R. v. Davidson Date:, 2012 BCPC 11

Citation: R. v. Davidson Date: 20120119 2012 BCPC 0011 File No: 210770 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. DAWSON DAVIDSON BAN ON PUBLICATION S. 486.4(2) CCC RULING ON APPLICATION OF THE HONOURABLE JUDGE G.M. RIDEOUT Counsel for the Crown: E. Poll Counsel for the Respondent: R.S. Fowler Place of Hearing: Vancouver, B.C.

Dates of Hearing: June 21-24, July 6, Sept. 17, Nov. 10, Dec. 21, 2010; Feb. 17, March 2, 30, April 19, May 2, July 15, Nov. 10, 2011 Date of Judgment: January 19, 2012 A corrigendum was released by the Court on January 25, 2012; the corrections have been made to the text and the Corrigendum is appended to this document. INTRODUCTION [ 1 ] On September 17, 2010, I found the Respondent, Dawson Davidson, guilty of the sexual assault of DB, a sex trade worker, working the Kingsway corridor of Vancouver near Clark Drive.

The full Reasons in relation to the surrounding circumstances of the offence are found at 2010 BCPC 228 (CanLII) , 2010 BCPC 0228 . [ 2 ] Following the conviction of the Respondent, the Assistant Deputy Attorney General for the Province of British Columbia on February 23, 2011, consented to an Application under s. 753 of the Criminal Code seeking a declaration that the Respondent be found a Dangerous Offender. [ 3 ] Prior to the consent being filed by the Assistant Deputy Attorney General, and upon Application of Crown Counsel, this Court ordered that an Assessment be prepared pursuant to s. 752.1 of the Criminal Code .

That assessment has been completed and forms part of the materials filed in support of the Crown Application. [ 4 ] In seeking a declaration pursuant to s. 752.1 of the Criminal Code , Crown Counsel has relied in part on the presumption set out in s. 753(1.1) of the Criminal Code to satisfy the reasonable grounds to believe that the Respondent may be found to be either a Dangerous Offender.

[ 5 ] It has been submitted by Counsel for the Respondent in his written submissions that s. 753(1.1) of the Code : Articulates the standard of proof to rebut the presumption, but does not articulate the standard of proof applicable to establishing that it applies. ISSUE [ 6 ] The issue raised by Counsel for the Respondent turns on what is the standard of proof that the Crown must prove to satisfy the preconditions contained in s. 753(1.1) of the Criminal Code . It was urged on this Court that the standard of proof is proof beyond a reasonable doubt. DETAILED BACKGROUND (

i) The Presumption [ 7 ] Section 753(1.1) creates a rebuttable presumption in favour of a Dangerous Offender Designation. That

section reads as follows:

(1.1) If the court is satisfied that the offence for which the offender is convicted is a primary designated offence for which it would be appropriate to impose a sentence of imprisonment of two years or more and that the offender was convicted previously at least twice of a primary designated offence and was sentenced to at least two years of imprisonment for each of those convictions, the conditions in paragraph (1)(

a) or ( b ), as the case may be, are presumed to have been met unless the contrary is proved on a balance of probabilities. [ 8 ] If the preconditions set out in this

section are met, an offender is presumed to be a Dangerous Offender and the onus falls upon him to rebut that presumption.

The preconditions for the operation of the presumption are: 1) Two previous primary designated offence convictions for which the offender receives sentences of at least two years; 2) The indexed offence resulting in the present conviction is a primary designated offence; and 3) It would be appropriate to impose a sentence of imprisonment of two years or more. [ 9 ] Both Crown Counsel and Defence Counsel are in agreement that the first two preconditions have been met in this case and that the only issue to be determined is the third component being a determination if: ... it would be appropriate to impose a sentence of imprisonment of two years or more. (ii) Circumstances of the Offence [ 10 ] The Complainant, DB, first met the Respondent in August of 2007 when he picked her up in the Kingsway corridor at Clark Drive for the purpose of a “date”.

Thereafter, she met with the Respondent every six months or so. The sexual services that were provided were described as a “half and half”, in which DB provided oral and vaginal sexual services to the Respondent for the usual fee of $40. [ 11 ] DB testified that there would often be some rough play involved in the sexual activity, which included slapping of DB by the Respondent.

However, in or about the middle of July of 2009 things went much further than anticipated by DB After the Respondent had picked up DB in his car, they went to the usual location for sexual services and DB commenced to perform sexual services on the Respondent in the backseat of his vehicle. The sexual services commenced with oral sex followed by vaginal penile penetration by the Respondent. It was during the intercourse that the Respondent put his arms around DB’s neck and began to choke her, much like a wrestler would use a choke-hold in a wrestle.

