COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Hudson, 2020 ONCA 507

DATE: 20200812

DOCKET: C67855

Strathy C.J.O., Tulloch and Coroza JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Damian Hudson

Appellant

Dirk Derstine, for the appellant

Grace Choi, for the
    respondent

Heard: May 12, 2020 by video
    conference

On appeal from the convictions entered on June 18, 2019,
    by Justice Lawrence T. Feldman of the Ontario Court of Justice.

Tulloch J.A.:

I.

overview

[1]

On April 30, 2018, a young man was stabbed during an altercation in
    Scarborough.

[2]

A few days later, the appellant, Damian Hudson, was arrested and charged
    in connection with the stabbing. He was subsequently convicted of aggravated
    assault and carrying a weapon for the purpose of committing an offence.

[3]

Mr. Hudson now appeals his convictions. For the reasons that follow, I
    would dismiss the appeal.

II.

FACTS AND PROCEDURAL HISTORY

[4]

At approximately 3:34 p.m. on April 30, 2018, Nirushan Jude was stabbed
    in the chest during an altercation with another man on Kennedy Road in
    Scarborough. The injury caused a rupture to his right ventricle, leading to full
    cardiac arrest and an anoxic brain injury, leaving Mr. Jude with cognitive and
    functional impairments.

[5]

After stabbing Mr. Jude, the perpetrator fled the scene, running through
    a parking lot and neighbouring streets.

[6]

A few days later, on May 2, 2018 the appellant was arrested and charged
    with attempted murder, aggravated assault, and carrying a weapon for the
    purpose of committing an offence, contrary to ss. 239(1), 268(2), and 88(1) of
    the
Criminal Code
, R.S.C. 1985, c. C-46. Based on a review of his intake
    photographs taken at the time of his arrest, his physical appearance was as
    follows: he was approximately 6 feet tall (185 centimetres), with a slim build
    (163 pounds), and a medium complexion; he had a nearly-shaved head, with a
    clean hairline running across his forehead and extending down into a thin
    beard; the hair on his chin was thicker and protruded down slightly; he had
    tattoos on his right forearm, his left wrist, his left hand (near the thumb),
    and his left forearm (along the backside). He was living at 30 Eppleworth Road,
    an apartment complex located in close proximity to where the stabbing occurred.

[7]

At trial, the sole issue was identification. In support of its case, the
    Crown adduced three forms of evidence: eyewitness evidence, video surveillance
    evidence, and recognition evidence.

Eyewitness evidence

[8]

There were three eyewitnesses who testified to the altercation or the
    events immediately following.

[9]

The first eyewitness, a young person, M.H., testified that she had been
    walking from school with her sister when she heard two men arguing. She claimed
    that one of the men fell to the ground. The man who was still standing was tall,
    light skinned, and wearing jeans and a blue windbreaker with the hood on. He
    was holding something long and black in his hand. She claimed it looked like a
    belt.

[10]

The
    second eyewitness, Chelsea Haywood-Alexander, was in a romantic relationship
    with Mr. Jude at the time of the incident. She testified that she arrived at
    Eglinton and Kennedy a few minutes before the altercation. She was across the
    street from Mr. Jude and the perpetrator when she heard yelling. She approached
    them and attempted to break up the fight. While she was in between the two men,
    facing Mr. Jude, the perpetrator stepped forward, reached around her, and hit
    Mr. Jude in the chest. Mr. Jude fell to the ground and the perpetrator
    ran. She called 911 at approximately 3:35 p.m.

[11]

With
    regards to the perpetrators appearance, Ms. Haywood-Alexander testified that
    he was tall (over 6 feet), very skinny, and was wearing a blue windbreaker,
    like navy blue, and he had the hood over his head and was wearing jeans, like a
    washed-out blue jeans. In examination-in-chief, she testified that she had
    seen his face pretty clearly and could remember certain of his features,
    including his dark skin, wide eyes, small nose, and chiseled cheeks. However,
    as this evidence was inconsistent with her police statement  in which she
    stated that she had not seen his face  the Crown was permitted to
    cross-examine her pursuant to s. 9(2) of the
Canada Evidence Act
, R.S.C.
    1985, c. C-5. On cross-examination, she claimed that she had not told police
    the details of his face because she didnt have enough information to provide
    an accurate description for the purpose of identification. She claimed that her
    memory was still fresh and she was not as emotional as she had been at the time
    of her original statement.

[12]

Upon
    returning to examination-in-chief, Ms. Haywood-Alexander testified that the
    appellant [did not] look like the guy. She claimed that his skin colour was
    different, his nose did not match, and he did not have a distinctive jawline.
    She also noted that he appeared to be shorter and not lanky.

[13]

The
    final eyewitness to testify was Jakov Papadopoulos. Mr. Papadopoulos testified
    that at around 3:35 p.m. or 3:40 p.m. on April 30, 2018, he had been in his
    basement when he saw a figure walk past a window, potentially trespassing on
    his property. He went upstairs and into his driveway where he saw a tall
    skinny guy walking away with a hoodie, hoodie over, over his head. He said
    that, at some point, the hood was down and he saw the back of the persons
    head. He said it looked like a black man with short hair. During
    cross-examination, Mr. Papadopoulos testified that the appellant looked
    [d]ifferent altogether from the skinnier dude he had seen. He claimed that
    this guys  hes like Frankenstein there, you know, hes huge.

Video surveillance evidence

[14]

The
    Crown adduced video surveillance evidence from various cameras in the area
    immediate to where Mr. Jude was stabbed. The videos establish the following
    timeline.

[15]

At
    approximately 1:15 p.m., surveillance footage of the courtyard at 30 Eppleworth
    Road shows a black man leaving the building. He has a nearly-shaved head and is
    wearing blue jeans and a dark blue sweater or jacket with a hood.

[16]

At
    approximately 3:35 p.m., surveillance footage from cameras at 711 Kennedy
    Road show an altercation between two people. One person is seen dropping to the
    ground, while the other runs away in a southbound direction before heading
    east. The person running appears to be wearing a hoodie with the hood up.

[17]

At
    approximately 3:38 p.m., surveillance footage from 27 Merrian Road, which is
    located southeast of where Mr. Jude was stabbed, appears to show a young, black
    male with a shaved head and facial hair walking south in a laneway toward the
    30 Eppleworth Road apartment complex. He appears to be wearing dark jeans and a
    black t-shirt with a colour logo on the front. He is carrying a piece of dark
    clothing in his right hand.

[18]

Approximately
    30 seconds later, surveillance footage from an entrance at 30 Eppleworth Road
    shows a black man, with a nearly-shaved head entering the building. He is
    wearing blue jeans and a black t-shirt.

[19]

At
    approximately the same time, surveillance footage from the front lobby at 30
    Eppleworth Road shows a black man, with a nearly-shaved head and facial hair (a
    thin moustache and a goatee extending from his chin) entering the building. He
    is wearing blue jeans and a black t-shirt, with blue lettering on the front. He
    is carrying a dark blue sweater or jacket, and there appears to be some
    discolouration on his right forearm and left wrist.

Recognition evidence

[20]

At
    trial, the Crown brought an application to adduce evidence from two police
    officers, Detective Glen Cecile and Detective Constable Michael Reeves, in an
    effort to assist the trial judge in identifying the appellant as the person in
    the surveillance footage. Both officers testified as to their relationship with
    the appellant.

[21]

Detective
    Constable Reeves was involved in the investigation of the stabbing of Mr. Jude.
    He was informed by another officer that video surveillance appeared to show
    someone entering 30 Eppleworth Road and going to the second floor. He began
    checking information on the residents and recognized the name of Damian Hudson.
    He claimed that he was aware of the appellant through general bulletins at the
    police station, as well as through personal interactions. He testified that
    sometime between April 2015 and June 2015, he reviewed pictures of him before
    heading out on patrol, where he briefly saw and chased a man, who he believed
    to be the appellant, in a stairwell of a building. He also stated that he
    believed he saw him [m]aybe three times in the community over a number of
    years. He testified that he recognized the appellant as the person in the
    videos taken on the afternoon of April 30, 2018 based on the descriptions
    provided by civilian witnesses, an examination of the appellants images in IntelliBook
    (the program used by police to record photographs and fingerprints of persons
    charged with an offence), and his previous dealings with him. He acknowledged
    in cross-examination that, after he reached his conclusion, he informed his fellow
    officers, including Detective Cecile, that he believed the person was Damian
    Hudson.

[22]

Detective
    Cecile was also involved in the investigation. He testified that he knew the
    appellant through a number of previous interactions: in May 2014, as part of a
    criminal harassment investigation, he reviewed several video images and stills
    of the appellant and compared them to his images in IntelliBook; in August
    2014, at a one day trial related to the criminal harassment investigation,
    Detective Cecile saw the appellant for most of the day; and Detective Cecile
    had reviewed video images of the appellant in an investigation of a potential
    assault on a court officer.

[23]

At
    trial, Detective Cecile testified that he recognized the appellant as the
    person in the videos from the afternoon of April 30, 2018 based on his
    knowledge of the appellants slender build, shaved head, and distinctive
    facial hair (a thin goatee with a tuft of hair on his chin). His belief was
    strengthened by the fact that the appellant lived at 30 Eppleworth Road and has
    tattoos which appear to match the discolourations seen on the person in the
    video. In his testimony, he acknowledged that Detective Constable Reeves
    mention of the appellant planted [the] seed in his mind that the person was,
    in fact, Damian Hudson. He explained that he was aware of the dangers of
    confirmation bias but claimed that his conclusion was based on an objective
    assessment of the evidence and on his prior dealings with the appellant.

