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    that could identify the complainant or a witness shall not be published in any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. I.M.C., 2014 ONCA 312

DATE: 20140423

DOCKET: C42491

Cronk, Epstein and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

I. M. C.

Appellant

Michael W. Lacy, for the appellant

Deborah Krick and Jennifer Crawford, for the respondent

Heard: March 3, 2014

On appeal from the dangerous offender designation and the
    indeterminate sentence imposed by Justice Célynne S. Dorval of the Ontario Court
    of Justice, dated January 23, 2003.

Cronk J.A.:

A.      Introduction

[1]

The appellant is an admitted and prolific child sex offender.  On
    October 24, 2001, he pleaded guilty to 16 sex-related offences involving
    numerous children, mostly young girls, between the ages of four and twelve.
    Most of these offences involved the appellants accosting a child in a public
    place (in a park, school or outside a residence) and taking the child to a
    private location where the appellant sexually abused the child.  Occasionally,
    the appellant would ask his victim to urinate in his presence.  On two
    occasions, the appellant abducted children in a vehicle.  He also repeatedly
    sexually abused his girlfriends young daughter, including by attempting
    intercourse with her on one occasion when she was eight or nine years of age.
    Throughout these abusive incidents, the appellant threatened to kill the
    complainant, as well as her mother and brother.

[2]

After pleading guilty to the predicate offences, the appellant admitted
    to sexually offending against about 100 children.  In addition, while he was
    detained in custody prior to sentencing, the appellant telephoned approximately
    175 young girls between the ages of eight and twelve, pretending to be a radio
    disc jockey who was involved in running a contest.  Using this ruse, he engaged
    the young girls in sexually specific conversations and asked some of them to
    touch themselves sexually while he was on the phone with them.  He also asked
    some of the girls to urinate so that he could hear it.

[3]

On January 23, 2003, Dorval J. of the Ontario Court of Justice
    designated the appellant as a dangerous offender and imposed an indeterminate
    sentence.

[4]

The appellant appeals.  For the reasons that follow, I would dismiss the
    appeal.

B.      Issues

[5]

The appellant raises two grounds of appeal.  First, he argues that the
    sentencing judge erred in assessing whether there is a reasonable possibility
    of the eventual control of his risk to the public in the community, by
    conflating the prospects for the eventual control of his risk in the community
    with the issue whether he could be cured.

[6]

Second, relying on fresh evidence that he seeks to file on appeal with
    leave of this court, the appellant submits that the sentencing judge and
    counsel at the sentencing hearing proceeded on a false understanding of the
    science regarding the prospects for effective treatment of offenders who, like
    the appellant, suffer from psychopathy.  Based on his fresh evidence, the
    appellant contends there has been a sea change in medical knowledge regarding
    treatment for psychopaths and that, contrary to the expert evidence accepted by
    the sentencing judge, effective psychological treatment now exists for such
    offenders, including him.  The appellant says that, viewed through the lens of
    this fresh evidence, his risk of reoffending can be adequately managed in the
    community and, therefore, his designation as a dangerous offender amounts to a
    miscarriage of justice.  He seeks a new sentencing hearing or, in the alternative,
    the imposition of a determinate period of detention, followed by a 10-year supervision
    order.

C.      Discussion

(1)

Risk Reduction Versus Risk Elimination

[7]

The appellant argues that the sentencing judge erred in the manner in
    which she assessed whether he should be declared a long-term as opposed to a
    dangerous offender by confusing the issue of his treatability  that is, the possibility
    of control or reduction of his risk in the community by means of effective
    treatment  with the question whether he could be cured within the period of
    a definite sentence or a definite sentence and a maximum 10-year supervision
    order.  In effect, the appellant submits that the sentencing judge erred by
    conflating the concepts of risk reduction and risk elimination.

[8]

In support of this argument, the appellant points to the last paragraph
    of the sentencing judges reasons, which reads as follows:

[The appellant] cannot be cured.  I am satisfied that the Crown
    has established that there is no reasonable likelihood that he will be
    controlled in the community following a determinate sentence.  I therefore find
    that his conduct is intractable.  He meets all criteria at sections 753(a) and
    (b) [
sic
] and must be sentenced to an indeterminate period of
    incarceration.

[9]

I do not accept that this passage from the sentencing judges lengthy
    reasons demonstrates the error urged by the appellant.  I say this for the
    following reasons.

[10]

Section
    753.1(1) of the
Criminal Code
,

R.S.C. 1985, c. C-46, sets out
    specific criteria for the designation of an offender as a long-term offender.
    The section reads:

The court may, on application made under this Part following
    the filing of an assessment report under subsection 752.1(2), find an offender
    to be a long-term offender if it is satisfied that

(a) it would be
    appropriate to impose a sentence of imprisonment of two years or more for the
    offence for which the offender has been convicted;

(b) there is a
    substantial risk that the offender will reoffend; and

(c) there is a
    reasonable possibility of eventual control of the risk in the community.

[11]

There
    is no suggestion that the sentencing judge failed to consider whether the
    appellant should be designated as a long-term offender.  She did address this
    issue when considering the Crowns dangerous offender application, as she was
    obliged to do:
R. v. Johnson
, 2003 SCC 46, [2003] 2 S.C.R. 357.  Rather,
    the issue is whether the sentencing judge erred in her interpretation of the
    third criterion for the designation of an offender as a long-term offender
    the requirement under s. 753.1(1)(c) for a showing of a reasonable possibility
    of eventual control of [an offenders] risk [of reoffending] in the community.

[12]

In
Johnson
, the Supreme Court considered the purpose and inter-relationship
    of the dangerous and long-term offender provisions of the
Criminal Code
.
[1]
The court stated, at paras. 29 and 30:

[T]he dominant purpose of preventive detention is to protect
    the public when the past conduct of the criminal demonstrates a propensity for
    crimes of violence against the person, and there is a real and present danger
    to life or limb.  Absent such a danger, there is no basis on which to sentence
    an offender otherwise than in accordance with the ordinary principles of
    sentencing.
The principles of sentencing thus dictate that a judge ought
    to impose an indeterminate sentence only in those instances in which there does
    not exist less restrictive means by which to protect the public adequately from
    the threat of harm, i.e., where a definite sentence or long-term offender
    designation are insufficient.

The essential question to be
    determined, then, is whether the sentencing sanctions available pursuant to the
    long-term offender provisions are sufficient to reduce this threat to an acceptable
    level, despite the fact that the statutory criteria in s. 753(1) have been met
.

In order for the sentencing sanctions available pursuant to
    the long-term offender provisions to reduce the threat associated with an
    offender who satisfies the dangerous offender criteria to an acceptable level
,
    it must be possible for the same offender to satisfy both the dangerous
    offender criteria and the long-term offender criteria. [Citations omitted; emphasis
    added.]

[13]

The
    court continued, at para. 32:

The very purpose of a long-term supervision order, then, is
    to protect society from the threat that the offender currently poses
 and
    to do so without resort to the blunt instrument of indeterminate detention.
If
    the public threat can be reduced to an acceptable level
through either a
    determinate period of detention or a determinate period of detention followed
    by a long-term supervision order,
a sentencing judge cannot properly
    declare an offender dangerous

and sentence him or her to an
    indeterminate period of detention
.  [Emphasis added.]

[14]

The
    Supreme Court elaborated on the meaning of a reasonable possibility of
    eventual control of the risk in the community, at para. 40:

If a sentencing judge is satisfied

that the
    sentencing options available under the long-term offender provisions are
    sufficient to reduce the threat to the life, safety or physical or mental
    well-being of other persons

to an acceptable level
, the
    sentencing judge cannot properly declare an offender dangerous and thereupon
    impose an indeterminate sentence, even if all of the statutory criteria have
    been satisfied.  [Emphasis added.]

[15]

In
    this case, the sentencing judge did not have the benefit of the Supreme Courts
    decision in
Johnson
, which was released after the date of the
    sentencing judges ruling on the Crowns dangerous offender application.  However,
    the sentencing judge did consider the British Columbia Court of Appeals
    decision in
R. v.

Johnson
, 2001 BCCA 456, 158 C.C.C. (3d) 155
    (the BC
Johnson
Decision), which was eventually upheld by the
    Supreme Court.

[16]

Indeed,
    the sentencing judge quoted extensively from the BC
Johnson
Decision.
    She stated in part as follows:

I have reviewed the case law provided to me on this issue.  In
    [the BC
Johnson
decision], the BCCA made an extensive comparison of
    the dangerous offender provisions as they existed prior to and post amendment.
    It concluded as follows:

In summary then, the
dangerous offender designation
under the new provisions
is designed to ensure that those offenders who are
    truly dangerous, whose behaviour is unlikely to be modified or controlled, will
    be sentenced to an indeterminate sentence
for the highest degree of state
    control.
An offender whose conduct or behaviour is not pathologically
    intractable, in the sense that the offender can at least reach a stage where,
    though not curable, he or she can be safely controlled in the community and who
    would likely have been found to be a dangerous offender under the former
    provisions, may now qualify for long-term rather than dangerous offender status
.
    This offender would have at least the possibility, when the offender is no
    longer a risk to the community, to one day be free of state control.  [Emphasis
    added.]

[17]

The
    sentencing judge went on to outline the criteria to be met by the Crown in
    order to establish that an accused is a dangerous offender.  In so doing, she again
    quoted from the BC
Johnson
Decision:

The Crown must establish:

.