The choking activity went on for some time and DB was fearful that she was going to lose consciousness. DB went limp, faking unconsciousness in the hope that the choking activity would cease. [ 12 ] Indeed, upon DB going limp, the Respondent released his choke-hold. The Respondent and DB then changed position and he continued with vaginal intercourse, when the Respondent then put his hands around DB’s neck and squeezed her neck so hard that she was again unable to breathe.

Fearing the consequences, DB again faked blacking out and the Respondent let go of her throat. [ 13 ] In relation to both choking incidents, the Respondent apologized to DB and at the conclusion of the “date” gave money and cigarettes to DB. [ 14 ] Several months later, the Respondent again met up with DB in the Kingsway corridor and a “date” took place. However, prior to any sexual activity taking place, DB cautioned the Respondent that she did not want to have anything physically abusive done to her, and that if he was not careful he could end up “killing someone”.

That date did not work out as they were interrupted by another car travelling in the laneway where the Respondent had parked his vehicle. [ 15 ] Several months after that, DB had another “date” with the Respondent. This date appeared to go smoothly and the Respondent did nothing abusive to DB during the sexual activity. [ 16 ] The Respondent did not testify at his trial. This Court found that DB was both a reliable and a credible witness. This Court found that DB was not fully informed as to the nature of the sexual activity embarked upon by the Respondent in relation to the “bad date”.

In particular, that DB had not given her express consent to engage in the choking activities. On this point, this Court made the following findings at paras . 162 through 165 as follows: During the “bad date” with the accused, he was the one who told DB that he wanted to choke her during intercourse. The accused did not ask DB if she would consent to such an activity. I find this activity went far beyond the implicit consent given by DB to the slapping

activities that took place between the accused and DB on prior dates. Though DB testified that the oral sex and intercourse were consensual, her reaction to the initial choking by faking unconsciousness clearly was not indicative of consent.

I further accept her evidence that the first choking incident was not momentary, but carried on for some period of time, causing fear to DB I further find that this could not be a momentary lapse of judgement in the passion of the moment, as the second strangulation actions performed by the accused with his hand or hands circling D.B’s windpipe clearly establishes that the choking and strangulation actions were designed to sexually gratify the accused. Again, the accused only released his stranglehold upon DB when she faked unconsciousness.

I also accept the evidence of DB, both in direct and cross-examination, that after the two choking incidents, the accused apologized. This would clearly indicate that in the mind of the accused he was aware that he had crossed the line in relation to what was acceptable or not acceptable sexual conduct. It is noteworthy that when there was a subsequent date following the June “bad date”, DB told the accused that he was not to be “physically abusive”.

That strengthens her credibility on the issue of consent in relation to her “bad date” experience. [ 17 ] This Court also found it noteworthy that there was a significant size disparity between DB and the Respondent. There was no question that DB was of petite stature and clearly no match physically in relation to sexual activities between herself and the Respondent.

On this point this Court found at para . 167, that the obligation on the Respondent to fully inform DB of his intentions fell substantially short in the following language and stated: In light of the size disparity, there would be a clear obligation on the accused to ensure that before he performed the choking and strangulation actions on DB that she was fully informed of what he was going to do and that he had her express consent to engage in such activity. He did not do so. (iii) The Respondent’s Prior Criminal History [ 18 ] The Respondent has a significant and violent criminal history.

On December 22, 1986, at Toronto, Ontario, the Respondent was sentenced to an aggregate sentence of five years in prison with respect to an unlawful confinement charge, two aggravated sexual assaults, robbery and sexual assault with a weapon. The circumstances of those offences reveal highly predatory actions by the Respondent in which a significant degree of physical and sexual violence was visited upon single women. [ 19 ] The first incident occurred in Toronto on May 23, 1986, when the Respondent broke into an apartment wearing a ski-mask and carrying a fake pistol.

The Respondent proceeded to rob the victim of her money card and left the apartment after he had tied and gagged the victim in the living-room. [ 20 ] The second Toronto incident occurred on June 10, 1986. In this case, the Respondent followed a woman back to her apartment and pursued her inside. At the time of the pursuit into the apartment, the Respondent was wearing gloves and a ski-mask. During the course of the altercation, the Respondent removed some of the victim’s clothing and sexually assaulted her. [ 21 ] The third incident occurred on June 27, 1986.

