R. v. Côté

Court Information

Court: Ontario Court of Justice

Judge: Justice D.P. Cole

Date of Judgment: November 15, 2012

Dates Heard: October 13 & 15, 2009; April 11, 26, 27, 28, 29, May 5, 24, 25 & 26, 2011; June 20, 21, 27 & 28, 2012

Parties

Crown: P. Travers; R. Zaied

Defence: R. Lewin; J. Goldenberg

INTRODUCTION

1Following pleas of guilty to the "serious personal injury offences" of (1) sexual assault causing bodily harm (2) choking with intent to commit an indictable offence (3) being masked with intent to commit an indictable offence, and (4) unlawful confinement, the Crown now applies (a) to have Mr. Côté designated as a dangerous offender (DO), and (b) seeks the imposition of a sentence of indeterminate detention pursuant to s.753 of the Code.

2In the event that this application is dismissed, the Crown alternatively applies for an order that Mr. Côté be found to be a long-term offender (LTO) pursuant to s. 753.1 of the Code. If I am persuaded that the offender meets the various criteria outlined in that section, the Crown proposes that Mr. Côté be sentenced to a total term of 12 years consecutive to the sentence he is now serving, followed by a long-term supervision order (LTSO) for the maximum period of 10 years.

3After some months of attempting to make arrangements with Toronto counsel Mr. Côté eventually retained Mr. Lewin to represent him in these Ontario proceedings. When I became seized with this case in October 2009, Mr. Lewin indicated that his instructions were to oppose the anticipated dangerous offender application, on the basis that the Crown's overall behaviour was so egregious that it should be estopped from proceeding with either a dangerous offender application or a long term supervision application. He initiated a motion, based on s.7 of the Charter, seeking an order that the Crown should be prohibited from proceeding further with the dangerous offender application or from seeking a long term offender designation, and I should instead direct that a definite sentence be imposed. Much evidence was called in relation to the Crown's alleged abuse of process.

4Part way through the proceedings, Mr. Côté discharged Mr. Lewin and retained Ms Goldenberg. Once she became properly briefed, she indicated that her instructions were that the "s.7 motion" was to be treated as abandoned. Her further instructions were that Mr. Côté now concedes he fits the dangerous offender criteria set out in s. 753, but that she would be seeking that I exercise my discretion not to impose this designation, a disposition found by the Supreme Court of Canada to be lawful and appropriate in R. v. Johnson 2003 SCC 46, [2003] 2 S.C.R. 357. Her position was that I should make a finding that Mr. Côté meets the criteria to be found to be a long-term offender (LTO), and that I should impose a sentence of 4 years consecutive to any sentence now being served, followed by a long-term supervision order (LTSO) for 10 years.

PROCEDURAL HISTORY OF THE EVENTS AND CHARGES AGAINST MR. CÔTÉ

5Though somewhat convoluted, this history is necessary to explain the positions ultimately taken by the parties on various issues central to this case.

The California Incident

6For many years prior to his arrest in 2001 Mr. Côté was a long haul truck driver, whose duties took him all across Canada, the United States and Mexico. On April 5, 1993 he was driving his Quebec-registered truck in Ontario County, California when he met L.R. and C.C., 14 and 15 year-old female runaways, at a truck stop. He invited them to join him, which they agreed to do. They alleged that, though they entered his truck voluntarily, soon he detained and sexually assaulted them over a period of several hours. After eventually escaping from his control in the town of Ventura, California they complained to the local police about what he had done.

7The complainants provided Ventura police officials with details about the identification of the truck being driven by Mr. Côté, but by the time the police got involved Mr. Côté was nowhere to be found. Some days later Det. Wapner of that force spoke with Mr. Côté's Quebec employer, who checked the company records and told him that Mr. Côté had been driving that truck on April 5, 1993; after some further investigation a warrant was issued for Mr. Côté's arrest. Soon after learning of the existence of that warrant Mr. Côté telephoned Det. Wapner. He told the officer that his position was (and is) that he had provided the complainants with a ride in exchange for consensual sexual services (for which he paid them), that he would cooperate with the investigation, and that, in the event the U.S. authorities commenced such a process, he would "not fight extradition back to the United States". Two days later Det. Wapner spoke with Mr. Côté and told him that he would be in touch with him further after he had consulted with the Ventura District Attorney's office. However, no process was ever commenced by the California authorities to attempt to force Mr. Côté to return to face the pending charges, and nothing further was done about these charges until it was discovered that Mr. Côté was in a Florida jail in 2001.

The First Quebec Sexual Assault

8On the evening of July 29, 2000 15 year-old J.S. was riding her bicycle towards her home in the village of Scott Junction (south of the St. Lawrence River, approximately ½ hr. drive from Quebec City). Mr. Côté came up behind her on his bicycle, knocked her off her bike into the gutter, pulled her off the roadway, jumped on top of her, placed his hands on her mouth and throat, pulled down her clothes and penetrated her with his penis. She did not know if he ejaculated. After some brief time he got off her, pulled up his pants, and told her that she must not tell anyone "otherwise he would come back". Grabbing her by the throat, he pulled her further from the road, and told her to remain there "for 15/20 minutes" while he left. She obeyed his instructions for a period. She ran home and complained to her family about what had happened. The police were called and she was taken to hospital. At the hospital the complainant's clothing was seized and a forensic analysis was conducted, which disclosed the perpetrator's DNA profile.

9No comparison sample of Mr. Côté's DNA was available in the National DNA Database, because he had never been arrested for or convicted of any offence (let alone a sexual offence).

The Second Quebec Sexual Assault

10A few days later, at about 7:10 p.m. on the evening of August 8, 2000 15 year-old M.B. was standing at a bus stop in St. Foy, a suburb of Quebec City. Mr. Côté asked her for the time. She said she did not know, and she turned away, whereupon he grabbed her by the neck and dragged her into some nearby woods. He undressed her and told her "to shut [her] mouth otherwise he would hit [her] really hard". He penetrated her with his fingers and penis, but she did not know if he ejaculated. He forced her to commit fellatio. He told her that "if [she] didn't scream and did not press charges, he would let [her] live". He then left after telling her not to move for 10 minutes. She ran to her mother's home and immediately complained.

11No DNA sample of the perpetrator could be recovered from M.B. For this reason, accurate comparisons of the perpetrator's DNA samples could not be made (though police authorities considered that this sexual assault was very likely committed by the same person as in the previous Quebec incident).

The Toronto Sexual Assault

12Four days later Mr. Côté was in Toronto when he committed the "serious personal injury offences" referred to in paragraph 1 supra. The facts of those offences were that at approximately 8:00 a.m. on August 12, 2000 20 year-old M.D. was walking along a path under a railway overpass in south Etobicoke. She was wearing a Walkman and had earpieces in both ears. She noticed a man approach her from the opposite direction, but thought little of it, other than that the man might have been intoxicated as he seemed to be stumbling along. After they had passed one another he came up from behind, grabbed her in a headlock and dragged her into a nearby wooded area. When she resisted, he threatened to kill her and choked her by pressing his thumbs into her neck, at which point she decided to comply and stopped struggling. Mr. Côté dragged her into a clearing some 30-40 feet off the roadway, where he had already placed a plastic sheet, on which he laid her down. He had further prepared himself by purchasing a jar of Vaseline and by wearing sunglasses and a bandanna over his head. He sexually assaulted her over approximately the next four hours, penetrating her on numerous occasions with his fingers and penis, as well as forcing her to perform fellatio. At one point he paused, went through her wallet and read out her home address in an effort to further intimidate her. Sometime after 12:00 p.m. he fled, warning her not to leave for 5 minutes or he would come to her house.

13M.D. walked to a local fire station, from which a 911 call was placed at 12:33 p.m. Later that day, samples of DNA were taken from the clothing she had been wearing. Though the police later realized that those samples matched the DNA profile taken from the first Quebec sexual assault (and that the perpetrator was likely the same as the person who had committed the second Quebec sexual assault), because samples of Mr. Côté's DNA were not in the National DNA Database, the police did not at that time have any hard evidence against Mr. Côté (though it appears that he was eventually considered as one of a number of "persons of interest" to both Toronto and Quebec police).

14As will be seen, though the Toronto police became aware that Mr. Côté was incarcerated in the U.S. (and later in Quebec), he was not formally arrested on the Toronto charges until April, 2008.

The Florida Sexual Assault

15Toronto and Quebec police officials continued to investigate Mr. Côté (and other "persons of interest"), but no substantial progress was made until about January 15, 2001, when he was arrested in Boca Raton, Florida for "attempted sexual battery" and "illegal confinement". The facts of that offence were that 26 year-old A. Y. was jogging in the wooded area in a state park in the early evening. Mr. Côté grabbed her and attempted to drag her into the bushes. She resisted and ran off. She stopped a passing car and asked the driver to call 911; Mr. Côté was soon captured while trying to evade the authorities by swimming across the Intercoastal Waterway.

16Given the nature of the offences with which he was charged, the Florida statute authorized the prosecutor to seek a post-arrest pre-conviction court order requiring Mr. Côté to provide a sample of his DNA. This application was promptly made and granted, and Mr. Côté's DNA profile was extracted from a blood sample. Within a few days, both Toronto and Quebec police – who had caused samples of the DNA profile taken from the first Quebec sexual assault complainant and the Toronto sexual assault complainant to be registered with Interpol - had been notified of Mr. Côté's location, his charges and his DNA profile. Some weeks later Canadian police went to the Florida jail where he was housed to interview him about the Quebec and Ontario offences, but he exercised his right to silence and at that time declined to comment about them.

Disposition of the Florida Charges

17Several months later, Mr. Côté pleaded guilty to the Florida charge of illegal confinement, in exchange for which the other Florida charges were withdrawn. On November 30, 2001 he was sentenced to a term of 92.2 months (after making deductions for time spent in pre-trial custody).

Disposition of the California Charges

18A routine search of U.S. penal records conducted in 2001 by California police authorities disclosed that Mr. Côté was incarcerated in Florida. In October 2002 he was transferred from Florida to California to face the 1993 charges. A preliminary inquiry was held into those charges on January 22 and 24, 2003, during the course of which the two complainants L.R. and C.C. both testified. At the conclusion of the preliminary inquiry Mr. Côté was committed for trial.

19Prior to the commencement of the trial Mr. Côté applied for dismissal of the charges on the basis that his constitutional right to a speedy trial had been improperly infringed. On June 6, 2003, citing the relevant sections of the California penal code and some case law, San Bernardino County Trial Judge I. A. Uhler granted the motion on three bases. The first was that the prosecution had shown "absolutely no desire or ability…to bring the defendant to justice within that 10-year period [from 1993 to 2003]". Secondly, the defendant had shown "actual prejudice…[by showing]…there is absolutely no allowance (sic) of the defence at this point to establish the defendant's side of the story in regards to the consensual nature of the act based on the delay in time in pursuing these charges". Finally, Judge Uhler found that: "there's numerous inconsistencies between what I observed regarding what the two alleged victims said 10 years ago and what they are saying now in terms of the description of the acts and how they occurred".

