WARNING

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

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

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    that any information that could identify the complainant or a witness shall not
    be published in any document or broadcast or transmitted in any way, in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

(a)      any
    of the following offences;

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

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

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

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

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

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

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

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

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

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

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

COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. P.N.D., 2012
    ONCA 866

DATE: 20121207

DOCKET: C51661

Rosenberg, Cronk and Pepall JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

P.N.D.

Appellant

Daniel J. Brodsky, for the appellant

Lisa Joyal, for the respondent

Heard: December 6, 2012

On appeal from the sentence imposed on December 17, 2007
    by Justice Gerald R. Morin of the Superior Court of Justice, sitting without a
    jury.

APPEAL BOOK ENDORSEMENT

[1]

There is no merit to this appeal. The trial judges reasons disclosed no
    error. In particular, the summary of factors at para. 49, which are supported
    by the evidence, fully support the disposition.

[2]

The fact that there may have been a lapse in the hospitals supervision
    does not demonstrate that the indeterminate detention disposition was
    inappropriate. To the contrary, that the appellant was able to sexually assault
    a child in the few seconds that he evaded supervision demonstrates that the
    disposition by the trial judge was appropriate.

[3]

Finally, the decision in
R. v. Bedard
, 2009 ONCA 678, does not
    support the appellants position.
Bedard
may involve a more dangerous
    individual, but this appellant fits well within the category of dangerous
    offenders, which is admitted, and the disposition of indeterminate detention
    was also appropriate.

[4]

There was no reason to believe that the appellant could be controlled in
    the community for the reasons detailed in the trial judges complete reasons.

[5]

Accordingly, the appeal is dismissed.


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Peloso, 2012 ONCA 870

DATE: 20121210

DOCKET: C53337

Goudge, MacPherson and Pepall JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Giuseppe Peloso

Appellant

Bruce Engel, for the appellant

Croft Michaelson, for the respondent

Heard: December 7, 2012

On appeal from the conviction entered on September 27,
    2010 by Justice Robert Smith of the Superior Court of Justice, sitting without
    a jury.

APPEAL BOOK ENDORSEMENT

[1]

In our view, the motion judge who dealt with the s. 11(b) issue did not
    err in her determination that the unreasonable delay required her to go on to balance
    the prejudice to the appellant against the societal interest in having a trial.
    We agree with her that the delay here was unreasonable and that the absence of an
    explanation from the Crown meant that the Crown had to bear full responsibility
    for the delay in producing the forensic audit report.

[2]

Nor would we interfere with the motion judges weighing of the prejudice
    to the appellant against societal interest in having a trial.

[3]

In doing so she was alive to any inferred prejudice to the appellant
    from delay. Her finding that this being a documents case made the possibility
    of fading memories less significant was entirely open to her. We do not view
    the trial judges findings on the appellants credibility as based in any way
    on the passage of time and therefore on the fading memory.

[4]

We would therefore dismiss the appeal.


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Ramgadoo, 2012
    ONCA 921

DATE: 20121227

DOCKET: C52659

Laskin, Feldman and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Christopher Ramgadoo

Appellant

Paul Calarco, for the appellant

Karen Papadopoulos, for the respondent

Heard: April 24, 2012

On appeal from the sentence imposed on February 16, 2010
    by Justice Donald J. Halikowski of the Ontario Court of Justice.

Feldman J.A.:

OVERVIEW

[1]

On February 12, 2008, Christopher Ramgadoo pled guilty to aggravated
    sexual assault, sexual interference, unlawful confinement, attempted choking,
    and breach of probation. The convictions stemmed from an attack on a
    13-year-old girl.

[2]

Because of the appellants record for sexual assault of an 18-year-old
    woman, as well as for assault and criminal harassment of another woman, the
    Crown sought a dangerous offender designation. During the 14-day hearing, it
    was agreed that the appellant satisfied the statutory criteria for a dangerous
    offender designation under s. 753(1) of the
Criminal Code
.

[3]

Consequently, the only issue at the hearing was whether there was a
    reasonable possibility that the risk posed by the appellant could be eventually
    controlled in the community pursuant to s. 753.1 of the
Code
. If a
    reasonable possibility of control existed, this provision, as it has been
    interpreted by the Supreme Court of Canada in
R. v. Johnson
, 2003 SCC
    46, [2003] 2 S.C.R. 357, at paras. 32 and 40, would have mandated the court to
    declare the appellant a long-term offender rather than a dangerous offender and
    to impose a determinate sentence and a long-term supervision order rather than
    an indeterminate sentence.
[1]

[4]

On February 16, 2010, the sentencing judge found that there was no
    reasonable possibility that the risk posed by the appellant could be eventually
    controlled in the community, declared the appellant a dangerous offender, and
    imposed an indeterminate sentence. The appellant was 33 years of age at the
    time of sentencing.

[5]

On this appeal, the appellant submits that the sentencing judge failed
    to consider how recidivism would be reduced by both the natural aging of the
    appellant and by making a regime of medications a condition of a long-term
    supervision order that would be enforced by the National Parole Board.

[6]

For the following reasons, I would dismiss the appeal.

The Predicate Offence

[7]

On April 9, 2007, the 13-year-old victim was waiting on a bench at the
    front of her building for a friend to arrive. Uninvited, the appellant sat down
    beside her. He asked her a number of questions and then kissed her. She pushed
    him away and went into the lobby of the building.

[8]

The appellant followed her into the building. He grabbed her as she
    tried to escape and began choking her, threatening to kill her if she screamed.
    He dragged her down the hall and into the stairwell and continued to choke her
    as he dragged her up the stairs to the elevator control room. The appellant
    demanded that she remove her clothes. When she refused, he pushed her to the
    ground, rolled her onto her back and resumed choking her. The appellant bit her
    face and smashed her head against the concrete floor. The victim finally
    removed her clothes.

[9]

The appellant returned to choking the victim before forcibly raping her
    until he ejaculated.  He did not use a condom. The victim was then forced to
    perform fellatio on the appellant. He ejaculated in her mouth. He left her
    lying on the floor.

EVIDENCE AT THE SENTENCING HEARING

Prior Criminal Record

[10]

The appellants criminal record, dating back to 2003, was entered as an
    exhibit at the hearing. His record included prior convictions for assault,
    criminal harassment, breach of a conditional sentence order and sexual assault.
    The assault, criminal harassment and breaches arose out of a series of
    incidents in 2003 and 2004 involving the owner of a tanning salon, the most
    serious of which involved the appellant choking the woman. The sexual assault
    conviction was based on a random attack on an 18-year-old woman in 2005.

Evidence of Correctional Services Officers

Sherri
    Roussell

[11]

Ms. Roussell is a parole office supervisor with the
    Correctional Service of Canada. She gave her understanding of the Parole Boards
    authority to decide if an offender who has been released pursuant to a
    long-term sentencing order could be charged with the offence of breaching that
    order under s. 753.3 of the
Code
. When an offender is convicted under
    that provision, the long-term supervision order is suspended for the period of
    incarceration, which can be up to 10 years.
[2]

Kimberly
    Vink

[12]

Ms. Vink was the appellants probation officer between 2004 and 2007 and
    is specially trained in the risk assessment and identification of sexual
    offenders. According to Ms. Vink, although the appellant was generally
    compliant about reporting and signing consents to release information, he
    showed little insight into his offending conduct and was generally not eager
    to engage in sexual offender counselling. He suggested at almost every
    appointment that he felt fine and wanted to reduce or stop his medication, despite
    constant reminders that the failure to take his medication would increase his
    risk of reoffending.