(4) The pattern of conduct is pathologically intractable,
    otherwise defined in [the BC
Johnson
decision] as deep-seated or
    difficult to cure.
Evidence of possible treatment control or cure must be
    considered
in this analysis.  In the words of Justice Ryan in [the BC
Johnson
decision]:

if an offender is likely to be cured of his or her
    condition within the parameters of the appropriate determinate sentence, the
    condition cannot be said to be intractable and he or she ought not to be
    declared a dangerous offender.
If the offender may not be cured, but may
    be controlled in the community within the limits defined by a long-term
    offender sentence, the offender should not be declared a dangerous offender,
    but a long-term offender instead
.  [Emphasis added.]

[18]

The
    closing paragraph of the sentencing judges reasons, relied on by the appellant
    and set out above, must be understood in the context of the entirety of her
    reasons, including her comments concerning the BC
Johnson
Decision.
    In the excerpts from that decision referenced by the sentencing judge, the
    court clearly stated that only those dangerous offenders whose behaviour is
    unlikely to be safely modified or controlled in the community should be subject
    to an indeterminate sentence as a dangerous offender.  Conversely, those
    offenders whose risk can be adequately managed in the community should be declared
    long-term offenders.

[19]

The
    sentencing judges references to the BC
Johnson
Decision confirm that
    she appreciated that the statutory criteria for a long-term offender
    designation are directed at the possibility of eventual control of an
    offenders risk of reoffending through the managed reduction, rather than the
    elimination, of that risk.  In my view, in light of these references, the
    appellants contention that the sentencing judge conflated the concepts of risk
    reduction and risk elimination is unsustainable.

[20]

Other
    factors also support the conclusion that the sentencing judge was alert to the
    distinction between, and did not conflate, the prospects for reduction of the
    appellants risk of reoffending in the community and his potential to be cured.
    She reviewed additional authorities,
R. v. Guilford
, [1999] O.J. No.
    4894 (Sup. Ct.) and
R. v. Payne
, 41 C.R. (5th) 156, [2001] O.J. No.
    146 (Sup. Ct.), which emphasize the distinction between risk reduction  the
    focus of s. 753.1(1)(c) of the
Criminal Code
 on the one hand, and
    risk elimination, on the other hand.

[21]

In
    addition, in her reasons, the sentencing judge reviewed the expert psychiatric
    evidence concerning the appellants diagnosis, his risk of reoffending, and the
    opinions of the involved psychiatrists regarding treatment of psychopathic
    individuals, including, specifically, the appellant.  When discussing this
    expert evidence, the sentencing judge dealt directly with the expert opinions
    concerning the appellants risk of reoffending and their conflicting views
    about the prospects for effectively managing or reducing that risk in the
    community, discussed in detail below.

[22]

Nowhere
    in the sentencing judges review of this evidence does she suggest that the
    appellant could be designated as a long-term offender only if his mental
    disorders could be cured, or if his risk of sexually reoffending could be
    eliminated or reduced to zero.  To the contrary, as I read her reasons, the
    sentencing judge remained focused throughout on the evidence bearing on the
    prospects for reducing the appellants risk of reoffending to an acceptable
    level in the community.  She was right to do so.

[23]

Finally,
    the plain language of the concluding paragraph of the sentencing judges
    reasons, quoted above, itself belies the error alleged by the appellant.  This
    paragraph tracks certain of the language used in the BC
Johnson
Decision.  For example, the sentencing judge found that the appellant cannot be
    cured and that his conduct is intractable.  This language draws on similar
    terminology used in the BC
Johnson
Decision: see
e.g.
at
    para. 93.

[24]

In
    the same paragraph of her reasons, the sentencing judge alluded to the risk
    reduction criterion for the designation of an offender as a long-term
    offender.  She held: I am satisfied that the Crown has established that there
    is no reasonable likelihood that [the appellant] will be
controlled in the
    community
following a determinate sentence (emphasis added).

[25]

When
    the sentencing judges detailed reasons are read as a whole, I have no
    hesitation in concluding that she did not lose sight of the important
    distinction between the prospects for reducing or controlling the risk of the
    appellants reoffending and the potential for the complete elimination of that risk
    by reason of a medical cure for his disorders.  It follows that I see no error
    in her appreciation of the statutory criteria for the designation of an offender
    as a long-term offender, or in her finding that there was no reasonable
    possibility that the appellants high risk of reoffending could be controlled
    in the community.

[26]

I
    would not give effect to this ground of appeal.

(2)

Fresh Evidence

[27]

There
    are two fresh evidence applications before the court, one brought by the
    appellant, and one brought by the Crown.

[28]

The
    appellants proposed fresh evidence consists of a report, dated July 8, 2008,
    by Dr. Louis Morissette, a forensic psychiatrist at Philippe-Pinel Institute in
    Montreal, prepared approximately five and one-half years after the appellants sentencing
    hearing, together with the transcript of the Crowns cross-examination of Dr.
    Morissette on the content of his report.

[29]

In
    his evidence, Dr. Morissette addresses three main issues: the appellants
    amenability to treatment; pharmacological and therapeutic treatment for persons
    suffering from psychopathy; and the prospects for eventually controlling the
    appellants risk of reoffending in the community.  I will discuss his opinions
    on these issues later in these reasons.

[30]

Based
    on Dr. Morissettes opinions, the appellant contends that the sentencing judge
    erred in her assessment of his prospects for effective treatment and, hence, in
    concluding that his risk of reoffending could not eventually be safely reduced
    or controlled in the community.

[31]

The
    Crown resists the appellants fresh evidence application on the grounds that
    Dr. Morissettes opinions lack probative value in the circumstances and, when
    taken with the other evidence at the appellants sentencing hearing, could not
    reasonably be expected to have affected the result at that hearing.

[32]

On
    the second fresh evidence application, the Crown seeks leave to file the Parole
    Board of Canadas 2006 to 2012 decisions regarding the appellant.  The
    appellant does not oppose the Crowns application.

(a)

Psychiatric Evidence at Sentencing Hearing

[33]

The
    import of the appellants fresh evidence must be assessed in the context of the
    expert psychiatric evidence adduced before the sentencing judge. Evidence from
    three psychiatrists was tendered at the appellants 2002 sentencing hearing.  First,
    Dr. John Bradford, a Professor of Psychiatry and Director of the Forensic
    Service at the Royal Ottawa Hospital, conducted a sexual behaviours assessment
    of the appellant in mid-March 2001.  Dr. Bradford did not testify at the
    appellants sentencing hearing.  However, his report, dated August 29, 2001,
    was admitted into evidence and considered as part of the evidentiary record at
    the hearing.

[34]

Second,
    during a two-month period in late 2001, Dr. Phillip Klassen, Deputy Clinical
    Director of the Law and Mental Health Program at the Centre for Addiction and
    Mental Health (CAMH) in Toronto, conducted a court-ordered assessment of the
    appellant under s. 752.1 of the
Criminal Code
.  His report, dated
    February 12, 2002, was filed with the sentencing judge and Dr. Klassen
    testified.

[35]

Finally,
    the defence retained Dr. John Fedoroff, also a forensic psychiatrist and
    practising physician at the Royal Ottawa Hospital, to conduct a psychiatric
    assessment of the appellant.  His report, dated August 31, 2002, was before the
    sentencing judge and he also testified at the sentencing hearing.

(i)

The appellants diagnosis and risk
    of reoffending

[36]

There
    was no material dispute among these experts regarding the appellants
    diagnosis.  It was common ground that the appellant suffers from an antisocial
    personality disorder (with narcissistic personality traits), sexual paraphilias
    of heterosexual pedophilia and urophilia (a sexual deviation involving arousal
    at the contact of urine), and substance abuse disorders.
[2]
The experts also agreed that the appellants sex drive is very high, he is
    deceitful and manipulative, and he is a psychopath.

[37]

Similarly,
    there was little difference of opinion among the psychiatric experts concerning
    the appellants risk of reoffending.  Dr. Klassen and two of his colleagues at
    CAMH scored the appellant at 31 out of 40 on the Psychopathy Checklist
    Revised (the PCL-R), a test designed to assess behaviours and personality
    traits relating to psychopathy.  According to Dr. Klassen, a score of 40 on the
    PCL-R represents the prototypical psychopath.  Dr. Bradford scored the
    appellant at 30.5 out of 40.  Dr. Fedoroff did not conduct his own PCL-R or
    other phallometric or empirical testing on the appellant.

[38]

The
    appellants high PCL-R scores indicate that he is in the top 20 percentile of federal
    penitentiary offenders with respect to psychopathic behaviour.  His scores
    stand in marked contrast to the average PCL-R score for child sex offenders,
    which Dr. Klassen described as being much lower  in the range of 16 or 17.
    They also indicate that the appellant is at significant risk of violent or
    sexually violent recidivism, thus raising challenges for his effective
    treatment and supervision in the community.

[39]

The
    appellants scores on other empirically-based risk assessment instruments (the
    Sex Offender Risk Appraisal Guide or SORAG and the STATIC 99) were also
    high.  According to both Drs. Klassen and Bradford, these scores suggested a
    strong correlation with recidivism and a medium to high risk of future violent
    or sexual reoffending by the appellant.

[40]

Given
    the appellants test results, Dr. Klassen offered the opinion that the
    appellants long-term risk of violently or sexually reoffending is high, that
    his risk period will span several decades, that the severity of his reoffending
    would be proportionate to the presenting circumstances, and that, without aggressive
    monitoring and supervision, his sexual reoffences will likely involve multiple
    victims.

