2022 NBCA 34, 2022 NBCA 34

COURT OF APPEAL OF COUR D’APPEL DU NEW BRUNSWICK NOUVEAU-BRUNSWICK 54-21-CA CHRISTOPHER WATTS APPELLANT CHRISTOPHER WATTS APPELANT - and - - et - HER MAJESTY THE QUEEN RESPONDENT SA MAJESTÉ LA REINE INTIMÉE Watts v. R., 2022 NBCA 34 CORAM: The Honourable Chief Justice Richard The Honourable Justice Baird The Honourable Justice French Watts c.

R., 2022 NBCA 34 CORAM : l’honorable juge en chef Richard l’honorable juge Baird l’honorable juge French Appeal from a decision of the Court of Queen’s Bench February 26, 2021 (Conviction) March 26, 2021 (Sentence) Appel d’une décision de la Cour du Banc de la Reine : le 26 février 2021( déclaration de culpabilité) le 26 mars 2021 (détermination de la peine) History of Case: Historique de la cause : Decision under appeal: Unreported Décision frappée d’appel : inédite Preliminary or incidental proceedings: None Procédures préliminaires ou accessoires : aucune Appeal heard: January 12, 2022 Appel entendu : le 12 janvier 2022 Judgment rendered: July 7, 2022 Jugement rendu : le 7 juillet 2022

Reasons for judgment: The Honourable Justice French Concurred in by: The Honourable Chief Justice Richard The Honourable Justice Baird Counsel at hearing: For the appellant: Ben Reentovich For the respondent: Patrick McGuinty Motifs de jugement : l’honorable juge French Souscrivent aux motifs : l’honorable juge en chef Richard l’honorable juge Baird Avocats à l’audience : Pour l’appelant : Ben Reentovich Pour l’intimée : Patrick McGuinty THE COURT The appeal is dismissed. LA COUR L’appel est rejeté. The judgment of the Court was delivered by FRENCH, J.A. I.

Introduction [ 1 ] Christopher Watts was found guilty of failing to comply with a condition of a Long-Term Supervision Order (“LTSO”), contrary to s. 753.3(1) of the Criminal Code . The condition required he: Not be in the presence of any female children under the age of 18 unless supervised by a responsible adult who knows [his] criminal history and has been previously approved in writing by [his] parole supervisor. [ 2 ] At trial, the actus reus of the offence was not seriously challenged; Mr.

Watts was in the presence of B (who was under 18) while she was working at a station set up in the entrance vestibule of Indigo Books to greet customers (due to the COVID pandemic). The contentious issue was whether the Crown had proven Mr. Watts had the requisite mens rea . The judge found that, after having already entered the store, Mr. Watts deliberately returned to the vestibule to speak with B. On the second of his two return visits, he remained in her presence for approximately six minutes.

[ 3 ] In his appeal against conviction, Mr. Watts maintains the trial judge erred in finding the Crown established he knew there was or was reckless to there being a substantial risk of violating his LTSO and, despite that risk, he chose to engage with B. Mr. Watts also seeks leave to appeal his sentence (of two years, less time served). [ 4 ] I would dismiss his appeal against conviction and grant leave to appeal sentence, but I would dismiss this appeal as well. II. Background [ 5 ] B did not testify at trial. The absence of any evidence of their conversation is a focus of Mr.

Watts’ submissions on appeal against both conviction and sentence. Two other employees of Indigo did testify. One was the clerk who assisted Mr. Watts while he was in the store (“C”). She witnessed Mr. Watts speaking to B. The other was the store’s general manager. At the request of the Crown, and with the consent of Mr. Watts, there was a publication ban in relation to both B and C. [ 6 ] While the general manager was not at the store when Mr. Watts was there, she testified that, the following day, she received a request for the store’s surveillance videos during the time he was present.

The copy of the recordings that she obtained was admitted in evidence. The trial judge relied on them to make essential findings of fact, including in relation to B’s apparent youthfulness. [ 7 ] Since Mr. Watts maintains the video recordings do not permit the findings of fact made by the judge, some knowledge of their content is helpful to having an appreciation of the judge’s findings and Mr. Watts’ submissions. [ 8 ] This evidence includes two separate recordings of the same period of approximately 16 minutes on June 2, 2020 (from 5:53 p.m. to 6:10 p.m.) when Mr. Watts was in the store.

They are taken by cameras placed at different locations inside the store, and both record, from different angles, the area of the store that is immediately inside the door from its entrance vestibule, through which one must pass to enter from outside. [ 9 ] Only one of the recordings also shows the interior of the vestibule, where B was working, and which Mr. Watts entered four times. This was taken by a camera that is pointed directly at the entrance from the vestibule into the store. It includes a clear view of the interior of the vestibule itself (including through to the exterior of the building).

This is because the walls and doors of the vestibule (between the store’s interior and the building’s exterior) are entirely made of glass. [ 10 ] The general manager explained the store’s COVID protocols (at that time) included having an employee stationed in the vestibule (at a tall desk, akin to a lectern) to greet and keep a tally of the customers entering and exiting the store. This was to ensure the number of customers in the store did not exceed the permitted limit. The employee was also tasked with directing customers toward the hand sanitizer that was available at a separate table in the vestibule.

Staff were required to wear masks, but customers were not. All of this is clearly visible from the recording. [ 11 ] The trial judge relied primarily on this recording to assess B’s appearance and her interactions with Mr. Watts. It begins by showing B standing in the entrance that leads into the store from the vestibule; she is facing inside the store, toward the camera. She is alone in the vestibule for most of the recording’s 16 minutes, except when Mr. Watts is present, or when a few other customers pass through to enter or leave the store.

At no time was there a queue to enter the store or a reason for customers to remain in the vestibule. Most of the time, B may be seen passing her time alone by walking around the vestibule, standing in the entrance looking into the store (and toward the camera) or standing at the tally station. [ 12 ] After about a minute into the recording, Mr. Watts is observed entering the vestibule from outside. B is at the tally station (close to the exterior door), and Mr. Watts is directed to the sanitizer (on the table near the door into the store). There was no one else present, and Mr.

Watts passed through the vestibule without pausing, except to take hand sanitizer. This was also the case for the few customers who entered after him.

[ 13 ] C testified that she offered to assist Mr. Watts soon after he entered the store since he appeared to require help. He wanted a book that he thought Indigo was unlikely to have in stock, and C led him to one of the kiosks located throughout the store where customers may electronically search Indigo’s listings. Since they could not find the book in the system, they went to search the internet using the computer at the cash desk. [ 14 ] Their walk toward the cash desk led to Mr. Watts’ first return to the vestibule to speak with B. To get to the desk, they passed the entrance from the vestibule.

The video shows that, as they did so, Mr. Watts stopped, reversed direction, leaned into the vestibule, and spoke to B. After about 30 seconds, he continued to the cash desk. [ 15 ] The cash desk is not recorded by the camera that is pointed at the store’s entrance from the vestibule; however, the recording from the other camera provides a clear view of the entire length of the cash desk.

While this is undoubtedly this camera’s primary target, it also records the entrance from the vestibule; however, it does not provide a view into the vestibule since it views the entrance from the side, unlike the camera that faces the entrance. [ 16 ] C and Mr. Watts can be seen at the cash desk. After finding the book on the internet, C took him to a kiosk (one near the cash desk) and they located it on Indigo’s system. As Mr. Watt’s expected, the book was not in stock, and C placed an order for it using the kiosk’s system. To do so, C entered Mr. Watts’ name, phone number and email.

Identity was not admitted at trial, but it is not an issue on appeal. C printed the order and directed Mr. Watts to take it to the cash desk and pay the clerk stationed at the desk. Payment was necessary to complete the order. C returned to the floor of the store to assist other customers. [ 17 ] Mr. Watts’ second return to the vestibule to speak with B occurred before he paid for his order. As the recording shows, Mr. Watts is waiting for the sole clerk at the cash desk to finish serving the only customer who was ahead of him.

They are at the last of the long desk’s five terminals, the one farthest away from the store’s entrance and vestibule. Before the clerk finishes with the customer, Mr. Watts leaves his position in line and goes to the vestibule. There, he steps into its open door, leans against the door casing, and engages with B for almost six minutes. [ 18 ] C testified that she saw Mr. Watts speaking to B and she believed B appeared uncomfortable. She said she kept an eye on them as she moved around the store and, ultimately, she went to the cash desk, where she told the clerk stationed there that she thought Mr.

