R. v. Boalag, 2020 NLCA 33

Sofyan Boalag (appellant) v. Her Majesty the Queen (respondent) (17/98) Indexed As: R. v. Boalag 2020 NLCA 33 6 C.A.N.L.R. 73 Court of Appeal of Newfoundland and Labrador Welsh, O’Brien and Goodridge JJ.A. September 30, 2020

Summary: Sofyan Boalag was convicted of three counts of sexual assault with a weapon, two counts of robbery, one count of possession of a prohibited weapon, one count of overcoming resistance to the commission of an offence by attempting to choke the victim, and one count of resisting arrest. The charges arise from three separate incidents, occurring with three separate victims on September 29, 2012, December 1, 2012, and December 9, 2012. Mr. Boalag was arrested on December 10, 2012. Convictions were entered on September 23, 2016. Mr.

Boalag was designated a dangerous offender and sentenced to an indeterminate period of imprisonment on November 9, 2017. Mr. Boalag appeals both his designation as a dangerous offender and the indeterminate sentence. Held: Appeal dismissed. The standard to be applied in determining whether an offender is to be designated a dangerous offender under

section 753 of the Criminal Code , based on the public protection purpose, as discussed in Boutilier , is a pattern of conduct that is “substantially intractable” (paragraphs 12-17). Although the trial judge did not have the benefit of the reasoning in Boutilier and therefore applied a less stringent standard than “substantially intractable”, and erred in failing to consider the treatment prospects of Mr. Boalag at the designation stage (doing so instead at the sentencing stage) there was no substantial wrong or miscarriage of justice in the determination that he was a dangerous offender.

The trial judge was entitled not to accept the conclusion of the expert, but instead considered the evidence as a whole (including the expert testimony) to reach her conclusion (paragraphs 18-43).

There was no basis to conclude the trial judge had erred in her decision on the indeterminate sentence even though she applied a less stringent standard than “substantially intractable” and did not perform the three step analysis as outlined in Boutilier , given she conducted an assessment that was consistent with what is required by the legislation and the principles set out in Boutilier (paragraphs 44-53). ___________________________________ Leave to appeal to SCC refused, 39436 (March 11, 2021) Evidence from a disciplinary hearing involving Mr. Boalag at Her Majesty’s Penitentiary was admissible.

The Crown had given the required notice, and the evidence that Mr. Boalag was found to possess a razor was relevant (paragraphs 57). While the court should have access to the widest possible range of information, evidence from a confidential source, improper reference to offences for which Mr. Boalag was acquitted, and reference to Mr. Boalag’s refugee status were not properly before the court (paragraphs 53-56 and 58-61). These factors could not be said to have affected the outcome (paragraph 62).

Cases cited: R. v. Boalag, 2017 NLPC, 142 W.C.B. (2d) 504 R. v. Boutilier, 2017 SCC 64, [2017] 2 S.C.R. 936 R. v. Lyons, (SCC), [1987] 2 S.C.R. 309 R. v. Van, 2009 SCC 22, [2009] 1 S.C.R. 716 R. v. Malakpour, 2018 BCCA 254 R. v. C.W., 2019 ONCA 976 R. v. Roper, 2019 BCCA 68 R. v. Bingley, 2017 SCC 12, [2017] 1 S.C.R. 170 R. v. Jones, (SCC), [1994] 2 S.C.R. 229 R. v. Currie, (SCC), [1997] 2 S.C.R. 260 Steele v. Mountain Institution, (SCC), [1990] 2 S.C.R. 1385 R. v.

Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089 Statutes considered: Criminal Code, sections 686(1)(b)(iii), 718-718.2, 752, 752.1, 753, 757, 761(1) Corrections and Conditional Release Act, S.C. 1992, c. 20, section 43(3) Counsel: Jonathan E. Noonan, for the appellant; Dana E. Sullivan, for the respondent. The appeal was heard on February 19, 2020 before Welsh, O’Brien and Goodridge JJ.A.

The following judgment was filed on September 30, 2020 by Welsh J.A. for the Court. ______________________________________________________________ Welsh J.A.: [1] Sofyan Boalag was convicted of several serious offences and, upon application by the Crown, was declared to be a dangerousoffender pursuant to

section 753 of the Criminal Code. He was sentenced to an indeterminate period of imprisonment. Mr. Boalagappeals both the designation as a dangerous offender and the indeterminate sentence. BACKGROUND [2] Mr. Boalag was convicted of three counts of sexual assault with a weapon, two counts of robbery, one count of possession of aprohibited weapon, one count of overcoming resistance to the commission of an offence by attempting to choke the victim, and onecount of resisting arrest.

Details of the offences are summarized by the trial judge (2017 NLPC 0113A00338) and set out below inchronological order: [10] The details of the offences committed by Mr. Boalag are found in the decisions of this Court filed August 2, 2016 and September23, 2016. They are summarized below. … September 29, 2012 (Victim I.H.) [12] At approximately 5:55 a.m., I.H. was walking her small dog along a deserted street. Mr. Boalag with his hood up came behindher, put his arm around her neck and told her not to speak. She felt a sharp object to her back. He dragged her down between the houses

and told her repeatedly he was going to kill her. He bent her over and penetrated her vagina with his penis from behind. She did not know if he fully penetrated her. She was afraid to scream out of fear he would kill her. During the assault she told him she was 14 and had never done this before. He called her “baby”. December 1, 2012 (Victim F.S.) [13] F.S. was walking home alone sometime after 2 a.m. when she was attacked from behind by Sofyan Boalag. He held a knife to her throat and told her to do what he wanted. She was against an enclosure and he told her to remove her clothes.