Trial judges decision

[24]

After
    the six days of trial, the trial judge found that, based on the surveillance
    videos and still photographs of the appellant, there was no doubt that he had
    committed the offences in question. The appellant and the person captured on
    the video shared common tattoos and facial features, including a similarly
    shaped face, a near-shaved head, a moustache, a chin-strap goatee, and a
    similar nose and ears. He found that the discolourations seen on the left wrist
    and right arm of the person in the video matched the placement of tattoos on
    the appellant. The clothing of the man also matched the description provided by
    the various witnesses. The trial judge further noted that [o]f particular
    significance was the recognition evidence of the two police officers, who had
    a prior acquaintance with the appellant. He placed little weight on the
    exculpatory evidence of Ms. Haywood-Alexander and Mr. Papadopoulos, as Ms.
    Haywood-Alexanders description was unreliable and imprecise, and Mr.
    Papadopoulos had not seen the persons face.

[25]

The
    trial judge concluded that the route taken by the appellant, the common
    physical descriptors, and the identification by both the court and police
    officers suggested that the only reasonable inference was that the appellant
    had committed the offences. Beyond speculation, there was no basis to infer
    that the appellant had merely been in the wrong place at the wrong time. The
    trial judge convicted the appellant of aggravated assault and carrying a weapon
    for the purpose of committing an offence.

[26]

On
    the charge of attempted murder, however, the trial judge found that, in light
    of evidence that the altercation had escalated quickly, there was a reasonable
    doubt as to whether the appellant had the specific intent to kill Mr. Jude. He
    acquitted the appellant of attempted murder.

III.

Issues on appeal

[27]

The
    appellant appeals his convictions on three grounds:

1)

did the
    trial judge err by improperly admitting the recognition evidence of the two
    police officers?

2)

did the
    trial judge err by improperly relying on the recognition evidence in reaching
    his conclusion on identification?

3)

was the
    trial judges verdict unreasonable?

IV.

Analysis

(1)

Did the trial judge
    err by improperly admitting the recognition evidence of the two police
    officers?

Governing principles

[28]

Where
    there is video or photographic evidence capturing the commission of an offence
    and the identity of the perpetrator is at issue, one way in which the Crown may
    seek to prove that the accused is, in fact, the perpetrator is by adducing
    evidence from a witness who is sufficiently familiar with the accused to
    recognize them and assist the trier of fact in determining whether the accused
    is the person seen:
R. v. Leaney
, [1989] 2 S.C.R. 393.

[29]

In
    order for such recognition evidence to be relied upon by the trier of fact, two
    distinct inquiries must first be undertaken. To begin, the trial judge must
    determine whether the evidence meets the threshold requirements for
    admissibility. If this test is met, the trier of fact must then assess the
    evidence to determine its ultimate reliability and the appropriate weight, if
    any, that can be properly attributed to it.

[30]

In
R. v. Berhe
, 2012 ONCA 716, 113 O.R. (3d) 137, this court outlined the
    test for threshold admissibility of recognition evidence. Blair J.A. labelled
    the test as the prior acquaintance/better position test. The court set out
    two steps that must first be met before threshold admissibility can be
    established. The trial judge must determine whether: 1) the witness is
    sufficiently familiar with the accused to have some basis for their
    identification opinion; and 2) the witness, as a result of their prior acquaintance
    with the accused, must be in a better position than the trier of fact to
    identify the perpetrator, in the sense that they have some advantage that can
    shed light on the evidence in question: at paras. 14, 21.

[31]

The
    thrust of this inquiry is aimed at determining the level of familiarity of the
    potential witness with the accused. In assessing this level of familiarity, the
    trial judge should focus on the nature of the relationship between the potential
    witness and the accused, including the frequency and intensity of past contact.
    The fundamental question for the trial judge, is whether the potential witness
    is sufficiently familiar with the accused such that the witness may be able to
    provide valuable identifying information about the accused that a trier of
    fact, with access to only the accused, the video, and photographic evidence
    during trial, will not be able to or unlikely to ascertain for him or herself.
    In answering this question, the trial judge should base his or her
    determination primarily on the evidence of the nature of the relationship,
    including the nature of past contact, as opposed to a potential witness
    anticipated testimony. While a potential witness anticipated testimony may be
    of assistance in borderline cases, trial judges should be wary of the allure of
    potential witnesses who, despite having only a general level of familiarity
    with the accused, purport to be able to offer descriptions capable of
    identifying them. In other words, a trial judge should generally only permit a
    potential recognition witness to testify where the judge is satisfied, on a
    balance of probabilities, that the witness relationship with the accused
    affords him or her a level of familiarity that will enable the witness to
    provide valuable and otherwise unavailable identifying information.

[32]

The
    trial judge is in the best position to determine the "prior
    acquaintance/better position" test. That determination on the
    admissibility of recognition evidence is entitled to deference, absent an error
    in principle or an unreasonable ruling.

[33]

Where
    a trial judge finds that the requirements for threshold admissibility have been
    met, the recognition witness will be permitted to testify. It will then be the
    role of the trier of fact to assess the witness testimony to determine its
    ultimate reliability and the weight that can be properly attributed to it, if
    any. In doing so, the trier of fact should consider the following,
    non-exhaustive list of factors as indicia of reliability: 1) the circumstances
    of the identification, including whether it was independent or suggested; and 2)
    the level of detail provided in the description, including the ability of the
    witness to point to some unique identifiable feature or idiosyncrasy of the
    person to be identified:
Berhe
, at para. 22. However, the importance
    of unique identifiable features varies with how well the witness knows the
    person he or she identifies (the better a person knows the accused, the less
    important the articulation of identifiable features becomes):
R. v. M.B.
,
    2017 ONCA 653, 356 C.C.C. (3d) 234, at para. 46; 3) the quality of the video or
    photographic evidence upon which the witness is making their identification (the
    witness testimony will be more reliable as the quality increases); and 4) the
    circumstantial or direct evidence available that can corroborate or undermine
    the reliability of the witness description.

[34]

In
    determining the ultimate reliability of the evidence, the trier of fact must
    also be cognizant of the fact that, as recognition evidence is a form of
    identification evidence, the same concerns apply and the same caution must be
    taken in considering its reliability as in dealing with any other
    identification evidence:
M.B.
, at para. 34, quoting
R. v. Olliffe
,
    2015 ONCA 242, 322 C.C.C. (3d) 501, at para. 39;
R. v. Chafe
, 2019
    ONCA 113, 145 O.R. (3d) 783, at paras. 29-32;
R. v. McCracken
, 2016 ONCA
    228, 348 O.A.C. 267, at para. 25.

[35]

The
    frailties of identification evidence have been well documented:
M.B.
, at
    paras. 29-31;
R. v. Burke
, [1996] 1 S.C.R. 474, at para. 52;
R. v.
    Miaponoose
(1996), 30 O.R. (3d) 419 (C.A.). While seemingly reliable,
    particularly where witnesses are credible and convincing in their testimony,
    eyewitness identification is inherently unreliable:
M.B.
, at para. 29;
McCracken
,
    at para. 25. Although witnesses may honestly believe their account reflects the
    reality of their observations, they are often completely unaware of the
    interpretive process whereby they fill in the necessary but missing data and
    arrive at a distorted recreation of the events they actually witnessed:
Miaponoose
,
    at p. 422, quoting the Law Reform Commission of Canada Study Paper on
Pretrial
    Eyewitness Identification Procedures
(1983), at p. 10. Where proper
    precautions are not taken in assessing identification evidence, the likelihood
    of wrongful conviction increases. The trier of fact, therefore, must be
    satisfied of both the honesty of the witness and the correctness of the
    identification:
R. v. Reitsma
(1997), 125 C.C.C. (3d) 1 (B.C. C.A.), at
    para. 41,
per

Rowles J.A. (dissenting), revd [1998] 1 S.C.R. 769
    (adopting the dissenting reasons of Rowles J.A.);
R. v. Cole
, [2006]
    O.J. No. 1654 (S.C.), at para. 20.

Arguments on appeal

[36]

The
    appellant argues that the trial judge erred in admitting the recognition
    evidence of Detective Constable Reeves and Detective Cecile. He submits that while
    both officers had prior interactions with the appellant, these interactions
    were brief and fleeting. Neither was in a better position to identify the
    appellant than the trial judge, who had the opportunity to observe the
    appellant for six days during trial.

[37]

In
    response, the Crown argues that the evidence of prior interactions between the
    officers and the appellant was sufficient to permit the trial judge to admit
    the evidence. Both officers were clearly familiar with the appellant and both
    had observed him outside of the courtroom context, thereby enabling them to
    provide information not available to the trial judge.

Analysis

[38]

As
    noted above, a trial judges determination on the admissibility of recognition
    evidence is to be afforded deference, absent an error in principle or an
    unreasonable ruling. In this case, the trial judge did not commit an error in
    principle. He outlined the correct legal principles governing threshold
    admissibility and conducted the appropriate legal test. The only question,
    therefore, is whether he reached an unreasonable conclusion in admitting the
    evidence of either Detective Cecile or Detective Constable Reeves.

