Criminal - Sentencing - Dangerous Offender
Part 2 | Part 3
. R. v. Smith
In R. v. Smith (Ont CA, 2023) the Court of Appeal considered a 'dangerous offender' on the meaning of the statutory phrasing "pattern of persistent aggressive behaviour" [CCC s.753(1)(a)(ii)]:
LEGAL INTERPRETATION OF “PATTERN OF PERSISTENT AGGRESSIVE BEHAVIOUR” IN S. 753(1)(a)(ii). R. v. Wong
 Where the Crown relies on violent behaviour to obtain a dangerous offender designation, it must satisfy the court that the offender: (1) has been convicted of “a serious personal injury offence”; and (2) constitutes “a threat to the life, safety or physical or mental well-being of other persons” based on one of three enumerated grounds: Boutilier, at paras. 17-18; see also Criminal Code, s. 753(1)(a). One of these grounds is “a pattern of persistent aggressive behaviour … showing a substantial degree of indifference on the part of the offender respecting the reasonably foreseeable consequences to other persons of his or her behaviour”: Criminal Code, s. 753(1)(a)(ii).
 But what constitutes “a pattern of persistent aggressive behaviour” in s. 753(1)(a)(ii)?
 To answer this question, it is helpful to consider legal interpretations of the provision.
 I start with the statutory provisions. Modern statutory interpretation requires “one principle or approach, namely, the words of an Act are to read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament”: E.A. Driedger, Construction of Statutes, 2nd ed. (Toronto: Butterworths, 1983) at p. 87. Statutory interpretation of bilingual statutes such as the Criminal Code “begin[s] with a search for the shared meaning between the two versions”: Ruth Sullivan, The Construction of Statutes, 7th ed. (Toronto: LexisNexis, 2022), at p. 142.
 The interpretation of the word "persistent" in the English language version of s. 753(1)(a)(ii) as chronic behaviour that persists over time but need not be continuous, is consistent with the French language version of s. 753(1)(a)(ii). The French version of s. 753(1)(a)(ii) refers to “la répétition continuelle [des] actes d’agression”. One of the synonyms for “continuelle” in Le Petit Larousse is “chronique”, which in turn is defined as “qui dure, persiste”: Le Petit Larousse (Paris: Larousse, 2003), at pages 215 and 255.
 This interpretation is also consistent with the case law as further outlined below.
 The court in Knife, at para. 66, defined a “pattern of persistent aggressive behaviour” as “repetitive behaviour [that] must show a substantial indifference on the part of the offender respecting the reasonably foreseeable consequences to other persons of his or her actions.” See also Courtemanche c. R., 2016 QCCA 881, at para. 23, citing R. v. Hogg, 2011 ONCA 840, 287 O.A.C. 82; and R. v. Neve, 1999 ABCA 206, 71 Alta. L.R. (3d) 92.
 Two acts may give rise to a “repetitive” behaviour but, where there are fewer instances, the repetitive acts must generally be more similar: R. v. Gibson, 2021 ONCA 530, 157 O.R. (3d) 597, at para. 223, citing Hogg, at paras. 40 and 43; R. v. Szostak, 2014 ONCA 15, 118 O.R. (3d) 401, at paras. 56-57, leave to appeal refused,  S.C.C.A. No. 300.
 In interpreting the dangerous offender legislation, some courts have equated “persistent” with “repetitive”: see e.g., Neve, at para. 111, citing R. v. J.Y. (1996), 1996 CanLII 4916 (SK CA), 141 Sask. R. 132 (C.A.), at para. 25; R. v. Primmer, 2017 ONSC 2953, at para. 139, aff’d 2021 ONCA 564, leave to appeal refused,  S.C.C.A. No. 462; R. v. Naess,  O.J. No. 936 (S.C.), at para. 61; and R. v. Byers, 2011 ONSC 4159, at para. 365, aff’d 2017 ONCA 639.