The Respondent was in an underground parking lot and saw a woman driving her car within the parking lot. The Respondent grabbed hold of one of the door handles to open the car door, which resulted in the victim losing control of the car and crashing into a retaining wall. The victim attempted to flee from the car, but the Respondent pursued her, caught her and forced her back into her car. He subsequently tied her up with rope and robbed her of her bank cards. He also sexually assaulted her. [ 22 ] The final Toronto event occurred on June 29, 1986.

On this occasion, the Respondent was looking for a woman to rob and was on his way home when he passed the apartment of his first victim. He again entered her apartment wearing a mask, and gloves, and carrying a knife. He tied the victim with her hands behind her back and robbed her of her bank card. He then forced her perform both fellatio and intercourse on him and he left her securely tied within her apartment. [ 23 ] It would also appear that the Respondent waived a charge of sexual assault with a weapon from Vancouver to Toronto for the purpose of a global sentence joined with the Toronto allegations.

The Vancouver incident took place in 1986 when the Respondent followed a woman who was riding a bicycle back to her residence. The Respondent broke into her residence where he attacked the victim and tied her hands behind her back in her bedroom. He robbed her of her bank card. Again, he was wearing a mask and gloves and sexually assaulted her. [ 24 ] Additionally, in Vancouver, on August 4, 1996, the Respondent picked up a sex trade worker in the early morning hours.

In circumstances similar to the case at bar, the Respondent drove to an alleyway when, apparently for no reason, the Respondent attacked the sex trade worker. He was found guilty of aggravated assault. A

summary of this offence is found in R. v. Davidson , 2001 BCCA 47 , at para . 8 as follows: The offence itself was serious. Dawson Davidson picked up a prostitute in the early hours of August 4, 1996. He negotiated with her for sexual activity in exchange for money and then drove to an alleyway. He there paid her the sum agreed and they moved into the back seat. He then picked up an object, a telephone transformer, and struck her violently behind the left ear, lacerating her ear.

He struck her again on the right side of her head and the complainant struggled, managing to open the door, pulling herself out and screaming. Dawson Davidson hit her head against the pavement. Help for the complainant arrived and after the appellant was struck a number of times he sat down and awaited the police. There is no doubt the attack was violent.

Fortunately it was interrupted as a result of the efforts of the complainant herself and persons who responded to her need. [ 25 ] In relation to the 1996 aggravated assault conviction, the Crown applied to have the Respondent declared a Dangerous Sexual Offender. The Application was denied and the Respondent was sentenced to seven years in prison less three years for time served. On Appeal, the sentence was varied to one year in prison plus three years probation.

[ 26 ] On March 1, 2004, in Vancouver, the Respondent was sentenced to a Suspension of Sentence, plus probation for 18 months, in relation to a charge of failure to comply with a Probation Order contrary to s. 733.1(1) of the Criminal Code . POSITION OF THE PARTIES [ 27 ] The Court had the benefit of comprehensive written and oral submissions by both Crown Counsel and Counsel on behalf of the Respondent. (

i) Respondent’s Position [ 28 ] The essence of the Respondent’s argument rests on the proposition that the burden is on the Crown to establish beyond a reasonable doubt that the appropriate sentence that this Court should impose is two years of more.

The Respondent submitted a Federal sentence was not warranted and, therefore, the presumption should not apply. [ 29 ] While there does not appear to be any authority on point, the Respondent took the position that analogous or related authorities supported his proposition that the Crown was required to prove the preconditions of s. 753(1.1) beyond a reasonable doubt. [ 30 ] The Respondent drew support for this position from the recent Court of Appeal decision in R. v. Pike , 2010 BCCA 401 . In Pike , the Court of Appeal was called upon to address the

interpretation of the Dangerous Offender provisions of the Criminal Code and, in particular, the extent to which a court may rely on unproven allegations of criminal conduct in determining whether the Crown has established a “pattern of behaviour” constituting a threat to other persons as required by s. 753(1 )(

a) of the Code . [ 31 ] The Respondent noted the instructive language of the Court of Appeal at para . 29 as follows: It is common ground that the Crown is required to prove beyond a reasonable doubt all of the elements necessary to find an offender is a dangerous offender: see Clayton C. Ruby et al., Sentencing 7th ed. (Markham: LexisNexis, 2008) at s. 17.29, 17.43; see also R. v. Read , (1994) 1994 BCCA 1 (CanLII) , 47 B.C.A.C. 28 , [1994] B.C.J. No. 1491 at para . 76 ; Neve at para . 133.