Alan
    Fair

[13]

Mr. Fair is a registered social worker who specializes in providing
    counselling services to sexual offenders on release into the community. He
    counselled the appellant at various times between 2004 and 2007. He last
    visited with the appellant on April 4, 2007, five days before the appellant
    committed the predicate offence. At that time, the appellant informed Mr. Fair
    that he was feeling a lot better and doing a lot better. Mr. Fair was of the
    opinion that the appellant was probably the most coherent [he] had seen him. The
    appellant also confirmed that he had been taking his medications and that he
    had not been using alcohol or drugs, although it later became apparent that the
    appellant had deceived Mr. Fair in this regard.

Expert Evidence

Dr.
    Philip Klassen

[14]

Dr. Philip Klassen was the psychiatrist called as the Crowns expert
    witness. In a report dated August 30, 2008, he stated that the appellant
    suffered from an anti-social personality disorder, schizophrenia, a paraphilia
    or paraphilias (connected to his coercive sexual preference) and substance
    abuse disorders.

[15]

Based on a variety of tests of the appellant, Dr. Klassen concluded that
    he was at a high risk of re-offence. During examination-in-chief, Dr. Klassen
    referred to the risk as both fairly high and simply as high, adding that
    the appellants score on risk assessment instruments demonstrates that his
    risk to reoffend sexually is at or greater than about 90 per cent of convicted
    sex offenders.  Dr. Klassen described the appellant before the court as at
    the high end of the LTO range or the low end of the DO range.

[16]

As Dr. Klassen was confident that the appellant met the criteria for a
    dangerous offender designation, the majority of his analysis was focused on
    whether the appellant also met the criteria for a long-term offender
    designation. For the purpose of these reasons, I review his evidence on the two
    points raised on appeal: first, the evidence concerning any age-related
    reduction in the risk posed by the appellant; and second, the evidence
    concerning both the potential efficacy of medication in controlling the risk
    posed by the appellant and the likelihood that the appellant would be compliant
    with a medication regime.

[17]

With respect to age-related reduction in risk, Dr. Klassen noted in his
    report that persons with a paraphilic coercive disorder tend to experience
    age-related decline in their propensity for such behaviour at some point,
    typically in their forties. He added during examination-in-chief that in the
    case of stranger rapes, offending, by the time a person is into their
    fifties, numerically essentially hits zero.

[18]

In the appellants case, however, Dr. Klassen qualified this opinion by
    saying that these statistics are derived from studies of sex offenders, few of
    whom also have schizophrenia, and that the appellants schizophrenia makes it
    possible that a violent offence could be committed at a more advanced age.

[19]

On the subject of the appellants treatment prospects, Dr. Klassen wrote
    in his report that the appellant was not a particularly good treatment
    candidate. During examination-in-chief, he elaborated on this point by saying
    that the appellant has been quite compliant with treatment and management
    suggestions in an institution but in the community his approach to psychiatric
    care and medication use was quite different. Dr. Klassen noted that if the
    appellant were released, he would initially breach his conditions as a way of
    testing them.

[20]

On the specific point of the efficacy of the injectable drugs at
    issue, Dr. Klassen noted during examination-in-chief that although people
    think that there is magic in delivering an injection, this approach is still
    dependent on the patient self-reporting whether, for example, he is still
    having arousal to the thought of rape. Nevertheless, when pressed during
    cross-examination on how the appellant might respond to the strongest form of
    sex drive reducing medication (which had never been administered to him
    before), Dr. Klassen stated:

[W]e cant really state it with certainty because we dont really
    have an antecedent history of looking at this in Mr. Ramgadoo, but really if he
    was willing, you know, I think Mr. Ramgadoo is two injections a month away from
    a much better lifestyle. If he took antipsychotic medication by injection and
    if he took sex drive reduction by injection, I think hes a person whose risk
    would go way down, but he needs to take it and he needs to take it
    consistently.

[21]

Dr. Klassen concluded his report with the following opinion:

If this gentleman were to be released to a community
    correctional facility (and thereafter were to live only in accommodation
    approved by the National Parole Board), and if he were to be consistently
    treated with antipsychotic medication, and if conditions were in place to
    monitor and manage his substance use, and particularly if this gentleman was on
    injectable sex-drive reduction, and if the foregoing could be maintained for a
    period of time that would take this individual into, at least, his mid-forties,
    then, from a psychiatric perspective, I would be prepared to support the notion
    of reasonable possibility of eventual control of the risk in the community.
    While on prior releases when this gentleman became noncompliant with
    medication use there appear to have been insufficient levers available to intervene,
    resulting in the cascade that led to Mr. Ramgadoos offending. Given that Mr.
    Ramgadoo chafes at the notion of external controls future efforts at community
    supervision will need to be such that there is leverage for quick and
    substantial intervention at any suggestion of non-compliance with conditions
    of his release.

Dr. Mark Pearce

[22]

Dr. Mark Pearce was the psychiatrist called as the expert witness for
    the defence. In his report dated December 15, 2009, he diagnosed the appellant
    with essentially the same conditions that Dr. Klassen had: schizophrenia,
    polysubstance dependence, paraphilia (connected to his coercive sexual
    preference), and anti-social personality disorder.

[23]

Dr. Pearce also ran a variety of tests to determine the likelihood that
    the appellant would reoffend. On one of them, Dr. Pearce concluded that the
    appellants score suggested a high risk of future violent (including sexual)
    recidivism. On another, the appellants score was indicative of a high risk
    of future violent behaviour, absent significant interventions. In
    examination-in-chief, Dr. Pearce acknowledged that his test results did not
    differ much from those of Dr. Klassen. In cross-examination, Dr. Pearce
    acknowledged that his report was fairly consistent with that of Dr. Klassen.

[24]

As Dr. Pearce was also confident that the appellant met the criteria for
    a dangerous offender designation, the majority of his report was focused on
    whether the appellant met the criteria for a long-term offender. As I did with
    Dr. Klassens evidence, for the purposes of these reasons, I focus my review of
    Dr. Pearces evidence on the two issues raised on appeal: first, whether there
    is any age-related reduction in the risk posed by the appellant; and second,
    the efficacy of an enforced regime of medications in controlling that risk.

[25]

On the first issue, Dr. Pearce did not make any comment in his report on
    whether there is any age-related reduction in the risk. His only testimony that
    pertained to this point emerged in cross-examination. He agreed with Dr.
    Klassen that there is an age-related decline in sexual assaults against
    strangers and noted that we dont know a lot about sex offenders who have
    schizophrenia.

[26]

Turning to the second issue, in terms of drug treatments, Dr. Pearce
    carefully articulated in his report what medications he thought would be
    appropriate for each of the appellants conditions. He stated that an
    injectable schizophrenia medication would greatly assist in ensuring that Mr.
    Ramgadoo is compliant with prescribed medication. When discussing a
    recommended antipsychotic drug, Dr. Pearce noted that the appellants
    psychotic disorder is relatively treatment responsive, which is a favourable
    prognostic indicator. Dr. Pearce was less optimistic about the appellant
    overcoming his substance dependencies and his anti-social personality disorder.