When he started touching her she told him to do what he wanted because he was going to kill her. He told her that he would not kill her. He performed oral sex on her. She told him that she was a virgin. He penetrated her vagina with his penis. At one point she made him promise to Allah that he would stop. He took everything in her pockets including her phone. … December 9, 2012 (Victim M.H.) … [11] M.H. was downtown socializing when she met the offender. She invited him to party at an after-hours club with her. He asked her to accompany him to his house so he could get his wallet.

When they went behind a church he smacked her head against a barbed wire enclosure and held a knife to her throat. He threatened to kill her if she did not do what he wanted. She faced a wall and he put his arm tightly against her neck. He ripped her underwear with either a knife or his hands. She tried to fight him and fell to the ground. He threw her phone away. M.H. begged him to stop and started calling out for help. He told her if she didn’t stop he would kill her. He penetrated her vagina with his penis. He put his hands around her neck and squeezed until she lost consciousness. [ 3 ] Mr.

Boalag was arrested on December 10, 2012, and has been imprisoned since that time. Convictions were entered on September 23, 2016. Mr. Boalag was designated a dangerous offender and sentenced to an indeterminate period of imprisonment on November 9, 2017. ISSUES [ 4 ] At issue is whether the trial judge erred: (1) in her assessment of Mr. Boalag’s prospective dangerousness for purposes of designating him as a dangerous offender and in ordering his imprisonment for an indeterminate period; and (2) in considering evidence not relevant to the pattern of behaviour resulting in his designation as a dangerous offender.

ANALYSIS The Law [ 5 ] Criminal Code provisions underlying this appeal were considered in R. v. Boutilier , 2017 SCC 64 , [2017] 2 S.C.R. 936 , in which the Court dismissed a challenge to the constitutional validity of sections 753(1) and (4.1) of the Code . That decision was released shortly after Mr. Boalag was sentenced.

Insofar as Boutilier revises or clarifies the law, that law will be applied for purposes of the appeal. [ 6 ] Section 753(1) of the Criminal Code provides for designation as a dangerous offender: On application made under this Part after an assessment report is filed under subsection 752.1(2), the court shall find the offender to be a dangerous offender if it is satisfied (

a) that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (

a) of the definition of that expression in

section 752 and the offender constitutes a threat to the life, safety or physical or mental well-being of other persons on the basis of evidence establishing (

i) a pattern of repetitive behaviour by the offender, of which the offence for which he or she had 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, (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 behaviour, or (iii) any behaviour by the offender, associated with the offence for which he or she has been convicted, that is of such a brutal nature as to compel the conclusion that the offender’s behaviour in the future is unlikely to be inhibited by normal standards of behavioural restraint; or (

b) that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (

b) of the definition of that expression in

section 752 and the offender, by his or her conduct in any sexual matter including that involved in the commission of the offence for which he or she has been convicted, has shown a failure to control his or her sexual impulses and a likelihood of causing injury, pain or other evil to other persons through failure in the future to control his or her sexual impulses. (Emphasis added.) [ 7 ] In this case, each of the three sexual assaults with a weapon would clearly satisfy the requirement for “a serious personal injury offence” under either paragraph (

a) or (b), as that term is defined in

section 752 of the Code : (

a) an indictable offence … involving (

i) the use … of violence against another person, …

and for which the offender may be sentenced to imprisonment for ten years or more, or (

b) an offence … mentioned in

section 271 (sexual assault),

section 272 (sexual assault with a weapon …) … [8] The imposition of sentence upon designation as a dangerous offender is governed by

section 753 of the Code, which provides:

(4) If the court finds an offender to be a dangerous offender, it shall (

a) impose a sentence of detention in a penitentiary for an indeterminate period; (

b) impose a sentence for the offence for which the offender has been convicted – which must be a minimum punishment ofimprisonment for a term of two years – and order that the offender be subject to long-term supervision for a period that does not exceed10 years; or (

c) impose a sentence for the offence for which the offender has been convicted.

(4.1) The court shall impose a sentence of detention in a penitentiary for an indeterminate period unless it is satisfied by the evidenceadduced during the hearing of the application that there is a reasonable expectation that a lesser measure under paragraph 4(

b) or (

c) willadequately protect the public against the commission by the offender of murder or a serious personal injury offence. [9] Coté J., for the majority in Boutilier, described a two stage process applicable when considering designation as a dangerousoffender and subsequent sentencing: [20] … The current version of the scheme reverts to a “two stage” process but removes the discretionary language from the designationstage. If a sentencing judge is satisfied that the statutory criteria have been met, the designation must follow. There is, however, somediscretion remaining at the sentencing stage.