[41]

Dr.
    Bradford viewed the appellant as being at medium to high risk of sexually
    reoffending.  He described the appellants risk of recidivism as substantial,
    and noted in his report:

[I]t is clear that there have been serious problems as already
    outlined, and specifically concerns over the abduction of children and the
    potential, very serious consequences that might arise.  This escalation in his
    history is of serious concern.

[42]

Dr.
    Fedoroff did not diminish the risk posed by the appellant.  He accepted Dr.
    Bradfords and Dr. Klassens risk assessments.

(ii)

Potential for eventual risk control

[43]

The core area of disagreement among the experts concerned the potential for
    the eventual control of the appellants risk of reoffending in the community.
    The experts opinions on this issue focused on the appellants treatment
    prospects or treatability.

[44]

Dr.
    Klassen regarded the appellant as a poor candidate for treatment given his
    clinical risk factors and his PCL-R scores.  In his opinion, administration of
    a powerful testosterone-reducing drug  Lupron  might reduce the appellants
    risk of reoffending but vigorous external controls (strict community
    supervision) would also be required.  However, he also stated that, given the
    appellants history of unreliable self-reporting and a highly unstable
    lifestyle, even the consistent administration of a long-acting sex-drive
    reduction drug may prove problematic.  In Dr. Klassens view, the appellants
    psychopathy, his paraphilias, his history of association with antisocial peers,
    his involvement in a criminal lifestyle, and his limited education and
    vocational skills were indicators of when, not whether, he would reoffend.

[45]

Dr.
    Klassen recommended that the appellant not receive any psychologically-based
    sex offender treatment.  In his opinion, the appellants diagnosis of
    psychopathy would make it difficult, if not impossible, to treat him
    psychologically.  Dr. Klassen also stated that there was a growing body of
    evidence in the forensic psychiatric and psychological literature suggesting that
    offenders with high PCL-R scores not only do not benefit from psychological
    treatment but also may, in fact, recidivate sooner and more frequently after
    such treatment.

[46]

Dr.
    Bradford offered a different opinion concerning the appellants treatability.  He
    noted that the appellant had not been treated in the past for his disorders and
    suggested that, although there is a substantial risk he will reoffend, there
    is also a reasonable possibility that he could be treated by a combination of
    pharmacological and psychological methods.

[47]

Dr.
    Fedoroffs opinion on the appellants treatability was similar to that of Dr.
    Bradford.  He agreed that anti-androgen medication would be expected to reduce
    the appellants sex drive.  If this occurred, in his opinion, it would be
    expected to have a significant effect on the likelihood of the appellants
    sexually reoffending.  According to Dr. Fedoroff, because a sustained course of
    anti-androgen medication had never been tried with the appellant, it was
    difficult to assert that he was untreatable.

[48]

There
    was also evidence before the sentencing judge regarding the appellants
    response to prior trial treatment efforts.  While under the care of Dr.
    Bradford at the Royal Ottawa Hospital, the appellant received an anti-androgen
    drug called Cyproterone Acetate (CPA) and sertraline (also known as Zoloft).
[3]
The appellant reported a decrease in sexual interest in female children and
    fantasies while receiving CPA.  In Dr. Bradfords opinion, the appellants
    results on follow-up phallometric testing showed that his deviant sexual
    interest in female children and his arousal responses in relation to pedophilia
    were decreased by the medication.  Drs. Klassen and Fedoroff stated that repeat
    phallometric testing does not provide a reliable means for measuring response
    to treatment or predicting future offending behaviour.

[49]

The
    experts stressed that reliable self-reporting by an offender is key to effective
    treatment.  Dr. Klassen expressed concern regarding the appellants self-reported
    claims of reductions in his sex drive.  In his view, the appellants history of
    unreliable self-reporting and his potential for manipulation, among other
    factors, suggested that his sex drive did not drop significantly while he was
    receiving CPA.  Dr. Fedoroff acknowledged that, according to the appellants own
    self-reports, the appellant was still actively fantasizing about sexual contact
    with female children and masturbating, as often as two to three times per day,
    while he was receiving CPA.  Dr. Fedoroff agreed that there was no significant
    reduction in the appellants sexual preoccupation and masturbation as a result
    of the CPA.  As well, during this medication trial, the appellant reportedly
    told nursing staff that he experienced little change in his sexual interest.

(b)

Sentencing Judges Ruling

[50]

The
    sentencing judge reviewed the evidence of the appellants predicate offences,
    his background circumstances, the impact of his offences on his youthful
    victims, and his sexually inappropriate conduct while in custody (his numerous
    telephone calls to young girls while posing as a disc jockey).  She also
    addressed the psychiatric evidence regarding the appellant, in detail.

[51]

The
    sentencing judge accepted the unanimous expert evidence regarding the nature of
    the appellants illnesses and his high risk to reoffend.  She found that his
    conduct while detained
i.e.
, engaging young girls by telephone in
    sexually explicit conversations  combined with his phallometric test scores,
    described above, confirmed the high probability of his recidivism.  She also
    accepted Dr. Klassens evidence that the severity of the appellants
    reoffending would be proportional to the presenting opportunities, and that it
    will likely involve multiple victims.

[52]

The
    sentencing judge dealt directly with the conflicting expert opinions concerning
    the potential for effective treatment of the appellant and, hence, the
    prospects for reducing his risk of reoffending in the community.  In so doing,
    she considered the appellants scores on the tests administered by Drs. Klassen
    and Bradford, the results of his trial period of anti-androgen therapy at the
    Royal Ottawa Hospital, the likely effectiveness of pharmacological and
    psychological treatments, and the appellants demonstrated history of
    unreliable self-reporting.  She accepted Dr. Klassens evidence of the lack of
    established effective treatments for psychopaths, and his opinion that if treated
    pharmacologically, the appellants sex drive may be lowered.  She went on to
    note the absence of evidence as to the extent of any sex drive reduction that
    such medication might achieve, the evidence that the appellant was not
    motivated to change, and the appellants lack of insight into the consequences
    of his actions.  She also noted Dr. Klassens testimony that a small number of
    studies have reported higher recidivism rates for psychopaths after
    psychological treatment.

[53]

The
    sentencing judge placed little weight on Dr. Fedoroffs evidence.  She
    expressly rejected his opinion that without proof of failed treatment
    (treatment followed by a reoffence), the appellant could not be viewed as
    untreatable.  She observed that, based on Dr. Fedoroffs evidence, only a
    failure of the proposed treatment will show that [the appellant] is
    untreatable, even if that leads to the possible or probable offence on a
    child.  In the sentencing judges view, this stance did not take into account
    the risk of serious harm to others should treatment of the appellant fail.

[54]

The
    sentencing judge accepted Dr. Klassens opinion that multiple factors suggested
    an inability to control the appellants risk in the community.  These included:
    his multiple paraphilias; his inability to suppress his sexual impulses; the
    depth of his psychopathy (his anti-social personality disorder); his history of
    association with anti-social peers; his long-standing involvement in a criminal
    lifestyle; his limited education; his lack of empathy and deceitfulness; his
    lack of relationships; and his superficiality.

[55]

Based
    on all these factors, the sentencing judge held:

The

Court

cannot

rely on

the

accused to

assist in his own treatment. The effectiveness of the
    pharmacological treatment would be difficult to assess.  External control or
    supervision would therefore be crucial to manage the risk posed by him.  The
    nature of [the appellants] offences must be considered within this parameter.
    He does not attempt to establish rapport with children to gain their confidence
    and trust in order to sexually touch them.  He acts impulsively and randomly
    when the opportunity arises.

[56]

In
    the result, the sentencing judge concluded that the Crown had met its burden to
    establish that there is no reasonable likelihood that [the appellant] will be
    controlled in the community following a determinate sentence.  Accordingly,
    she declined to exercise her discretion to impose a long-term offender
    designation, instead declaring the appellant a dangerous offender and imposing
    an indeterminate sentence of imprisonment.

(c)

Dr. Morissettes Opinions

[57]

Dr.
    Morissette does not challenge many key aspects of the expert evidence at the
    appellants sentencing hearing.  For example, he accepts the description of the
    appellants diagnosis, detailed above.
[4]
He also accepts that the appellant has a history of a criminal lifestyle; that
    he acts superficially; that he is unhesitatingly manipulative; that his sexual
    offences were chronic; and that, at the time of the hearing, he was at high
    risk of reoffending.

[58]

There
    are, however, three aspects of Dr. Morissettes proposed evidence upon which
    the appellant seeks to rely in aid of his claim that a new sentencing hearing
    is required.  It is Dr. Morissettes opinion that: (1) at the time of the
    appellants sentencing hearing, the positive factors supporting the conclusion
    that there was a reasonable possibility of controlling his risk of reoffending
    in the community outweighed the negative factors supporting a contrary conclusion,
    thus justifying the appellants designation as a long-term offender; (2)
    contrary to Dr. Klassens evidence, medical studies and experience after the
    date of the appellants sentencing hearing suggest that psychopaths can be
    effectively treated; and (3) the appellant has benefitted from pharmacological
    and therapeutic treatments since his sentencing hearing, demonstrating that he
    is amenable to treatment and change, and that his risk of reoffending can be
    managed in the community.