[39]

In
    my view, the trial judges decision to admit the recognition evidence of
    Detective Cecile was not unreasonable. Detective Cecile had been a part of two
    prior investigations of the appellant, including one in which he was able to
    observe the appellant in court for the most part of a day. He had thus been
    able to study confirmed photographs and video of the appellant, as well as
    interact with him in person. While certainly a borderline case, given the
    absence of a prolonged relationship or any particularly intense or meaningful
    interactions (e.g., a police interview), it was not unreasonable to find that
    Detective Ceciles relationship with the appellant would afford him a level of
    familiarity sufficient to enable him to provide valuable and otherwise
    unavailable identifying information.

[40]

With
    respect to Detective Constable Reeves evidence, however, the trial judges
    ruling was unreasonable. While Detective Constable Reeves was clearly generally
    acquainted with the appellant, as he was able to recognize his name when
    checking information on the residents of 30 Eppleworth Road, he had no confirmed
    history of prior interactions with him. The man seen in the stairwell in 2015
    was never confirmed to be the appellant. There was also no evidence confirming
    that Detective Constable Reeves had ever actually seen the appellant in the
    community. The only times that Detective Constable Reeves can be said, with any
    certainty, to have interacted with the appellant is when he saw his name on
    general bulletins at the police station or reviewed his images in IntelliBook.
    This level of interaction is insufficient to establish a level of familiarity
    that would enable Detective Constable Reeves to provide valuable and otherwise
    unavailable information to the trier of fact. The fact that Detective Constable
    Reeves purported to recognize the appellant does not strengthen the case for
    admission. Rather, it is precisely this type of assertive recognition evidence in
    the absence of a high level of familiarity that is to be avoided, as it offers
    the allure of reliability despite being based on a superficial level of
    familiarity. There was no basis to admit the evidence and the trial judge erred
    in doing so. The impact of this error will be addressed in the next section.

(2)

Did the trial judge
    err by improperly relying on the recognition evidence in reaching his
    conclusion on identification?

[41]

As
    explained above, where a trial judge has found that the requirements for
    threshold admissibility have been met, the trier of fact must then assess the
    ultimate reliability of the evidence.

[42]

In
    this case, the appellant argues that, even if the trial judge was correct to
    admit the officers recognition evidence, he erred in his assessment of its
    ultimate reliability. The evidence was unreliable as neither officer made their
    identification of the appellant solely on the basis of the surveillance
    footage. Rather, both came to the footage with the appellant in mind as the
    perpetrator: Detective Constable Reeves watched the footage after recognizing
    the appellants name in his search of residents at 30 Eppleworth Road; and
    Detective Cecile watched the footage after Detective Constable Reeves had
    planted [the] seed in his mind that the appellant was the person captured on the
    video. The recognition evidence was thus tainted by confirmation bias. The
    trial judge should not have placed any weight on it, let alone identify it as
    evidence of particular significance. In light of this error, the trial
    judges ultimate conclusion that the appellant was the person in the
    surveillance footage should be overturned.

[43]

The
    Crown submits in response that, although the trial judge clearly put some
    weight on the recognition evidence, his identification of the appellant as the
    perpetrator was made independently. The trial judge arrived at his
    identification decision on the basis of the video and photographic evidence,
    which was of high quality and permitted such an identification without reliance
    on additional evidence. There was no error.

[44]

Given
    my earlier finding that the evidence of Detective Constable Reeves should not
    have been admitted, I agree with the appellant that the trial judge erred in
    placing any weight on this evidence.

[45]

However,
    I do not accept the appellants argument as it pertains to the evidence of
    Detective Cecile. The trial judge engaged in a proper assessment of the
    reliability of this evidence. He acknowledged that Detective Constable Reeves
    suggestion to Detective Cecile was troubling and noted that he would weigh
    his evidence and opinion cautiously: at paras. 45-46. He considered the level
    of detail provided by Detective Cecile, including his description of the
    appellants tattoos and their placement: at para. 47. He also gave
    consideration to the quality of the video evidence, as well as the available
    corroborative evidence, such as the fact that the appellant was a resident at
    30 Eppleworth Road: at paras. 47, 52. Having assessed the relevant factors, the
    trial judge was entitled to afford meaningful weight to Detective Ceciles
    evidence. There is no basis to interfere.

[46]

I
    turn now to the effect of the trial judges error in relying on Detective
    Constable Reeves evidence. In my view, the error was not significant. While
    the evidence should not have been admitted and, consequently, should not have
    been relied upon, the impact of the error was minor, as the trial judge arrived
    at his conclusion as to the identity of the perpetrator independently. In his
    reasons, at para. 55, the trial judge concluded that, after reviewing the
    surveillance footage and intake photographs of the appellant, he was not left
    in reasonable doubt that the defendant and suspect are one and the same. He
    proceeded to explain the reasons underlying his conclusion, including the common
    articles of clothing worn by the perpetrator and the man on the video, the similar
    facial features between the appellant and the man, and the discolouration on
    the mans arms that match the appellants tattoos.

[47]

It
    is only after reaching this conclusion that, at para. 57, the trial judge noted
    that he was assisted by the recognition evidence of the two police officers.
    While the trial judges comment that the evidence was [o]f particular
    significance is problematic in light of the error in admitting Detective
    Constable Reeves evidence, it is clear that the trial judge would have reached
    the same conclusion on the identity of the suspect even without reliance on this
    evidence. There are distinct similarities between the man pictured in the surveillance
    footage and the appellant in his intake photographs, including similar physical
    builds, haircuts, facial hair, and tattoos (discolourations). The video and
    photographic evidence was of high quality. In light of the frailties of
    eyewitness evidence, which have been observed in countless cases, and the
    necessary cautions that a trier of fact must take when assessing such evidence,
    whenever there is reliable and continuous video surveillance evidence, it may
    be powerful and probative evidence for the trier of fact:
R. v. Nikolovski
,
    [1996] 3 S.C.R. 1197, at paras. 22-23.

[48]

Pursuant
    to s. 686(1)(b)(iii) of the
Criminal Code
, where an appellate court
    finds that the trial judge has committed a legal error, it may nevertheless
    dismiss the appeal if it is of the opinion that no substantial wrong or miscarriage
    of justice has occurred. The burden rests with the Crown to demonstrate that
    the curative proviso is applicable and that the conviction should be upheld
    despite the legal error:
R. v. Van
, 2009 SCC 22, [2009] 1 S.C.R. 716, at
    para. 34.

[49]

In
    this case, while the Crown did not explicitly invoke the curative proviso in
    either its factum or in oral argument, the substance of the Crowns position is
    that, even if there was an error, no substantial wrong or miscarriage of
    justice occurred, as the trial judge reached his ultimate conclusion
    independently and without reliance on Detective Constable Reeves evidence. Wary
    that it is not the role of an appellate court to raise the curative proviso on
    its own motion, I am satisfied that the Crowns argument amounts to an implicit
    invocation of the proviso:
R. v. P.G.
, 2017 ONCA 351, 138 O.R. (3d) 343,
    at paras. 13-15;
R. v. Ajise
, 2018 ONCA 494, 361 C.C.C. (3d) 384, at
    para. 32, affd 2018 SCC 51, [2018] 3 S.C.R. 301. As such, I am satisfied that
    it is appropriate to rely on the powers outlined in s. 686(1)(b)(iii) of
    the
Criminal Code
to cure the error of the trial judge. In light of the
    trial judges independent conclusion regarding the identity of the perpetrator,
    the error in admitting and relying on Detective Constable Reeves evidence was
    harmless. No substantial wrong or miscarriage of justice has occurred.

(3)

Was the trial judges
    verdict unreasonable?

[50]

An
    appellate court may set aside a trial verdict if the verdict is either
    unreasonable, unsupported by the evidence, or both:
Criminal Code
,

s. 686(1)(a)(i);
R. v. Lights
, 2020 ONCA 128, 149 O.R. 273, at para. 29. In cases such as
    this one, where the verdict rests wholly or substantially on circumstantial
    evidence, the question on appeal is whether the trier of fact, acting
    judicially, could reasonably be satisfied that the guilt of the accused was the
    only reasonable conclusion available on the evidence taken as a whole:
Lights
,
    at para. 39, citing
R. v. Villaroman
, 2016 SCC 33, [2016] 1 S.C.R. 1000,
    at para. 55. It is the role of the trier of fact to assess whether any proposed
    alternative way of viewing the case as a whole is reasonable enough to raise a
    doubt as to the guilt of the accused:
Lights
, at para. 39, citing
Villaroman
,
    at para. 56.

[51]

In
    this case, the trial judge found the appellant guilty on the basis that: 1) the
    person seen in the surveillance footage was the person described by eyewitnesses
    as having stabbed Mr. Jude; and 2) the appellant was the person seen in the
    surveillance footage. Beyond speculation, there was no basis to infer that the
    appellant had merely been in the wrong place at the wrong time.

[52]

The
    appellant submits that this conclusion is unreasonable for two reasons. First,
    he argues that the trial judge erred by failing to give any meaningful weight
    to the exculpatory evidence of the witnesses, particularly the evidence of Ms. Haywood-Alexander
    and Mr. Papadopoulos. As both witnesses claimed that the appellant did not look
    like the person they had seen on April 30, 2018, the trial judge should have
    given greater consideration to whether their testimony raised a reasonable doubt
    as to whether the appellant was, in fact, the person who had stabbed Mr. Jude.