 However, although the earliest decision in J.Y., at paras. 25-26, rejected an argument that the term “persistent” required proof that the behaviour continued in the face of obstacles or opposition, the court did not say the terms were analogous:
The appellant argued that since Parliament had used the term “repetitive behaviour” in s. 753(a)(i), and the term “persistent aggressive behaviour” in s. 753(a)(ii), the term “persistent” in the latter clause should be read as meaning something more than merely repetitive: that there should be proof that the behaviour continued in the face of obstacles or remonstrance, something which was not established in this case, since the appellant had never been previously convicted or otherwise impeded in the pursuit of his activities. However, the Oxford Concise Dictionary defines the word persistent as meaning “enduring” or “constantly repeated”. The judge made no error in finding that the behaviour of the appellant was persistent in view of the fact that the period of time during which he committed the offences of which he was convicted extended from 1964 to 1992 without any significant periods during that time when no offences were being committed. Authors Gary Botting, Vincent LaRochelle and Alison Yule in Dangerous Offender Law (Toronto: LexisNexis Canada, 2021), at p. 27, describe “persistence” as “subsistence through a long period of time, a concept quite different from the notion of repetition. While a repetitive pattern of harmful conduct is the main predictive element of paragraph 753(1)(a)(i), the main predictive element of paragraph (ii) is the offender’s indifference to future harm to others arising from their conduct.”
As noted above, only two of the offences of which the appellant was convicted, counts 1 and 2, are predicate offences for an application under s. 753. However, those two offences were found by the trial judge to be a part of the pattern of persistent aggressive behaviour as required by s. 753. [Bold in original; underlining added.]
 To determine “which past conduct goes on the pattern scale”, the Court of Appeal of Alberta emphasized in Neve, at para. 118, that an understanding of the surrounding circumstances is important as:
Without understanding that context, it would not be possible for a judge to make an informed, reliable assessment on whether the offender’s past behaviour will be likely to lead to harm in the future. After all, whether something is likely to be repeated in the future is linked not only to what happened in the past but why it happened. This being so, it will be evident that if the analysis of past behaviour is undertaken without reference to the surrounding circumstances, this can lead to an undermining of a judge’s conclusion on two different levels – first, in terms of assessing which past conduct goes on the pattern scale; and second, in assessing the likelihood of that behaviour continuing in the future as a result of the offender’s failure to restrain or substantial indifference. [Emphasis added.] Thus, while the definitions in s. 753(1)(a)(i) and (ii) are different, the patterns under each may overlap. “After all, that is what a pattern entails – repetition”: R. v. McCallum, 2016 SKCA 96, 484 Sask. R. 175, at para. 46, leave to appeal refused,  S.C.C.A. No. 406.
 In R. v. Fulton, 2012 ONCA 781, this court held that although the appellant had exhibited a similar pattern of behaviour demonstrating a substantial degree of indifference, this was not enough to designate him a dangerous offender under s. 753(1)(a)(ii) as the sentencing judge had not specifically addressed whether the pattern was “persistent”. The court reasoned, at paras. 13 and 14, that:
In her detailed description of the appellant’s behaviour in the 2003 and 2008 offences, the sentencing judge stressed the features that led her to conclude there was a “pattern”. There is nothing to indicate that she separately considered whether that pattern was persistent. The circumstances of this case required an express discussion of that question. A pattern of “persistent aggressive behaviour” has been found however, even where there is a lengthy gap between the predicate and earlier offences, where the offender returns to the impugned behaviour.
In this case, the two sets of offences that formed the pattern identified by the sentencing judge were separated by some five years. The appellant had not exhibited violent behaviour otherwise in his history. The complainant in the predicate offences indicated that the appellant had never been violent with her before, and the appellant had not been violent while institutionalized. It is worth noting that the expert called by the Crown, though weakly suggesting one could say there was a pattern in the appellant’s behaviour, did not address whether that pattern was “persistent”. [Emphasis added.]
 In R. v. Williams, 2018 ONSC 2030 (“Williams (ONSC)”), aff’d 2022 ONCA 182, the sentencing judge was satisfied that the offender met the criteria for designation as a dangerous offender under ss. 753(1)(a)(i) and (ii) and 753(1)(b) even in the face of a 12-year gap between sexual crimes. The sentencing judge held, at para. 252, that persistence described in s. 753(1)(a)(ii) “connotes behaviour which is enduring, continuous, obstinately persevering, interminable or sustained” and concluded, at para. 287, that:
Review of the s. 753(1)(a)(ii) criteria relating to proclivity for violence reveals a pattern of persistent aggressive behaviour on the part of the offender. The offender has a criminal record for assault in 1990 and 1994 and a history of assault of domestic partners and one of his sons. Apart from this generalized history of violence, the sexual crimes of the offender are all instances of domination of a female victim with a substantial degree of indifference on his part respecting the reasonably foreseeable consequences for his victims. Sexual crimes are inherently offences of violence against the person.... In terms of pattern, the forcible confinement of the female victims in 1997 and 2014, and the forceful acting out on his partialism paraphilia with all his victims, shows a determined, persevering and enduringly repeated course of behaviour of sexual impulses giving way to victimization of others with disregard of the consequences to his victims. The observations respecting s. 753(1)(a)(i) are apposite here respecting future threat based upon high likelihood of harmful recidivism and the intractability of the offender’s conduct. [Emphasis added; footnotes omitted.] Similarly, in R. v. Brown, 2021 ONCA 678, 158 O.R. (3d) 275, leave to appeal refused,  S.C.C.A. No. 460, this court affirmed a trial judge’s finding that the offender had a pattern of persistent aggressive behaviour and his designation as a dangerous offender under s. 753(1)(a)(ii) even where there was a ten-year gap between the predicate offences and earlier home invasions. In that case, the offender was convicted of various assault and weapons-related offences stemming from a 2012 armed robbery at a car dealership. At the time, he had a significant criminal record, including convictions resulting from two violent home invasion robberies in 2002 and 2003. In addition, his record included drug and firearm offences committed not long after he completed serving his sentence for the home invasions, a 2007 conviction for unlawfully being in a dwelling house, a 2010 conviction for drug trafficking, and convictions for multiple breaches of recognizance and one count of drug possession.