(d)

Test for Admitting Fresh Evidence on Appeal

[59]

The
    principles governing the admission of fresh evidence on appeal are
    well-established.  In
R. v. Palmer
, [1980] 1 S.C.R. 759, 106 D.L.R.
    (3d) 212, at p. 775, the Supreme Court identified the following four criteria
    for the admission of such evidence:

1)

the
    evidence should generally not be admitted if, by due diligence, it could have
    been adduced at trial,

2)

the
    evidence must be relevant in the sense that it bears upon a decisive or potentially
    decisive issue at trial,

3)

the
    evidence must be credible in the sense that it is reasonably capable of belief,
    and

4)

the
    evidence must be such that if believed it could reasonably, when taken with the
    other evidence adduced at trial, be expected to have affected the result.
    [Citations omitted.]

See also
R. v. J.A.A.
, 2011 SCC 17, [2011] 1
    S.C.R. 628.

[60]

These
    criteria for admitting fresh evidence on appeal apply regardless of whether the
    appeal relates to the verdict or a sentence at a criminal trial:
R. v.
    Lévesque
, 2000 SCC 47, 191 D.L.R. (4th) 574, at para. 16.

[61]

In
    this case, the Crown does not challenge the due diligence, reliability and
    credibility components of the
Palmer
test  only the fourth
Palmer
criterion is in issue.  It is the Crowns position that Dr. Morissettes
    evidence lacks probative value and, if it had been before the sentencing judge,
    it could not reasonably be expected to have affected the result at the
    sentencing hearing.

[62]

In
Lévesque,
the Supreme Court held that, in the context of the admission
    of fresh evidence on appeal, the concepts of admissibility and probative value
    overlap.  The court explained, at para. 24:

To be admissible, it is not sufficient that the fresh evidence
    meet the prerequisite of relevance.  It must also be credible and
such that
    it could, when taken with the other evidence adduced at trial, be expected to
    have affected the result
.  Accordingly, the probative value of the fresh
    evidence must, to some degree, be reviewed by a court of appeal when it is
    determining the admissibility of the fresh evidence. The question to be
    considered was expressed as follows by McIntyre J. in
Palmer
:

If presented to the trier of fact and believed, would the
    [fresh] evidence possess such
strength or probative force
that it
    might, taken with the other evidence adduced, have affected the result?

[Citations omitted; emphasis in original.]

See also
R. v. Reeve
, 2008 ONCA 340, 233
    C.C.C. (3d) 104, at para. 72.

[63]

The
    determination of the appellants fresh evidence application must be approached
    in light of the above-noted principles.

(e)

Application of the Test for Admitting

Fresh Evidence on Appeal

(i)

Potential for eventual risk control

[64]

I turn first to Dr. Morissettes opinion that, at the time of the
    appellants sentencing hearing, the positive factors militating in favour of the
    conclusion that there was a reasonable possibility of controlling his risk in
    the community outweighed the factors supporting a contrary conclusion.  In my
    view, there is no basis for admitting Dr. Morissettes opinion on this issue as
    fresh evidence on appeal.

[65]

In
    his report, Dr. Morissette listed a series of considerations that he described
    as positive factors regarding the possibility that the [appellants] risk of
    reoffending could be manageable or acceptable in the community.  He also
    listed what he termed negative factors bearing on this critical issue.  He
    then expressed the following opinion:

As of 2002, my opinion is that the positive factors are more
    preponderant and my opinion is that there was a reasonable possibility that
    [the appellant] could have been controlled in the community.

Reading the file since 2003 confirms that impression.

[66]

I
    make three points.  First, the considerations identified by Dr. Morissette
    both positive and negative  were part of the evidentiary record before the
    sentencing judge.  None of them constitutes new or previously unknown
    information.

[67]

Second,
    Dr. Morissettes opinion on this issue is not fresh  it simply represents a
    concurring expert opinion to those offered by other experts at the sentencing
    hearing.  Recall, for example, Dr. Bradfords opinion that there was a
    reasonable possibility of containing the appellants risk in the community
    through a combination of pharmacological and psychological treatment.  Dr.
    Fedoroff said much the same thing, emphasizing the risk-reduction features of
    anti-androgen medication (pharmacological treatment).  The sentencing judge
    considered and rejected these opinions, as she was entitled to do.

[68]

In
R. v. Smith
(2001), 161 C.C.C. (3d) 1, 154 O.A.C. 51 (C.A.), at para.
    71, Simmons J.A. of this court made the following instructive comments
    regarding the admission of a concurring expert opinion as fresh evidence on
    appeal:

·

Where proposed fresh evidence consists of a concurring expert
    opinion, it may be excluded either because of an absence of due diligence or
    because the interest of justice in finality of criminal proceedings forecloses
    its admissibility.  Ultimately what is required is an assessment of whether
    the concurring opinion raises new considerations with sufficient potential to
    impact the verdict such that the interests of justice require its admission.

[69]

These
    comments are apposite here.  Dr. Morissettes opinion that the positive
    factors regarding the possibility that the appellants risk of reoffending
    could be controlled in the community outweighed the countervailing negative
    factors adds nothing to this issue that was not before the sentencing judge.
    His opinion is only a further voice on one side of the risk containment debate
    regarding the appellant.  I am not persuaded that his opinion on this issue, if
    it had been before the sentencing judge, would have affected the result at the
    appellants sentencing hearing.

[70]

Finally,
    I would stress that it was the sentencing judges task to weigh all the
    evidence concerning the potential for eventual control of the appellants risk
    of reoffending in the community.  Her finding on this issue, absent legal
    error, is entitled to deference from this court.  No legal error has been
    demonstrated here.  Nor has it been shown that her finding, on the evidence
    before her, was unreasonable: see
R. v. Currie
, [1997] 2 S.C.R. 260,
    146 D.L.R. (4th) 688, at paras. 35 and 40;
R. v. Ramgadoo
, 2012 ONCA
    921, 293 C.C.C. (3d) 157, at para. 42;
R. v. R.M.
, 2007 ONCA 872, 228
    C.C.C. (3d) 148, at para. 53, leave to appeal to S.C.C. refused, [2008]
    S.C.C.A. No. 91.

(ii)

Treatment of psychopaths

[71]

Dr.
    Klassens evidence at the sentencing hearing had two components relevant to the
    appellants fresh evidence application.  First, it was his opinion that no
    effective psychological treatment options are available for offenders who, like
    the appellant, suffer from psychopathy.  Second, Dr. Klassen referred to some
    emerging evidence in the relevant scientific literature suggesting that the
    psychological treatment of psychopaths may exacerbate their conditions, leading
    to earlier and more frequent reoffending.  This observation was based on what
    Dr. Klassen described in his report as somewhat of a paradigm shift in the
    forensic psychiatric and psychological literature regarding treatment and risk
    management interventions for individuals with high PCL-R scores.

[72]

The
    appellant acknowledges that, based on his understanding of the applicable
    science at the time of the sentencing hearing, Dr. Klassens evidence on these
    matters was not in error as at 2002.  However, the appellant argues that Dr.
    Morissettes evidence demonstrates that, in light of current scientific
    knowledge and experience, Dr. Klassen was wrong on both counts.  In
    particular, says the appellant, Dr. Morissettes evidence indicates that
    effective psychological treatment is available for psychopaths, and that there
    is no scientific support for the claim that a psychopaths risk of reoffending
    is enhanced by psychological treatment.  In fact, the contrary view concerning
    enhanced risk following psychological treatment, reported in the literature as
    at 2002 and relied upon by Dr. Klassen, has since been withdrawn or modified by
    the authors of the applicable studies.

[73]

As
    a result, the appellant submits, the scientific foundation for the sentencing
    judges conclusion regarding the possible containment of his risk has
    shifted.  Based on what the appellant describes as this sea change in the
    scientific understanding of the treatment of psychopathic sex offenders, he argues
    that the sentencing judges disposition was a miscarriage of justice warranting
    appellate intervention.

[74]

I
    would reject this submission.

[75]

First,
    there is nothing new in Dr. Morissettes opinion that effective treatment
    modalities exist for psychopaths.  Once again, his proposed evidence on this
    issue adds nothing to what was already before the sentencing judge.

[76]

Dr.
    Morissette recommends that the appellant receive medication by injection every
    month or every three weeks, coupled with psychological treatment and community
    supervision on release.  The sentencing judge specifically addressed the
    possibility of treating the appellant pharmacologically, by administering a
    sex-drive reduction drug.  She was also cognizant of the appellants trial
    period of pharmacological treatment prior to the hearing.  Having considered
    the evidence on these issues, the sentencing judge was not satisfied that this
    form of treatment would reduce the appellants risk of reoffending to an
    acceptable level.  This was the sentencing judges call to make.  I see nothing
    to support the conclusion that her finding on this issue was unreasonable.

[77]

Second,
    contrary to the appellants submission, the suggestion that psychopaths may be
    amenable to psychological treatment does not constitute a sea change in
    medical understanding of the treatment options for psychopathic sex offenders.

[78]

Recall
    that in his report, Dr. Bradford offered the opinion that there was a
    reasonable possibility of containing the appellants risk in the community
    through
a combination of pharmacological

and psychological
    treatment
.  Dr. Fedoroff said much the same thing, although he appears to
    have placed greater emphasis on the risk-reduction features of anti-androgen
    medication (pharmacological treatment).  As I have said, the sentencing judge
    considered and rejected these opinions.  She was entitled to do so.

[79]

Third,
    Dr. Morissettes opinion that, based on current medical knowledge, there is no
    support for the proposition that psychopaths may be at an enhanced risk of
    reoffending after psychological treatment adds nothing new to the information
    that was before the sentencing judge.  To the contrary, Dr. Morissettes
    opinion on this issue is virtually identical to that of Dr. Fedoroff.

