R v Deckert, 2021 SKCA 49

Court of Appeal for Saskatchewan Docket: CACR3417 Citation: R v Deckert , 2021 SKCA 49 Date: 2021-03-31 Between: Larry Clair Deckert Applicant And Her Majesty the Queen Respondent Before: Kalmakoff J.A. (in Chambers) Disposition: Application dismissed Written reasons by: The Honourable Mr. Justice Kalmakoff On application from: 2001 SKQB 26 , Regina Application heard: February 24, 2021 Counsel: Christa M. Weber for the Appellant W. Dean Sinclair, Q.C., for the Respondent Kalmakoff J.A. I.

INTRODUCTION [ 1 ] Larry Deckert applies to extend the time to appeal against the decision of a Court of Queen’s Bench judge that found him to be a dangerous offender and sentenced him to an indeterminate period of incarceration ( R v Deckert , 2001 SKQB 26 [ Sentencing Decision ]) . Normally, a person has 30 days from when a decision is made to file an appeal. In Mr. Deckert’s case, the Sentencing Decision was rendered more than 20 years ago. [ 2 ] Mr. Deckert contends that the interests of justice favour extending the time for him to file an appeal because a key witness at the dangerous offender hearing, Dr.

Aubrey Levin, the psychiatrist who prepared the assessment report required by s. 752.1 of the Criminal Code , was convicted of three counts of sexual assault in 2013. Mr. Deckert says the fact of Dr. Levin’s subsequent criminal conduct casts significant doubt on the credibility of the evidence he provided at the dangerous offender hearing in 2000 and, given the importance of that evidence to the determination made in the Sentencing Decision , the prospect of a miscarriage of justice is raised. Mr. Deckert also asserts that, in light of how and when he became aware of Dr.

Levin’s criminal conduct, the delay in bringing an appeal has been adequately explained. [ 3 ] For the reasons that follow, I have concluded that it is not in the interests of justice to extend the time for Mr. Deckert to appeal. II. BACKGROUND [ 4 ] On December 17, 1999, Mr. Deckert pled guilty to a charge of break, enter and commit sexual assault. The charge arose out of an incident that had occurred more than 13 years earlier. The offence was horrific. The victim was L.K., a single mother with two children. In the early morning hours of April 16, 1986, Mr.

Deckert, armed with a knife and wearing a mask to cover his face, broke into L.K.’s home and violently raped her. In addition to forcing himself on L.K. sexually, Mr. Deckert pulled her hair, struck her in the face with his fist, and slashed her forehead with his knife. He also threatened to use the knife on L.K.’s vagina and threatened to harm her children if she did not remain quiet. When L.K. tried to call for help after Mr. Deckert left her house, she learned that he had disabled her phone by cutting the wires. [ 5 ] Mr.

Deckert was not arrested on this offence, which I will refer to as the “predicate offence” until 1998. [ 6 ] In the meantime, however, Mr. Deckert committed two other similar offences. On February 5, 1987, he entered a convenience store at 3:40 a.m., armed with a hockey stick and wearing a hockey mask to cover his face. He forced A.R., a young woman who was the store’s lone employee, into a back room and stole money from her purse. When she tried to escape, Mr. Deckert struck her in the face with the hockey stick.

He ordered A.R. to remove her shoes and, after she had done so, threw her on her back and removed her pants and underwear. He then tied A.R.’s ankles with an extension cord and sexually assaulted her by inserting his fingers into her vagina and putting his mouth on her breasts. Before leaving the store, Mr. Deckert punched A.R. in the face and stole money from the till and a cash bag. He also threatened to kill her if she moved. [ 7 ] Mr. Deckert was arrested for this crime a short time later.

He pled guilty to charges of sexual assault and robbery in May of 1987 and was sentence to four years in a penitentiary. [ 8 ] Mr. Deckert served a little more than two years of that sentence before he was released on day parole on June 12, 1989. Less than six weeks later, Mr. Deckert broke into the home of another woman, C.R., in Regina. Mr. Deckert accessed C.R.’s residence by climbing onto the balcony of her second-floor apartment suite and entering through an unlocked patio door. C.R. awoke to find Mr. Deckert standing in her bedroom. He placed his arm around her neck and told her he had a knife.

He threatened to kill C.R. if she screamed. He laid on top of her, spread her legs apart, and put one hand over her mouth while he tried to unzip his pants with the other.

C.R. was able to fight Mr. Deckert off, but he punched her in the face approximately 10 times before he fled the scene. [9] Mr. Deckert was arrested a short time later and charged with breaking and entering and sexual assault causing bodily harm. InMay of 1990, he pled guilty to those charges. He received a five year sentence for the charge of sexual assault causing bodily harm, andtwo years consecutive for breaking and entering. [10] As set out above, despite the fact that Mr. Deckert had committed the predicate offence in 1986, he was not was arrested for ituntil 1998.

This is because his identity as the perpetrator of the predicate offence remained unknown until advancements in technologyand changes in legislation made it possible for a DNA sample to be obtained from him and a comparison to be made with evidencegathered at the time of the offence. [11] Mr. Deckert pled guilty to the predicate offence on December 17, 1999. The Crown sought, and obtained, an assessment orderunder s. 752.1 of the Criminal Code. Dr. Levin was ordered to conduct the assessment. Following the receipt of Dr. Levin’s assessmentreport, the Crown proceeded with an application to have Mr.

Deckert designated a dangerous offender. The hearing of that applicationtook place over several days in April, June and October of 2000. [12] On January 17, 2001, the Sentencing Decision was rendered. The sentencing judge found Mr. Deckert to be a dangerousoffender and imposed an indeterminate term of imprisonment. Mr. Deckert did not appeal from the Sentencing Decision within theordinary period to do so. [13] More than nine years after the Sentencing Decision, Dr. Levin was charged with several counts of sexual assault. In an affidavitsworn January 27, 2021, Mr.