[27]

As for the appellants paraphilia, Dr. Pearce agreed with Dr. Klassen
    that libido reducing medication would be necessary, stating that it would be
    an essential risk management strategy. During examination-in-chief, Dr. Pearce
    elaborated on this point, noting that a sex drive reducing medication,
    delivered via injection, would be very helpful in reducing his risk for
    re-offence. If all these medications were taken, Dr. Pearce opined that the
    risk of re-offence would be dramatically lowered.

[28]

On cross-examination, when asked specifically about the efficacy of sex
    drive reducing medication, Dr. Pearce stated that there are not really any good
    studies about it. While clinical experience suggests that such drugs reduce
    the recidivism of sex offenders, he stated: certainly people have reoffended
    on sex [drive] reducing medications.

[29]

On the prospects of the appellant actually taking all these medications,
    Dr. Pearce stated in his report that it was a positive indicator that Mr.
    Ramgadoo is willing to accept and participate in various treatments and that
    with the close and intense monitoring of a long-term supervision order, the
    risk posed by the appellant could be managed adequately. Noting the
    appellants history of taking his medications when in jail but not when he is
    in the community, Dr. Pearce recommended long-term injectable medication so
    that compliance could be monitored. On cross-examination, Dr. Pearce was asked
    whether, owing to the appellants set of diagnoses being quite unusual, it
    became somewhat speculative to determine how successful certain treatment will
    be. He agreed that this was somewhat true.

[30]

Ultimately, Dr. Pearce summarized his conclusion in his report as
    follows:

In summary, the possibility that Mr. Ramgadoo will be
    manageable in the community upon the expiry of his LTSO is somewhat mixed. The
    fact that he is agreeable to a variety of programming is a positive prognostic
    factor, as is his ongoing contact with his family. Intensive treatment in
    multiple domains, primarily the pharmacological realm, may assist with Mr.
    Ramgadoos propensity to violence (sexual and otherwise). Given these
    considerations, and weighing the aforenoted factors, I am of the opinion that
    there is reason for optimism as regards reducing the likelihood of future
    violent behaviour.

[31]

Dr.
    Pearce expressed a similar conclusion in his oral evidence:

I do think that given the various diagnoses, given the lack of
    psychopathy, given the treatment prognosis for the diagnosis and his
    willing[ness] to accept that treatment, that there is some support that this
    gentleman could be managed by virtue of a long term supervision order.

THE DECISION OF THE SENTENCING JUDGE

[32]

The sentencing judge reviewed the evidence in detail. He began by
    describing the appellants personal history, including early and continuing
    substance abuse and his failure to go beyond grade 11 in his education. When
    asked, the appellant said that he personally had suffered sexual abuse but did
    not want to report it.

[33]

The sentencing judge next discussed the appellants encounters with the
    justice system before he was convicted of any offences. He then described the
    three incidents in which the appellant attacked women that resulted in
    convictions. The first incident was when he choked the owner of the tanning
    salon. He received a conditional sentence, which he served in part at the St.
    Lawrence Valley Corrective Treatment Centre. However, while serving the
    conditional sentence, the appellant sexually assaulted an 18-year-old female
    stranger he happened to meet while riding his bicycle.
[3]
This sexual assault was also a breach of the conditional sentence, the
    remainder of which he served in custody concurrently with the 16-month sentence
    imposed for the sexual assault. One month after his release, the appellant
    committed the predicate offence, the violent sexual assault of a 13-year-old
    victim.

[34]

The sentencing judge then assessed the appellants criminal behaviour.
    He found that the appellants crimes showed a complete disregard for the
    physical integrity of the victims, that his acts display[ed] no sense of
    empathy for the victims, and that he behaved with utter selfishness  and
    further terrorized this child by telling her that he would kill her if she
    reported the incident.

[35]

The next phase of the reasons is a thorough review of the evidence of
    the two psychiatrists, including their diagnoses and prognoses for the
    appellant and, importantly, their assessments of his risk to reoffend. The
    sentencing judge synthesized Dr. Klassens opinion from his oral evidence on
    the appellants suitability for treatment as follows:

Dr. Klassen holds the view that the Accused would not be a good
    treatment candidate in the community. The extent of his various diagnoses and
    his reaction to Sex Treatment at the St. Lawrence facility suggest strongly
    that he needs to be managed by means of external controls  that is  controls
    that do not depend on trusting the Accused to take his medications and engage
    actively and voluntarily in ongoing therapies.

[36]

The sentencing judge also quoted in full Dr. Klassens opinion from his
    report, which is set out above at para. 21 of these reasons. In that report,
    Dr. Klassen stated that conditions of any release into the community should
    require the appellant be treated with antipsychotic medication and injectable
    sex drive reduction medication. I repeat here his conclusion:

Given that Mr. Ramgadoo chafes at the notion of external
    controls (still expressed to me), perhaps a reflection of his experiences with
    his parents, future efforts at community supervision will need to be such that
    there is leverage for quick and substantial intervention (resulting in
    re-incarceration or return to a community correctional centre) at any
    suggestion of non-compliance with the conditions of his release.

[37]

The sentencing judge noted that Dr. Pearce emphasized that the appellant
    would have to be trusted to take his medications and to comply with treatment
    for his paraphilia and with testing for his substance abuse issues while on
    community supervision. He referred to Dr. Pearces guarded opinion that the
    appellant may be manageable in the community, but that the likelihood of
    success was somewhat mixed.

[38]

The sentencing judge then referred with great concern to the evidence of
    the social worker, Mr. Fair. Mr. Fair had contact with the appellant on April
    4, 2007. The appellant demonstrated a positive attitude, and Mr. Fair believed
    the appellant when he said that he was on his medication and abstaining from
    alcohol. This was only a few days before he committed the predicate violent
    sexual offence. The appellants deception of a very experienced social worker
    who knew the appellant and knew about his medications and his general attitude
    regarding reoffending, demonstrated a very concerning ability to manipulate
    people.

[39]

Having found that the appellant satisfied the statutory criteria
    for a dangerous offender under s. 753(1) the
Code
, on which both
    experts agreed, the sentencing judge then considered whether there was a
    reasonable possibility of eventual control of the appellants risk in the
    community, pursuant to s. 753.1(1) of the
Code.
[4]

[40]

He concluded that there was no reasonable possibility of eventual
    control in the community and summarized his reasons as follows:

Given the violent nature of his crimes and the extensive damage
    he causes by his actions; his lack of empathy for his victims both at the time
    of the crimes and after his having undergone extensive therapy; his ongoing
    untrustworthiness to accept judicial and medical intervention to minimize the
    risks he poses to the community; his proven intentions and refusals to take the
    required medications necessary to reduce his sexual urges and his psychotic
    inclinations; his distrust and challenging attitude towards those in authority
    who are mandated to control his behaviours and the uncertainty and mere
    speculation that any known therapies or treatments will have the effect of
    reducing his risk to society given the cluster and interrelationship between
    his schizophrenia, paraphilia, drug and alcohol addictions and his personality
    disorder; this Court finds that there is no reasonable possibility of eventual
    control of the Accuseds risk in the community.

ISSUES

[41]

The appellant raises two issues on the appeal. Did the sentencing judge
    err in imposing a dangerous offender designation on the appellant, rather than
    a long-term offender designation, by failing to consider: a) the effect of
    aging or burn-out on the appellants likelihood to reoffend on release; and
    b) the terms that the National Parole Board could impose on release, including
    mandatory antipsychotic and sex drive reducing drugs?

ANALYSIS

Standard of Review

[42]

Deference is to be accorded to the sentencing judge on issues of
    fact-finding and credibility, including the critical question of the reasonable
    possibility of eventual control of the offender in the community:
R. v.
    R.M.
, 2007 ONCA 872, 228 C.C.C. (3d) 148, at para. 53.