[53]

Second,
    the appellant argues that the trial judge failed to consider the reasonable
    possibility that the person shown in the video surveillance footage was not the
    appellant, but someone else who resembled him. This was a reasonable inference
    consistent with innocence and the trial judge erred in dismissing it as
    speculative.

[54]

I
    would not give effect to these arguments. The trial judge considered the
    evidence of all the eyewitnesses, including Ms. Haywood-Alexander and Mr. Papadopoulos.
    With respect to Ms. Haywood-Alexander, he found that, in light of her fleeting
    view of the suspects face and the imprecision of her original description, her
    testimony did not raise a reasonable doubt as to the guilt of the appellant.
    Similarly, with Mr. Papadopoulos, the trial judge determined that his evidence
    did not raise a reasonable doubt, as he had but a momentary view of the
    person and had not seen the suspects face. These findings are reasonable and
    within the purview of the trier of fact. Nor, do I agree that the trial judge
    undermined the defence position or reversed the burden of proof by improperly
    approaching that evidence with care and caution. The trial judge noted at para.
    62 of his reasons that he need not accept the defence of other exculpatory
    evidence, but that it was sufficient for acquittal if the evidence leaves the
    trier with a reasonable doubt: R. v. Vassel [2018] O.J. No. 4512 (Ont. C.A.).
    There is no basis to interfere.

[55]

The
    trial judge was also entitled to find that there was no reasonable possibility
    that the perpetrator was someone who simply resembled the appellant. As he
    explained, the circumstantial evidence, including the description of the
    perpetrator by the eyewitnesses, the timeline established by the surveillance
    cameras and witnesses, the similarities between the man seen on the
    surveillance footage and the appellants intake photos, and the appellants
    residence at the building, strongly suggested against the reasonableness of
    such a possibility. I see no reason to interfere with his conclusion.

[56]

The
    verdict was not unreasonable.

V.

DISPOSITION

[57]

In
    all the circumstances, I would dismiss the appeal.

Released: G.R.S. August 12, 2020

M. Tulloch J.A.

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

I agree. S. Coroza
    J.A.


WARNING

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

An order restricting publication in
this proceeding under ss. 486.5(1), (2), (2.1), (3), (4), (5), (6), (7),
(8) or (9) or 486.6(1) or (2) of the
Criminal Code
shall continue.  These sections of the
Criminal
Code
provide:

486.5 (1)     Unless an order is
made under section 486.4, on application of the prosecutor in respect of a
victim or a witness, or on application of a victim or a witness, a judge or
justice may make an order directing that any information that could identify
the victim or witness shall not be published in any document or broadcast or
transmitted in any way if the judge or justice is of the opinion that the order
is in the interest of the proper administration of justice.

(2)     On application of the
prosecutor in respect of a justice system participant who is involved in
proceedings in respect of an offence referred to in subsection (2.1), or on
application of such a justice system participant, a judge or justice may make
an order directing that any information that could identify the justice system
participant shall not be published in any document or broadcast or transmitted
in any way if the judge or justice is satisfied that the order is in the
interest of the proper administration of justice.

(2.1) The
offences for the purposes of subsection (2) are

(a) an offence under section 423.1, 467.11,
467.111, 467.12, or 467.13, or a serious offence committed for the benefit of,
at the direction of, or in association with, a criminal organization;

(b) a terrorism offence;

(c) an offence under subsection 16(1) or
(2), 17(1), 19(1), 20(1) or 22(1) of the Security of Information Act; or

(d) an offence under subsection 21(1) or
section 23 of the
Security of Information Act
that is committed in
relation to an offence referred to in paragraph (c).

(3)     An order made under this
section does not apply in respect of the disclosure of information in the
course of the administration of justice if it is not the purpose of the disclosure
to make the information known in the community.

(4)     An applicant for an order
shall

(a) apply in writing to the
presiding judge or justice or, if the judge or justice has not been determined,
to a judge of a superior court of criminal jurisdiction in the judicial
district where the proceedings will take place; and

(b) provide notice of the
application to the prosecutor, the accused and any other person affected by the
order that the judge or justice specifies.

(5)     An applicant for an order
shall set out the grounds on which the applicant relies to establish that the
order is necessary for the proper administration of justice.

(6)     The judge or justice may
hold a hearing to determine whether an order should be made, and the hearing
may be in private.

(7)     In determining whether to
make an order, the judge or justice shall consider

(a) the right to a fair and
public hearing;

(b) whether there is a real and
substantial risk that the victim, witness or justice system participant would
suffer harm if their identity were disclosed;

(c) whether the victim, witness
or justice system participant needs the order for their security or to protect
them from intimidation or retaliation;

(d) societys interest in
encouraging the reporting of offences and the participation of victims,
witnesses and justice system participants in the criminal justice process;

(e) whether effective
alternatives are available to protect the identity of the victim, witness or
justice system participant;

(f) the salutary and deleterious
effects of the proposed order;

(g) the impact of the proposed
order on the freedom of
expression
of those affected by it; and

(h) any other factor that the
judge or justice considers relevant.

(8)     An order may be subject to
any conditions that the judge or justice thinks fit.

(9)     Unless the judge or justice
refuses to make an order, no person shall publish in any document or broadcast
or transmit in any way

(a) the contents of an
application;

(b) any evidence taken,
information given or submissions made at a hearing under subsection (6); or

(c) any other information that
could identify the person to whom the application relates as a victim, witness
or justice system participant in the proceedings.
2005, c. 32, s. 15; 2015, c. 13, s. 19

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. K.P., 2020 ONCA 534

DATE: 20200827

DOCKET: C63608

Feldman, van Rensburg and
Thorburn JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

K.P.

Respondent

Alexander Ostroff, for the appellant

Emily Marrocco, for the respondent

Heard: July 14, 2020 by video conference

On appeal from the sentence imposed on December
8, 2016 by Justice Jane E. Kelly of the Superior Court of Justice.

Thorburn J.A.:

A.

OVERVIEW

[1]

This is an appeal from the indeterminate
sentence imposed on the appellant following his conviction for attempted murder
and choking to overcome resistance for the purposes of attempting to murder
J.M., a woman with whom he was in an intimate relationship.

[2]

On the hearing before the sentencing judge, it
was agreed that the appellant is a dangerous offender. The only issue was
whether there was a reasonable expectation that the appellants risk could be
controlled in the community under a long-term supervision order such that a
determinate sentence would adequately protect the public.

[3]

After a careful review of the evidence, the
sentencing judge determined that it could not.

[4]

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

B.

ISSUES ON APPEAL

[5]

The appellant argues that the sentencing judge
should have ordered a determinate sentence followed by a long-term supervision
order, not an indeterminate sentence.

[6]

The appellant claims the sentencing judge erred by:

a)

presuming she was required to impose an
indeterminate sentence; and/or

b)

concluding there was no reasonable expectation
that a determinate sentence and long-term supervision order would adequately
protect public safety.

[7]

The appellant also notes that since the release
of the sentencing judges decision, the Supreme Court of Canada rendered its
decision in
R. v. Boutilier,
2017 SCC 64, [2017] 2 S.C.R. 936, which clarified
that the imposition of an indeterminate sentence is appropriate only where it
is the least restrictive means to protect the public.

C.

THE STATUTORY SCHEME
AND LEGAL INTERPRETATION

(1)

Dangerous Offender Designation Stage

[8]

Section 753.1 of the
Criminal Code
, R.S.C.,
1985, c. C-46 sets out the criteria that must be satisfied before a court finds
an offender dangerous. This is referred to as the designation stage. Section
753.1 provides that:

753

(1)
On application made under this Part after an assessment report
is filed under subsection 752.1(2), the court shall find the offender to be a
dangerous offender if it is satisfied

(a)
that the
offence for which the offender has been convicted is a serious personal injury
offence  and the offender constitutes a threat to the life, safety or physical
or mental well-being of other persons on the basis of evidence establishing

(i)
a pattern of
repetitive behaviour by the offender, of which the offence for which he or she
has been convicted forms a part, showing a failure to restrain his or her behaviour
and a likelihood of causing death or injury to other persons, or inflicting
severe psychological damage on other persons, through failure in the future to
restrain his or her behaviour,

(ii)
a pattern of
persistent aggressive behaviour by the offender, of which the offence for which
he or she has been convicted forms a part, showing a substantial degree of
indifference on the part of the offender respecting the reasonably foreseeable
consequences to other persons of his or her behaviour, or

(iii)
any behaviour
by the offender, associated with the offence for which he or she has been
convicted, that is of such a brutal nature as to compel the conclusion that the
offenders behaviour in the future is unlikely to be inhibited by normal
standards of behavioural restraint; or

(b)
that the
offence for which the offender has been convicted is a serious personal injury
offence  and the offender, by his or her conduct in any sexual matter
including that involved in the commission of the offence for which he or she
has been convicted, has shown a failure to control his or her sexual impulses
and a likelihood of causing injury, pain or other evil to other persons through
failure in the future to control his or her sexual impulses.

(2)

Penalty Stage  Imposing an Appropriate Sentence

[9]

Once a person is designated a dangerous offender,
the sentencing judge moves on to consider the appropriate sentence  the
penalty stage. Section 753(4) of the
Criminal Code
provides three
options for sentencing:

(a) impose a sentence of detention in a
penitentiary for an indeterminate period;

(b) impose a sentence for the offence for
which the offender has been convicted  which must be a minimum punishment of
imprisonment for a term of two years  and order that the offender be subject
to long-term supervision for a period that does not exceed 10 years; or

(c) impose a sentence for the offence for
which the offender has been convicted.

