WARNING
The President of the panel hearing this appeal directs that the following should be attached to the file:
An order restricting publication in this proceeding under ss. 486.5(1), (2), (2.1), (3), (4), (5), (6), (7), (8) or (9) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:
486.5 (1) Unless an order is made under section 486.4, on application of the prosecutor in respect of a victim or a witness, or on application of a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is of the opinion that the order is in the interest of the proper administration of justice.
(2) On application of the prosecutor in respect of a justice system participant who is involved in proceedings in respect of an offence referred to in subsection (2.1), or on application of such a justice system participant, a judge or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is in the interest of the proper administration of justice.
(2.1) The offences for the purposes of subsection (2) are
(a) an offence under section 423.1, 467.11, 467.111, 467.12, or 467.13, or a serious offence committed for the benefit of, at the direction of, or in association with, a criminal organization;
(b) a terrorism offence;
(c) an offence under subsection 16(1) or (2), 17(1), 19(1), 20(1) or 22(1) of the Security of Information Act; or
(d) an offence under subsection 21(1) or section 23 of the Security of Information Act that is committed in relation to an offence referred to in paragraph (c).
(3) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice if it is not the purpose of the disclosure to make the information known in the community.
(4) An applicant for an order shall
(a) apply in writing to the presiding judge or justice or, if the judge or justice has not been determined, to a judge of a superior court of criminal jurisdiction in the judicial district where the proceedings will take place; and
(b) provide notice of the application to the prosecutor, the accused and any other person affected by the order that the judge or justice specifies.
(5) An applicant for an order shall set out the grounds on which the applicant relies to establish that the order is necessary for the proper administration of justice.
(6) The judge or justice may hold a hearing to determine whether an order should be made, and the hearing may be in private.
(7) In determining whether to make an order, the judge or justice shall consider
(a) the right to a fair and public hearing;
(b) whether there is a real and substantial risk that the victim, witness or justice system participant would suffer harm if their identity were disclosed;
(c) whether the victim, witness or justice system participant needs the order for their security or to protect them from intimidation or retaliation;
(d) society’s interest in encouraging the reporting of offences and the participation of victims, witnesses and justice system participants in the criminal justice process;
(e) whether effective alternatives are available to protect the identity of the victim, witness or justice system participant;
(f) the salutary and deleterious effects of the proposed order;
(g) the impact of the proposed order on the freedom of expression of those affected by it; and
(h) any other factor that the judge or justice considers relevant.
(8) An order may be subject to any conditions that the judge or justice thinks fit.
(9) Unless the judge or justice refuses to make an order, no person shall publish in any document or broadcast or transmit in any way
(a) the contents of an application;
(b) any evidence taken, information given or submissions made at a hearing under subsection (6); or
(c) any other information that could identify the person to whom the application relates as a victim, witness or justice system participant in the proceedings. 2005, c. 32, s. 15; 2015, c. 13, s. 19
486.6 (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.
COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Cook, 2020 ONCA 809
DATE: 20201216
DOCKET: C66497
Strathy C.J.O., Rouleau and Coroza JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
William Arthur Cook
Appellant
Paul Calarco, for the appellant
Katie Doherty, for the respondent
Heard: November 24, 2020 by video conference
On appeal from the sentence imposed on March 22, 2017 by Justice Brian P. O’Marra of the Superior Court of Justice, with reasons reported at 2017 ONSC 1434.
REASONS FOR DECISION
Overview
[1] Following the convictions for offences related to criminal harassment of the victim, K.H., the appellant was found to be a dangerous offender under s. 753 of the Criminal Code, R.S.C. 1985, c. C-46. He appeals against the dangerous offender designation and the mandatory victim fine surcharge that formed part of the sentence. For the reasons that follow, the appeal against the dangerous offender designation is dismissed. However, on consent, we would allow the sentence appeal with respect to the imposition of the victim fine surcharge and set it aside as a result of the Supreme Court of Canada’s decision in R. v. Boudreault, 2018 SCC 58, [2018] 3 S.C.R. 599.