Watts was making B feel uncomfortable and she was going to relieve B from the tally station. Before C could do so, Mr. Watts returned to the cash desk and said to C, something to the effect: there you are, I need to pay. C testified that she told him again, as she previously had, he should pay her colleague at the cash desk. [ 19 ] Immediately after Mr. Watts returned to the cash desk, B entered the store and asked C if she could go wash her hands; C took over the tally station in the vestibule. [ 20 ] Mr.

Watts can be seen having a very brief interaction with the clerk at the cash desk and then leaving through the vestibule, without a pause. C’s evidence was that, as he walked by, he said a simple “bye” to her. [ 21 ] C testified that, after B returned to the vestibule from washing her hands, it appeared to her that B was still upset from her interaction with Mr. Watts. B and C’s conversation, including C’s animated reaction to what B is saying, is visible on the recording. [ 22 ] C also testified she found her conversation with Mr. Watts a little unnerving.

To the best of her recollection, the book he was looking for had a title that included words that were something like “criminal” and/or “handbook.” She explained that when she took his name and email address to place the order, she noted the email he offered was the same email address as the book’s author, although the author’s name was different. Mr. Watts asked C if she had noticed. Acknowledging she had, C asked if he had written the book.

After answering that it cost him a lot, which C took to be publishing fees, he said something to the effect: “don’t laugh,” I am running from the law or in trouble with the law, etc. She was not sure how to take his comments, but this experience made her wary. [ 23 ] The evidence at trial also included the testimony of three witnesses employed by Correctional Service Canada (CSC). They addressed the conditions of Mr. Watts’ LTSO and noted he is required to always have it with him. The conditions have been reviewed with Mr.

Watts on many occasions, the last of which was May 12, 2020, less than a month before he was with B.

[24] The trial judge found Mr. Watts knew the conditions of his LTSO and, despite B “clearly” being “a youthfulyoung lady,” he nevertheless “before paying for his book, made a deliberate decision to seek her out and talk to her.” She found hissecond return visit to the vestibule to chat with B was “not momentarily or a chance encounter.” In relation to Mr.

Watts’ disregard forthe risk of violating his order, the judge stated: When one observes the physical features and dress of this young lady, [B], at the entrance of the store, it requires the accused not actreckless or act so indifferent to the condition he was on. [B] had a mask on and from the Courts point of view, this required the accusedto heighten his awareness and his responsibility to this particular condition. This he did not do the Court finds.

His conduct was such thathe created as I earlier said, an unjustified risk of non-compliance by his actions at the front door, especially at 6:02-6:07 p.m. on June 2nd, 2020.

In conclusion, when I consider the evidence before me, assessed in the light of human experience, the evidence before me is such that itexcludes any other reasonable alternative that the accused was[,] without reasonable excuse, in the presence of a female child under theage – a female person under the age of 18 and he was not supervised by a responsible adult who knows the accused criminal history andhas been previously approved in writing by his Parole Officer. I can come to no other conclusion. [Emphasis added; Transcript ofreasons for decision, pp. 24-25, ll. 17-13] III. The Appeal Against Conviction [25] Mr.

Watts’ appeal against conviction submits the trial judge: 1) made a palpable and overriding error in finding [B] was clearly a “youthful young lady” and therefore under the age of 18; and 2) failed to consider relevant evidence that would allow for reasonable inferences other than guilt, which were significant towhether Mr. Watts was reckless in breaching his LTSO. [26] Neither of these grounds of appeal go to the actus reus of the offence; it is not disputed that Mr. Watts was inthe presence of a person under 18, contrary to a condition of his LTSO.

Both grounds challenge the judge’s determination that the Crownproved Mr. Watts had the requisite mens rea for a breach of the condition. Mr. Watts maintains the evidence does not support the findingthat he knew or was reckless to there being a substantial risk of violating the condition by being in B’s presence. This was his position attrial. Indeed, after the Crown closed its case, Mr. Watts moved for a directed verdict of not guilty, arguing there was insufficientevidence to establish he knew there was a substantial risk B was under 18. His motion was dismissed, and Mr.

Watts elected not to callany evidence and reiterated this position in his closing submissions. [27] In essence, Mr. Watts disputes that the evidence establishes that B presented as clearly youthful and, even if itdoes, this is still insufficient to support the inference he knew or was reckless in relation to there being a substantial risk of B being under18. A. The mens rea for breach of conditions [28] The applicable legal principles are not disputed.

The Supreme Court recently addressed the requisite intent foroffences arising from the breach of a condition, including the issues of risk of breach and recklessness. In R. v. Zora, 2020 SCC 14,[2020] S.C.J. No. 14 (QL), Martin J. stated, in relation to a breach contrary to s. 145(3): This second component [of the mens rea] can also be met by showing that the accused was reckless. Where, as here, a higherrequirement of “wilfulness” or “intent” is not indicated by the text or nature of an offence, recklessness is generally included insubjective mens rea (see Sault Ste. Marie, at pp. 1309-10; R. v.

Buzzanga (1979), (ON CA), 25 O.R. (2d) 705 (C.A.),at p. 71). Recklessness requires that accused persons be aware of the risk of not complying with their condition and proceed in theface of that risk (Josephie, at para. 30; Sansregret v. The Queen, (SCC), [1985] 1 S.C.R. 570, at p. 584). Knowledge ofrisk is key to recklessness. Therefore, the accused must still know of their bail conditions in order to be aware of any risk of non-compliance. The accused must also be aware of the risk that the factual circumstances requiring them to act (or refrain from acting) to

comply with their bail conditions could arise and continue with their course of conduct despite the risk. Recklessness is not, and shouldnot through misapplication, become the same as negligence. Recklessness has nothing to do with whether the accused ought tohave seen the risk in question, but whether they subjectively saw the risk and continued to act with disregard to the risk. Given that s. 145(3) can operate to criminalize otherwise lawful day-to-day behaviour, I would conclude that knowledge of any risk ofnon-compliance is not sufficient to establish that an accused was reckless.

Instead, the accused must be aware that theircontinued conduct creates a substantial and unjustified risk of non-compliance with their bail conditions. This Court has previouslyadopted this standard of risk in describing recklessness for certain offences (see R. v. Hamilton, 2005 SCC 47, [2005] 2 S.C.R. 432, atparas. 27-29; Leary v. The Queen, (SCC), [1978] 1 S.C.R. 29, at p. 35 (per Dickson J. dissenting, but not on this point)).The risk cannot be far-fetched, trivial, or de minimis.

The extent of the risk, as well as the nature of harm, the social value in therisk, and the ease with which the risk could be avoided, are all relevant considerations (Manning and Sankoff, at p. 229).Although the trial judge will assess whether a risk is unjustified based on the above considerations, because recklessness is asubjective standard, the focus must be on whether the accused was aware of the substantial risk they took and any of the factorsthat contribute to the risk being unjustified.

Requiring this standard of risk for recklessness is warranted because the offence may criminalize everyday activities and haveunforeseen consequences on people’s everyday lives. For example, in the context of a condition requiring an accused to answer the doorto police during their curfew, an accused would not be reckless if they took the minimal and justified risk of taking a short shower duringtheir curfew whereas they could be reckless if they disconnected their doorbell or wore earplugs around their house.

As with this Court’sdecision in Hamilton, at paras. 32-33, these reasons should not be interpreted as changing the general principles of recklessness as a faultelement set out in Sansregret, as my description of recklessness is specific to the offence under s. 145(3). Finally, I do not accept that a subjective fault requirement would make it too difficult for the Crown to prove an accused’s knowing orreckless failure to comply with bail conditions.

If the Crown chooses to lay a criminal charge under s. 145(3), when the possibility of abail variation and bail revocation also exist, it will do so only when it has a reasonable prospect of conviction based on a full appreciationof all constituent elements of the offence. Many crimes have a subjective fault standard and there are recognized ways to marshalsufficient evidence to convince a judge beyond a reasonable doubt that the accused acted knowingly or recklessly. Courts mayinfer subjective fault for failure to comply charges, whether or not the accused decides to testify.