Under s. 753(4.1), a sentencing judge must impose an indeterminate sentence on adesignated individual unless he or she is satisfied that there is a reasonable expectation that a lesser measure will adequately protect thepublic. (Underlining added.) [10] Determining a fit sentence when applying section 753(4.1) includes consideration of the principles and objectives of sentencingoutlined in sections 718 to 718.2 of the Code (Boutilier, at paragraphs 53 to 62). [11] Finally,

section 752.1(1) provides for the court to remand the offender “to the custody of a person designated by the court whocan perform an assessment ... for use as evidence” in an application for designation as a dangerous offender. Dr. Jasbir Gill, who was thedesignate in this case, provided a report and testified at the hearing. Designation as a Dangerous Offender General Principles [12] I begin with the law in Boutilier that was not available to the trial judge at the time of sentencing Mr. Boalag.

The trial judgeasserted at paragraph 105 of her decision, that, in assessing a dangerous offender application, the law “does not require “intractability”but likelihood that the offender will cause future harm to others”. However, in Boutilier, at paragraph 26, the majority affirmed theposition set out R. v. Lyons, (SCC), [1987] 2 S.C.R. 309, that “the court must be satisfied that the pattern of conduct issubstantially or pathologically intractable” (at page 338, emphasis added).

Coté J. continued, “I understand “intractable” conduct asmeaning behaviour that the offender is unable to surmount” (paragraph 27). [13] Not having the benefit of the decision in Boutilier, the trial judge in this case employed the less stringent standard of“likelihood”. This amounted to an error in law.

However, pursuant to section 686(1)(b)(iii) of the Criminal Code, the Court may dismissthe appeal notwithstanding the error of law, if “it is of the opinion that no substantial wrong or miscarriage of justice has occurred.” Forthe following reasons I am satisfied that that provision applies in this case because the error was such that, applying the correct law, theerror could not have had any impact on the verdict (R. v. Van, 2009 SCC 22, [2009] 1 S.C.R. 716, at paragraph 34). [14] In considering whether Mr.

Boalag’s pattern of conduct satisfies the “substantially intractable” criterion fundamental to adangerous offender designation, it is necessary to address his submissions regarding the bases on which he submits that the trial judgeerred. [15] Mr. Boalag submits that designation as a dangerous offender is very limited in its application, particularly in light of the highthreshold that applies to the assessment of future risk regarding the offender’s dangerousness. That issue, referenced in Boutilier, resultsin some uncertainty arising from the language used in that decision.

In the English version: [46] In sum, a finding of dangerousness has always required that the Crown demonstrate, beyond a reasonable doubt, a high likelihoodof harmful recidivism and the intractability of the violent pattern of conduct. A prospective assessment of dangerousness ensures thatonly offenders who pose a tremendous future risk are designated as dangerous and face the possibility of being sentenced to anindeterminate detention.

This necessarily involves the consideration of future treatment prospects. … [16] In applying the above principles, some uncertainty arises from a comparison between the French and the English versions of thedecision. Regarding the phrase “tremendous future risk” in paragraph 46 of the English version, the French version in the sameparagraph uses “un risque futur considérable”. In paragraph 77, the English version refers to “a tremendous risk to public safety”, whilethe French version is “un risque énorme pour la sécurité du public”.

Uncertainty arises from the use of the same English word,“tremendous”, for two quite different French words. Further, the Criminal Code does not use language that would equate with theadjective “tremendous”.

[ 17 ] That said, it is clear from the case law, the public-protection purpose of

section 753 of the Code , and the significant effect of the designation on the offender that a rigorous assessment must be applied, and the designation of “dangerous offender” imposed only in appropriate, limited circumstances. As discussed in Boutilier : [81] … On the basis of the broad language of this section, this Court has stated that “appellate review of a dangerous offender designation is somewhat more robust” than regular appellate review of a sentence: Sipos [2014 SCC 47], at para. 26. Nonetheless, the appellate court must give some deference to the findings of the sentencing judge.

In sum, errors of law will be reviewed on a correctness standard, while errors of fact will be reviewed on a reasonableness standard: Neuberger, at p. 9-2. That said, as discussed below, not every error of law will result in a new trial ( Boutilier , at paragraph 82 ). Section 753(1) (a)(

i) of the Criminal Code [ 18 ] Applying section 753(1)(a)(

i) of the Criminal Code in assessing the designation of Mr. Boalag as a dangerous offender, the trial judge determined: [97] The predicate offences were not isolated occurrences but part of repetitive behaviour. I am satisfied that the Crown has proven beyond a reasonable doubt that there are significant similarities among the violent acts committed by Mr. Boalag and has established a pattern of repetitive behaviour. ... [98] The victims were female and were violently sexually assaulted in generally similar circumstances.

I am satisfied beyond a reasonable doubt that the evidence establishes a pattern of repetitive behaviour on the part of Mr. Boalag, of which the offences for which he has been convicted form a part showing a failure to restrain his behaviour. [ 19 ] Regarding the final criterion in section 753(1)(a)(i), the “likelihood of causing death or injury to other persons ... through failure in the future to restrain his ... behaviour”, the trial judge, having reviewed the whole of the evidence, concluded: [104] ... These attacks were conducted in a deliberate and calculated manner. Mr.