20The California charges having been dismissed, Mr. Côté was transported back to Florida to serve the balance of the sentence imposed in that jurisdiction.

Disposition of the Quebec Charges

21Canadian authorities commenced extradition proceedings to return Mr. Côté to Canada to face the Quebec and Ontario charges. Mr. Côté instructed Florida counsel that he did not wish to oppose extradition and a consent judgment was made to that effect. On October 25, 2005 he was transferred to Quebec and first appeared in court there on December 7, 2005. After various lengthy remands to retain and instruct counsel (and numerous changes of counsel), Mr. Côté entered pleas of guilty to the two Quebec sexual assault charges on December 7, 2006, and in due course was remanded for a psychiatric assessment pursuant to s.752.1 of the Code. After the completion of a psychiatric and psychological assessment by staff of the Pinel Institute and the various other procedures that needed to be undertaken before a dangerous offender/long-term supervision application could be proceeded with, Crown and defence came to a mutual conclusion that Mr. Côté should be found to be a long-term offender (LTO) rather than be designated as a dangerous offender (DO). Consequently, a joint recommendation as to sentence was eventually placed before the court, and on March 6, 2008 Mr. Côté was found to be a long-term offender by Quebec Superior Court Justice M.-L. Auger, who imposed a total custodial sentence of 9 years (4 years for the July 29, 2000 sexual assault of J.S., and 5 years consecutive for the August 8, 2000 sexual assault of M.B.). Relying on the psychiatric assessment that there was "a reasonable possibility of eventual control of [his] risk in the community" both Crown and defence invited Justice Auger to declare that Mr. Côté should additionally be subject to a Long-Term Supervision Order (LTSO) for a period of 10 years following the expiry of the custodial sentence.

22I have been informed by sentence administration officials that, subject to the possible application of the "detention" provisions of the Corrections and Conditional Release Act, Mr. Côté currently stands to be conditionally released from custody on March 6, 2014 (his "Statutory Release Date"), with the custodial portion of his sentence ultimately to expire three years later on March 5, 2017. He will then be subject to Justice Auger's Long-Term Supervision Order for 10 years. (Obviously, these release and sentence expiry dates will be considerably delayed beyond 2014, 2017 or 2027 depending on the disposition I make in these proceedings).

The Toronto Charges

23Once Mr. Côté had disposed of the Quebec charges, he was brought to Toronto in April 2008 to appear in court to deal with the charges arising in south Etobicoke. After various remands and changes of counsel, he eventually appeared before me on October 13, 2009, instructed Mr. Lewin that he elected to be tried in the Ontario Court of Justice and entered pleas of guilty to charges of sexual assault causing bodily harm, choking, uttering a death threat, forcible confinement and wearing a face mask with intent to commit an indictable offence, all against M.D.

24Unfortunately, M.D. died on March 22, 2003. On consent, much of the evidence that she would have given was provided by other parties. The first witness was Ms M. Llewellyn, a nurse who had dealt with M.D. over a two-hour period when she was brought to Women's College Hospital later in the day when the sexual assaults occurred. Using police photographs and a Sexual Assault History Form she had completed at the time, Ms Llewellyn described the extensive bruising and other physical injuries that she and another nurse had noted during their examination of M.D.

25Ms Llewellyn's evidence was supplemented by Det. C. Field, the officer in charge of the Toronto case. His recital of M.D.'s "will say" largely came from the videotaped "KGB" statement she had provided to him and another officer the day after the sexual assaults had occurred. Since I have already summarized the details of this brutal attack in paragraphs 12-13 supra, I see no need to repeat them here.

26At the conclusion of Det. Field's evidence – once again on consent – I remanded Mr. Côté for the commencement of the various assessment processes that need to occur before a dangerous offender application may be heard – initial mental health assessment, Attorney-General's written consent, further remand for comprehensive mental health assessment etc. Since the "s.7" motion to prohibit the Crown from proceeding with the DO/LTSO applications has now been abandoned, there is no need to spend time detailing this part of the procedural history of this case, as counsel are agreed that all steps have now been properly completed. However, before moving to consider the substance of this application, there are two procedural matters on which some comment is necessary.

27Before dealing with these issues, I should add that Crown counsel elected to call all three of Mr. Côté's living victims to testify to the fact that in different ways they all continue to experience long-term traumas as a result of being exposed to very serious sexual assaults at the offender's hands. It is obvious that in different ways they are all still suffering from what has happened to them. And while I was told very little about the circumstances of M.D.'s death, it is equally obvious that such a vicious and prolonged assault must have had a very significant impact on her well-being, as her mother (speaking for herself and on behalf of M.D.'s father) testified.

PROCEDURAL ISSUES

1. The Effect of the Dismissal of the California Charges

28It would obviously strengthen the Crown's case against Mr. Côté if I were to characterize the events in California as amounting to sexual "offences". Not only would this extend the duration of his illegal sexual acting out by some 7-8 years, but it would also lend support to the submission that he generally offends against quite young (and physically petite) women.

29At one point, this case was adjourned for the Crown to attempt actually to bring L.R. and C.C. to testify in this proceeding. Not surprisingly, Mr. Lewin indicated his intention to vigorously oppose the introduction of such evidence, on the basis that either res judicata or issue estoppel now applied in light of the California court's dismissal of the criminal charges against Mr. Côté. I deferred ruling on this until I heard from the Crown whether they intended to try to have these witnesses testify. Det. Field eventually testified that while he had been in intermittent contact with the original complainants (now called L.L. and C.V.) over the years, they had changed their addresses and telephone numbers since he had last been in contact. Despite enlisting various U.S. law enforcement authorities to try to find them as the anticipated court date came closer, all efforts had proved unsuccessful. In light of this, Ms Zaied indicated that she would not be seeking to adjourn this proceeding further, and invited me to rule on the issue without the benefit of hearing from these witnesses.

30The Crown's first argument on this issue was based on necessity. As Mr. Lewin did not take issue with this aspect of the Crown's application, I ruled that the Crown had established this threshold basis for admissibility.

31The Crown's next argument on this issue was that reliability of the complainant's evidence had been established in two ways. First, she argued that because the complainants had given evidence under oath in the California preliminary inquiry, and since they had been exposed to cross-examination in that proceeding, that amounted to some evidence of threshold reliability. More importantly, Crown counsel pointed to various admissions made by Mr. Côté in his interviews with Canadian police and Canadian mental health professionals in which he freely admitted engaging in sexual contact with the complainants and agreed with the complainants about much of what had happened in his truck. In fact, the only substantive point of dispute between him and the complainants was that he said that what happened was consensual. Thus, Ms Zaied argued that this too amounted to threshold evidence of reliability. Because of the conclusion I ultimately came to about how to characterize this evidence, I did not make a formal ruling on this evidentiary issue.

32In anticipation of the obvious concern that to now admit the complainants' evidence on a substantive basis would be to ignore the dismissal of the California charges, Ms Zaied reminded me that this current proceeding does not amount to re-trying the California acquittal; she rather argued that this is a sentencing hearing, where the reach of the "fair trial" provisions of the Charter is somewhat more attenuated (see R. v. Jones, [1994] 2 S.C.R. 229). She argued that it is essential for the proper adjudication of an application to have someone designated as a dangerous offender to consider all of the available information about the offender's sexual behaviour, and that it would artificially tie the hands of the mental health professionals – and, ultimately, the court – not to consider the substance of the California "events". She supplemented this by making the fair point that, unlike many cases, Mr. Côté was – and is – entirely willing to discuss his version of what happened in California with both the police and with the mental health professionals who have assessed him, so there would be little harm in letting this "evidence" apply. Indeed, as will be seen, his oft-repeated position is that the wrongfulness of the allegations made against him by the California complainants started (or substantially contributed to) the downward spiral in his life that eventually triggered him to commit the various sexual assaults of which he has been found guilty in Florida, Quebec and now Ontario.

33After considering the Crown's application, I told counsel that my preliminary view was that I would not prepared to admit the California evidence on any basis that would establish that Mr. Côté's behaviour with L.R. and C.C. amounted to "offences" or "crimes". Because I had not at that stage seen any of these materials, I asked Mr. Lewin if he wished any of the mental health assessments to be rewritten so as to have such terms excised should they appear therein, or – more importantly – if the assessors had proceeded on the basis that Mr. Côté was guilty of "crimes" against these complainants, that they should re-evaluate their evidence and conclusions on point. He indicated that he preferred that both be done. At that point Ms Zaied vigorously objected on several bases, one of which related to what might happen if Mr. Côté elected to testify in this proceeding and then gave a different version of what had happened with the California complainants. While I neglected to say this expressly in my brief oral ruling on this motion, I considered that this objection was premature unless and until Mr. Côté elected to testify during this sentencing hearing, which he has chosen not to do.

34Ms Zaied's next objection was that it was far too late and would be far too expensive to have any of the various mental health assessments rewritten. After considering her arguments on point, I ruled that while some evidence of threshold reliability had been established – leaving aside, of course, the question of whether the sexual activities were consensual or forced – I had come to the view that none of the mental health or other documents that might in future be prepared for this court could characterize the California events as "offences". I further ruled that if any documents that had already been prepared did so, I would ignore that characterization. I am pleased to report that in his Report – which had been prepared for this hearing prior to my ruling - Dr. S. Woodside very fairly writes:

"Given that no finding of guilt has ever been entered with respect to those offences, I asked not to have materials directly relating to those alleged offences provided for this opinion, although Mr. Côté referenced these charges in interviews." (p. 30)

35As this case proceeded, I note that neither Mr. Lewin nor Ms Goldenberg pointed to any references in any Reports prepared prior to my ruling that may have suggested that Mr. Côté was "guilty" of any "offences" in relation to the California incident. I reiterate that the only substantial difference between what Mr. Côté said and what the complainants said about what had happened was on the question of whether the sexual activities were consensual.

36In sum, because Mr. Côté later elected not to testify, and because the Reports that I saw and the expert evidence that I heard did not treat the California events as "offences" or "crimes", the anticipated problems that might have arisen now appear to have dissipated. Given that Mr. Côté was entirely prepared to discuss what happened in California with the various mental health professionals who have assessed him, I am of the opinion that this "California" evidence may be considered within the context of this sentencing hearing (though of course I reiterate that none of it may be used to establish that Mr. Côté was guilty of any "offences" or "crimes" against these complainants).

