would allow the conviction appeal relating to the
    charge involving A.L. but dismiss the balance of the conviction appeal. I would
    grant leave to appeal sentence but dismiss the sentence appeal as it relates to
    the charges involving D.R.

II.       THE CONVICTION APPEAL

(i)

The Charge Involving
    A.L.

(a)

Introduction

[11]

The charge involving A.L. was particularized. The information alleged
    that the appellant invited A.L., a person under the age of 14 years, to touch
    him for a sexual purpose by placing her hand on his penis.

[12]

The
    evidence at trial indicated that if the appellant issued this invitation, he
    did so during a game of truth or dare involving him, A.L. and A.L.s older
    sister, J.L.

[13]

On
    appeal, the appellant argues that A.L.s evidence concerning whether it was the
    appellant or A.L.s sister who issued the invitation was incapable of
    supporting a finding of guilt. In any event, the appellant claims that the
    trial judges reasons demonstrate that he misapprehended the evidence
    concerning this issue.

[14]

I
    am not persuaded that the verdict was unreasonable. However, for reasons that I
    will explain, I agree that the trial judge misapprehended A.L.s evidence and
    that a new trial of this charge is therefore required.

(b)

Background

[15]

A.L.
    was eleven at the time of trial. As part of her oral evidence, she adopted her
    videotaped statement to the police given on March 31, 2003, approximately one
    year prior to the trial.

[16]

Neither
    party prepared a transcript of A.L.s videotaped police statement for the
    trial. After the videotaped statement was played, Crown counsel acknowledged
    that portions of it are difficult to hear.

[17]

A.L.s
    videotaped police statement was filed as an exhibit at trial in VHS format but
    the original exhibit was accidentally destroyed prior to the appeal hearing. On
    consent, the Crown filed a DVD version of A.L.s videotaped police statement
    prepared from a secondary copy maintained by the police. Crown counsel advised
    us at the appeal hearing that the sound quality of the DVD version is somewhat
    better than the sound quality of the VHS version.

[18]

To
    assist this court on the appeal, appellants counsel prepared a transcript of
    A.L.s videotaped police statement from which Crown counsel then prepared an
    edited version. Significantly, the edited transcript identifies some inaudible
    answers. Although appellants counsel generally accepts the Crowns edited
    version, counsel disagree with regard to a few of A.L.s answers. At the appeal
    hearing, counsel filed a further edited version of one page of the edited
    transcript containing additional possible answers to some questions.

[19]

I
    have watched the DVD version of A.L.s videotaped police statement on a
    computer using earphones to hear the audio component of the recording. My
    understanding of some of A.L.s answers differs from the transcripts prepared
    by counsel. I consider two of these differences significant. In the excerpts of
    the video and trial transcripts that appear below, I have set out the Crowns
    and the appellants versions of those two answers as well as my own
    understanding:

A.L.s Videotaped Police Statement

Q: Can you tell me what you [and the CAS worker] talked about?

A: Theres this guy named [J.K.L.]
[2]
uhm, he made me and my sister change, the underwear modeling, and truth or
    dare. , and the truth or dare was to touch his penis, but I never done it.

Q: Ok. Did anything else happen that I should know about?

A: One of the dares is that [J.L.] had to suck his penis.

Q: How did you know it happened?

A: Because I heard him say I dare you to suck on my penis.

Q: Is that the only time something like that has happened?

A: (shakes head slightly) (inaudible) more.

A: Was truth or dare and [J.K.L.] changed the subject to
    underwear modelling, and he had this bag with him, but it wasnt a plastic bag,
    it was a gym bag I think.

A: And um he starts laying on the bed rubbing his penis as I
    said, and he starts saying turn around, do you want to do what your sister done
    and stuff.

Q: What do you mean, what was he referring to?

A:  (inaudible) taking off the underwear.

Q: Ok so [J.L.] took off her underwear?

A: Yeah.

Q: You mentioned earlier something about when you were playing
    truth or dare, something about a penis, what happened there?

A: Um. I had to touch his penis, but I never wanted to.

Q: mm hmm.

A: I chickened out.

Q: So did you or didn't you?

A: No. I never.

Q: So it was the only one time that [J.K.L.] asked you to touch
    his penis during truth or dare?

A:
(Crowns version)
: (inaudible) (didnt?) dare me to
    touch his penis.

A:
(Appellants version)
: (inaudible) (dared?) me to
    touch his penis.

A:
(My version)
: [J.L.] dared me to touch his penis.

Q: Who did?

A: [J.L.]

Q: Ok.

A:
(Crowns version)
: [J.K.L.] and then it probably (inaudible)
    Im not sure.

A:
(Appellants version)
: [J.K.L.] and (inaudible)
    probably (inaudible)

A: (
My version)
: [J.K.L.] and then it probably went
    [J.L.] [J.K.L.] [J.L.] [J.K.L.] Im not sure.

Q: Ok. Besides that time, was there any other times you had to
    do it?

A: No, only once I think.

Examination in-chief at trial

Q: Now you mentioned something about a dare that somebody made
    to you and it involved a penis. Remember that? Remember telling us about that?

A: I think so

Q:  Can you tell us first of all who made the dare?

A: I think it was [J.K.L.].

Q:  Did he ever  how many times did he ask you  dare you to
    touch his penis?

A: I can't remember.

Q: Do you remember if it happened more than once or not?

A: I think so.

Q: You think it happened more than once or not?

A: I think so cause I can't remember.

Q: Did anybody else ever dare you to touch [J.K.L.s] penis?

A: I cant remember.

Q: Did your sister ever dare you?

A: I cant remember.

Cross-examination at trial

Q: So who made the dare when you were playing with [J.L.] and
    [J.K.L.]? Who made the dare?

A: I can't remember.

[20]

According
    to the appellant, taken at its highest, A.L.s evidence consists of an
    assertion that she thinks it was the appellant who invited her to touch his
    penis. Particularly in the context of A.L.s statement during cross-examination
    that she was uncertain who issued the dare, an assertion that she
thinks
it was the appellant who invited her to touch his penis is simply not capable
    of supporting a finding of guilt.

[21]

I
    would not accept this submission. It focuses on A.L.s oral evidence and
    ignores what A.L. said in her videotaped police statement, which she adopted as
    part of her oral evidence. All versions of the videotaped police statement
    include one series of answers by A.L. that are capable of supporting a finding
    that the appellant invited A.L. to touch his penis. I will repeat my
    understanding of those answers for ease of reference:

Q: So it was the only one time that [J.K.L.] asked you to touch
    his penis during truth or dare?

A:
(My version)
: [J.L.] dared me to touch his penis.

Q: Who did?

A: [J.L.]

Q: Ok.

A: (
My version)
: [J.K.L.] and then it probably went
    [J.L.] [J.K.L.] [J.L.] [J.K.L.] Im not sure.

[22]

Depending
    on the trial judges view of these answers and A.L.s trial evidence, they
    could suggest uncertainty on A.L.s part about who invited her to touch the
    appellants penis. Or they could suggest that both the appellant and J.L.
    invited A.L. to touch the appellants penis. Based on the totality of the
    evidence, I consider that it was open to the trial judge to reach either
    conclusion. That said, the poor audio quality of the videotaped police
    statement and the equivocal nature of some of A.L.s trial testimony required
    that the trial judge carefully review all of A.L.s evidence to make a finding
    of guilt. In this regard, I note, in particular, that apart from the name
    J.K.L., the last answer set out in para. 21 is extremely difficult to hear,
    even on the DVD version of the videotaped police statement.

[23]

I
    turn now to the trial judges reasons and the appellants argument that the
    trial judge misapprehended the evidence. At para. 7 of his reasons, the trial judge
    quoted excerpts from A.L.s videotaped police statement as follows:

A.L. describes modelling underwear  I had to take off my bra
     I was just in my underwear  I had to walk and turn around  at my house and
    [D.R.s mothers] house  in grade 3 in September  happened four or five
    times mostly in my house  upstairs in moms room
[J.K.L.]  there  just
    lying there rubbing his penis  [J.K.L.] lying on the bed in jeans  he rubbed
    his penis  took off my underwear  nothing on

asked me to touch his
    penis  just me and [J.K.L.]  [J.K.L.] said that  to touch his penis
modelled for [J.K.L.] four or five times  truth or dare two times in my moms
    room and in the kitchen
[J.K.L.] asked me to touch his penis truth or
    dare  asked me to touch his penis  I didnt  just one time [J.K.L.] asked me
    to touch his penis in the truth or dare
 [Emphasis added.]