[80]

Dr.
    Fedoroff specifically challenged Dr. Klassens opinion that psychological
    treatment is contra-indicated for psychopathic offenders.  He expressly
    disagreed with Dr. Klassens suggestion that there was growing empirical
    evidence that offenders with high PCL-R scores do not benefit from
    psychological treatment and may reoffend more frequently and more quickly after
    such treatment.  Dr. Fedoroff noted that some literature then in publication
    outlined treatment recommendations for institutionalized sex offenders and
    commented that one of the creators of the PCL-R test had told him that: there
    is no scientifically reliable evidence suggesting that psychopaths (individuals
    with high HPCL-R scores) cannot be treated.  He also indicated that he was
    unaware of any definitive long-term treatment study confirming Dr. Klassens
    suggestion that psychopaths may be at enhanced risk of reoffending after or
    because of psychological treatment.

[81]

Thus,
    the questions whether psychopaths can be effectively treated and whether their
    risk of reoffending can be exacerbated by psychological treatment were squarely
    in play before the sentencing judge.  Her reasons reveal that she was alive to
    these issues, that she considered the conflicting expert evidence concerning
    the appellants treatability, and that she made findings of fact that were
    grounded in the evidence that she accepted.  Dr. Morissettes opinions on these
    matters are therefore not fresh.  His is but a fourth voice from the
    psychiatric community that speaks to the precise questions addressed by the
    psychiatric evidence at the sentencing hearing.  This is not evidence that is properly
    admissible as fresh evidence on appeal: see
e.g.

R. v. P.S.M.
(1992),
    77 C.C.C. (3d) 402, 59 O.A.C. 1 (C.A.).

[82]

At
    the end of the day, the sentencing judges conclusion that the appellants risk
    could not be adequately controlled in the community rested on a host of
    considerations, described above.  Dr. Klassens evidence of his understanding
    of the scientific literature concerning the potential deleterious effects of
    psychological treatment on psychopaths was only one of many factors that led
    her to conclude that there was no reasonable possibility of managing the
    appellants risk in the community.

[83]

In
    these circumstances, in my view, Dr. Morissettes opinions on these issues do
    not meet the fourth
Palmer
criterion for admitting fresh evidence on
    appeal.

(iii)

Appellants post-sentence progress

[84]

The final aspect of the appellants proposed fresh evidence concerns his
    suggested post-sentence progress while in custody.  In his report and
    testimony, Dr. Morissette offered the opinion that, based on the appellants
    therapeutic and pharmacological interventions since 2002, his response to those
    treatment interventions, and his willingness to change and accept treatment,
    there is now a reasonable possibility that his risk can be managed in the
    community.  In other words, based on the appellants progress and treatment
    gains in prison, there is reason to conclude that the public may be adequately
    protected from his risk of reoffending.

[85]

In
    my opinion, this courts recent decision in
R. v. Sipos
, 2012 ONCA
    751, 297 C.C.C. (3d) 22, leave to appeal to S.C.C. granted, [2013] S.C.C.A. No.
    157
[5]
is dispositive of whether this evidence is admissible on appeal.

[86]

In
Sipos
, this court held that the appellate process ought not to be a
    forum to reassess a dangerous offender designation based on the offenders
    alleged post-sentence progress.  Rather, when it is asserted that an offender
    has made therapeutic gains while in custody, the Parole Board is best
    positioned to decide whether and when the offender should be released into the community.
    As Doherty J.A. explained in
Sipos
, at para. 21:

Appellate review is fundamentally an error correcting exercise.
    It looks backward to the decision under appeal. While appellate review is
    sometimes undertaken with the benefit of evidence not before the trial judge,
    the question always remains  did the court below fall into reversible error
    when it made the decision under appeal?  The possibility that a different
    decision might be made were the appellate court to consider the same issue
de
    novo
as of the time of the appeal (in this case some 14 years after the
    trial judge) is irrelevant to appellate review.

[87]

Justice
    Doherty continued, at paras. 22 and 23:

The distinction between review for an error at the original
    proceeding and an assessment of the offenders status at the time of the appeal
    is no mere formalism.  The distinction is essential to the principle of
    finality, a core value in the justice system.  If this court decides to allow
    the appeal, there must be a new sentencing hearing.  Everyone involved in that
    hearing, including the victims caught up in the relevant matters underlying the
    dangerous offender proceedings, will be brought back to the dangerous offender
    hearing stage of the process.  The Crown must attempt to reconstitute its case
    years after the fact.  More importantly to the proper administration of
    justice, victims may be required to undergo the further trauma of new
    proceedings at a time when they could justifiably have believed that the
    horror, no doubt associated with reliving the relevant events in a courtroom,
    was long behind them.

I accept that the difficulties described above are inherent in
    appellate review whenever it leads to an order for a new hearing.  They are
    not, in my view, however, necessary to do justice to the appellant in a case
    like this one, where material relied on to support the claim for a new hearing
    offers no support for the assertion that there was a meaningful error made at
    the initial proceeding.  Where an offenders real claim is that he has
    progressed to the point that his status should be reassessed, an appeal from
    the original decision is not the appropriate mechanism by which to achieve that
    new assessment.

[88]

As
    Doherty J.A. observed in
Sipos
, the principle of finality is
    foundational to the criminal justice system.  It is fully engaged where, as
    here, no error at the original sentencing hearing having been established, an
    offender seeks a reassessment of his or her designation as a dangerous offender
    based on alleged post-sentence progress, including willingness to undergo
    treatment.  As
Sipos
holds, it is the statutory duty of the Parole
    Board to assess an offenders status on a regular basis and to determine
    whether any changes in his or her circumstances, if proven, warrant release: see
    also
R. v. J.M.
(2001), 156 C.C.C. (3d) 97, 147 O.A.C. 388 (C.A.);
R.
    v. T.L.
, 2008 ONCA 766.

[89]

I
    make these additional observations.  First, in opposing the admission as fresh
    evidence of Dr. Morissettes opinion regarding the appellants suggested
    post-sentence treatment gains, the Crown argues that his opinion is
    speculative, based on incomplete information and, in effect, of insufficient
    reliability to alter the conclusion that the appellants high risk of reoffending
    is not manageable in the community.

[90]

In
    my view, there may well be substance to these criticisms.  For example,
    although Dr. Morissette suggests that the appellant was given Provera  an
    anti-androgen drug  in June of 2007 and at the time of his report in July of
    2008, it is unclear whether and for how long this treatment continued
    thereafter, and how the therapeutic effects of the medication were monitored.
    Moreover, Dr. Morissette suggested that: from what we know, [the appellant]
    responded well.  But the basis of this opinion appears to be the appellants
    own self-reports and repeated phallometric testing in 2001.  Both of these
    methods for assessing the appellants response to treatment were rejected by
    Drs. Klassen and Fedoroff and, ultimately, by the sentencing judge.  Suffice to
    say that it will be for the Parole Board to determine the extent and
    reliability of the appellants alleged post-sentence therapeutic gains.

[91]

Finally,
    as I have mentioned, the Crown has filed fresh evidence, without objection by
    the appellant, in the form of the appellants 2006 to 2012 Parole Board of
    Canada reports.  I note that in its most recent report before this court, from
    2012, the Parole Board detailed the institutional programming undertaken by the
    appellant and his response to that programming.  The Board indicated that the
    appellants risk of general and sexual recidivism remains high, that further
    therapeutic work by the appellant is necessary  indeed imperative  and that
    the appellant himself has acknowledged both that he is still attracted to young
    girls, and that he continue[s] to have a long way to go in order to
    contemplate any form of release.

[92]

It
    does not appear that Dr. Morissettes report was before the Parole Board.  The
    reasons for this are unclear.  It will be for the Parole Board to determine,
    based on Dr. Morissettes evidence if it is filed with the Board, whether the
    appellants risk has been reduced to a level justifying his release into the
    community.

(f)

Conclusion Concerning Appellants Fresh Evidence

[93]

For
    the reasons given, I conclude that the appellants fresh evidence application
    should be dismissed.  The proffered fresh evidence either fails to meet the
    fourth
Palmer
criterion for admission on appeal or, as I have
    described, it relates to matters properly to be dealt with by the Parole Board,
    rather than on appeal.

D.      Disposition

[94]

Accordingly, I would dismiss both the appellants fresh evidence
    application and his sentence appeal.

Released:

APR 23 2014                                    E.A.
    Cronk J.A.

EAC                                                  I
    agree Gloria Epstein J.A.

I
    agree M.L. Benotto J.A.

[1]
The long-term offender provisions were introduced to the
Criminal Code
in 1997 (S.C. 1997, c. 17, s. 4).

[2]
The experts opinions diverged on the nature of the appellants primary paraphilia.
    Drs. Bradford and Fedoroff regarded it as urophilia, while Dr. Klassen viewed
    it as heterosexual pedophilia.  However, the experts were unanimous that the
    appellant suffers from both types of paraphilia.

[3]
According to Drs. Klassen and Fedoroff, sertraline may have been administered
    for the appellants symptoms of depression, though it may also have the side
    effect of reducing sex drive.

[4]
Like Drs. Bradford and Fedoroff, Dr. Morissette regards urophilia, rather than
    heterosexual pedophilia, as the appellants primary paraphilia.  In this
    respect, his opinion of the appellants disorders differs from that of Dr.
    Klassen.

