Court of Appeal

Judges:

Per Curiam (Saunders, Hamilton and Scanlan, JJ.A.)

Appeal Heard:

April 18 and 19, 2017, in Halifax, Nova Scotia

Subject:

Appeal of convictions on a number of sex related offences and appeal of designation as a dangerous offender, sentenced to indeterminate sentences.

Summary:

The appellant sexually assaulted a victim whom he had befriended and lured into a hotel room, ostensibly to engage in a modeling photo-shoot. As part of his scheme he administered an intoxicating substance to the victim. To assist him in carrying out the assault he placed a shoe lace around the victim’s neck and choked her to the point that she was losing consciousness. The assault ended only when other patrons in the hotel heard screaming and summoned management to the room, allowing the victim an opportunity to escape.

The appellant had assaulted other females in the past, one being only 12 years old at the time of the assault. Each one of the victims were lured into a situation that provided the appellant an opportunity to be alone with the victims. In each case he applied a weapon or force to the neck area of the victim to subdue them.

Upon conviction, the Crown applied to have the appellant declared a Dangerous Offender pursuant to the provisions of the Criminal Code. Expert evidence was called and, that evidence, together with the evidence from two earlier victims,   was sufficient to satisfy the trial judge that Mr. Bailey was a dangerous offender.

Mr. Bailey was sentenced as a dangerous offender to indeterminate sentences.

Issues:

(1)         Was the similar fact evidence from the two earlier victims admissible?

(2)         Was the appellant entitled to present fresh evidence on appeal related to accessing the contents of his cell phone?

(3)         Miscellaneous items related to appeal on the merits.

(4)         Did the sentencing judge err in declaring Mr. Bailey a dangerous offender and imposing indeterminate sentences?

Result:

(1)     The trial judge did not err in admitting the similar fact evidence to show: modus operandi, rebut the defence of consent, and to be used in assessing the credibility of the complainant in the case being tried.

(2)     There was no fresh evidence to be admitted on appeal. Mr. Bailey was asking the RCMP to “unlock” his cellphone. The RCMP do not have access to technology which would allow them to “unlock” the cellphone without destroying the data contained therein.

(3)     There were approximately 14 miscellaneous arguments raised in the notice of appeal or during oral arguments. There was no merit to any of the miscellaneous grounds of appeal.

(4)      The decision to declare the appellant a dangerous offender was clearly reasonable based on the evidence. There was an expert psychiatric report admitted as evidence. It referenced a pattern of sexual predation going back over 29 years. The report noted that in spite of his physical limitations, the appellant’s level of violence continues to escalate, and his behaviour is not likely to be inhibited by normal standards of behavioural restraint. The judge did not err in considering the earlier offences against females, or the expert report.  That evidence fully supports the judge’s decision to declare the appellant a dangerous offender. The psychiatric report described the appellant’s risk for reoffending outside of jail as being “enormous”, saying the appellant’s sexual sadism and psychopathy precluded a realistic scenario that he could be released to the community at an acceptable or manageable risk level. The indeterminate sentences are reasonable.