2. The Psychiatric Report of Dr. J. Gojer

37The September 6, 2010 Report of Dr. Woodside and his team at the Centre for Addiction and Mental Health was filed on consent as an Exhibit in these proceedings many months before he actually testified. As frequently happens in dangerous offender proceedings, Mr. Lewin sought and obtained a second opinion from Dr. J. Gojer, another well-known forensic psychiatrist. Since that Report referenced Dr. Woodside's Report, on consent of both counsel it too was given to me well in advance as a courtesy so that I might read it in preparation for both cross-examination of Dr. Woodside and for the anticipated testimony of Dr. Gojer. However, unlike Dr. Woodside's Report, Dr. Gojer's Report was not at that time formally filed as an Exhibit – likely because neither party could anticipate that this would be a contentious issue.

38Though it was many months before they were expected to give evidence, I read both Reports as they were received, so I was aware of what Dr. Gojer would say. However, when Mr. Côté changed counsel from Mr. Lewin to Ms Goldenberg, she indicated that she would not be calling Dr. Gojer as an expert witness, that she no longer wished to place any reliance on what Dr. Gojer had said in his Report, and that she was content to rely upon Dr. Woodside's Report and her cross-examination of him.

39The first difficulty which arises from this late change of instructions is that one potentially important element of Dr. Gojer's Report had already been put to an expert witness while Mr. Lewin was still acting for Mr. Côté i.e. when it was still anticipated that Dr. Gojer would testify. The issue arose in this way: Dr. M. Gignac, principal author of the s.752.1 Report used in the Quebec proceedings, was called to give evidence as a witness for the Crown in the proceedings before me at a time when Mr. Lewin was still acting for Mr. Côté. Mr. Côté had told Dr. Gignac in late 2006 and early 2007 that his deviant sexual fantasies of rape had not originated until some time after, in his mind, he had been wrongly accused by the California complainants i.e. at some undefined point between April 5, 1993 and July 29, 2000, when Mr. Côté was between 31 and 39 years old. However, Ms Zaied put to Dr. Gignac something that he could not have been aware of at the time he prepared his Report, namely that Mr. Côté had subsequently told Dr. Gojer that he had been harbouring thoughts of rape since he was about 14 years old. She did this because she wanted Dr. Gignac to modify his views to now say that, in light of what Mr. Côté had said to Dr. Gojer, Mr. Côté meets the dangerous offender criteria and that Dr. Gignac's original recommendation for a lengthy definite sentence followed by a Long Term Supervision Order was no longer adequate. After some considerable "fencing" with Crown counsel, Dr. Gignac somewhat reluctantly agreed that this would have changed his view.

40The problem of course is that, since Dr. Gojer's Report was never formally entered as an Exhibit, strictly speaking, Mr. Côté's admission about having had rape fantasies since the about the age of 14 was not properly in evidence before me. I have given much consideration to how to deal with this evidentiary problem and Dr. Gignac's eventual concession that that likely would have made a difference in his assessment of Mr. Côté's dangerousness. As will be seen, in light of the conclusion I have eventually come to on the substance of this application, I am of the view that the evidentiary problem raised by Ms Goldenberg's later decision not to rely on Dr. Gojer's Report after a portion of it had been referred to in open court does not ultimately make a difference. Thus, I do not intend to place any reliance on the portions of Dr. Gojer's Report that were put to Dr. Gignac during his testimony.

41Secondly, though I had read Dr. Gojer's Report when it was given to me, because it was not formally filed as an Exhibit (and because he did not testify) it is my intention not to place any reliance on anything that Dr. Gojer said in his Report. As I indicated to counsel during submissions, I have directed that Dr. Gojer's report be entered as a lettered Exhibit (Exhibit B) for purposes of having a complete record in this proceeding. I further direct that it is not to be forwarded to penal and parole authorities, nor to be disclosed to any other person without my fiat (see R. v. L. (B.), March 21, 2000, unreported per Glass J.).

DR. S. WOODSIDE'S REPORT AND TESTIMONY

42Dr. Woodside is a Staff Psychiatrist and Senior Clinician, Assessment and Triage Unit, Sexual Behaviours Clinic at the Centre for Addiction and Mental Health, where he has worked since 1997. He is presently the Head of the Sexual Behaviours Clinic. Dr. Woodside's curriculum vitae describes extensive attendances and presentations at numerous seminars and lectures. More importantly, though he could not give an exact number, he has participated in some 80-85 assessments under the various iterations of s.752 of the Code since he first began to work as a forensic psychiatrist in the mid-1990s. Ms Goldenberg properly conceded Dr. Woodside's considerable expertise.

43Dr. Woodside testified that he had three face-to-face meetings with Mr. Côté, over a total period of 5 ¾ hours during a two week period. He said that this was slightly less than the 6-10 hours he would normally spend interviewing the subject of an assessment. He attributed this to two factors. First, unlike many of the offenders Dr. Woodside deals with, Mr. Côté has no previous record of criminal convictions other than the four matters I have previously described in these reasons. Secondly, because Dr. Woodside could not guarantee to keep confidential what Mr. Côté said to him, Mr. Côté was adamant that he would not discuss some "details relating to his offences [or] his sexual fantasies".

44Following normal practice, though Dr. Woodside wrote and signed the report (as well as testifying in court), he considered and assimilated much collateral information from a variety of professional and lay sources. I shall be detailing these later in these reasons. For the present, it needs to be noted that between Dr. Woodside's interviews Mr. Côté was also seen for a psychological assessment conducted by forensic psychologist Dr. C. Abramowitz. While Mr. Côté voiced his concerns to Dr. Abramowitz about Dr. Woodside's inability to guarantee confidentiality, he expressed no such concerns to Dr. Abramowitz, and readily agreed to undergo 2 hours of interviews and 9 hours of psychological testing with her over a period of several days. Her Report indicates that she was entirely satisfied not only that Mr. Côté understood that she too could not guarantee confidentiality, but also that he agreed to participate fully in the psychological assessment process. Furthermore, two of the tests she administered to him are mainly or partly designed to probe whether an examinee may be attempting to feign efforts or cognitive deficits. After administering two of the measures on the Test of Memory Malingering (TOMM), she decided that there was no need to have him complete other sub-tests of that instrument, as she was satisfied that "he was not feigning memory impairment and was exerting adequate effort to complete cognitive functioning". Moreover, as she administered a battery of other measures, some of which (such as the Personality Assessment Inventory (PAI)) contain built-in validity indices designed to assess factors (including malingering) that could distort results, Dr. Abramowitz found no such evidence. She concluded that "[c]urrent testing is likely to be a valid indication of Mr. Côté's cognitive abilities", and that '[his] profile on a test of personality and psychopathology…is thought to be a valid indicator of his emotional functioning".

45When I discuss Dr. Abramowitz' findings later in these reasons, I shall therefore assume that her assessment findings are a valid reflection of Mr. Côté's cognitive and emotional functioning.

Mr. Côté's Self Report

46While Mr. Côté was entirely candid with Dr. Abramowitz, he was considerably more circumspect with Dr. Woodside. He was quite willing to self-report about many aspects of his personal history, such as his early childhood, educational, employment and relationship history. Mr. Côté was also content to disclose some portions of his sexual history, including "acknowledge[ing] fantasies…[for] a few years… of forcing sex on women prior to his offending behaviour"; however, as I have previously indicated, because of his concerns about Dr. Woodside's inability to guarantee confidentiality about what Mr. Côté might say to him, Mr. Côté expressly declined to answer directly many further questions put by Dr. Woodside designed to further probe his sexual fantasies.

47Because Mr. Côté's Canadian victims were all quite young (15, 15 and 20 years), Dr. Woodside obviously wished to question whether Mr. Côté had any deviant interest in pubescent or prepubescent females. Mr. Côté denied any such interests. Dr. Woodside then raised the question of his sexual involvement with the teenagers in California, a subject Mr. Côté was quite eager to discuss since (I reiterate) he considers that what they did to him by laying a false complaint of sexual misbehaviour may well have been a trigger for his later offending. Mr Côté replied that while he had never asked them their ages, he thought they were "fifteen and up", that they "were used to alcohol and parties", and that he could tell "they way they moved and the way they talked… they were very mature…[and] had more experience than me sexually". Beyond this, he refused to talk more about his sexual fantasies, indicating to Dr. Woodside that while he might be prepared to be more open within the context of a therapeutic relationship, given that Dr. Woodside had clearly stipulated that anything Mr. Côté might say could be shared with the court, he was not prepared to be more forthcoming.

48This refusal to co-operate fully in these important aspects of the assessment process meant that Dr. Woodside needed to rely more heavily on other sources of information to prepare his Report. The first of these was inferences to be made from other things that Mr. Côté said to him during the course of their discussions. According to Mr. Côté, his knowledge that a warrant for his arrest was outstanding for him in California meant that he could no longer safely drive to the United States, which apparently caused him to lose (partial or full) employment as a long haul driver. Because in his mind the California complainants were prostitutes whose false complaints resulted in him effectively being barred from entering the U.S. he considered that "one time in the past, I [had been] robbed and lost everything". After "[s]ix or seven years went by…I came to the point where I was so upset, it was like a major depression." He went on to explain that he began to blame women as the general cause of his problems: "…it was like a revolt against women…you know when you rebel against life, the people that caused you pain…at the time, I was caught up in pain".

49Dr. Woodside probed this further during two of his three interviews with Mr. Côté. In the first interview Dr. Woodside asked Mr. Côté to specify how what had happened with these two women had led him to later commit the Quebec, Ontario and Florida sexual assaults. He replied: "[A]t the time I was mad with life, I didn't care about anything…I expressed myself that way [through the sexual assaults]…maybe at the time, I was in such pain, I turned to porn…to comfort myself, to fill in the emptiness". When Dr. Woodside asked if the pornography the offender had purchased related to themes of violence and rape Mr. Côté denied this but went on to state that he focused on wrongs women had done to him in the past. He stated: "I was blinded by…everything was crowding in…I was not letting go of the pain". Though he admitted that women had mocked him – apparently at school - while growing up, he was unable to provide specific examples, saying only that "[w]hat women say to me" caused him to be hurt by women and to cause hate.

50During the second interview Mr. Côté was anxious to talk about "whether or not he had dealt with his issues and was ready for release". Dr. Woodside invited him to refocus on what incidents in his past caused his offending behaviour and what treatment he considered might be necessary before he could be released. He said that his offences were not a function of what had happened to him but grew out of his attempt to "bury it". When asked to clarify, he repeated: "Probably my hate for what they [women] have done to me…in my life", and cited as causal factors both what had happened to him in California as well as rejection by other women (though he could not give specific examples beyond saying he had been mocked at school).

