WARNING

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

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

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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a)     any of the following offences;

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

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

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

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

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

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

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

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

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

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

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

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. J.K.L., 2012 ONCA 245

DATE: 20120418

DOCKET: C47031

Laskin, Simmons and Armstrong JJ.A.

BETWEEN

Her Majesty The Queen

Respondent

and

J.K.L.

Appellant

Catriona Verner, for the appellant

Lisa Joyal, for the respondent

Heard: October 20, 2011

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

Simmons J.A.:

I.        Introduction

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

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

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

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

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

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

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

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

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

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

II.       THE CONVICTION APPEAL

(i)   The Charge Involving A.L.

(a) Introduction

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

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

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

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

(b) Background

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

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

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

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

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

A.L.’s Videotaped Police Statement

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

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

…

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

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

…

Q: How did you know it happened?

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

…

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

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

…

A: Was truth or dare and [J.K.L.] changed the subject to underwear modelling, and he had this bag with him, but it wasn’t a plastic bag, it was a gym bag I think.

…

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

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

A: … (inaudible)… taking off the underwear.

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

A: Yeah.

…

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

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

Q: mm hmm.

A: I chickened out.

Q: So did you or didn't you?

A: No. I never.

…

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

A: (Crown’s version): (inaudible) (didn’t?) dare me to touch his penis.

A: (Appellant’s version): (inaudible) (dared?) me to touch his penis.

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

Q: Who did?

A: [J.L.]

Q: Ok.

A: (Crown’s version): [J.K.L.] and then it probably (inaudible) I’m not sure.

A: (Appellant’s version): [J.K.L.] and (inaudible) probably (inaudible)

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

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

A: No, only once I think.

Examination in-chief at trial

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

A: I think so

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

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

…

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

A: I can't remember.

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

A: I think so.

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

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

…

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

A: I can’t remember.

Q: Did your sister ever dare you?

A: I can’t remember.

Cross-examination at trial

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

A: I can't remember.

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

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

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

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

Q: Who did?

A: [J.L.]

Q: Ok.

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

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

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

A.L. describes “modelling underwear … I had to take off my bra … I was just in my underwear … I had to walk and turn around … at my house and [D.R.’s mother’s] house … in grade 3… in September … happened four or five times… mostly in my house … upstairs in mom’s room … [J.K.L.]  there … just lying there rubbing his penis … [J.K.L.] lying on the bed in jeans … he rubbed his penis … took off my underwear … nothing on … asked me to touch his penis … just me and [J.K.L.] … [J.K.L.] said that … to touch his penis … modelled for [J.K.L.] four or five times … truth or dare two times in my mom’s room and in the kitchen … [J.K.L.] asked me to touch his penis… truth or dare … asked me to touch his penis … I didn’t … just one time [J.K.L.] asked me to touch his penis in the truth or dare…” [Emphasis added.]

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

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

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

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

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

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

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

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

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

(ii) The Charges Involving D.R.

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

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

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

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

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

[37]       I would not accept the Crown’s argument that this use of the complainants’ evidence was some form of permissible response to the appellant’s having raised an issue about similar fact evidence during his examination in-chief and in closing argument.

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

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

[40]       Moreover, particularly in the absence of a similar fact evidence application by the Crown and a ruling on the issue, it was an error in law for the trial judge to treat one complainant’s evidence as corroborating the other and as contradicting the appellant’s denials.

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

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

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

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

III. The Sentence Appeal

(i) Background

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

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

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

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

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

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

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

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

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

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

(ii) The Trial Judge’s Reasons

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

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

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

[57]       Finally, the trial judge relied on the appellant’s history of “pathological lying and manipulation” in relation to victims of his conduct and their families, psychiatrists and the courts.

(iii) Issues on the Sentence Appeal

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

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

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

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

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

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

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

(iv) Discussion

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(d) Did the trial judge apply the wrong standard of proof?

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

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

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

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

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

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

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

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

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

Sexual Assault

(i)      April 26, 1989 – K.G.;

(ii)      August 16, 1990 – N.G.;

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

Uttering threats

(v)     August 3, 2000.

[80]       Three of the victims of the appellant’s prior sexual assaults were under the age of ten (K.G.; A.S.-L. and T.S.-L.). As the appellant denied the sexual assaults, or at least aspects of them, it was necessary for the Crown to lead evidence on the sentencing hearing to prove the underlying facts of the offences.