Boalag took the phones of [two victims] and choked [the last victim] until she was unconscious. These are the intentional acts of an attacker to prevent his victims from seeking help. Mr. Boalag has no insight into these offences. ... [106] The evidence establishes beyond a reasonable doubt that there exists a substantial likelihood of Mr. Boalag causing injury to other persons, or inflicting severe psychological damage on other persons, through failure in the future to restrain his behaviour.

He, therefore, constitutes a threat to the life, safety or physical or mental well-being of other persons. [ 20 ] The trial judge went on to conclude that the criteria applicable in sections 753(1)(a)(ii) and (iii) and 753(1)(

b) were also satisfied. As the judge noted, it is necessary to meet the criteria in only one of those provisions to result in a dangerous offender designation, that designation being the only option where the criteria are satisfied. In her consideration of the criteria enumerated in each of the

section 753 alternatives, the trial judge referenced Mr. Boalag’s future risk to reoffend. [ 21 ] With respect to assessing the continuing nature of Mr. Boalag’s prospective risk, in Boutilier , the majority found that future treatment prospects are relevant at the designation stage as well as the sentencing stage of the analysis: [42] ...

Though I recognize that the jurisprudence on this question has been divided, with some courts finding future treatment prospects to be irrelevant at the designation stage [citations omitted], and some finding them to be a relevant consideration [citations omitted], I cannot agree with the Court of Appeal that the criteria for designation “have never included the future treatability of the offender”: para. 53.

An offender’s future treatment prospects are, and have always been, a relevant consideration at the designation stage. [43] As the assessment of prospective risk described above is concerned with whether an offender will continue to be “a real and present danger”, being unable to surmount his or her violent conduct, the sentencing judge must consider all retrospective and prospective evidence relating to the continuing nature of this risk, including future treatment prospects.

Furthermore, I am of the view that confining the consideration of treatability to the choice of penalty under s. 753(4.1) rests on a theoretical distinction between the designation stage and the penalty stage that is neither practical nor useful. [ 22 ] In this case, at the designation stage of the analysis, the trial judge made reference to Mr. Boalag’s future treatment prospects, but she did not specifically address that issue in detail until the second stage of the analysis, determination of a sentence. Regarding section 753(1)(a)(i), the judge considered: [103] [Dr. Gill] writes that “the prognosis for Mr.

Boalag is guarded. However, there might be a reasonable possibility of eventually controlling his risk in the community” (assessment report, p. 20). She then outlines what structures and conditions would be required to be implemented and the efforts Mr. Boalag would have to make as “a willing and consistent participant in his own risk management” (assessment report, p. 20). (Regarding sections 753(1)(a)(ii), (iii) and (b), see the decision of the trial judge, at paragraphs 124, 125, 138, 139 and 147.) [ 23 ] Mr.

Boalag submits that the judge erred in law because she failed to address his future treatment prospects at the designation stage, in particular, by failing to give effect to Dr. Gill’s testimony. In considering this submission, the caution in Boutilier regarding the effect of an error is instructive: [82] The sentencing judge committed an error of law, since he failed to consider Mr. Boutilier’s treatment prospects before designating

him as a dangerous offender. However, not every error of law requires that a new hearing be ordered. In rare circumstances, where the error of law has not resulted in a substantial wrong or miscarriage of justice, a court of appeal may dismiss an appeal against a declaration that an offender is dangerous under s. 759(3)(b) ... [83] The instant case involves such a rare circumstance. Here, the error of law does not change the sentencing judge’s conclusion regarding Mr. Boutilier’s dangerousness. The judge found Mr.

Boutilier’s conduct to be intractable because his prospect of overcoming his addictions, the source of his dangerousness, was nothing more than an “expression of hope”. [ 24 ] I would add that, where the trial judge did not consider the offender’s prospective risk and treatment prospects at the designation stage, but did so at the sentencing stage, it is open to the Court, on appeal, to review the judge’s findings of fact, based on the evidence, to ascertain whether, despite the judge’s analytical approach, no substantial wrong or miscarriage of justice resulted. In R. v.

Malakpour , 2018 BCCA 254 , where the judge did not consider the offender’s treatment prospects at the designation stage, the Court accepted that: [98] Given these findings [at the sentencing stage], which are well grounded in the evidence, there is no reasonable possibility that the finding of dangerousness would have been any different had the judge considered Mr. Malakpour’s treatment prospects at the designation stage. In my view, this is one of those circumstances where the error of law has resulted in no substantial wrong or miscarriage of justice. See also: R. v.

C.W. , 2019 ONCA 976 , at paragraph 34 ; R. v. Roper , 2019 BCCA 68 , paragraphs 84 and 85 . [ 25 ] In this case, the trial judge referenced the issue of risk at the designation stage, and in doing so, she referred to prospects for Mr. Boalag’s rehabilitation or treatment, which is a component of the continuing nature of the offender’s prospective risk ( Boutilier , at paragraph 43 ). However, the prospective risk and treatment prospects were dealt with more directly and in more detail under the second stage of the analysis, determination of an appropriate sentence.