51In this second interview Dr. Woodside raised the important question as to whether, as part of any release plan, the offender would be prepared to take medication to reduce his sex drive. Mr. Côté initially said that he was not prepared to consider this, as "I have a desire to have a normal life, to have children". He felt that he did not need it as, while his previous actions had been a "function of hate", he now knew his own thoughts and had no interest in raping women. Later in the same interview he said that he "would be willing to take medication although he did not see himself as being at risk of committing a further sexual assault". In the third interview some days later, he indicated that because he wanted to marry and to have a family he was not prepared to commit to receiving treatment with anti-androgen medication unless psychological sex offender therapy by itself would not manage his difficulties.

52It was during this third interview that Mr Côté eventually refused to answer questions or participate further. He was offered the opportunity to make a further statement without it being a response to any questioning. He told Dr. Woodside that while he accepted responsibility for all the offences he committed in Florida, Quebec and Ontario, he wanted the judge to know the following:

"I want to take full responsibility of the crime I have done and I don't want to blame anyone at any time … for my youth to this point. In the past I got involved with wrong people and the wrong girl and eventually it turn [sic] out against me. I lost everything, I went six to seven years and I gave up. I was mad at life but all these years that went by, I push everything down and I'm asking every one of you to forgive me. I realize that it is not productive to push everything down. Now, I have made a decision. I will do everything humanly possible to change the course of my life. To live a life of forgiveness and a life of love. And I am committed to do what is humanly possible to repair and make a change and do something good with my life.

There's one thing I cannot do … to give up … the most precious thing I have is my conscience. I want to be at peace with my conscience and God. I want to develop myself for great things in life. I'm not doing it only for the judge but because it's for myself. I want to be at peace with my conscience."

Collateral Sources Referred to in Dr. Woodside's Report

1. The Offender's Parents

53The first collateral source Dr. Woodside relied upon was a translation of a 2008 interview conducted with Mr. Côté's parents. Combining what they told the questioner with what Mr. Côté told Dr. Woodside, the following picture of his family life emerges: Mr. Côté's father was a teacher and his mother was a homemaker; apparently, the family was financially comfortable, and Mr. Côté reported not lacking anything – either financial or emotional - during his childhood. The offender is the sixth child in a sibline of eight. (In order to protect their privacy, he did not want his siblings to be contacted for Dr. Woodside's Report). Mr. Côté and his parents reported that he did not suffer from any serious illnesses or separations in childhood. He did not report any history of trauma during childhood.

54Both Mr. Côté and his parents agreed that he was neither successful at school nor did he enjoy schooling. After being shuttled back and forth between vocational and academic classes, he finally left school after completing Grade 10 at age 19, whereupon he moved to Ontario to seek employment. It appears that he was (mostly) fully employed until his arrest in 2001.

55Mr. Côté's parents reported that he "had always been odd", in that "he did not spend time with a lot of people, and did not have many friends". They described him as "secretive"; they said that though they found him to be "honest, sensitive and straightforward…they felt they really didn't know him". He "kept a lot inside himself", particularly after he became zealous about religion (apparently in the early 1980s). Another manifestation of what his parents considered his odd behaviour was "that he wanted to wash himself after work and would take two baths in boiling water with antibacterial soap. They described him as being prudish about this and indicated he felt everything had to be washed thoroughly". His father reported that his son "imposed his ideas on others and that he had a very strong desire to control. He…never waited for the right time to say something. He…used to dream of having a rich wife with a beautiful car and being her driver".

56Though Mr. Côté's parents had some awareness of their son's relationships with women, it seems that he never disclosed to his parents the fact that he was sexually abused on several occasions between the ages of 10 and 17 by an adult male neighbour in his forties. Indeed, when first questioned by Dr. Woodside about this particular sexual activity, he said nothing. It was only after Dr. Woodside told him that he was in possession of notes of previous interviews with court-appointed psychiatrists in Florida in which Mr. Côté had told them about these activities that Mr. Côté was more forthcoming with Dr. Woodside. Mr Côté "reported engaging in masturbation and oral sex with this individual on a few occasions…and stated that this individual gave him money and let him drive his truck. He also reported that his abuser told him that he would 'tell on him' and that Mr. Côté would get into trouble as a result". When Dr. Woodside questioned whether this abuse might be related to his offending behaviour, Mr Côté stated: "You have a good question…I don't have an answer for that". He then stated that his offending behaviour was "perhaps a combination of things…[but that] I forgive whoever [I] needed to forgive".

2. Florida Mental Health Assessments

57Dr. Woodside's Report briefly summarizes psychological and psychiatric assessments conducted while Mr. Côté was awaiting trial in Florida. Because these were primarily directed to the limited issues of fitness to stand trial and a possible trial defence of insanity, Dr. Woodside rightly noted that they can hardly be characterized as comprehensive evaluations, particularly when, as noted by the assessors themselves, they mainly focused on Mr. Côté's self-report rather than including reviews of previous records or interviews with collaterals. Since Ms Goldenberg did not refer to these very much either in her cross-examination of Dr. Woodside or in her submissions, I do not consider that they are of much assistance in what I have to decide. For current purposes, they appear only to be useful to the extent that they somewhat corroborate what Mr. Côté said to others. For example, in the case of the sexual abuse that Mr. Côté reported he suffered from the adult male neighbour, these assessments introduce that subject matter.

3. Ms. T. Costi's Psychological Assessment

58Ms Costi, a senior clinical psychologist on staff at the Pinel Institute in Montreal, assessed Mr. Côté in January 2007 as part of the s.752 assessment ordered by Justice Auger in the Quebec proceedings. She interviewed him and had him complete a battery of tests over a 6 ¾ hour period.

59Much of what Mr. Côté self-reported during Ms Costi's testing parallels what he said to other professionals, so I do not think any purpose would be served in repeating it here. However, in light of some of the themes that Dr. Woodside later considered significant in his psychiatric formulation I find it somewhat noteworthy that, in discussing Mr. Côté's report of his work history, Ms Costi found "striking…that he always tries to blame something outside himself for the setbacks that may happen to him…He seems to exhibit some narcissistic traits".

60Quite obviously, Ms Costi was not impressed with Mr. Côté's self-report about his involvement in the various sexual offences. She wrote:

"He had difficulty talking about his assaults. He said he was ashamed of them. He was revolted by life and wanted to console himself and live a fantasy. That was how he explained his sexual assaults. He said that he had not been violent. It was just to have control over the victim. He was not violent. He wanted to control her so that things did not get complicated, but it was not to cause her to suffer through violence. He did not feel that he had done harm to his victims. He wanted to feel the "feeling". He was very centred on his needs. He was unable to feel empathy with or put himself in the place of his victims. When the first rape occurred in Quebec, he said that he was discouraged. The girl was beautiful. He wanted to experience sexual pleasure. He was incapable of putting himself in the place of his victims. He found that hard to do. He said that at that time, he had a desire to live. He was unable to answer questions that sought to focus him on the possible effects that his acts had on the victims or what could have caused him to commit the offences. What he said was muddled and fairly meaningless. He talked about shame in particular, which was more related to his image. He said that he felt bad, but there was no affect. There was somewhere a way to control the victims and to break them in the same way that he himself felt broken. He said that rape was not one of his values, but he was unable to verbalize the effects that rape had on the victims. He intellectualized and brought everything back to himself".

She went on:

"He said that the offences had not been planned – which we can allow ourselves to doubt given the description of the offences and the fact that he denied having made violent threats. He admitted that the [complainant in the first Quebec sexual assault] might have been frightened, but she had allowed it to be done to her and he had not wanted to cause her physical harm. He did not seem to truly realize what was violent about rape, even though he said that he had done it".

In discussing Mr. Côté's "attitude during the evaluation", she scathingly commented:

"What was remarkable was that Mr. Côté never answered questions directly. We did not succeed in making him provide clear answers even to questions requiring a yes or no answer. He seemed mistrustful. He was very hermetic. We did not have a lot of content. He did not show himself to be very open. He did not seem genuine. What he said was sometimes difficult to follow and was sometime more or less coherent. He showed no emotion. He rationalized and intellectualized a lot. What he said was fairly psychological in nature. He was very evasive during the interview; he was elusive. We tried to confront him, but again what preoccupied him was knowing whether this [assessment process] was going to harm him. His sentences were sometimes incomplete, and what he said was sometimes meaningless. Mr Côté talked a lot, but we did not obtain much concrete information".

As will be seen this same pattern of semi-coherent and unfocused verbalization was extensively noted by Dr. Woodside and Dr. Abramowitz.

61The first instrument administered by Ms Costi was the MMPI-2, a well-known and well-validated psychological test. She interpreted the test results as follows:

"He answered like a person who wants to show himself in an extremely positive light, and who wants to minimize his faults and deny having psychological problems. He tried to appear adequate and in control. The probable result is that he underestimates problems. He has little awareness of his problems; he is rigid and inflexible in his approach to problems. He projects a positive self-image in an excessive way and can show himself to be arrogant and intolerant towards other people's faults. Mr. Côté is not very likely to look for psychological treatment himself or to fully co-operate with a treatment. He is extremely defensive. The profile shows a pronounced high level on the antisocial and paranoia scales. He answered like someone who is maladjusted and immature, who is focused on his needs, who manipulates and can rebel against authority, is hostile and aggressive, and refuses to accept responsibility for his problems. He can have a grandiose and exaggerated idea of his abilities and of his personal value, can be impulsive and suspicious, and could present paranoid traits. In his view, the world is threatening and he feels unjustly blamed. He has difficult interpersonal relationships; he feels resentment; he is incapable of compromising with others; he can be manipulative and adopt behaviours to serve his own purposes. He can fly into a rage because he has poor control over his impulses and a low tolerance of frustration. He blames other people for his problems. When he is frustrated, he could be physically abusive or threatening towards women who are close to him. The evidence is in accordance with a personality disorder with paranoid and passive/aggressive elements. The profile indicates a poor candidate for psychotherapy because he exhibited resistance and a tendency to rationalize and blame others".

62Ms Costi also administered several other well-known instruments frequently employed by clinicians evaluating sexual offenders. These were the PCL-R, the SORAG, the Static-99 and the SVR-20. Because these instruments were administered more recently to Mr. Côté by Dr. Woodside, beyond commenting that they seem entirely consistent with what Dr. Woodside found, there would seem to be little point in detailing Ms Costi's findings. It will suffice to repeat her overall conclusions:

"Mr. Côté exhibits passive/aggressive narcissistic traits in terms of his personality, which is not very open and does not exhibit empathy or emotion. He does not open up and rationalizes using intellectual language….He is in need of in-depth treatment at several levels before he can be rehabilitated and reintegrated into society. The risk may be qualified as being fairly high in dynamic terms because of Mr. Côté's lack of socialization, his problems in regard to intimate relationships, and his sexual deviance".