This is particularly so with respect to each alleged act of past conduct that establishes the required pattern . (Emphasis Added) [ 32 ] In addressing that instruction from the Court of Appeal, the Respondent took the position in his written submission at para . 9 that: Applying a lower standard of proof for the presumption would mean that it would be possible for the Crown to prove that the Respondent is a dangerous offender on a lesser standard than a proof beyond a reasonable doubt. [ 33 ] The Respondent further argued that the evidentiary standard must be proof beyond a reasonable doubt in the following language in his written submissions at para . 17: It is respectfully submitted that the standard of proof for the applicability of the presumption is beyond a reasonable doubt.

In other words the trier of fact must be sure that the appropriate sentence for the offence the offender was convicted of is at least two years in jail. [ 34 ] In addition, the Respondent filed with the Court cases establishing a range of sentence.

The Respondent also filed extensive material particulars concerning the circumstances of the Respondent. [ 35 ] It was noted in the materials relating to the Respondent that a significant passage of time had taken place between the offences that were dealt with in Toronto and Vancouver until the Respondent was found guilty by this Court for the sexual assault of DB. [ 36 ] It was also submitted that until the Respondent was arrested in January of 2010, he had been living independently for approximately four and a half years, was employed, and was engaging in counselling on a frequent and continuing basis. [ 37 ] The materials also filed on behalf of the Respondent established a steady chronology of work and studies performed by the Respondent from the spring of 2001 until his arrest in 2010.

It was argued that this chronology established that the Respondent had achieved stability and success in his personal life, which would clearly demonstrate to the Court that the Respondent would be a good candidate for his own rehabilitation. [ 38 ] It was also noted by the Respondent that there had not been any recent comprehensive assessment of the Respondent as an active participant and that the last assessment was performed by Dr. Stanley Semrau in July of 1997. In that assessment, the Respondent noted that certain negative opinions reached by Dr. Semrau were not borne out. For example, in the report of Dr.

Semrau , he described the Respondent’s employment success as: ... a more doubtful proposition than it was in the past, which may in turn lead to an increased sense of failure, frustration and anger. [ 39 ] The chronology of work and study detailed in the written materials on behalf of the Respondent would establish the contrary. [ 40 ] In addressing the range of an appropriate sentence, the Respondent conceded that in relation to a major sexual assault a Federal sentence of incarceration generally would be imposed.

However, it was submitted in this case that the sexual assault by the Respondent on DB was not a major sexual assault. He reminded the Court that after the “bad date” that DB had two further contacts with the Respondent, during one of which sexual activity took place without incident. [ 41 ] It was further submitted that in fashioning an appropriate sentence that this Court should place the emphasis on the physical assault and to consider the range of sentences for assault that include choking.

On that point, the Respondent made reference to his case authorities, mostly within a domestic context, in which the sentences, broadly brushed, were generally less than two years. [ 42 ] It was further submitted by the Respondent that the circumstances of the sexual assault conviction were “factually and legally

unusual if not unique”. It was emphasized that in large measure the sexual activity was consensual except that the Respondent “crossed the line” when he performed the choking and strangulation actions on DB. It was noted that even after those inappropriate actions were performed by the Respondent, DB continued with the sexual activity, following which, she was returned to the Kingsway corridor area and appropriately paid along with some cigarettes. [ 43 ] It was further submitted by the Respondent that his actions in relation to the “bad date” with DB would not attract a high degree of moral blameworthiness.

On that point, in his written submissions, the Respondent posed his position at para . 46, in the following language: Dawson’s moral blameworthiness is mitigated by the fact that Dawson’s behaviour did not occur in the face of explicit expressions of a lack of consent but rather occurred in the course of a pre-existing permissive relationship that regularly involved some minor rough physical play and spanking.

His moral blameworthiness lies not primarily in the acts themselves but, as the court found, in his failure to ensure that DB clearly knew what he was going to do and explicitly consented to it. [ 44 ] In relation to the ongoing consent to sexual activity, excepting that the choking and strangulation actions did cross the line, the Respondent further submitted that those actions did not vitiate DB’s consent to continuing sexual activity.

In his written submissions, the Respondent characterized this issue at para . 48 in the following language: What we know is that DB considered the choking to be physically abusive but it did not vitiate her consent, freely given and freely maintained to continuing sexual activity.

In other words this case does not have the coercive characteristics of so many sexual assault cases, particularly those involving prostitutes. [ 45 ] It was further submitted by the Respondent that there were no statutory aggravating factors which would apply to this case and the mitigating circumstances were substantial. [ 46 ] It was further emphasized that in applying the principles of sentence that the Court should give significant emphasis to the rehabilitation of the Respondent. Rehabilitation could be most effectively achieved through a sentence of 18 months plus 3 years of probation.