[5]
The appeal to the Supreme Court of Canada in
Sipos
was argued on April
    15, 2014.  Judgment was reserved.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Kampe, 2014 ONCA 255

DATE: 20140402

DOCKET: C56366

Sharpe, Cronk and Hourigan JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Brian Kampe

Appellant

Ernest J. Guiste, for the appellant

Kevin Wilson, for the respondent

Heard and released orally: March 27, 2014

On appeal from the conviction entered on October 12, 2011
    and the sentence imposed on January 26, 2012 by Justice Katherine B. Corrick of
    the Superior Court of Justice, sitting without a jury.

ENDORSEMENT

[1]

The appellant was convicted of possession of 5.06 grams of crack cocaine
    for the purpose of trafficking.  He submits that the trial judge erred in law by
    failing to appreciate and consider the s. 15
Charter
violation he
    raised at trial and further erred in her analysis of his allegation of racial
    profiling.

[2]

We reject these arguments for the following reasons.

[3]

First, the appellant did not bring any motions or applications at trial
    to either exclude evidence or stay the proceeding based on a violation of his
    s. 15
Charter
rights. Rather, the allegation of racial profiling was
    untethered to any specific request for a remedy.

[4]

Second, and in any event, the trial judge considered and rejected the
    racial profiling allegation in the context of her analysis of the appellants
    submission that the police officers fabricated allegations against him and
    produced the crack cocaine to substantiate their false allegations.  She accepted
    the police officers evidence that they did not target the appellant because he
    is an African-Canadian and that they did not plant evidence. In contrast, the
    trial judge found that the appellant was not a credible witness. This was a
    credibility finding that was open to the trial judge to make on the evidence
    before her.

[5]

Third, the trial judge also considered the appellants related
    submission that an adverse inference should be drawn by reason of the failure
    of the Crown to call an unidentified woman who was in the accuseds rental
    vehicle at the time of his arrest.  The trial judge noted that it was unusual
    that the police did not record the name of the woman, but concluded that she
    was unable to infer that the unidentified woman would have supported either the
    appellants version of events or the police officers version.

[6]

Again, this was a conclusion that was open to the trial judge to make on
    the evidence and there was certainly no obligation on the Crown to locate this
    witness, especially given that the appellant testified that at the time of his
    arrest, he knew the unidentified womans name, telephone number and the area
    where she resided.

[7]

The sentence has been served in this case and the sentence appeal has
    been abandoned.

[8]

The conviction appeal is dismissed.

Robert J. Sharpe J.A.

E.A. Cronk J.A.

C.W. Hourigan J.A.


WARNING

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

An order excluding the public and restricting
    publication made 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. Karimi, 2014 ONCA 320

DATE: 20140428

DOCKET: C54078

Rosenberg, Cronk and Juriansz JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Ali Karimi

Appellant

Alan D. Gold and Joel N. Myskiw, for the appellant

Tracy Kozlowski, for the respondent

Heard: March 24, 2014

On appeal from the convictions entered on June 6, 2011 by
    Justice W.J.L. Brennan of the Superior Court of Justice, sitting with a jury,
    and the sentence imposed on November 13, 2012 by Justice Lynn D. Ratushny of
    the Superior Court of Justice.

By the Court:

[1]

Justice Brennan of the Superior Court of
    Justice, sitting with a jury, entered convictions against the appellant on two
    counts each of extortion and criminal harassment, and one count of attempted
    extortion. Justice Ratushny sentenced him to a three-year custodial sentence. The
    appellant appeals from the convictions and seeks leave to appeal from the sentence.

A.

Facts

[2]

The appellant, Ali Karimi, owns and operates a
    series of 24-hour convenience stores in Ottawa called Zesty Market. The convictions
    arise from the appellants threats to three employees that he would call the
    police and report that each had been stealing from him, and that each would
    suffer grave consequences if he did not give the appellant money. In total, the
    appellant obtained almost $50,000 from the complainants.

(1)

Yashar Kablou: extortion and criminal harassment

[3]

Kablou was born in Iran and immigrated to Canada
    in 2004. At the time of the offences in 2007, he was a 24-year-old university
    student.

[4]

On April 28, 2007, Kablou was unexpectedly
    called into work. At the time, the appellant had not paid him for his last four
    shifts. Kablou told the appellant that if he went to work, he expected to
    receive the amounts owing to him, and the appellant agreed. When he arrived for
    his shift, Kablou asked the appellant if he would get paid. The appellant said
    yes, and then left.

[5]

Around 10 p.m., Kablou, who was moving to
    Waterloo the next day, concluded the appellant would not pay him and took $300
    out of the cash register. He left a note indicating he had taken the money in
    lieu of a paycheck. Approximately 15-30 minutes later, the appellant ran into
    the store and said he had seen Kablou take $300 from him, and told Kablou he
    was calling the police. The appellant demanded that Kablou pay him about
    $50,000. The appellant instructed Kablou to acknowledge in writing that he had
    been stealing from him. Kablou wrote: I took $300 and I have to give
    $50,000. The next day, Kablou delivered three cheques of $2,000 each to the
    store. The appellant called Kablou and told him to change one cheque to
    $50,000, which Kablou did.

[6]

The facts underlying the criminal harassment count
    began on May 1, 2007, after Kablou moved to Waterloo. Over the following weeks,
    the appellant demanded additional amounts of money totaling several thousand
    dollars. Kablou transferred various amounts to the appellant, and wrote him some
    post-dated cheques. The appellant told Kablou earlier that he had been a member
    of the Iranian Revolutionary Guard.

(2)

Farzad Panahi: extortion and criminal harassment

[7]

Panahi came to Canada in 2005 from Iran. He
    worked for the appellant from late 2005 to February 2008. At the time of the
    offences, he was a manager at a number of stores. The appellant had told Panahi
    that he was the former head of the Revolutionary Guard in Tehran.

[8]

The facts underlying the extortion offence took
    place on February 4, 2008. Panahi confirmed the store reconciliations from the
    weekend were accurate. Panahi then found an envelope containing $380 in cash near
    the cash register. He called the appellant and told him about it. The appellant
    told him to hold the envelope up to the security camera and then put it back
    where he had found it. Later that day, the appellant came into the store and
    began to yell at Panahi. The appellant accused Panahi of stealing from him,
    telling him he would call the police and immigration authorities and that Panahi
    would go to jail and be deported. The appellant also said he knew lots of
    people back home. The appellant told Panahi he would not contact the
    authorities if Panahi confessed to stealing from him. Panahi was frightened,
    and testified that he agreed to everything the appellant said to protect his
    family and his own life. The appellant told Panahi to come into his office and
    write it down. He showed Panahi the $50,000 cheque from Kablou. At the
    appellants insistence, Panahi wrote on a piece of paper that he had taken
    $35,000 from the appellant.

[9]

They then went to a branch of the
    Toronto-Dominion Bank, where Panahi cashed a GIC and gave the appellant a
    certified cheque for $20,000. The appellant forced Panahi to empty his chequing
    account, which contained $5,000, and to request his bank statements for the
    previous six months. By the end of the day, the appellant had obtained all of
    the demanded bank statements.

[10]

The criminal harassment began the next day,
    February 5, 2008. Panahi went back to the bank to cash another GIC. He brought
    the appellant a certified cheque for $8,500. The appellant began calling Panahi
    every day, demanding more money. Panahis wife went to see the appellant and
    tried to give him her
jewellery
to resolve the matter.
    She realized there was no end to the money he wanted from them. By February 10,
    2008 Panahi had given the appellant a total of $37,000. Panahi testified that
    he was afraid that if he spoke to the police he would be deported and arrested
    in Iran. On February 12, 2008, he spoke to the police.

(3)

Alireza Khodabandeh: attempted extortion

[11]

Khodabandeh came to Canada from Iran in 2000
    when he was 25 years old. He worked and became a manager at one of the
    appellants convenience stores. During his employment, Khodabandeh heard the
    appellant threaten other employees on many occasions, and accuse them of
    stealing money.

[12]

On February 4, 2008, the appellant accused
    Khodabandeh of stealing money. He also told Khodabandeh that he knew he was
    gay, and said that the gays had to be returned to Iran and hung. He told
    Khodabandeh that he was going to get $40,000 from Khodabandehs family in Iran,
    and then ten times more. Khodabandeh had earlier heard the appellant say that
    he worked for the Iranian Revolutionary Guard and that he had friends back
    home. Eventually, the appellant demanded that Khodabandeh confess to theft,
    produce his bank statements and disclose other personal information to the
    appellant, and commence monthly payments for the monies he had stolen.

[13]

Khodabandeh spoke to a lawyer and learned what
    extortion was. Khodabandeh returned to work over the following days and began
    recording the appellants threats to him.

B.

ISSUES

[14]

The appellant submits that the trial judge erred
    by failing to relate the evidence to the issues in the case, by expressly
    permitting the jury to consider the evidence cumulatively on all the counts if
    the jury concluded there was a pattern of similar conduct, and by providing
    erroneous instructions regarding the law of extortion and harassment. The
    appellant also submits the Crown exceeded the bounds of proper argument in
    inviting the jury to reject the authenticity of audio recordings put in
    evidence by the appellant and that the trial judges instructions to the jury
    regarding the authenticity of the recordings were deficient. The appellant
    tenders fresh evidence that the audio recordings are in fact authentic. Finally,
    the appellant submits that the trial judge erred in his sentencing analysis in
    various ways, that the range of fit sentences for these offences has an upper
    limit of two years, and that the appellant should have received a
    community-based disposition.

C.

CONVICTION APPEAL

(1)

Failure to
    relate the evidence to the issues

[15]

The appellant submits that the trial judge
    failed to relate the evidence to the essential elements of the charges. The
    concern is that, after referring to the elements of the offences, the trial
    judge then merely recited all the evidence of a particular complainant without
    relating the pieces of evidence to a particular element.