[24]

The
    Crowns edited transcript of A.L.s videotaped police statement consists of 23
    pages. As I have said, it deals with A.L.s allegations about both underwear
    modelling and truth or dare. The quotation set out above appears to begin
    around page 4 of the Crowns edited transcript and to continue with selected
    extracts through to page 22. Unfortunately, it is not an accurate quotation of
    A.L.s videotaped police statement. Rather, it is a paraphrase of parts of her
    videotaped police statement. Significantly, critical aspects of the paraphrase
    are not accurate.

[25]

Most
    importantly, the paraphrase suggests that A.L. specifically identified the
    appellant as the person who invited her to touch his penis on several
    occasions. That is simply not accurate.

[26]

For
    example, the first italicized portion of the quotation, which identifies for
    the first time the appellant as the person who invited A.L. to touch his penis,
    does not appear in the videotaped police statement at all. And while the second
    italicized portion of the quotation
might
reflect an accurate summary of
    pages 20-22 of the videotaped police statement, the italicized statements are
    not exact quotes and appear in a different order than similar statements in the
    videotaped police statement.

[27]

Equally
    significantly, nowhere does the trial judge acknowledge the poor audio quality
    of the second italicized portion of the videotaped police, nor does he specify
    exactly what he heard. He also fails to acknowledge the clear reference to J.L.
    (A.L.s sister) as the person who invited A.L. to touch the appellants penis.

[28]

A.L.s
    videotaped police statement was a central component of her evidence. A proper
    understanding of her videotaped police statement was essential to properly
    assess her evidence. In my view, the trial judges findings concerning the
    charge involving A.L. is tainted by: his misapprehension of the contents of the
    videotaped police statement; his failure to acknowledge the poor audio quality
    of portions of the statement and the one clear reference to J.L. as the person
    who invited A.L. to touch the appellants penis; and his failure to specify
    exactly what he heard when he listened to the videotaped police statement.

[29]

On
    appeal, the Crown argued that rather than being viewed as a quotation of A.L.s
    videotaped police statement, the quotation at para. 7 of the trial judges
    reasons should be viewed as a quotation of the trial judges notes of the
    statement.

[30]

I
    fail to see how such an approach would overcome the concerns I have noted. Even
    if the quotation reflects the trial judges notes, it remains an inaccurate
    reflection of the videotaped police statement. Moreover, the fact remains that
    the trial judge did not wrestle with the problems inherent in the videotaped
    police statement.

[31]

The
    Crown also argued that even if it was J.L. who invited A.L. to touch the
    appellants penis, the appellant would still be guilty of the offence of
    invitation to sexual touching as a party to the offence. In my view, if that
    was the trial judges conclusion, he was required to say so and to make the
    findings necessary to support that conclusion.

[32]

In
    the result, I would allow the appeal from the conviction for invitation to
    sexual touching, set aside the conviction and order a new trial.

(ii)

The
    Charges Involving D.R.

[33]

The
    appellant raises three main issues on his appeal from the convictions involving
    D.R. First, he says the trial judge erred in relying on the complainants
    evidence as similar fact evidence. Second, the appellant claims that the trial
    judge, in assessing the evidence of the two complainants, failed to consider
    the possibility of innocent collusion between the two girls. Third, the
    appellant says the trial judge erred in making a finding that the complainants
    had no motive to fabricate when it was only established that no motive to
    fabricate was apparent on the evidence.

[34]

I
    see no merit in the second and third issues raised. Concerning collusion, the
    appellant argued at trial that D.R.s mother coached the two young complainants
    to fabricate their evidence in an effort to get the appellant out of her life.
    The trial judge considered this argument and rejected it. Innocent collusion,
    however, was not a live issue at the trial. The trial judge did not commit a
    reversible error by failing to address it.

[35]

As
    for the trial judges findings about motive to fabricate, I acknowledge that
    the trial judge said that D.R.s mother had no motive to coach the two young
    complainants to fabricate their evidence and further found that the two young
    complainants, with their learning disabilities, had no motive to lie. However,
    as I read his reasons, the trial judge was simply responding to, and rejecting,
    the appellants theory that D.R.s mother coached the complainants so she could
    get the appellant out of her life. I do not read the trial judges reasons as
    going so far as to find a
proven
absence of motive. Nor do I read the
    trial judges reasons as placing an onus on the defence to prove a motive to
    fabricate. Accordingly, I would not give effect to this argument.

[36]

As
    for the similar fact evidence issue, I agree that the trial judge appears to
    have used the complainants evidence as similar fact evidence when he said:

I further find that the two victims tend to corroborate each
    others evidence and contradict the defendant when each of [D.R.] and [A.L.]
    refer to the accused as asking them to model in their underwear while each was
    alone with the accused in their respective mothers bedrooms when he
    perpetrated the sexual acts upon the victims of which he is accused.

[37]

I
    would not accept the Crowns argument that this use of the complainants
    evidence was some form of permissible response to the appellants having raised
    an issue about similar fact evidence during his examination in-chief and in
    closing argument.

[38]

In
    his evidence in-chief at trial, the appellant described some of his prior
    convictions as involving touching childrens crotches. He denied committing
    these prior offences but claimed he had described the allegations previously
    made against him to D.R.s mother. In closing submissions, the appellant argued
    that the present allegations were mirror images of the allegations underlying
    the prior offences  and that D.R.s mother had a motive to coach the two
    complainants to fabricate the present allegations.

[39]

Considered
    in the context of the appellants argument at trial, it was not the
    similarities between the present complainants allegations and the allegations
    underlying the prior convictions that rebutted the appellants argument that
    the present complainants evidence was fabricated. On the contrary, it was the
    dissimilarities in their evidence that did so. And the trial judge referred to
    the dissimilarities in the next paragraph of his reasons.

[40]

Moreover,
    particularly in the absence of a similar fact evidence application by the Crown
    and a ruling on the issue, it was an error in law for the trial judge to treat
    one complainants evidence as corroborating the other and as contradicting the
    appellants denials.

[41]

However,
    the impugned finding appears at page 10 of the trial judges reasons. Much earlier
    in his reasons, at page four, the trial judge made a clear finding accepting
    D.R.s evidence based on her graphic description of sexual activity beyond the
    knowledge of an eight or nine-year-old young girl:

For an infant of eight or nine years old with a learning
    disability to describe in graphic detail, I find was more than imagination or
    coaching by anyone and the court accepts her evidence as credible and the
    truth.

[42]

Given
    that the trial judge made this initial finding accepting D.R.s evidence based
    on her graphic description of sexual activity unlikely to be within her
    knowledge, I see no realistic possibility that the trial judges subsequent
    error in law would have made any difference to his conclusion about the charges
    involving D.R.

[43]

In
    the result, I would apply the proviso and dismiss the appeal from the
    convictions involving D.R.

III. The Sentence Appeal

(i) Background

[44]

The
    Crown applied for a dangerous offender designation under s. 753(1)(a)(i)
    of the
Criminal Code
in relation to the sexual touching and invitation
    to sexual touching offences, and under s. 753(1)(b) of the
Criminal Code
in relation to the sexual assault charge.

[45]

In
    support of its application, in addition to the convictions for the predicate
    offences, the Crown relied on three main forms of evidence: (i) evidence of the
    appellants extensive prior criminal record (which included at least 35
    convictions  22 for offences of dishonesty; four for sexual assault; and one
    for uttering threats to a victim of a sexual assault), together with evidence
    that the appellant had sexually abused other victims; (ii) evidence that
    suggested that the appellant was not trustworthy;
[3]
and (iii) psychiatric evidence from Dr. Hucker concerning the appellants
    diagnosis and prospects for treatment.

[46]

In
    response, the defence called as witnesses: (i) the appellant; (ii) a
    psychiatrist, Dr. Fedoroff; and iii) a psychologist, Dr. Lynette.

[47]

In
    his evidence, the appellant denied most of the allegations of sexual abuse made
    against him  including those that had resulted in convictions. This made it
    necessary for the Crown to call several witnesses to prove past convictions and
    allegations of past sexual abuse.

[48]

Nonetheless,
    the main issue argued at the sentencing hearing was whether there was a
    reasonable possibility that the risk the appellant posed could eventually be
    controlled in the community such that he should be designated a long-term
    offender as opposed to a dangerous offender. In relation to this issue, the
    appellant testified that he was willing to participate in the counselling
    therapies and take the medications prescribed by Dr. Fedoroff, or someone like
    him.

[49]

Both
    psychiatrists agreed that the appellant is a psychopath with a high risk of
    sexual or violent re-offence who meets the criteria for a dangerous offender
    designation.

