COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Aragon, 2022 ONCA 244

DATE: 20220324

DOCKET: C66426

Strathy C.J.O., Hourigan and
    Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Pierre Aragon

Appellant

Dirk Derstine and Jennifer Penman, for
    the appellant

Deborah Krick, for the respondent

Heard: November 22, 2021

On appeal from the conviction entered on
    April 22, 2014 by Justice Alfred Stong of the Superior Court of Justice, sitting
    with a jury, and the sentence imposed on September 8, 2017 by Justice Hugh K. OConnell
    of the Superior Court of Justice.

Paciocco J.A.:

OVERVIEW

[1]

In July of 2012, Fernando Fernandes, known to be
    associated with the Loners Motorcycle Club, was badly injured after being
    beaten near the intersection of Park and Perry Streets in Peterborough. One or
    more of the participants in the attack used baseball bats. After a jury trial, Pierre
    Aragon, believed to be a member of a rival gang, was convicted in connection
    with the beating of aggravated assault, assault with a weapon, possessing a
    weapon for the purpose of committing an offence, and uttering a threat to cause
    bodily harm. He was sentenced as a dangerous offender to an indeterminate
    sentence.

[2]

Mr. Aragon appeals both his convictions and his
    sentence. For the reasons that follow, I would deny his conviction appeal. Although
    there were issues with the evidentiary foundation for the extrinsic
    discreditable conduct evidence, the extrinsic discreditable conduct evidence
    that was presented was properly admitted.

[3]

I would allow Mr. Aragons sentence appeal. I am
    persuaded that the sentencing judge erred in his identification of aggravating
    sentencing factors and failed to issue sufficient reasons for a number of the decisions
    he made during the sentencing hearing.

I.

THE CONVICTION APPEAL

MATERIAL FACTS

[4]

During the trial, it was not disputed that Mr.
    Fernandes had been beaten including with at least one baseball bat, that the
    assault was aggravated, and that one of the assailants had threatened him with
    bodily harm. The live issues during Mr. Aragons trial were whether Mr. Aragon
    played a role in the attack and uttered a threat to cause Mr. Fernandes bodily
    harm.

[5]

Two baseball bats were recovered near the scene of the
    beating. DNA of at least three persons was located on the handle of one of those
    baseball bats, but this DNA was unsuitable for analysis. However, there was a
    high probability that DNA detected in blood found on the barrel of that same
    bat was from both Mr. Aragon and Mr. Fernandes. Mr. Aragon could not be
    excluded as being the major contributor.

[6]

The attack and the threat were audio-recorded by the
    911 emergency service through a phone line that was connected to a phone
    bearing an identified 647 area code number. Although not everything that was
    said during the attack is audible on the audio-recording, a male voice can be
    heard saying, Here, give me that bat [] No, I wont, Im breaking his knees.
    Shortly after, a male voice can be heard to say, You had the only chance to
    come away. Youre so stupid. What, are you a Loner? [] You want to be a Loner?
    Thats for the Loners. Fernando you had a chance to come with us. The audio-recording
    also picked up a female voice saying, Baby enough and a male voice responding,
    Get the fuck outta here, bitch. When he was arrested approximately two weeks
    after the assault, Mr. Aragon was found in possession of a phone bearing the
    same 647 number. The Crown theory at trial was that while Mr. Aragon
    participated in the beating, he had the phone with him and accidentally pocket
    dialed 911.

[7]

Mr. Fernandes did not offer evidence that could assist
    in identifying his assailant. He had been intoxicated at the time of the
    beating, and he suffered a brain injury in the altercation.

[8]

Nor could the two civilian witnesses who happened upon
    the scene identify the assailant or assailants. A cab driver witnessed two men
    approach her taxi at the intersection of Park and Perry Streets. They did not
    get in but began to yell at two men in a nearby backyard. She then saw two men
    jump over the backyard fence, one carrying a baseball bat. A female yelled at
    her to leave and she did so.

[9]

The other civilian witness saw two men walking north,
    with one carrying a baseball bat. She called 911 and offered a limited
    description of the men and reported a group of people outside an identified
    address on Park Street which was a known motorcycle gang clubhouse. One of the
    men she saw walking was wearing a dark shirt and was solidly built and of
    average height.

[10]

A police officer, PC Cox, also came upon the scene of the attack,
    apparently as it was ending. While passing the identified Perry Street address,
    he saw a male throw a baseball bat over a fence and run into a backyard. This
    Perry Street address was known by PC Cox to be the residence of Bob Pammett, a
    former member of the Loners Motorcycle Club. PC Cox stopped and seized the
    baseball bat and then walked to the intersection of Park and Perry Streets and
    saw Mr. Fernandes lying on the roadway. He saw two men standing near Mr. Fernandes.
    Mr. Shane Gardiner (a.k.a. Shane Minty) was standing near Mr. Fernandes head.
    Mr. Gardiner ran but was apprehended shortly after. The other man PC Cox
    observed was standing near Mr. Fernandes feet. He was wearing dark clothes and
    was holding a baseball bat. This man dropped the bat and ran, making good his
    escape.

[11]

The Crown theory, supported by the 911 recording, was that Mr. Fernandes
    was beaten because he was a member of the Loners Motorcycle Club. The theory
    was that he was beaten by former members of the Peterborough Loners chapter who
    were in bad standing with the Loners because they had broken away from that
    chapter. The Crown contended that Mr. Pammett was the leader of the break-away
    group, and that Mr. Aragon was one of the former Loners who was in bad standing.
    The Crown position was that Mr. Aragons association with this group gave Mr.
    Aragon the motive to participate in the attack.

[12]

In order to establish this theory, the Crown presented extrinsic
    evidence about the culture of motorcycle gangs, including the Loners; the
    history of the Loners including the break-up of the Peterborough Loners
    chapter; and Mr. Aragons links to motorcycle gangs, including the Loners and
    the break-away group (the extrinsic discreditable conduct evidence).

[13]

Prior to the assault, the police had installed a secret motion
    activated security camera trained on the outside gate of the Perry Street
    address. Video captured around the time of the assault does not show Mr.
    Fernandes being beaten but does capture some people in front of the Perry Street
    address who appear to be holding baseball bats.

[14]

Two police officers, DC Lemay and DC Noonan, offered testimony
    identifying Mr. Aragon as one of the men who was seen on the video holding a
    baseball bat, wearing a dark muscle shirt (the recognition evidence).

[15]

Mr. Aragon was convicted of the offences identified above in para. 1
    of this judgment, based primarily on the evidence I have just described.

ISSUES

[16]

Mr. Aragon raised three grounds of appeal relating to his conviction,
    two related to the extrinsic discreditable conduct evidence and one related to
    the recognition evidence. Those issues can be stated as follows:

A.

Did the trial judge err in admitting the
    recognition evidence?

B.

Did the trial judge err when admitting the extrinsic
    discreditable conduct evidence?

C.

Did the trial judge err by failing to instruct
    the jury on the prohibited and permissible uses of the extrinsic discreditable conduct
    evidence?

[17]

The Crown disputes these alleged errors and
    contends that even if one or more of them occurred, the curative proviso should
    be applied because the case against Mr. Aragon is overwhelming. Since I would
    deny each of the grounds of appeal that Mr. Aragon has raised, it is
    unnecessary to address the curative proviso.

ANALYSIS

A.

Did the trial judge err in admitting the recognition evidence?

[18]

At trial, both DC Lemay and DC Noonan identified the man who was
    seen in the surveillance video holding a baseball bat and wearing a dark muscle
    shirt as Mr. Aragon. Both officers purported to recognize him based on prior
    observations they had made of him, including under surveillance. The trial
    judge did not err in finding this testimony to be admissible recognition
    evidence.

[19]

Recognition evidence is offered when a witness provides an opinion
    as to the identity of an individual depicted in a video or photograph. It is a
    form of non-expert opinion evidence. Its admission is tested by examining the threshold
    reliability of the recognition, based primarily on the familiarity of the
    recognition witness with the subject. There is also inquiry into the need to
    have a witness offer their opinion that the subject is the person they claim:
R.
    v. Hudson
, 2020 ONCA 507, 391 C.C.C. (3d) 208, at paras. 28-31. Recognition
    evidence is therefore generally admitted, provided that the witness has a
    prior acquaintance with the accused and is thus in a better position than the
    trier of fact to identify the perpetrator:
R. v. Berhe
, 2012 ONCA
    716, 292 C.C.C. (3d) 456, at para. 14, citing
R. v. Brown
(2006), 215
    C.C.C. (3d) 330 (Ont. C.A.), at para. 39.

[20]

Mr. Aragon objected to the admission of the recognition evidence the
    Crown was proposing, and an admissibility
voir dire
was held. Testimony
    that the officers had provided at Mr. Aragons preliminary inquiry was
    presented during the
voir dire
. The trial judge also viewed the
    surveillance video.

[21]

During the preliminary inquiry, DC Lemay testified that he had
    observed Mr. Aragon in the course of his police work, including
    surveillance details, on at least 12 occasions between January 2012 and July
    2012. On two of those occasions, Mr. Aragon had been at bike shows. On several
    of those occasions, DC Lemay had seen Mr. Aragon walking up Park Street and at
    the Perry Street address. And DC Lemay had dealt with Mr. Aragon on August 22,
    2012, the day of his arrest on the charges before the court. On that occasion,
    DC Lemay had attempted unsuccessfully to interview Mr. Aragon in police cells. DC
    Lemay had also viewed photographs of Mr. Aragon on at least three prior
    occasions.

[22]

During the course of
voir dire
ruling, the trial judge
    accurately paraphrased the description of Mr. Aragon that DC Lemay had provided
    at the preliminary inquiry, as a Hispanic male, stalky, muscular, usually seen
    wearing muscle shirts walking like a body builder and with a distinctive
    hairstyle. In his preliminary inquiry testimony, DC Lemay also said he was
    familiar with Mr. Aragons mannerisms as well as his dark complexion and he said
    that these details assisted in recognizing Mr. Aragon in the surveillance
    video.

[23]

DC Noonan testified at the preliminary inquiry that he had known Mr.
    Aragon since 2004 when, while sitting in a police vehicle, he witnessed Mr.
    Aragon being arrested. After 2004 he had not actually had eyes on him until
    January 2012, when he saw Mr. Aragon at the Peel bike show in Mississauga, and
    then in March 2012 at the Toronto bike show. He had also viewed surveillance
    photos, Ministry of Transportation photos, and mug shot photos of Mr. Aragon.

[24]

Based on the observations he had previously made of Mr. Aragon, DC
    Noonan testified that he was familiar with Mr. Aragons very distinct
    features; his posturing including the way he stands, walks and hunches his
    shoulders; and his short dark hair cut. He said Mr. Aragon was not a tall man, standing
    at five nine, five ten, but that he is a big guy, very stocky and in good
    shape.

[25]

DC Noonan described the surveillance video as grainy and agreed
    that the features of the man he identified as Mr. Aragon could not be seen on
    the surveillance film. He testified that he made the identification based on a
    culmination of Mr. Aragons very distinct features and very distinct
    haircut, the demeanour and stance or posturing of the man he identified, and
    everything that Ive dealt with. He referred, in this regard, to his
    knowledge of the group associated with the Perry Street address, the fact that
    the people involved were carrying baseball bats, and incidents that actually
    led up to the event  about which he had been debriefed  including a robbery
    the week before.