Background
[2] The appellant met the victim in December 2010 when they were working at the same bookstore. According to the victim, the appellant had not disclosed that he was on parole and subject to a Long-Term Supervision Order (LTSO) before they started their relationship. That LTSO had been imposed in 2006 when the appellant was convicted of criminal harassment and threatening in relation to his sister and stepfather. The appellant eventually disclosed that he was on parole and constantly urged the victim – for example, by leaving her many text and voicemail messages – to speak to his parole officer and paint their relationship in a positive light. The appellant became obsessive and constantly phoned the victim and showed up at various public places unannounced to ask her about the conversations that she had with his parole officer. At one point, the appellant threatened to have her fired from her job if she did not portray him positively. By February 2011, the appellant was coming to her home uninvited and, during one heated argument, he poured water over all of the electronic devices that she owned. The victim finally went to the police in March 2011.
[3] The appellant was charged with two counts of criminal harassment, and one count of committing mischief, extortion and breaching the LTSO. The jury convicted the appellant of criminal harassment and committing mischief to property but acquitted him of the extortion charge. The parties agreed that the evidence led at the jury trial would form the basis of the Crown’s case in relation to a single charge of breaching the 2006 LTSO, which had been severed from the counts that proceeded with the jury. The same judge who presided over the jury trial heard the trial and convicted the appellant of breaching the LTSO.
[4] Following the conviction, the Crown applied to have the appellant declared a dangerous offender pursuant to s. 753. That hearing was significantly delayed. By the time it was scheduled to be heard, the victim had advised the Crown that she no longer wished to participate in the proceeding, and she did not return any of the messages left for her by the police or the Crown. Nevertheless, the Crown sought to rely on her victim impact statement that had been filed at the beginning of the proceeding. Defence counsel argued that since he was unable to cross-examine the victim on the contents of the statement the sentencing judge could place no weight on the statement, which was hearsay and unreliable. The sentencing judge disagreed and relied on the statement.
[5] The sentencing judge was satisfied that the appellant’s criminal harassment convictions were “serious personal injury offences” pursuant to s. 752(a)(ii). He was also satisfied that the appellant met the criteria for a dangerous offender designation because the appellant’s pattern of conduct showed a failure to restrain his behaviour and a likelihood that he would cause severe psychological damage in the future (s. 753(1)(a)(i)) and, alternatively, that his conduct over the years with various female partners constituted persistent aggressive behaviour pursuant to s. 753(1)(a)(ii)).
Grounds of Appeal
[6] The appellant advances three submissions on the appeal against the designation.
[7] First, the sentencing judge erred by relying on the victim impact statement without permitting defence counsel to cross-examine the victim.
[8] Second, the sentencing judge erred in his application of s. 752(a)(ii) because, according to the appellant, an inquiry into “severe psychological damage” demands an objective assessment of the accused’s conduct, not just the victim’s reactions to that conduct. According to the appellant, the sentencing judge did not assess the objective seriousness of the appellant’s conduct.
[9] Third, the sentencing judge erred in his conclusion that the appellant’s pattern of behaviour meant that he would likely inflict “severe psychological damage” in the future.
Discussion
(1) The Sentencing Judge’s Reliance on the Victim Impact Statement
[10] The appellant contends that the sentencing judge should have allowed cross-examination on the victim impact statement before relying on it. He submits that cross-examination was necessary to properly assess the victim’s suggestion in her statement that the appellant’s conduct had caused a total change in her life. There were other stressors in the victim’s life, unrelated to the appellant and the four days of harassment that formed the basis for the charges. For example, it was not disputed that the victim’s life had been affected by coping with her mother, who was terminally ill. The appellant submits that it was unfair for the sentencing judge not to permit cross-examination on the statement so that defence counsel could explore whether it really was the specific impact of the appellant’s conduct on the victim’s life that had the impact described in the statement. We disagree with this submission.
[11] The sentencing judge noted that s. 722 of the Criminal Code provides that a victim impact statement shall be received by the court and may be presented in various ways. He also recognized that there is no automatic or open-ended right to insist that victims attend for cross-examination any time the Crown files such a statement: R. v. V.W., 2008 ONCA 55, 89 O.R. (3d) 323, at paras. 28-30.
