R. v. Gracie, 2019 ONCA 658
DANGEROUS OFFENDER DESIGNATION - APPEAL FROM SENTENCE - INDIGENOUS OFFENDER
Background
Appellant pled guilty to two counts of aggravated sexual assault after having unprotected sex with two women without first disclosing his HIV-positive status. Both women contracted HIV.
The Appellant is a middle-aged Indigenous man. At a young age he was adopted and raised by a non-Indigenous family, but was introduced to Indigenous practices throughout his childhood. The Appellant has a lengthy criminal record consisting of 25 youth convictions and 10 adult convictions, including several violent offences such as counseling the murder of a police officer, sexual assault causing bodily harm and uttering threats. The Appellant was on probation when he committed the offences that form the subject of this appeal.
At the sentencing hearing, the Crown tendered evidence of a third complainant. The Appellant assured the third complainant he did not have a sexually transmitted disease; they had unprotected sex on several occasions. The third complainant did not contract HIV. The Appellant was never charged in relation to this third complainant. The sentencing judge, however, relied on this evidence to establish a pattern of dangerous conduct that could support a dangerous offender designation.
During his previous penitentiary sentences, the parole board consistently assessed the Appellant as having no reduction in risk of re-offending, and no observable change in his behavior. While on probation following his 2008 convictions, the Appellant’s probation officer communicated the moral and legal obligations of reporting his HIV status to sexual partners. The two predicate offences occurred subsequent to this warning.
The Appellant was detained for over three years while awaiting sentencing for these two offences. During this time period, the Appellant actively engaged in substance abuse and anger management programming, and expressed remorse for his actions. The Appellant reconnected with his Indigenous culture at this time. Psychiatric expert evidence revealed that the Appellant suffers from antisocial personality disorder, marijuana dependence disorder and exhibits significant psychopathic traits. A Gladue report was filed during the sentencing proceeding.
The sentencing judge imposed an indeterminate sentence on the Appellant as he found that managing the Appellant’s behaviour in the community at large was unrealistic.
Issues on Appeal
The Appellant raises, and the Crown concedes, two errors committed by the sentencing judge. First, the sentencing judge failed to conduct the prospective risk assessment at the first stage. Second, the sentencing judge failed to consider the Appellant’s Indigenous background, and relevant Gladue principles.
The sole issue on appeal, therefore, is whether the court should interfere with the indeterminate sentence imposed on the Appellant.
The Test for Dangerous Offender Designation
At the first stage, the issue to be decided is whether, based on all evidence led, an individual’s past conduct establishes beyond a reasonable doubt:
A pattern for repetitive behavior showing a failure to restrain his 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 behavior (s. 753(1)(a)(i)); or,
A pattern of persistent aggressive behaviour showing a substantial degree of indifference on his part respecting the reasonably foreseeable consequences to other persons (s. 753(1)(a)(ii)).
See R v Szostak, 2014 ONCA 15.
This first stage, known as the designation stage, is concerned with assessing the future threat posed by the offender.
At the second stage, often referred to as the penalty stage, the primary concern is imposing an appropriate sentence (pursuant to sections 753(4) and (4.1) of the Criminal Code) to manage this established threat. The sentencing judge must determine whether the risk posed by the offender’s behavior can be managed outside of an indeterminate sentence. There is no onus or rebuttable presumption at the penalty stage: R v Boutilier, 2017 SCC 64.
ONCA’s Decision
The sentencing judge appropriately assessed all of the evidence before him, and was satisfied given this evidence that there was no reasonable prospect of controlling the Appellant in the community. The sentencing judge’s assessment of the Appellant’s intractability at the penalty stage can be relied upon at the designation stage.
While the court agrees that the Appellant should have access to Indigenous programming, the evidentiary record, including the expert evidence, does not suggest that Indigenous programming would significantly impact his risk prospect.
Rouleau JA, writing for the court, dismissed the appeal.
Read the full decision here.