Deckert deposes that he became aware charges had been laid against Dr. Levin in 2010 and, once he learnedof the nature of the allegations, he contacted Norman Williams, the lawyer who had represented him at the dangerous offender hearing, tosee if an appeal could be launched against the Sentencing Decision. He says Mr. Williams advised him, in late June of 2010, that an appealcould not proceed on the basis of the criminal charges that had been laid against Dr. Levin unless and until Dr. Levin was convicted andhad been sentenced. [14] Mr. Deckert deposes that Mr.

Williams, on his behalf, explored other potential avenues of re-opening his case, including aMinisterial Review under s. 696.1 of the Criminal Code, and a review by officials at the Criminal Justice Division of the Justice andSolicitor Generals Office for Alberta. However, he was informed that all avenues of appeal had to be exhausted before his case could bereviewed on either of those bases. [15] The case against Dr. Levin eventually went to trial in the Court of Queen’s Bench for Alberta. On January 28, 2013, a juryfound Dr.

Levin guilty of three counts of sexual assault, all of which had been committed against male persons that Dr. Levin had treatedor assessed in a professional capacity. One of the victims had been ordered to see Dr. Levin for treatment as part of the terms of his releaseon parole. Dr. Levin sexually assaulted this man on multiple occasions, during clinical visits, between 2002 and 2010. The second victimwas a patient for whom Dr. Levin had conducted a psychiatric assessment in relation to a criminal charge and saw for follow-up treatmentas part of the sentence. Dr.

Levin sexually assaulted him on three occasions, beginning in February or March of 2009. The third victim hadbeen referred to Dr. Levin by a family physician. Dr. Levin sexually assaulted him on one occasion in 2009. [16] Dr. Levin appealed against the convictions. The Alberta Court of Appeal dismissed his appeal on April 23, 2014 (R v Levin,2014 ABCA 142), and the Supreme Court of Canada dismissed his application for leave to appeal on October 23, 2014 (R v Levin, ). [17] Mr. Deckert deposes that, after Dr. Levin’s matters were finally disposed of, he began to move forward with his appeal.

In late2014 or early 2015, he says, his file was transferred from Legal Aid Alberta to Legal Aid Saskatchewan and a lawyer was assigned to hiscase. [18] Mr. Deckert deposes that as he and his lawyer attempted to put the wheels for his appeal in motion, they encounteredadministrative delays in obtaining information from his Correctional Service of Canada file. Mr. Deckert also says the process ofcommunicating with his lawyer was difficult and time consuming, owing to the fact that he was incarcerated at Bowden Institution inAlberta and she practices law in Regina.

He says they were able to communicate only in writing and sometimes it took “months to get hercorrespondence” in response to his. Mr. Deckert also says that his efforts to move the matter forward in a timely way have been hamperedby the pandemic and some health issues suffered by his lawyer. [19] Mr. Deckert was released on day parole in August of 2019 and, although he deposes that he has been doing well, he says hisdangerous offender status has made it more difficult to reintegrate into the community, particularly as it pertains to finding employment. III. ANALYSIS A.

The Governing Legal Principles [20] In Saskatchewan, a person seeking to appeal against a sentence must generally give notice of the appeal within 30 days fromthe date of the imposition of sentence (see ss. 678(1) and 759(7) of the Criminal Code and s. 8 of The Court of Appeal Criminal AppealRules (Saskatchewan)).

However, s. 678(2) of the Criminal Code provides that a “court of appeal or a judge thereof may at any timeextend the time within which a notice of appeal or notice of an application for leave to appeal may be given.” This gives the Court, or oneof its judges, the discretion to allow an appeal that would otherwise be out of time to proceed.

In R v Walker, 2017 SKCA 91 [Walker],Jackson J.A. summarized the legal principles that bear on the exercise of that discretion: [2] The usual criteria guiding a judge’s discretion when determining whether an extension of time should granted are as follows(see R v Morin, 2005 SKCA 37at 6, 195 CCC (3d) 190 [Morin]):

(

a) whether the applicant has shown a bona fide intention to appeal within the appeal period; (

b) whether the applicant has accounted for or explained the delay; (

c) whether the Crown would be unduly prejudiced by the extension of time; (

d) whether there is merit to the proposed appeal in the sense that there is a reasonably arguable ground of appeal; and (

e) whether the interests of justice weigh in favour of extending the time to appeal. [3] The fifth criterion from Morin is applied as an overarching consideration: R v Woods, 2006 SKCA 123 at para 12, 285 Sask R314; R v Colhoun, 2010 SKCA 140 at para 6, 362 Sask R 306; R v Dunsford, 2012 SKCA 79 at para 5, [2012] 11 WWR 38; R vBahadur, 2010 SKCA 103 at paras 12 and 14, 259 CCC (3d) 81; R v Smith, 2017 SKCA 81 at paras 95 and 97; R v Dustyhorn, 2017SKCA 82 at paras 5 and 6.

These authorities also demonstrate that the Morin factors are a guide to the exercise of a discretionary power.Depending on the circumstances of any given case, other factors may be relevant and one or more factor may assume a more dominantrole.

See also R v Roberge, 2005 SCC 48 at para 6, [2005] 2 SCR 469 [Roberge]; R v Daniels, 2017 SKCA 94 at para 5; R v Perrault, 2020SKCA 35 at paras 8-9 [Perrault]; and R v Williams, 2020 SKCA 57 at para 9. [21] As Richards C.J.S. observed in R v Dustyhorn, 2017 SKCA 82, the considerations listed above are “not in the nature ofnecessary pre-conditions, each of which must be satisfied before the time to appeal can be extended” but rather a “framework fordeliberation or a roster of considerations to be taken into account when exercising discretion pursuant to s. 678(2)”.

The “overridingconsideration in determining whether or not to grant an extension of the time to appeal is always whether it would be in the interests ofjustice to do so” (at para 6). [22] Determining whether the interests of justice favour extending the time to appeal requires taking into account the interests of theappellant, but also being mindful of the role that appeals play in the criminal justice system. In that respect, the importance of finality incriminal proceedings is a relevant consideration (Perrault, at paras 21 and 28).