[50]

Dr.
    Hucker also diagnosed the appellant as suffering from: (1) heterosexual
    pedophilia, non-exclusive type; (2) fetishism
[4]
;
    (3) paraphilia not otherwise specified (paraphilic coercive disorder or
    possibly sadism; possible hebephilia); (4) alcohol and substance abuse
    apparently in remission; (5) anti-social personality disorder; and (6)
    personality disorder not otherwise specified (narcissistic traits).

[51]

Based
    on the psychopathy diagnosis and the appellants scores on actuarial risk
    instruments, Dr. Hucker concluded that the appellant was a high risk to
    re-offend. Dr. Hucker acknowledged that treatment for at least some of the
    appellants conditions was available through intensive programming and
    anti-androgen medications. However, given the appellants psychopathic
    personality, his extreme denial that he is a sex offender and his
    difficulties in the past in developing trusting therapeutic relationships, Dr.
    Hucker was pessimistic about the appellants chances of successful treatment.

[52]

On
    the other hand, although Dr. Fedoroff could not rule out the pedophilia
    diagnosis
[5]
,
    he thought it possible that the appellants crimes were motivated by a panty
    fetish, in which case treatment with education, selective serotonergic
    medications and anti-androgen medications [would be] indicated.

[53]

In
    any event, Dr. Fedoroff opined that the appellant had never been adequately
    treated with modern treatments. He was therefore unable to say that the
    appellant was untreatable. While he was left with the impression the appellant
    would follow pharmacologic treatment recommendations, Dr. Fedoroff wrote:
    [w]hether or not this is true is clearly a testable hypothesis.

(ii) The Trial
    Judges Reasons

[54]

Taking
    account of the predicate offences, the evidence concerning the appellants
    criminal record and allegations of other instances of sexual abuse, the trial
    judge found that the appellants conduct showed an established pattern of
    repetitive behaviour and lack of restraint as required by s. 753(1)(a)(i) of the
Criminal Code
and a failure to control his sexual impulses as required
    by s. 753(1)(b). He therefore concluded that a dangerous offender
    designation was justified.

[55]

The
    trial judge rejected a long-term offender designation, essentially for three
    reasons. First, he preferred the evidence of Dr. Hucker to that of Dr. Fedoroff.
    He accepted Dr. Huckers assessment that the appellant would be difficult if
    not impossible to treat as well as Dr. Huckers opinion that the appellant is a
    pedophile.
[6]

[56]

Second,
    the trial judge found that the appellant had amassed quite a history of asking
    for and failing to follow through with  treatment.

[57]

Finally,
    the trial judge relied on the appellants history of pathological lying and
    manipulation in relation to victims of his conduct and their families,
    psychiatrists and the courts.

(iii) Issues on the Sentence Appeal

[58]

The
    appellant does not dispute that he meets the criteria for a dangerous offender
    designation. However, he raises five issues asserting that the trial judge
    erred in failing to make a long-term offender designation:

(i)      the trial judge
    erred in his approach to the treatment issue;

(ii)      the trial judge failed to properly
    assess the evidence relevant to the  treatment issue;

(iii)     the trial judge over-emphasized his
    finding that the appellant had a tendency to lie;

(iv)     the trial judge applied the wrong
    standard of proof; and

(v)     the trial judge failed to properly
    consider the weaknesses in the evidence relating to the
    previous instances of sexual assault.

[59]

For
    the reasons that follow, I agree that the trial judge erred in his findings
    concerning one of the prior convictions for sexual assault but reject the
    appellants submissions concerning the balance of the issues raised. Because I
    accept that the trial judge erred in one of his findings on the dangerous
    offender hearing and because I would set aside the conviction for the predicate
    offence involving A.L., it will be necessary that I also consider whether the
    proviso should apply in relation to the dangerous offender designation.

(iv) Discussion

(a)

Did the trial judge
    err in his approach to the treatment issue?

[60]

The
    appellant submits that the issue of whether he would comply with treatment was
    central to the question of whether a long-term offender designation should be
    made. He argues that, in approaching this issue, the trial judge failed to
    recognize that the Parole Board can enforce mandatory treatment conditions
    imposed in a long-term offender release order.

[61]

I
    would not accept this submission. In
R. v. R.B
.
2011 ONCA 328,
    280 O.A.C. 329, at para. 13, this court acknowledged that it may well be
    possible [for the Parole Board] to fashion a condition to ensure that a
    [long-term offender] could be released only if taking  medication as
initially
recommended by a psychiatrist (emphasis added). However, this court also
    indicated that there are many factors which independently make the successful
    enforcement of a condition requiring that [a long-term offender]
continue
to take medication problematic (emphasis added). At para. 14 of
R.B
.
,
    this court stated that an offenders attitude towards treatment [is] a factor
    that [is] highly relevant to the assessment of risk.

[62]

In
    this case, it is evident from his reasons that the trial judge placed no stock
    in the appellants claim that he would accept and follow through on the
    treatment which both psychiatrists thought was necessary to create any hope of
    eventually controlling the appellants risk in the community.

[63]

Having
    reached this conclusion, in my view, it was unnecessary for the trial judge
    turn his mind to the question of the Parole Boards ability to enforce a
    treatment condition. As I noted, there are potential problems inherent in
    enforcing such a condition, even where an offender is initially considered a good
    prospect for following through on treatment, Thus, a sentencing judge is not
    required to engage in a consideration of the vagaries of enforceability where
    he or she is not satisfied there is at least some realistic possibility the
    offender will follow through.

(b)

Did the trial judge fail to
    properly assess the evidence relevant to the treatment issue?

[64]

At para. 70 of his reasons, the trial judge cited the following examples
    of the appellant's failure to follow-up on treatment he had requested:

Further exemplifying the offenders failure to follow-up on
    treatment that he requested Dr. Dotzenroth, Dr. Cobrin in June and July of
    2001, Pam Lutzs assessment leading up to an acceptance into the Psychological
    Educational Sex Offender Group and Dr. Pat Franklin at Brantford in April of
    2003. In all of these instances the offender failed to follow-up, because of
    selfish excuses. The Court notes that the latter failure with Dr. Franklin was
    about the time the predicate offences occurred.

[65]

The
    appellant argues that there was evidence on the sentencing hearing
    demonstrating that he did follow-up with Ms. Lutzs three-month sexual offender
    treatment program. Moreover, he says there was no evidence concerning why he
    did not follow through with Dr. Dotzenroth or Dr. Franklin. He therefore
    contends that, in making his findings at para. 70, the trial judge materially
    misapprehended the evidence concerning the appellants attitude to treatment.

[66]

I
    would not accept this submission. Although I agree that there was no specific
    evidence concerning
why
the appellant failed to follow through with
    treatment with Dr. Dotzenroth or Dr. Franklin, it is clear from the record that
    he failed to follow through with these doctors. In the case of Dr. Franklin, it
    is clear that the appellant  failed to follow through without explanation after
    three referrals by his probation officer. Moreover, it is also clear that the
    appellant failed to follow through with other treatment providers when he was
    not satisfied with their approach to treatment.

[67]

For
    example, in 1986, the appellant refused to see Dr. Ruffo at the Joyceville
    institution because he did not get along with Dr. Ruffo. Subsequently, in 2001,
    the appellant refused to follow through with treatment with Dr. Cobrin because
    Dr. Cobrin wanted him to address his prior offences.

[68]

It
    is apparent from the appellants history that he did not follow through with
    treatment providers when he did not like them or their approach to treatment.
    In my view, it was open to the trial judge to conclude that the appellant acted
    unreasonably in failing to follow through with any of Drs. Dotzenroth, Cobrin
    and Franklin, and for that matter, Dr. Ruffo.

[69]

The
    trial judges reference in para. 70 to the appellants failure to follow
    through with Pam Lutzs assessment leading up to an acceptance into the
    Psychological Educational Sex Offender Group is awkwardly phrased and it is
    not entirely clear what point the trial judge was trying to make. The appellant
    did complete Ms. Lutzs three-month treatment program and the trial judge was
    aware of that. He said so at paras. 72 and 86(3) of his reasons.

[70]

It
    may be that, in referring to Ms. Lutz in para. 70, the trial judge was
    intending to refer to the evidence that, after his initial interview with Ms.
    Lutz, the appellant reported to his probation officer that he was unhappy with
    the interview. He said she had lied to him and was forcing him to deal with
    offences he did not commit. He also said he was a people person and would not
    be happy in the treatment group. This evidence demonstrated an attitude that
    was consistent with the appellants attitude towards other treatment providers.