[43]

The appellant submits, nevertheless, that when considering whether the
    trial judge committed the alleged errors, the court should bear in mind, a) the
    significant effect the dangerous offender designation has on the offender and
    on his liberty, and b) it was intended that the designation would apply only
    where less restrictive means that will adequately protect the public do not
    exist:
Johnson,
at para. 44.

Issue 1: Did the sentencing judge err by failing to consider
    the burn-out effect of aging on the appellant when assessing his future
    dangerousness and the ability to control his risk to the community in the
    future?

[44]

In his reasons, the sentencing judge did not refer to the burn-out
    theory, the normal tendency for aging to have the effect of reducing the
    tendency of offenders toward violent sexual assaults. He made no error in not
    doing so in this case, based on the record before him. Trial counsel for the
    appellant did not advance the argument following the testimony of the two
    experts on the issue.

[45]

Dr. Klassen testified that generally by age 45 or 50, a sexual
    offenders risk of committing a stranger rape will be quite low, but he was
    not sure whether that applied in the appellants case. The reason was that the
    appellant is part of a relatively rare group of people, as someone diagnosed
    with both schizophrenia and a paraphilic coercive disorder and who commits
    stranger rapes. He testified that he had seen offenders with schizophrenia
    committing violent offences at age 55 and 60, as compared with
    non-schizophrenic people. He could not tell the court at what age range the
    appellant would no longer be a concern.

[46]

The appellants expert, Dr. Pearce, was only asked about the effect of
    aging in cross-examination by the Crown, not by defence counsel. He said he
    would not be surprised if Dr. Klassens statement that the aging effect may be
    different with schizophrenics is true.

[47]

Based on the state of the evidence before him and the fact that defence
    counsel did not rely on the aging effect in his submissions, there was no basis
    and no reason for the sentencing judge to refer to the aging effect as a
    consideration in his assessment of the ability to control the risk to the
    community of the appellant reoffending in the future.

Issue 2: Did the trial judge err by failing to determine
    whether the appellant would be amenable to taking injectable treatment drugs
    and, if so, by failing to consider a long-term supervision order that would
    include a mandatory treatment order by the Parole Board as a condition of
    release?

[48]

The appellants position is that the sentencing judge did not consider
    the full panoply of controls available under the long-term offender regime. In
    particular, he did not consider the use of a mandatory drug treatment order
    enforceable as a condition of a long-term supervision order. By not considering
    that option, the sentencing judge erred in law by limiting his discretion.

[49]

The appellant submits that the Parole Board may order treatment as a
    condition of a long-term supervision order where three conditions are met: 1)
    drug treatment for the offender is necessary for the protection of the public;
    2) a doctor determines the required treatment protocol; and 3) the offender is
    willing to consent to the treatment. If that is the case, a sentencing judge
    who is considering whether to order a long-term offender designation should
    take into account the potential for mandatory medication to control the
    offenders risk of reoffending.

[50]

The appellant acknowledges that because no person can be forced to take
    medication against his or her will, a long-term offender who is subject to a
    mandatory order may refuse treatment. In the case of a refusal, s. 753.3 of the
Code
could be employed. It provides an offence punishable by a maximum
    sentence of 10 years for a breach of a long-term supervision order. If the
    appellant were to be convicted of failing to comply with his long-term
    supervision order and sentenced to a term of imprisonment, then under s. 753.4,
    the long-term supervision would be interrupted unless the court ordered its
    termination or reduction.

[51]

Those sections provided:
[5]

753.3 (1) An offender who is required to be
    supervised by an order made under paragraph 753.1(3)(b) [a long-term
    supervision order] and who, without reasonable excuse, fails or refuses to
    comply with that order is guilty of an indictable offence and liable to
    imprisonment for a term not exceeding ten years.

753.4 (1) If an offender who is required to
    be supervised by an order made under paragraph 753.1(3)(b) commits one or more
    offences under this or any other Act and a court imposes a sentence of
    imprisonment for the offence or offences, the long-term supervision is
    interrupted until the offender has finished serving all the sentences, unless
    the court orders its termination.

(2) A court that imposes a sentence of
    imprisonment under subsection (1) may order a reduction in the length of the
    period of the offenders long-term supervision.

[52]

The appellant quarrels with the sentencing judges determination that,
    based on his past non-co-operation with treatment programs, it was speculative
    that treatments or therapies would reduce the risk that the appellant would
    reoffend. He made this determination on the basis that the appellants
    treatment would be strictly voluntary. He did not consider the effect that a
    mandatory treatment order by the Parole Board might have on the appellants incentive
    to comply with that order and co-operate with treatment.

[53]

In this context, the appellant raises the issue of whether the Parole
    Board can order mandatory drug treatment as a condition of a long-term
    supervision order and whether a sentencing judge can so assume when considering
    a long-term offender designation. In
R. v. R.B.
, 2011 ONCA 328, 280
    O.A.C. 329, at para. 12, this court acknowledged that a Parole Board has the
    power to make taking medication a condition of a long-term supervision order,
    but on the understanding that such an order does not mean that the person would
    or could be physically forced to take medication. Rather, if the person does
    not consent to take the medication when required to do so under the terms of
    the order, that could then amount to a breach of the condition under s.
    753.3(1) unless the person had a reasonable excuse for refusing to take the
    prescribed medication (at para. 13).

[54]

The appellant acknowledges that when an offender says he is not willing
    to have treatment, that likely indicates that he is not motivated to change
    and, therefore, he is more likely to be designated a dangerous offender.
    However, when the person is willing to accept treatment, the court can
    recommend treatment as a condition of the long-term supervision order and the
    Parole Board can make it a condition when the time comes for the persons
    release, following service of the definite term imposed. Before a court
    recommends enforceable treatment, it should be convinced, on balance the
    appellant submits, that the offender is willing to participate in treatment.

[55]

The appellants position is that in this case, the sentencing judge did
    not consider whether making treatment a condition of his release as a long-term
    offender with enforcement consequences if he did not comply could reduce the
    risk that he would reoffend. He submits that a new hearing is required for the
    court to specifically consider this issue and that an appellate court is not
    able to make the necessary findings regarding the appellants willingness to
    engage in treatment without hearing the evidence.

[56]

The problem with this submission is that for this offender, the
    suggested condition precedent to the recommendation of a mandatory treatment
    order was not met: the sentencing judge was not convinced on a balance of
    probabilities that the appellant was willing to engage in treatment. He focused
    on the appellants ongoing untrustworthiness to accept judicial and medical
    intervention to minimize the risks he poses to the community; his proven
    intentions and refusals to take the required medications necessary to reduce
    his sexual urges and his psychotic inclinations; his distrust and challenging
    attitude towards those in authority who are mandated to control his behaviours.
    (See para 40 above.)

[57]

This finding was firmly grounded in the evidence and is subject to
    deference. Dr. Klassen observed that while the appellant was compliant with
    treatment when institutionalized, his history was one of non-compliance when in
    the community. Dr. Klassen believed that the appellant would initially breach
    any mandatory medication condition. Given this evidence and the findings of the
    sentencing judge, I do not agree that a new hearing is required.