It was submitted the Crown could not establish beyond a reasonable doubt that the appropriate sentence would be a Federal sentence. [ 47 ] The Respondent made reference to numerous cases to support arguments advanced. Attached as Appendix A to this Ruling is an index of the cases relied upon by the Respondent. (ii) Applicant’s Position [ 48 ] Counsel for the Applicant submitted that s. 753(1) does not impose a burden on the Crown to prove beyond a reasonable doubt that a sentence of two years or more is appropriate.

Indeed, it was argued by the Applicant that such a burden was contrary to the general principles of sentencing. [ 49 ] It was further submitted that in relation to the sentencing analysis in determining whether or not a sentence in excess of two years in prison was appropriate, that the Court must weigh and assess the sentencing factors set out in s. 718 through s. 718.3 and s. 723. [ 50 ] The Applicant further submitted that their position was consistent with other aspects of Dangerous Offender Proceedings. In particular, the Applicant relied upon the Supreme Court of Canada decision of R. v.

Johnson to support the Applicant’s position that it would be the function of this Court to exercise discretion in determining whether or not to impose an indeterminate sentence by balancing the liberty interest of the Respondent against the need for public protection. [ 51 ] The Applicant detailed in their written submissions the negative historical background of the Respondent in his dealings with Corrections Canada.

It was argued that in light of the Respondent’s criminal record and the Psychiatric and Psychological Reports on file relating to the Respondent, there would be no question whatsoever that the Respondent should receive a prison sentence in excess of two years for his sexual assault of DB. [ 52 ] It was further submitted by the Applicant that in relation to the operation of s. 753(1.1) , it was not the function of the Court, at this stage, to in fact determine what would be a fit and proper sentence.

Rather, it should be the sole function of this Court to determine whether a sentence of two years or more would be appropriate. If the determination is in the affirmative, then the presumption would apply. [ 53 ] Counsel for the Applicant made reference to numerous cases to support their position. Attached as Appendix B to this Ruling is an index of the cases relied upon by the Applicant. ANALYSIS [ 54 ] Section 753(1.1) was enacted as part of Bill C-2,

short titled the Tackling Violent Crime Act . This was an Act to amend the Criminal Code and had five broad categories of legislative measures, which included an amendment to make it easier to have someone declared a dangerous offender. Bill C-2 received Royal Assent on February 28, 2008 and the

section relevant to the dangerous offender provision, s. 42 of the Bill, came into force on July 2, 2008. [ 55 ] A legislative

summary of the Bill C-2 was prepared by the Law and Government Division of the Parliament of Canada on October 29, 2007, ( Legislative

Summary, Bill C-2:

An Act to amend the Criminal Code and to Make Consequential Amendments to Other Acts , LS-565E, Parliamentary Information and Research Service, Library of Parliament, Ottawa, 29 October 2007 ) . T he relevant passage addressing the addition of the reverse onus provision to s. 753 of the Criminal Code is reproduced below:

a) Reversal of the Onus of Proof and Constitutional Rights

Subclause 42(2) of the bill introduces a reversal of the onus of proof: after the prosecutor has proved that the offender has been convicted of a third primary designated offence (the underlying offence and the prior offences, for each of which a term of imprisonment of at least two years was imposed), the onus shifts to the offender, who must prove, on a balance of probabilities, that he or she does not present a threat to the life, safety or physical or mental well-being of other persons (see paragraph 753(1)(

a) of the Code ), or, if the third primary designated offence is a sexual assault, that the offender is able to control his or her sexual impulses and there is no likelihood of causing injury, pain or other evil to other persons (see paragraph 753(1)(

b) of the Code ). With the reversed onus of proof in the bill, an offender could be found to be a dangerous offender notwithstanding any reasonable doubt as to his or her dangerousness or the risk of recidivism under the criteria set out in paragraph 753(1)(

a) or 753(1)(

b) of the Code . On the other hand, it should be noted that in Mack ( R. v. Mack , 1988 CanLII 24 (SCC) , [1988] 2 SCR 903 ), the Supreme Court of Canada held that the standard of proof beyond a reasonable doubt applies only where the issue is the guilt or innocence of the accused. It should also be noted that where the accused has been convicted, he or she is no longer an “accused” within the meaning of

section 11 of the Canadian Charter of Rights and Freedoms (the Charter), and so the presumption of innocence guaranteed by paragraph 11(