[26]

In his ruling the trial judge concluded that the video is fair and
    accurate, that it is of sufficiently good quality, and that there was no
    issue as to its continuity. He admitted the testimony of DC Lemay and DC
    Noonan, saying that although he himself could not identify the individuals in
    the video, who he had never seen before, the testimony of the officers would be
    helpful to jurors. He said he was satisfied that the officers recognized Mr.
    Aragon from their lengthy association in terms of observation of Mr. Aragon
    over time. He concluded that their evidence would be definitely helpful to
    the jury in terms of recognition of the characters in that segment of the video
    leading up to the time immediately prior to the beating administered to Mr.
    Fernandes.

[27]

I can find no error in the trial judges ruling. He appreciated the
    relevant standard of admission as well as the submissions that had been made
    before him. His decision was reasonable and open to him.

[28]

Nor did the trial judge fall into the trap of relying upon the testimony
    of DC Noonan that his recognition was enhanced by the incidents that had
    occurred, and the fact that the men he observed were carrying bats. The admissibility
    question was whether DC Noonan recognized Mr. Aragon based on his familiarity
    with Mr. Aragons appearance. Independent circumstantial evidence suggesting
    that a recognition is accurate is not relevant to that inquiry.
    Appropriately, the trial judge relied solely on DC Noonans prior observations
    of Mr. Aragon in finding that he could offer helpful recognition evidence.

[29]

I would dismiss this ground of appeal.

B.

Did the trial judge err when admitting the extrinsic discreditable conduct
    evidence?

The Contested Extrinsic Discreditable Conduct
    Evidence

[30]

The Crown applied to admit extrinsic discreditable conduct evidence to
    establish Mr. Aragons motive and
animus
against Mr. Fernandes and to
    provide essential background narrative to the attack. Specifically, the Crown
    theory was that the attack on Mr. Fernandes, a member of the Loners motorcycle
    gang, was motivated by
animus
between the Loners and those, including
    Mr. Aragon, who had recently left the Loners on bad terms (the break-away
    group). According to the expert evidence of DC Noonan, within the outlaw motorcycle
    gang culture, bad terms describes censure against a gang member who has
    violated club rules. Mr. Aragon disputed the facts the Crown alleged and the
    admissibility of this evidence.

[31]

Appropriately, an admissibility
voir dire
was conducted. Extrinsic
    evidence linking an accused person to a criminal organization, such as an
    outlaw motorcycle gang, including evidence about that organization itself, is
    sufficiently discreditable to create prejudice against an accused. The evidence
    is therefore
prima facie
inadmissible:
R. v. B.(L
.)

(1997),
    116 C.C.C. (3d) 481 (Ont. C.A.), at para. 20;
R. v. M.R.S.
, 2020 ONCA
    667, 396 C.C.C. (3d) 172, at paras. 62, 71-72;
R. v. Tsigirlash
, 2019
    ONCA 650, at paras. 23, 25;
R. v. Cook
, 2020 ONCA 731, 394 C.C.C. (3d)
    467, at paras. 40-41;
R. v. Phan
, 2020 ONCA 298, 387 C.C.C. (3d) 383, at
    para. 90.

[32]

Therefore, [t]he onus is on the prosecution to satisfy the trial
    judge on a balance of probabilities that in the context of the particular case
    the probative value of the evidence in relation to a particular issue outweighs
    its potential prejudice and thereby justifies its reception:
R. v. Handy
,
    2002 SCC 56, [2002] 2 S.C.R. 908, at para. 55.

[33]

The admissibility
voir dire
was not uneventful. In its
    initial application materials and in its oral submissions, the Crown failed,
    contrary to this courts decision in
Tsigirlash
, at paras. 28, 32-33,
    to identify the extrinsic discreditable conduct evidence that it was seeking to
    have admitted. Instead, the Crown simply described the ultimate conclusions it
    wanted drawn from that evidence relating to Mr. Aragons membership in the
    break-away group, and to the
animus
of the break-away group against
    the Loners.

[34]

When Mr. Aragons counsel identified this shortcoming in the Crowns
    application, the trial judge invited the Crown to remedy the deficiency. The
    Crown agreed to do so by providing a written description of the evidence it sought
    to have admitted. The next day the Crown provided a document entitled summary
    of evidence  prior discreditable conduct application (Summary). This
    document identified, in bullet-points, the anticipated evidence that six
    individuals would give. The Summary was presented much like six serial will
    say statements. Although most of the facts described in the bullet points were
    supported by preliminary inquiry transcripts,
[1]
no supporting material was provided with respect to the proposed evidence of two
    of the witnesses, Mr. Pammett and Mr. Gord King. The testimony ascribed to these
    men was presented as bald factual assertions.

[35]

Ultimately, the trial judge ruled that the extrinsic discreditable
    conduct evidence identified in the Summary was admissible. Mr. Aragon
    identifies three alleged errors related to that ruling. First, Mr. Aragon
    contends that the trial judge erred by ruling that the extrinsic discreditable conduct
    evidence was admissible without a sufficient evidentiary foundation. Second,
    Mr. Aragon submits that the trial judge erred in concluding that the probative
    value of the extrinsic discreditable conduct evidence outweighed the risk of
    prejudice it presented. Third, Mr. Aragon argues that the trial judge erred in
    admitting extrinsic discreditable conduct evidence that fell outside the scope
    of his admissibility ruling. Although I do agree that there were issues with
    the adequacy of the evidentiary basis relied upon by the trial judge, for the
    following reasons I would reject each of these grounds of appeal.

The Adequacy of the Evidentiary Basis

[36]

Three of the issues raised by Mr. Aragon relating to the evidentiary
    basis for the ruling warrant attention: (1) reliance by the trial judge on the
    bullet points ascribed to Mr. Pammett and Mr. King; (2) reliance by the Crown
    on hearsay information; and (3) the trial judges alleged misapprehension of
    evidence.
[2]

(1)

The Relevant Legal Principles

[37]

As a general rule, trial judges have discretion to determine the
    form that an admissibility
voir dire
will take, based on the issues
    involved and the nature of the case being tried:
R. v. Evans
, 2019
    ONCA 715, 377 C.C.C. (3d) 231, at para. 148;
R. v. Dietrich
(1970), 1
    C.C.C. (2d) 49 (Ont. C.A.), at para. 45, leave to appeal refused, [1970] S.C.R.
    xi. In many cases it is therefore not only common, but preferable in the
    interests of efficiency, to conduct admissibility
voir dires
based on
    information that would not be admissible during the trial proper:
Evans
,
    at paras. 116, 147-48 (statements of counsel and filed documents);
Dietrich
,
    at paras. 43-50 (endorsing the use of summaries of the evidence);
R. v.
    Snow
(2004), 190 C.C.C. (3d) 317 (Ont. C.A.), at paras. 60-61, (preliminary
    inquiry records);
R. v. G.N.D.
(1993), 81 C.C.C. (3d) 65 (Ont. C.A.),
    at paras. 30, 38 (summary of proposed hearsay statement and cross-examination
    of witnesses to the statement).

[38]

This is not to say there are never cases where admissible evidence will
    be required to establish contested facts in an admissibility
voir dire
.
    There are passages, for example, supporting the proposition that oral evidence
    must be presented in contested voluntariness
voir dires
(
Dietrich
,
    at para. 44;
Snow
, at para. 61) and in contested
Charter
admissibility
voir dires
(
R. v. Tomlinson,
2009 BCCA 196, 190 C.R.R. (2d)
    28, at para. 51). Whether or not oral testimony is always required in
    voluntariness and
Charter
admissibility
voir dires
where the
    underlying facts are contested, this is not the case in extrinsic discreditable
    conduct admissibility
voir dires.
In
Snow
, a ground of appeal
    based on the refusal of the trial judge to require oral evidence in an
    extrinsic discreditable conduct admissibility
voir dire
was denied by
    this court as being without merit.

[39]

I am nonetheless persuaded that in exercising discretion relating to
    the manner in which any admissibility
voir dire
is conducted, trial
    judges should take a functional approach to ensure that the record before them
    enables factual determinations required to determine admissibility to be fairly
    made, and they should disregard contested information that has been received
    that cannot fairly be assessed where it is important to do so. For example, in
Snow
the decision of the trial judge to resolve the admissibility of extrinsic
    conduct evidence based on transcripts of related guilty pleas and preliminary
    inquiry transcripts was supported by the fact that in that case, the admissibility
    of the similar fact evidence did not require the testing of circumstances
    surrounding the evidence, nor was there uncertainty about what the witnesses might
    say:
Snow
, at para. 61.

[40]

No doubt because of the functional needs in an extrinsic
    discreditable conduct evidence admissibility
voir dire
,

it is
    typical that contested

evidence of other discreditable conduct is
    introduced through the testimony of those who suffered it (if alive), observed
    it, or, as admissible hearsay, by those to whom the victim reported it:
R.
    v. Stubbs
, 2013 ONCA 514, 300 C.C.C. (3d) 181, at para. 68. The formal
    presentation of admissible evidence is optimal where material facts relating to
    admissibility are contested because the strength of the evidence establishing that
    the alleged discreditable conduct even occurred is an important consideration
    in evaluating the probative value of the proposed extrinsic discreditable conduct
    evidence:
R. v. Mahalingan
, 2008 SCC 63, [2008] 3 S.C.R. 316, at para.
    163. If, on a threshold examination, the evidence alleging the extrinsic
    discreditable conduct is of questionable credibility or reliability, the
    probative value of the proposed discreditable conduct evidence will be
    diminished:
Handy,
at paras. 133-36;
R. v. MacCormack
, 2009
    ONCA 72, 241 C.C.C. (3d) 516, at para. 54. Indeed, unless the proposed
    discreditable conduct evidence is reasonably capable of belief, it may be too
    prejudicial to admit:
Handy
, at para. 134.

(2)

The Evidence of Mr. Pammett and Mr. King

[41]

The statements of fact ascribed to four of the six witnesses
    featured in the Crown Summary were supported by preliminary inquiry transcripts.
    However, there was no offer of proof and no indication of the Crowns
    evidentiary foundation for the bald statements of fact it attributed to Mr.
    Pammett and Mr. King. Indeed, neither man had even been interviewed by the
    police about Mr. Aragon or the break-away group. Quite simply, although the
    Crown no doubt believed that Mr. Pammett and Mr. King had knowledge of the
    information it ascribed to them in the Summary, the bullet points can fairly be
    described as a wish-list of the testimony the Crown hoped that these witnesses
    would provide.

[42]

Yet the trial judge relied in his admissibility decision upon the
    statements of fact the Crown attributed to Mr. Pammett and Mr. King. He alluded
    to these statements in his ruling. Moreover, these statements provided the only
    direct evidence on three keystone facts that supported the admissibility
    decision, namely: (1) Mr. Aragon left the Loners with Mr. Pammett; (2) along
    with Mr. Pammett, Mr. Aragon set up a new club at the Perry Street
    address; and (3) there was animosity between the two groups. Although there was
    independent circumstantial evidence to support each of these keystone facts,
    the bald assertions ascribed by the Crown to Mr. Pammett and Mr. King provided
    the most direct route to these conclusions available to the trial judge.