[58]

A mandatory treatment order can serve the dual function of providing a significant
    measure of protection for the public while allowing the offender the
    opportunity to serve his sentence as a long-term offender rather than as a
    dangerous offender. Its enforcement feature is there to serve as a backstop or
    assurance that the appellant will continue his initial willingness to comply
    with treatment as required. If the offender is truly willing and able to
    change, and the sentencing judge is satisfied that he will comply with
    mandatory drug treatment once released, hopefully the deterrent effect of the
    penal consequences of any breach will be sufficient to prevent any lapse. The
    enforcement feature will not have served its purpose if it is the first resort
    of an offender who refuses treatment soon after entering the community.

[59]

I agree with the appellant that when deciding whether to make a
    long-term offender or a dangerous offender finding, sentencing judges should
    consider a mandatory treatment recommendation as one of the conditions of the
    order, where necessary for the particular offender and where the offender has
    demonstrated a willingness to comply. However, the sentencing judge in this
    case made no error by not making that recommendation for this offender and
    finding that he lacked the commitment to the necessary drug regimes that could
    sufficiently reduce his risk to reoffend.

[60]

I would therefore dismiss the appeal.

Released: JL December 27, 2012

K.
    Feldman J.A.

I
    agree J.I. Laskin J.A.

I
    agree David Watt J.A.

Appendix

[61]

Prior
    to the 2008 amendments, the following provisions read as
  follows:

753. (1) The court may, on application made
    under this Part following the filing of an assessment report under subsection
    752.1(2), 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 described in paragraph (a)
    of the definition of that expression in section 752 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, [or]

(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...

(4) If the court finds an offender to be a dangerous
    offender, it shall impose a sentence of detention in a penitentiary for an
    indeterminate period.

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

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

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

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

[1]
This sentence was imposed under Part XXIV of the Criminal Code as it read before
    amendments in 2008. The effect of the amendment is not an issue on this appeal.

[2]
Materials that were entered as an exhibit at the hearing provide further
    details (Shandy-Lynn Briggs, CSC and Long
    Term Supervision Orders, CD-ROM: (Correctional Service Canada, 2008), at
    p. 6):

CSC [Correctional Service Canada] can issue a warrant
    of suspension and apprehension, which will hold the long-term offender in
    custody for a maximum of 90 days.
    Within that 90 day period, the NPB may take a decision to proceed with
    recommending the laying of an information for breach of a LTSO condition. This
    recommendation may be accepted or rejected by the Crown or police. Breaching a
    LTSO condition is a serious criminal charge with a maximum penalty of 10 years. Laying a
    criminal charge for breach of condition is the only mechanism CSC has in
    removing a LTSO offender from the community. Police can also lay a breach of
    condition charge at any time during the LTSO, under s. 753.3 of the Criminal Code. Once the police lay a
    breach of condition charge, the CSC warrant expires immediately. [Emphasis in
    original.]

[3]
Although the sentencing judge described the assault as involving forcible
    non-consensual sexual intercourse, the sexual assault incident as described by
    the trial judge involved the appellant performing oral sex on the victim,
    digitally penetrating her and intending to have intercourse but ejaculating
    before he did.

[4]
I have included these provisions as they read at the time in the Appendix to
    these reasons.

[5]
There have been minor changes in the terminology of these sections as a result
    of the 2008 amendments to Part XXIV of the Criminal Code.


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), (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, 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 satisfied that the order is
    necessary for the proper administration of justice.

(2)

On application of a justice
    system participant who is involved in proceedings in respect of an offence
    referred to in subsection 486.2(5) or of the prosecutor in those proceedings, 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 necessary for the proper administration of justice.

(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 significant 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.

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. 205, c. 32, s. 15.

COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. S.G., 2012
    ONCA 895

DATE: 20121219

DOCKET: C53495

Juriansz, Watt and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

S. G.

Appellant

S. G., in person

Delmar Doucette, duty counsel

Eric Siebenmorgen, for the respondent

Heard and released orally: November 21, 2012

On appeal from the conviction entered on January 27, 2011
    and the sentence imposed on March 25, 2011 by Justice Paul F. Lalonde of the Superior
    Court of Justice, sitting with a jury.

ENDORSEMENT

[1]

The appellant was convicted by a jury of two counts relating to assaults
    committed on her 23-month-old daughter. She defended the case primarily on the
    basis that the assailant was her then boyfriend who had a disposition for
    violence.

[2]

Mr. Doucette raises three grounds of appeal. Mr. Siebenmorgen, for
    the respondent, acknowledges that errors in the jury selection process warrant
    the setting aside of the convictions and an order for a new trial. We agree

[3]

The first error has to do with the timing of the decision to choose
    alternate jurors. Under s. 631(2.1) of the
Criminal Code
the decision
    to choose alternate jurors must be made before the clerk of the court withdraws
    any cards from the box at the outset of jury selection. Here, the trial judge
    did not make his decision to select alternates until a jury of 12 had already been
    selected. No statutory authority permits the decision to select alternates to
    be made at the time of the selection process at which it was made here.

[4]

Of greater significance, however, is the second error. During the
    selection of the alternates for which each party would have been entitled to
    two further peremptory challenges, the trial judge erroneously concluded that
    the appellant had exhausted all her peremptory challenges. As a result, an
    alternate who later became a juror by substitution, was selected without
    affording the appellant a peremptory challenge to which she was entitled.

[5]

Whether the first flaw, considered on its own, would be fatal, and not
    remediable under s. 643(3), s. 670(a), or s. 686(1)(b)(iv), or their
    combination, we need not decide. The respondent acknowledges and we agree that
    the second error is fatal to the validity of the conviction. It cannot be saved
    by either s. 670 or s. 686(1)(b)(iv) whether considered singly or in
    combination.

[6]

In the result, the appeal is allowed, the convictions set aside, and a
    new trial ordered. In the circumstances, we do not need to consider the other
    grounds of appeal advanced on the appellants behalf.

R. Juriansz J.A.

David Watt J.A.

Gloria Epstein J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:

R. v. Shafea, 2012
    ONCA 863

DATE: 20121206

DOCKET: C53961

Juriansz, Watt and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Abdul Shafea

Appellant

Howard L. Krongold, for the appellant

Eric Siebenmorgen, for the respondent

Heard and released orally: November 22, 2012

On appeal from the sentence imposed on June 14, 2011 by Justice George T. Valin of the Superior Court of Justice.

ENDORSEMENT

[1]

The appellant appeals his convictions of one count of aggravated
    assault, one count of assault and three counts of breach of recognizance.  The
    charges arose out of an altercation outside of a bar, the result of which left
    one victim badly injured due to a stab wound to his chest.

[2]

Three of the assailants left the scene in a taxi.  The trial judge, in
    finding the appellant guilty of all charges, relied heavily on the testimony of
    the taxi driver, Mr. Zaher, to the effect that he heard the passenger directly
    behind him say that he stabbed someone with a pen.  Photographs taken by a
    camera installed in the taxi satisfied the trial judge that the appellant
    occupied that position.

[3]

On appeal, the appellant argues that the record reflects a miscarriage
    of justice, given as things turned out, that the defence counsel had failed to
    cross-examine the taxi driver on a portion of his testimony at the preliminary
    inquiry.  It is argued that such a cross-examination would have further
    undermined the taxi drivers evidence upon which the Crowns case depended.  The
    appellant applied to have the relevant portion of the transcript admitted as
    fresh evidence.

[4]

Regardless of whether or not the proposed evidence is admitted, we are
    of the view that the appeal must fail.  Considering the record as a whole,
    including the final argument, it is clear that the trial judge was well aware
    of the discrepancies in Mr. Zahers evidence particularly how they affected the
    key findings relating to what exactly was said and where the passenger who said
    it was seated in the taxi.