[10]

Section 753(4.1) provides guidance on how the
sentencing judge should exercise discretion when choosing among the three
options:

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

[11]

To determine whether a lesser measure will
adequately protect the public, there must be evidence before the sentencing
judge that the dangerous offender can be safely released into the community.
However, as the majority of the Supreme Court of Canada held in
Boutilier
,
at para. 76, s. 753(4.1) does not create a presumption that indeterminate detention
is the appropriate sentence.

[12]

Section 753(4.1) requires the sentencing judge to
engage in a thorough examination of all the evidence presented during the
hearing to determine the fittest sentence:
Boutilier
, at para. 76
. The sentencing judge must
consider whether there
is a reasonable expectation that a lesser measure  a conventional
fixed‑term sentence or a fixed-term sentence of at least two years
followed by a long‑term supervision order  will adequately protect the
public against the risk that the offender will commit murder or further serious
personal injury offences:
Boutilier
, at para. 77
. The
sentencing judge must exhaust those lesser measures before imposing an
indeterminate sentence.
The majority further
explained that indeterminate sentences should be limited to habitual criminals
who pose a tremendous risk to public safety:
Boutilier
, at para. 77.

[13]

When determining the appropriate sentence to
manage the risk to public safety, the sentencing judge may consider
treatability:
Boutilier
, at para. 45. In assessing the manageability
and treatability of the offenders behaviour, the sentencing judge may consider
evidence, such as: treatment avoidance, failure to respond to treatment, breaches
of court orders, lack of motivation, continued involvement in high-risk
conduct, serious personality disorder, and elevated likelihood of violent
recidivism:
R. v. Radcliffe,
2017 ONCA 176, 347 C.C.C. (3d) 3, at
paras. 64-65, leave to appeal refused, [2017] S.C.C.A. No. 274.

[14]

Where the management of risk requires more tools
than are available under the parole authorities, an indeterminate sentence is
reasonable. Risk management evidence must demonstrate a prospect of effective
supervision, within the means and capacity of the parole authorities:
R. v.
Severight
,

2014 ABCA 25, 566 A.R. 344, at paras. 40-43, leave to
appeal refused, [2014] S.C.C.A. No. 184. As this court has explained, real
world resourcing limitations cannot be ignored or minimized where to do so
would endanger public safety:
R. v. Little
, 2007 ONCA 548, 87 O.R.
(3d) 683, at para. 70, leave to appeal refused, [2008] S.C.C.A. No. 39.

(3)

Standard of Review

[15]

An appellate court may review an indeterminate
sentence for legal error and reasonableness, but the credibility and factual
findings made in determining the appropriate sentence are entitled to deference:
R. v. Sawyer
, 2015 ONCA 602, 127 O.R. (3d) 686, at para. 29. While the
standard of review is somewhat more robust than other sentence appeals, it is
not a hearing
de novo: R. v. Sipos
, 2014 SCC 47, [2014] 2 S.C.R. 423, at
para. 26.

D.

THE EVIDENCE

(1)

The Circumstances of the Offence

[16]

On December 24, 2011, the appellants domestic partner
told the appellant that she did not wish to have a drink with him. The
appellant had consumed approximately seven shots of alcohol and had been smoking
marihuana.

[17]

The appellant became enraged. He grabbed his
partner by the throat, choked her, and stabbed her in the abdomen with a knife.

[18]

At trial, the appellant explained that before he
grabbed her by the throat, he lost it and had no control. After he choked
and stabbed her, he followed her into the bedroom and continued ranting, still
holding the knife.

[19]

The appellants partner climbed through a small
window to escape and fell twenty-five feet to the ground. She suffered serious
and long-lasting physical and emotional consequences from the incident. At the
time of her victim impact statement in 2014, she stated that she was still in
constant, barely tolerable pain, on 20 painkillers, suffering PTSD, requiring
in-home paramedical care, and using a wheelchair. She stated that the
appellants actions had altered her life forever.

(2)

The Appellants Background

[20]

The appellant is now 47 years old. He was born and
raised in Newfoundland. He has lived a nomadic lifestyle, living in various
parts of the country starting at a young age. He maintains contact with his
mother but has no relationship with his biological father, step-father, or
siblings. The appellant does not have close friends or long-term friendships.

[21]

When the appellant was two years old, his mother
separated from his biological father, who had problems with alcohol use and was
violent when intoxicated.

[22]

The appellant began drinking alcohol and smoking
marihuana at age 10. He dropped out of school at age 15. He has spent
considerable time in homeless shelters and group homes, living on social
assistance. Generally, his history demonstrates that any employment did not
last long unless he was supervised.

[23]

His longest term of employment was one year
removing asbestos while on parole.

(3)

The Appellants Criminal History

[24]

The appellant has approximately 20 convictions
dating back to the late 1980s. The convictions disclose a pattern of assaultive
behaviour, possession of weapons, failure to comply with court orders, and an
escalation of serious violence.

[25]

In particular, there is a pattern of violence
against intimate partners. While there were no allegations of assaultive
behaviour related to his first domestic relationship, all three of his most
recent relationships resulted in convictions.

[26]

In 1996, his second domestic relationship
resulted in a conviction for assault, which arose after an argument about his
cannabis use and unemployment. He received a suspended sentence of one year and
probation.

[27]

Also in 1996, the appellant was convicted of possession
of a weapon after being rejected by a love interest. As a result of the
rejection, he took a shotgun and ammunition and walked into the bush, claiming
he was suicidal. He received a suspended sentence and probation.

[28]

The appellants third domestic relationship resulted
in a 2006 conviction for attempted murder. The appellant and his partner lived
together for approximately two years. When his partner told the appellant she
wanted to leave, he confronted her with a knife and choked her to the point of
dizziness. She moved out two weeks later, and he threatened suicide.

[29]

A couple weeks after she left, the appellant
asked her to return to the apartment to help him look for their shared cat. His
partner attended with her sister, which made the appellant angry. The appellant
said he had a surprise for his partner, he then took a hammer from a duffle bag
and said he was going to kill them both. He struck his partner repeatedly in
the head. At one point, he armed himself with a knife and tried to stab her in
the stomach. She grabbed the knife and sustained severe cuts to her fingers.

[30]

The appellant was sentenced to six years and ten
months in the penitentiary. He was released on his statutory release date, June
12, 2008.

[31]

The appellants fourth domestic relationship led
to the convictions in question, described above.

(4)

Evidence of the Psychiatrists

[32]

Dr. Philip Klassen and Dr. Jeff McMaster are
psychiatrists. Dr. Klassen conducted the assessment filed under s. 752.1(2) of
the
Criminal Code
, while Dr. McMaster prepared an opinion report
for the appellant.

(a)

Alcohol and Drug Use

[33]

Dr. Klassen diagnosed the appellant as likely suffering
from alcohol and cannabis use disorder (in sustained full remission in a
controlled setting). Dr. McMaster concurred.

[34]

The appellant told Dr. Klassen he had been using
both alcohol and cannabis since age 10, and cannabis daily since age 16. He
characterized himself as having a mixed addiction issue, often using drugs and
alcohol together. In addition, he told Dr. Klassen he had a history of using
cocaine, amphetamines, opioids, and MDMA.

(b)

Information from Former Domestic Partners

[35]

Dr. Klassen also spoke to two of the appellants
former partners, and Dr. McMaster referred to these interviews in his
report. The appellants third partner described the appellant as controlling,
jealous, dependent, and paranoid. The appellants fourth partner who was the
victim in the predicate offences, also described the appellant as manipulative
and controlling. She indicated that he repeatedly threatened suicide during
their relationship, accused her of lying, behaved impulsively, and did not
appear to feel guilt or remorse.

(c)

Psychiatric History and Diagnoses

[36]

The appellant says he has suffered from
depression throughout his life and has a long history of suicidal ideation and
panic symptoms.

[37]

Both Drs. Klassen and McMaster diagnosed him as
suffering from antisocial personality disorder and borderline personality
disorder.

[38]

Dr. Klassen indicated that there is no
definitive treatment for antisocial personality disorder. The focus is instead
on specific aspects of offending behaviour or paths to re-offending.

[39]

Both psychiatrists agreed that impairment from
borderline personality disorder wanes with advancing age, and that dialectical
behaviour therapy can be an effective treatment. However, this therapy is not
available in the Correctional Services of Canada.

(d)

Lack of Success with Treatment

[40]

After his 2006 attempted murder conviction, the
appellant underwent a risk assessment. He described the offences involving the
sisters as an isolated event, downplayed the impact, and it was not clear to
the assessor that he felt true remorse.

[41]

In 2007, he participated in moderate-intensity substance
abuse programming for two months. Despite participating in the program, he
indicated that he would return to using marihuana because he needed it to
self-medicate. He felt that one of the contributing factors leading to the
attempted murder of his third partner was that he had
not
smoked marihuana
before the incident. He also completed a Partner Assault Program, from which he
said he did not learn much.

[42]

Once on parole in June 2008, he participated in
a National Moderate Intensity Family Violence Program. The parole office
provided a report, which indicated that the appellant: did not think he needed
the program; did not show significant effort in relation to assignments; had
little insight into his feelings of jealousy; became argumentative and unwilling
to accept information; and was unwilling to acknowledge any potential problems
in dealing with negative emotions when involved in a relationship.