Permitting an appeal to be launched years out of time isgenerally inimical to the proper administration of justice (see: R v R.(R.), 2008 ONCA 497 at para 16, 90 OR (3d) 641; R v Tallio, 2017BCCA 259 at para 17; R v Carlick, 2018 YKCA 5 at paras 38 and 65; R v Canto, 2015 ABCA 306 at para 24, [2015] WWR 354). B. The Principles Applied [23] Mr. Deckert acknowledges the lengthy delay in filing his appeal but says that there is great potential for injustice if his appealis not permitted to proceed. He points to the fact that Dr.

Levin was qualified to give expert opinion evidence regarding the assessmentand treatment of violent sexual offenders at the dangerous offender hearing and takes the position that Dr. Levin’s subsequent criminalconduct completely discredits the testimony he gave in that respect. Mr. Deckert asserts that, given (

i) the parallels between the nature ofDr. Levin’s own criminal conduct and the subject matter about which he testified at the hearing; (ii) the importance of Dr. Levin’sevidence to the Crown’s case; and (iii) the grave consequences that resulted from the sentencing judge’s reliance on Dr. Levin’s evidence,the interests of justice necessitate review of the matter by this Court, notwithstanding the delay. As I will explain, application of thegoverning legal principles leads me to a different conclusion. 1. Bona fide intention to appeal [24] Mr.

Deckert concedes that he had no intention to appeal the Decision until he learned of the charges that had been laid againstDr. Levin, more than nine years after the appeal period had expired. In the circumstances of this case, that factor does not weigh againstMr. Deckert; he could not have foreseen that such a development would occur. 2. Explanation for the delay [25] In this case, there are two relevant portions of the delay. The first portion is from January 27, 2001, the date of the SentencingDecision, to October 23, 2014, the conclusion of the criminal proceedings against Dr. Levin.

In my view that period, although extremelylengthy, has been adequately explained. Mr. Deckert did not become aware of Dr. Levin’s criminal conduct until 2010 and, although hedid not launch an appeal immediately upon learning of the nature of that conduct, I am not persuaded that should be weighed against him.I accept that, even though Mr. Deckert was instantly concerned about the effect Dr. Levin’s subsequent criminal conduct may have had onthe quality of the evidence he gave at the dangerous offender hearing, he was in no position to proceed with his appeal until the criminalproceedings against Dr.

Levin had run their course. [26] The same cannot be said, however, for the second portion of the delay, namely that which occurred between the conclusion ofthe criminal proceedings against Dr. Levin on October 23, 2014 and the date on which Mr. Deckert filed his application to extend the timeto appeal, January 27, 2021. Mr. Deckert has offered little that explains that period of six years and three months. [27] This is not to say that Mr.

Deckert should be held responsible for delays occasioned by the transfer of his file from the legal aidsystem in one province to another or for the time it took the Saskatchewan Legal Aid Commission to assign a lawyer to his case (see,generally: R v Malouin (1989), (SK CA), 74 Sask R 71 (CA); R v Fisher, 2020 MBCA 75; and Onishenko v Cholowski,2017 ABCA 238, 100 RFL (7th) 7). Nor should delays resulting from personal health issues experienced by Mr. Deckert’s lawyer fall athis feet. I would, however, note that there is nothing in Mr.

Deckert’s affidavit to assist in determining precisely how much delay wasattributable to either of those things. [28] Moreover, a significant portion of the second period of delay was in Mr. Deckert’s control. For example, he attributes a largesegment of it to attempting to have the contents of his Correctional Services Canada file released to him and his lawyer so that “othergrounds of appeal could be canvassed”. This, as I read his affidavit, accounted for somewhere in the neighbourhood of 19 to 20 months of

the second portion of delay. Notwithstanding the time devoted to that file review, the only grounds of appeal mentioned in Mr. Deckert’snotice of appeal, and the only basis he has ever stated for his latent interest in launching an appeal, relate to Dr. Levin’s subsequentcriminal conduct and the impact it may have had on the value of Dr. Levin’s evidence. Mr.

Deckert has offered nothing to explain what“other” potential grounds of appeal he had hoped to pursue or why he felt it was worth spending more than 19 months attempting tocanvas them, when they had not been of concern to him for the previous 15 years. [29] Mr. Deckert also deposed that some of the delay in filing his proposed appeal was attributable to the fact that it was difficult tomaintain communication with counsel while he was incarcerated in a penitentiary in Alberta. I accept that as a general proposition, but Ialso observe that Mr.

Deckert was released on day parole in August of 2019, more than 17 months before he filed his application. Theapplication itself is not particularly complex. The written material Mr. Deckert has filed consists of only a notice of motion, his ownaffidavit and a brief of argument. Even taking into account his legal counsel’s personal health issues and the impact of the pandemic, Icannot conclude that this portion of the delay has been adequately explained. [30] In the end, even considering the administrative issues experienced at the outset with legal aid, the fact that Mr.

Deckert wasincarcerated, his lawyer’s personal health issues and the impact of the pandemic, I am not persuaded that there is an adequate explanationfor the delay of six years and three months that post-dates the conclusion of the criminal proceedings against Dr. Levin.

As the SupremeCourt of Canada noted in Roberge, a case in which an application to extend the time to appeal was dismissed where there were fourmonths of inadequately explained delay, an application of this sort must be viewed as a “matter of priority that cannot be put offindefinitely” (at para 7). [31] In the result, the lengthy delay in bringing the appeal and the lack of adequate explanation for it, while not determinative, arefactors that weigh heavily against extending the time to appeal in this case. 3. Prejudice to the Crown [32] The Crown raises the issue of prejudice in the event that Mr.

Deckert’s appeal is ultimately successful and a new hearing underPart XXIV of the Criminal Code is ordered. It asserts that Mr. Deckert has “made no effort to demonstrate that the Crown would not beprejudiced if the application were allowed”, primarily because there is no evidence that witnesses who testified at the initial hearing wouldbe able to testify again. While Mr.