[5]

At the conclusion of a thorough review of the evidence, the trial judge
    found at paragraph 59:

I accept as credible, accurate and reliable, Mr. Zahers
    testimony that the passenger sitting in the back seat directly behind him made
    an utterance that he had stabbed someone.

[6]

For reasons carefully explained by the trial judge, he reached this
    conclusion on the basis of evidence available to him and we see no reason to
    interfere.

[7]

The appeal is therefore dismissed.

R. Juriansz J.A.

David Watt J.A.

Gloria Epstein J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Skeete, 2012
    ONCA 874

DATE: 20121212

DOCKET: C54142

Simmons and Epstein JJ.A. and Speyer J. (
ad
    hoc
)

BETWEEN

Her Majesty the Queen

Respondent

and

Adrian Skeete

Appellant

Sam Goldstein, for the appellant

Mabel Lai, for the respondent

Heard and released orally: December 5, 2012

On appeal from the conviction entered on June 9, 2011 by
    Justice Michael G. Quigley of the Superior Court of Justice, sitting with a
    jury.

ENDORSEMENT

[1]

Following a jury trial, the appellant was convicted of robbery with a
    firearm. The Crowns theory was that the appellant was a party to an attempted
    carjacking. The appellant contends that his conviction amounts to an unreasonable
    verdict because there was insufficient evidence linking him to the attempted
    theft of the car and to establish the weapon involved in the event was a real
    firearm.

[2]

Notably, the appellant raises no objections to the trial judges
    instructions to the jury, which we view as a model of fairness. Nor does he
    raise any objection to any other rulings or aspects of the conduct of the
    trial.

[3]

We do not accept the appellants submission that the conviction for
    robbery was unreasonable.

[4]

The complainant identified the appellant as one of three males standing
    at the northeast corner of an intersection at about eleven oclock at night. At
    the time, the complainant was driving his car in an easterly direction and was
    in the process of making a left turn to proceed in a northerly direction. A
    black Acura pulled in front of his vehicle blocking his way. The appellant, who
    had been standing on the street corner, walked over and spoke to the driver of
    the Acura. Meanwhile, a man in a blue shirt brandishing a gun approached the
    complainant and yelled at him to get out of the car. The complainant attempted
    to reverse his vehicle to escape. In the interval, an S.U.V. appeared behind
    him and blocked his way. The appellant escaped by driving up on the curb and
    around the Acura.

[5]

The appellant testified and disputed aspects of the complainants story.
    For example, the appellant claimed he was on the street corner with a friend
    who left at some point in advance of these events and that he did not know
    anyone else who may have been on the street corner. Moreover, he claimed he
    spoke to the driver of the Acura for the sole purpose of giving him directions.
    As they were entitled to do, the jury rejected these aspects of the appellants
    evidence. The appellant did acknowledge, however, that he saw a man approach
    the complainant holding what appeared to be a gun.

[6]

Having regard to the appellants presence with two others on the street
    corner, the actions of the driver of the Acura in cutting off the complainants
    car, the appellants conduct in approaching the Acura, and the failure of the
    appellant to react when the gun was brandished, we are not persuaded that the
    finding that the appellant was a party to an attempted carjacking, that is a
    robbery, was unreasonable.

[7]

Turning to the firearm, while we think it is a close call, we are not
    persuaded there was sufficient evidence to make the finding that it was real on
    a beyond a reasonable doubt standard.

[8]

In the circumstances, we allow the appeal in part, set aside the
    conviction for robbery with a firearm, and substitute a conviction for robbery.

[9]

We did not receive extensive submissions on how our disposition of the
    appeal should affect the sentence imposed. The appellant suggests it should be
    varied to one year imprisonment, the Crown, 18 months. In all the
    circumstances, we set aside the sentence imposed and substitute a
    sentence of 12 months imprisonment.

Janet Simmons J.A.

Gloria
    Epstein J.A.

C.M.
    Speyer J. (
ad hoc
)


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Smith, 2012 ONCA
    892

DATE: 20121218

DOCKET: C50073

Rosenberg, MacPherson and Pepall JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Donald Smith

Appellant

Heather Pringle, John Bilton and Katherine Oja, for the
    appellant

Deborah Krick, for the respondent

Heard: December 4, 2012

On appeal from the conviction entered on May 29, 2008 and
    the sentence imposed on January 26, 2009 by Justice John F. McCartney of the Superior
    Court of Justice, sitting with a jury.

MacPherson
    J.A.:

A.

INTRODUCTION

[1]

In November 2002, the appellant was convicted by Pierce J., sitting with
    a jury, of two counts of making obscene material, one count of possessing
    obscene material for distribution, and two counts of distributing obscene
    material through internet websites. The charges related to two types of
    material: audio-visual material and written stories.

[2]

On appeal, this court upheld the sole conviction relating to the written
    stories but allowed the appeal and ordered a new trial on the four counts
    relating to the audio-visual material: see
R. v. Smith
(2005), 76 O.R.
    (3d) 435, leave to appeal refused [2005] S.C.C.A. 464 (
Smith I
).

[3]

The second trial on the various obscenity charges relating to the audio-visual
    material took place over a three-week period in 2008. The appellant was
    convicted by McCartney J., sitting with a jury, of two counts of making obscene
    material, one count of possessing obscene material for the purpose of distribution,
    and one count of distributing obscene material. He was sentenced to a fine of
    $28,000, two years of probation with conditions including 240 hours of
    community service, and repayment of the fine during the probationary period.

[4]

The appellant appeals against conviction and sentence.

B.

facts

[5]

The appellant operated two websites, one free and one that could be
    joined for a fee. The count of distributing obscene material related to
    material distributed by the appellant through these websites. The counts of possessing
    and making obscene material related to audio-visual material seized from the
    appellants home and retrieved from the appellants computers.

[6]

Generally, the material at issue in this appeal consists of audio-visual
    materials and still photographs of naked or almost naked women being shot or
    stabbed in the breasts and/or lower abdomen, directly above the pubic area.

[7]

All of the video scenes and photographs are acted; no one is actually
    killed or injured through the violence that is depicted. The audio-visual
    materials are relatively short and have little plot or dialogue beyond the
    killing of the women. The perpetrators of the violence, usually male, speak and
    behave as though the women deserve what happens to them.

[8]

Frequently, the camera pans over the womens naked bodies, particularly
    their breasts and genitals, and pauses as women appear to die. The still
    photographs include depictions of naked women with arrows or knives stuck in
    their abdomens, between the breasts or protruding from the rectum, or of blood
    flowing from injuries inflicted by bullets, as they lie appearing to die.

[9]

In order to simulate the realistic appearance of the womens skin being
    pierced by bullets, arrows and knives, a unique special effects technique was
    used that employed an air compressor and computer editing software.

[10]

The
    Crowns position at trial was that the material was obscene because the undue
    exploitation of sex was its predominant characteristic. According to the Crown,
    the material depicted explicit sex with violence. In addition, the material
    created a risk of harm to the community by potentially inciting sexually
    deviant individuals to act on their fantasies.

[11]

The
    appellants position at trial was that none of the material depicted explicit
    sex. Even if it did depict explicit sex, the appellant submitted, it would be
    tolerated by the community and so would not constitute the undue exploitation
    of sex. The appellant submitted that the evidence called by the Crown about the
    risk of harm caused by exposure to the material should not be relied upon.