[43]

In my view, in the circumstances of this case the trial judge should
    not have exercised his discretion to permit the filing of the will say
    statements relating to Mr. Pammett and Mr. King, and he certainly should not
    have relied on those statements in determining that the extrinsic discreditable
    conduct evidence was admissible. First, the factual claims ascribed to Mr.
    Pammett and Mr. King were contested, and there was no apparent way to test the
    credibility and reliability of those statements so as to assess their probative
    value, an important determination in the admissibility ruling. Second, it had
    been understood between the parties that the Crown would provide a factual foundation
    for its extrinsic discreditable conduct evidence application, given the
    agreement that the Crown could rely upon preliminary inquiry transcripts. And
    third, there was uncertainty about what these witnesses might say, given that
    they had not even been interviewed.

[44]

This last point is particularly concerning. Obviously, if it were appropriate
    for the Crown to rely during admissibility
voir dires
on an
    unsupported statement of the evidence the Crown hopes to have on contested
    points,
voir dires
would become
pro forma
proceedings instead
    of suitably rigorous evaluations of the admissibility of often prejudicial
    evidence.

[45]

I therefore agree with Mr. Aragon. The Crown should not have presented,
    and the trial judge should not have relied upon the bald but contested assertions
    ascribed to Mr. Pammett and Mr. King, given that the trial judge had not been provided
    with a meaningful basis for determining whether this evidence was even
    available to the Crown, or for evaluating its probative value, if it was
    available.

(3)

The Hearsay Evidence

[46]

I agree with Mr. Aragon that some of the evidence offered by DC
    Noonan and DC Lemay was based upon hearsay, without apparent indicia of
    reliability.

[47]

Specifically, DC Noonan offered hearsay information from reading
    reports and being privy to information from this investigation that Mr.
    Pammett, who was in bad standing, left the Loners along with others, including
    Mr. Aragon, because they were trying to establish another club. DC Noonan also
    offered hearsay evidence based on a search warrant information he had read that
    this had led to animosity between the Loners and Mr. Pammetts break-away
    group.

[48]

DC Lemay also relied on out-of-court information  the Loners
    website  for his testimony that Mr. Pammett had been kicked out of the
    Loners. It was a hearsay use of that website for DC Lemay to rely upon it, as
    he did, to conclude that Mr. Pammett had in fact been kicked out of the Loners.
[3]

[49]

Although Mr. Aragons counsel did not specifically identify all of the
    hearsay evidence I have just described, he made submissions about the inappropriateness
    of the Crown relying upon hearsay in support of its application. I offer no
    comment on whether this evidence should have been put before or admitted by the
    trial judge during the
voir dire
. My concern is that in the
    admissibility ruling, the trial judge did not address the fact that this
    information rested on hearsay, when that is a relevant and important
    consideration in determining the probative value and hence admissibility of the
    proposed, contested evidence.

(4)

Misapprehensions of Evidence

[50]

I also agree with Mr. Aragon that the trial judge misapprehended
    evidence relevant to the admissibility of the extrinsic discreditable conduct
    evidence.

[51]

Of most concern, the trial judge adopted the Crowns erroneous claim
    made in its Summary that Mr. Fernandes testified at the preliminary inquiry that
    Mr. Pammett was in bad standing with the Loners. In fact, in his preliminary
    inquiry testimony, Mr. Fernandes did not even confirm that Mr. Pammett had been
    a member of the Loners, instead saying that he did not know if this was the
    case.

[52]

The trial judge also described DC Lemay as offering evidence that
    Mr. Pammett started his own club
along with Mr. Aragon
. DC Lemay did
    describe Mr. Pammett starting the club and he did offer evidence about Mr.
    Aragons subsequent association with Mr. Pammett, but he did not testify that
    Mr. Pammett started his own club along with Mr. Aragon.

[53]

Finally, in the bullet points the Crown ascribed to Mr. Pammett, it
    is proposed that Mr. Pammett would say that he left the Loners because
he
was unhappy with them. The trial judge recounted Mr. Pammetts proposed
    evidence as confirming that he left with Mr. Aragon because
they
 were
    unhappy with the Loners.

(5)

Conclusions on the Evidentiary Basis

[54]

There were therefore problems relating to the evidentiary basis for
    the trial judges admissibility ruling. Those problems make it inappropriate to
    defer to the trial judges decision. I would nonetheless deny this ground of appeal.
    As I am about to explain, based on the
voir dire
evidence that was
    appropriately before the trial judge, there was a clear foundation for the
    admissibility of the extrinsic discreditable conduct evidence.

The Probative Value of the Evidence and the Risk
    of Prejudice

[55]

The trial judge did not err in finding that the probative value of
    the Crowns proposed extrinsic discreditable conduct evidence outweighed the
    prejudice it would cause.

[56]

Although such evidence is presumptively inadmissible, extrinsic discreditable
    conduct evidence became critically important to this case, given the content of
    the 911 call: You had the only chance to come away. Youre so stupid. What,
    are you a Loner? [] You want to be a Loner? Thats for the Loners. Fernando
    you had a chance to come with us. This recording provided a foundation for the
    admission of extrinsic discreditable conduct evidence on several overlapping
    bases.

[57]

First, triers of fact must understand the admissible evidence that
    they will be hearing. It is therefore appropriate for jurors to hear evidence
    that gives them the narrative required to do so. Specifically, the jurors
    trying Mr. Aragon needed to understand why Mr. Fernandes would be attacked
    because he was a Loner, and what the reference to a chance to come with us
    meant in the circumstances of the case. Given the Crown theory that these words
    arose from a dispute between motorcycle gangs, it was inevitable that unfolding
    the essential narrative of the case would entail presenting evidence about that
    dispute.

[58]

Second, the 911 audio recording disclosed an apparent motive for the
    attack. This provided the foundation for the admission of evidence capable of
    showing that Mr. Aragon shared that motive. Simply put, if Mr. Aragon could not
    be shown to be part of a group that had reason to chide Mr. Fernandes for not
    coming with us, the Crown case would have been materially weakened. On the
    other hand, evidence confirming that Mr. Aragon fit the profile of persons
    likely to attack Mr. Fernandes because Mr. Fernandes was a Loner and because he
    had not come with Mr. Aragon and others, would offer substantial support to
    the Crown case.

[59]

The fact that the Crown relied upon evidence of a group
animus
to establish Mr. Aragons own
animus
and motive is not problematic. It
    is well settled that extrinsic discreditable conduct evidence can gain admission
    to support a Crown theory that a crime has been committed by a member of a
    criminal group for group reasons:
R. v. Sipes
, 2011 BCSC 640, at paras.
    364, 367;
Phan
, at para. 97. Evidence about the structure of the
    criminal group, the intensity of the
animus
, and the role or
    relationship of the accused to the criminal group, can all be relevant and
    probative in unfolding a Crown theory that the accused was motivated to act
    because of group
animus
:
Phan
, at paras. 97-98.

[60]

Finally, the 911 audio recording confirmed that the speaker, who the
    Crown alleged to be Mr. Aragon, knew Mr. Fernandes, and knew him to be a Loner.
    Evidence that Mr. Aragon knew Mr. Fernandes, and knew him to be a Loner, was
    therefore important, even if this evidence required disclosure that Mr. Aragon
    knew Mr. Fernandes through their gang association.

[61]

Was there probative evidence relating to each or any of these
    theories of admissibility? In considering this question, I have disregarded the
    bald assertions the Crown ascribed to Mr. Pammett and Mr. King, as well as the
    hearsay evidence that was presented during the
voir dire
. I am
    persuaded that the remaining evidence presented a formidable and probative evidentiary
    foundation that would enable jurors to understand the 911 conversation and
    would situate Mr. Aragon among those who could have spoken the words captured
    during the 911 call.

[62]

Specifically, there was evidence supporting each of the following
    factual propositions, which together provide that probative evidentiary
    foundation:

Mr. Fernandes was a Loner, and Mr.
    Aragon was a former Loner.

·

Mr. Fernandes confirmed that he was a member of
    the Loners, and that he knew Mr. Aragon, who had also been a Loner.

·

There was evidence that Mr. Aragon had been seen
    in early 2012 at bike shows with known members of the Loners, including Mr.
    Pammett, who was affiliated with the Loners clubhouse at the Park Street
    address where Mr. King was a member. On one of those occasions Mr. Aragon was
    wearing a Loners shirt.

Mr. Pammett and others left the
    Loners and the departure was acrimonious.

·

DC Lemay presented evidence that in March 2012,
    Mr. Pammetts common law wife acquired the property at the Perry Street address.
    Commencing in the spring, Mr. Pammett and other known members of the Loners
    moved into the Perry Street address.

·

The preliminary inquiry transcripts of DC Noonans
    testimony included evidence that the Perry Street address bore the
    characteristics of a motorcycle gang clubhouse.

·

There was evidence that the Loners posted
    information on their website casting Mr. Pammett in a bad light by claiming he
    had been kicked out the Loners, a fact that was demonstrative of a rift between
    the Loners and Mr. Pammett.

·

There was evidence that a Loners patch was hung
    upside down inside the Perry Street clubhouse. DC Noonan provided expert
    evidence that in the outlaw motorcycle gang culture, this a sign of disrespect.

·

At the Perry Street clubhouse, there were vests
    from which patches and rockers had been removed. Since the Perry Street
    clubhouse was frequented by persons previously known to be Loners, there is an
    available inference that the insignia that had been removed had been affiliated
    with the Loners. The removal of the patches and rockers is therefore evidence
    of an end to the association between those linked to the Perry Street address and
    the Loners.

·

DC Noonan provided evidence that a Ledger Book
    was found inside the Perry Street location that included an entry dated June 8,
    2012 which read, The Loners getting their shit this weekend. An entry dated
    June 29, 2012 said, Loners still badmouthing us on Internet.

·

DC Lemay also gave evidence of an alleged
    firebombing at the Park Street address on June 22, 2012. He observed Loners at
    the clubhouse the next day in what he described as a show of force. He observed
    men milling around the front gate, and he described a verbal conflict that
    afternoon in front of the Park Street address between two groups, and he
    testified that Mr. Gardiner, who was associated with the Perry Street group,
    was involved.

·

There was also evidence that prior to the July
    22, 2012 attack on Mr. Fernandes, a number of windows had been broken at Mr.
    Kings home, which is immediately proximate to the Loners clubhouse at the Park
    Street address. Although no evidence was available linking the attack to the break-away
    group, it could be inferred given the context and timing that this event was likely
    related to the rift between the groups.

Mr. Aragon was linked to the Perry Street
    clubhouse, to Mr. Pammett and to the group
animus
.

·

There was evidence from DC Lemay that throughout
    the spring and summer of 2012, Mr. Pammett and Mr. Aragon were seen together and
    separately at the Perry Street clubhouse. As indicated, the men were formerly
    associated in the Loners motorcycle gang, which Mr. Pammett acrimoniously left.

·

There was evidence from club records that a
    person identified as Carlito, a known nickname for Mr. Aragon, had made a
    donation at the Perry Street clubhouse.