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

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

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

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

1.       N.G.

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

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

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

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

[89]       I agree with the appellant that the trial judge’s conclusion that the facts set out in the Crown synopsis had been proven was unreasonable.

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

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

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

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

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

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

2.       K.G.

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

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

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

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

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

[100]    The trial judge rejected the appellant’s denials and accepted K.G.'s version of the events.

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

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

3.       K.B.

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

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

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

[106]    In her evidence at the sentencing hearing, K.B explained that bird, boobs and butt meant vagina, breasts and bum. She thought she was nude when the appellant rubbed her vagina with his hand, but she may have been wearing underwear. She said the appellant had her lay naked on his bed and rubbed his penis on her back. At some point, he had K.B. rub his penis and his butt. The appellant also had K.B. put on women’s shorts and spaghetti strapped T-shirts and had her look at “sex magazines” while he rubbed his penis up and down.

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

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

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

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

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

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

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

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

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

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

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

Q. [Defence counsel] suggested to you that it was as a result of talking to those people that you developed these memories of the things you didn’t tell us on the videotape.

…

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

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

The Court: That was “When you get older you think –

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

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

(f)  The Impact of the Trial Judge’s Errors

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

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

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

[122]    I would not accept these submissions for four reasons.

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

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

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

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

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

[128]    If the explanatory note refers to the number of types of offences, it is hard to imagine the trial judge’s error could affect the psychopathy diagnosis – this is because of the number and variety of the appellant’s criminal convictions.

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

[130]    As for the actuarial risk assessments, neither Dr. Hucker’s nor Dr. Fedoroff’s raw scoring materials are in the appeal record. The only evidence concerning how the risk assessment instruments work came from Dr. Hucker.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(g) Application of the Curative Proviso

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

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

IV.     Disposition

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

          Signature:    “Janet Simmons J.A.”

                             “ I agree John Laskin J.A. ”

                             “I agree Robert P. Armstrong J.A.”

RELEASED:  “JL” APRIL 18, 2012

Appendix ‘A’

Excerpt from K.B.’s Videotaped Statement

Q. What else did you, were you taught?

A. How to do sex.

Q. What does that mean honey?

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

Q. Take off clothes and do our thing?

A. Do their thing.

Q. I think you’re gonna be an English major. What’s the thing sweetie? Tell Bob what the thing is? Yeah, come on, you’re a brave girl.

A. I’m not sure about this.

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

A. Okay. That means that we do things that you’re supposed to do. That means that we’re having sex together.

Q. We have sex together?

A. Yup.

Q. What does having sex together mean to you?

A. Mean to me?

Q. Yeah.

A. That means it’s really, really stupid.

Q. It’s stupid?

A. I said to do it.

Q. Well I don’t know what you’re doing. You haven’t told me what you’re doing yet. Tell me what you’re doing, and then I’ll be able to see how stupid it is. What are you doing?

A. I forgot.

Q. Oh you didn’t forget.

A. Oh yes I did.

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

Sergeant Kerr: Q. That’s right.

Ms. Keeley: What does it mean?

A. What does that mean?

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

A. I don’t know.

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

A. With his hands.

Q. He did it with his hands?

A. Yup.

Q. What did he do?

A. Rubbed his private part.

Q. He rubbed his private parts?

A. Yup. His private part.

Q. Mm-hum. Okay, what else?

A. You mean what is it called?

Q. Well, if you know what it’s called, you tell me.

A. Okay, well it’s called his wiener.

Q. His wiener?

A. Yeah.

Q. How do you know it’s called that?

A. Coz.

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

A. I had to stand and watch.

Q. You had to stand and watch?

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

…

Q. What else happens when you do sex?

A. I don’t know. It’s all in my head still…

Q. You’re full of baloney. I can see it in those big brown eyes. Do you know what, if you tell me it’s all over with. You have to tell me just one time and then it’s all over. I know you had to do a video, and I know Christine brought it down or made a little cassette tape, but yeah, but if we just do this video one time and get it over with, it’s all over with honey, and we don’t have to say it again. Okay?

A. I don’t know what it is. I really don’t know.

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

A. No. 

…