d) does not apply. In this case, the bill applies to people who have already been convicted. It therefore seems that the presumption of innocence could not be used to challenge the reverse onus that operates at the dangerous offender finding stage. In Lyons ( R. v. Lyons, 1987 CanLII 25 (SCC) , [1987] 2 SCR 309 , the majority of the Supreme Court of Canada was of the opinion that the right to be presumed innocent did not apply in the context of a dangerous offender application. In its review of the various forms of reverse onus of proof in the Code before an accused is convicted, the Supreme Court took into account, having regard to the presumption of innocence and

section 1 of the Charter , the importance of the objective, whether there are effective means available to Parliament to achieve that objective, and proportionality between the objective and the degree of impairment of constitutional rights. (

i) What is the standard of proof? [ 56 ] I find that a Court in Dangerous Offender proceedings must clearly distinguish unfounded or unproven prior allegations involving an offender from a determination of a future assessment of risk with respect to an offender. I draw support for this position from our Court of Appeal decision in Pike . [ 57 ] The scope of the issue addressed by the Court of Appeal in Pike is clearly set out in the opening paragraph of that decision in the following language: This appeal addresses the

interpretation of the dangerous offender provisions of the Criminal Code . In particular, it concerns the extent to which a court may rely on unproven allegations of criminal conduct in determining whether the Crown has established a “pattern of behaviour”, and the link between an established “pattern of behaviour” and the assessment of whether the offender constitutes a threat to other persons, as required by s. 753(1 )(

a) of the Code . [ 58 ] In Pike , the Court of Appeal addressed the application of threat or risk assessment in the operation of s. 753(1)(

a) of the Code where the trial judge, in part, relied upon unproven allegations of past conduct to declare Pike a dangerous offender. [ 59 ] It is noteworthy that in Pike the Court of Appeal addressed the standard of proof on sentencing where the trial judge relied upon unproven prior conduct. As that conduct was not proven beyond a reasonable doubt, the Court of Appeal overturned the trial judge.

The basis for that determination can be found in Pike at para . 95 as follows: The trial judge failed to distinguish between conduct established beyond a reasonable doubt to have occurred and unproven allegations of which he could take no cognizance. When all of the irrelevant, unproven allegations are removed from the pattern analysis, the history of sexual violence is reduced to two incidents, only one of which was predatory. That pattern cannot sustain the judge’s conclusion that the appellant was a threat under s. 753 . [ 60 ] The Alberta Court of Appeal in R. v.

Neve , 1999 ABCA 206 , informs of the origin and rationale behind the statement of law in Pike where, at para . 133 , the Court said: On this point, it is clear that any offence for which the offender has been charged and acquitted cannot be revisited at the dangerous offender hearing. Equally, it is clear that evidence of criminal behaviour that was not the subject of criminal charges may be introduced in dangerous offender proceedings: R. v. Latham (1987) 1987 CanLII 7165 (MB KB) , 47 Man. R. (2d) 81 (Q.B.) , affirmed (8 March 1988), No. 243/87 (C.A.), leave to appeal to S.C.C. refused (1988) 57 Man.

R. (2d) 159 n; R. v. Lewis (1984) 1984 CanLII 2027 (ON CA) , 12 C.C.C. (3d) 353 (Ont. C.A.) , appeal to S.C.C. abandoned (1986) 25 C.C.C. (3d) 288n. However, where the Crown seeks to introduce proof of untried criminal offences in order to establish the pattern of behaviour for the purposes of dangerous offender proceedings, that portion of the application is more akin to a trial. Thus, it has been held that this conduct must be proven beyond a reasonable doubt: see R. v. Newman (1994) 1994 CanLII 9717 (NL CA) , 115 Nfld. & P.E.I.R. 197 (Nfld. C.A.) ; R. v.

Jackson (1981) 1981 CanLII 3281 (NS CA) , 61 C.C.C. (2d) 540 (N.S.S.C.A.D.) leave to appeal to S.C.C. refused (1982) 30 C.R. (3d) xxix; and Lewis ( Ont.C.A .), supra. [ 61 ] It is important to note that at this stage the proceedings involving the Respondent in relation to Application of s. 753(1.1) are in the nature of an Assessment Hearing and not akin to a trial. [ 62 ] I further find at this stage the Court need not frame what, indeed, would be a fit and proper sentence applying the principles of sentencing, but rather, it turns on whether the Court being satisfied that it would be appropriate to impose a sentence of two years in prison. [ 63 ] On this point, our Court of Appeal decision in R. v.