·

There was evidence before the trial judge during
    the
voir dire
that the attack on Mr. Fernandes took place in proximity
    to the Perry Street address as well as evidence that would entitle jurors to
    conclude that Mr. Fernandos attackers came from the Perry Street address.

·

In addition, the preliminary inquiry testimony
    of DC Lemay and DC Noonan that was also before the trial judge on the
voir
    dire
identified Mr. Aragon on a surveillance videotape at the Perry Street
    clubhouse, both before and after the attack, in the company of other persons
    identified as former Loners, and indicated that he and at least one other
    person had a bat.

[63]

Together, the evidence on the
voir dire
provides a
    probative narrative explaining the meaning of the words captured on the 911
    call. Together, the evidence is also probative in establishing that there was serious
    group
animus
between the break-away group and the Loners.

[64]

Even in the absence of evidence that Mr. Aragon was formally a member
    of the break-away group, or that he was in bad standing with the Loners, this
    evidence also provided a strong basis for inferring that Mr. Aragon aligned
    himself with the break-away group. He maintained his connection to Mr. Pammett,
    who could be inferred to have
animus
against the Loners, the group
    that Mr. Aragon had also left. Most significantly, there was evidence that Mr.
    Aragon was present with a group at the Perry Street address on the night of the
    attack, while holding a baseball bat. In my view, this evidence supports an
    inference of close affiliation between Mr. Aragon and other former members of
    the Loners. The history and nature of his alignment with the break-away group
    coupled with his presence with others at the Perry Street address on the night
    of the attack on Mr. Fernandes, at the location from which the attack
    originated, supports a probative inference that Mr. Aragon was linked to the
    Perry Street group and would be motivated to participate in a gang-related
    attack against a member of the Loners.

[65]

Finally, the preliminary inquiry evidence of Mr. Fernandes, which
    was before the trial judge during the
voir dire
, is probative evidence
    that Mr. Aragon knew Mr. Fernandes by name and knew him to be a Loner.

[66]

The evidence I have just recounted provided strong probative
    inferences on each of the important issues I have identified.

[67]

I am also satisfied that the probative value of this evidence clearly
    outweighs the risk of prejudice it presents. To be sure, I share Mr. Aragons
    concern that notwithstanding that the Crown was not seeking to lead evidence
    linking Mr. Aragon to any specific extrinsic criminal activity, the evidence I
    have recounted carries an appreciable risk of prejudice against him, through his
    affiliation with criminal organizations. However, it was inevitable that Mr.
    Aragons affiliation with criminal organizations was going to be exposed during
    the trial. This prosecution could not realistically have occurred without
    disclosing the Crown theory that the attack was gang-related, and that Mr.
    Aragon was connected to the break-away group. Moreover, the admissible recognition
    evidence could not have been presented without disclosing his history with
    motorcycle gangs and his connection to the break-away group.

[68]

Without deferring to the decision of the trial judge and without relying
    on the unsupported evidence attributed to Mr. Pammett and Mr. King or the hearsay
    information furnished during the
voir dire
, I am therefore satisfied
    that the probative value of the extrinsic discreditable conduct evidence
    outweighed the risk of prejudice it presented. The evidence proposed during the
voir dire
was admissible.

[69]

I would dismiss this basis for appeal.

The Evidence and the Scope of the Admissibility
    Ruling

[70]

Trial judges are obliged to act as gatekeepers in ensuring that
    highly prejudicial evidence is not admitted, including extrinsic discreditable
    conduct evidence that goes beyond the scope of an admissibility ruling:
R.
    v. Cook
, 2020 ONCA 731, 394 C.C.C. (3d) 467, at para. 71;
M.R.S.
,
    at paras. 65-66. I do not accept Mr. Aragons submission that the trial judge erred
    in discharging his gatekeeping role in this case by admitting irrelevant
    evidence beyond the scope of his ruling.

[71]

Notwithstanding the importance of ensuring that extrinsic
    discreditable conduct evidence is ruled admissible before it is presented, the
    scope of an admissibility ruling must be interpreted sensibly and contextually,
    rather than with artificial rigidity. An admissibility ruling is not a script, nor
    could it be. It is inevitable that the testimony of witnesses will be cast in
    greater or lesser compass in the retelling, as they explain, contextualize, and
    elaborate upon earlier testimony or police interviews. It would be unrealistic
    to expect a trial judge to articulate in their admissibility ruling in complete
    detail every scintilla or subtopic that is reasonably embraced by that ruling.
    In my view, when the issue is approached fairly and practically, the trial
    judge did not permit the admission of evidence that exceeded the scope of the
    ruling. I will elaborate by addressing, in turn, the evidence about which Mr.
    Aragon has expressed concern.

[72]

First, Mr. Aragon takes issue with the breadth of the evidence
    provided by DC Noonan about the history of motorcycle clubs in Peterborough and
    the inclusion of details about the structure, rules, and culture of motorcycle
    clubs, some of which were unconnected to the proceedings. I agree in principle
    that given the prejudice caused by association, the trial judge was required to
    exercise care not to allow the evidence to go too far afield, but it was clearly
    contemplated by the ruling that DC Noonan would provide expert testimony about
    the broader culture of outlaw motorcycle clubs. DC Noonan had to do so both to
    confirm his expertise and to validate the relevant testimony he gave about
    biker culture.

[73]

Moreover, the trial judge said in the course of his ruling that [t]he
    discreditable conduct that the Crown seeks to elicit is contained in the
    evidence of [six witnesses]. One of those witnesses was DC Noonan. In his preliminary
    inquiry testimony that was before the trial judge, DC Noonan provided testimony
    about the broader culture of outlaw motorcycle clubs.

[74]

Second, Mr. Aragon argues that the trial judge erred by admitting
    numerous photos of him and others showing them associating with or engaged in
    motorcycle club activities and by permitting evidence about Mr. Pammetts
    involvement with other motorcycle clubs, including a newspaper article about
    Mr. Pammetts departure from the Loners, to be shared with the jury. In my
    view, all of this evidence was relevant and within the fair contemplation of
    the trial judges ruling.

[75]

With respect to the photographs, the admissibility ruling clearly
    contemplated that background evidence could be provided regarding the culture
    of motorcycle gangs and linking the players to motorcycle gang activity. The
    photographs served this permissible purpose. I find them to be neither
    excessive in number nor gratuitous.

[76]

With respect to the evidence about Mr. Pammett, it was obvious that
    his status as a biker would be revealed during trial, as would evidence of his
    departure from the Loners. I see no problem with the admission of the newspaper
    article, in which statements were attributed to Mr. Pammett. An examination of
    the transcript shows that the Crown used this article at trial not as hearsay
    evidence to prove why Mr. Pammett left, but as a tool for probing Mr. Pammetts
    testimonial account of why he left the Loners. Mr. Pammett was purportedly quoted
    in that article. It was appropriate for the Crown to confront him with the
    words attributed to him, and for the trial judge to exhibit the article so that
    it would be available to jurors in considering Mr. Pammetts testimony.

[77]

Finally, Mr. Aragon takes issue with admission of evidence about the
    June 22, 2012 firebombing and the July 22, 2012 window breaking incident. In my
    view, proof of these incidents was contemplated by the admissibility ruling.
    Evidence about these incidents was provided during the
voir dire
and
    the latter incident was explicitly referred to in the Summary. Moreover, as I
    have indicated, these incidents were relevant both during the
voir dire
and at trial in establishing the depth of the animosity that existed between
    the Loners and the break-away group.

[78]

I would not give effect to this ground of appeal.

C.

Did the trial judge err by failing to instruct the jury on the
    prohibited and permissible uses of the extrinsic discreditable conduct evidence?

[79]

Mr. Aragon argues that the trial judge erred by failing to
    adequately equip the jury with an understanding of the proper and improper uses
    of the extrinsic discreditable conduct evidence. I do not agree.

The Direction on Permissible Uses

[80]

Under ideal circumstances, a trial judge would dedicate a portion of
    their charge to identifying extrinsic discreditable conduct evidence that has
    been admitted and directing the jury on the permissible inferences it could
    draw from that evidence. The trial judge did not do so in this case, but this
    is understandable. It would not have been realistic nor desirable in the
    circumstances of this case for the trial judge to have attempted to gather all
    of the extrinsic discreditable conduct evidence together in one place in the
    charge for the purpose of assisting the jury in its application. This evidence
    was voluminous, including evidence not only about Mr. Aragon but also the
    motorcycle gangs he associated with. Had the trial judge attempted to gather
    this evidence together in the charge, that charge would not have decanted and
    simplified the critical issues in the case. It would have magnified the
    potential for prejudice.

[81]

What ultimately matters is that a trial judges charge provides the jury
    with a functional understanding of the value and effect of significant evidence
    and an understanding of how this evidence related to the relevant issues:
R.
    v. Newton
, 2017 ONCA 496, 349 C.C.C. (3d) 508, at paras. 10-13;
R. v.
    Jacquard
, [1997] 1 S.C.R. 314, at para. 14. In all of the circumstances, I
    am satisfied that the jury charge in this case did so.

[82]

Specifically, the trial judge opened the charge by setting out the Crown
    narrative which the extrinsic discreditable conduct evidence was marshalled to
    prove, namely, that Mr. Fernandes, a Loner, was assaulted by Mr. Aragon because
    of the
animus
that had developed between the break-away group that Mr.
    Aragon was associated with and the Loners. He also explained to jurors when introducing
    them to the significance of expert testimony that DC Noonans expert evidence was
    called to provide important narrative evidence about the fractious relationship
    between the Loners and the break-away group and about Mr. Aragons affiliation
    with the break-away group. When he explained the significance of motive, the
    trial judge also identified the significance of Mr. Aragons former association
    with the Loners and the falling out. And he fairly summarized the material
    evidence. I have no issue with the sufficiency of the charge relating to the
    proper uses of that evidence.

The Impermissible Use: The Absence of a
    Limiting Instruction

[83]

Given the extrinsic discreditable conduct evidence that was
    presented, this case called on its face for a limiting instruction to the jury not
    to use that evidence to infer that Mr. Aragon is the sort of person who would
    commit the offences charged. In spite of the real risk that the jury could
    engage in such reasoning, the judge did not give this kind of instruction. I
    would nonetheless deny this ground of appeal.

[84]

It is evident that the trial judge did not give a limiting
    instruction because Mr. Aragons counsel specifically asked him not to do so. After
    forming the opinion that the extrinsic discreditable conduct evidence had gone
    somewhat beyond the admissibility order, Mr. Aragons trial counsel said to the
    trial judge, at this stage of the game, I think drawing attention to anything
    makes it worse rather than better. Even though I do not agree that the evidence
    went beyond the admissibility rule, I recognize this to have been a considered
    and tactical choice made in what defence counsel believed to be Mr. Aragons
    best interest. The trial judge cannot be faulted for acceding to Mr. Aragons
    trial counsels request.