[12]

The
    appellant was convicted on all four counts and received the sentence set out
    above.

C.

Issues

[13]

The
    appellant raises the following issues on the appeal:

(1)

Did the trial judge err by
    admitting evidence in relation to meta-tags, banners, and links to other
    websites?

(2)

Did the trial judge err by
    admitting as evidence written obscene stories contained on the appellants
    website?

(3)

Did the trial judge fail to
    adequately instruct the jury on the use to be made of the written obscene
    stories?

(4)

Did the trial judge err by
    admitting evidence of the appellants psychiatric condition through the
    testimony of Dr. Collins?

(5)

Did the trial judge err by
    admitting opinion evidence from Dr. Malamuth about the nature of the impugned
    material?

(6)

Did the trial judge properly
    charge the jury on the issue of explicit sex?

(7)

Did the trial judge err by
    refusing to grant a stay for delay pursuant to s. 11(b) of the
Charter
?

(8)

Did the trial judge impose a
    sentence that was unduly harsh?

D.

analysis

(1)

Meta-tags, banners, and links to other websites

[14]

The
    meta-tags, banners, and links to other websites were admitted at the first
    trial. In
Smith I
, this court affirmed the trial judges ruling on
    this issue, saying at para. 62:

The trial judge did not err in admitting this evidence. The
    meta-tags, banners and links on an Internet website are analogous to the
    dustcover and preface to a book: they inform the viewer about the content of
    the publication and provide context for the work.

[15]

The
    same evidence was led at the second trial, and the defence made no objection at
    that time. Accordingly, the trial judge did not make a formal ruling on the
    admission of this evidence.

[16]

On
    appeal, the appellant asserts that the ruling in
Smith I
has been
    overtaken by the subsequent decision of the Supreme Court of Canada in
Crookes
    v. Newton
, [2011] 3 S.C.R. 269 (
Crookes
). Based on that
    decision, he argues, the banners, links and meta-tags were not relevant to the
    content of the appellants website and should not have been admitted.

[17]

I
    do not accept this submission. First,
Crookes
says nothing about
    meta-tags and banners. Second, with respect to hyperlinks,
Crookes
and
    this case are quite different.
Crookes
was a defamation case where the
    issue was whether creating a hyperlink to a third partys defamatory work is
    the type of act that can constitute publishing that work. The courts focus
    was on the sufficiency of the act for the purposes of defamation; its comment,
    at para. 30, that a hyperlink, by itself, is content-neutral must be
    understood with that in mind. In this case, the hyperlinks were adduced only as
    context for the content that the appellant published on his own website.

[18]

Third,
    the trial judge explicitly instructed the jury that the meta-tags, banners and
    links could be used only to give context to the images in question, that is,
    to the audio-visual material displayed by the appellant on his own websites.
    For these reasons, this courts decision relating to the admissibility of
    meta-tags, banners and links in
Smith I
remains good law and the trial
    judge in the second trial was correct to follow it.

(2)

The written obscene stories  admissibility

[19]

At
    the first trial, the appellant was convicted of distributing obscene material,
    namely, three written stories displayed on his pay website. The conviction for
    this offence was upheld by this court: see
Smith I
at para. 50.

[20]

At
    the second trial, the trial judge admitted the three written stories as
    evidence on the basis that they provided context for the contents of the
    appellants websites.

[21]

The
    appellant challenges this ruling. He contends that the trial judge did not
    weigh the prejudicial effect of the stories against their probative value. He
    also submits that, on a proper assessment of these factors, the stories should
    not have been admitted.

[22]

I
    disagree. Although the trial judge did not use the words probative value and prejudice
    in his four-page ruling on this issue, it is clear that these are precisely the
    factors he considered. His discussion of whether the stories are remote from
    the audio-visual material is directed to the probative value of the stories.
    Moreover, he explicitly states that the jury will need to be cautioned about
    the limited use of the stories, namely, to provide context for the contents of
    the website on which the audio-visual material is shown. This is a clear
    recognition of the potential for prejudice and the need to guard against it.
    Furthermore, the focus of both the oral and written submissions of the parties
    was on probative value and prejudicial effect.

[23]

As
    for the trial judges actual decision, admitting the stories as evidence of context
    easily comes within the consistent message in the leading obscenity cases that
    the work as a whole  in this case, the appellants websites  must be
    considered: see
R. v. Butler
, [1992] 1 S.C.R. 452 at para. 55 (
Butler
),
    and
Smith I
at para. 61.

(3)

The written obscene stories  jury charge

[24]

The
    appellant submits that the trial judge did not instruct the jury on the use it could
    make, and not make, of the evidence relating to the three stories.

[25]

The
    trial judge did instruct the jury on the proper use to be made of the stories.
    The trial judges caution was expressed in this fashion:

I would like to then mention
the
    special treatment that must be given to the stories
, the meta-tags,
    banners and links, which we have been talking about, in this material.
Now it is important to remember that the accused is
    not on trial for anything but the images on the videos made by him and the audio
    and visual images in his computers and on the websites. However, the stories
,
    meta-tags, the banners, the links
may be used to
    give context to the images in question
. However, they must relate to the
    images in question. So for example, the meta-tags, the banners, the links that
    are seen on the free site can only relate to the material on the free site,
    because that is where the material appears. Likewise the stories which appear
    on the pay site, only relate to the pay site, because that is where they appear,
    and must be, so the use of this material must be confined to the specific areas
    that they appear in.           [Emphasis added]

[26]

In
    my view, this was an appropriate caution. The trial judge made it clear that
    the appellant was not on trial for the stories, instructed the jury on the
    only use that could be made of the evidence, and specified the material for
    which the stories could provide context. In its closing address to the jury,
    the Crown, too, stated that the appellant was not on trial for the stories, and
    told the jury not to convict on the basis of what was in the stories. The trial
    judge did not say that the stories were themselves obscene or that the
    appellant had been convicted of criminal offences in relation to them. Nor did
    defence counsel object to this aspect of the charge. I would, therefore,
    dismiss this ground of appeal.

(4)

Dr. Collins testimony

[27]

Dr.
    Peter Collins, a Crown witness, was qualified as an expert in psychiatry,
    particularly in the area of paraphilia, including the effects of exposure to
    sexually explicit material in the development and enforcement of paraphilia.
    Dr. Collins testified that paraphilia is the clinical term for sexual deviance.

[28]

The
    appellant contends that Dr. Collins testimony transgressed the proper
    boundaries of expert evidence by providing a diagnosis of the appellant as a
    paraphiliac; this, submits the appellant, in effect amounted to bad character
    evidence.

[29]

I
    do not accept this submission. The core of Dr. Collins testimony was directed to
    explaining paraphilia and the effect that exposure to material such as was
    displayed on the websites at issue in this case has on those who have a
    paraphilia. This evidence was necessary to establish an evidentiary foundation
    for the community standards test, which the jury would have to apply to render
    a verdict. When, occasionally, Dr. Collins used language that came close to
    sounding like a diagnosis of the appellant, it was in response to questions
    asked by the appellants counsel in cross-examination. Finally, the trial judges
    charge to the jury included a caution with respect to this aspect of Dr.
    Collins testimony:

Now there is one bit of evidence in the case that counsel
    brought to my attention which I would just like to clarify. You will recall
    that when Dr. Peter Collins was testifying he made it clear that he was not in
    any way making any diagnosis of Mr. Smith as having any paraphilic tendencies,
    however he may have left you with that suggestion. Now the difficulty with that
    is that the motive of Mr. Smith  you might take from that that the motive of
    Mr. Smith, if that suggestion lingers with you, might be to commit this
    offence. Now that is totally improper evidence  sometimes evidence just flows
    out as things go along and the reason for that is because in a case of this
    nature, as you may have heard, and I will mention to you again, the motive of a
    person is not [relevant]. And so, for many reasons, not the least of which is
    that this is irrelevant evidence in this case, you must disabuse your mind of
    that suggestion, if in fact it lingers with you.