 In upholding the trial judge’s decision in Brown, this court noted that it was reasonable to conclude that the predicate offences and home invasions formed a pattern of persistent aggressive behaviour, notwithstanding the ten-year gap:
The appellant submits that the requirement of persistent aggressive behaviour requires a more consistent pattern — more examples of the behaviour and greater similarity among them — than that needed to satisfy the requirement of repetitive behaviour under s. 753(a)(i). Therefore, the trial judge’s approach of finding the same conduct satisfied both ss. 753(a)(i) and (ii) was flawed. Likewise, in R. v. Robinson, 2011 BCSC 728, at para. 122, the Supreme Court of British Columbia was satisfied that the Crown had proven a pattern of persistent aggressive behaviour despite the absence of “a continuous chain of offences without any significant periods where [the offender] did not offend.” In that case, the court was not ultimately satisfied that all the criteria in s. 753(1)(a)(ii) were met, but it held that the offender had engaged in a pattern of persistent aggressive behaviour because when he “was subjected to stressors”, he “became unstable and resorted to violence”: Robinson, at para. 122.
I would not give effect to this argument. The test under s. 753(a)(ii) “does not depend upon similarities among the predicate offences”: R. v. C.W., 2019 ONCA 976, at para. 28. In my view, it was reasonable for the trial judge to reach the conclusion that the home invasions and the predicate offences [committed ten years apart] formed a pattern of persistent aggressive behaviour. They each involved aggressive behaviour that was persistent – the appellant returned to the behaviour even after having been convicted and incarcerated for prior episodes of it. [Emphasis added.]
 As the above cases demonstrate, the fact that there is a gap between offences is not determinative provided: (i) there is a pattern of behaviour (ii) involving persistent acts of aggression causing serious harm and demonstrating a substantial degree of indifference to the consequences of the offender’s actions that (iii) creates a serious risk of ongoing harm to the public: see Williams (ONSC), at para. 287; Brown, at para. 55; and Robinson, at para. 122. See also R. v. C.W., 2019 ONCA 976, at para. 28; Neve, at para. 108; R. v. Tynes, 2022 ONCA 866, 165 O.R. (3d) 321, at para. 70.
 As noted above, the fact that there is a gap between offences is not determinative provided there is a persistent pattern of aggression and a substantial degree of indifference to the consequences of the offender’s actions: see e.g., C.W., at para. 28; Neve, at para. 108; Williams (ONSC), at para. 287; Brown, at para. 55; and Robinson, at para. 122.
 As noted above, it is important for the sentencing judge to have as much information as possible to evaluate “the public interest in safety and the general sentencing interest of developing the most appropriate penalty for the particular offender” and to properly evaluate the risk posed by the offender, as the overriding aim is not to punish the offender but to prevent future violence through the imposition of an indeterminate sentence: Jones, at pp. 289-90; R. v. Williams, 2018 ONCA 437, at paras. 47-49 (“Williams (ONCA)”), leave to appeal to refused,  S.C.C.A. No. 164. As with any sentencing hearing, hearsay evidence is admissible in a dangerous offender proceeding provided it is “credible and trustworthy”: Williams (ONCA), at paras. 48-49; R. v. Gardiner, 1982 CanLII 30 (SCC),  2 S.C.R. 368, at p. 414.