[12] The reality is that by the time this proceeding started, police efforts to locate the victim were unsuccessful. The Crown and the police had made efforts to remain in contact with the victim, but she had advised the Crown that she no longer wished to participate in the proceedings. It appears to have been accepted that the victim could not be produced for cross-examination. Defence counsel’s argument before the sentencing judge was that the statement had to be admitted but, in the absence of the victim, the statement should not be relied upon because its reliability could not be tested. In our view, it was open to the sentencing judge to consider the absence of the victim, but to find that he could rely on the statement and give to it whatever weight he thought it deserved. We see no basis to interfere with his decision.
[13] In any event, it is apparent to us that the statement played a limited role in the sentencing judge’s decision. As the sentencing judge noted during submissions and in his reasons, the evidence of the impact of the appellant’s conduct on the victim was not limited to what was disclosed by the statement. He noted that the victim had been extensively cross-examined at trial and that the significant impact of the events on her personal and work life was manifest from her testimony. Even if it was an error to rely on the statement without further exploring whether she could be produced for cross-examination, this error occasioned no prejudice to the appellant because the sentencing judge’s determination was fully supported by the victim’s testimony at trial, testimony that was tested through cross-examination.
[14] The appellant also submits that the sentencing judge should have restricted his reliance on the victim impact statement to just those parts related to the narrow time period of four days that formed the basis of the criminal harassment charges. He argues that the victim impact statement did not distinguish between events related to those charges and events related to the charge of extortion, which took place over the longer time period of January to March. Since the jury acquitted the appellant of extortion, the victim’s account of events pertaining to that charge over the longer time period should not have been relied upon. We reject this submission.
[15] During a dangerous offender application under s. 753, access to the widest possible information is important: R. v. Williams, 2018 ONCA 437, at para. 48. In our view, the sentencing judge was required to examine not only the conduct of the appellant and impact that it had on the victim over the four days, but also the surrounding circumstances, which included their entire relationship and the time period from January to March.
(2) The Sentencing Judge’s Application of s. 752(a)(ii)
[16] The appellant’s second argument is that the sentencing judge erred in his application of s. 752(a)(ii). The first threshold question in any dangerous offender proceeding is whether the offender has committed a “serious personal injury offence”, which is defined in s. 752 of the Criminal Code to mean:
(a) an indictable offence, other than high treason, treason, first degree murder or second degree murder, involving
(i) the use or attempted use of violence against another person, or
(ii) conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage upon another person,
and for which the offender may be sentenced to imprisonment for ten years or more, or
(b) an offence or attempt to commit an offence mentioned in section 271 (sexual assault), 272 (sexual assault with a weapon, threats to a third party or causing bodily harm) or 273 (aggravated sexual assault) [Emphasis added.]
[17] In this case, the offence of criminal harassment could have met the definition if it involved conduct inflicting or likely to inflict severe psychological damage on another person.
[18] The appellant argues that the sentencing judge’s finding that he had inflicted severe psychological damage on the victim cannot stand because he did not apply an objective assessment to the appellant’s conduct and he made no finding that the appellant’s conduct was reasonably capable of inflicting such damage. According to the appellant, the sentencing judge improperly focused only on the victim’s reactions to the appellant’s conduct. The appellant relies on this court’s comments in R. v. Morgan (2005), 195 C.C.C. (3d) 408 (Ont. C.A.), leave to appeal refused, [2005] S.C.C.A. No. 247, and a trial decision of Karakatsanis J. (as she then was) in R. v. Tremblay, 2010 ONSC 486. We disagree with this submission.
[19] First, we note that a plain reading of s. 752(a)(ii) does not suggest that the judge is required to undertake an objective assessment of the conduct of the offender. We agree with the respondent’s submission that Parliament appears to have limited the conduct captured by this section by reference to the impact, or potential impact, of an offender’s conduct on the victim.