It is necessary, then, to consider whether, despite the judge’s approach, no substantial wrong or miscarriage of justice resulted. [ 26 ] I turn then to the judge’s more detailed analysis regarding Mr. Boalag’s prospective risk and treatment prospects. In particular, Mr. Boalag submits that the trial judge erred by failing to give appropriate weight to the report and testimony of Dr. Gill, the psychiatrist who was appointed pursuant to

section 752.1 of the Criminal Code . The decision as to designation as a dangerous offender, a long-term offender, or neither is a legal question that falls within the scope of authority of the judge, considering all the evidence. Dr. Gill’s psychiatric opinion that Mr. Boalag satisfies the criteria for designation as a long-term offender falls to be considered by the judge as part of the whole of the evidence, but is not determinative. [ 27 ] In her decision, the judge took account of the significant effect of Mr.

Boalag’s attacks on the victims, as was clear from their victim impact statements; the report and testimony of Dr. Gill, including psychological risk assessment tests; Mr. Boalag’s statement to police; and the nature and timing of the assaults. [ 28 ] In several paragraphs, the judge summarized the “salient observations, comments and testimony” of Dr. Gill (decision of the trial judge, at paragraph 27). The judge also referenced factors affecting Dr. Gill’s ability to conduct the assessment: [28] Dr. Gill noted that her assessment was limited by a number of factors.

There were few “collateral sources of information”. In addition, “Mr. Boalag’s responses to questions were sometimes internally and externally inconsistent. ... Mr. Boalag was generally not forthcoming with information.” [ 29 ] The judge gave examples of inconsistencies and reviewed what Mr. Boalag told Dr. Gill regarding his family and relationship histories, and his use of alcohol and cocaine. Mr. Boalag maintained that he had “blacked out” during commission of the offences and denied that he had sexual urges that were beyond his control. [ 30 ] The trial judge also concluded that Mr.

Boalag does not accept that he has “an underlying sexual deviancy”; that he does not believe he has a problem; that he would agree to taking prison-based programs because he would be required to; and that he blames the cause of his offences on his abuse of alcohol and drugs (decision of the trial judge, at paragraph 55). The judge reached these conclusions on the evidence despite Dr. Gill’s caution that Mr. Boalag’s position on these issues was not unusual for someone in his position. [ 31 ] On the question of risk assessment, the judge summarized Dr. Gill’s submissions, based on Dr.

Gill’s report and her testimony: [72] ... Overall Dr. Gill would view Mr. Boalag as being at high risk for sexual recidivism from a clinical psychiatric perspective. His actuarial scores [on assessment tests] place him in the moderate to moderate-high risk category for sexually re-offending and some clinical features also suggest his risk is high.

These include his recent history of significant alcohol and cocaine abuse, his denial of any underlying sexual deviancy or willingness or ability to explore his sexual attitudes and to explore the index offences in detail, his tendency to lie to avoid responsibility or manipulate his situation, evidence of hostile attitudes towards women, evidence of intimacy difficulties such as a tendency towards possessiveness and jealousy and expectations for some level of control over his female partners, and his apparent vulnerability and potential for exposure to destabilizers such as substances and stress. [ 32 ] The judge referred to Dr.

Gill’s assessment regarding Mr. Boalag’s pattern of repetitive behaviour with similarities among the incidents, and his pattern of persistent aggressive behaviour in which he was indifferent to the impact on his victims and more concerned with the consequences to himself. Further the judge specifically referenced portions of Dr. Gill’s report: [73] ... b. iii. It is beyond the scope of [my] psychiatric practice to opine on the brutal nature of the offences.

However, it does appear that he was unable to restrain his violent behaviour at least by his own devices and an actuarial and clinical assessment of his risk suggests that he is unlikely to restrain his behaviour in the absence of significant external controls.

[ 33 ] Dr. Gill concluded that it “is difficult to know whether he would be unable to restrain his behaviour following the use of external interventions such as sex offender programming, psychological counseling and parole monitoring” (decision of the trial judge, at paragraph 73.c). The judge concluded: [74] Dr. Gill noted that Mr. Boalag’s current clinical and actuarial assessment suggests he presents with a substantial risk of reoffending sexually and violently. [75] She commented that with respect to whether there is a possibility of eventual control in the community, Mr.

Boalag has shown no evidence of being able to monitor, reflect upon and restrain his own behaviour. His belief that his offences are only the result of drug and alcohol use and that he will be able to abstain from any substance use in the future even without rehabilitation or relapse prevention programming is unrealistic, ... . [ 34 ] Finally, the judge referenced Dr. Gill’s opinion that: [78] Overall the prognosis for Mr. Boalag is guarded.

However, there might be a reasonable possibility of eventually controlling his risk in the community if certain structures and conditions are implemented, and he is a willing and consistent participant in his own risk management, and given the very serious consequences of breaching the conditions of a long-term supervision order. [ 35 ] However, Mr. Boalag submits that the judge erred by failing to reference or consider two answers Dr. Gill gave in her testimony regarding his future dangerousness. At the conclusion of her examination-in-chief, Dr. Gill opined: Q.

And so what is your overall conclusion with regard to Mr. Boalag’s risk and the likelihood of being treated and able to be safely released in the community? A. So overall I think that there is, there is a likelihood of managing his risk following a period of incarceration during which such programming would occur and then maintaining programming and monitoring for some time after that.