[16]

We are satisfied that the charge left the jurors
    with a clear understanding of the

elements of
    the offences and the defence
position. The trial judge
    referred to the essential parts of the evidence. The prosecution and defence
    cases were not complex. The defence position at trial was that the appellants
    conduct toward each complainant was not threatening, but a heavy-handed, though
    not illegal, attempt to recover money that he actually was owed or reasonably
    believed he was owed. Given that each of the complainants had testified to
    similar conduct by the appellant, and the defence position in regard to each
    was the same, it was unnecessary for the trial judge to provide the jury with a
    repetition of the elements of each count and the evidence related to each count.

[17]

The trial judge invited both parties to provide
    him with written outlines of their positions. In his charge, he recited the
    theories that the Crown and the defence had provided to him. Furthermore, the
    defence received the draft jury charge, and a pretrial conference was held.
    After the jury charge was delivered, there was no objection to the manner in
    which the trial judge articulated the defence position. In these circumstances,
    it is difficult for the appellant to argue now that the charge left the jury
    with an inadequate understanding of the elements of the offences or the defence
    position in relation to those offences.

[18]

We
    would not give effect to this ground of appeal.

(2)

Similar fact evidence

[19]

The
    appellant submits that the trial judge erred in directing the jury that the
    evidence of the three complainants could be used as similar fact evidence. He
    also submits that the trial judge failed to adequately direct the jury
    concerning the use of the evidence and, in particular, failed to point out
    important differences in the three accounts.

[20]

The
    defence position at trial was that the three complainants had colluded against
    the appellant to have him charged criminally. The defence did not bring an
    application for severance. Thus, the evidence from the three complainants would
    be placed before the jury. The defence relied upon the similarity in the
    accounts of the complainants to support the position that the three
    complainants had colluded to fabricate a story. Counsel for the appellant did
    not object to the inclusion of the similar fact portion of the charge upon
    receiving the draft of the charge, or after the charge had been delivered. Given
    the defence position, we see no error in the trial judge failing to conduct a
    formal application to determine the admissibility of the three accounts as
    similar fact evidence.

[21]

In
    oral argument, counsel provided the court with a written summary of the
    evidence of the three complainants to show that there were significant
    differences in their evidence. He submits that the charge to the jury was
    deficient in failing to highlight some of these differences.

[22]

We
    disagree. The charge to the jury focused on the allegation of collusion. The
    charge also accurately related how the evidence could be admitted to support
    the prosecution theory. The complaint now made by the appellant was not advanced
    at trial and is inconsistent with the defence position of collusion. In our
    view, the jury would have had a sufficient understanding of the defence
    position with respect to the use of the three complainants evidence. Their
    accounts were not identical; for example, the appellant allegedly used slightly
    different threats against each of the victims. However, given the issues in the
    case, especially that identity was not in issue, there was sufficient similarity
    that the evidence of the three victims was admissible as similar fact evidence.
    Since, as we have said, the jury would have had a sufficient understanding of
    the prosecution and defence cases for proper use of the complainants evidence,
    we would not give effect to this ground of appeal.

(3)

The law of extortion

[23]

The
    appellant submits that, as a matter of law, a threat to call the police,
    standing alone, can never constitute extortion.

[24]

Again
    we disagree. As this court pointed out in
R. v. H.A.
, [2005] O.J. No.
    3777, the context must be considered in determining whether an otherwise
    apparently lawful threat (i.e., to call police) constitutes an extortive threat.
    A threat to call the police unless the complainants gave the appellant money
    could amount to extortion if the jury was satisfied the appellant knew the
    complainants had not stolen from him or did not reasonably believe they had
    stolen money from him. The charge did not suggest that a mere threat to call
    police would alone be sufficient to constitute extortion.

[25]

The
    appellant points out that the indictment particularized the alleged extortion
    as threats. Thus, he submits it was an error for the trial judge to tell the
    jury that a threat includes an accusation.

[26]

We
    reject this complaint. We are satisfied that the charge read as a whole made
    clear to the jury that the alleged extortion consisted of threats to call the
    police based on the appellants false accusations that the complainants had
    robbed him. As the charge was framed, mere accusations would not have amounted
    to the requisite threat element of the offence of extortion.

(4)

The law of harassment

[27]

The
    appellant objects that the trial judge told the jury that: In this case
    criminal harassment is made out if you find beyond a reasonable doubt that
    there was repeated communication that resulted in the person being harassed.
    He submits this oversimplified instruction failed to make clear that a
    complainants fear of safety is a key element of the offence.

[28]

This
    instruction was given in a recharge after defense counsel had objected that the
    Crowns submissions to the jury had not indicated that the unwanted
    communication needed to be repeated, as had been particularized in the
    indictment. It was for that reason the trial judge told the jury they had to
    find repeated communication that resulted in harassment. In his main charge,
    the trial judge had provided a full and accurate recitation of the six elements
    required for proof of harassment. We would not give effect to this ground of
    appeal.

[29]

The
    appellant also suggests the trial judges explanation of the phrase lawful
    authority implied to the jury there had to be an express legal provision that
    authorized the appellants actions.

[30]

We
    do not agree. The trial judge provided clear instructions that the jury should
    consider whether the appellant believed that he was recovering money from
    Kablou that Kablou had stolen from him and whether it was lawful to attempt to
    recover it. This instruction made clear that express legal authority for the
    appellants actions was not required  if the appellant had an objectively
    reasonable belief that he had been stolen from, it would follow that he had
    lawful authority to seek recovery of the stolen money. We further note, as the
    appellant acknowledges, that the trial judges impugned instruction conformed to
    the standard jury charge on this issue set out in Watts Manual of Criminal
    Jury Instructions.

(5)

The Crowns closing address and the Fresh Evidence

[31]

In
    his closing address, the Crown questioned the authenticity of audio recordings
    relied on by the defence in which one of the complainants (Panahi) allegedly confessed
    to stealing from the appellant.

[32]

Contrary
    to the appellants argument, the Crowns closing was strenuous but was not
    outside the bounds of legitimate argument. While an aspect of the Crown
    submission respecting the defence witness Zarei concerned the audio recordings,
    the main position taken by the prosecution was that Zarei was not a credible
    witness. There was a sufficient basis for this position because of the
    relationship between Zarei and Panahi. Further, there was sufficient material
    before the jury to allow Crown counsel to allege that the tapes were not an
    authentic confession by Panahi. Crown counsel has provided a long list of
    material in her factum that would allow for this inference to be drawn.

[33]

On
    this appeal, the appellant sought to tender fresh expert opinion evidence that
    the audio recordings were authentic. The fresh evidence is not admissible. The
    expert opinion could have been obtained earlier and offered at trial. More to
    the point, the expert opinion evidence, if it had been introduced at trial,
    would not have affected the outcome of the trial. Given that the three
    complainants testified that the appellant had intimidated and bullied them into
    confessing they had stolen money from him, the audio recordings cannot be
    regarded as potentially decisive. Finally, the fresh evidence does not meet the
    prosecution theory that the voice alleged to be that of Panahi was scripted and
    was not his real voice.

D.

Sentence appeal

[34]

We
    have not been persuaded that there is any basis for interfering with the
    sentence. The sentencing judge committed no errors of principle. She considered
    all the relevant factors and weighed them appropriately. Absent any error of
    principle, there is no basis to interfere with the sentence imposed.

[35]

The
    appellant submits that the trial judge placed undue emphasis on the decision of
    this court in
R. v. Lindsay
, [2009] O.J. No. 2700. We disagree. The
    trial judge recognized that there were differences between this case and
Lindsay
and took these differences into account.

[36]

These
    were serious offences involving threats to three complainants, two of whom were
    forced to give the appellant large amounts of money. The appellant used his
    alleged association with the Iranian Revolutionary Guard to threaten the
    complainants, some of whom had families back in Iran. Given these factors, the
    sentence imposed was fit.

E.

Conclusion

[37]

The
    conviction appeal is dismissed. Leave to appeal sentence is granted, but the
    sentence appeal is also dismissed.

Released: April 28, 2014

(EAC)
    M. Rosenberg J.A.

E.A. Cronk J.A.

R.G. Juriansz J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Kukemueller, 2014 ONCA 295

DATE: 20140417

DOCKET: C57836

Sharpe, Gillese and Rouleau JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Justin Kukemueller

Appellant

Justin Kukemueller, appearing
    in person

Gerrit Kukemueller,
    appellants father appearing on his behalf

Michael Medeiros, for the
    respondent

Heard: March 11, 2014

On appeal from the judgment of Justice Mary E. Vallee of
    the Superior Court of Justice, dated October 1, 2013 dismissing a summary
    conviction appeal from the conviction entered by Justice Lisa Cameron of the
    Ontario Court of Justice on August 31, 2012.

Sharpe J.A.:

[1]

Justin Kukemueller was convicted of causing a disturbance in or near a
    public place contrary to s. 175(1) (a) of the
Criminal Code
.

[2]

The charges arose from an incident that took place at a rural property near
    the Town of Buckhorn in the early evening on July 30, 2011. The local fire
    department received a call to attend the address of the appellant to deal with
    a car that was on fire. The car belonged to the appellants girlfriend,
    Caitlynn Wiles. It had crashed into a tree and it was on the appellants
    property. While en route to the fire, the fire department requested police
    assistance.