[20] Second, in our view, neither Morgan nor Tremblay assists the appellant. In Morgan, this court confirmed that to qualify as a serious personal injury offence under s. 752(a)(ii), the conduct of the offender must be such that it was "inflicting or likely to inflict severe psychological damage upon another person". However, MacFarland J.A. pointed out that “[t]rivial conduct or conduct de minimis would not meet the severity requirement”: at para. 13. In Tremblay, Karakatsanis J. held that the offence of criminal harassment does not necessarily constitute a serious personal injury offence. She held that “severe psychological damage” acts as a threshold and must be something more than “serious psychological harm” and requires at a minimum substantial interference with the victim’s physical or psychological integrity, health or well-being: at para. 76.
[21] The sentencing judge was aware of Morgan, having reviewed it in his decision. On his findings, the appellant’s conduct interfered significantly with the victim’s personal life and well-being and actually caused severe psychological damage to the victim. His specific findings regarding the appellant’s conduct placed it well beyond trivial or de minimis conduct as described in Morgan and are consistent with Tremblay in that the appellant substantially interfered with the victim’s psychological integrity, health or well-being. We see no error in the sentencing judge’s application of s. 752(a)(ii) and his determination that the criminal harassment in this case was a serious personal injury offence.
(3) The Sentencing Judge’s Application of s. 753(1)(a)(i) and (ii)
[22] Finally, the appellant argues that the sentencing judge erred in his application of s. 753(1)(a). Since the sentencing judge found that criminal harassment was a serious personal injury offence, he was required to go on to determine whether the appellant satisfied any of the pathways to the dangerous offender designation as set out in s. 753(1)(a). Two pathways are relevant to this case:
i) a pattern of repetitive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a failure to restrain his or her behaviour and a likelihood of causing death or injury to other persons, or inflicting severe psychological damage on other persons, through failure in the future to restrain his or her behaviour, [or]
ii) a pattern of persistent aggressive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a substantial degree of indifference on the part of the offender respecting the reasonably foreseeable consequences to other persons of his or her behavior [Emphasis added.]
Criminal Code, s. 753; R. v. Boutilier, 2017 SCC 64, [2017] 2 S.C.R. 936, at paras. 14, 16.
[23] The appellant argues that the sentencing judge erred in reaching the conclusion that the appellant’s pattern of behaviour meant that he would likely inflict “severe psychological damage” in the future (s. 753(1)(a)(i)). The appellant submits that even if there was a basis to find that his conduct met the serious personal injury threshold, the sentencing judge failed to properly consider whether the pattern of behaviour by the appellant demonstrated an escalation of misconduct, greater violence or threats of violence. We disagree.
[24] It is clear that the sentencing judge properly considered the requirements of s. 753(1)(a)(i) and was satisfied that they were met. The sentencing judge took into account the facts related to the appellant’s convictions for criminal harassment and prior convictions for similar offences, and that prior incarceration and court orders had not been successful in restraining the appellant’s behavior. Of significance is the fact that the appellant had committed these offences while bound by a LTSO. As the sentencing judge expressly noted, the appellant had, in the past, inflicted severe psychological harm on women in the context of relationships and displayed a total lack of sympathy. On the totality of the evidence, the sentencing judge was satisfied that the appellant had demonstrated a clear pattern of repetitive criminal behavior, failed to restrain his behavior, and would in the future likely cause severe psychological damage.
[25] Although the appellant concedes that it was open to the sentencing judge to find that the conduct also met the requirements of the persistent aggressive dangerous offender pathway (s. 753(1)(a)(ii)), he argues that the sentencing judge provided very little analysis on this point. We disagree. Several of the findings that the sentencing judge made in relation to the s.753(1)(a)(i) pathway were equally applicable to this pathway. The sentencing judge concluded that the appellant lacked insight into the harm caused to the victims, lacked empathy for them, and demonstrated a substantial indifference to the reasonably foreseeable consequences of his behaviour on other persons. This conclusion was open to him. Indeed, the sentencing judge found that the appellant perceived himself to be the true victim of his circumstances. These conclusions must be read in the context of the entire decision and, in our view, there is no basis to interfere with them.
Disposition
[26] For these reasons, we would set aside the victim fine surcharge. Otherwise, the appellant’s appeal from his dangerous offender designation is dismissed.
“G.R. Strathy C.J.O.”
“Paul Rouleau J.A.”
“S. Coroza J.A.”