I do think, as I’ve mentioned, that his risk at this point in time would be considered high but there are aspects that would lend themselves to interventions as I’ve reviewed so I think that I would conclude that he could benefit from interventions that would help him restrain his behaviour in the future. Q. And when you say a likelihood, how strong a likelihood would you say? A. I think that there’s a good likelihood – Q. Of rehabilitation? A. – of rehabilitation. [ 36 ] Similarly, at the conclusion of her cross-examination, Dr. Gill opined: Q. ...

You believe that there’s a reasonable possibility with sufficient counselling he can be – he can control his risks in the community, correct? A. Yes. ... Q. And you’re comfortable or satisfied or at least you’ve expressed the opinion that with sufficient counselling in an institution his risk could be controlled, following completion of a sentence, in the community? A. That it could be controlled and probably in the context of some supervision while in the community – Q. Sure A. – following that. [ 37 ] With respect to Dr. Gill’s assessment of Mr.

Boalag’s future dangerousness, the assessment in her report is significantly less optimistic than her

summary during her examination-in-chief where she uses the language, a “good likelihood of rehabilitation”. Her

summary during cross-examination, a “reasonable possibility with sufficient counselling”, is more, but not entirely, consistent with her report. In the report, Dr. Gill opined, “there might be a reasonable possibility of eventually controlling his risk in the community if the following structures and conditions are implemented and Mr. Boalag is a willing and consistent participant in his own risk management ” (page 20 of the report, emphasis added). [ 38 ] Regarding the use of expert evidence, such as was provided by Dr.

Gill, assistance may be gleaned from principles with respect to its admissibility, as discussed in R. v. Bingley , 2017 SCC 12 , [2017] 1 S.C.R. 170 . The underlying principles of admissibility apply equally in the context of the use of such evidence. McLachlin C.J.C., for the majority, explained: [13] ... This framework [for the admissibility of expert opinion evidence] guards against the dangers of expert evidence. It ensures that the trial does not devolve into “trial by expert” and that the trier of fact maintains the ability to critically assess the evidence: see White Burgess , at paras. 17-18.

The trial judge acts as a gatekeeper to ensure that expert evidence enhances, rather than distorts, the fact- finding process. [ 39 ] Further, expert evidence is “merely one piece of the picture for the judge or jury to consider”, and it “will always be for the trier of fact to determine what weight to give [an expert’s] opinion” ( Bingley , at paragraphs 31 and 32 ).

[40] In this case, Dr. Gill’s assessment of Mr. Boalag’s future prospects involved several conditions that Dr. Gill considered to benecessary for protection of the public upon Mr. Boalag’s release. The judge had significant concerns that such conditions could besatisfied because they required insight and willingness to change on the part of Mr. Boalag. It is clear from the judge’s reasons fordecision that whether appropriate and sufficient supervision and programs were available was not the critical question. Rather, she wasconcerned that the barriers to Mr. Boalag’s possible rehabilitation, as discussed by Dr.

Gill, arose from Mr. Boalag’s attitudes and lack ofinsight, matters internal to Mr. Boalag. The judge wrote: [156] ... The expectation cannot be based on “so many contingencies as to be of little more than an expression of hope rather than afinding from the evidence that could reasonably serve as a basis for such a serious disposition” (R. v. Poutsoungas (1989), (ON CA), 49 C.C.C. (3d) 388 (Ont. C.A.)). And further, [163] As noted by Feldman, J.A. in R. v. McCallum, (ON CA), [2005] O.J. No. 1178 (C.A.) at para. 47; leave toappeal refused, [2006] S.C.C.A.

No. 145, “there must be evidence of treatability that is more than an expression of hope and thatindicates that the specific offender can be treated within a definite period of time”. [41] The judge concluded: [164] There is no credible evidence that [Mr. Boalag] would willingly engage in treatment designed to address the reasons for theseviolent sexual attacks upon women. Dr. Gill has stated that Mr. Boalag is a high risk to re-offend unless limited by external controls.

Ihave very little basis on which to conclude that his risk could be managed in the community if I were to impose a finite period ofimprisonment. Indeed, the indication from him is that he would participate in sex offender programming only because he would beforced to do so. ... [42] The above analysis and conclusions of the trial judge are consistent with the standards set out in Boutilier. Mr.

Boalag’s patternof repetitive behaviour in committing the offences, his lack of insight into his behaviour, and the nature of the attacks, together with Dr.Gill’s assessment, support the conclusion that his “pattern of conduct is substantially ... intractable” (Boutilier, at paragraph 26). That is,considering the evidence as a whole and the trial judge’s findings of fact, Mr. Boalag’s conduct constituted a pattern of behaviour which,on the evidence before the Court, he is substantially unable to surmount or overcome. [43] In the result, I am satisfied that, applying the principles set out in Boutilier, Mr.

Boalag’s designation as a dangerous offenderfollows. The fact that the judge did not accept Dr. Gill’s opinion that she would classify Mr. Boalag as a long-term offender rather than adangerous offender does not alter this conclusion. A reading of the detailed reasons for decision indicates that the judge considered thewhole of the evidence, including Dr. Gill’s psychiatric opinion expressed in her report and in her viva voce evidence, in determining thatMr. Boalag satisfied the criteria in

section 753 of the Criminal Code. Accordingly, the judge concluded that the designation as adangerous offender must follow. The application of the law set out in Boutilier to the evidence and the judge’s findings of fact leads tothe same conclusion. Although the trial judge erred in applying a less stringent standard than “substantially intractable” in designatingMr. Boalag as a dangerous offender, no substantial wrong or miscarriage of justice resulted.