[71]

However,
    whatever the trial judge may have intended to convey by the reference to Ms.
    Lutz in para. 70 of his reasons, it is apparent that he understood that the
    appellant completed Ms. Lutzs treatment program.

(c)

Did the trial judge overemphasize
    his finding that the appellant had a tendency to lie?

[72]

According
    to the appellant, the trial judge described the appellant as a liar on at least
    12 occasions in his reasons for sentence. The appellant submits that this
    finding was only marginally relevant to the issue of whether the appellant
    should be designated as a long-term offender. By overemphasizing this finding,
    the trial judge failed to focus on the real issue, which was the potential
    efficacy of treatment with anti-androgen drugs.

[73]

I
    would not accept this submission. The appellants credibility was highly
    relevant to two important issues at the sentencing hearing. First, it was
    relevant to the veracity of the appellants denials that he committed previous
    sexual offences. Second, it was also relevant to the veracity of the
    appellants claim that he would co-operate in future treatment efforts.

[74]

Taking
    into account the importance of these issues to the live issues at the
    sentencing hearing, I am not persuaded that the trial judge overemphasized his
    finding that the appellant was a pathological liar and a manipulator.

(d)

Did the trial judge
    apply the wrong standard of proof?

[75]

In
R. v. F.E.D
.
, 2007 ONCA 246, 84 O.R. (3d) 721, this court held
    that the issue of whether to make a long-term offender designation involves an
    exercise of discretion. Once a sentencing judge is satisfied that it would be
    appropriate to impose a sentence of imprisonment of two years or more and that
    the offender poses a substantial risk to reoffend, the question becomes whether
    the sentencing judge is satisfied there is a reasonable possibility of eventual
    control of that risk in the community. This question does not require that either
    party satisfy a burden of proof; rather it is an issue for the sentencing judge
    concerning whether to exercise his or her discretion to make a long-term
    offender designation based on the whole of the evidence adduced.

[76]

The
    appellant argues that the following excerpt from the trial judges reasons
    demonstrates that the trial judge improperly placed an onus on the appellant to
    show that that there was a reasonable possibility of eventual control of the
    appellants risk in the community:

There is no
compelling
evidence to suggest that there
    is a possibility that the risk posed by the offender can be controlled by
    either a determinate period of detention or a determinate period of detention
    followed by a long-term supervision order. [Emphasis added.]

[77]

I
    would not accept this submission. The trial judge stated on at least two
    occasions in his reasons that the onus was on the Crown to prove beyond a
    reasonable doubt that the appellant should not be designated as a long-term
    offender. He expressed this view as follows at para. 21 of his reasons:

Thus the onus is on the Crown to prove beyond a reasonable
    doubt that there is a likelihood or risk of future harm and a corresponding
    absence of a reasonable possibility of eventual reduction of the risk to an
    acceptable level.

[78]

In
    so holding, the trial judge erred by placing the onus of proof on the Crown in
    relation to whether there is a reasonable possibility of eventual control in
    the community. However, this error inured to the benefit of the appellant. In
    fairness to the trial judge, he did not have the benefit of this courts
    decision in
F.E.D
.

[79]

Moreover,
    I do not read the isolated passage relied on by the appellant as demonstrating
    that the trial judge placed a burden of proof on the appellant. On the
    contrary, in my opinion, in that passage the trial judge was simply summarizing
    his views on the quality of the evidence led by the appellant in support of a
    long-term offender designation. He rejected the appellants evidence entirely,
    and he preferred Dr. Huckers evidence to that of Dr. Fedoroff.

(e)

Did the trial judge fail to properly consider the weaknesses in the
    evidence relating to the previous instances of sexual assault?

As I have said, the appellants prior criminal record
    included four prior convictions for sexual assault and one prior conviction for
    threatening bodily harm to a sexual assault victim:

Sexual Assault

(i)      April 26, 1989
    K.G.;

(ii)      August 16, 1990
    N.G.;

(iii)     August 3, 2000
    A.S.-L.; and T.S.-L.

Uttering threats

(v)     August 3, 2000.

[80]

Three
    of the victims of the appellants prior sexual assaults were under the age of
    ten (K.G.; A.S.-L. and T.S.-L.). As the appellant denied the sexual assaults,
    or at least aspects of them, it was necessary for the Crown to lead evidence on
    the sentencing hearing to prove the underlying facts of the offences.

[81]

In
    addition, the Crown led evidence from two other alleged victims of sexual
    assault by the appellant in relation to whom no charges had ever been laid: (i)
    T.M., whose evidence related to events that allegedly occurred in 1991; and (ii)
    K.B., whose evidence related to events that allegedly occurred in 1997.

[82]

The
    trial judge did not consider T.M.s allegations in his reasons. Apart from
    that, he accepted the evidence of the sexual assaults that was led on the
    sentencing hearing and rejected the appellants denials.

[83]

On
    appeal, the appellant submits that the trial judge erred in failing to
    critically assess weaknesses in the evidence concerning prior sexual assaults;
    specifically the offences involving N.G. and K.G., for which he had been
    previously convicted, and the allegations involving K.B, in relation to which
    he had not been charged.

[84]

For
    reasons that I will explain, I would reject the appellants submissions in
    relation to K.G. and K.B. As for N.G., I would accept the appellants
    submission that the trial judge erred in finding that the underlying
    circumstances of the offence involved four instances of forced intercourse and
    one instance of forced fellatio.

1.       N.G.

[85]

N.G.
    did not testify on the sentencing hearing. On appeal, the Crown asserts that it
    relied on a copy of the information laid against the appellant as well as a
    Crown synopsis of the facts of the offence to support this conviction.
The information and synopsis are attached to the Crowns application
    for an assessment order. It does not appear that these documents were filed as
    formal exhibits on the sentencing hearing. However, the conviction is noted in
    the appellants criminal record and Dr. Hucker included a summary of the Crown
    synopsis in his report.

[86]

According
    to Dr. Huckers summary, the Crown synopsis indicated that N.G., then a
    15-year-old girl, alleged that the appellant had forced intercourse with her on
    four occasions. The synopsis also alleged that on one occasion the appellant forced
    N.G. to masturbate him and perform oral sex on him before having forced
    intercourse with her.

[87]

At
    the sentencing hearing, the appellant acknowledged pleading guilty to sexual
    assault against N.G. However, he denied that he forced intercourse on N.G. and
    claimed that their sexual relations were consensual. He said that he had
    believed  incorrectly  that N.G. was 17 at the time of these events.

[88]

In
    his reasons for sentence, the trial judge adopted the version of events set out
    in the Crown synopsis. The appellant submits that the trial judge erred in so
    doing.

[89]

I
    agree with the appellant that the trial judges conclusion that the facts set
    out in the Crown synopsis had been proven was unreasonable.

The appellants criminal record confirmed that the appellant
    was convicted of sexual assault on August 16, 1990 and that he received a
    suspended sentence and three years probation.

[90]

In
    his closing remarks on the dangerous offender sentencing hearing, Crown counsel
    acknowledged that  without transcripts or evidence from N.G., and in the face
    of a sentence of probation  the most that could be said to have been proven
    beyond a reasonable doubt was that the sexual assault involved intercourse with
    either an underage complainant or that the appellant may have been in a
    position of trust or authority toward the complainant.

[91]

I
    acknowledge that the strict rules of evidence do not govern a sentencing
    hearing and that it is open to a trial judge to accept hearsay evidence at a
    sentencing hearing where such evidence is trustworthy and reliable:
R. v.
    Jones
, [1994] 2 S.C.R. 229, at para. 127, citing
R. v. Gardiner
,
    [1982] 2 S.C.R. 368.

[92]

However,
    it is difficult to understand how a Crown synopsis, standing alone, could meet
    that threshold. The sources of the information contained in a Crown synopsis
    may not be disclosed. Moreover, the synopsis does not permit an assessment of
    the reliability or trustworthiness of the information contained within it.

[93]

In
    any event, apart from other problems inherent in relying on a Crown synopsis as
    an accurate reflection of events, the sentence imposed on the appellant in that
    case belies the veracity of the allegations in the Crown synopsis. A suspended
    sentence and probation is so far outside the range of what would be an
    appropriate sentence for the offences alleged in the Crown synopsis that it is
    unreasonable to conclude that the Crown proceeded on the basis of those
    allegations.

[94]

Accordingly,
    I would accept the appellants submission that the trial judge erred in finding
    that the allegations in the Crown synopsis were proven. Based on my review of
    the record, the evidence led at the sentencing hearing proved nothing more than
    a conviction for sexual assault in relation to N.G.

2.       K.G.

[95]

On
    April 26, 1989, the appellant pleaded guilty to sexually assaulting 6 year-old K.G.
    and was sentenced to 8 months in prison.