Deckert did not address this directly in his affidavit, the Crown concedes that a transcript of theproceeding is available. [33] It stands to reason that some witnesses who testified at the original hearing may not be available 20 years later or, if they areavailable, may not be able to provide evidence of the same quality. However, I am not satisfied that this causes any prejudice to theCrown.

The availability of a transcript means that, even if witnesses are unavailable or unable to remember certain things, the necessaryevidence can be put before the Court if a new hearing is ordered following a successful appeal. In saying this, I am mindful of the factthat, if Mr. Deckert’s appeal were successful and a rehearing of the dangerous offender application ordered, it would involve considerabletime and cost but, as the Court noted in Morin, such considerations, while undoubtedly of concern, do not amount to undue prejudice to theCrown (at para 15). 4.

Merit [34] The merit consideration looms large in the disposition of this application. As I will explain, Mr. Deckert’s proposed appeallacks merit. [35] The grounds set out in Mr. Deckert’s notice of appeal impugn the sentencing judge’s acceptance of, and reliance upon, Dr.Levin’s testimony, given his subsequent criminal conduct. The first proposed ground of appeal alleges that it was an error in principle forthe sentencing judge to have relied on Dr. Levin’s evidence because, if the evidence of his subsequent criminal conduct had been beforethe Court, his testimony would have been disregarded.

The second proposed ground of appeal alleges that, in light of the nature of Dr.Levin’s subsequent criminal conduct, the fact that the sentencing judge accepted Dr. Levin’s testimony and preferred it over that ofanother expert, Dr. Terry Nicholaichuk, amounts to a miscarriage of justice. [36] Mr. Deckert says the merit in his appeal is obvious because the sentencing judge, in making the crucial findings necessary todesignate him a dangerous offender and to impose an indeterminate sentence, accepted and relied on Dr. Levin’s evidence relating to riskof future violence and amenability to treatment.

He contends that Dr. Levin’s subsequent criminal offending tainted his evidence and,consequently, the findings made by the sentencing judge. [37] In considering the question of merit, it must be observed that Mr. Deckert’s appeal, if allowed to proceed, would be governedby s. 759(1) of the Criminal Code, which permits a person who is found to be a dangerous offender to appeal “on any ground of law orfact or mixed law and fact”.

Appellate review from a finding that an offender should be designated as a dangerous offender is concernedonly with legal errors and the question of whether the designation made was reasonable.

That is to say, absent an error of law, a court ofappeal will not intervene unless the sentencing judge’s findings were unreasonable (R v Sipos, 2014 SCC 47 at para 23, [2014] 2 SCR 423[Sipos]; R v Starblanket, 2019 SKCA 130 at para 27, [2020] 6 WWR 288 [Starblanket]; R v Currie, (SCC), [1997] 2SCR 260 at paras 33–35; R v Piche, 2019 SKCA 54 at para 104, [2020] 2 WWR 240). [38] “Miscarriage of justice” is not a ground of appeal that can be advanced under s. 759(1). As such, an examination of the merit,or lack thereof, in Mr. Deckert’s proposed appeal must focus on whether what is now known about Dr.

Levin’s subsequent criminalconduct has the potential to: (

i) reveal a legal error on the part of the sentencing judge, or (ii) otherwise render the Sentencing Decisionunreasonable. In the circumstances at hand, this consideration can be narrowed even further, to focus on the question of reasonablenessalone. I say that because Dr. Levin’s subsequent criminal conduct cannot have the effect of retroactively turning the sentencing judge’sdecision to rely on his evidence into a legal error. As Mr. Deckert has framed his proposed appeal, it raises only the questions of whetherDr.

Levin’s subsequent criminal conduct may be seen as having retroactively discredited the testimony he gave at Mr. Deckert’sdangerous offender hearing and, if so, whether that would render the dangerous offender designation made by the sentencing judgeunreasonable.

[39] The reasonableness standard applicable to appellate review of the designation made by the sentencing judge in a dangerousoffender case is “somewhat more robust” than the standard of review applied in an ordinary sentence appeal. This does not, however,mean that a “completely fresh look” at the designation is called for; the appellate court must give some deference to the findings of thesentencing judge (Sipos at para 26; Starblanket at para 28; R v Boutilier, 2017 SCC 64 at para 81, [2017] 2 SCR 936).

Furthermore, as thisCourt observed in R v Peekeekoot, 2014 SKCA 97 at para 48, 446 Sask R 22 [Peekeekoot], “reasonableness” in the context of appellatereview of a dangerous offender case is not generally assessed in light of events that occur, or circumstances that change, after thedangerous offender hearing is completed; the question to be determined is whether the decision made by the sentencing judge wasreasonable at the time it was made. [40] Mr. Deckert’s proposed appeal, of course, hinges on fresh evidence regarding Dr. Levin’s subsequent criminal conduct. If thatfresh evidence is not admissible, Mr.

Deckert’s appeal clearly has no merit. By virtue of ss. 759(7) and 687(1) of the Criminal Code, thisCourt may admit fresh evidence on dangerous offender appeals where it is in the interests of justice to do so. This requires a modifiedapplication of the well-known Palmer test (R v Palmer, (SCC), [1980] 1 SCR 759), as Cromwell J. described in Sipos: [29] The Court established in R. v. Lévesque, 2000 SCC 47, [2000] 2 S.C.R. 487, that while the sources and types of new evidence aremore flexible in relation to sentence appeals, the well-known “Palmer” test governs admissibility of fresh evidence.

That test, as is wellknown, sets out four criteria concerned with due diligence, relevance, credibility and impact on the result: Palmer v. The Queen, (SCC), [1980] 1 S.C.R. 759, at p. 775. Generally, fresh evidence should not be received if it could have been obtained at trial byexercising due diligence, although this criterion is not strictly applied in criminal matters when it would be contrary to the interests ofjustice to do so.

The evidence must be relevant in the sense that it relates to a potentially decisive issue and reasonably worthy of belief.Finally, the evidence, if accepted, must reasonably be expected to have affected the result when considered along with the trial evidence.As Charron J. explained in R. v.