[43]

Overall, the appellant showed little progress. Dr.
Klassen described the appellants performance in the family violence prevention
program as one of the poorer outcomes I have seen.

[44]

In 2009, the appellant filled out a National
Family Violence Prevention Test Battery, which involved pre-treatment and
post-treatment tests. Although there was an improvement from the pre-treatment
assessment, the post-treatment ratings by professional staff indicated ongoing
concern regarding empathy for his victims and being able to identify relapse
prevention concepts.

(e)

Risk Assessments

[45]

Both psychiatrists described the appellant as at
high risk to commit a violent act of some kind, with concerns about severe
violence. They scored him similarly on the actuarial risk assessment tools, as follows:

·

PCL-R (Psychopathy Checklist-Revised):
Dr. Klassen and Dr. McMaster found that the appellant scored 29 out
of 40. This score suggests difficulties with general and violent recidivism and
with treatment responsiveness. It places the appellant in the 80th percentile
with respect to a reference sample of North American offenders.

·

VRAG (Violence Risk Appraisal Guide):
Dr. Klassen found that the appellant scored 13  58% of similar
scoring individuals reoffended violently over 10 years in the community. Dr.
McMaster found that the appellant scored 16. In that category, 55% reoffended violently
within 7 years and 64% within 10 years.

·

ODARA (domestic assault risk assessment tool):
Dr. Klassen put the appellant in the highest risk
category. Among those with a similar score, 70% committed a further assault. Dr.
McMaster did not conduct an ODARA assessment.

·

HCR-20 (violent recidivism assessment tool)
: Dr. Klassen scored the appellant 22-33 out of 40, meaning that he was
at a moderately high to high risk of re-offending on release from the penitentiary.
Dr. McMaster scored the appellant 28-33 out of 40, meaning he was at high
risk of reoffending.

[46]

In sum, Dr. Klassen described the appellant as
at moderately high risk of violent recidivism and likely at high risk of
domestic violence recidivism. He opined that imminence, frequency, and severity
were all live concerns: imminence because the appellant re-offended shortly
after release from the penitentiary; frequency because the appellant would
likely engage in repeat violence; and severity given the history of serious
offences.

[47]

In sum, Dr. McMaster described the appellant as
a high-risk offender with a chronically elevated risk of violence, which is
highest in the context of intimate relationships. Dr. McMaster also opined that
the appellant searches for a perfect woman, sets in motion an intense relationship
to meet his dependency needs, but then causes the partner to want to leave the
relationship because of his controlling behaviour and jealousy. When that
occurs, the appellant engages in self‑destructive behaviour, rage, and
threats of suicide, which, in keeping with his antisocial personality, evolve
into thoughts and then acts of harming the partner.

(f)

Possibility of Treatment and Risk Management in
the Community

[48]

Dr. Klassen indicated that the appellants risk
for violence, particularly in the domestic context, would need to be managed
into his early to mid-fifties, as he believed that risk would decline with age.
He said that in order to obtain a reasonable expectation of risk control in the
community, an extensive list of factors would need to be put in place which include:

·

intense family violence / violence prevention
treatment;

·

dialectical behavioural therapy for borderline
personality traits;

·

substance abuse treatment, and regular
urinalyses if released;

·

release into a community correctional centre or
community release facility, where a high degree of structure and supervision
can be imposed;

·

a structured daytime routine; and

·

no cohabiting with an intimate partner without
the clear knowledge and consent of a supervisor.

[49]

Dr. Klassen emphasized that the big-ticket
items arethe supervision and the access to intimate partners because risk
could escalate quickly. He also noted that if the appellant started to struggle
with supervision, he might leave the jurisdiction.

[50]

Dr. McMaster opined that given the appellants
history of violence, risk factors, and history of difficulties with supervision
and treatment, high levels of risk management would be necessary if he were released
into the community. Intensive treatment in custody, intensive supervision, and
further treatment in the community would be necessary to manage his risk. Some
of his suggestions included, close supervision upon release, a night time
curfew, close monitoring of relationships, and a condition that he never
cohabit with an intimate partner again.

[51]

Dr. McMaster indicated that the risk flowing
from the appellants disorders may decline with age but [i]t is unclear if any
treatment success will translate to success (i.e. no recidivism) in the
community absent further external controls on his behaviour. Dr. McMaster
indicated that the appellants poor motivation and readiness for treatment
created a prominent difficulty, and his history suggests he may not follow
through with treatment.

[52]

Dr. McMaster also recognized that enforcement
could be difficult. He stated that while there may be time to intervene, Mr.
Payne may become involved with a vulnerable partner, who feels protective, or
conversely, too scared to report any difficulties.

(5)

The Effect of a Determinate Versus an
Indeterminate Sentence

[53]

According to the representative of the
Correctional Service of Canada (CSC), dangerous offenders serving determinate
sentences are eligible for statutory release, with supervision on parole, after
serving two-thirds of the sentence. Offenders serving indeterminate sentences,
remain under the jurisdiction of the CSC for their entire lives, with
eligibility for full parole after seven years, which may or may not be granted.

[54]

Once in the community, offenders are initially
seen a minimum of four times a month by a parole officer, and are instructed to
advise the parole officer of any changes in conditions. The responsibility for reporting
intimate relationships falls to the offender and only then does the parole
officer contact the partner. The only way to supervise such relationships is
either through self-report or contact by the parole officer with collateral
contacts, such as a landlord.

[55]

All offenders on parole are allowed out in the
community during the day when there is no monitoring.

E.

ANALYSIS OF THE SENTENCING JUDGES DECISION

(1)

The Predicate Offences

[56]

The sentencing judge first reviewed the
predicate offences. At the beginning of the trial, the appellant pleaded guilty
to aggravated assault, assault with a weapon, and choking for the purposes of
aggravated assault. The trial judge also convicted the appellant of the counts that
proceeded to trial: attempted murder and overcoming resistance to attempt
murder by choking. In coming to this conclusion, the trial judge had found that
the appellant choked and then stabbed his partner in the abdomen in the context
of a domestic dispute. She also found that he possessed the requisite intent to
kill.

(2)

Dangerous Offender Designation Stage

[57]

The sentencing judge agreed with the joint
submission of both parties that the appellant satisfied the dangerous offender
criteria under s. 753(1)(a). First, the predicate offences were serious
personal injury offences. Second, the offences were part of a pattern of
repetitive behaviour that the appellant could not control. Specifically, the
sentencing judge pointed out the similarities between the predicate offences
and the acts leading to the appellants previous convictions for attempted
murder and aggravated assault. In both cases, he lashed out violently after
feeling scorned by his intimate partner. In both cases, there was a brutal and
unprovoked attack using a knife. Third, the appellant exhibited a pattern of
persistent aggressive behaviour showing a substantial degree of indifference
with respect to consequences to other persons. Finally, the offences were so
brutal that it would be reasonable to conclude that his behaviour is unlikely
to be inhibited by normal standards of restraint.

(3)

Penalty Stage  Imposing an Appropriate Sentence

[58]

The only issue in dispute was the sentence to be
imposed. Both parties agreed that a determinate sentence would not be appropriate.
The appellant sought a sentence of nine years and four months in custody and a ten-year
long-term supervision order. The Crown sought an indeterminate sentence, which
the sentencing judge ultimately imposed.

[59]

As I explained earlier, the appellant makes two
arguments on appeal. First, the appellant claims the sentencing judge erred in
her interpretation of s. 753(4.1) by creating a presumption in favour of an
indeterminate sentence and that the indeterminate sentence she imposed was therefore
unreasonable. Specifically, he takes issue with the following statement:

If the sentencing judge is
uncertain

whether there is a reasonable expectation that a lesser measure will
adequately protect the public, then the sentencing judge should exercise
discretion and impose an indeterminate sentence. [Emphasis in original.]

[60]

Second, the appellant claims that there was evidence
on the hearing to satisfy a reasonable expectation that the appellant could be
treated for the underlying personality disorder. Specifically, the sentencing
judge failed to acknowledge the evidence that: (i) the appellant meaningfully
participated in one-on-one therapy during parole; (ii) he had not previously
been diagnosed with borderline personality disorder, and so, he had an
undiagnosed, untreated personality disorder until he was assessed by Dr.
Klassen in 2015; and (iii) there is evidence-based treatment for the disorder
through dialectical behavioural therapy, though the proposed treatment was not
offered by the Correctional Service of Canada.

[61]

I disagree.

[62]

The sentencing judge did not have the benefit of
the Supreme Court of Canadas decision in
Boutilier
, which provides
that s.
753(4.1) does not create a presumption that
indeterminate detention is the appropriate sentence. As noted above,
that
decision was rendered after the imposition of the appellants sentence.

[63]

The sentencing judges assertion that: If the
sentencing judge is uncertain

whether there is a reasonable
expectation that a lesser measure will adequately protect the public, then the
sentencing judge should exercise discretion and impose an indeterminate
sentence must be seen in light of the review she conducted.

[64]

It is clear from her review and assessment of
the evidence that she did not impose an improper presumption or shift the
burden of proof to the appellant. The sentencing judge in fact engaged in
analysis that accords with
Boutilier.
She engaged in a rigorous
analysis of the evidence and found as a fact that there was no reasonable
possibility of eventual control of the appellant in the community. Therefore,
the lesser alternative of a determinate sentence followed by a long-term
supervision order was not viable. Her analysis does not rely on a presumption
that an indeterminate sentence applied, nor was she uncertain about the
viability of any lesser measure.