[96]

K.G.,
    her stepfather, and a police officer who investigated the incident testified at
    the dangerous offender sentencing hearing. According to K.G.s stepfather, the
    appellant was living with their family at the time of the sexual assault.
    K.G.s stepfather happened upon some photographs of K.G. in the appellants
    bedside table. K.G. was partially clad in some of the photographs. Both K.G.s
    stepfather and the police officer said K.G. was nude in some of the
    photographs. The police officer described some of the photographs as sexually
    explicit.

[97]

At
    the dangerous offender sentencing hearing, 22-year-old K.G. testified that the
    appellant occasionally babysat her while her parents were at work. She and the
    appellant sometimes played a card game called Crazy Eight Countdown. The
    appellant suggested that whoever lost the game had to take off a piece of
    clothing. K.G. recalled that she would sometimes end up with no clothes on and
    the appellant would have her pose on a bed or a couch and take photographs of
    her. K.G. testified that the appellant asked her to put her hand on his penis
    and to take his penis in her mouth. She maintained that assertion even when
    told she had not disclosed it to the police. Although she testified that the
    appellant fondled her vagina, she denied digital penetration.

[98]

The
    investigating police officer testified that when he spoke to 6 year-old K.G.
    about the incident she indicated that the appellant made her touch his thing.
    She also disclosed that the appellant rubbed [her] and put his finger in
    [her].

[99]

At
    the dangerous offender sentencing hearing, the appellant admitted that he took
    photographs of K.G. in her underwear and that he touched her bum while she was
    wearing underwear. Although he acknowledged pleading guilty to more extensive
    allegations, he denied more intrusive sexual conduct.

[100]

The trial judge
    rejected the appellants denials and accepted K.G.'s version of the events.

[101]

The appellant
    argues that the trial judge failed to consider the weaknesses in K.G.s
    evidence before concluding that her allegations had been sufficiently proven.

[102]

I would not
    accept this submission. The trial judge recited the version of events K.G.
    testified to on the sentencing hearing as well as the version she gave to the
    police officer when she was six years old. It could not have escaped him that
    the two versions of events were different. Further, in reaching his conclusion,
    the trial judge noted that the appellant told officers who interviewed him in
    1989 that he did not touch K.G. but said that he had his hand on his penis and
    that she touched his hand. The trial judge viewed this comment as a virtual
    admission. In my view, it was open to the trial judge to do so and to accept K.G.s
    evidence on the sentencing hearing as credible.

3.       K.B.

[103]

The Crown called
    K.B. to testify at the sentencing hearing concerning an allegation of sexual
    assault in relation to which no charges had been laid. As part of her testimony
    at the sentencing hearing, K.B. adopted as true the contents of a videotaped
    statement she gave to the police in March 1998. K.B. was seven years old at the
    time of the police interview and 14 years old at the time of the sentencing
    hearing.

[104]

In her
    videotaped statement to the police, K.B. alleged that the appellant sexually
    abused her just before Christmas of 1997 when she was six years old. At the
    time, the appellant was her mothers boyfriend.

[105]

K.B. described
    an incident that happened while she and her mother were visiting the appellant
    at his house but her mother was out. She said the appellant touched her private
    parts, which she described as her bird, boobs and butt, with his hands. The
    appellant wanted her to touch his private parts and taught her to French kiss.
    He also rubbed his wiener while he had her look at a sex book on his
    dresser. Near the end of the interview, K.B. explained that she was wearing
    underwear when the appellant touched her private parts.

[106]

In her evidence
    at the sentencing hearing, K.B explained that bird, boobs and butt meant
    vagina, breasts and bum. She thought she was nude when the appellant rubbed her
    vagina with his hand, but she may have been wearing underwear. She said the
    appellant had her lay naked on his bed and rubbed his penis on her back. At
    some point, he had K.B. rub his penis and his butt. The appellant also had K.B.
    put on womens shorts and spaghetti strapped T-shirts and had her look at sex
    magazines while he rubbed his penis up and down.

[107]

Later, the
    appellant moved to the apartment in the basement. On one occasion, he gave K.B.
    underwear to put on a fashion show for him. While she wore the underwear, he
    gave himself a boner. He also had K.B. watch a sex video in the basement
    apartment.

[108]

The trial judge
    accepted K.B.s allegations as true. He said he was impressed with the way she,
    as a seven-year-old, gave her videotaped statement to the police and described
    the candour and content of it as vivid and clear.

[109]

Further, the
    trial judge found that K.B.s evidence was confirmed by two sources. First was
    the evidence of a Childrens Aid Society worker who investigated the subsequent
    sexual abuse allegations made by the S.-L. children. During an interview with
    the worker, the appellant acknowledged that he took a box of lingerie and
    pleasure toys to a friend when he was accused of abusing K.B. because he did
    not want the police to see it. The trial judge found this to be evidence of
    consciousness of guilt.

[110]

Second, the
    trial judge found that K.B.s evidence was confirmed by the evidence of J.C.,
    who became involved in a relationship with the appellant after his relationship
    with K.B.s mother ended. J.C. confirmed that K.B. and her mother visited the
    appellant in a basement apartment before J.C.s relationship with the appellant
    began. She also said the appellant required her to model underwear for him
    while he masturbated and took Polaroid photographs of her.

[111]

The appellant
    submits that the trial judge erred in accepting K.B.s allegations as proven.
    The appellant notes that, whereas in 1989 the police determined that there was
    no reasonable prospect of conviction, the trial judge identified no major
    weaknesses in K.B.s evidence.

[112]

The appellant
    also argues that K.B. added significant details in her evidence at the
    sentencing hearing that were not included in her videotaped statement to the
    police (for example, the appellant rubbing her back with his penis). He
    contends that her explanation that she forgot important features of the sexual
    assault when she gave her videotaped statement to the police is not worthy of
    belief. Moreover, her evidence that she tried to fill in gaps in her memory
    about the sexual assault over the years was an important weakness in her
    evidence that the trial judge overlooked.

[113]

I would not
    accept these submissions. K.B. was seven years old when she gave her videotaped
    statement to the police. The fact that the police decided not to proceed with
    charges is of no real moment in the light of the difficulties inherent in
    proceeding with a charge involving such a young complainant. In any event, the
    opinion of the police concerning whether to lay charges was irrelevant to the
    issue of the appellants guilt or innocence, an issue that the trial judge had
    to determine beyond a reasonable doubt.

[114]

As for the
    details added at the sentencing hearing and K.B.s explanations, K.B. said
    in-chief that she did not disclose the added details in her videotaped
    statement because she was embarrassed and because the appellant did not want
    her to say anything. When confronted in cross-examination with extracts of her
    videotaped statement indicating she was anxious to tell the police about her
    problem and that she understood that the police would deal with the appellant,
    K.B. said she forgot to tell the police certain details of the assaults. K.B.
    subsequently agreed that she forgot all about certain details, but developed
    them later in part because of talking to people.

[115]

K.B. also stated
    in cross-examination that she considered these events several times and she
    agreed that she had tried to fill in some of the gaps and spaces in her mind to
    try and make sense of them.

[116]

I agree that it
    may have been preferable for the trial judge to specifically address the
    differences between K.B.s trial testimony and her videotaped statement as well
    as her explanation for the differences. Nonetheless, if one accepts her
    videotaped statement to the police as being credible, as the trial judge did,
    some aspects of it are capable of supporting an inference that K.B. was
    reticent about disclosing the details of her allegations. For example, although
    K.B. said, at one point, that the appellant had taught her how to do sex, the
    ensuing questions and answers are capable of supporting an inference that she
    was reluctant to explain the details of what she was taught. See the excerpt
    from her videotaped statement attached as Appendix A.

[117]

K.B. also
    explained during re-examination at the sentencing hearing what she meant when
    she responded to a question about developing [her] memories during
    cross-examination. Although this evidence may not be crystal clear, in my view,
    it is open to the interpretation that K.B. gained a greater understanding of
    what had occurred as she got older:

Q. [Defence counsel] suggested to you that it was as a result
    of talking to those people that you developed these memories of the things you
    didnt tell us on the videotape.

Q. What did you mean, or what did you understand when you answered
    that question, the words developed the memories to mean?

A. Umm, uhh, whenever you like, when you get older, you think
    more about it and then you know what things look like and stuff like that.