Angelillo, 2006 SCC 55, [2006] 2 S.C.R. 728, at para. 15: In accordance with the last three of the Palmer criteria, an appellate court can therefore admit evidence only if it is relevant and credibleand if it could reasonably be expected to have affected the result had it been adduced at trial together with the other evidence. [Emphasisadded.] [41] Cromwell J. also went on to explain that, where the proposed fresh evidence relates to events that occurred after the sentencingdecision was made, the importance of finality in criminal proceedings is a relevant consideration in determining what the interests ofjustice require.

In that regard, he said: [30] Fresh evidence addressing events that have occurred between the time of sentencing and the time of the appeal may raise difficultissues which bring competing values into sharp relief. On one hand, we must recognize, as Doherty J.A. put it in R. v. Hamilton(2004), (ON CA), 72 O.R. (3d) 1, at para. 166, that “[a]ppeals take time. Lives go on. Things change.

These humanrealities cannot be ignored when the Court of Appeal is called upon to impose sentences well after the event.” However, we must equallypay attention to the institutional limitations of appellate courts and the important value of finality. Routinely deciding sentence appeals onthe basis of after-the-fact developments could both jeopardize the integrity of the criminal process by undermining its finality and surpassthe appropriate bounds of appellate review: Lévesque, at para. 20; R. v.

Smith (2005), 2005 ABCA 404, 376 A.R. 389 (C.A.), at paras. 21-25. [31] Given the almost infinite variety of circumstances that may arise, it is neither desirable nor possible to formulate any hard and fast,detailed rules about the sorts of after-the-fact evidence that should or should not be considered in all cases. The abundant appellatejurisprudence cannot be reduced to a tidy set of rules, but rather reflects the courts’ attempts to balance these at times competing values inlight of particular and widely varying sets of circumstances: see, e.g., R. v.

Riley (1996), 1996 NSCA 112 , 150 N.S.R. (2d) 390(C.A.); R. v. Faid (1984), 1984 ABCA 116 , 52 A.R. 338 (C.A.); R. v. Jimmie, 2009 BCCA 215, 270 B.C.A.C. 301; R. v.Halliday, 2012 ONCA 351 ; and generally, C. C. Ruby, G. J. Chan and N. R. Hasan, Sentencing (8th ed. 2012), at §§ 4.49 ff.; R.v. N.A.S., 2007 MBCA 97, 220 Man. R. (2d) 43; R. v. Martin, 2012 QCCA 2223 .

At the level of principle, the approach set outin Lévesque and Angelillo strikes the balance between the competing values and, when applied thoughtfully to the particularcircumstances before the court, provides sufficient flexibility to ensure that the appellate process is both responsive to the demands ofjustice and respectful of the proper limits of appellate review. [42] Justice Cromwell also noted that, because an offender may appeal against a dangerous offender designation on the basis that itis unreasonable, there is “potentially a wider role for fresh evidence in relation to appellate review on this basis” (at para 42) but,notwithstanding that, the requisite analysis “is still to a degree retrospective.

The focus is on the impact of the new evidence on thesentencing proceeding, viewed in the context of the whole record” (at para 44). [43] Ultimately, the determination as to whether to admit fresh evidence on an appeal of this sort boils down to the question of whatthe interests of justice require.

As noted in R v Allen, 2018 ONCA 498 at para 89, 362 CCC (3d) 509 [Allen], the phrase “interests ofjustice” signals a “broad, yet not unbordered discretion”, that takes into account not only the interests of the accused but also the broaderlong-term interests of the administration of justice, including finality in criminal proceedings.

In Allen, Watt J.A., in addition to observingthat the contours of the discretion to admit fresh evidence in the interests of justice are shaped by the criteria set out in Palmer, stated: [90] The interests of justice are furthered when verdicts shown to be unreliable on the basis of fresh evidence are set aside. But thosesame interests – the interests of justice – would undoubtedly suffer if the appellate process were routinely invoked to rewrite the trialrecord several years later. Admitting fresh evidence on appeal necessarily undermines legitimate finality expectations.

This negativeconsequence can only be justified if the overall integrity of the process is furthered by the reception of the fresh evidence. As a result,admitting further evidence on appeal of facts litigated at trial is, as it must be, exceptional: Snyder, at para. 44; R. v. M. (P.S.) (1992), (ON CA), 77 C.C.C. (3d) 402 (Ont. C.A.), at p. 411. [44] All of this means, in the circumstances at hand, the fresh evidence Mr.

Deckert seeks to tender would be admissible on appealonly if could reasonably be expected to have affected the result, i.e. if it calls into question the reasonableness of the designation made inthe Sentencing Decision. As set out in Sipos, the onus of demonstrating that would lie on Mr. Deckert, and the determination must bemade in light of the entire record.

[45] Applying the governing test for admission of fresh evidence to the facts of this case, I begin by observing that there is no issuewith respect to the due diligence component; Mr. Deckert could not have tendered evidence about Dr. Levin’s criminal conduct before theSentencing Decision was rendered, because that conduct had not yet occurred. Nor is there any problem with respect to the credibility ofthe proposed fresh evidence; the charges against Dr.

Levin were proven to the criminal standard at trial and his convictions were upheldon appeal. [46] However, the other components of the Palmer test, namely that the fresh evidence be relevant to a potentially decisive issue andthat it could reasonably be expected to have affected the result, present significant hurdles for Mr. Deckert. In order to clear those hurdles,Mr. Deckert would need to demonstrate not only that the fresh evidence would retroactively discredit the evidence given by Dr.

Levin atthe dangerous offender hearing, but also that the remaining evidence would not support the reasonableness of the Sentencing Decision. AsI will explain, I am not persuaded that the proposed fresh evidence in this case meets either requirement. [47] I wish to make two important observations here about the nature of the proposed fresh evidence. The first is that it does notinvolve a recantation on the part of Dr. Levin, or any other direct repudiation of the testimony he provided at Mr. Deckert’s hearing. Thesecond is that none of Dr. Levin’s criminal conduct occurred before he testified at Mr.