4. Dr. M. Gignac's Psychiatric Report

63Ms Costi's Report was prepared to assist Dr. M. Gignac, a forensic psychiatrist on staff at the Pinel facility, which had been requested by the Quebec court to conduct a psychiatric assessment of Mr. Côté pursuant to s.752.1 of the Code. In addition to considering her Report, Dr. Gignac developed his own diagnosis of Mr. Côté derived from three interviews. Using the standard DSM-IVR criteria, he diagnosed Mr. Côté as suffering from a "non-specific paraphilia…with elements of sexual sadism". He also described him as suffering from a "[n]on specific personality disorder [with] several features from Cluster B personality disorders (antisocial, narcissistic, borderline, histrionic) as well as several traits consistent with passive-aggressive and paranoid".

64Dr. Gignac also arranged for a phallometric evaluation of Mr. Côté's sexual preferences to be conducted by another Pinel staff member. Dr. Gignac concluded that the results of phallometric testing "confirm the profile…[in that] he presented with sexual deviancy and higher penile responses to images of sexual aggression and physical violence". Dr. Gignac considered that the phallometric evaluation showed the presence of deviant fantasies anchored in sexual aggression and humiliation of women.

65It is convenient to pause briefly in the narrative to note that when Dr. Woodside discussed this phallometric testing done at the Pinel Institute, he provided more detail than was contained in Dr. Gignac's rather brief Report. He wrote:

"[Mr. Côté] was described as showing his highest response to sexual assault focused on humiliation of the women stimuli and it was noted that these responses were higher than his responses to depictions of consenting sexual relationships. It was noted that his deviance index was 4.41 and that a deviance index of the profile higher or equal to one suggested the presence of a deviant sexual preference".

66Despite concluding that "the light shed by our evaluation as well as the clinical picture show[ing that] Mr. Côté runs a high risk of recidivism if [untreated]", particularly given that Mr. Côté "shows little inclination to recognize the deviant acts of his past behaviours", Dr. Gignac nevertheless felt that "it is feasible for [Mr. Côté] to reintegrate into the community if…long term psychotherapeutic treatment is put into place". Even after making allowance for "certain factors which may hinder psychotherapy such as ambivalence, suppression of any responsibility and emotional detachment regarding the seriousness of his acts and their effects on his victims", Dr. Gignac proposed that a Long Term Supervision Order following a lengthy custodial term would be preferable to a Dangerous Offender designation and an indeterminate sentence being imposed. He based this in large part on the fact that "no therapeutic treatment had been offered to date" and that Mr. Côté had expressed willingness to undergo psychotherapy.

67It should be noted that Dr. Gignac's original Report contained one potentially significant factual error, in that he had assumed that Mr. Côté had already been found guilty of the Ontario sexual assault offences of August 8, 2000. When this was brought to his attention by Quebec Crown counsel, he issued an Addendum to his Report in which he indicated that he would have arrived at the same conclusion as in his original Report i.e. "that the risk of offending remains at a level that could be assumed within the community, if measures to deprive him of his freedom are maintained for as long as permitted by law, so that he may benefit from therapeutic treatment provided through a structured program".

68Dr. Gignac's original Report and this Addendum were filed as part of the proceedings before Superior Court Justice Auger. The transcript of the sentencing proceedings discloses that Dr. Gignac's Report clearly figured in the lawyers' joint decision to recommend and Justice Auger's March 6, 2008 decision to impose a 10-year Long Term Supervision Order to follow the 9 year custodial sentence that he imposed.

69Though consideration had been given by the Ontario Ministry of the Attorney General to allowing Mr. Côté to "waive in" and dispose of his Toronto charges by way of a guilty plea to be included in the Quebec proceedings, the Ontario authorities ultimately decided that they were not prepared to consent to the transfer of his charges to Quebec, and Mr. Côté was then brought to Ontario to face the charges to which he has now pleaded guilty before me. Because defence counsel now acting for Mr. Côté has expressly abandoned the "s.7" motion challenging the fairness of that refusal, I no longer need to consider whether the Ontario Crown should now be estopped from proceeding further. I mention this only to complete the record of proceedings.

DR. ABRAMOWITZ' PSYCHOLOGICAL ASSESSMENT

70I have previously indicated that it was Dr. Abramowitz' conclusion that the results of the various instruments she administered to assess Mr. Côté's reading and verbal comprehension are "likely to be a valid indication of his cognitive abilities". She considered that his

"current intellectual functioning, as measured by a measure of non-verbal problem solving, was in the average range…consistent or slightly higher than his educational and occupational attainment…[He] demonstrated low average to average performance on tests of focused attention, visual-spatial functioning, cognitive interference and executive functioning. He performed in the borderline to mildly impaired range on a test of divided attention…[which] appeared to be primarily a result of generalized slow psychomotor performance".

She thus concluded that "Mr. Côté's current functioning is not suggestive of any significant difficulties that would bear on his commission of sexual offences".

71Dr. Abramowitz similarly considered that Mr. Côté's profile on one test of personality and psychopathology "[are] thought to be a valid indicator of his emotional functioning". However, she was careful to note that:

"[a]lthough his response style is considered valid on this measure, he tended to exhibit satisfaction with himself as he is, and did not endorse any marked distress or need for change. This may impact his motivation toward and perseverance with potential treatment efforts".

72I have carefully compared what Dr. Abramowitz noted about Mr. Côté's overall presentation with what had been said some years previous by Ms Costi. Though Dr. Abramowitz' Report does not expressly reference Ms Costi's Report, I find a considerable measure of consistency in the reports of the two psychologists, which, together with what I shall now discuss about Dr. Woodside's formulation, unfortunately paints a rather bleak picture about Mr. Côté's overall "treatability" either while incarcerated or in the community under supervision.

DR. WOODSIDE'S PSYCHIATRIC OPINION AND RECOMMENDATIONS

73Dr. Woodside's assessment of Mr. Côté's "Overall Mental Status" was that though

"he gave the appearance of cooperation…[he] did not directly answer questions asked of him, often answering with platitudes and self-serving statements. He was also very difficult to redirect, continuously returning to themes of his needing forgiveness and wanting to live a normal life in future…Thought form was coherent but overinclusive and perseverative, along themes as noted above…He was alert but appeared to have very limited insight. His judgment was felt to be poor".

Dr. Woodside amplified this in his testimony. In attempting to "pin down" Mr. Côté about particulars of how his perceived mistreatment by the California complainants had somehow led him several years later to commit a string of extremely violent sexual offences against total strangers, Dr. Woodside noted that Mr. Côté "tended to speak in a very impressionistic way and in generalities rather than providing more detailed or clear answers to questions posed to him and he really directed and controlled the interview process. It was difficult to focus him".

74Dr. Woodside developed these themes of limited insight and poor judgment at later points in his Report. He first noted the portion of Dr. Abramowitz' Report I have just quoted, namely that "psychological testing has revealed [Mr. Côté] is largely satisfied with himself, which pose[s] a barrier to successful treatment". Secondly, in his Summary, Dr. Woodside writes:

"Overall, I believe Mr. Côté's risk to re-offend (primarily sexually) could potentially be managed successfully in the community with a combination of psychological treatment, treatment with sex-drive reducing medication and very intensive supervision over a prolonged period of time. What is not clear is whether Mr. Côté will participate in treatment in a meaningful fashion or whether he is capable of benefiting from the same. His personality is such that one can anticipate very significant difficulty attempting to engage him in psychological treatment and he has already expressed considerable ambivalence regarding treatment with sex-drive reducing medication".

75Though he had considerably more information available to him than Dr. Gignac did, it is noteworthy that Dr. Woodside's psychiatric diagnosis does not significantly differ from that contained in Dr. Gignac's 2007 Report. Dr. Woodside applied the DSM-IV(R) criteria to make a "provisional" diagnosis of Mr. Côté as

"suffering from a personality disorder, not otherwise specified with primarily narcissistic traits, along with some passive-aggressive traits. I believe he also clearly suffers from a paraphilia not otherwise specified, specifically a non-consenting, coercive sexual interest (sometimes referred to as a "rape preference"). It is also possible that he suffers from sexual sadism. Finally, it is possible that he also suffers from an inappropriate age preference, pedohebephilia".

In his testimony he said that there were only marginal and relatively unimportant differences between his diagnostic formulation and that of Dr. Gignac.

76On the question of Mr. Côté's personality disorder, Dr. Woodside pointed to consistent evidence of Mr. Côté's sense of grandiosity and sense of entitlement - as well as his lack of empathy - as providing "substantial evidence" for the existence of such a disorder. Dr. Woodside amplified this in his testimony. Based on both his own contacts with Mr. Côté and from reviewing the records Dr. Woodside considered that there was considerable evidence of Mr. Côté manifesting both narcissistic and passive-aggressive personality traits:

"[T]hat involves people who show a kind of negative attitude and passive resistance to requests that are made of them. They often feel that they are being treated unfairly or misunderstood, feel that great injustice has been meted out towards them. They complain without really taking responsibility for their own actions as it may relate to difficulties that they're experiencing…I thought there was fairly good evidence for that for Mr. Côté".

77Examining the record of what Mr. Côté was prepared to tell Dr. Woodside and other mental health assessors, the facts of the offences of which Mr. Côté has been found guilty (particularly the number of victims and the fact that these were all strangers), and the result of phallometric testing, Dr. Woodside had "little hesitation" in making the diagnosis of "Paraphilia Not Otherwise Specified – Non-Consenting, Coercive Sexual Preference".

78Turning more specifically to the question of risk assessment, Dr. Woodside reported his scoring of several well-known actuarial instruments. On the Psychopathy Checklist – Revised (PCL-R), Dr. Woodside scored Mr. Côté 20 out of a possible 40 points. While "[t]his score would be considered significantly elevated compared to scores found in the general population [it was] somewhat below average for a prison inmate population". Thus, Dr. Woodside fairly noted that "[i]n and of itself, [this result] would not be significantly predictive of future general and violent recidivism".

79Ms Goldenberg brought out in cross-examination that Dr. Woodside did not diagnose Mr. Côté as suffering from an antisocial personality disorder, as his score on the PCL-R did not reach that level. However, he was clear that he found "anti-social traits certainly present for him".

80In his Report Dr. Woodside described that the PCL-R is divided into two subscales. The first attempts to measure "exploitive values and attitudes" while the "Factor Two" subscale "address[es] indicia of behavioural dyscontrol", broadly defined as factors relating to "social deviance" or "criminality". Ms Goldenberg brought out in cross-examination that Dr. Woodside had scored Mr. Côté between the 15th and 20th percentile, which meant that "his score was lower than about 80 per cent of the people in jail on the Factor Two items".