[65]

The sentencing judge engaged in a thorough and
rigorous examination of the evidence to determine the fittest sentence. She
considered numerous factors, including: the appellants background; lengthy criminal
history, with particular emphasis on the pattern of violent offences inflicted
on domestic partners; history of substance abuse, lack of empathy; history of unsuccessful
treatment; and the opinions of the two psychiatrists, which were largely the
same.

[66]

Both psychiatrists alluded to the possibility of
managing the appellants risks in the community, but
only if
he could be
very closely supervised, especially in the context of cohabiting relationships
and have access to treatments that are not currently available.

[67]

The sentencing judge then identified the
specific frailties surrounding Dr. Klassens proposed plan of supervision:

·

The appellant has had limited, if any, success
with treatment.

·

Dialectical behavioural therapy is not available
at the Correctional Services of Canada.

·

Despite the successful completion of substance
abuse training, the appellant used alcohol and cannabis on release from custody
and on the night of the predicate offence. The appellant has battled substance
abuse for decades and seems unable to control it.

·

There are limited beds in community correctional
centres and no method of confirming that a bed will be available at the time of
release;

·

The appellant requires greater supervision than
is available from parole officers.

·

Monitoring intimate relationships depends on self-reporting.
There may not be time to intervene should a breakdown in a romantic
relationship occur, since the appellants history reveals a tendency to react
quickly and impulsively when rejected.

[68]

She therefore held that the appellant could not be
adequately supervised to ensure, to the extent possible, that he would not
reoffend. Due to his history of fast attachment and tendency to resort to
violence in intimate relationships, no amount of supervision could prevent yet
another victim being attacked by [the appellant] should he be released into the
community too soon. Nor could the appellant be meaningfully treated, such that
his risk to the public would be controlled at an acceptable level within a
determinate period of time. Given her finding that the appellant could not be
meaningfully supervised or treated, she concluded:

I am not satisfied that there is a reasonable
expectation that a lesser sentence (
ie
.
a determinate sentence
followed by a long-term supervision order) will adequately protect the public
against the commission of a serious personal injury offence.

[69]

This is not a situation where the sentencing
judge imposed an indeterminate sentence without considering the viability of
lesser alternatives. She was not uncertain about whether there was a
reasonable expectation that a lesser measure would adequately protect the
public; nor did she resolve any uncertainty against the appellant. Rather,
she concluded, after a full review of the evidence, that there is no reasonable
possibility of eventual control of [the appellants] risk in the community. As
such, she specifically rejected the option of a determinate sentence followed
by a long-term supervision order, as the public would not be adequately
protected if anything less than an indeterminate sentence was imposed.

[70]

While the sentencing judge did not use the
wording in
Boutilier
,

which had not been released at the time
of her decision on sentence, her conclusions were reasonable, amply supported
by the evidence, and in accordance with that case. She properly engaged in an
individualized assessment of all the relevant factors and
circumstances to determine a fit sentence.

F.

Disposition

[71]

For these reasons, I would dismiss the appeal.

Released: August 27, 2020 (K.F.)

J.A.
Thorburn J.A.

I
agree. K. Feldman J.A.

I
agree. K. van Rensburg J.A.


WARNING

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

An order restricting
    publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or
    (4) or 486.6(1) or (2) of the
Criminal Code
shall continue.  These
    sections of
the Criminal Code
provide:

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

(a)     any of the
    following offences;

(i)      an offence
    under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1,
    172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02,
    279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

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

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

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

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

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

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

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

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

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

(b) on application of
    the victim or the prosecutor, make the order.

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

(4)     An order made
    under this section does not apply in respect of the disclosure of information
    in the course of the administration of justice when it is not the purpose of
    the disclosure to make the information known in the community. 2005, c. 32, s.
    15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25,
    ss. 22,48; 2015, c. 13, s. 18..

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

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

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. M.C., 2020 ONCA 510

DATE: 20200814

DOCKET:
C67825

Strathy C.J.O., Gillese &
    Watt JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

M.C.

Respondent

Natalya Odorico, for the appellant

Kaila Wilowski, for the respondent

Heard: in writing

On appeal from the sentence imposed on November
    21, 2019 by Justice Kathryn L. Hawke of the Ontario Court of Justice.

By the Court:

[1]

M.C. [the respondent] pleaded guilty to a single
    count of sexual interference contained in an information that alleged five
    sexual offences.

[2]

In sentencing submissions, counsel differed
    significantly on the length of a term of imprisonment that should be imposed as
    the principal component of the sentence. But the parties agreed about several
    ancillary orders and the terms of a probation order if such an order were to
    form part of the sentencing disposition.

[3]

The sentencing judge did not agree with the
    proposal of counsel about an order under s. 161 of the
Criminal Code
.
    And she added an exception to the non-communication term in a probation order, departing
    from the agreement of counsel.

[4]

The Crown asks us to vary the sentence to accord
    with the agreement of trial counsel. These reasons explain why we decline to do
    so.

The Background Facts

[5]

The issues raised on this appeal from sentence do
    not require any recitation of the circumstances of the offence to which the
    respondent pleaded guilty. A brief canvass of the sentencing proceedings is
    sufficient for our purposes.

The Plea Of Guilty

[6]

The respondent was charged in a five-count
    information alleging various sexual offences against two child complainants.
    The Crown elected to proceed by indictment. The respondent was arraigned on and
    pleaded guilty to a single count of sexual interference.

[7]

After a finding of guilt was entered and a
    conviction recorded, the trial judge ordered a pre-sentence report and
    adjourned proceedings to await its preparation.

The Sentencing Submissions: The Period of Custody

[8]

Although the parties agreed that a custodial
    sentence was warranted, their positions differed significantly as to its
    length.

[9]

The trial Crown sought a penitentiary sentence
    of four years imprisonment. In the alternative, the Crown invited imposition
    of an upper-end reformatory sentence followed by probation for three years.
    Among the probationary terms suggested were reporting; participating in
    counselling programs recommended by the probation officer; and prohibitions
    against contacting or being in the same place as named individuals including the
    complainant.

[10]

Counsel for the respondent advocated for a
    sentence of imprisonment for one year in a provincial institution followed by a
    period of probation on the terms suggested by Crown counsel. Defence counsel
    was content to leave the length of the probation order to the trial judge.

The Sentencing Submissions: Ancillary Orders

[11]

As he began his sentencing submissions, the
    Crown said, My friend and I are joint on the ancillary orders, it's just the
    difference in terms of our positions in terms of the period of custody".
    The ancillary orders about which there is no complaint here are:

i.

a DNA sample order under s. 487.051(1) based on
    the primary designated offence of sexual interference;

ii.

a weapons prohibition under ss. 109(1) and (2) for
    10 years; and

iii.

a SOIRA order for 20 years under s. 490.13(2)(b).

[12]

The Crown also pointed out that he and defence
    counsel were agreed on orders under s. 161(1) prohibiting the respondent from
    attending:

·

public swimming areas

·

daycare centres

·

school grounds

·

playgrounds

·

community centres

where persons under 16 are or may
    reasonably be expected to be present, except when the respondent was under the
    supervision of someone over 18. The parties also agreed on an order under s.
    161(1)(b) barring the respondent from seeking, obtaining or continuing any
    volunteer or remunerated employment that involves positions of trust or
    authority towards persons under 16. The term of the prohibition, counsel
    agreed, should be 20 years.

The Discussion

[13]

During sentencing submissions, the trial judge
    expressed her concern about the appropriateness of a twenty-year prohibition on
    the respondent's attendance at a public swimming area and community centre. She
    identified two factors as the basis of her concerns: the absence of any
    connection between public facilities and the offence committed and the lack of
    any risk assessment of the respondent. As a form of punishment designed to
    protect vulnerable children from the risk of sexual predation, the orders
    should only issue where there is evidence of the existence of the risk. Here,
    the trial judge noted, there was no such evidence.

[14]

The trial judge invited counsel to make
    submissions about the orders they jointly proposed under s. 161(1)(a).

[15]

The trial Crown relied upon the joint nature of
    the submission and advanced an argument that the absence of a risk assessment
    favoured inclusion of the terms because of their purpose and the uncertainty
    about any propensity on the part of the respondent.

[16]

Trial counsel for the respondent explained that
    the proposed s. 161(1) order deleted a reference to parks and included an
    exception which allowed the respondent to attend a community centre while under
    the supervision of a person over 18 years old. This would permit the respondent
    and his father to play basketball together at the community centre.

[17]

Counsel for the respondent pointed out that the
    prohibition against contact with underage persons, frequently the subject of an
    order under s. 161(1)(c), was omitted in favour of a probationary term
    requiring adult supervision.

The Grounds of Appeal

[18]

The Crown asks that we vary the sentence imposed
    at trial to align it with the agreement trial counsel reached about the terms
    of a s. 161 prohibition and the probation order. Our intervention, the Crown
    says, is warranted on two grounds:

i.

the trial judge erred in failing to give effect
    to the parties' agreement on ancillary orders according to the principles in
R.
v. Anthony-Cook
, 2016 SCC 43; and

ii.

the ancillary orders imposed are unreasonable.

Ground #1: The Misapplication of
Anthony-Cook

[19]

The principal ground of appeal the Crown
    advances is that the trial judge failed to properly apply the principles put in
    place by
Anthony-Cook
when counsel present a joint submission on
    sentence. A brief reference to the trial judge's reasons for sentence will fill
    in the remainder of the background essential to an assessment of the merits of
    this claim.