Wormell is useful for two reasons. First, it illustrates that the use of the word “satisfied” does not impose a burden of proof beyond a reasonable doubt on the Applicant. Second, it also illustrates that there can be no burden of proof in the assessment of the future. At paras . 32 through 34 those two points were addressed by the Court of Appeal as

follows: The task of the Court from beginning to end is to ask itself, "Am I satisfied that there is a reasonable possibility of eventual control of the risk in the community?" If the judge concludes that he or she is not so satisfied then the judge cannot designate the offender a long-term offender. In my opinion, it is not right to approach this with burden of proof at the back of one's mind. Burden of proof, whether it is proof beyond a reasonable doubt or on a balance of probabilities, directs itself to determining past events.

While on a dangerous offender application the Crown must prove beyond a reasonable doubt past conduct of the accused which it says is relevant, there can be no burden of proof in the classic sense in the assessment of the future. [ 64 ] Therefore, at this stage, whether a prison sentence of two years or more would be appropriate in relation to the Respondent is much closer to an assessment of the future than a determination of past events.

This assessment requires a consideration of the balancing of sentencing principles including rehabilitation, general and specific deterrence, denunciation, reparation for harm done to victims or to the community and the need to promote a sense of responsibility in offenders. Additionally, in this assessment, I must also ensure that an appropriate sentence is proportionate to the circumstances of the offence and the circumstances of the Respondent. [ 65 ] In the balancing of these factors, I find that in determining an appropriate sentence, the analysis is not amendable to proof beyond a reasonable doubt.

Support for this position, by analogy, can be found in the Supreme Court of Canada decision in R. v. M.(S.H.) (1989), 1989 CanLII 31 (SCC) , 50 CCC (3d) 503 (SCC) , at para . 26 . Similarly, the Ontario Court of Appeal decision in R. v. A.O. , 2007 ONCA 144 (CanLII) , [2007] O.J. No. 800 (CA) , at paras . 29 and 34 ; and R. v.

Proulx , [2000] 1 SCR 6 , where the Supreme Court of Canada followed a similar approach in the context of the appropriateness of a Conditional Sentence. [ 66 ] Proulx is useful in this analysis as it identifies that it is the task of the sentencing judge to determine what would be the best disposition for any offender. At paras . 120-121, the Court in Proulx said: I disagree. The wording used in s. 742.1 does not attribute to either party the onus of establishing that the offender should or should not receive a conditional sentence.

To inform his or her decision about the appropriate sentence, the judge can take into consideration all the evidence, no matter who adduces it ( Ursel , supra , at pp. 264-65 and 287). In matters of sentencing, while each party is expected to establish elements in support of its position as to the appropriate sentence that should be imposed, the ultimate decision as to what constitutes the best disposition is left to the discretion of the sentencing judge . This message is explicit in s. 718.3(1) and (2): (Emphasis Added) 718.3

(1) Where an enactment prescribes different degrees or kinds of punishment in respect of an offence, the punishment to be imposed is, subject to the limitations prescribed in the enactment, in the discretion of the court that convicts a person who commits the offence.

(2) Where an enactment prescribes a punishment in respect of an offence, the punishment to be imposed is, subject to the limitations prescribed in the enactment, in the discretion of the court that convicts a person who commits the offence, but no punishment is a minimum punishment unless it is declared to be a minimum punishment. [ 67 ] In my opinion, R. v. M. (S.H.) , R. v. A.O. , and R. v. Proulx inform the approach to be taken in considering other aspects of the Dangerous Offender provisions.

Those provisions require that the trial judge consider whether he or she can be satisfied that the risk to the public can be reduced to an acceptable level without the imposition of an indeterminate sentence. [ 68 ] Of further assistance in this analysis is the Ontario Court of Appeal decision in R. v. D .( F.E.) which supports the proposition, subject to the Pike rule, that in Dangerous Offender Applications the balancing of factors is for the Court to determine and the concept of a standard of proof is not helpful when a Court is balancing various factors and considerations in the ultimate determination.

On this point at paras . 54 and 55 the Court of Appeal notes: Finally, I note that, in addition to Proulx , supra , there are other cases that have held that a requirement that a court be “satisfied” of a particular matter does not necessarily connote a standard of proof beyond a reasonable doubt. See, e.g. R. v. M. (S.H.) (1989), 1989 CanLII 31 (SCC) , 50 C.C.C. (3d) 503 (S.C.C.) , in which McLachlin J. noted that the concept of a standard of proof is “typically concerned with establishing whether something took place” and is “less helpful” when one is engaged in balancing various factors and considerations.