[3]

There was a crowd of young people at the scene. They appeared to have
    been drinking. The firefighters extinguished the fire. On arrival at the scene,
    the police officer learned that the vehicle fire may have been caused by people
    playing demolition derby. The police officer spoke to the appellant and to
    Ms. Wiles. They both smelled of alcohol. Ms. Wiles told the police officer that
    she had been driving the car when it hit the tree. The police officer arrested
    her for dangerous driving following which a struggle ensued between the police
    officer and Ms. Wiles. The appellant and some of his friends became upset. The
    police officer used her emergency button to request backup. The police officer,
    accompanied by one of the firefighters, took Ms. Wiles to the cruiser at the
    road and the crowd of young people started yelling. The appellant was upset and
    yelling and swearing.

[4]

More police arrived and, not long afterwards, so too did the appellants
    father driving an off-road vehicle. He was arrested for impaired driving.

[5]

At that point, the appellant reacted with a loud, profane and angry tirade
    against the police. About 22 people, including family members, friends,
    firefighters and police officers, were present. The appellant was arrested and
    charged with causing a disturbance. He was later charged with assaulting a
    civilian cell monitor at the police station.

[6]

The charges against Ms. Wiles were ultimately stayed. The charges
    against the appellants father were dismissed at trial on the basis that there
    were no reasonable grounds on which to arrest him and, therefore, his arrest
    was unlawful.

Trial

[7]

At trial, as on this appeal, the appellant was represented by his
    father. A number of issues were raised including several alleged breaches of
    the
Charter
. The focus of the defence was that the police were
    trespassers on the appellants property.

[8]

The trial judge found that the appellants behaviour had an effect on
    the other family and friends who were present and contributed to raising the
    tension at the scene amongst those people as well as the police. The
    appellants behaviour, she found, made things worse. She dismissed the
Charter
arguments and concluded that the appellant had caused a disturbance.

[9]

The assault charge was based on the allegation that the appellant had
    scooped water from the toilet, thrown it around and got some of it on the cell attendants
    pants. The trial judge was not satisfied that the appellant had deliberately
    splashed water on the attendant and she acquitted the appellant of that charge.

Summary conviction appeal

[10]

The
    appellants appeal to the Superior Court of Justice was dismissed.  Again the
    appellant was represented by his father who focussed on the argument that the
    police were trespassers and that as result, their actions were unlawful and
    that the appellants
Charter
rights were violated. The summary
    conviction appeal judge rejected those arguments and affirmed the trial judges
    finding that because the appellants conduct contributed to raising the
    tension at the scene, the offence of causing a disturbance was made out.

Issues

[11]

Mr.
    Kukemueller seeks leave to appeal to this court essentially on the same grounds
    advanced on the summary conviction appeal.

[12]

The
    test for leave to appeal from a summary conviction appeal is set out in
R.
    v. R.R
., 2008 ONCA 497 at para. 37

[13]

I
    see no merit in the submissions that the police were trespassers on the
    appellants property, that the appellants
Charter
rights were
    violated, or that the alleged disturbance did not occur in public or in a
    public place. I would refuse leave to appeal on those grounds

[14]

However,
    I would grant leave to appeal with respect to the legal elements of the offence
    of causing a disturbance. I recognize that both the trial and the summary
    conviction appeal judge cited the relevant case law. However, accepting the
    facts as found by the trial judge, in my respectful view, both the trial judge
    and the summary conviction appeal judge failed to apply the governing principle
    that emerges from the cases. This gives rise to an error of law: see
R. v.
    Morin
, [1992] 3 S.C.R. 286 at p. 294;
R. v. Luedecke
, 2008 ONCA 716,
    93 O.R. (3d) 89, at para. 48. As in
Morin
, my disagreement is with
    respect to the law and not the facts nor the inferences to be drawn from the
    facts. There is a legal issue of general public importance bearing upon
    interactions between the public and the police, and for that reason, I would
    grant leave to appeal.

Analysis

[15]

The
Criminal Code
, s. 175(1)(
a
) provides that everyone commits an
    offence who not being in a dwelling-house, causes a disturbance in or near a
    public place, (i) by fighting, screaming, shouting, swearing, singing or using
    insulting or obscene language

[16]

The
    leading case interpreting s. 175(1)(a) is
R. v. Lohnes
, [1992] 1 S.C.R.
    167. McLachlin J., writing for a unanimous court, stated at p. 171 that there
    are two elements to this offence, first, the commission of one of the
    enumerated acts; and second, that the commission of those acts caused a
    disturbance in or near a public place.

[17]

There
    is no doubt that by yelling and swearing at the police, the appellant committed
    one of the enumerated acts. The question is whether those acts cause[d] a
    disturbance in or near a public place.

[18]

In
Lohnes
, McLachlin J. reviewed the jurisprudence as it stood at the
    time as to the meaning of disturbance. She identified two lines of authority.
    Some cases adopted what she described at p. 173 as an expansive approach in
    which the offence was made out where the specified conduct disturbs or could
    reasonably be inferred as disturbing another person. Other courts took a more
    limited approach and rejected the proposition that the the mere disturbing of
    the peace or tranquility of one persons mind was sufficient.

[19]

McLachlin
    J. rejected the expansive approach and concluded, at p. 177, that for the
    second element of a disturbance to be made out, the enumerated conduct must
    cause an overtly manifested disturbance which constitutes an interference with
    the ordinary and customary use by the public of the place in question. She
    added, at p. 178 that disturbance in this context involves more than mere
    mental or emotional annoyance or disruption and, at pp. 178-9, that the aim of
    the offence is not the protection of individuals from emotional upset, but the
    protection of the public from disorder calculated to interfere with the
    publics normal activities and interference with the ordinary use of a
    place.

[20]

At
    pp. 180-1, McLachlin J. explained that the more restrictive and concrete
    approach, based upon an interference with the use of a public place rather than
    mental or emotional upset, provides a sound basis upon which to achieve a balance
    between the individual interest in liberty and the public interest in going
    about its affairs in peace and tranquility.

[21]

In
Lohnes
, the appellant had shouted obscenities at his neighbour from
    his own veranda. The Supreme Court held that even if this caused emotional
    disturbance or annoyance to the neighbour, it did not constitute a disturbance
    in or near a public place because upset does not amount to interference with
    the ordinary and customary use of the premises by the public.

[22]

Lohnes
was applied by this court in
R. v. Swinkels
, 2010 ONCA 742, 103 O.R.
    (3d) 736 where the accused was part of a group yelling obscenities outside a
    bar at closing time. The police heard the yelling, proceeded to investigate and
    the accused came towards them yelling further obscenities and holding out his
    arms with his middle fingers up. The police charged the accused with causing a
    disturbance and he was convicted. There was evidence that the appellants
    conduct fired up the crowd: see Lang J.A., dissenting, at para. 35. This is
    very similar to the trial judges finding in this case that the appellants
    conduct had contributed to raising the tension at the scene.

[23]

The
    majority (LaForme J.A., Feldman J.A. concurring) allowed an appeal from
    conviction, holding that even where the shouting is done and a crowd gathers,
    the Crown must still prove more to establish the second element of the offence,
    namely, that the conduct caused an externally manifested disturbance of the
    public peace, in the sense of interference with the ordinary and customary use
    of the premises by the public. The majority stated, at para. 18: Generally
    speakingshouting obscenities at police officers is not a disturbance in and of
    itself. The majority added, at para. 28: a public disturbance requires
    more than a crowd observing  or even shouting anti-police sentiments at
    police officers in the course of arrest.

[24]

As
    the majority in
Swinkels
noted, there are several cases rejecting the
    proposition that merely yelling obscenities at the police amounts to the
    offence of causing a disturbance. In
R. v. Osbourne
, 2008 ONCJ 134, 78
    W.C.C. (2d) 205 the trial judge acquitted an accused who hurled abuse at the
    police and attracted a crowd of ten to fifteen people who yelled anti-police
    sentiments. See also
R. v. Wolgram
(1975), 29 C.C.C. (2d) 536 (B.C.S.C.);
R. v. Peters
(1982), 65 C.C.C. (2d) 83 (B.C.C.A.);
R. v. L.A.
,
    2005 ONCJ 546, 72 W.C.B. (2d) 490.

[25]

In
    my view, the trial judge and the summary conviction appeal judge erred in law
    by concluding that the appellants conduct satisfied the second element of the
    offence  causing a disturbance in or near a public place  as defined in
Lohnes
and
Swinkels
. There was no evidence and no finding that the
    appellants conduct interfered with the publics normal activities or with the
    ordinary and customary use by the public of the place in question. Contributing
    to raising the tension at the scene of an interaction between the police and
    the public does not amount to the kind of disturbance that is required for this
    offence to be made out.

[26]

On
    appeal, the Crown relies on evidence that the appellants grandmother came out
    of her house and tried to calm him down. The appellants grandmother was simply
    concerned about his well-being. She thought that he would listen to her. She
    testified that she was upset but, as I have explained, emotional upset does
    not amount to a disturbance.

Conclusion

[27]

While
    I certainly do not condone yelling obscenities at the police, the issue for
    this court is not whether the conduct of the appellant was obnoxious or
    deplorable but whether it was criminal. In my view, it was not and it follows
    that this appeal should be allowed and the conviction for causing a disturbance
    set aside. I would deny the appellants request for costs as the circumstances
    of this case do not meet the stringent test for awarding costs against the Crown.

Robert J. Sharpe J.A.

I agree E.E. Gillese
    J.A.

I agree Paul Rouleau
    J.A.

Released: April 17, 2014