Deckert’s hearing; all of Dr. Levin’s offences werecommitted years later. Let me explain why this is significant. [48] As decisions such as Sipos and Allen instruct, fresh evidence of criminal conduct by a witness that comes to light after thewitness has testified at trial will be admitted only in exceptional circumstances.

Such exceptional circumstances may be found to existwhere the witness in question was crucial to the Crown’s case and has recanted or otherwise repudiated their testimony, or where thecredibility of that crucial witness was a key issue at the trial and the subsequent conduct had a direct impact on the credibility or reliabilityof the vital aspects of their testimony. [49] In R v May (1997), 200 AR 315 (CA) [May], for example, the appellants had been convicted of several counts of trafficking in anarcotic in Alberta.

The only evidence against the appellants was that of a witness who testified that she had purchased drugs from themwhile acting as a police agent. There was no corroboration of her evidence. At trial, the defence attacked the credibility of the witnessbased on her criminal record, which consisted of previous fraud convictions. The trial judge accepted the witness’s evidence and found theappellants guilty. The witness was later convicted in Saskatchewan for perjury respecting testimony given in a separate proceeding, afterthe trial involving the appellants.

The testimony that gave rise to the perjury conviction also related to incidents in which the witness hadacted as a police agent in a similar investigation.

The appellants appealed the conviction and sought to introduce fresh evidence regardingthe witness’s conviction for perjury in Saskatchewan. [50] The Alberta Court of Appeal, in an oral decision (Hetherington and McFadyen JJ.A. for the majority, Foisy J.A. dissenting),admitted the fresh evidence, holding that, because the witness’s credibility was “essentially the only issue at trial” and the testimony thatwas the subject of the perjury conviction “related to incidents in which her part was very similar to her participation” in the matters beforethe Alberta Court, there was “a strong suggestion of a pattern of conduct on her part” (at para 3).

The majority went on to say that it wasthe “similarity of the conduct, and not only the fact of the subsequent conviction” that caused them to be concerned that there “may havebeen a miscarriage of justice” and, on that basis, order a new trial (at para 4). [51] In R v Jesty (1995), 1995 NSCA 146 , 143 NSR (2d) 223 (CA), the appellant, a part-time constable with a local policedepartment, had been convicted at trial for theft of a wallet, a cheque and money. The appellant had been given the items by anotherofficer as part of an investigation and instructed to put them in a safe place.

He took them home and kept them in a drawer. It was allegedthat the appellant then spent the money for his own use. The Crown’s case against him relied on circumstantial evidence. The appellanttestified at trial that he had handled the wallet in the way he was instructed by the Police Chief [Stewart]. The appellant’s wife alsotestified that she found the wallet and spent some of the money without the appellant knowing about it.

The trial judge rejected thetestimony of the appellant and his wife and found the appellant guilty. [52] The appellant later made a complaint against Stewart that was consistent with the testimony he had given at trial. It led to aninvestigation and a charge of perjury being laid against Stewart in relation to handling of exhibits in a different matter that took placebefore the events involving the appellant.

On the appeal from conviction, the Nova Scotia Court of Appeal admitted fresh evidenceregarding the perjury charge against Stewart, finding that his credibility was central to the Crown’s case and, as such, the evidence couldreasonably be expected to have affected the result. In that regard, Pugsley JA wrote: If the [trial judge] could have been informed that [Stewart] was charged with violating sections 137 and 139 of the [Criminal]Code respecting the manner in which he handled exhibits shortly before the issues concerning Mr.

Jesty, it might have altered the result attrial, or in the words of the fourth Palmer principle, it could reasonably, when taken with the other evidence adduced at trial, be expectedto have affected the result. (Emphasis in original) [53] Fresh evidence of subsequent events has also been admitted where those events were of such a nature that, if they had occurredprior to trial, certain important evidence would have been rendered inadmissible. An example of this is seen in R v G.(K.R.) (1991), (ON CA), 5 OR (3d) 406 (CA).

In that case, the appellant had been convicted at trial of sexually assaulting two children, J.and D. Before the trial, M., the younger brother of J. and D., complained that the appellant had also sexually assaulted him. M.'s testimonywas admitted as similar fact evidence at trial against the appellant. After he had been convicted of sexually assaulting J. and D., theappellant was also tried on a charge of sexually assaulting M. This charge related to the incident about which M. had given similar factevidence at the first trial.

The accused was acquitted of the charge relating to M. [54] On his appeal from the convictions relating to J. and D., the appellant applied to lead fresh evidence of his acquittal on thecharge relating to M. The Ontario Court of Appeal admitted the fresh evidence, finding that the acquittal on the charge relating to M.could reasonably be expected to have affected the result in the trial involving J. and D., as it would have made M.’s evidence inadmissiblein that trial. [55] However, fresh evidence of subsequent misconduct by a witness that does not directly touch on the testimony the witness gave

in the proceeding under appeal, or render that evidence inadmissible, is rarely admitted on appeal, even where the nature of themisconduct tends to raise questions about the witness’s general character or credibility. There are two key reasons for this: (

i) subsequentmisconduct is not generally seen as invalidating testimony previously given by a witness; and (ii) the importance of finality in criminalproceedings. [56] In R v Thomas (R.J.), 2009 MBCA 85, 245 Man R (2d) 155 [Thomas], the appellant had been convicted of second degreemurder at trial. He appealed his conviction on several grounds and also applied to introduce fresh evidence that a witness who hadtestified for the Crown at his trial had subsequently pled guilty to a charge of perjury. The Manitoba Court of Appeal dismissed theapplication, for two reasons.

The first was that, because the truthfulness of the witness’s evidence had been “canvassed extensively duringthe course of the trial”, the Court was not persuaded that the appellant had been prejudiced by the witness’s subsequent conviction (at para15). The second reason was that, as Monnin J.A. observed, “it is not in the interests of justice to keep reopening trials on the basis of whatmight occur after completion” (at para 16).