After considering all theevidence, the trier of fact may be able to conclude beyond a reasonable doubt that the accused had the state of mind required forconviction based on the common sense inference that individuals “intend the natural and probable consequences of their actions”(R. v. Seymour, (SCC), [1996] 2 S.C.R. 252, at paras. 19 and 23; Docherty, at p. 958; Loutitt, at para. 18). As noted bythe intervener Attorney General of Ontario a subjective fault requirement has not prevented convictions on s. 145(3) charges in Ontario.

The Crown’s concern that accused persons may simply say they forgot about their bail conditions to escape criminal liability forbreaching their bail is addressed because judges “will no doubt act sensibly in assessing the authenticity of claims of forgotten courtdates and overlooked bail conditions.

Effect need not be given to forgetfulness merely because it has been asserted” (Withworth, at para.14). [Underlining and bold are mine; paras. 117-121] [29] Additionally, as referenced in Zora, the Supreme Court previously addressed the issue of recklessness inrelation to an accused’s awareness of the risk of violating a condition and the decision to proceed despite that risk, in Sansregret v. TheQueen, (SCC), [1985] 1 S.C.R. 570, [1985] S.C.J. No. 23 (QL): The concept of recklessness as a basis for criminal liability has been the subject of much discussion.

Negligence, the failure to takereasonable care, is a creature of the civil law and is not generally a concept having a place in determining criminal liability. Nevertheless,it is frequently confused with recklessness in the criminal sense and care should be taken to separate the two concepts. Negligence istested by the objective standard of the reasonable man. A departure from his accustomed sober behaviour by

an act or omission whichreveals less than reasonable care will involve liability at civil law but forms no basis for the imposition of criminal penalties. Inaccordance with well-established principles for the determination of criminal liability, recklessness, to form a part of the criminalmens rea, must have an element of the subjective. It is found in the attitude of one who, aware that there is danger that hisconduct could bring about the result prohibited by the criminal law, nevertheless persists, despite the risk. It is, in other words,the conduct of one who sees the risk and who takes the chance.

It is in this sense that the term ‘recklessness’ is used in the criminallaw and it is clearly distinct from the concept of civil negligence. [para. 16] [30] Commenting on how the apparent age of another person may factor into whether an accused “subjectively sawthe risk and continued to act with disregard to the risk,” Watt J.A. stated, in R. v. Alekozai, 2021 ONCA 633, [2021] O.J. No. 4755 (QL):

Recklessness is a state of mind. It is the state of mind of a person who is aware that their conduct might bring about the result prohibited by the criminal law, but persists in the conduct despite the risk. Recklessness is subjective. It entails an appreciation of some level of risk and the decision to take that risk. In most cases, an accused who never turns their mind to the age of the other person is properly characterized as reckless.

Reckless indifference also describes a subjective state of mind, a choice to treat age as irrelevant and to assume the risk associated with that choice [references omitted]. [Emphasis added; para. 42] B. Judge’s finding B was clearly a youthful young lady [ 31 ] I n his written submission, Mr. Watts contends the judge erred by f inding B was clearly a youthful young lady and “ therefore under the age of 18 .” This was not the finding made by the trial judge. While Mr.

Watts readily acknowledged this, his submissions frequently returned to characterizing the judge’s decision as inferring he knew (or should have been able to tell) B was under 18. Although likely done for the sake of simplicity, it must be made crystal clear Mr. Watts’ conviction was not based on the judge deciding that, by merely looking at B, he knew or should have known, she was under 18.

Describing her review of the video recordings , the judge stated: “ I clearly see a youthful young lady.” The judge’s analysis of this evidence permitted her to assess the ostensible risk of B being under 18; it did not lead to her determining B’s age. In sum, the judge did not decide Mr. Watts knew or should have known from B’s appearance that she was 17. [ 32 ] Mr. Watts contends the judge’s finding that B presents as clearly youthful reflects a palpable error in her assessment of the video evidence. He says B is not clearly visible and she is wearing a mask.

He also submits the judge’s reasons for her conclusion are devoid of any meaningful analysis of B’s appearance. [ 33 ] The judge’s reasons must be read and considered in the context of the entire record. This includes the reasons she gave for dismissing Mr. Watts’ motion for a directed verdict of not guilty. When she rendered that decision, the judge explained her close scrutiny of the recordings in relation to B’s appearance.

Additionally, as the judge’s final reasons for decision explain, her assessment did include consideration of B’s physical features and dress, and they address fully her reasons for concluding why B’s youthfulness was not diminished by her mask. [ 34 ] In my opinion, the recordings provide a solid foundation for the judge’s finding of B’s apparent youthfulness. She is plainly visible in the recording from the camera that is focused on the vestibule and she can be observed for almost the entirety of the recording’s approximately 16 minutes.

There is no palpable error in the judge’s assessment of this evidence, and I would dismiss this ground of appeal. C. Failure to consider evidence that would allow for reasonable inferences other than guilt [ 35 ] This ground of appeal contends the judge failed to consider evidence t hat would allow for reasonable inferences other than guil t. However, Mr. Watts’ submissions also included arguments in support of his opinion that the evidence was insufficient to infer he knew or was reckless to the risk of B being under 18. [ 36 ] Based on B’s apparent youthfulness, the judge found that Mr.

Watts knew there was or he was reckless to there being a substantial risk of B being under 18, and despite this he deliberately chose to seek her out and speak with her, for almost six minutes. The Judge stated: Let me explain. When I look at C-3 , I clearly see a youthful young lady. Even though she wore a mask at the doors entrance. One would expect in such circumstances that a person in the accused shoes, proceeding honestly, would have erred on the side of caution in interpreting what he could and could not do. Especially a young female who had a mask on.

He had no reasonable excuse to chat her up for the period of time noted, or hover around as he did. She was clearly not the salesperson assisting or helping him. Nor was she assigned to the payment center when he had to pay for the book he was ordering. Her only role at that time was asking customers to sanitize their hands as they entered. The Court finds the accused before paying for his book, made a deliberate decision to seek her out and talk to her. This is seen on C-3. There was no reasonable reason for him to do that as the store appeared not to be busy, there was only one person paying for a book when Mr.

Watts initially went from that kiosk where [C] was assisting to him to go into the line to pay for his book. We can clearly see on C-3 that he did not pay for that book right away at the payment area and consciously walks to the entrance of that store where [B] was and stayed in her presence for the times I earlier described. He did return after that over five minutes speaking to her and did pay for that book before ultimately leaving but by that time [C] was at the front the door and she recalls him saying bye.

[Emphasis added; Transcript of reasons for decision, pp. 23-24, ll. 13-17] [ 37 ] I will address first the assertion the judge failed to rule out “‘other reasonable possibilities’ which are inconsistent with guilt” ( R. v. Villaroman , 2016 SCC 33 , [2016] 1 S.C.R. 1000 , at para. 37 , citing R. v. Baigent , 2013 BCCA 28 , [2013] B.C.J. No. 283 (QL) , at para. 20 ), before she inferred Mr. Watts had the requisite mens rea. [ 38 ] Mr.

Watts maintains an innocent explanation for his actions, which may be reasonably inferred from the video evidence, was that he went to the vestibule to check on belongings in his convertible, which was parked outside. Another is that he was simply waiting for C to return to the cash desk, so he could pay for his book order. Such possibilities are speculative, and neither of the examples offered are supported by the evidence.

On the contrary, the video evidence suggests there is a preoccupation with B, on both his return visits to the vestibule, not a desire to look outside, beyond the vestibule, to check on his vehicle. Additionally, there is no indication from the video evidence that Mr. Watts was waiting for C so that he could pay. Moreover, it was C’s evidence that she directed him to go to the cash desk to pay for his book, to complete the order; consistent with this, he can be seen waiting in line to pay, before leaving to go straight to the vestibule, where he speaks to B.

There is undoubtedly a basis for the judge’s finding that Mr. Watts had no reason to leave the cash desk, go the store’s entrance, and remain with B for almost six minutes, other than to speak to B. There is simply no merit to this ground of appeal. [ 39 ] Nor do I accept Mr. Watts’ additional submission, that the evidence was insufficient for the judge to infer he knew or was reckless to the risk of B being under 18. He maintains the mere possibility of B being under 18 is insufficient, especially when considered in the context of his justifiably going to the store with the aim of merely ordering a book.