The Court: That was When you get older you think

A. When you get older, you grow up and then you start
    remembering the stuff, what kind it is and everything.

[118]

As the trial
    judge did not comment on the details added by K.B. at the sentencing hearing or
    on her explanations for adding them, it is apparent he was not persuaded these
    matters were significant to his assessment of her evidence. Particularly in the
    light of K.B.s age at the time of her videotaped statement and at the time of
    the sentencing hearing and of the trial judges view of her credibility on her
    videotaped statement, it was open to the trial judge to conclude that the
    inconsistencies between K.B.s evidence and her videotaped statement were
    unimportant. Considered in this context, the trial judges failure to refer to
    them does not constitute reversible error.

(f)

The Impact of
    the Trial Judges Errors

[119]

At the appeal
    hearing, the appellant argued that the trial judges errors, (1) in convicting
    the appellant of the predicate offence involving A.L. and (2) in overstating
    the underlying circumstances of the offence involving N.G., require that the
    dangerous offender designation be set aside.

[120]

Dealing first
    with A.L., the appellant notes that Dr. Hucker recited and relied on A.L.s
    version of the events in his report. Moreover, in his oral evidence, Dr. Hucker
    maintained that his diagnosis of pedophilia was correct because there had now
    been five assaults. The evidence of this statement and the fact that the
    actuarial instruments used to predict future dangerousness take into account
    the number of convictions demonstrate that the number of offences is an
    important factor to both the diagnosis of pedophilia and the assessment of
    future dangerousness. Taking A.L.s conviction out of the equation could have
    had an impact on Dr. Huckers diagnosis and conclusions  which, in turn, may
    have affected the trial judges findings.

[121]

Further, the
    appellant submits that it was a serious error for the trial judge to overstate
    the underlying circumstances of the offence involving N.G. The trial judge
    found that the appellant forced N.G. to have intercourse with him on four
    occasions. That was, by far, the most serious of the offences the trial judge
    found the appellant had committed and very well could have factored into the
    trial judges assessment of the appellants future dangerousness.

[122]

I would not
    accept these submissions for four reasons.

[123]

First, in my
    view, the trial judges findings concerning the underlying facts of the sexual
    assault involving N.G. are irrelevant to the diagnoses of pedophilia and
    psychopathy and essentially irrelevant to the actuarial risk assessments.

[124]

Beginning with
    the pedophilia diagnosis, aside from referring to the existence of five
    assaults, Dr. Hucker did not provide any real insight into how pedophilia is
    diagnosed. However, Dr. Fedoroff explained that the diagnostic criteria require
    a persistent sexual interest or sexual activities involving sexual relations
    with children under 13. Accordingly, because N.G. was over 13, the conviction
    involving her could not have factored into the pedophilia diagnosis.

[125]

As for the
    psychopathy diagnosis, the psychopathy checklist Dr. Hucker completed was filed
    as an exhibit on the sentencing hearing. The checklist contains 20 factors and
    each factor can be scored in one of three ways: 0 (No), 1 (Maybe), 2 (Yes) or x
    (Omit).

[126]

The facts of the
    offence involving N.G. appear even remotely relevant to only one factor on the
    psychopathy checklist  factor 20, criminal versatility.
[7]
Dr. Hucker gave the appellant a score of 2 on factor 20. An explanatory note to
    factor 20 reads: 0 = 0 - 3; 1 = 4  5; 2 = 6 or more, x = omit.

[127]

We have no
    evidence concerning whether the explanatory note refers to the number of
    offences or the number of types of offences. If it refers to the number of
    offences, the fact that the trial judge overstated the underlying circumstances
    of this offence (and that Drs. Hucker and Fedoroff did as well) would not
    affect the psychopathy diagnosis because the trial judges error does not alter
    the fact that the appellant was convicted of a sexual assault involving N.G.

[128]

If the
    explanatory note refers to the number of types of offences, it is hard to
    imagine the trial judges error could affect the psychopathy diagnosis  this
    is because of the number and variety of the appellants criminal convictions.

[129]

However, even if
    the underlying circumstances of the conviction involving N.G. would reduce the
    psychiatrists scoring under factor 20 by one point that would not affect the
    psychopathy diagnosis. That is because Dr. Hucker scored the appellant at 31
    and Dr. Fedoroff scored him at 34. According to Dr. Hucker, the accepted
    threshold for a reliable diagnosis of psychopathy is a score of 30. Further,
    Dr. Hucker acknowledged in his evidence that he could be persuaded to score the
    appellant one point higher in a couple of categories (shallow affect;
    promiscuous sexual behaviour).

[130]

As for the
    actuarial risk assessments, neither Dr. Huckers nor Dr. Fedoroffs raw
    scoring materials are in the appeal record. The only evidence concerning how
    the risk assessment instruments work came from Dr. Hucker.

[131]

Dr. Hucker
    explained that the SORAG uses variables or characteristics that have a
    clinical quality, like the psychopathy score, like results on the laboratory
    tests of sexual preference, like diagnosis of personality disorders,
    schizophrenia, those kind of characteristics. On the other hand, the Static 99
    uses essentially criminological characteristics, like number of previous
    offences, whether your offence was a violent offence or a sexual offence, how old
    you were when you started offending, those kinds of things.

[132]

Based on Dr.
    Huckers explanation of the actuarial instruments, it does not appear that the
    fact the trial judge (and the two psychiatrists) overstated the underlying
    circumstances of the offence involving N.G. would affect the appellants risk
    assessment using the SORAG.
[8]
However, it might have some impact on his risk assessment on the STATIC 99.
    That is because rather than being a violent sexual offence, the most that can
    be said about the offence involving N.G. is that it was a sexual offence.

[133]

On the facts of
    this case, however, that possible difference is irrelevant. Dr. Hucker
    explained in his oral evidence that he did the arithmetic for the risk
    calculation incorrectly. In his report, he assigned the appellant a STATIC 99
    raw score of five, which placed him in the moderate-high category of risk
    corresponding to a 38% chance of sexual recidivism over 10 years. In his oral
    evidence, Dr. Hucker acknowledged that he should have given the appellant a raw
    score of six, placing the appellant in the high risk category (the same risk
    category in which Dr. Fedoroff placed the appellant). This score corresponded
    to a 45% chance of sexual recidivism over ten years. In these circumstances,
    even if the error relating to the underlying circumstances of the offence
    involving N.G. reduced the appellants SORAG rating from a six to a five, I see
    no possibility that that would have affected Dr. Huckers opinion or the trial
    judges findings.

[134]

The second
    reason I would not accept the appellants submission that the dangerous
    offender designation should be set aside relates to the trial judges error in
    convicting the appellant of the predicate offence involving A.L. Once again, I
    reach the conclusion that this error is irrelevant on the facts of this case.
    That is because, on the trial judges findings, the appellant was guilty of an
    additional sexual assault of a young child that was not included in his
    criminal record and not relied on by Dr. Hucker as a conviction  the sexual
    assault of K.B. If anything, the facts of the sexual assault against K.B.
    appear to be more serious than the facts of invitation to sexual touching
    allegations involving A.L.

[135]

Accordingly,
    although it is necessary to remove A.L.s conviction from the equation,
    ultimately there is no difference in the number of sexual offences the
    appellant has committed against young children. In these circumstances, I fail
    to see any possibility that Dr. Huckers diagnosis of pedophilia or that the
    results of the actuarial risk assessments would change because the conviction
    relating to A.L. is removed.

[136]

The third reason
    I would not accept the appellants submission that the dangerous offender
    designation should be set aside is that the trial judges errors had no effect
    on his conclusion regarding the appellants failure to follow through with
    treatment. Further, the trial judges errors do not affect the fact that there
    was no credible evidence before the trial judge of a reasonable possibility of
    eventually controlling the appellants risk in the community.

[137]

Concerning the
    issue of eventual control of the appellants risk, Dr. Fedoroff was, at least
    initially, sceptical of the pedophilia diagnosis. However, he agreed with Dr.
    Hucker that, in addition to other treatments, the appellant requires treatment
    with anti-androgen and other medications.

[138]

Importantly, Dr.
    Fedoroff never gave an opinion that truly supported a long-term offender
    designation. Dr. Fedoroff testified at the sentencing hearing that he took
    everything the appellant said with a grain of salt. Although he wrote in his
    report that he was left with the impression that [the appellant] is now
    willing to follow treatment recommendations, he also said, [w]hether or not
    this is true is clearly a testable hypothesis. The trial judge properly
    identified this evidence as a speculative prognosis. And the trial judge
    rejected the appellants evidence that he would follow through with treatment.

[139]

On the other
    hand, both Dr. Huckers opinion and the trial judges findings on the issue of
    the prospects of eventual control of the appellants risk were driven, to a
    very large extent, by: the appellants psychopathy diagnosis, the appellants
    denials of his crimes, and his past failures in following through with
    treatment. These factors would not be affected by removing the conviction
    involving A.L. from the equation.