Justice Monnin, in paragraph 16, also quoted from the Ontario Court of Appeal’s decision in Rv Pizzardi (R.G.) (1994), (ON CA), 17 OR (3d) 623 (CA) at 630, where Lacourcière J.A. wrote that “[i]t would bedetrimental to the administration of justice to re-open trials merely because a trial witness has changed his mind or repudiated hisevidence”. [57] In R v Hallett, Bonderud and Coutu (1984), (MB CA), 28 Man R (2d) 241 (CA), the appellants had beenconvicted of extortion, in relation to what were said to have been efforts to collect a drug debt.

The Crown’s key witness, who was thevictim of the alleged extortion, received immunity in relation to some of his own crimes in exchange for his testimony. The trial judgeaccepted the witness’s evidence and found the appellants guilty. On appeal, the appellants applied to lead fresh evidence of post-trialactions by the witness, that included manufacturing a homemade bomb, to demonstrate his mental instability.

The Manitoba Court ofAppeal dismissed the application, holding that the evidence of the witness’s disreputable conduct was “not sufficiently probative of hisstate of mind either at the time of the events in question, or at the time of trial” to be admitted as fresh evidence on appeal (at 242). [58] In R v McGill (1986), 15 OAC 266 [McGill], the appellant had been convicted of murder. The Crown’s case against theappellant at trial relied, to a significant extent, on incriminating statements he had allegedly made to various people, including a mannamed Boucher.

Boucher had testified at trial that the appellant confessed to him and had also tried to enlist him and his associates to helphim get rid of other witnesses.

On appeal, the appellant applied to lead fresh evidence consisting of Boucher’s medical and psychiatricrecords and transcripts of testimony Boucher had given in other unrelated proceedings both before and after the appellants’ trial that“taken at face value, would show Boucher to be a liar and an experienced police informant” who had “from time to time receivedfavourable treatment from the police and the prison authorities” and that he may have given untruthful evidence during cross-examination(at para 13).

The Ontario Court of Appeal dismissed the application, observing that where proposed fresh evidence regarding the post-trialconduct of a witness raised no new facts about the matter that was the subject of the trial, did not impugn any facts established at the trial,and did not directly challenge the substance of the witness’s testimony, it “could not be said to bear upon a decisive or potentially decisiveissue in the trial” (at para 16). [59] What these cases collectively illustrate, in my view, is that evidence of post-testimony events or conduct on the part of awitness, even where it might be seen as casting a shadow over the witness’s general credibility or reliability, is not automaticallyadmissible as fresh evidence on an appeal. [60] In that respect, I find the reasoning in McGill particularly compelling in the circumstances at hand.

While it may be tempting todraw a connection between Dr. Levin’s testimony in the dangerous offender hearing and his subsequent criminal conduct, given thesubject matter about which he testified and the nature of the offences he committed, the mere fact that Dr. Levin committed seriouscriminal offences years after testifying does not raise any new facts relevant to the determination of Mr. Deckert’s sentence, does notimpugn any of the facts established in his case, and does not directly challenge the substance or veracity of Dr. Levin’s testimony.

On thatbasis alone, I am not persuaded that the fresh evidence would be properly admissible, because it does not bear upon a decisive orpotentially decisive issue. [61] Moreover, even if the proposed fresh evidence were such that it could be seen as discrediting the testimony Dr. Levin gave atMr. Deckert’s dangerous offender hearing, I am not persuaded that such a result could reasonably be expected to affect the reasonablenessof the Sentencing Decision. [62] The sentencing judge determined the Crown had succeeded in establishing that Mr.

Deckert met the criteria for designation as adangerous offender under both ss. 753(1)(a)(

i) and (ii) of the Criminal Code. This meant he was satisfied, to the requisite standard, thatMr. Deckert constituted a “threat to the life, safety or physical or mental well-being of other persons on the basis of evidence establishing”(as those provisions read at the time): (

i) a pattern of repetitive behaviour by the offender, of which the offence for which he has been convicted forms a part, showing a failureto restrain his behaviour and a likelihood of his causing death or injury to other persons, or inflicting severe psychological damage onother persons, through failure in the future to restrain his behaviour, [and] (ii) a pattern of persistent aggressive behaviour by the offender, of which the offence for which he has been convicted forms a part,showing a substantial degree of indifference on the part of the offender respecting the reasonably foreseeable consequences to otherpersons of his behaviour… [63] In finding that the requirements of subparagraphs (

i) and (ii) of s. 753(1)(

a) had been proven, the sentencing judge did not needto rely on Dr. Levin’s evidence at all. Those elements were firmly established by the circumstances of the offences Mr. Deckert hadcommitted. The sentencing judge found that the offences were “sufficiently similar in their commission to establish a pattern of repetitivebehaviour” (Sentencing Decision at para 111), and also that the circumstances demonstrated a pattern of persistent aggressive behaviour(at para 113). He went on to say: [114] The … assaults abound with examples of marked indifference.

With respect to [L.K.], Deckert threatened her life and her children'ssafety as he brandished a knife, sometimes held to her throat, back and vagina. [L.K.] felt she was going to be stabbed and was raped.Deckert then robbed her, which only serves to heighten the indifference he had for his victim.

[115] [A.R.] was struck with a hockey stick, punched, tied up, stripped and fondled. Deckert repeatedly called her “bitch” and told hershe was dead if she resisted. He threatened to insert an extension cord into her vagina. [116] Prior to [C.R.] biting Deckert's finger, Deckert had threatened her with a knife and pinned her on her bed as he readied himself torape her. After she bit him he beat her severely about the face. [C.R.] was also robbed by Deckert. [64] The sentencing judge also found the fact that Mr.

Deckert had not engaged in any sexual offender treatment programming inthe nearly 11 years he served in prison between 1987 and 1998 to be strong evidence of Mr.