Although B was under 18, he contends she was masked and there was no evidence to indicate it was apparent she could be under 18. Extending this position further, in his written submission, Mr. Watts emphasizes that he is not barred from being in the presence of “anyone who looks like they might be close to 18, but specifically someone under 18.” This last argument repeats the error of viewing the mens rea as requiring that he knew B was under 18; this is not correct, it relates to the risk of her being under 18. [ 40 ] The assertion that the video evidence is insufficient to infer Mr.

Watts’ knowledge of or recklessness in relation to the risk of B being under 18, includes a repetition of his assertion it was not possible to assess or determine the apparent risk because B was wearing a mask. This argument is addressed above. As noted, the judge found B was clearly youthful, despite the mask, and she concluded the mask made Mr. Watts’ decision to speak with B even more reckless, not less, as he argues. There is no error in the judge’s determination of B’s youthfulness, even with a mask, or her view that the mask elevated the risk of violating Mr. Watts’ condition. [ 41 ] Mr.

Watts’ final submission regarding what he describes as the inadequacy of the video evidence relates to the lack of context to his interaction with B since there is no audio to the recordings and B did not testify. He says such evidence could have indicated the apparent risk of B being under 18 was lower than appeared from the video alone. He argues she may have said that, for example, she was 25 years of age, was attending university or had worked at the store for, say, five years. Admittedly, evidence of B’s voice or what she said to Mr. Watts could bear on the risk of violating the condition; however, Mr.

Watts’ submission invites speculation about B’s voice or what she might have said that could reduce the apparent risk of her being under 18. The absence of such context is not a reason to speculate; it is reason to examine this evidence carefully and to be cautious in assessing the ostensible risk of B being under 18.

The judge explained how she carefully scrutinized this evidence and there is nothing in the record to suggest she did otherwise or that her finding is not justifiable. [ 42 ] In my opinion, there is no error in the judge’s determination that there was a patent and substantial risk of B being under 18. This is justifiable based on the evidence, including B’s appearance from the video recordings. I do not accept that the possibility of B being under 18 was not high enough to alert Mr. Watts to a risk of violating his condition.

While the judge did not find B appeared to be “obviously” or “very likely” under 18, or something to that effect, the judge concluded the possibility of B being under 18 posed a substantial risk of his violating the condition. In the circumstances, more precision or parsing of the ostensible risk respecting B’s age was not required. I would dismiss this ground of appeal. IV. The Appeal Against Sentence [ 43 ] Mr.

Watts’ Amended Notice of Appeal advances a single ground of appeal respecting his two-year sentence; he says it is “demonstrably unfit.” [ 44 ] His written and oral submissions weave in the assertion the sentence is the product of an error in law and/or principle since, in his opinion, the judge considered factors from a 2020 Parole Board of Canada decision that “were not properly before

her, or [she] misapprehended other factors.” To be clear, Mr. Watts acknowledges he did not appeal the decision to admit either the Board’s 2015 or 2020 decisions relating to Mr. Watts’ LTSO. He claims the judge erred by: 1) considering the part of the 2020 Parole Board decision that described what B purportedly told the police about her conversation with Mr. Watts, when B did not testify at the trial or on sentencing; 2) treating the numerous suspensions of Mr.

Watts’ LTSO (summarized in the 2020 Board decision) as though such “administrative” suspensions were equivalent to prior convictions for a breach under s. 753.3(1) ; and 3) relying on the Parole Board’s determination (in its 2020 decision) that Mr. Watts’ history under his LTSO is reflective of a persistent disregard for his conditions . [ 45 ] I do not agree the sentence imposed is demonstrability unfit. [ 46 ] However, I will address first Mr. Watts’ submissions regarding the judge’s use of the 2020 Board decision.

Although his appeal does not challenge the admission of the Board’s decisions, his submission raises issues regarding the relevance of the Board decisions on sentencing for breach of LTSO conditions and disputes of facts over information in such decisions. As noted, two of the three alleged errors contend the judge improperly considered the Board’s review and assessment of Mr. Watts’ history of previous suspensions. At the sentencing hearing, Mr.

Watts admitted he had been previously suspended the number of times indicated in the 2020 decision; however, he did not acknowledge their validity since he did not admit the underlying circumstances upon which they were based. More will be said about this below. A.

The use of the 2020 Parole Board decision [ 47 ] While the principles applicable to sentencing generally, including those set out at ss. 718.1 and 718.2 of the Code, govern the sentencing of a long-term offender for breach of a condition of an LTSO, contrary to s. 753.3, “[i]n order to weigh the various principles and objectives of sentencing and reach a conclusion regarding a fit sentence, it is important to understand the long- term offender regime” ( R. v. Ipeelee , 2012 SCC 13 , [2012] 1 S.C.R. 433 , at para 40 ).

(1) The LTSO regime and the Parole Board’s decisions [ 48 ] The current provisions of the Code respecting dangerous and long-term offenders evolved from provisions added in 1947 to permit indeterminate detention of “habitual criminals.” Thirty years later, the Code was further amended to provide for, inter alia , the indeterminate detention of “dangerous offenders.” In 1997, the provision was further amended, to establish the current long-term offender regime, which filled a gap by providing a means for reintegrating long-term offenders into the community and managing their risk of reoffending, for a transitional period of up to 10 years following release from prison (

An Act to amend the Criminal Code (high risk offenders), the Corrections and Conditional Release Act , the Criminal Records Act , the Prisons and Reformatories Act and the Department of the Solicitor General Act , S.C. 1997, c. 17). [ 49 ] An offender may be found to be a “long-term offender,” under s. 753.1(1), where the offender is sentenced to two or more years in prison (for the predicate offence) and the court is satisfied “there is a substantial risk that the offender will reoffend,” and “there is a reasonable possibility of eventual control of the risk in the community.” [ 50 ] In this case, Mr.

Watts was found to be a long-term offender in 2003 by the Ontario Superior Court of Justice, which sentenced him to 17 years in prison, less time served, for manslaughter, sexual interference, and sexual assault in relation to a female minor (of 13). The finding undoubtedly also recognized his 1989 conviction for forcibly confining another female minor. He would be released at the end of his 12 years in prison (from the time of sentencing) under an LTSO for the statutory maximum period of 10 years.

[ 51 ] Key elements of the regime are prescribed by the Corrections and Conditional Release Act , S.C. 1992, c. 20 (“ CCRA ”), which provides for the release of the long-term offender from prison under an LTSO.

The long-term offender is subject to the mandatory conditions, prescribed in s. 161(1) of the Corrections and Conditional Release Regulation , SOR/92-620 , and any additional conditions determined by the Parole Board of Canada to be reasonable and necessary to manage the offender’s risk to the community, assist in the offender’s gradual reintegration into the community and prevent the offender from returning to criminal activity. [ 52 ] In this case, the 2015 decision considered by the judge was made by the Parole Board in contemplation of Mr. Watts’ release from prison in November 2015.

It was in response to CSC’s request to impose additional conditions to his LTSO, which the Board approved and imposed. The condition at issue in this case has been part of Mr. Watts’ LTSO from the time of his release. [ 53 ] A long-term offender’s supervision in the community under an LTSO may be suspended when an offender “breaches a condition” of the LTSO or where a designated person “is satisfied that [a suspension] is necessary and reasonable […] in order to prevent a breach of any condition […] or to protect society” ( CCRA , s. 135.1 ): Suspension of long-term supervision

(1) A member of the Board or a person designated, by name or by position, by the Chairperson of the Board or by the Commissioner, when an offender breaches a condition of a long-term supervision order or a condition referred to in

section 134.1 or when the member or person is satisfied that it is necessary and reasonable to suspend the long-term supervision in order to prevent a breach of any condition of it or to protect society , may, by warrant, (

a) suspend the long-term supervision; (

b) authorize the apprehension of the offender; and (

c) authorize the commitment of the offender to a community-based residential facility or a mental health facility or, where the member or person is satisfied that commitment to custody is necessary, to custody until the suspension is cancelled, new conditions for the long-term supervision have been established or the offender is charged with an offence under

section 753.3 of the Criminal Code . Limit on commitment

(2) The period of the commitment of the offender mentioned in paragraph (1)(

c) must not exceed ninety days. [Emphasis added] [ 54 ] A suspension may be served in a federal penitentiary, for up to 90 days, unless, upon a review by the Parole Board, it is either cancelled or, if it appears to the Board that a condition has been breached, the Board recommends the long-term offender be charged with an offence under s. 753.3 .