[140]

The fourth
    reason I would not accept the appellants submission that the dangerous
    offender designation should be set aside is that this case is distinguishable
    from
R. v. Robinson
(2006), 215 O.A.C. 213. In
Robinson
, this
    court declined to apply the proviso in an appeal from a dangerous offender
    designation, at least in part, because the trial judge and the expert witnesses
    relied on convictions that were later set aside on appeal.

[141]

In
Robinson
,
    the trial judge failed to consider the long-term offender provisions before
    making a dangerous offender designation. In addition to this error, both the
    trial judge and the psychiatrists called at the sentencing hearing had relied
    on evidence of prior convictions (the London offences) that later were set
    aside on appeal.

[142]

Rosenberg J.A.
    considered the impact of the trial judge and experts reliance on the London
    offences. While the experts were prepared to give the same opinion solely on
    the basis of the predicate offences, Rosenberg J.A. found that the London
    offences may have influenced the experts diagnosis of sexual sadism as well as
    their risk assessment, and further that the presence of these convictions may
    have influenced the conduct of the defence. He therefore declined to apply the
    proviso. He said the following at paras. 62-65:

The
Johnson
problem is complicated in this case by
    the use of the London allegations. While the experts were all prepared to come
    to a conclusion that the appellant was a sexual sadist solely on the basis of
    the Toronto offences, it is also fair to say that their opinions were
    strengthened by their knowledge of the appellant's conduct with the London
    victim. The London evidence also seems to have been a factor in the experts
    conclusions as to the likelihood of re-offending.

For example, although Dr. Wilson was prepared to make his
    diagnosis solely on the basis of the Toronto offences, we think it fair to say
    that the strength of his opinion as to the likelihood that the appellant would
    re-offend depended, in part, on his understanding that the appellant had engaged
    in prior sexual assaults of a similar nature.

We are also concerned that, although the experts were prepared
    to give an opinion solely on the basis of the Toronto offences, this was never
    the case that the appellant had to meet. He was always confronted with both
    sets of offences. It is not possible to say what evidence the appellant might
    have been able to adduce if he had only had to meet the Toronto offences or if
    he had been in a position to challenge the evidence of the London complainant.

Thus, while we are not prepared to find that the dangerous
    offender designation in this case was unreasonable, we also cannot be satisfied
    that no miscarriage of justice resulted from the failure to consider the
    long-term offender provisions against the background of a record limited to the
    Toronto offences. Accordingly, there must be a new hearing.

[143]

In my opinion,
    there are at least three important features of this case that distinguish it
    from
Robinson
.  First, unlike Robinson, in this case the appellant was
    guilty of multiple prior sexual offences. Eliminating the conviction for the
    index offence involving A.L. still left two serious index offences, and several
    previous convictions for serious sexual offences. Second, in this case, the
    trial judges finding in relation to K.B. constitutes an effective substitute
    for removing the index offence involving A.L. Third, in this case, the fact
    that the trial judge erred in relation to the underlying circumstances of the
    offence involving N.G. is essentially irrelevant to the issue of whether a
    long-term offender designation should be made.

(g)

Application of the
    Curative Proviso

[144]

Under s.
    759(3)(b) of the
Criminal Code
, a court of appeal may dismiss an
    appeal from dangerous offender designation. The curative proviso under s.
    686(1)(b)(iii) is not directly applicable to such appeals. However, by analogy
    an appeal may be dismissed under s. 759(3)(b) if an error in law made by the
    trial judge has caused the appellant no substantial wrong or miscarriage of
    justice:
R. v. Bedard,
2009 ONCA 678, 254 O.A.C. 314, at paras.
    102-103;
R. v. Johnson
, 2003 SCC 46, [2003] 2 S.C.R. 357, at para. 49;
R. v. Mitchell
, 2002 BCCA 48, 161 C.C.C. (3d) 508, at paras. 60-63.
    Consistent with the application of the proviso in other contexts, its
    application by analogy under s. 759(3)(b) is limited to situations where the
    trial judges errors were immaterial or  there is no reasonable possibility that
    the verdict would have been any different had the error not been made:
Johnson
,
    at para. 49;
Bedard
, at para. 104.

[145]

In my opinion,
    considered in the context of the whole of the evidence relating to the question
    of whether the appellant should be designated a long-term offender, the trial
    judges errors in relation to the offences involving A.L. and N.G. were not
    material errors and there is no reasonable prospect the outcome would have been
    different had such errors not been made.

IV.     Disposition

[146]

Based on the
    foregoing reasons, I would dismiss the conviction appeal in relation to the
    offences involving D.R. (the sexual assault and sexual touching counts) but
    allow the conviction appeal in relation to the offence involving A.L., set
    aside the conviction for invitation to sexual touching and order a new trial in
    relation to that count. In addition, I would grant leave to appeal sentence,
    but dismiss the sentence appeal
as it relates to the
    remaining charges involving D.R
.

Signature:    Janet Simmons J.A.

 I
    agree John Laskin J.A.

I agree Robert P. Armstrong
    J.A.

RELEASED:  JL APRIL 18, 2012

Appendix A

Excerpt from K.B.s Videotaped Statement

Q.
    What else did you, were you taught?

A.
    How to do sex.

Q.
    What does that mean honey?

A.
    That means we take off our clothes and we do their thing.

Q.
    Take off clothes and do our thing?

A.
    Do their thing.

Q. I
    think youre gonna be an English major. Whats the thing sweetie? Tell Bob what
    the thing is? Yeah, come on, youre a brave girl.

A.
    Im not sure about this.

Q.
    Youre doing just fantastic. So we take off our clothes and do the thing. Can
    you tell Bob what the thing is, honey?

A.
    Okay. That means that we do things that youre supposed to do. That means that
    were having sex together.

Q.
    We have sex together?

A.
    Yup.

Q.
    What does having sex together mean to you?

A.
    Mean to me?

Q.
    Yeah.

A.
    That means its really, really stupid.

Q.
    Its stupid?

A. I
    said to do it.

Q.
    Well I dont know what youre doing. You havent told me what youre doing yet.
    Tell me what youre doing, and then Ill be able to see how stupid it is. What
    are you doing?

A. I
    forgot.

Q.
    Oh you didnt forget.

A.
    Oh yes I did.

Ms.
    Keeley: Just explain, what does it mean.

Sergeant
    Kerr: Q. Thats right.

Ms.
    Keeley: What does it mean?

A.
    What does that mean?

Sergeant
    Kerr: Q. What does having sex together mean? How do you (
sic
) sex
    together? What do you have to do?

A. I
    dont know.

Q.
    Well you just told me that [the appellant] taught you that. What did he teach
    you? How did he tell you how to do it?

A.
    With his hands.

Q.
    He did it with his hands?

A.
    Yup.

Q.
    What did he do?

A.
    Rubbed his private part.

Q.
    He rubbed his private parts?

A.
    Yup. His private part.

Q.
    Mm-hum. Okay, what else?

A.
    You mean what is it called?

Q.
    Well, if you know what its called, you tell me.

A.
    Okay, well its called his wiener.

Q.
    His wiener?

A.
    Yeah.

Q.
    How do you know its called that?

A.
    Coz.

Q.
    Okay, so he rubbed his private parts, his wiener; what did you have to do?

A. I
    had to stand and watch.

Q.
    You had to stand and watch?

A.
    No, I just stood there and looked at a sex book.

Q.
    What else happens when you do sex?

A. I
    dont know. Its all in my head still

Q.
    Youre full of baloney. I can see it in those big brown eyes. Do you know what,
    if you tell me its all over with. You have to tell me just one time and then
    its all over. I know you had to do a video, and I know Christine brought it
    down or made a little cassette tape, but yeah, but if we just do this video one
    time and get it over with, its all over with honey, and we dont have to say
    it again. Okay?

A. I
    dont know what it is. I really dont know.

Q.
    So so far what youve told us is he touches here and here and your butt, and he
    touches himself in front of you, and while hes doing that youre looking at a
    dirty book from the dresser. Is there anything else?

A.
    No.

[1]
The information spanned a time-frame slightly over one year. Accordingly, D.R.
    was either seven or eight at the time of the events.

[2]
The initials J.K.L. refer to the appellant. The initials J.L. refer to A.L.s
    sister.

[3]
This consisted of evidence that the appellant consistently told lies that
    exaggerated how hard his life had been. These alleged lies included the
    appellants claims that both his parents had died when he was young, that his
    former girlfriend had killed herself, and that his mothers boyfriend had burnt
    his leg with gasoline when he was a child.