[85]

Having said this, the trial judge may well have engaged in a more
    detailed conversation with Mr. Aragons counsel before acceding to this
    request. In my view, a limiting instruction could easily have been provided in
    general terms, without recounting the details about Mr. Aragons association
    with outlaw motorcycle gangs, and without amplifying the risk of prejudice. For
    example, the trial judge could have instructed jurors that the law recognizes it
    to be unfair to judge an accused person based on any conclusions that may be drawn
    about his general character, and then have cautioned them not infer that Mr.
    Aragon is a bad person who would commit the charged offences based on his
    association with motorcycle gangs. Although the trial judge might well have had
    a more extensive conversation with defence counsel to explore such a
    possibility before acceding to the request not to include a limiting
    instruction, he was not obliged to do so. I would dismiss this ground of
    appeal.

II.

SENTENCE APPEAL

MATERIAL FACTS

[86]

The Crown sought to have Mr. Aragon declared a dangerous offender
    pursuant to s. 753 of the
Criminal Code
, R.S.C., 1985, c. C-46, and to
    have an indeterminate sentence imposed.

[87]

During the sentencing hearing, three individuals, including DC Lemay
    and DC Noonan, offered evidence about Mr. Aragons affiliation with motorcycle
    gangs. Brian Wheeler, from Correctional Services Canada, offered testimony
    about Mr. Aragons history with treatment during his lengthy previous incarceration
    and about revisions that have occurred in the programming since Mr. Aragon
    received that counselling. Testimony was also given by another correctional services
    employee and a police officer relating to Mr. Aragons behaviour while
    incarcerated. Dr. Jeffrey McMaster, a psychiatrist called by the Crown, offered
    the opinion that there was a high risk that Mr. Aragon would reoffend
    violently, and a substantial risk that this violence would involve significant
    physical or psychological harm  in short, that he was a dangerous offender.
    However, he offered the opinion that there was a possibility of controlling Mr.
    Aragon in the community on a Long-Term Supervision Order (LTSO), which would
    include intensive treatment and the highest level of supervision.

[88]

Mr. Aragon did not call evidence at the sentencing hearing.

[89]

Final sentencing submissions were then scheduled for July 17, 2015
    but were adjourned when defence counsel fell ill. This delay necessitated the
    appointment of new counsel and prevented the trial judge from completing the
    sentencing before his mandatory retirement age. On February 29, 2016, another
    judge (the sentencing judge) was appointed pursuant to s. 669.2 of the
Criminal
    Code
to complete the sentencing.

[90]

Mr. Aragons new defence counsel, who contested the credibility,
    reliability, and weight of the testimony upon which the Crown was relying in
    support of its sentencing position, sought to have some of the witnesses
    recalled who had testified during the aborted sentencing hearing that had been
    commenced before the trial judge. In circumstances described in detail below,
    the sentencing judge permitted a single witness, Dr. McMaster, to be recalled
    and testify before him.

[91]

Defence counsel also asked the sentencing judge to make factual
    findings so that the basis of the findings of guilt relating to the convictions
    would be clarified for the purposes of sentencing. Again, in circumstances
    described in detail below, the sentencing judge did so.

[92]

In October 2016, defence counsel also instituted an unsuccessful
    mistrial application based on fresh evidence, as well as a failed
    constitutional challenge to the dangerous offender regime in the
Criminal
    Code
. I unfold the circumstances of constitutional challenge in more
    detail below.

[93]

On December 9, 2016, Dr. McMaster was recalled and was questioned by
    Mr. Aragons defence counsel as well as the Crown. The defence did not seek to
    call additional evidence before the sentencing judge. Final sentencing
    submissions were completed on February 24, 2017.

[94]

Judgment on sentence was scheduled for June 30, 2017, but the
    decision was not ready. On September 8, 2017, the sentencing judge gave a brief
    oral decision finding Mr. Aragon to be a dangerous offender and sentencing him
    to indeterminate imprisonment. Written reasons were to follow.

[95]

On December 14, 2017, defence counsel requested the written reasons
    for the sentence, as well as the outstanding written reasons on other
    applications that had been denied.

[96]

He requested written reasons again on January 24, 2018.

[97]

On March 6, 2018, the sentencing judge released his written reasons
    for his factual findings. On March 8, 2018, he also released his written
    reasons for denying the constitutional challenge. The written sentencing
    reasons for the sentence that had been imposed on September 8, 2017 were
    provided on March 14, 2018.

THE ISSUES

[98]

In support of his proposed sentence appeal, Mr. Aragon argues that
    the s. 669.2 procedure was not undertaken fairly; that the written reasons
    offered by the sentencing judge were insufficient and were after-the-fact
    justifications for prior oral rulings he had made long before; and that the
    sentencing judge erred in his rulings on the sentencing facts.

[99]

Mr. Aragon also argues that the dangerous offender designation and
    the sentence of indeterminate imprisonment were unreasonable. Additionally, he
    seeks the admission of fresh evidence outlining the rehabilitative progress he
    has made since the sentencing judges ruling.

[100]

The
    Crown contends that if we find that any legal errors occurred during
    sentencing, but that they did not occasion a substantial wrong or miscarriage
    of justice, we should dismiss the appeal pursuant to the broad authority to do
    so implicit in s. 759 of the
Criminal Code
:
R. v. Johnson,
2003
    SCC 46, [2003] 2 S.C.R. 357, at paras. 47-49;
R. v. Boutilier
, 2017
    SCC 64, [2017] 2 S.C.R. 936, at paras. 81-89, affg 2016 BCCA 235, 336 C.C.C.
    (3d) 293.

[101]

The
    issues on the sentence appeal can be described and conveniently approached as
    follows:

A.

Did the sentencing judge err in making factual
    findings relating to aggravating facts?

B.

Were reasons for rulings made during the sentencing
    hearing insufficient?

C.

The remaining issues raised by Mr. Aragon on the
    sentence appeal:

a.

Were the reasons for the rulings made during the
    sentencing hearing made after-the-fact?

b.

Was the s. 669.2 hearing an unfair process and a
    miscarriage of justice?

c.

Was the dangerous offender designation and/or
    the indeterminate sentence unreasonable?

d.

Is the fresh evidence of rehabilitation
    admissible?

D.

If any of these errors occurred, should the
    appeal be denied because of the absence of a miscarriage of justice?

[102]

For
    reasons that I will describe below, I would allow the sentencing appeal on
    grounds A and B. As I will also explain, it is either unnecessary or not in the
    interests of justice to consider the remaining issues that Mr. Aragon has
    raised. Nor is it in the interests of justice to exercise our jurisdiction to
    deny the sentencing appeal based on the absence of a miscarriage of justice. I
    would set aside the sentence and order a new sentencing hearing.

A.

Did the Sentencing judge err in making factual Findings Relating to
    Aggravated Facts?

[103]

In my view, the sentencing judge erred in making factual findings
    relating to several aggravating factors that influenced his characterization of
    the seriousness of the index offence. These errors are material because the
    characterization of the seriousness of the index offence heavily influenced the
    sentencing judges decision to sentence Mr. Aragon to an indeterminate sentence
    as a dangerous offender.

[104]

Given that this was a jury trial, and that juries do not give
    reasons for the general verdicts they reach, the obligation fell to the
    sentencing judge to determine the material facts required for sentencing. This
    was required to be done pursuant to ss. 724(2) and (3) of the
Criminal Code
.
    Section 724(2) provides:

Where the court is composed of a
    judge and jury, the court

(a) shall accept as proven all
    facts, express or implied, that are essential to the jurys verdict of guilty;
    and

(b) may find any other relevant
    fact that was disclosed by evidence at the trial to be proven, or hear evidence
    presented by either party with respect to that fact.

[105]

To sentence an offender convicted by jury, a sentencing judge must
    therefore identify the facts that are essential to the jurys verdict or, in
    other words, identify the express and implied factual implications of the
    jurys verdict:
R. v. Ferguson
, 2008 SCC 6, [2008] 1 S.C.R. 96, at
    para. 17, citing
R. v. Brown
, [1991] 2 S.C.R. 518, at p. 523. Where
    the factual implications of the jurys verdict are ambiguous, the sentencing
    judge should not attempt to follow the logical process of the jury but should
    come to his or her own independent determination of the relevant facts:
Ferguson
,
    at para. 18.

[106]

It follows that there is a two-step process required in settling the
    factual record of sentencing in a jury trial. First, the sentencing judge must
    identify any relevant factual determinations the jury has made by examining
    what facts were essential to the jurys verdicts, and then apply those facts
    when sentencing the offender. Second, where it is necessary in order to
    sentence an offender to determine facts that were not expressed or necessarily
    implicit in the jury verdict, the sentencing judge is to engage in their own,
    independent fact-finding exercise.

[107]

It is therefore an error for a sentencing judge to rely on facts in
    sentencing that are not expressed or implicit in the jurys verdict, but that
    are based on the sentencing judges belief as to what the jury must have
    decided:
R. v. Moreira
, 2021 ONCA 507, at paras. 43-57. To rely on aggravating
    facts that are not necessarily expressed or implicit in the jury verdict, the sentencing
    judge must come to their own independent determination that those aggravating
    facts have been proved, beyond a reasonable doubt:
Criminal Code
, s.
    724(3)(e);
R. v. Gardiner
, [1982] 2 S.C.R. 368, at paras. 112-14. I am
    persuaded that the sentencing judge applied these rules incorrectly.

[108]

The sentencing judge gave an oral decision relating to the factual
    findings on November 8, 2016, followed by subsequent written reasons on March
    6, 2018, some 16 months later.

[109]

It is clear that in the oral decision the sentencing judge identified
    findings that he concluded were necessarily implied by the jury verdict, rather
    than factual findings he was making on his own. Speaking directly to Mr. Aragon
    he said:

I found favour with the Crown submissions [] that
the jury verdict was founded on the premises that the Crown argued it should
    be founded on
which is that you were the one who pocket dialled 911 and
    they recorded a beating of an individual in Peterborough and that you were the
    primary author of that beating. Thats just a synopsis okay? And Im only going
    by what I read, as you understand. I didnt hear the evidence, but
thats
    what the jury found
and Im content to find thats exactly what they found.
    [Emphasis added.]

[110]

It is evident that the sentencing judges written reasons were likewise
    based solely on his interpretation of the facts he found were essential to the jury
    verdict and not on his own independent findings from the evidence. He quoted
    the above ruling and said, Here is the full template of the basis of the
    determination that I came to in November 2016.

[111]

Mr. Aragon argues that the sentencing judge erred in deriving factual
    findings from the jury verdict that aggravated the seriousness of the index
    offence. Those impugned factual findings include: (1) Mr. Aragon was the primary
    author of the beating; (2) the voice on the 911 call was Mr. Aragons; (3) his
    motive for the beating was the gang feud alleged by the Crown; and (4) Mr.
    Aragon was in a fevered pitch of violence, with the glee exhibited by Mr.
    Aragon in so doing captured in the 911 call.

(1)

The finding that Mr. Aragon was the primary
    author of the beating

[112]

I agree with Mr. Aragon that a finding that Mr. Aragon was the
    primary author of the beating was not essential to the jury verdict, and that
    the sentencing judge erred in finding that it was. In order to attribute this
    role to Mr. Aragon when sentencing him, the sentencing judge would have had to
    have come to his own determination that this was so, beyond a reasonable doubt,
    but he never engaged in that analysis.