Section 135.1(6) of the CCRA provides: Review by Board

(6) The Board shall , on the referral to it of the case of an offender, review the case and, before the end of the period referred to in subsection (2), (

a) cancel the suspension , if the Board is satisfied that, in view of the offender’s behaviour while being supervised, the resumption of long-term supervision would not constitute a substantial risk to society by reason of the offender reoffending before the expiration of the period of long-term supervision ; or

(b) [Repealed, 2012, c. 1, s. 90 ] (

c) where the Board is satisfied that no appropriate program of supervision can be established that would adequately protect society from the risk of the offender reoffending, and that it appears that a breach has occurred , recommend that an information be laid charging the offender with an offence under

section 753.3 of the Criminal Code . [Emphasis added] [ 55 ] In this case, the 2020 Parole Board decision was the most recent of many decisions that resulted from the Board reviewing a suspension of Mr. Watts’ release in the community under his LTSO. As will be seen, this occurred nine times, the June 2020 decision being the tenth, between November 2015 and June 2020. The 2020 decision was a review of Mr. Watts’ suspension for being in B’s presence. As part of the Board’s review (under s. 135.1(6) of the CCRA ), it referred to the prior Board decisions that had reviewed Mr. Watts’ earlier suspensions.

The Board’s account of its nine prior decisions may be summarized as follows: 1. December 2015 – suspended: CSC claimed Mr. Watts was accessing dating sites and possessing “concerning” items. The Board review recommended charges for breach of his LTSO conditions under s. 753.3 and added new conditions to the LTSO. The recommended charges were not approved, and Mr. Watts returned to the community in March 2016 . 2. March 2016 – suspended: CSC claimed Mr. Watts was using a computer to view photos of women.

The Board recommended charges for breach of LTSO conditions and added new conditions to LTSO respecting internet use. The charges were not approved, and Mr. Watts returned to the community in June 2016 . 3. July 2016 – suspended: CSC claimed Mr. Watts had a cell phone plan with data. The Board cancelled suspension and issued a reprimand, and Mr. Watts returned to the community in September 2016 . 4. October/November 2016 – suspended: CSC claimed Mr.

Watts attended a store that catered to young women, possessed a DVD with inappropriate scenes, accessed the internet, and possessed materials regarding websites, including dating apps and hacking sites. The Board cancelled the suspension and issued a reprimand, and Mr. Watts returned to the community in January 2017 . 5. January/February 2017 – suspended: CSC claimed Mr.

Watts attended a massage parlour, failed to turn in a DVD that contained images of nude young women, possessed a story about a young woman who was kidnapped, and possessed a box cutter and information regarding the victim of the offence for which he was sentenced (manslaughter, sexual interference, and sexual assault). The Board recommended charges for breach of LTSO conditions. The charges were not pursued, and Mr. Watts returned to the community in April 2017 . 6. May 2017 – suspended: CSC claimed Mr.

Watts threatened staff, possessed a photo of a female minor and possessed a manual for a recording device and a business card for a spy equipment store. The Board recommended charges for breach of LTSO conditions. The recommended charges were not pursued. The Board added a condition to Mr. Watts’ LTSO prohibiting access to pornography and revised the condition prohibiting possession of flash drives. Mr. Watts returned to the community in August 2017 . 7. October 2017 – suspended: CSC claimed Mr.

Watts possessed a pornographic picture, accessed social media and messaged a person who he was prohibited from contacting. The Board added a condition to the LTSO prohibiting contact with persons listed in Superior Court of Justice Order dated 2003/11/24 (the Order made on the date Mr. Watts was sentenced for manslaughter, sexual interference, and sexual assault). The Board recommended that charges be laid, and the decision indicates Mr. Watts was charged, pled guilty and was sentenced to time served. As noted, at sentencing in this case, Mr. Watts admitted to pleading guilty to two violations of s. 753.3(1) .

This occurred in Halifax, Nova Scotia on February 8, 2019, and, after spending 387 days in pre-sentence custody, he was released with the time served and was returned to the community in February 2019 . 8. May 2019 – suspended: CSC claimed Mr. Watts attended a local fair where female children were present and possessed numerous print photos of a young female in a bra and underwear. The Board recommended he be charged with breach of the LTSO and added a condition to LTSO prohibiting Mr. Watts from being where children congregate; it also increased the residency condition for another year. Mr.

Watts returned to the community in August 2019 .

9. October 2019 – suspended: CSC claimed Mr. Watts was in the community with another community-based residential facility resident and entered a children’s toy store. After the suspension, CSC also claimed to have found Mr. Watts in possession of a news

article with a photo of the victim of the “current” offence (manslaughter, sexual interference, and sexual assault). The Board recommended charges for breach of LTSO under s. 753.3 . [ 56 ] It is not clear from the Board’s decision what occurred in response to its recommendation that Mr. Watts be charged in relation to the October 2019 suspension, and it is also not clear when he was returned to the community; however, it appears he was back in the community by January 2020. [ 57 ] The 2020 Board decision, which reviewed Mr.

Watts’ suspension because of his contact with B, refers to the Board also having been made aware of two earlier incidents, neither of which lead to a suspension. In April 2020, CSC indicated Mr. Watts had purchased a motorcycle but would not disclose the source of his funds and, in May 2020, an off-duty police officer witnessed him leaving a grocery store and then re-entering after two young females had entered. [ 58 ] The Board’s review resulted in it deciding that no appropriate program of supervision could be established that would adequately protect society from the risk of Mr.

Watts reoffending, and it appeared a breach of his LTSO conditions occurred. As a result, it recommended, as contemplated by s. 135.1(6) , he be charged under s. 753.3 .

(2) Sentencing for breach of condition, contrary to s. 753.3 [ 59 ] The maximum sentence for a conviction under s. 753.3(1) is a term of imprisonment of up to 10 years. I n Ipeelee , t he Supreme Court explained that an assessment of the gravity of the offence includes consideration of ho w the breached condition is tied to managing the long-term offender's risk of reoffending : […] As with any sentencing decision, the relative weight to be accorded to each sentencing principle or objective will vary depending on the circumstances of the particular offence.

In all instances, the sentence must be proportionate to both the gravity of the offence and the degree of responsibility of the offender . It would be imprudent to attempt to determine in the abstract the gravity of the offence of breaching a condition of an LTSO. The severity of a given breach will ultimately depend on all of the circumstances, including the nature of the condition breached, how that condition is tied to managing the particular offender’s risk of reoffence, and the circumstances of the breach .

However, a few comments may be instructive. […] It is the sentencing judge’s duty to determine, within this open range of sentencing options, which sentence will be proportionate to both the gravity of the offence and the degree of responsibility of the offender. The severity of a particular breach of an LTSO will depend, in large part, on the circumstances of the breach, the nature of the condition breached, and the role that condition plays in managing the offender's risk of reoffence in the community. This requires a contextual analysis . As Smith J.A. states in R. v.

Deacon , 2004 BCCA 78 , 193 B.C.A.C. 228 , at para. 51 , “ the gravity of an offence under s. 753.3 must be measured with reference not only to the conduct that gave rise to the offence, but also with regard to what it portends in light of the offender’s entire history of criminal conduct” . Breach of an LTSO is not subject to a distinct sentencing regime or system.

In any given case, the best guides for determining a fit sentence are the well-established principles and objectives of sentencing set out in the Criminal Code . [Emphasis added; paras. 51-52, 55] [ 60 ] The relevance of such information on sentencing for breach of an LTSO condition is readily apparent and it dovetails with the necessity of generally having a broad range of information about an offender on sentencing.

Indeed, speaking to the reason for relaxed rules of evidence at sentencing hearings, the Supreme Court stated this was “explained by the fact that the judge must determine the appropriate sentence for the accused, and to do so must have as much information as possible about him ” ( R. v. Lévesque , 2000 SCC 47 , [2000] 2 S.C.R. 487 , emphasis added, at para. 30). [ 61 ] In R. v. Lévesque , the Supreme Court emphasized the importance of opinion evidence in crafting an appropriate

sentence, including from reports by correctional service officers: Another specific characteristic of the sentencing process that should be emphasized is the importance of opinion evidence. At the sentencing stage, judges must often consider reports prepared by probation officers, correctional service officers, psychologists or psychiatrists reporting their opinions concerning the personality of the accused, and his or her chances of rehabilitation and risk of reoffending .