See also R. v. A.O; R. v. J.M. , 2007 ONCA 144 (CanLII) , [2007] O.J. No. 800 ( C.A . ) .

Viewed in the context of the foregoing factors, I see no necessity or rationale for viewing the third criterion in s. 753.1 as imposing a burden of proof. [ 69 ] Though ably submitted by the Respondent that the above cases dealing with a standard of proof were decided prior to the amendments to the Dangerous Offender provisions of the Criminal Code that factor does not necessarily affect the Application of the those cases in the approach to be taken in a determination under s. 753(1.1) of the Code . (ii) What is the appropriate sentence? [ 70 ] I find that in relation to the precondition as to what would be an appropriate sentence pursuant to s. 753(1.1) of the Criminal Code that the rule in Pike has not been engaged.

I further find that the appropriate sentence determination is not amenable to the establishment of proof beyond a reasonable doubt. The emphasis must be placed on the appropriateness of a sentence which should apply to the Respondent at this stage. I agree with the position taken by the Applicant that any such determination does not mean that the sentence must be indisputably correct, but whether, in the balancing of all relevant factors, is the sentence of two years or more in a federal penitentiary appropriate.

[ 71 ] The prior criminal history of the Respondent establishes that his past criminal conduct was both predatory and violent. Though I do not have the benefit of a recent Psychiatric or Psychological Assessment of the Respondent that does not minimize the Respondent’s sexual assault of DB. As noted, DB was a petite and vulnerable sex trade worker. But for her quick witted thinking in faking unconsciousness during the choking and strangulation actions of the Respondent, the outcome could have been much more grievous .

It was disturbing that the Respondent performed the choking and strangulation actions for his own personal, sexual gratification without ensuring that DB gave her informed consent for such activities. [ 72 ] I disagree with the submission of the Respondent that his moral blameworthiness would be at the lower end for his sexual assault of DB His actions were not momentary but encompassed two separate incidents involving choking with his arms, then a strangle hold with his hands.

Those actions also cannot be viewed in isolation from his prior disturbing criminal conduct. [ 73 ] Though not indisputably the correct sentence, I am satisfied that an appropriate sentence for the Respondent, in balancing those factors contained in s. 718 through s. 718.3 and s. 723, where applicable, would be a sentence of imprisonment of two years or more in a federal penitentiary. [ 74 ] Accordingly, I find that the preconditions contained in s. 753(1.1) of the Criminal Code have been met and the presumption of dangerousness would apply to the Respondent. [ 75 ] I wish to extend my appreciation for the able professional work done by Mr.

Poll for the Applicant, and Mr. Fowler for the Respondent. I would also wish to extend my thanks to Judicial Interns Jake Cabott and Kerry Burgi for their research input. __________________________________ The Honourable Judge G.M. Rideout Provincial Court of British Columbia APPENDIX A Respondent’s Authorities R. v. Pike 2010 BCCA 401 R. v. Davidson , [2000] Unreported Vancouver Registry 09371-DC, August 4 th , 2000 R. v. Sandercock , [1995] 22 CCC (3d) 79 , 1985 ABCA 218 R. v. Rush , [2010] BCCA 293 R. v. Doyle 1993 CanLII 3041 , (PEI SCAD) R. v. Doyle , [1992] PEIJ No. 123 R. v. Hunka , [2003] BCPC 324 R. v.

K.T.E. , [2002] BCPC 0569 R. v. Kelly , [2004] BCPC 0456 R. v. Stevens , [2005] BCPC 28 R. v. M. (C.A.) , 1996 CanLII 230 (SCC) , [1996] 1 SCR 500 R. v. Davidson , [2001] BCCA 47 APPENDIX B Applicant’s Authorities R. v. D. (F.E.) , 2007 ONCA 246 , 2007 CarswellBC 1971 R. v. Johnson 2003 SCC 46 , CarswellBC 2354 R. v. Kane 2011 BCSC 345 , 2011 CarswellBC 622

R. v. R.C.M. , 2004 BCPC 135 , 2004 CarswellBC 1176 R. v. R .( D.) 2004 BCSC 336 , 2004 CarswellBC 525 R. v. Wormell , 2005 BCCA 328 CarswellBC 1371 CORRIGENDUM – Released January 25, 2012 [1] In my Reasons for Judgment dated January 19, 2012, para . 73 should be replaced with the following: [73] Though not indisputably the correct sentence, I am satisfied that an appropriate sentence for the Respondent, in balancing those factors contained in s. 718 through s. 718.3 and s. 723, where applicable, would be a sentence of imprisonment of two years or more in a federal penitentiary.