In my view, this instruction was both clear and
    sufficient.

(5)

Dr. Malamuths testimony

[30]

Dr.
    Neil Malamuth, a Crown witness, was qualified as an expert psychologist on the
    effects of exposure to sexually explicit material, and the effects of sexually
    explicit violent material in particular.

[31]

The
    appellant contends that Dr. Malamuths testimony went beyond the scope of his
    expertise in two respects: first, by providing a definition of what constitutes
    sexually explicit violent material; and second, by offering an opinion that the
    material in respect of which the appellant ultimately was convicted fit into
    this category. In doing so, the appellant submits, Dr. Malamuth usurped the
    roles of both the trial judge and also the jury.

[32]

I
    disagree. A review of Dr. Malamuths testimony establishes that he did not
    define sexually explicit violent material for the purposes of the legal
    definition of obscenity, but, rather, to assist in his explanation of findings
    arising from his research. The entire purpose of Dr. Malamuths testimony was
    to provide an evidentiary foundation for the Crown to argue that exposure to
    the material on the appellants website could cause negative effects and satisfy
    the risk of harm branch of the obscenity test. In order to argue the final
    proposition  that the appellants material posed such a risk  the Crown had
    to introduce the results of research in this area and establish that those
    results were applicable to the material in respect of which the appellant was convicted.
    By necessity, this involved comparing the material that was the subject of Dr.
    Malamuths studies to the appellants materials. Finally, I observe that the
    trial judge made it clear in his jury charge that they were to take the
    definition of the relevant legal principles from him.

(6)

The jury charge with respect to explicit sex

[33]

The
    appellant contends that the trial judges charge to the jury on explicit sex
    was deficient in two respects: first, it did not follow the order for
    addressing the relevant questions set out in
Smith I
; and second, it
    failed to instruct the jury that sexualized nudity, without more, does not
    constitute explicit sex.

[34]

The
    trial judges charge set out s. 163(8) of the
Criminal Code
and then
    explained it in terms that were very close to those used in
Butler
and
Smith I
. When a trial judge instructs a jury about the law to be
    applied, it cannot be an error to do so by reference to the leading
    authorities, especially the leading Supreme Court of Canada case on the point
    in issue. In any event, when the trial judges charge on explicit sex is read
    as a whole, it is clear that the jury was directed to decide, first, whether the
    impugned material, considered in light of the contextual factors identified by
    this court in
Smith I,
depicts explicit sex and, second, whether that
    portrayal constitutes the undue exploitation of sex and violence.

[35]

On
    the second issue, the trial judge instructed the jury that they had to decide
    whether the material depicted explicit sex with violence taking into account
    the part of the body depicted, the nature of the depiction, the context, the
    accompanying dialogue, words, gestures, and all other surrounding
    circumstances. He also instructed that explicit sex captures portrayals at
    the far end of the spectrum, in other words it has to be serious. This would
    have left no doubt that the jury had to consider the depictions in their entire
    context, not just the part of the body depicted and the nature of the
    depiction. It was open to the jury to find that, having regard to all the
    circumstances, the material at issue depicted explicit sex. There is no reason
    to think that the jury was misled into concluding that the material was
    sexually explicit by virtue of the presence of nudity or sexualized nudity
    alone.

(7)

Charter
s. 11(b)

[36]

During
    the second trial, the appellant twice applied to stay the proceedings on the
    basis of unreasonable delay, once at the commencement of pre-trial motions and
    then again just prior to sentencing. The appellant contends that the trial
    judge made several errors in these rulings, including a failure to assess the
    reasonableness of the overall time frame.

[37]

I
    disagree. The delays in this case were not unreasonable in the context of the protracted
    and complex proceedings, including two trials, one appeal to this court, an
    application for leave to appeal to the Supreme Court of Canada, numerous
    volumes of disclosure, and the severance of two other accused early on.
As well, the proceedings required scheduling and
    travel arrangements for judge, counsel, witnesses and the accused.
Although the trial judge did not explicitly characterize each delay, implicit
    in his reasons for ruling on both applications is that the constellation of the
    above factors suggested a large amount of inherent delay. I see no error in his
    analysis or in the results reached in the two delay applications.

(8)

Sentence

[38]

Following
    the appellants conviction at his first trial, he was sentenced to a fine of
    $100,000 and three years of probation. On appeal, this court quashed four of
    the five convictions. The sentence on the remaining count was varied to a $2000
    fine. On August 8, 2005, the court released an Addendum to sentence clarifying
    that the probation order was also set aside. By the time the Addendum was
    released, the appellant had served two years, eight months, and 11 days of the
    three-year probation order.

[39]

Following
    conviction at his second trial, the appellant was sentenced to a fine of
    $28,000 (cumulative for the four offences for which he was convicted), two
    years of probation with conditions including 240 hours of community service,
    and payment of the fine during the probationary period. The appellant contends
    that this sentence is unduly harsh.

[40]

At
    the appeal hearing, it emerged that the appellant has served his entire period
    of community service and almost all of the probationary term. Hence, the only
    live ground of appeal on sentence is whether the $28,000 fine is too harsh.

[41]

It
    should be recalled that the fine imposed on the appellant after the first trial
    was $100,000. After the second trial, the trial judge justified the imposition
    of the lower fine of $28,000 in this fashion:

It is difficult to conceive how Donald Smith could repair the
    harm done by his actions on society, particularly, since it will never be
    known, considering the far reaches of the internet, how much damage his
    websites have done. However, there is one thing certain and that is that he must
    not be allowed to profit from his illegal conduct. Now, unfortunately the
    evidence is not entirely clear as to how much Donald Smith did profit from
    membership on his pay website. The evidence indicates that his records show a
    subscription list of some 2,000 members who would be paying $30.00 United
    States currency to become a member. This according to the Crowns calculations
    would have given him a profit of nearly $100,000.00 Canadian. This, of course,
    anticipates a very healthy exchange rate and fails to take expenses into
    account. Unfortunately, there is no hard evidence to support exactly what his
    profit would have been; however, I cant conceive of him netting less than half
    of the Crowns estimate in Canadian dollars which would be $30,000.00.

[42]

In
    addition, the trial judge observed:

It is clear to me that the offender, Donald Smith, has remained
    unrepentant throughout the many proceedings and, in fact, has shown a certain
    defiance, apparently having convinced himself that he is right and the law and
    his fellow citizens who have on two occasions found him guilty of producing and
    distributing obscene material are wrong.

[43]

I
    accept this analysis. It renders impossible any conclusion that the $28,000
    fine imposed on the appellant was unreasonable or unduly harsh, particularly
    since the appellants convictions could have attracted a custodial sentence.

E.

DISPOSITION

[44]

I
    would dismiss the appeal.

Released: December 18, 2012 (M.R.)

J.C. MacPherson J.A.

I agree. M. Rosenberg J.A.

I agree. S.E. Pepall J.A.