As I have already noted, the probative value to be assigned to an expert opinion is directly related to the amount and quality of admissible evidence on which it relies: Lavallee , supra, at p. 897. Accordingly, before admitting new opinion evidence on appeal, it may be necessary to determine the basis of that opinion (for example, the version of events relied on by the expert, the documents he or she consulted, and so forth) and to establish whether the facts on which the opinion is based have been proven and are credible. [Emphasis added; para. 31] [ 62 ] Evidence relevant to sentencing may come in many forms.

One of the most common is a pre-sentence report (s. 721(1)). Additionally, where sentencing relates to the breach of an LTSO, it is not unusual for the court to be provided with Parole Board decisions that relate to the imposition of LTSO conditions and/or address the offender’s management and prior suspension(

s) under the LTSO. In either case, such decisions contain relevant information regarding the relationship between the underlying risk of the offender reoffending and the condition breached, as well as the success of managing the offender’s risk in the community under the LTSO. Such was the case in Ipeelee . [ 63 ] Similarly, i n R. v. Larocque , 2012 BCCA 216 , [2012] B.C.J. No. 979 (QL), the Court of Appeal reviewed excerpts from Parole Board decisions that had been considered by the sentencing judge, some of which did not result in a charge or conviction.

The appellant was a long-term offender seeking leave to appeal his sentence of 30 months’ imprisonment for two counts of breaching his LTSO conditions. He pled guilty to those breaches.

Although the Court of Appeal did not discuss issues respecting admissibility or use of this evidence, it was relevant on sentencing and the Court noted it provided ample support for the judge’s finding that the offender’s prospects for rehabilitation under community supervision were “bleak” and that he posed a high-risk of re-offending, sexually and violently (at para. 41). [ 64 ] Despite the relevance of such evidence on sentencing, the use of Parole Board decisions is not expressly addressed in the Code , as is the case for pre-sentence reports (under s. 721, see also s. 724(3)(b)) .

As will be seen, in this case, the judge took an approach to the Parole Board’s decisions that is similar to the common use of pre-sentence reports.

(3) The use of the 2015 and 2020 Parole Board Decisions [ 65 ] At Mr. Watts’ sentencing hearing, there was no presentence report, as he asked to be sentenced without one. The Crown tendered his criminal record and the 2015 and 2020 Parole Board decisions. While the Crown had previously also provided the court and Mr. Watts with psychological and/or psychiatric report(

s) from 2014 (the year before Mr. Watts’ release on the LTSO), the Crown advised it would not be relying on this evidence. Also, and significant to the first of the three alleged errors raised by Mr. Watts, the Crown advised it would not be relying on any reference in the 2020 decision to the content of Mr. Watts’ conversation with B. The decision includes a reference to what B is reported to have told the police about Mr. Watts’ comments to her. While it is not clear if these concessions resulted from objections raised by Mr.

Watts prior to the hearing, it would not be surprising if that was the case. [ 66 ] In any event, Mr. Watts objected to the admission of his criminal record and the Parole Board decisions. His counsel indicated the record, which contains numerous offences going back to 1977, was not accurate. The Crown acknowledged its last entry, a conviction in February 2019, mistakenly indicated Mr. Watts had been convicted for disobeying a court order, under s. 127(1); in fact, as the Crown explained, Mr. Watts pled guilty to two breaches of his LTSO, contrary to s. 753.3(1) . Mr.

Watts agreed the record should show these two convictions. The record was admitted as amended. These two convictions were an aggravating factor on sentencing for the same offence. [ 67 ] This initial objection to the Board decisions was based on Mr.

Watts’ claim that they contained “prejudicial” information and “errors.” While indicating he had concerns regarding the information provided relating to the predicate offences to the LTSO (manslaughter, sexual interference, and sexual assault), he admitted that “some” of the summarized history and background “certainly would be an accurate representation,” and that he has had a “problematic history.” [ 68 ] The judge raised whether sentencing ought to be adjourned to permit viva voce evidence respecting any disputed information in the Board decisions; however, it was apparent to the judge that neither party wanted sentencing to be adjourned.

[ 69 ] The Crown reiterated it sought to rely on the Parole Board’s decisions to establish only the facts relevant to the risk that gave rise to the LTSO, the reasons for the conditions imposed, including the additional special conditions that were added to curtail high risk behavior, and the suspensions of Mr. Watts’ release in the community since 2015. [ 70 ] Mr. Watts admitted his release under the LTSO had been suspended on the numerous occasions identified in the Boards’ 2020 decision; however, his counsel explained that Mr.

Watts “ would not necessarily accept the validity of the suspensions or the allegations underlining ” them (sentencing transcript, p. 10, ll. 8-10). While emphasizing that, without his agreement or admission, the Crown bore the burden of proving disputed facts, Mr. Watts’ counsel also stated it was not his position the sentencing hearing should be adjourned and he argued it was not necessary for the court to have evidence respecting such facts or to hear viva voce evidence to determine the validity of the facts on which the suspensions were based. Rather, Mr.

Watts argued that his criminal record alone provided the court with all the context necessary to sentence him.

In other words, it was his position that the court did not require the benefit of the facts respecting the risk that gave rise to the LTSO, its connection to the condition breached by being in B’s presence and/or the management of the risk since his release under the LTSO. [ 71 ] Needless to say, it is not apparent from the record whether his position at this point was tactical, and advanced in pursuit only of the objective of having the judge sentence him without any such evidence – and not to force the Crown to prove the facts sought to be relied upon. However, as will be seen, Mr.

Watts would not later identify facts in the decision that he disputed. [ 72 ] The exchange of the Crown and Mr. Watts’ positions led to an adjournment to permit Mr. Watts to identify any disputed parts of the Board’s decisions and advise the Crown, as the judge noted is commonly done in relation to disputed parts of a pre- sentence report. When the hearing resumed, defence counsel advised the judge that the effort to identify the disputed parts, if any, and advise the Crown had not yet occurred.

Defence counsel would have had to notify the Crown of any disputed parts so the Crown could decide to either advise the court to disregard the disputed facts or that it would be necessary for the Crown to call evidence to prove them. [ 73 ] At this point, the judge admitted Mr. Watts’ criminal record and the Board’s decisions, and advised Mr. Watts that he could identify in his submissions any paragraphs or pages of the decisions he disputed. In doing so, the judge noted that neither of the decisions had been previously challenged by Mr. Watts. Given her direction for Mr.

Watts to identify parts of the decisions that he disputed, I do not view this as an indication that she had decided at this point that all information in the decisions could be relied upon as undisputed. Additionally, in recognition of having been advised that the Crown would not be relying on the reference in the 2020 decision to what B is alleged to have told the police about her conversation with Mr. Watts, the judge struck that paragraph from the 2020 decision. [ 74 ] Mr.

Watts’ subsequent submissions did not make any reference to the facts addressed in the 2020 decision that formed the basis for his many suspensions. In fact, he did not identify a dispute with any of the facts outlined in either decision. This said, Mr. Watts did speak generally about his suspensions and his “war with CSC” when he was given a chance to speak after Mr. Bryant. [ 75 ] Although Mr.

Watts did not appeal or challenge the judge’s decision to accept either the 2015 or 2020 Parole Board decisions, he argues before us that he did not admit the Board’s description of the basis for CSC suspending him and, as a result, those facts should be treated as disputed and not proved. In my opinion, this is an oversimplification of his position on sentencing. [ 76 ] Mr.

Watts’ initial objection to the Board’s decisions did not identify what was disputed regarding its account of CSC’s basis for previously suspending him and he said nothing further about such facts after having been invited by the judge to do so.

Although, in argument before this Court, he characterized his relationship with CSC officials as challenging, he did not clarify what was disputed in relation to his suspensions, including whether the alleged dispute applied to all ten suspensions, even those that resulted in his guilty pleas (in 2019) or his conviction in this case. [ 77 ] The obligations and powers of a sentencing judge and the evidentiary requirements respecting disputed facts are well known.