The Sentence [44] Principles to be applied when determining the appropriate sentence to be imposed on a person designated as a dangerous offenderare discussed in Boutilier: [65] Section 753(4.1) guides the discretion of the judge, who ultimately must determine the fittest sentence in a given case based on theevidence adduced during the sentencing hearing.

This Court in Johnson [2003 SCC 46, [2003] 2 S.C.R. 357] stated that the “sentencingjudge should declare the offender dangerous and impose an indeterminate period of detention if, and only if, an indeterminate sentence isthe least restrictive means by which to reduce the public threat posed by the offender to an acceptable level”: para. 44.

Again, s. 753(4.1)is simply a codification of the exercise of discretion required by Johnson in light of the regime’s general purpose of public protection indealing with offenders presenting a very high likelihood of harmful recidivism. (Emphasis added.) [45] A three-step analytical framework is discussed in Boutilier, at paragraph 70. First, if the court is satisfied on the evidence that aconventional sentence of incarceration would adequately protect the public, then that is the sentence that must be imposed.

If not, thenthe court proceeds to the second step, that is, if a sentence of imprisonment of at least two years followed by a long-term supervisionorder not exceeding ten years would adequately protect the public, then that is the sentence that must be imposed. If neither of theseoptions is adequate, then an indeterminate sentence must be imposed. [46] The objective in imposing an indeterminate sentence is discussed by Gonthier J., for the majority, in R. v. Jones, (SCC), [1994] 2 S.C.R. 229, at page 290: [128] ...

The overriding aim is not the punishment of the offender but the prevention of future violence through the imposition of anindeterminate sentence. An indeterminate sentence is not an unlimited sentence. If, in the case at hand, the psychiatrists testifying onbehalf of the accused are correct in their assessment that Mr. Jones will be fit to be released in ten years, then he will be liberated at thattime. The offender faces incarceration only for the period of time that he poses a serious risk to the safety of society.

In the interim, it ishoped that he will receive treatment that will assist him in controlling his conduct. To release a dangerous offender while he remainsunable to control his actions serves neither the interests of the offender nor those of society. See also, Boutilier, at paragraph 56. [47] With respect to the effect of an indeterminate sentence, section 761(1) of the Criminal Code addresses the responsibility of theParole Board:

Subject to subsection (2) [regarding sentences imposed prior to 1977], where a person is in custody under a sentence of detention in apenitentiary for an indeterminate period, the Parole Board of Canada shall, as soon as possible after the expiration of seven years fromthe day on which that person was taken into custody and no later than every two years after the previous review, review the condition,history and circumstances of that person for the purposes of determining whether he or she should be granted parole under

Part II of theCorrections and Conditional Release Act and, if so, on what conditions. [48] Pursuant to this provision, Parliament has imposed on the Parole Board the responsibility to evaluate the offender’s right to re-enter society after designation as a dangerous offender (R. v. Currie, (SCC), [1997] 2 S.C.R. 260, at paragraph 43; andSteele v. Mountain Institution, (SCC), [1990] 2 S.C.R. 1385, at page 1418). [49] As discussed in R. v.

Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, there are limited circumstances when an appellate court willintervene in a trial judge’s sentencing decision: [44] In my view, an error in principle, the failure to consider a relevant factor or the erroneous consideration of an aggravating ormitigating factor will justify appellate intervention only where it appears from the trial judge’s decision that such an error had an impacton the sentence. [50] In this case, in accordance with section 753(4.1), the trial judge considered, but rejected, the less restrictive sentencing measures. In addition to Dr.

Gill’s “guarded” prognosis, the judge considered that, “Mr. Boalag has shown no remorse and no motivation to seekthe underlying causes of his sexually violent behaviour” (decision of the trial judge, at paragraph 158). The judge rejected as untruthfulMr. Boalag’s assertion and explanation that his abuse of alcohol and cocaine caused his violent behaviour or that he had “blacked out”during the attacks. She concluded that the attacks were “deliberate and calculated acts” (decision of the trial judge, at paragraph 159). Further, the judge found, at paragraph 161, that there was no evidence that Mr.

Boalag would “engage meaningfully” in treatment orrehabilitation programming available in prison. [51] The trial judge concluded: [168] When I consider all of the evidence before me and the guidance provided by the case law I am not satisfied that there is areasonable expectation that a lesser measure under s. 753(4)(

b) or (

c) would adequately protect the public from the commission ofmurder or a serious personal injury offence by Mr. Boalag. [169] I am not satisfied that there is a reasonable expectation that the public can be adequately protected from Mr. Boalag by a measureless than an indeterminate sentence. Having come to this conclusion I recognize that Mr. Boalag has not had the opportunity toparticipate in intensive programming. [170] If Mr. Boalag participates in an assessment in the penitentiary and engages in treatment, it remains open to the parole board toultimately fashion a supervised release.