[113]

The Crown argues before us, as it did before the sentencing judge, that
    this finding was implicit in the jury verdict, given that the jury was not
    addressed on party liability. In my view, the fact that party liability was not
    on the table before the jury is immaterial. There was an evidentiary basis on
    the evidence for concluding that this was a group beating, and anyone who
    applied any force to Mr. Fernandes would be a principal, even if not the
    primary author of the beating. Therefore, the fact that Mr. Aragon was
    convicted as a principal does not disclose the jurys findings relating to the
    specific role he played in the beating, let alone a finding that he was the
    primary author of the beating.

[114]

In his written reasons, the sentencing judge offered three reasons,
    apart from general agreement with the Crown, for finding that the jury held
    that Mr. Aragon was the primary author of the beating. He noted that this was
    the Crown theory, he said the evidence makes this finding plain, and he relied
    upon the manner in which the trial judge instructed the jury. With respect,
    none of these points support the sentencing judges conclusion that the jury
    found Mr. Aragon to have been the primary author of the beating.

[115]

First, the Crown theory cannot carry significant weight in interpreting
    the essential factual findings a jury has made, since a jury need not rely on
    the Crown theory to convict. Even if the jury rejected the Crown theory, there
    was evidence that would have enabled jurors to be satisfied as to each element
    of the offences Mr. Aragon was charged with, without concluding that he was the
    primary author of the beating.

[116]

Second, in this case the evidence before the jury does not assist in
    identifying the factual finding the jury made, if any, about Mr. Aragons
    precise role in the assault. I do accept that where evidence leads to only one
    outcome, it is appropriate for a sentencing judge to consider this when
    identifying what is essential to the verdict, but that was not this case. As
    indicated, this was a group assault in which different assailants may have
    played different roles, and there was evidence available to support a finding
    that more than one assailant possessed a baseball bat. Simply put, in the
    circumstances of this case the evidence does not support the conclusion that it
    was essential to the jury verdict that the jury found Mr. Aragon to have been
    the primary author of the beating.

[117]

There is a related but independent concern of equal gravity. In referring
    to what the evidence makes plain the sentencing judge was clearly undertaking
    his own factual assessment of the evidence, but he did so in an attempt to
    determine what the jury must have found. This is an erroneous way to proceed. As
    indicated, a sentencing judge is not to undertake their own assessment of the evidence
    in an effort to divine what the jury must have found. If the findings the jury
    made are not apparent from the verdict, a sentencing judge must make their own
    independent determination of whether the Crown has proved beyond a reasonable
    doubt the aggravated facts upon which it seeks to rely.

[118]

Third, I see nothing in the jury direction that shows that the jury
    must have found that Mr. Aragon was the primary author of the beating. I agree
    that the jury direction does support the inference that the jury must have
    found that Mr. Aragon applied force to Mr. Fernandes with a bat, but beyond
    this there is nothing in the jury charge to indicate the extent and nature or
    consequences of the force that the jury found Mr. Aragon to have applied,
    relative to other assailants.

[119]

I would therefore reject the sentencing judges reasoning and his
    conclusion that the finding that Mr. Aragon was the primary author of the
    beating was essential to the jury verdict. This is not a minor error. Although
    it is true that all principal offenders bear responsibility for a joint
    assault, and sentences imposed may not vary between joint participants who play
    a greater or lesser role in administering a beating or in directly causing
    injuries, the nature of the assaultive behaviour engaged in by each joint
    participant can have a material impact on the sentences imposed. This is particularly
    so in a case such as this where the alleged brutality of the accuseds behaviour
    is relied upon in support of a dangerous offender finding, and/or an
    indeterminate sentence. A finding that Mr. Aragon was the primary author of the
    beating is therefore a finding of importance, and the sentencing judge erred when
    making it.

(2)

The finding that the voice on the 911 call was
    Mr. Aragons

[120]

Although the sentencing judge did not directly articulate a finding
    that the jury accepted that the voice on the 911 audio recording was Mr.
    Aragons, it is implicit in his reasons that he did so. Indeed, he said he
    found complete favour with the Crowns submissions, which included this claim.

[121]

Since the sentencing judge did not articulate this finding directly,
    his reasoning cannot be identified with absolute confidence. When he spoke in
    his written reasons about the 911 audio recording, he noted that the 911 call
    dovetails with the surveillance footage and the Crown position. Once again, if
    these were the bases upon which he found that the jury concluded that the
    voice on the call was Mr. Aragons, those reasons are inadequate. Neither the
    surveillance evidence nor the Crown position logically supports a finding that
    the jury necessarily found that it was Mr. Aragons voice on the 911 audio
    recording.

[122]

The Crown relies on a distinct point not identified by the sentencing
    judge to support his conclusion that the jury must have found it to be Mr.
    Aragons voice on the 911 audio recording, namely that the jury convicted Mr.
    Aragon of threatening bodily harm and the only threat identified in the
    evidence is captured on the 911 audio recording. The difficulty with drawing
    this inference is that there were several voices on the 911 recording. Even
    though it is implicit from the jury verdict that the jury necessarily found
    that Mr. Aragon was the speaker who expressed the recorded threat, it does not
    necessarily follow that the jury concluded that Mr. Aragon made all of the
    material comments captured by the 911 audio recording. It is not implicit in
    the jury verdict that the jury found that it was Mr. Aragons voice making all
    of the material utterances that occurred during the 911 call, and it was an
    error for the sentencing judge to have held otherwise.

(3)

The finding that Mr. Aragons motive for the
    beating was the gang feud alleged by the Crown

[123]

The error I have just identified cascades into the sentencing
    judges conclusion that the jury accepted that Mr. Aragons motive for the
    beating was the gang feud alleged by the Crown. This conclusion was based in
    material part on the prior erroneous finding that the jury found that it was Mr.
    Aragons voice that was captured on the 911 audio recording, describing for Mr.
    Fernandes why he was being beaten. As I have explained, it does not follow from
    the jurys finding that Mr. Aragon uttered a threat, that implicitly the
    jury must have found that he is also the person who was captured on the 911
    audio recording uttering the words that apparently disclose the motive for the
    attack.

[124]

Moreover, it was open to the jury to reject the motive inferences
    that the Crown sought to have drawn from the extrinsic conduct evidence, yet
    still convict Mr. Aragon of the offences it did. Since a jury is free to
    convict without proof of motive, there is no basis for concluding that it was
    essential to the jury verdict that it accepted the Crowns motive theory.

(4)

The finding that Mr. Aragon was in a fevered
    pitch, and acting with glee

[125]

Finally, Mr. Aragon takes issue with the sentencing judges holding
    that he was in a fevered pitch of violence, with the glee exhibited [] in so
    doing as captured in the 911 call. Even leaving aside the other issues Mr.
    Aragon raises about this finding, this finding depends on the sentencing
    judges prior problematic conclusion that the jury found that it was Mr.
    Aragons voice speaking the words on the 911 call. The finding that Mr. Aragon
    was in a fevered pitch of violence and glee was therefore also arrived at
    in error.

Conclusion on the Aggravated Factual Findings

[126]

The sentencing judge erred in arriving at aggravated factual
    findings that had a material bearing on the dangerous offender determination.

B.

Were the reasons for the sentencing rulings insufficient?

[127]

Trial judges are obliged, including when sentencing offenders, to
    provide reasons that explain what they have decided and why they have decided
    that way:
R. v. G.F.
, 2021 SCC 20, 459 D.L.R. (4th) 375, at para. 69.
    When read as a whole in context of the evidence, the arguments and the live
    issues in the case, those reasons must disclose the pathway the trial judge
    took to reach their decision (factual sufficiency) and must enable the
    unsuccessful party to discern if any errors have occurred, so that they can
    meaningfully exercise their right to appeal (legal sufficiency). I am
    persuaded that the reasons the sentencing judge provided with respect to some
    of the rulings he made during the sentencing hearing were insufficient.

The Rulings

[128]

The sentencing judge was required to make five rulings during the
    sentencing hearing. Included among those rulings was a decision denying a
    mistrial. I will say no more about the mistrial decision because no issue was
    taken with the sufficiency of the written reasons for that decision, which were
    not placed before us. The remaining 4 rulings require discussion, relating to:
    (1) the
viva voce
evidence that the sentencing judge would hear; (2) the
    aggravated factual findings ruling; (3) a constitutional challenge to statutory
    provisions; and (4) the sentencing ruling. I would find that the first 3 of
    those rulings were insufficient, but the sentencing ruling itself was not
    insufficient.

(1)

The
viva voce
evidence ruling

[129]

After assuming responsibility for adjudicating the Crowns dangerous
    offender application following the trial judges retirement, the sentencing
    judge met with the parties on February 29, 2016. Defence counsel alerted the sentencing
    judge that it would seek to have witnesses recalled because there were issues
    of credibility and reliability that the sentencing judge would have to
    adjudicate. The Crown opposed this, asking the sentencing judge to proceed on
    the written record. The Crown argued that recalling witnesses would be contrary
    to s. 669.2 of the
Criminal Code
, the provision that permitted the appointment
    of the sentencing judge to the case.

[130]

Brief memoranda were filed with the sentencing judge in March 2016
    in which defence counsel requested that some of the witnesses be recalled, which
    the Crown opposed.

[131]

On June 6, 2016 the sentencing judge said during an administrative
    appearance, I think Dr. McMaster should be recalled.

[132]

On the next appearance, October 17, 2016, the sentencing judge
    repeated that he had determined that at the very least, Dr. McMaster should be
    recalled. He then said, Theres no need for any of the other witnesses to be
    produced by the Crown. He explained that Dr. McMaster was being recalled out
    of an abundance of fairness given the lengthy evidence he had provided. The
    sentencing judge said he read what the other witnesses had to say, and he did
    not think it was necessary that they be called.

[133]

On October 19, 2016, the sentencing judge described his decision to
    permit Dr. McMaster to be recalled as an indulgence to defence counsel.

[134]

No further reasons were provided for rejecting defence counsels
    request to recall other opinion witnesses who had testified during the
    sentencing hearing, prior to the sentencing judge being appointed to continue
    the proceedings.

[135]

In his March 8, 2018 written ruling on Mr. Aragons constitutional
    challenge, the sentencing judge appended a footnote relating to his decision
    that only Dr. McMaster would be recalled. It read, I advised counsel in
    court I would provide further reasons, but there was no need for such. This footnote
    was recopied into the sentencing decision.

[136]

With respect, the sentencing judge failed to provide sufficient
    reasons for his decision to recall only Dr. McMaster, and not the remaining
    witnesses Mr. Aragon sought to have recalled. When his comments are taken as a
    whole, it is evident that the sentencing judge ventured only two explanations:
    (1) in denying the application relating to witnesses other than Dr. McMaster,
    he said that Dr. McMaster was an important witness who had provided
    lengthy testimony such that he should be recalled as an indulgence, and out
    of an abundance of fairness; and (2) he said that he had read the evidence of
    the other witnesses and it was not necessary to call them. With respect,
    neither explanation is sufficient. At best, explanation (1) simply implies that
    the same indulgence that was warranted for Dr. McMaster was not warranted for
    other witnesses, while explanation (2) fails entirely to disclose an
    intelligible pathway that the sentencing judge took to reach the decision that
    he did.