Section s. 723:

Submissions on facts 723

(1) Before determining the sentence, a court shall give the prosecutor and the offender an opportunity to make submissions with respect to any facts relevant to the sentence to be imposed. Submission of evidence A.

(2) The court shall hear any relevant evidence presented by the prosecutor or the offender. Production of evidence

(3) The court may , on its own motion, after hearing argument from the prosecutor and the offender , require the production of evidence that would assist it in determining the appropriate sentence . Compel appearance

(4) Where it is necessary in the interests of justice, the court may, after consulting the parties, compel the appearance of any person who is a compellable witness to assist the court in determining the appropriate sentence. Observations des parties 723

(1) Avant de déterminer la peine, le tribunal donne aux parties — le délinquant ou son avocat, selon le cas, et le poursuivant — la possibilité de lui présenter des observations sur tous faits pertinents liés à la détermination de la peine. Éléments de preuve

(2) Le tribunal prend connaissance des éléments de preuve pertinents que lui présentent les parties. Production d’éléments de preuve

(3) Le tribunal peut exiger d’office, après avoir entendu le poursuivant et le délinquant , la présentation des éléments de preuve qui pourront l’aider à déterminer la peine . Comparution

(4) Le tribunal peut exiger, dans l’intérêt de la justice et après avoir consulté les parties, la comparution de toute personne contraignable pouvant lui fournir des renseignements utiles à la détermination de la peine. [ 78 ] A sentencing judge is entitled to “accept as proved any information disclosed at the trial or at the sentencing proceedings and any facts agreed on by the prosecutor and the offender” (s. 724(1)); however, as was highlighted by Mr. Watts at the beginning of the sentencing hearing, “[w]here there is a dispute with respect to any fact that is relevant to the determination of a sentence” (s. 724(3)), the party wishing to rely on it must prove it:

Disputed facts

(3) Where there is a dispute with respect toany fact that is relevant to the determinationof a sentence, (

a) the court shall request that evidence beadduced as to the existence of the fact unlessthe court is satisfied that sufficient evidencewas adduced at the trial; (

b) the party wishing to rely on a relevantfact, including a fact contained in apresentence report, has the burden of provingit; (

c) either party may cross-examine anywitness called by the other party; (

d) subject to paragraph (e), the court must besatisfied on a balance of probabilities of theexistence of the disputed fact before relyingon it in determining the sentence; and (

e) the prosecutor must establish, by proofbeyond a reasonable doubt, the existence ofany aggravating fact or any previousconviction by the offender. [Emphasisadded.] Faits contestés (3) Les règles suivantes s’appliquentlorsqu’un fait pertinent est contesté :

a) sauf s’il est convaincu que des éléments depreuve suffisants ont été présentés lors duprocès, le tribunal exige que le fait soit établien preuve;

b) la

partie qui a l’intention de se fonder surle fait pertinent, notamment si celui-ci figureau rapport présentenciel, a la charge del’établir en preuve;

c) chaque

partie est autorisée à contre-interroger les témoins convoqués par l’autrepartie;

d) sous réserve de l’alinéa e), le tribunal doitêtre convaincu, par une preuveprépondérante, de l’existence du fait contestésur lequel il se fonde pour déterminer lapeine;

e) le poursuivant est tenu de prouver hors detout doute raisonnable tout fait aggravant outoute condamnation antérieure du délinquant. [Le soulignement est de moi.] [79] Commenting on facts contained in a CSC report that a sentencing judge ordered be produced, in response to thedefendant relying on parts of the report, Bennett J.A. also addressed the importance of clearly identifying disputed facts, in R. v. Ladue,2011 BCCA 101, [2011] B.C.J. No. 366 (QL), affirmed on appeal in Ipeelee (on diferent grounds).

He stated: Here, the sentencing judge required the production of the CSC reports, as she was entitled to do pursuant to s. 723(3). Given that defencecounsel was reading from them in a somewhat haphazard manner, this was a more than reasonable request. Mr. Ladue submits that the judge should not have considered the parts of the reports which he did not rely upon as they were disputed,and the Crown bore the onus of proving the contents. There is no question that the Crown has the obligation to prove any aggravating fact beyond a reasonable doubt: see s. 724(3)(

e) and R. v.Gardiner, (SCC), [1982] 2 S.C.R. 368. Any party wishing to rely on a relevant fact, including a fact in a pre-sentencereport, has the burden of proving the fact: see s. 724(3)(b). However, these provisions do not come into play until the fact is disputed.What constitutes a dispute may differ depending on the circumstances, but any dispute over the facts presented on a sentencinghearing must be clear and unequivocal: see R. v. Ford, 2010 BCCA 105, 254 C.C.C. (3d) 442; and R. v. Hodwitz, [1985] B.C.J. No.1676 (C.A.). [Emphasis added; paras. 29-31]

[ 80 ] Certainly, it would have been preferable for Mr. Watts to have been permitted to continue his effort to identify the facts disputed, if any, and advise the Crown, so the path forward could have been clearly identified. [ 81 ] However, I do not accept the appeal should be addressed as though Mr. Watts disputed the Board’s description of the basis for CSC suspending him and, as a result, those facts were not proved. [ 82 ] The judge’s decision to accept the Parole Board decisions was not appealed and Mr. Watts admitted he was suspended as provided in the 2020 decision.

Despite having initially stated he did “not necessarily accept the validity of the suspensions or the allegations underlining” them, Mr. Watts maintained an adjournment was not required and when the decisions were made exhibits – he was invited to identify the parts of them that he disputed; he did not do so. Undoubtedly, had he identified any disputed facts, the judge would have heard the parties on whether such facts were to be disregarded or the Crown intended to prove them.

Of course the judge would have the power under s. 723(3) to require evidence that would “assist it in determining the appropriate sentence.” [ 83 ] There was no clarity as to whether Mr. Watts intended at the sentencing hearing to dispute parts of the decisions, let alone which facts, if any, that he disputed. Against this background it is not surprising Mr. Watts did not appeal the judge’s decision to admit the Board’s decisions, albeit subject to the ability to dispute facts.

Further, in light of the fact he did not identify any disputed facts, it now appears his initial objection to the decisions, which was advanced as part of his position that the judge should sentence him without any facts or evidence of his LTSO or his history since his release, was tactical. To now assert that it was an error for the judge to consider such evidence is, at best, unsustainable on appeal.

(4) Mr. Watts’ submission the sentencing judge erred in her use of the 2020 decision [ 84 ] Mr. Watts’s appeal focuses solely on the 2020 Board’s decision which reviewed the circumstances that gave rise to his June 2020 suspension. The Board concluded that “it appeared” he breached the condition, and it recommend charges. It did so in light of Mr. Watts’ past conduct under the LTSO: The Board has assessed your case in accordance with the criteria associated with offenders on long-term supervision.

The Board sees your current behaviour as a continuation of your lackadaisical attitude towards adhering to your special conditions. You do not seem to take these seriously, as evidenced by previous breaches. You continuously place yourself in situations that are in direct violation of these special conditions. In doing so, you place yourself in situations that substantially increase your risk of re-offending. In the latest situation, your presence with a female under the age of 18 was not coincidental . You took the opportunity to make comments to her that had sexual connotations and were inappropriate.

Given the dynamics of your offenses and your preference for young females, such behaviour is extremely concerning. In consideration of these factors and your high risk for sexual recidivism, if such a situation had gone unnoticed or unaddressed, the Board believes you could easily have returned to offending. The special condition to not be in the presence of females under the age of 18 was imposed specifically to protect against such high risk behaviour on your part.

That is what makes this situation so serious. […] Given the factors that lead to your current suspension, the Board concludes that resuming your LTSO would constitute a substantial risk of reoffending. The Board notes that you continue to demonstrate the inability or unwillingness to adhere to the conditions of your LTSO. You continue to engage in high risk behaviours that have been precursors to previous offending. Therefore, it is the Board’s conclusion that currently [there] are no supervision programs that could adequately manage your risk in the community.