[4]

In his report, Dr. Hucker described this as transvestitic
    fetishism. Dr. Fedoroff disputed this diagnosis. In his oral
evidence, Dr. Hucker agreed that Dr.
    Fedoroff was likely correct in omitting the transvestitic label.

[5]

Unlike Dr. Hucker, Dr. Fedoroff had the opportunity to conduct
    phallometric testing on the appellant. This testing did not support a diagnosis
    of pedophilia. However, there was no real dispute at the hearing that such
    testing is not conclusive.

[6]

At para. 14 of his reasons, the trial judge indicated that
    both psychiatrists ultimately agree[d] [the appellant] is a pedophile with a
    panty fetish. Dr. Fedoroff never agreed explicitly that the appellant is a
    pedophile. However, during cross-examination, he was asked a number of
    questions about whether certain conduct on the part of the appellant during the
    offences would tend to suggest pedophilia rather than a panty fetish and he
    invariably answered yes.

[7]

The other factors are: 1. Glibness/Superficial Charm; 2.
    Grandiose Sense of Self Worth; 3. Need for Stimulation/Proneness to Boredom; 4.
    Pathological Lying; 5. Conning/Manipulative; 6. Lack of Remorse or Guilt; 7.
    Shallow Affect; 8. Callous/Lack of Empathy; 9. Parasitic Lifestyle; 10. Poor
    Behavioral Controls; 11. Promiscuous Sexual Behavior; 12. Early Behavioral
    Problems; 13. Lack of Realistic, Long-Term Goals; 14. Impulsivity; 15.
    Irresponsibility; 16. Failure to Accept Responsibility for Own Actions; 17.
    Many Short-Term Marital Relationships; 18. Juvenile Delinquency; 19. Revocation
    of Conditional Release.

[8]
Although it was not part of the record, I looked at the SORAG scoring guide. In
    fact, it does take into account the subjects criminal history, generating
    scores for previous non-violent offences, previous violent offences, and
    previous sexual offences. However, because sexual assault is categorized as a
    violent offence, and because of the number of offences of which the appellant
    has been convicted, it does not appear that overstating the underlying
    circumstances of the offence involving N.G. would affect the appellants score.


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

486.
    (1)
Any
    proceedings against an accused shall be held in open court, but the presiding
    judge or justice may order the exclusion of all or any members of the public
    from the court room for all or part of the proceedings if the judge or justice
    is of the opinion that such an order is in the interest of public morals, the
    maintenance of order or the proper administration of justice or is necessary to
    prevent injury to international relations or national defence or national
    security.

(2)
For the purpose of subsection
    (1), the proper administration of justice includes ensuring that.

(a)     the interests
    of the witnesses under the age of eighteen years   are safeguarded in all
    proceedings; and

(b)     justice
    system participants who are involved in the proceedings are protected.

(3)
If an accused is charged with
    an offence under section 151, 152, 153, 153.1, 155 or 159, subsection 160(2) or
    (3) or section 163.1, 171, 172, 172.1, 173, 212, 271, 272 or 273 and the
    prosecutor or the accused applies for an order under subsection (1), the judge
    or justice shall, if no such order is made, state, reference to the
    circumstances of the case, the reason for not making an order.  R.S., c. C-34,
    s. 442; 174-75-76, c. 93, s. 44; 1980-81-82-83, c. 110, s. 74, c. 125, s. 25;
    R.S.C. 1985, c. 19 (3rd Supp.), s. 14; c. 23 (4th Supp.), s. 1; 1992, c. 21, s.
    9; 1993, c. 45, s. 7; 1997, c. 16, s. 6; 1999, c. 25, s. 2; 2001, c. 32, s. 29;
    2001, c. 41, s. 16, 34 and 133(13), (14); 2002, c. 13, s. 20; 2005, c. 32, s.
    15; 2005, c. 43, ss. 4 and 8(3)(a).

COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. J.S., 2012
    ONCA 271

DATE: 20120426

DOCKET: C52031

Winkler C.J.O., Laskin and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

J. S.

Appellant

Julie Santarossa and Brian Snell, for the appellant

Susan Ficek, for the respondent

Heard and released orally: April 4, 2012

On appeal from the conviction entered on June 19, 2009 by
    Justice Terrence A. Platana of the Superior Court of Justice, sitting with a
    jury.

ENDORSEMENT

[1]

A jury found the appellant guilty of a single count of sexual assault.
    He appeals his conviction on two grounds.  We would give effect to neither.

The
    First Ground:  The Instructions on Reasonable Doubt

[2]

The first ground of appeal alleges error in the trial judges
    instructions on reasonable doubt. To be more specific, the appellant says that,
    towards the conclusion of his final instructions, the trial judge combined an
    improper definition of reasonable doubt with a reference to a timid juror and
    to morality-laden language frequently criticized by appellate courts.

[3]

The instructions to which objection is taken were given towards the
    end of the charge, the trial judge said:

Let me repeat what I said to you earlier about reasonable
    doubt.  If you feel sure of the guilt of the accused, if it satisfies your mind
    and satisfies your conscience as a juror, then you can act upon that aspect of
    reasonable doubt.  It has to be based on the evidence and not something that
    you simply conjure up because you are too timid to make a decision in this case
    and it has to be of course in relation to one of the essential elements.

[4]

Short-form instructions on the standard of proof are, at best,
    problematic,  all the more so when given at or near the conclusion of a jury
    charge.  If a trial judge considers it appropriate to return to the subjects of
    the onus and standard of proof, and the meaning to be assigned to the phrase proof
    beyond a reasonable doubt as final instructions draw to their close, those
    instructions ought follow the
Lifchus
[1]

model, not some incomplete paraphrase of it.

[5]

Despite the incompleteness of the excerpted parts of the final
    instructions on the standard of proof and the references to timid jurors and
    what is characterized as morality-laden language, we would not give effect to
    this ground of appeal.

[6]

On their own, the references to timidity and to conscience are not
    fatal.  They should not have been said, but their mere iteration is not a
    sufficient basis on which we should interfere.

[7]

The appellant also contends that the jurors were not properly instructed
    on the onus and standard of proof, including the meaning to be assigned to
    proof beyond a reasonable doubt,
[2]
in preliminary instructions at the beginning of the trial, and again in the
    charge.

[8]

As we are required to do, we have considered the instructions on the
    onus and standard of proof as a whole, and have concluded that, despite the
    impugned passages, there is no reasonable likelihood that the jurors would have
    been under any misapprehension of the standard of proof required to find the
    appellant guilty of the offence charged.

[9]

The earlier instructions, given twice, were fully compliant with
Lifchus
.
They explained the meaning to be
    assigned to proof beyond a reasonable doubt, including its equivalence with
    being sure about guilt. As
Lifchus
points out, the reference to feeling
    sure as a basis for conviction, is problematic only where the standard of
    proof is otherwise unexplained. That is not this case.

The
    Second Ground:  Jury Vetting

[10]

The
    second ground of appeal concerns the integrity of the jury selection process.

[11]

Shortly
    before jury selection began, Crown counsel at trial provided defence counsel
    with an annotated list of jurors from which the jury was to be selected. The additional
    information provided was more extensive than simply the criminal records of the
    prospective jurors. During the selection process, neither party used up all their
    peremptory challenges.

[12]

The
    argument advanced here is that we should distinguish this case from our earlier
    authorities because of the more extensive and intrusive information obtained
    about prospective jurors, the lateness of its disclosure to defence counsel,
    and the failure of the prosecutor to correct some of the trial judges comments
    about the lack of knowledge of jurors background in his opening instructions
    about the selection process.

[13]

We
    would not give effect to this ground of appeal.

[14]

In
    this case, the appellants trial counsel was supplied with the same material as
    the prosecutor. Apprised of this information, trial counsel for the appellant
    chose not to use it in jury selection. We are not prepared to say that the
    differences in the nature and extent of information obtained, the time of its
    disclosure, or the discrepancy between what the judge told the jury in opening
    and the reality of which the trial judge was likely unaware, caused the
    appellant any miscarriage of justice.

[15]

The
    appeal is dismissed.

Winkler C.J.O.

John Laskin J.A.

David Watt J.A.

[1]

R. v. Lifchus
, [1997] 3 S.C.R. 320.

[2]
The principal complaint, that the trial judge erred by failing to instruct the
    jury expressly that proof beyond a reasonable doubt is much closer to absolute
    certainty than to balance of probabilities, has already been rejected by this
    court in
R. v. Zebedee
(2006), 211 C.C.C. (3d) 199.