[137]

Moreover, no reasons were provided relating to the scope of
    discretion or the legal standard that should be applied in determining whether
    witnesses should be recalled where proceedings have been continued pursuant to
    s. 669.2 of the
Criminal Code
. I am persuaded that the reasons offered
    on the
viva voce
evidence ruling were legally insufficient.

(2)

The Aggravated Factual Findings Ruling

[138]

I have already described the aggravated factual findings ruling.
    This ruling had to be made before the parties could proceed to sentencing,
    since they needed to know the factual basis upon which sentencing would occur. Brief
    submissions were made on this interlocutory issue on February 29, 2016 and
    written submissions were provided on March 16, 2016. On November 8, 2016, the sentencing
    judge delivered a brief oral decision stating only that he found favour with
    the Crown submissions. The sentencing judge indicated that written reasons
    would follow.

[139]

Sentencing submissions proceeded and were completed on February 24,
    2017, without reasons relating to the factual findings having been released. It
    is evident that the parties had to rely on the Crown submissions to identify
    the aggravated factors relating to the index offence that would be at play
    during the dangerous offender hearing.

[140]

When Mr. Aragon was sentenced to an indeterminate sentence as a
    dangerous offender on September 8, 2017, the reasons on the aggravated factual
    findings holding were still outstanding. By that point, they were required only
    for appeal purposes.

[141]

In December 2017, defence counsel requested the written reasons
    relating to the dangerous offender declaration and the indeterminate sentence, which
    had also been delayed. At that time, he reminded the sentencing judge that the reasons
    on the aggravated factual findings ruling were still outstanding.

[142]

The written reasons relating to the factual findings were released
    on March 6, 2018, approximately two years after arguments had been made, and 16
    months after the sentencing judges oral ruling adopting the Crowns position without
    explanation had been provided.

[143]

When those written reasons were issued, they were brief. I
    appreciate that the quality of reasons is not necessarily commensurate with
    length, but the following description of the content of the reasons gives
    flavour to how cursory those reasons in fact were.

[144]

The first 13 paragraphs recite the history of the proceedings, with
    much of the discussion dedicated to explaining the delay in the hearing, and
    ascribing much of that responsibility to the defence. The next eight paragraphs
    rehearse some of the positions of the parties. The following seven paragraphs
    under the heading Some Further Comment contain the limited analysis that is
    offered. The first and last of those seven paragraphs simply rehearse the
    sentencing judges agreement with the Crown position. Three of the seven paragraphs
    are dedicated to refuting Mr. Aragons claim that the Crown did not prove that the
    911 call was a pocket dial, thereby leaving open the possibility that Mr.
    Aragon himself called 911. The penultimate of the seven paragraphs simply
    records that the sentencing judges findings are built on a review of the
    transcripts, exhibits, and the charge, with no specification provided.

[145]

The only aggravated factual finding that is addressed directly in
    those seven paragraphs relates to Mr. Aragons role as the principal in the
    severe beating. Reference is made to what the evidence makes [] plain but the
    evidence that the sentencing judge was referring to and the inferences relied
    upon are not identified. The defence arguments are not addressed. As alluded to
    above, one of the seven paragraphs may possibly be addressing the sentencing
    judges finding that it was Mr. Aragons voice on the 911 audiotape, but this
    is not certain because the paragraph is unclear.

[146]

In my view, as limited as the aggravated facts reasons are, they are
    not legally insufficient. As illustrated above, it is possible to discern the
    legal standard the sentencing judge applied in resolving the issues before him,
    and that he applied the wrong legal test. The problem I am now addressing is
    one of factual sufficiency. I am mindful that there is a very low bar for
    factual sufficiency:
G.F.
, at para. 71. However, that low bar is not
    met here. Beyond expressing general agreement with the Crown and rejecting the possibility
    that the 911 call was intentional, the sentencing judge did not explain his central
    finding that the jury necessarily concluded that it was Mr. Aragons voice that
    was recorded throughout the 911 call. In my view, it is not possible on the
    record to discern the pathway the sentencing judge took in preferring the Crown
    submissions. This was a live and material issue that required explanation to
    ensure a transparent adjudicative process in which justice can be seen to be
    done. The requisite explanation was lacking.

(3)

The Constitutional Challenge Ruling

[147]

In October 2016, Mr. Aragon brought a constitutional challenge to s.
    753 of the
Criminal Code
. It was argued on December 5 and 6, 2016. On
    June 30, 2017, brief oral reasons were provided rejecting the constitutional
    challenge, with more expansive reasons to follow.

[148]

The written reasons for that decision were provided on March 8, 2018.
    Those reasons span 47 paragraphs. The first 24 paragraphs recount the history
    of the case and have no bearing on the constitutional questions. The next 12
    paragraphs describe the materials that were filed by the parties, but not the
    arguments made. Eleven paragraphs appear under the heading Decision on the
    Constitutional Challenge. Paragraphs 38, 41, 42, and 46 address the sentencing
    judges reasons for denying the constitutional challenge. In paragraph 38, the
    sentencing judge recorded that he was following the Court of Appeal for British
    Columbias decision in
Boutilier
and that the defence argument did not
    satisfy him that
Boutilier
was wrong or should not otherwise apply to
    the facts of the case. In paragraph 41, he listed paragraphs of interest from
    the
Boutilier
decision. In paragraph 42, the sentencing judge expressed
    agreement with the Crown that there are extensive procedural protections
    afforded to an offender in other sections of the
Criminal Code
. Those
    sections are enumerated but their import is not described. In paragraph 46, the
    sentencing judge records, I concurred with the Crown with its argument at
    paragraph 66-69 of its factum.

[149]

I am of the view that the reasons for decision relating to the
    constitutional challenge were insufficient. The only explanations offered for
    rejecting a lengthy, sophisticated, complex, and multifaceted constitutional
    argument were (1) reliance on the Court of Appeal for British Columbias
    decision in
Boutilier
; and (2) agreement with the Crown that there are
    extensive procedural protections, and agreement with paragraphs 66-69 of the
    Crown argument.

[150]

There will certainly be occasions where issues are narrow enough
    that a decision may be sufficiently explained by simply citing a precedent, but
    this is not one of those occasions. Mr. Aragon argued that s. 753 was
    arbitrary and overbroad, contrary to s. 7 of the
Charter
. Although
    there are features of the analysis in
Boutilier
that could be relied
    upon to address the arbitrariness arguments that were made, the only s. 7
    challenge arguments advanced in
Boutilier
were that the sections were
    overbroad and grossly disproportionate. Therefore, the decision in
Boutilier
was not a complete answer to the arguments made. Even if had it been, one
    would have expected some explanation for why the non-binding reasoning in
Boutilier
would be followed.

[151]

With respect to the expressions of agreement with the Crown, the
    existence of procedural protections cited by the Crown do not answer the heart
    of the constitutional arguments that were made, nor do the paragraphs cited
    from the Crown argument. Indeed, it appears that the sentencing judge may have
    cited paragraphs 66-69 of the Crown argument in error. These specific
    paragraphs include the last part of the British Columbia appeal Crowns
    overview of the errors the trial judge was found to have made in
Boutilier
,
    and the introductory paragraph from the British Columbia appeal Crowns
    analysis of the first of those errors. They offer no meaningful explanation for
    the sentencing judges decision in this case. This analysis can only fairly be
    illustrated by reproducing those paragraphs from the British Columbia appeal Crowns
    argument here:

66. The first error stems from an erroneous
    approach to an understanding of the challenges inherent in tailoring any
    criminal sentence to address risks through the operation of a combination of
    sentencing principles including, for example, specific deterrence and
    rehabilitation, and where ultimate responsibility for future compliance with
    the law rests entirely with the offender.
All
sentences are forward
    looking and whether they succeed in preventing recidivism can never be safely
    predicted, let alone guaranteed.

67. The second error relates to the failure of
    the trial judge to properly appreciate the
effects
of designation
    pursuant to s. 753(1) on the
liberty
of the offender. Properly
    understood, the effects of designation on the liberty of the subject are
    aligned with and do not overshoot the objective of the legislation.

68. Both errors will be addressed in turn.

(i)
Identification and Management of Risk
    in Criminal Sentencing

69. Describing the sentencing of criminal
    offenders as an art captures both the difficulty and delicacy of assessing the
    moral blameworthiness of an offenders conduct along with his unique personal
    circumstances, with a view to crafting a sentence that addresses multiple  and
    sometimes competing  principles. In varying measures, the targeted principles
    are both individual (rehabilitation, specific deterrence) and societal
    (denunciation, general deterrence) or both. Yet all are designed to protect
    society by impacting the offender or other community members. [Emphasis in
    original.]

[152]

To be clear, I should not be taken as offering any opinion on the
    constitutional arguments Mr. Aragon made. The Court of Appeal of British
    Columbias decision in
Boutilier
was subsequently affirmed in the
    Supreme Court of Canada, [2017] SCC 64, [2017] 2 S.C.R. 936, which puts an end
    to the argument that s. 753 of the
Criminal Code
is overbroad contrary
    to s. 7, or in breach of s. 12. Arguably, that decision also holds out little hope
    for the remaining arbitrariness argument that Mr. Aragon advanced. Nonetheless,
    the sentencing judges written reasons for rejecting the arguments that Mr.
    Aragon made failed to address the live issue of arbitrariness or to furnish a
    meaningful explanation of the legal analysis the sentencing judge engaged in.
    Put simply, it is not possible to determine whether the sentencing judge
    applied the correct legal standards. The reasons are therefore legally
    insufficient.

(4)

The Sentencing Decision

[153]

As indicated, sentencing submissions were completed on February 24,
    2017. Judgment on sentence was scheduled for June 30, 2017, but the decision
    was not ready.

[154]

On September 8, 2017, the sentencing judge gave a brief oral
    decision finding Mr. Aragon to be a dangerous offender and sentencing him to
    indeterminate imprisonment, with written reasons to follow.

[155]

In that oral decision, the sentencing judge summarized the competing
    bottom line positions on whether Mr. Aragon qualified as a dangerous offender.
    He offered no explicit conclusion on that issue, instead proceeding directly to
    whether a long-term supervision order, a determinate sentence, or an indeterminate
    sentence should be imposed. He opted for a determinate sentence after
    expressing the conclusion that Mr. Aragon could not be managed in the community
    without risk to the public given Mr. Aragons unspecified actions [] in the
    past and his brutal beating of the victim in this case, accompanied with the glee
    in which Mr. Aragon appeared to exhibit upon the beating of [Mr. Fernandes].
    He referred later in his oral decision to the evidence of Dr. McMaster as
    supporting his conclusion that Mr. Aragon would be too much of a risk to the
    community if he were otherwise to be placed on a determinate sentence and/or
    determinate sentence with a long-term supervision order.

[156]

The written sentencing reasons that would explain the sentence that
    had been imposed on September 8, 2017 were provided on March 14, 2018, more
    than one year after submissions had been made, and six months after the oral
    disposition had been provided.

[157]

The written decision began by following the pattern identified in earlier
    decisions. It offered a detailed historical chronology of 29 paragraphs, many
    of which were copied from the sentencing judges earlier rulings.