Based on this analysis, the Board recommends that an information be laid under

section 753.3 of the Criminal Code […]. [Emphasis added.] [ 85 ] As noted, Mr. Watts claims the judge erroneously: (1) considered what B told the police about Mr. Watts’ comments to her; (2) treated Mr. Watts’ previous LTSO suspensions as though they were equivalent to prior criminal convictions for a breach under s. 753.3(1) ; and (3) relied on the Board’s characterization of Mr. Watts’ past suspensions as reflecting a

persistent disregard for his LTSO conditions. In relation to the last alleged error, Mr. Watts includes a claim that the judge also erred by finding the breach for which he was being sentenced represented a “blatant disregard” of his conditions. [ 86 ] There is no merit to the assertion the judge considered what B told the police about his comments to her. The judge expressly acknowledged that the Crown had advised it was not relying on any such reference in the 2020 decision, and she stated that such comments were struck from the decision. Additionally, she did not make any reference to what Mr.

Watts was alleged to have said. Although the police report of the conversation informed the Board’s conclusion respecting the seriousness of Mr. Watts’ current breach, there is no reason to suspect, let alone conclude, the judge acted contrary to her express declaration respecting the use of such information. [ 87 ] Additionally, there is no merit to Mr. Watts’ submission the judge equated his past suspensions with prior criminal convictions under s. 753.3(1) .

She very clearly recognized the distinction and nothing more need be said about this assertion. [ 88 ] Lastly, I do not accept the judge either misapprehended the severity of Mr. Watts’ breach of the condition or inappropriately relied upon the 2020 Board decision in assessing his history under the LTSO. Mr. Watts’ concerns center on the judge’s conclusion his breach represented a “blatant disregard” of his conditions and her observation that his “history of non- compliance of the conditions of his order is, in fact, disturbing.” [ 89 ] Mr.

Watts maintains the finding that he showed a “blatant disregard” for his conditions was inconsistent with the judge’s finding that he had been merely “reckless in not recognizing that she could be under 18.” He argued that since he engaged B in a retail environment, and there was no evidence that he had escalated their contact to a level of concern related to his risk of reoffending, the moral culpability of his breach is at the low end of the spectrum and the judge misapprehended the evidence. This position does not accurately reflect the judge’s findings and his characterization is incompatible with them.

The judge’s “blatant disregard” observation speaks to her finding, at trial, that, despite the clear and substantial risk of violating the condition due to B’s patently youthful appearance, Mr. Watts, who is approximately 60 years old, deliberately sought B out for no reason, other than to do precisely what the condition prohibited. The judge did not misapprehend the evidence. [ 90 ] Additionally, it ought to be recognized the judge’s oral decision was rendered after a recess that followed Mr. Watts having accepted the opportunity to personally address the court prior to being sentenced.

He spoke at some length about how, in his opinion, his breach was unintentional, since he could not tell that B was young, and his return to the store’s vestibule was innocent, to check on his car. Explaining why he felt the gravity of his breach was low, he maintained there was nothing that suggested his discussion with B indicated a return to a cycle of re-offending, as was the case in many of the reported decisions (referred to in argument by counsel) where other offenders were sentenced for the breach of a condition. In view of Mr.

Watts’ address to the court, a reading of the judge’s decision reveals that she tailored her reasons, at least in part, to refute the perspective of the breach described by Mr. Watts. It conflicted with the express finding made by the judge at trial, namely that B was patently youthful, and that Mr. Watts deliberately sought out to engage with her, despite the condition, which goes to the core of his LTSO risk. It is not a stretch to consider the judge to be speaking directly to Mr.

Watts when she explained that, in her opinion, his conduct represented a “blatant disregard” of his conditions. [ 91 ] Finally, the judge’s characterization of Mr. Watts’ history of “non-compliance” with his conditions, as “disturbing,” is neither the product of an improper reliance on the 2020 decision nor a palpable error in an assessment of the record before her.

He admits that, within five years of being released in November 2015, he was convicted of two breaches of his conditions, suspended at least nine other times, and found to have had a “blatant disregard” for the condition for which he was being sentenced. Moreover, the condition breached goes to the root of the concern that gave rise to finding him a long-term offender and is central to the effort to balance the management of his risk of reoffending with the goal of reintegrating him into the community.

Notwithstanding any possible dispute with the accuracy of the Board’s account of the underlying circumstances that gave rise to the prior suspensions, the judge’s characterization is justifiable on the unchallenged record. [ 92 ] In sum, while on sentencing for a breach under s. 753.3 , the suspensions are undoubtedly not the same as prior convictions, the judge did not err in her assessment of Mr. Watts’ compliance with his LTSO conditions. It is also clear she did not merely adopt the Board’s assessment of his history, which included consideration of information regarding Mr.

Watts conversation with B that was not proven or before her. While it is apparent this information had a bearing on the Board’s opinion regarding the seriousness of Mr. Watts’ breach, the judge’s assessment of the gravity of the breach and his history of his time under the LTSO is grounded in the record that was before her, without regard to what Mr. Watts may have said to B. While she did so for different reasons than the Board, it is not surprising the judge’s observations regarding his compliance with his LTSO are consistent with those of the Board.

B. A demonstrably unfit sentence? [ 93 ] Finally, in relation to Mr. Watts’ claim that the sentence is unfit, the Crown concedes two years is high, despite a 10-year maximum; however, as the Crown also maintains, this does not make it unreasonable and it is within the range of reasonable sentences in the circumstances. [ 94 ] There are many factors that form part of the analysis on sentencing, and the judge canvassed them fully in her decision. As well, there is no challenge to her

interpretation of the numerous reported decisions she considered in an effort to recognize the parity principle. Mr. Watts’ submission that the judge failed to arrive at a proportionate sentence and imposed one that is beyond the high end of the reasonable range appears to flow from the belief that his breach was minor and culpability trivial. The judge had a fundamentally different view that was well-founded on the record before her. [ 95 ] Mr.

Watts’ LTSO is the result of being found to be a long-term offender following his conviction (in 2003) for the manslaughter, sexual interference, and sexual assault of a minor female. It also recognizes his earlier conviction (in 1989) for forcibly confining another minor female, among other offences. The object of the condition not to be in the presence of females under the age of 18 has been part of his LTSO since 2015. It represents an effort to manage, while Mr. Watts is in the community, the clearly identified risk of his reoffending.

Neither the finding that he had violated this condition nor the judge’s finding that he had blatantly disregarded the condition can be characterized as a mere technical non-compliance of a minor condition. On the contrary, as the trial judge concluded, the condition goes to the root of the risk the LTSO seeks to guard against. I reject fully any suggestion that, by recognizing this reality, Mr. Watts was being repunished for his past offences.

Add to this his two prior convictions for breaching his conditions and the near-continuous run of suspensions of his LTSO resulting from the Board’s concerns that he was not following his conditions, the sentence imposed is indisputably fit and unassailable on appeal. V. Conclusion [ 96 ] I would dismiss the appeal. Version française de la décision de la Cour rendue par LE JUGE FRENCH I. Introduction [1] Christopher Watts a été déclaré coupable d’omission de se conformer à une condition d’une ordonnance de surveillance de longue durée (OSLD), infraction prévue au par. 753.3(1) du Code criminel .

La condition prévue dans l’ordonnance qu’il n’a pas respectée est la suivante : [TRADUCTION] S’abstenir d’être en la présence d’enfants de sexe féminin âgées de moins de 18 ans, à moins d’être sous la surveillance d’un adulte responsable qui a connaissance de [ses] antécédents criminels et qui a obtenu l’approbation écrite de [son] surveillant de liberté conditionnelle. [2] Au procès, l’ actus reus de l’infraction n’a pas été véritablement contesté. M.

Watts a été en la présence de B (qui était âgée de moins de 18 ans) lorsque celle-ci travaillait à un poste installé dans le vestibule d’entrée du magasin Indigo Books afin d’accueillir les clients (durant la pandémie de la COVID-19). La question en litige était celle de savoir si le ministère public avait établi que M. Watts avait la mens rea requise. La juge a conclu que, alors qu’il se trouvait déjà dans le magasin, M. Watts était retourné

délibérément dans le vestibule afin de s’entretenir avec B. La deuxième fois qu’il y est retourné, il est demeuré en la présence de B pendant environ six minutes. [3] Dans l’appel qu’il a interjeté à l’encontre de sa déclaration de culpabilité, M. Watts prétend que la juge du procès a commis une erreur en concluant que le ministère public avait établi qu’il savait qu’il courait un risque important d’

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