Deckert’s lack of regard to the reasonablyforeseeable consequences of his offences on his victims, calling it the “high water mark for ‘indifference’” (at para 117). [65] The sentencing judge also determined that the circumstances of the offences themselves were sufficient to establish that Mr.Deckert had shown a failure to restrain his behaviour and that there was a likelihood of him causing death or injury or inflicting severepsychological damage through similar failures in the future.

In that regard, he said: [118] In my opinion it is unnecessary to look beyond the victim's description of the offences to find that the three incidents involved afailure on the part of the offender to control his behaviour. [119] If Deckert were to re-offend there is no question his behaviour would likely result in death, injury or severe psychological damageto a future victim.

The damage he has inflicted on his past victims makes this conclusion clear. [120] With respect to physical harm, the offence against [L.K.] left the victim with a cut on her forehead, bruising from her knees into herpelvis, including her vagina as well as bruising on her neck. These injuries took about two weeks to heal. [A.R.] suffered abrasions to herarms and ankles as well as facial bruising where she was struck by a hockey stick. [C.R.] suffered two black eyes, a cut lip, migraineheadaches and TMJ. It is important to note that Deckert held a knife to [L.K.]’s vagina and threatened to "slit her open".

As well hethreatened to harm her children. He told [A.R.] not to move or she was "dead" and told [C.R.] he would kill her if she was not quiet.Deckert's words, actions and use of weapons establish a likelihood he will cause physical harm or death to a future victim(s). [121] With respect to psychological and emotional trauma [L.K.] advised that on some nights she relives this horror. She added that sherarely will go outside at night alone, refuses to sleep alone in her bed and when she does have to sleep alone she suffers sleep disturbances.[A.R.] said she lost a part of her life she can never get back.

Now she is extremely cautious, always fearful that someone will hurt her orher daughters. [C.R.] also expressed a lack of trust in people, particularly men, a reduced interest in socializing and a fear of sleeping inher own bed. [66] As to the question of whether Mr. Deckert continued to pose a threat to the life, safety or physical or mental well-being ofothers going forward, while it is fair to say that the sentencing judge placed some reliance on Dr. Levin’s opinion as it related to Mr.Deckert’s treatment prospects and risk to reoffend, that was not the only evidence relevant to those issues and, even if Dr.

Levin’stestimony were disregarded, the sentencing judge’s conclusion would not be rendered unreasonable. [67] In that respect, there was ample evidence, from various witnesses who had worked with Mr. Deckert in the correctional system,that he continually denied his offences were sexual in nature and that he refused sexual offender programming. Those same witnesses alsoprovided evidence that Mr.

Deckert’s denials and refusal of programming would pose real problems when it came to monitoring andsupervising him in the community if he were released (Sentencing Decision at paras 34–37 and 42–48). [68] The Crown also led evidence at the dangerous offender hearing from Dr. Werner Albert, who was qualified as an expert inforensic psychology and the assessment and treatment of violent persons. Dr. Albert testified that Mr.

Deckert was, in his opinion, a“primary psychopath”, who showed no remorse for his victims, did not have a positive attitude toward treatment and posed an “extremelyhigh risk of violent re-offending, and extremely high risks of sexual re-offending because of his sexually aggressive appetites” (SentencingDecision at paras 52–55). The sentencing judge accepted Dr. Albert’s testimony. [69] Mr. Deckert argues that, if Dr. Levin’s evidence were removed from the equation, there would have been no proper basis forthe sentencing judge to reject the evidence given at the sentencing hearing by Dr.

Nicholaichuk, which was more optimistic regarding Mr.Deckert’s treatment prospects. This, he says, would render the Sentencing Decision unreasonable. I disagree. As I read the sentencingjudge’s reasons, even though he stated that he accepted the testimony of Dr. Levin where it conflicted with that of Dr. Nicholaichuk (atpara 132), it is clear that Dr. Levin’s testimony was not his only basis for taking the view that he took of Dr. Nicholaichuk’s evidence.There were several other reasons why the sentencing judge did not accept everything Dr.

Nicholaichuk said, as illustrated in this portion ofthe Sentencing Decision: [128] Although Dr. Nicholaichuk says that Deckert's risk factor has been reduced since 1990, he did concede in cross-examination that hemay be mistaken. [129] Dr. Nicholaichuk states that although Deckert posed a significant risk to the public when he was a young man, there are a numberof indications that he may be somewhat more manageable currently. One of the factors is that he is fully prepared to participate in thetreatment process.

In my view that is not very comforting as the overwhelming evidence is to the effect that during Deckert's lengthyperiod of incarceration he refused, in most instances, to undertake sex offender treatment. [130] It is also significant that Dr. Albert, in conducting a series of tests on Deckert for a risk assessment, concluded that Deckertcontinued to lie to create a favourable oppression. This would have an effect on Dr. Nicholaichuk's conclusions as his opinion was based inpart on representations Deckert made to him. [131] One of the factors that Dr.

Nicholaichuk relies on to reduce risk to re-offend is Deckert's age. This burn out theory has beenrejected by the courts. See R. v. Poutsoungas (1989), (ON CA), 49 C.C.C. (3d) 388 (Ont. C.A.). [70] In light of all this, even if Dr. Levin’s testimony were discredited, I see no basis upon which to conclude that the reasonablenessof the Sentencing Decision would be called into question. To put that another way, I am not persuaded that the proposed fresh evidencecould reasonably be expected to affect the result and, therefore, it is not properly admissible. It follows that Mr. Deckert’s proposed appeal

has no merit. 5. The interests of justice [ 71 ] The importance of finality in criminal proceedings is a relevant consideration when contemplating what the interests of justice require. In this case, Mr. Deckert’s proposed appeal is 20 years out of time and is based entirely on events, not directly related to his case, that occurred well after he was sentenced. A significant portion of the delay in bringing the appeal has not been adequately explained. Mr. Deckert’s proposed appeal lacks merit. In light of all that, I simply cannot conclude that the interests of justice favour extending the time for Mr.

Deckert to appeal. IV. CONCLUSION [ 72 ] Mr. Deckert’s application is dismissed. “Kalmakoff J.A.” Kalmakoff J.A.