The Reasons for Sentence

[20]

The trial judge imposed a sentence of
    imprisonment of 15 months which she recommended be served at the Ontario Correctional
    Institute. The custodial sentence was to be followed by a period of probation
    for two years. The probation order included terms that the respondent:

i.

report to a probation officer upon his release
    and thereafter as required;

ii.

undertake assessment, treatment and counselling
    as recommended by his probation officer, which is not to include phallometric testing;
    and

iii.

not contact named persons except in the presence
    of either parent.

The trial judge did not explain why
    she did not impose a blanket prohibition against contact with the complainant
    or her sister, or make an order prohibiting the respondent from being within
    100 metres of any place where the complainant lives, works, goes to school, frequents
    or the respondent knows her to be.

[21]

The trial judge explained the content of the
    order under s. 161(1) in this way:

And then with respect to the issue of 161, it
    will only be under one subsection, and that is subsection (b) where he is not
    to be seeking, obtaining or continuing any employment whether or not the
    employment is remunerated or becoming or being a volunteer in a capacity that
    involves being in a position of trust or authority towards persons under the
    age of 16 years. And that is for 10 years.

The Arguments on Appeal

[22]

The Crown begins by characterizing the agreement
    of the parties about the ancillary orders as a joint submission" as the
    term is used in
Anthony-Cook
. It is apt to do so, the Crown says,
    because the agreement involved a
quid pro quo
. Something for the
    respondent. And something for the Crown.

[23]

The respondent was facing trial on a five-count
    indictment with two complainants and a count that carried a significant sentence
    of imprisonment as a minimum punishment. The allegations included several
    incidents. Instead, the respondent pleaded guilty to a single count of sexual
    interference, with a single complainant, with no allegation of penetration and
    a limited number of incidents.

[24]

The benefit of the agreement for the Crown
    included entry of a conviction; sparing the complainants the emotional cost of
    the testimony at a very young age; and saving judicial and court resources.

[25]

As a true joint submission, the Crown continues,
    the trial judge could only depart from it if its imposition would bring the
    administration of justice into disrepute or it was otherwise contrary to the
    public interest. The trial judge failed to apply the proper standard when she
    departed from the joint submission. She viewed the applicable standard as
    simply a matter of judicial discretion. Doubtless, discretion is involved. But
    it is a closely-confined discretion, not engaged simply by what is in an
    accuseds best interests. In addition to the failure to apply the proper
    standard when considering a departure from the joint submission, the trial
    judge also did not provide counsel with an adequate opportunity to make further
    submissions in support of their agreement about the package of ancillary orders.

[26]

The respondent rejects the appellant's claim
    that the trial judge erred in the standard she applied or the procedure she
    followed in departing from the parties agreement about ancillary orders.

[27]

The respondent says that, from the outset, the
    trial judge identified the constituents of the agreement on ancillary orders
    about which she was concerned. She explained why. As
Anthony-Cook
makes
    clear, it then fell to counsel to justify the agreement. Crown counsel failed
    to provide any meaningful answer. To rely on the joint nature of the submission
    when the submission itself is challenged falls short of what is required. The
    hearing was procedurally fair.

[28]

The respondent accepts that the trial judge's
    reasons could have been more fully expressed. However, her exchanges with
    counsel reveal a proper evaluation of the agreement put before her. As the
    respondent's counsel explained, the offence committed had nothing to do with
    public facilities. The Crown tendered no risk assessment, thus the record was
    barren of any evidence that children in public facilities would be put at risk
    by the respondent's attendance there. The respondent has a social phobia and
    had no connection with playgrounds, swimming pools or other recreational areas
    except for a community centre where he played basketball with his father.
    Orders under s. 161 and probationary terms should be evidenced-based and linked
    to public safety concerns or measures to assist in an offender's
    rehabilitation.

Analysis

[29]

As we will briefly explain, this ground of
    appeal fails. We are not persuaded that what took place here is governed by the
    principles in
Anthony-Cook
.

[30]

In
Anthony-Cook
, the appellant appeared
    for trial on an indictment charging him with manslaughter. He pleaded not
    guilty. After several days of trial, the appellant reached a resolution
    agreement with the Crown. Under the agreement, the appellant would change his
    plea to guilty of manslaughter. In doing so, he would give up his right to a
    trial and, with it, the possibility of advancing self-defence as a
    justification for having caused the death of the deceased. In return, the
    appellant would serve a sentence of a further 18 months in custody  in
    addition to the time he had already spent in pre-trial custody  without any
    period of probation thereafter.

[31]

The joint submission in
Anthony-Cook
related
    to the fundamental, principal or core element of the sentence. The length and
    nature of the custodial sentence and the absence of any post-custodial
    supervision through a probation order. In other words, this joint submission
    was not about ancillary orders. Indeed, there is nothing said about ancillary
    orders.

[32]

In addition to this factual distinction from
    this case, the Court in
Anthony-Cook
makes it clear that their reasons
    do not address sentencing flowing from plea agreements in which the parties are
    not in
full
agreement about the appropriate sentence:
Anthony-Cook
,
    at paras. 2, 50 and footnotes 1, 3. In this case, the parties were in agreement
    about the ancillary orders, but far apart on the principal component of the
    sentence  the length of the term of imprisonment.

[33]

Further, the agreement about ancillary orders
    could scarcely be characterized as the product of resolution discussions. Two
    of the orders - a DNA order and a SOIRA order  were mandatory as a result of
    the offence to which the appellant had entered his plea of guilty and of which
    he had been convicted.

[34]

In addition, that the parties may be in
    agreement about ancillary orders, some of which are mandatory, cannot, without
    more, convert submissions that are several into one that is joint.

[35]

In this case, the trial judge advised counsel of
    her concern about the proposed prohibitions under s. 161. She provided counsel
    with ample opportunity to justify the proposed orders. None was forthcoming.

[36]

The trial judge was properly concerned about
    including within the prohibition under s. 161(1) places such as swimming areas,
    daycare centres, school grounds and playgrounds. And also about the duration of
    the order  20 years. None of these locations had any connection to the
    appellant or to the offence of which he was convicted. No risk assessment was
    provided. Prohibitions that overshoot the mark serve no valid sentencing
    purpose.

[37]

Despite our rejection of this ground of appeal,
    the Crown is not without its remedies. Section 161(3) of the
Criminal Code
permits the Crown to apply to the sentencing judge or another judge of equivalent
    jurisdiction for an order varying the conditions if a variation is desirable
    because of a change in circumstances since the order was made.

Ground #2: The Unreasonableness of the Orders

[38]

The Crown advances a second ground of appeal.
    She says that the s. 161(1) prohibition and the term of the probation order
    permitting contact with the complainant and her sister under parental
    supervision are unreasonable. Each affords inadequate protection to the
    complainant (the probation order) and the underage public (the s. 161 order).

[39]

We do not agree. Our reasons are four fold.

[40]

First, the standard of review.

[41]

A prohibition under s. 161 and a probation order
    under s. 731 fall within the definition of sentence" in s. 673 of the
Criminal
    Code
. Appellate intervention in a sentence imposed at trial is limited to
    cases in which the sentencing judge has:

i.

erred in principle;

ii.

failed to consider a relevant factor; or

iii.

erroneously considered an aggravating or
    mitigating factor

and the error has had an impact on the
    sentence imposed or imposed a sentence that is manifestly unfit:
R. v.
    Lacasse
, 2015 SCC 64, at para. 44.

[42]

A submission that failure to extend the
    prohibition under s. 161(1) to swimming areas, playgrounds and schoolyards and
    to include a parental supervision exception in the non-association term of the
    probation order is unreasonable, without more, does not meet the standard
    required for appellate intervention.

[43]

We acknowledge, of course, that a sentence may
    be demonstrably unfit even if the sentencing judge made no error in imposing
    it. This too is a very high threshold, reflecting a sentence that is clearly
    excessive or inadequate" or representing a substantial and marked departure":
Lacasse
, at para. 52. The appellant's complaint falls well short of
    this threshold.

[44]

Second, the discretionary nature of the order at
    issue.

[45]

Unlike the DNA and SOIRA orders included as part
    of the sentence, whether a s. 161(1) prohibition or a probation order is
    included in a sentence is largely a matter that engages the discretion of the
    sentencing judge. Likewise, the terms of each order. The exercise of this
    discretion in both its aspects is entitled to substantial deference in this
    court.

[46]

Third, the absence of evidentiary support.

[47]

It is well settled that s. 161(1) orders are punishment
    for the purposes of s. 11(i) of the
Charter
:
R. v. J. (K.R.)
,
    2016 SCC 31. The sentencing judge was concerned that there was no nexus between
    the respondent and his offence and the breadth and time period requested for
    the order. No one suggested or offered any evidence of any such nexus. Her
    questions unanswered, the sentencing judge was entitled to conclude that the
    expansive prohibition sought was not warranted.

[48]

Finally, we reiterate the availability of review
    mechanisms that the Crown may invoke to vary the terms of both orders should
    circumstances change:
Criminal Code
, ss. 161(3) and 732.2(3).

Disposition

[49]

For these reasons, leave to appeal sentence is
    granted, but the appeal from sentence is dismissed.

Released: GRS August 14, 2020

G.R. Strathy C.J.O.

E.E. Gillese J.A.

David
    Watt J.A.