In R. v. Wong (Ont CA, 2023) the Court of Appeal considers elements of a criminal dangerous offender finding under CCC 753, as part of the sentencing stage:
 As stated by this court in R. v. Sawyer, 2015 ONCA 602, 127 O.R. (3d) 686, at para. 26, appellate review of a dangerous offender designation is concerned with whether the court below made any legal errors and whether the dangerous offender designation was reasonable. In addition, while this court owes deference to the sentencing judge’s findings of fact and credibility, “appellate review of a dangerous offender designation is more robust than on a ‘regular’ sentence appeal”. Nevertheless, the sentencing judge’s factual and credibility findings are entitled to deference: Sawyer, at para. 26.
 Pursuant to Part XXIV of the Criminal Code, there are two stages to dangerous offender proceedings: R. v. Boutilier, 2017 SCC 64,  2 S.C.R. 936, at paras. 13-15. The first stage, as set out in s. 753(1), is referred to as the “designation stage” and is concerned with whether the statutory requirements are met for an offender to be designated as dangerous. The second stage is referred to as the “sentencing stage”, and is governed by ss. 753(4) and (4.1) of the Criminal Code. The issues on this appeal focus on the designation stage and whether the sentencing judge made any errors in designating Mr. Wong as a dangerous offender.
 Section 753(1) sets out the requirements for a court to designate an offender as dangerous. In this case, subs. (i) and (ii) of s. 753(1)(a) are the relevant provisions:
753 (1) On application made under this Part after an assessment report is filed under subsection 752.1(2), the court shall find the offender to be a dangerous offender if it is satisfied As part of these statutory requirements, both ss. 753(1)(a)(i) and (ii) require the Crown to demonstrate that the predicate offence forms part of a “pattern”. Under s. 753(1)(a)(i), the Crown must demonstrate that the predicate offence forms part of a “pattern of repetitive behaviour” that shows a lack of restraint, and that the unrestrained behaviour has “a likelihood of causing death or injury to other persons, or inflicting severe psychological damage on other persons”. Under s. 753(1)(a)(ii), the Crown must show a “pattern of persistent aggressive behaviour” that includes the predicate offence and that shows substantial indifference to the reasonably foreseeable consequences of the behaviour.
(a) that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (a) of the definition of that expression in section 752 and the offender constitutes a threat to the life, safety or physical or mental well-being of other persons on the basis of evidence establishing
(i) a pattern of repetitive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a failure to restrain his or her behaviour and a likelihood of causing death or injury to other persons, or inflicting severe psychological damage on other persons, through failure in the future to restrain his or her behaviour,
(ii) a pattern of persistent aggressive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a substantial degree of indifference on the part of the offender respecting the reasonably foreseeable consequences to other persons of his or her behaviour
(1) Pattern of repetitive behaviour under s. 753(1)(a)(i)
 For the purposes of s. 753(1)(a)(i), a pattern of repetitive behaviour is a pattern that contains “enough of the same elements of unrestrained dangerous conduct to be able to predict that the offender will likely offend in the same way in the future. … However, the offences need not be the same in every detail; that would unduly restrain the application of the section”: R. v. Hogg, 2011 ONCA 840, 287 O.A.C. 82, at para. 40; R. v. Szostak, 2014 ONCA 15, 118 O.R. (3d) 401, at para. 56. “Differences in the details of the offences will not be relevant if the predicate and past offences represent [as s. 753(1)(a)(i) requires] ‘a pattern of repetitive behaviour by the offender … showing a failure to restrain his or her behaviour and a likelihood of causing death or injury to other persons, or inflicting severe psychological damage on other persons, through failure in the future to restrain his or her behaviour’”: R. v. Brissard, 2017 ONCA 891, 356 C.C.C. (3d) 494, at para. 57.
 In R. v. Gibson, 2021 ONCA 530, 157 O.R. (3d) 597, at para. 228, this court emphasized that the requirement for a pattern refers to a pattern of behaviour and not a pattern of offences:
The statutory requirements demand proof of a pattern of behaviour, not a pattern of offences or convictions. In its ordinary, everyday sense, a pattern refers to an arrangement or order discernible in, among other things, objects, actions or ideas. As used in s. 753(1), a pattern refers to actions, not thoughts. The required pattern is based not solely on the number of offences, but also on the elements of similarity in the offender’s behaviour. [Emphasis added.]....