81PCL-R scores comprise a significant component of two of the other frequently used (and well-validated) risk assessment instruments, the Violence Risk Appraisal Guide (VRAG) and the Sex Offender Risk Appraisal Guide (SORAG). Dr. Woodside administered both of these instruments to Mr. Côté, and personally scored them. On the VRAG Mr. Côté attained a score of +2, placing him in the 56th percentile among male offenders in the development sample. After making allowances for estimated measures of error in the development of a "true" score, Dr. Woodside concluded that "the expected probability of violent recidivism is expected to range between 31% and 58% within 10 years of opportunity". On the SORAG "Mr. Côté obtained a score of +18…[which] placed [him] at the 79th percentile in the development sample". After similarly making allowances for estimated measures of error associated with this instrument"the expected probability of violent recidivism is expected to range between 59% and 80% within 10 years of opportunity". In cross-examination Ms Goldenberg brought out that Dr. Woodside was prepared to concede that "the SORAG is not a particularly potent predictor of sexual recidivism"; he explained that this was why he preferred to use the Static-99 instrument.

82It is noteworthy that the scores found by Dr. Woodside on these instruments do not significantly differ from what Ms Costi had found some years earlier.

83Dr. Woodside additionally administered two versions of the Static-99 screening tool, designed to identify individuals at risk for future sexual offending. These instruments presently have more limited reliability and validity, because they "take into account only a limited number of factors known to be related to sexual recidivism, and only those that can typically be scored on the basis of historical information alone (i.e. without an interview being necessary)". He found Mr. Côté's score to be "6 out of a possible 12…[which is] higher than 88% of individuals in the development sample…[Such a score] is associated with the highest risk category…individuals falling in this risk category offended at a rate almost three times that of the average sex offender". On the Static-99R, a revised instrument that takes greater account of age in estimating risk for sexual re-offending – in the sense that an offender's risk generally continues to fall with advancing age, Mr. Côté scored +5, placing him in the second-highest category, the "moderate-high risk category".

84Under cross-examination Dr. Woodside was entirely prepared to concede the limitations of actuarial instruments as predictors, in that they can only describe where an individual fits on a scale, as opposed to what a particular individual may (or will) actually do. However, balancing the outcomes of actuarial measures with his clinical assessment, Dr. Woodside concluded that:

"Mr. Côté sufficiently closely resembles the individuals used in the original samples in devising all of these instruments that there is no reason the instruments should not be applicable to him.

As well, there is nothing in this individual's clinical presentation or history to suggest that these risk estimates are over-estimates. Mr. Côté clearly embodies some of the clinical variables related to violent recidivism, including more significantly, the presence of a sexually deviant preference and a personality disorder. Many of these variables should likely be considered static variables, which will not be specifically responsive to intervention.

I would view Mr. Côté as being at moderate to high risk for violent sexual recidivism from a purely clinical perspective, as well.

Consideration of dynamic factors which relate to fluctuating or situational factors (such as response to treatment and supervision, treatment of alcohol and substance dependence difficulties, etc.) does not suggest a lower overall risk in this individual, although it does highlight areas where one might hope to intervene and better manage Mr. Côté's risk".

85Balancing Mr. Côté's history (as reported by himself and others), the facts of the offences committed, the results of psychological and phallometric testing, the results derived from the administration of actuarial instruments, all combined with his clinical impressions, Dr. Woodside concluded that from a psychiatric perspective Mr. Côté fits within several of the threshold definitions of Dangerous Offender status as described in s.753 of the Code. Applying the legal tests to the psychological and psychiatric evidence I entirely agree with Dr. Woodside's conclusion.

86Because Ms Goldenberg conceded – I think quite rightly - that Mr. Côté falls within several of the dangerous offender definition sections of the Code, I do not intend to spend any more time on this threshold issue in these reasons, and now turn to the more substantive question of whether the risk Mr. Côté presents can eventually be managed in the community.

THE EVIDENCE CONCERNING WHETHER "THERE IS A REASONABLE POSSIBILITY OF EVENTUAL CONTROL OF THE RISK IN THE COMMUNITY"

87An "LTSO finding" – as it is often called in shorthand parlance – is comprised of two components: a period of at least two years in custody, followed by a period of up to 10 years under community supervision. Dr. Woodside could obviously not have known what length of custodial sentence might be ordered to be served prior to the commencement of the community supervision order. Nor would Dr. Woodside likely have much idea what future treatment modalities might be made available to Mr. Côté while incarcerated – not the least given the substantial cutbacks that have recently been announced for federal correctional funding. Similarly, while Dr. Woodside could – and did - make some predictions about Mr. Côté's general motivation to take advantage of treatments that might be offered, he could not know much about what might happen to Mr. Côté during future incarceration. About all he could reasonably recommend on this issue was that:

"Mr. Côté should access and complete a wide variety of programs during a period of incarceration, including, but not limited to, cognitive skills, anger management, individual counselling and sex offender treatment".

88Given these uncertainties, it is therefore not surprising that this portion of Dr. Woodside's Report primarily addresses the question of monitoring and treating Mr. Côté in the community (or in preparing him for release into the community during the last portion of any period of incarceration). In this regard Dr. Woodside did make both general and specific comments and recommendations in three areas that I have found helpful in deciding the core question of whether a lengthy custodial sentence followed by an LTSO Order would be a more appropriate disposition than a dangerous offender designation accompanied by an order for indeterminate detention.

1. Age

89Dr. Woodside did note in his Report that: "[a]ccording to the research literature, there does appear to be a general decrease in violent offending among all individuals after the age of 40 to 45".

90In order to better contextualize this comment, following the completion of Dr. Woodside's testimony, I wrote to federal sentence administration officials (on notice to counsel) to request that they conduct detailed sentence calculations based on the alternative positions of counsel. Mr. Côté is presently 50 years of age (DOB June 4, 1962). These officials advise that if I adopt the position of the Crown and impose a custodial sentence of 12 years consecutive to the sentence he is now serving, Mr. Côté's Statutory Release Date on this combined sentence (calculated pursuant to s. 127(3) of the Corrections and Conditional Release Act) will be March 6, 2022, at which point he will be 59 years old. If I adopt the position advocated by the defence of 4 years consecutive, Mr. Côté's Statutory Release Date will be November 4, 2016, at which point he will be 54 years of age.

91The sentence administration officials provided further information about the implications of having either of these custodial sentences followed by a 10 year LTSO order. They advise that the relevant dates would result in supervision until March 4, 2039 if I am to adopt the Crown's submission. At that point Mr. Côté would be 76 years old. If I am to adopt defence counsel's submission Mr. Côté would be subject to an LTSO Order until March 4, 2031, at which point he would be 69 years old.

92Of course, if I designate Mr. Côté to be a dangerous offender and decide not to exercise my discretion to impose a definite sentence, he becomes subject to the control of the Parole Board of Canada for the rest of his life. The Board may decide never to parole him, or, if he is paroled he is subject to being ordered back into custody at any point, as his indeterminate sentence never expires.

93The question of what has been termed "burn-out theory" was further discussed during Dr. Woodside's testimony, specifically as a follow up to that portion of his Report dealing with the general concept that there is less likelihood of violent offending as offenders age. Dr. Woodside conceded that some of his professional colleagues consider that "by age 60 risk of sexual offending is, in essence, zero". Dr. Woodside strongly disagreed with this view – "it mocks actual experience". In his opinion, though the general trend might be that sexual offending across the entire population decreases substantially by age 60"[t]he difficulty is we don't have any good guidelines about which individuals [this does not apply to]". He provided anecdotal evidence from his own practice that he has had several patients who either committed their first sexual offence after age 60 or who re-offended sexually after that age.

94During his testimony, the converse proposition was briefly discussed when Dr. Woodside was asked whether Mr. Côté's apparently late onset of sexual offending – at age 39 – made any difference in formulating the risk that the offender presents. In examination in chief he agreed that "that's late in life to begin raping mature women, or relatively mature women". Under cross-examination he said that among the approximately 80 offenders he has assessed as part of dangerous offender proceedings, he felt that very few "had no prior history of violent offending prior to their index offence". However, Dr. Woodside characterized this late commencement of criminal sexual activity as a "relatively neutral" factor overall.

95Under cross-examination Dr. Woodside conceded that "there is a steeper decline…in issues of adult rape…compared with pedophilic offenders".

96Dr. Woodside made some recommendations directed at maintaining community safety that are directly related to Mr. Côté's age. The most important of these is that "any system of monitoring and conditions that are put in place for Mr. Côté remain in place for the rest of his life, or at a minimum, until he reaches his late sixties or early seventies". More specifically, Dr. Woodside recommended that "Mr. Côté should undergo sexual offender treatment programming…ideally…on a lifetime basis".

97This recommendation of a need for lifetime sex offender treatment programming no doubt influenced Crown counsel's ultimate position that a dangerous offender designation accompanied by an order for an indeterminate sentence would be the best mechanism for ensuring public safety. On the Crown submission, if Mr. Côté is to be paroled at some point in the future, it can be expected that he will be required by parole authorities to submit to some form of sex offender treatment and/or counselling while in the community for the rest of his life. This would be the only disposition which does not have an end date during Mr. Côté's lifetime.

98Having said this, if I adopt the Crown's alternative position of a custodial sentence of 12 years consecutive to the sentence he is now serving, followed by a 10-year LTSO order, given the information now obtained from the sentence calculation authorities, this too would roughly fit into Dr. Woodside's fallback position. As previously shown, under this scenario Mr. Côté will likely remain in custody until he is at least 59 years old (and if ordered "detained", he could remain in custody until he is 66). If he is released at either age 59 or at age 66, he will be subject to LTSO monitoring until he is 76 years of age.

99If the issue of age was the only factor to be considered, I conclude that this could be adequately addressed under either of the two alternative sentencing scenarios proposed by the Crown. Having said this, the submission as to quantum raised by the defence – 4 years consecutive to sentence now being served, followed by a 10-year LTSO – in my judgment is simply inadequate to address this important risk factor (let alone whether it sufficiently addresses broader principles of denunciation and deterrence).

2. Motivation for Treatment

100The main barrier to successful treatment in the community identified by Dr. Woodside in his Report was Mr. Côté's considerable ambivalence to treatment with anti-androgen (sex-drive reducing) medication. Because Mr. Côté indicated that he is prepared to start psychological treatment "and see if this was adequate", Dr. Woodside considered "this factor as being modestly in his favour". However, Dr. Woodside viewed "treatment with an anti-androgen medication…as a critical component of any release", though even here he cautioned that the administration of such medication "in and of itself is no guarantee of a reduction in his overall risk for sexual recidivism".