However, on the record before me, it would be speculative for me to conclude that there is areasonable expectation that treatment and supervision would adequately protect the public given the absence of remorse, the absence ofany evidence of Mr. Boalag’s genuine amenability to treatment for violent sexual behaviour and the absence of any meaningfulinformation about what motivates his conduct. [52] As discussed above, the trial judge considered all the evidence, including Dr. Gill’s opinion regarding Mr. Boalag’s prospectiverisk to the public and future treatment prospects. The judge did not accept Dr.

Gill’s opinion that Mr. Boalag satisfied the criteria forlong-term offender designation. The judge gave comprehensive reasons for concluding that an indeterminate sentence was the leastrestrictive sentencing option. Because the Boutilier decision was not available to the judge, she did not undertake the three-step analysisin the manner set out in Boutilier, at paragraph 70. However, I am satisfied that she conducted an assessment that is consistent with whatis required by the legislation and the principles set out in Boutilier. The result is consistent with the purpose of

section 753, which is theprotection of the public. The judge clearly was not satisfied that a lengthy term of imprisonment followed by a period of supervision inthe community would be appropriate for that purpose. [53] In the result, there is no basis on which to conclude that the trial judge erred in imposing an indeterminate sentence, which shedetermined to be the least restrictive measure in all the circumstances. Scope of Evidence [54] Mr. Boalag submits that the trial judge erred by considering evidence not relevant to assessing a pattern of behaviour and risk ofdangerousness.

Section 757 of the Criminal Code is of assistance in determining the scope of information that may be relevant in adangerous offender application. That

section provides: Without prejudice to the right of the offender to tender evidence as to their character and repute, if the court thinks fit, evidence ofcharacter and repute may be admitted (

a) on the question of whether the offender is or is not a dangerous offender or a long-term offender; and (

b) in connection with a sentence to be imposed or an order to be made under this Part. [55] In R. v. Jones, supra, Gonthier J. explained, at pages 289 to 290: [127] ...

As with all sentencing, both the public interest in safety and the general sentencing interest of developing the most appropriatepenalty for the particular offender dictate the greatest possible range of information on which to make an accurate evaluation of thedanger posed by the offender. [56] Having discussed the importance “that the court be given access to the widest possible range of information in order to determinewhether there is a serious risk to public safety” (page 290, paragraph 128), Gonthier J. cautioned, at page 292:

[131] That is not to say that no protection is afforded to the offender at the sentencing stage. As Lamer C.J. points out, this Court held inR. v. Gardiner, (SCC), [1982] 2 S.C.R. 368, that the Crown must prove disputed facts beyond a reasonable doubt duringa sentencing hearing. ... [57] In this case, the Crown adduced evidence of institutional records maintained at Her Majesty’s Penitentiary where Mr. Boalag hadbeen detained. In particular, at a disciplinary hearing, Mr.

Boalag was found guilty beyond a reasonable doubt of possessing contrabandin his cell (a lighter and a double-edged razor) (Corrections and Conditional Release Act, S.C. 1992, c. 20, section 43(3)). The Crownhad given notice to Mr. Boalag of its intention to adduce that evidence at the sentencing hearing. Possession, especially of the razor, wasrelevant to the trial judge’s assessment of Mr. Boalag’s dangerousness.

There is no basis on which to conclude that the judge erred inconsidering that evidence. [58] However, the Crown concedes that evidence, that a confidential source had told someone in authority that Mr. Boalag planned tocommit

an act of sexual violence against female prison staff, had not been proven beyond a reasonable doubt. Accordingly, it would bean error to rely on that evidence. [59] I am satisfied from reading the decision as a whole that, to the extent that such information may have been referenced by the trialjudge, it could not be said to have affected the outcome. The focus of the judge’s decision was Dr. Gill’s evidence, the nature of theoffences, and the barriers to Mr. Boalag’s possible rehabilitation, as discussed above. [60] Mr. Boalag also submits that Dr.

Gill’s report improperly referred to offences for which he had been acquitted. Dr. Gill testifiedthat charges, in addition to convictions, may be relevant to the psychopathy checklist she administered. The checklist provides anactuarial risk assessment giving guidance in determining an individual’s psychopathic or sociopathic traits. This was just one of theactuarial risk assessment tools employed by Dr. Gill. Mr. Boalag scored on the low range of the psychopathic checklist. [61] Similarly, the trial judge’s reference to the rejection of Mr. Boalag’s refugee claim could not be said to have affected theoutcome.

The information was presented to demonstrate Mr. Boalag’s untruthfulness. Mr. Boalag admitted to Dr. Gill that he lied toimmigration officials for fear that his application would be rejected. There was ample other evidence to support the trial judge’sconclusion that Mr. Boalag was manipulative and untruthful.

SUMMARY AND DISPOSITION [62] In

summary, while the trial judge erred in applying a less stringent standard than “substantially intractable” in designating Mr.Boalag as a dangerous offender, I am satisfied that applying the correct standard leads to the same conclusion, and that no substantialwrong or miscarriage of justice resulted. Further, there is no basis on which to conclude that the trial judge erred in imposing anindeterminate sentence. Finally, as discussed above, to the extent that the trial judge referenced evidence not properly before her, anyerror could not be said to have affected the outcome. [63] Accordingly, I would dismiss the appeal. Appeal dismissed.