 As reviewed above, the requirement for a pattern in s. 753(1)(a) does not focus on prior offences but on prior behaviour. Here, the sentencing judge did not just rely on the weapons possession offences in the abstract. Rather, she carefully explained how the circumstances of those offences formed part of a repetitive pattern with the predicate offences. She explained the behavioural commonalities between all offences, including that Mr. Wong was carrying a loaded firearm in public places in the context of gang affiliated drug transactions, and that he used a firearm in committing the predicate offences. Again, the sentencing judge was not only focused on the weapons possession convictions, but on Mr. Wong’s behaviour.
 In addition, there is no requirement that the pattern of behaviour involve the use of force or actual violence. This is clear from the definition of “serious personal injury offence” in s. 752 of the Criminal Code which includes conduct that endangers or is likely to endanger the life or safety of others:
serious personal injury offence means Notably, in R. v. Steele, 2014 SCC 61,  3 S.C.R. 138, at para. 51, in addressing the meaning of “violence” in this definition, the Supreme Court stated that, to qualify as a “serious personal injury offence”, an offence does not always require the actual use of force. Rather, “judicial interpretations of the term ‘violence’ suggests that the focus is on the harm caused, attempted or threatened rather than on the force that was applied”. The court also emphasized that “[c]ontext will be paramount”.
(a) an indictable offence, other than high treason, treason, first degree murder or second degree murder, involving
(i) the use or attempted use of violence against another person, or
(ii) conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage on another person,
and for which the offender may be sentenced to imprisonment for ten years or more [Emphasis added.]
 In R. v. Neve, 1999 ABCA 206, 71 Alta. L.R. (3d) 92, which is often cited for its comprehensive review of the requirements for designation of a dangerous offender, and which the sentencing judge relied on in this case, the Court of Appeal for Alberta explained the types of behaviour that could form part of a pattern having regard to the definition of “serious personal injury offence”:
Does all criminal behaviour form part of the pattern? In our view, it does not. We read s.753(a) as requiring that the court be satisfied on two points: (a) that the predicate offence is part of a pattern of behaviour which has involved violent, aggressive or brutal conduct; and (b) that it is likely that this pattern of conduct will continue and will lead to conduct endangering the life, safety or physical well-being of others: see Lyons, supra. Since a predicate offence under s.753(a) must be a “serious personal injury offence” (meaning that it itself must meet either a violence or endangerment requirement under s.752(a)), it follows logically that the past behaviour must also have involved some degree of violence or attempted violence or endangerment or likely endangerment (whether more or less serious than the predicate offence). Otherwise, the predicate offence would not be part of that pattern. [Emphasis added.]....
 The test under s. 753(a)(ii) “does not depend upon similarities among the predicate offences”: R. v. C.W., 2019 ONCA 976, at para. 28. Rather, it requires a pattern of aggressive behaviour that shows indifference to its impact on others. ....
(3) Conclusion on issue 1
 Ultimately, the sentencing judge did not only rely on the convictions for prior firearm possession offences in finding patterns under ss. 753(1)(a)(i) and (ii) of the Criminal Code. Rather, there was extensive evidence that supported her finding that the appellant’s behaviour formed both part of a repetitive pattern and a pattern of aggression, and that he met the other criteria under these subsections.
 While Mr. Wong was young at the time he committed the predicate offences, his aggressive and impulsive behaviour has been persistent since the age of 13. The predicate offences represented a dramatic escalation in that behaviour, and clearly supported a finding that Mr. Wong has difficulty restraining himself and that he is indifferent to the consequences of his behaviour. In the circumstances, the sentencing judge’s determination that the appellant should be designated as a dangerous offender was not unreasonable.
 I would emphasize that the sentencing judge’s decision and this decision on appeal should not be taken as suggesting that, on their own, convictions for possession of a firearm followed by a violent offence, including where the person is gang-involved, would be sufficient to designate that person as a dangerous offender. However, in this case, given all the circumstances of Mr. Wong’s history and the nature of the predicate offences, the sentencing judge’s decision to designate Mr. Wong as a dangerous offender was not unreasonable.
 The strict rules of evidence that apply to a trial do not govern sentencing proceedings. At the sentencing stage, the objective is to ensure that the judge has access to the “fullest possible information concerning the background of the [offender]”: R. v. Gardiner, 1982 CanLII 30 (SCC),  2 S.C.R. 368, at p. 414. In the context of a dangerous offender application, the importance of ensuring that the sentencing judge has the fullest possible information about the offender is heightened: R. v. Jones, 1994 CanLII 85 (SCC),  2 S.C.R. 229, at p. 290; and R. v. Williams, 2018 ONCA 437, at para. 48.