[158]

The following 12 paragraphs go on to describe the sentencing hearing
    that had taken place, including the materials that had been filed, ending with
    a description of the oral sentencing disposition that was imposed on September
    8, 2017.

[159]

The sentencing judge then offers a number of paragraphs in which he
    sets out to explain his decision. The content addressing the reasons in favour
    of an indeterminate sentence are not as detailed as one might expect, but they
    unfold the sentencing judges thinking on this issue. However, I see two matters
    that warrant comment.

[160]

First, the reasons offered for the sentencing judges finding that
    Mr. Aragon qualifies as a dangerous offender are largely conclusory. As
    indicated, the sentencing judge did not attempt to explain his reasoning on
    this question in his oral decision. In two places in his written decision, over
    a total of only seven paragraphs, he addressed directly whether Mr. Aragon was
    a dangerous offender, finding that Mr. Aragon qualified as a dangerous offender
    on all three available criteria provided for in s. 753(1)(a) of the
Criminal
    Code
. He offered no direct explanation for his findings on the first two
    dangerous offender criteria, namely the s. 753(1)(a)(i) criterion (that there
    had been a pattern of repetitive behaviour by the offender [] showing a
    failure to restrain his [] behaviour and a likelihood of causing death or
    injury to other persons [] through failure in the future to restrain his []
    behaviour) and the s. 753(1)(a)(ii) criterion (that there had been a pattern
    of persistent aggressive behaviour [] showing a substantial degree of
    indifference on the part of the offender respecting the reasonably foreseeable
    consequences to other persons of his [] behaviour). With respect to the third
    criterion, encompassed by s. 753(1)(a)(iii) (that Mr. Aragons behaviour associated
    with the offence for which he has been convicted was 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), the
    sentencing judge referred to the brutality of beating a man with a baseball bat
    about the head and body. He also noted that Mr. Aragons last offence involved
    beating a man with a golf club. Beyond this, the sentencing judge simply expressed
    agreement with Crown submissions, said he reviewed the evidence [and]
    considered the submissions, and stated that he found the evidence of Dr.
    McMaster to be important in the context of the courts need to assess the
    personality traits of the offender outside of the realm of the proven facts of
    his criminality.

[161]

The second concern I see relates to the fact that Mr. Aragon
    provided extensive submissions as to why he should not be designated a
    dangerous offender, and that if he was designated a dangerous offender, why an
    indeterminate sentence was not appropriate. The sentencing judge did not
    acknowledge or address those submissions directly.

[162]

In simple terms Mr. Aragon argued that although the Crown could
    establish a pattern of repetitive or aggressive behaviour, it could not establish
    the likelihood that in the future he would inflict severe damage to other
    persons or that he would be indifferent to the reasonably foreseeable
    consequence of his behaviour. He also argued that the Crown had not proved the
    brutality required by s. 753(1)(a)(iii).

[163]

Specifically, Mr. Aragon submitted that the crimes he had been
    convicted of were not exceptionally serious. They were among the least serious
    of the offences that qualified an offender for a dangerous offender
    designation, and Mr. Fernandes had not received life-threatening injuries. There
    was no evidence of the precise role that Mr. Aragon played in inflicting those
    injuries, or as to the current state of Mr. Fernandes injuries. Three others
    who pleaded guilty to participating in the same attack received sentences of
    less than two years incarceration. While I appreciate that a sentencing judge
    is not required to respond to every argument, I note that none of these
    important points were acknowledged or addressed by the sentencing judge.

[164]

Mr. Aragon also submitted that he does not pose the kind of rare
    risk that warrants a dangerous offender designation or an indeterminate
    sentence. Noting that this designation is to be exceptional and used with
    restraint, he argued that he is not exceptionally dangerous when compared to many
    other offenders. He further noted that he had received a Psychopathy Checklist-Revised
    score that put him in the 75th percentile relative to North American offenders,
    such that a dangerous offender designation was unnecessary because 25% of
    offenders produced higher scores. In his submissions, Mr. Aragons counsel also
    closely scrutinized the evidence that Dr. McMaster provided about the
    limitations of the psychological tests in predicting the risk of violence, let
    alone serious violence. He also emphasized Dr. McMasters concession that Mr.
    Aragons scores likely overestimate his risk of serious violence and do not
    account for the effect that legal conditions could have on his behaviour. Mr.
    Aragon also relied on testimony furnished by Dr. McMaster that the primary causes
    of his criminality were dynamic  his affiliation with gangs and his substance
    abuse  and that he was treatable using programming, long term substance use
    treatment, and pharmaceuticals. Mr. Aragon had yet to receive any of these
    treatments. These arguments were not acknowledged or directly engaged with by
    the sentencing judge, beyond his finding that Mr. Aragon has not demonstrated a
    motive to rehabilitate, his conclusion that Mr. Aragons affiliation with gangs
    was entrenched, and his general dismissal of Dr. McMasters comments about
    Mr. Aragons treatability as expression[s] of hope.

[165]

Mr. Aragon also cited evidence of his remorse for the crimes he has
    committed, his family and community support, the progress he has made while
    incarcerated, his impressive record of education and vocational training, and
    the termination of his relationship with Mr. Pammetts daughter. The sentencing
    judge commended Mr. Aragon for some of these developments in his oral decision,
    but simply said in his written decision that [r]egrettably there is little if
    anything to suggest that were Mr. Aragon returned to the community that he
    would be amenable to control or supervision.

[166]

Mr. Aragon relied on similar arguments to those described above to
    urge that even if he was found to be a dangerous offender, he should not
    receive an indeterminate sentence, which he argued would not be the least
    restrictive, proportionate and acceptable sentence. He added Dr. McMasters
    testimony that his risk of offending would be lowered by the passage of time,
    such that he would likely pose a lower risk of reoffending after serving a
    determinate sentence. The risk would lower particularly if the determinate
    sentence was accompanied by a long-term offender designation, a sentence that
    carries effective enforcement mechanisms. He emphasized that his history and
    profile do not place him in the small group of highly dangerous criminals who
    warrant an indeterminate sentence. The sentencing judge characterized Dr.
    McMasters evidence about the likely reduction in risk over time as something
    that may happen, unsupported by evidence as to when age will assuage the
    risk concern.

[167]

In spite of the concerns I have described, I accept that the
    sentencing judge provided an intelligible path to his finding that an
    indeterminate sentence was required. The outcome is not so clear with respect
    to the finding that Mr. Aragon is a dangerous offender, but even with respect
    to that finding, I would not find the reasons to be insufficient.

[168]

I do note that the sentencing judge failed to offer a direct explanation
    for why Mr. Aragon met two of the three alternative dangerous offender criteria
     s. 753(1)(a)(i) and 753(1)(a)(ii). These central issues were contested during
    the sentencing hearing, and I see nothing in the record that can explain these
    conclusions. If the dangerous offender designation turned solely on these
    findings, I would have found the reasons to be insufficient. However, the
    sentencing judge also found that Mr. Aragon satisfied the third criterion  s.
    753(1)(a)(iii). Although a more detailed and direct analysis would have been
    preferable given what was at stake for Mr. Aragon, I am not persuaded that the
    reasons are legally or factually insufficient. It is evident that the
    sentencing judge was persuaded that the attack on Mr. Fernandes was brutal and
    conducted with glee. In the course of his written reasons, the sentencing judge
    considered Mr. Aragons history of violence and aggression, and he identified
    impediments to his self-control, including his personality disorder, his
    history of substance abuse, his difficulties with pro-social relations and his
    lack of respect for the law. When the sentencing judges reasons are considered
    as a whole and in context, his pathway to the finding he made is intelligible.

C.

The Remaining Issues raised by Mr. Aragon on the sentence appeal

[169]

I have found that the sentencing judge erred in identifying the
    aggravated facts relevant to the sentencing and that he failed to provide
    sufficient reasons for decision relating to: (1) the
viva voce
evidence
    that the sentencing judge would hear; (2) the aggravated factual findings
    ruling; and (3) a constitutional challenge to the statutory provisions. As I
    will explain below, on the basis of these errors, I would allow the sentence
    appeal and set aside the dangerous offender designation and the indeterminate
    sentence. It is therefore unnecessary to consider whether the sentencing judge
    engaged in after-the-fact reasoning, or whether the s. 669.2 hearing was an
    unfair process and a miscarriage of justice.

[170]

In the circumstances of this case, I would not attempt to determine whether
    the dangerous offender designation and/or the indeterminate sentence were
    unreasonable. Although it would ordinarily be beneficial to do so because an
    affirmative determination would likely result in the imposition of a final
    sentence by this court without the need for a rehearing, it is not in the
    interests of justice to address these questions. We do not have the benefit of
    a settled record upon which to make this determination, given the sentencing
    judges error in establishing the factual foundation relating to the index
    offence. In addition, one of Mr. Aragons complaints is that it was unfair for
    the sentencing judge to sentence him in the circumstances of this case without
    hearing from some of the witnesses. It is preferable in these circumstances and
    given the complexity of the record to send this matter back for a rehearing
    where a sentencing judge can determine the procedure and facts required to impose
    an appropriate sentence.

[171]

Given that I would not venture into a determination of the
    reasonableness of the designation and/or the indeterminate sentence, I need not
    rule on the fresh evidence application.

D.

If any of these errors occurred, should the appeal be denied
    because of the absence of a miscarriage of justice?

[172]

I am persuaded that it would not be appropriate to deny Mr. Aragons
    appeal of his dangerous offender designation and sentence, pursuant to s.
    759(2)(b) of the
Criminal Code
, on the basis that no substantial wrong
    or miscarriage of justice has occurred. This authority to deny an appeal of a
    dangerous offender designation is to be used rarely:
R. v. Walker
,
    2019 ONCA 765, 381 C.C.C. (3d) 259, at para. 124. The erroneous aggravated
    facts ruling played a central role in the dangerous offender designation. In my
    view, given the uncertainties that remain surrounding the factual record, and
    the sentencing judges failure to offer sufficient explanations for important
    rulings made in the course of the sentencing hearing, this would not be one of
    those rare circumstances where this jurisdiction should be exercised.

CONCLUSION

[173]

I would dismiss Mr. Aragons conviction appeal. I would allow the
    sentence appeal, set aside the sentence, and remit Mr. Aragons sentencing and
    the Crowns dangerous offender application to a rehearing before a new judge.

Released: March
    24, 2022 G.R.S.

David M. Paciocco
    J.A.

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

I agree. C.W.
    Hourigan J.A.

[1]
Mr. Aragons counsel had agreed to the Crown relying on transcripts
    from his preliminary inquiry in support of its application to admit extrinsic
    discreditable conduct evidence.

[2]
Mr. Aragon raised a fourth point when challenging the sufficiency
    of the evidentiary foundation, namely that there was no evidence that Mr.
    Aragon was a member of the break-away motorcycle gang or that he had left the
    Loners on bad terms. In my view, this point is best addressed when considering
    whether the trial judge erred in finding that the probative value of the
    extrinsic discreditable conduct evidence outweighed the risk of prejudice.

[3]
In contrast, the fact that the Loners published unflattering
    information relating to Mr. Pammett on its website is non-hearsay circumstantial
    evidence of animosity between the Loners and Mr. Pammett. I will return to this
    point below.