101While Dr. Woodside agreed with Ms Goldenberg's suggestion that in a sense Mr. Côté deserves some credit for his candour, he felt that Mr. Côté's linking his refusal to take sex-drive reducing medication with his desire to have a normal family life (and possibly children) was very unrealistic. To this I would add my view that the very fact that, at the age of nearly 50 (when he was interviewed by Dr. Woodside), the offender does not seem to realize how unrealistic he is does not bode at all well for his chances of living an offence-free lifestyle.

102A second barrier to successful treatment in the community, Mr. Côté's refusal to commit to be fully open about his sexually deviant fantasies because of his concerns about confidentiality, was amplified by Dr. Woodside during his testimony. He pointed out that Correctional Service of Canada (CSC) officials (both penal and community-based) take the view that:

"information provided during [treatment] sessions is not confidential…CSC will and can disclose any and all information as they see fit to whoever they see fit, if they think it's remotely relevant to managing that individual. So Mr. Côté's concern about being able to share information confidentially…is likely to remain a concern to the extent that he actually is within the Correctional Services Canada system. And that may well pose a significant bar to treatment to the extent that he persists in saying "I just can't discuss these things if there's no confidentiality"".

Though Dr. Woodside charitably said that he was prepared to accept what Mr. Côté said about his confidentiality concerns "at face value", at another point in his testimony Dr. Woodside expressed that these concerns provided Mr. Côté a rather convenient excuse to avoid discussing these important issues.

103Ms Goldenberg properly sought to counter this part of Dr. Woodside's evidence by bringing out that Mr. Côté has now been recommended for and has agreed to enter a high-intensity sex offender treatment program at a penitentiary in Quebec, which presumably he will do once these proceedings are concluded. She inferentially invited me to conclude that Mr. Côté must be deemed to have withdrawn his objection to participating in treatment without a guarantee of confidentiality. I hope that this is the case.

104A third (potential) barrier identified in his Report and in his testimony by Dr. Woodside is Mr. Côté's expressed view that through his longstanding religious faith, he has now realized the error of his ways, that he has come to peace with himself, and that he is certain that he will not reoffend. Dr. Woodside said:

"[M]any people find some comfort and benefit from their faith, and to the extent that it assists them in undertaking treatment that might be helpful as an adjunct, I don't see it [as] any kind of bar. However, I do think of it as a mistake to think of it as successful treatment, in and of itself. So if Mr. Côté were to persist in his belief that he doesn't need any treatment beyond adhering just to his faith, I would have significant concerns about that. I would not view him as remotely manageable in the community, if that were the case….

It is…certainly my impression, and I think from the impression of others…that he uses religion as a way of avoiding questions about his offending behaviour…I think he uses it as a tool…to avoid discussing his offending behaviour in a more meaningful way, and that's a concern for me…because it limits the ability to actually analyze his behaviour, and then to help him develop a plan to manage his sexual behaviours".

105Crown counsel then drew Dr. Woodside's attention to a portion of the 2011 Correctional Plan developed by CSC officials, where those officials "doubt[ed] that [Mr. Côté] is open to any other type of intervention, other than religion for the time being". Dr. Woodside considered that this "echoes my experience…I think [he] pretty clearly believes that faith alone is enough to prevent him from ever committing another offence".

106Ms Goldenberg again attempted to counter this by referring to Mr. Côté's current commitment to enter into psychological treatment while incarcerated.

107To all of this discussion about the role of Mr. Côté's religious faith, I would add one point brought out by Crown counsel during submissions, namely that whenever Mr. Côté speaks of his religious faith being sufficient to address his possibility of reoffending, he mentions this in the past tense, as if this is something that has already been dealt with, rather than – more realistically – that Mr. Côté will have to recognize and contend with the dangers of him reoffending for a very long time, likely for the rest of his life. I agree with Dr. Woodside that, though Mr. Côté's religious faith is no doubt very genuine, his view that he has already dealt with his criminal tendencies is further evidence that he is entirely quite unrealistic in his approach to life and to his deep seated psychological problems, and does not bode well for his future prognosis.

3. Prognosis for Treatment

108As previously mentioned, Ms Goldenberg put to Dr. Woodside's that Mr. Côté has agreed to enter a sex offender treatment program while incarcerated. Even assuming this is indicative of a fundamental change in his motivation, Dr. Woodside expressed considerable pessimism that Mr. Côté's diagnoses of sexual deviance combined with personality disorder can be treated. He wrote:

"When considering his diagnosis of sexual deviance, research relating to the treatment of sexual offenders has been equivocal, with the most optimistic research indicating a modest reduction of risk only. The most rigorously controlled studies have shown little or no benefit from treatment, whether that is in the form of psychological or pharmacological treatment.

When this diagnosis is combined with a personality disorder, then likelihood of successful treatment becomes further reduced.

Overall, Mr. Côté's primary diagnoses (mixed personality disorder and sexual paraphilia) are both considered difficult to treat with a poor prognosis being associated with each. The combination of these diagnoses renders the prognosis for successful treatment (and a reduction in his risk for further violent offending) poorer compared with other offenders".

109Dr. Woodside repeated much of this in examination in chief. Though Ms Goldenberg questioned some of Dr. Woodside's methodology (in the administration of the actuarial instruments), and some of his factual assumptions about Mr. Côté's history and progress through the numerous custodial institutions he has been in since his arrest in 2001, she chose not to challenge his main conclusion about the difficulty of treating any person who has the dual diagnoses that Mr. Côté suffers from. As previously noted, she restricted herself to drawing out that Mr. Côté scores somewhat lower on the PCL-R than an offender fully diagnosed with an antisocial personality disorder, which would make him somewhat more likely to recidivate. (I stress that I say this in no sense of criticism of Ms Goldenberg; she – and Mr. Lewin before her – have had a most difficult brief).

110There seems to me to be a further very practical consideration that also needs to be addressed under this heading, that being that the powers of the Parole Board and the Correctional Service of Canada to return an offender subject to an LTSO to custody are rather limited. These pragmatic realities were recently summarized by Aitken J. as follows:

"When a condition to reside in a community-based residential facility or community correctional centre is imposed, the National Parole Board limits it to 90 days and requires a review to be done by the end of each 90-day period to determine whether the residency requirement will remain. There is a concern on the part of the Correctional Services of Canada and the National Parole Board that a long-term supervision order is not a custodial order; it is an order based on the assumption that the risk posed by the offender can be managed in the community. The imposition of residential restrictions smacks of a custodial sentence and could be the subject of a court challenge. Similarly, the imposition of "house arrest" on an offender subject to a long-term supervision order, though done by the National Parole Board in exceptional cases, is open to court challenge. It is instructive to note that under s. 134.1 of the CCRA, there is no reference to residential conditions, as there is in the corresponding section (s. 133) dealing with conditions of release for parolees.

If an offender on a long-term supervision order breaches a condition imposed by the National Parole Board, Correctional Services can suspend a person's residency in the community for up to 30 days, but beyond that, the offender must be referred back to the National Parole Board with a recommendation to cancel the suspension and possibly impose additional conditions, issue a reprimand, or charge the offender under s. 753.3 of the Criminal Code. Conviction under s. 753.3 can result in a sentence of up to 10 years, though normally, the sentences imposed by courts are in the range of days or months. Otherwise, revocation of residency in the community or detention until the end of the long-term supervision period are not options, regardless of the perceived risk" R. v. Charbonneau, [2007] O.J. No. 3609 at para 190 & 194.

111Thus, in looking at this case of an offender who has frequently and continually expressed either outright refusal or at least ambivalence about taking anti-androgen medication to reduce his risk of reoffending, it seems to me that the LTSO "route" does not offer adequate public protection. Though she could not comment very much about how this might "play out" if Mr. Côté's future plans (as seem likely) are ultimately to seek release in Quebec, the witness Anthea Haines, who gave evidence during this hearing on behalf of the Correctional Service of Canada, confirmed the current powers of CSC (and the Parole Board) in relation to LTSO orders, in the same terms as discussed by Aitken J., supra. (See also R. v. Grayer (2007) 2007 ONCA 13, 215 C.C.C. (3d) 505 at para. 64; R. v. Allen 2007 ONCA 421, [2007] O.J. No. 2226 at para. 28).

THE SUBMISSIONS OF COUNSEL

112Crown counsel's basic position is that given the evidence that has emerged during this hearing, (particularly psychiatric evidence that had not fully crystallized at the time Mr. Côté was found to fit the LTO criteria in the Quebec proceedings), there are simply "too many contingencies" to say at this point that there is a reasonable possibility that Mr. Côté's risk can be adequately managed in the community, even after a lengthy custodial term has been served. In this regard, Mr. Travers reminded me that while the Crown of course bears the onus of leading proof beyond a reasonable doubt to establish that an offender meets the dangerous offender criteria, case law from several jurisdictions has established that the Crown does not bear this same high onus of proof in relation to the question of whether there is a reasonable possibility of control in the community (R. v. Johnson, supra; R. v. F.E.D. (2007) 2007 ONCA 246, 222 C.C.C. (3d) 373 (Ont. C.A.) at paras. 38-55; R. v. Wormell 2005 BCCA 328, [2005] B.C.J. No.1289 at p.11).

113Mr. Travers placed considerable reliance on the decision of the Ontario Court of Appeal in R. v. G.L. 2007 ONCA 548, [2007] O.J. No. 2935, a Crown appeal against a sentencing judge's refusal to impose a DO designation accompanied by an order for an indeterminate sentence. The sentencing judge had considered that the proper interpretation of R. v. Johnson was that before the lesser penalty could be applied the court did not have to be satisfied that "risk elimination" could be achieved if the measures proposed for the offender's release were brought into effect; rather, the court should examine whether such measures would be sufficient to achieve an acceptable level of "risk reduction". Writing for the court, Cronk J.A. agreed that the sentencing judge had correctly interpreted the general principle established in Johnson. However, Nicholas J. had erred in the application of that principle to the facts of the case, in that, in the view of the Court of Appeal, she had neither adequately addressed the "offender's amenability to treatment" and "the prospects for the success of treatment in reducing or containing the offender's risk of reoffending".

114G.L. was a serial domestic abuser. There was "uncontradicted psychiatric evidence" that his risk of violent reoffending was "extremely high, and perhaps a virtual certainty, for the next 10 years", that he "poses an unacceptable risk to cause serious personal injury during that 10 year period", and that "he will almost certain[ly] recidivate if released to the community" prior to age 45. More importantly, the trial judge accepted that the offender was neither amenable to, nor was he prepared to "meaningfully commit to treatment".

