In the recent decision of R. v. Gracie, the Ontario Court of Appeal upheld the lower court’s decision designating Daniel Gracie (“Gracie”) a dangerous offender for withholding his HIV status from women, despite making legal errors.
Gracie, of Indigenous ancestry, was adopted by non-Indigenous parents as an infant. He moved out of their home at the age of 15, at which point he became involved with the criminal justice system. He has 25 youth convictions and 10 adult convictions.
In early 2010, Gracie was at the apartment of his friend C.C. After an evening of drinking, he had asked her to have sex with him several times and she refused each time. She then went to bed as she was feeling ill and tired. He was planning on spending the night on the futon in her living room. When C.C. woke up the next morning, her vagina was sore and semen was leaking out of it. Gracie eventually admitted that he had sex with her while she was asleep. Approximately, one year later C.C. found out that she had contracted HIV.
A second complainant, M.N., also accused Gracie of withholding his HIV status. The two had an on-again off-again relationship between 2008 and 2011. When the couple began dating again in 2011, they had unprotected sex after Gracie confirmed that he did not have any sexually transmitted diseases. After watching a police media release naming Gracie as an HIV-infected individual charged with sexual assault, M.N. sought medical treatment and confirmed that she had contracted HIV from Gracie.
In the past, Gracie had been convicted of sexual assault causing bodily harm for the violent rape of a sex worker. While he served his sentence for this crime, he was charged and convicted of counseling the murder of the police officer who was investigating the sexual assault incident. He was also convicted of other crimes while he was on probation for these previous offences and committed the sexual assaults that were the substance of the appeal.
THE SENTENCING HEARING
Gracie pleaded guilty to two counts of aggravated sexual assault. At his sentencing hearing, there was evidence to prove that Gracie had been advised by doctors and his probation officer regarding the risks of having unprotected sex and his legal obligation to disclose his HIV status to all potential sexual partners.
The trial judge at his sentencing hearing designated Gracie as a dangerous offender. This is a legal designation only reserved for those individuals who are repeatedly convicted of violent or sexual crimes. Crown prosecutors can apply for this designation under section 753(1) of the Criminal Code during the sentencing hearing where it can be shown that there is a high risk that the offender will commit violent or sexual offences in the future. This designation results in an automatic imprisonment for an indeterminate period, with no change of parole for seven years.
The sentencing judge ruled that Gracie was to remain incarcerated indefinitely.
Gracie appealed the lower court decision granting him the label of dangerous offender and his indeterminate jail sentence. Gracie argued that the sentencing judge did not properly conduct a prospective risk assessment and failed to take his Indigenous background into account during sentencing.
The three judges on the bench for Gracie’s appeal unanimously agreed that while the sentencing judge did not conduct the risk assessment until the penalty stage, rather than completing it before declaring him a dangerous offender, the verdict would have remained the same.
The appeal court held that the evidence proved that Gracie could not be trusted in the community as he had been found on all assessments to pose a moderate to high risk of violent or sexual reoffending.
The court also found that given his diagnosis of antisocial personality disorder and psychopathic traits, he would be less responsive to treatment. Furthermore, Gracie had never showed signs of a willingness to take part in corrective programming during his previous incarcerations.
Lastly, although the sentencing judge did not reference having reviewed a report regarding Gracie’s Indigenous background, the appeal court held that those factors would not have affected the sentencing decision. The appeal court noted that Gracie’s biological mother was Indigenous, however, he was adopted as an infant by a non-Indigenous family and moved to Toronto. The court stated:
His life of crime began in his teenage years and he did not meet members of his biological family until much later in life, after he committed the predicate offences. …
The risk of sexual and violent recidivism was the product of his serious personality disorder, his poor treatment and supervision history, and the dim prognosis for meaningful change.
If you are facing sexual offence charges or have any questions regarding your legal rights, please contact Durham region criminal defence lawyers Affleck & Barrison LLP. We have a reputation for effective results in defending all types of criminal legal charges. We offer a free initial consultation and a 24-hour phone service. Contact our office online or at 905-404-1947 to speak with one of our experienced criminal defence lawyers today.