115Despite this pessimistic evaluation, one of the trial judge's rationales for declining to impose a DO designation (and to impose a custodial sentence that would keep the offender in custody until after he had reached age 45) was that a reasonable possibility of eventual control of his risk after that age existed, in part because "the evidence suggested that [the offender] had never been subject to strict conditions while on probation or parole", and that the psychiatrist had concluded that he "would be prepared to endorse the notion of 'reasonable possibility of eventual control of the risk in the community' if very substantial resources could be allotted to this individual's risk management in the future". According to the Court of Appeal, this was one area where the trial judge had fallen into reversible error; Johnson had established (at para. 29, quoted in G.L. at para. 58) that a sentencing judge should look to the adequacy of present sanctions available to reduce the offender's threat to an acceptable level, rather than hoping (my word – not hers or those of the Court of Appeal) that those kinds of intensive supports might be available in the future. As the Ontario Court of Appeal said in its later judgment in F.E.D.: "If the sentencing judge is uncertain whether th[e] requirement [that there is a possibility of eventual control in the community of the risk that an offender presents] is satisfied, Johnson indicates that the sentencing judge should refuse to exercise the discretion not to declare the offender dangerous".

116In fairness, it must be said that there is nothing in the evidence presented in this hearing that would suggest that Mr. Côté particularly requires the kinds of extremely intensive supports that G.L. would apparently need if he was to have any hope for successful community reintegration. The uncertainty in the case at bar rather comes from two factors. The first is that at this stage the court has very little idea of where Mr. Côté will ultimately seek release either following a DO designation accompanied by an indeterminate sentence, or following release on a 12-year consecutive sentence (likely in about 9 years time). I agree that I have Ms Haines' evidence about what facilities presently exist in Ontario, but unfortunately experience demonstrates that a decade is a very long time in terms of correctional planning.

117More saliently, it seems to me entirely clear that Mr. Côté's continuing inability either to recognize or to accept that his psychological problems are very deep seated, combined with his considerable ambivalence to commit to take anti-androgen medication – if necessary on a lifetime basis – are significant indicators that whatever supports may be in place to assist and surveile him in the future are simply insufficient to address the very real risk he presents. In the circumstances of this case, in my judgment whatever regime may be in place if and when he is ultimately released on conditions amounts to little more "than mere speculative hope" (G.L. at para. 42). The LTO regime simply does not "replicate jail-like conditions in the community" (para. 62). To quote the Court of Appeal in G.L.: "to hold otherwise would be speculative, thereby preventing any reliable assurance that unreasonable risks to public safety can be avoided" (para. 59). At a later point in its reasons the Court states: "in a contest between an individual offender's interest in invoking the long-term offender provisions of the Code and the protection of the public, the latter must prevail" (para. 70). (See similarly R. v. Poutsoungas, [1989] O.J. No. 1033 p. 3; R. v. Higginbottom, [2001] O.J. No. 2742 para. 25); R. v. Allen 2007 ONCA 421, [2007] O.J. No. 2226 para. 31; R. v. Halliday [2012] O.J. No. 2311 para.14.

118Crown counsel properly concedes that there is no burden on an offender to establish that custodial and/or community-based treatment programs will be successful in reducing the risk an offender presents. However, Mr. Travers reminds me that Mr. Côté elected to call no evidence during this hearing; he thus argues that I have nothing before me that is capable of addressing the "real world" concerns expressed by Dr. Woodside in his comprehensive report, particularly Mr. Côté's lack of demonstrated commitment to address the various psychological and pharmacological treatments that are necessary to reduce his risk to an acceptable level. On this Crown counsel directed me to what the courts said in R. v. Grayer (2007) 2007 ONCA 13, 215 C.C.C. (3d) 505 at para. 64, and R. v. Allen 2007 ONCA 421, [2007] O.J. No. 2226 at para. 28. In addition to what Mr. Travers said in submissions, I would add that there also needs to be some evidence that an offender can be treated within a definite period of time (however long that might be) – see R. v. McCallum, [2005] O.J. No. 1178 (C.A.) at para. 47; G.L., supra, paras. 40-44; Higginbottom, supra, para. 26; Poutsongas, supra, pp. 1-2).

119Mr. Travers directly addressed one issue that certainly was on my mind as I listened to his submissions, that being how to "square" what had happened in the Quebec court with what is now at issue in these Ontario proceedings. Reduced to their simplest, the transcripts of the Quebec proceedings reflect that that court was largely prepared to defer to Dr. Gignac's view that since Mr. Côté had not yet had access to treatment while incarcerated, and that since he had expressed to Dr. Gignac that he was prepared to submit to treatment, an LTO finding accompanied by a 10-year LTSO (following a 9 year custodial sentence) would be preferable to a DO designation (accompanied by an indeterminate sentence). While I am not certain what the Quebec law on this issue may be, I accept that there is some law from some provinces that failed or refused treatment is a condition precedent to a finding that an offender is untreatable, and that only in those circumstances is a court justified in proceeding directly to the imposition of a DO designation with an indeterminate sentence; see R. v. Ryan 2004 NUCA 2, [2004] N.J. No. 2 at para. 49 (Nfld. C.A.); R. v. D.L.S. [2002] B.C.J. No 2569 at para. 92 (B.C.C.A.).

120This, however, is not the law in Ontario. As far back as 1974 (albeit under a different statutory regime) the Ontario Court of Appeal made it clear that there are occasional cases in which a court should impose a life sentence – and that is effectively what a DO designation with an indeterminate sentence amounts to - in the hope that an offender may ultimately be suitable for release under conditions controlled by parole authorities. The court wrote:

"When an accused has been convicted of a serious crime in itself calling for a substantial sentence and when he suffers from some mental or personality disorder rendering him a danger to the community but not subjecting him to confinement in a mental institution and when it is uncertain when, if ever, the accused will be cured of his affliction, in my opinion the appropriate sentence is one of life. Such a sentence, in such circumstances, amounts to an indefinite sentence under which the Parole Board can release him to the community when it is satisfied, upon adequate psychiatric examination, it is in the interest of the accused and of the community for him to return to society." R. v. Hill (1974), 15 C.C.C. (2d) 145 (C.A.) at para 8.

121In R. v. Edwards, [2001] O.J. No. 2582, the Court of Appeal affirmed in the dangerous offender context that the Hill principle remains the law of this province. More recently, writing for the Court of Appeal in R. v. Simon 2008 ONCA 578, [2008] O.J. No. 3072 Doherty J.A. was clear that "[n]othing in the language Parliament use in the dangerous offender provisions suggests that failed or refused treatment is a precondition to a dangerous offender designation" (at para. 93). And see, most recently, the Court of Appeal's brief endorsement to the same effect in R. v. Waudby [2011] O.J. No. 5831 at para. 14.

122Whatever may be the law in Quebec, Mr. Côté is to be judged according to the law in this province.

123I leave this point by commenting about Dr. Gignac's evidence that while it may be both medically ethical and entirely appropriate in a therapeutic context to employ treatment regimes based on hope and optimism, with respect they have no role as the basis for a sentence whose overriding aim is public protection. The law on this is clear: see R. v. D.L.S., 2000 BCSC 40, [2000] B.C.J. No. 47 (B.C.C.A) at paras. 120-121; R. v. McCallum, supra at para 52; R. v. Allen, 2007 ONCA 421, [2007] O.J. No. 2226 (C.A.) at paras 25-28; R. v. C.N., 2010 ONCA 418, [2010] O.J. No. 2418 at para 2.

124Given all that I have heard and read, I have ultimately concluded that this is one of those – hopefully rare – cases governed by the Hill principle, where a court must rely on paroling authorities to deal with this offender over the very long term. If Mr. Côté is ever to be released, in my judgment this must be done only after exhaustive assessment and treatment, and in a very slow and controlled fashion, with the ability to return him to custody expeditiously should he refuse to co-operate, or should he begin to deteriorate. Given his diagnoses and his continued unwillingness to admit and confront his very serious personality difficulties, a dangerous offender designation accompanied by an order for indeterminate detention is the only disposition which can offer an effective level of protection for this or any other community into which the offender may ultimately seek release. To rationalize this at a more philosophical level, I have carefully considered and am entirely satisfied that this offender meets the "vivid danger" test enunciated by Prof. Dworkin.

125Even given the Crown's alternative proposal for a 12-year custodial sentence prior to the commencement of an LTSO, in my judgment the LTSO provisions are simply not adequate to this task in the circumstances presented by this offender. In addition to the passage I have already quoted from R. v. Charbonneau, I would also refer to R. v. R.B. 2011 ONCA 328 at para. 13 and R. v. J.K.L. 2012 ONCA 245, [2012] O.J. No. 1716 at paras. 60-61 to the same effect.

126(In light of the conclusion I have come to upon the whole of the evidence, it is not necessary for me to address in detail the Crown's alternative proposal for an LTO finding. However, for purposes of completeness of the record of these lengthy proceedings, I should say that Crown counsel reminded me that Mr. Côté was never charged with aggravated sexual assault, so the possibility of a life sentence was not available. Fourteen years is the maximum sentence available for the offence of sexual assault causing bodily harm. Against that backdrop, Mr. Travers explained that two factors persuaded him to seek a somewhat reduced sentence of 12 years consecutive. These were (1) the offender had no previous record at the time he committed the offences against M.D., and (2) he pleaded guilty to those offences).

127I believe I have already addressed many of the trenchantly expressed submissions made by Ms Goldenberg (who, I reiterate, made the most of what she had available to her). However, I do need to briefly consider some of her further submissions.

128Counsel very properly stressed that the Quebec, Toronto and Boca Raton offences occurred over a brief time span of about 5 ½ months, which Dr. Woodside referred to as "a cluster of events". Ms Goldenberg thus argued that Mr. Côté's recidivism should be seen as brief in duration. She reminded me that this lack of a pattern was one of the factors that had caused the Alberta Court of Appeal to reject the dangerous offender designation in the important case of R. v. Neve 1999 ABCA 206, [1999] A.J. No. 753 paras. 126 ff. She argued that if a criminal record is prima facie evidence of a pattern, it follows as a matter of logic that lack of record is also evidence of a kind of pattern.

129I agree that this point is well made. However, Dr. Woodside (and Dr. Gignac before him) was very clear and definite that, despite Mr. Côté's lack of criminal record, his various deviate paraphilias are longstanding in nature. I am thus led to the view that notwithstanding Neve's reservation (para. 55) that DO status (accompanied by an indeterminate sentence) should be reserved for a very small group of offenders (currently numbering approximately 500 across Canada), Mr. Côté unfortunately falls into that classification.

130Ms Goldenberg next argued that there is no evidence of any "course of failed treatment" as that term has been evaluated in case law. That is obviously factually correct, as Mr. Côté has no previous criminal record. She combined this with Mr. Côté's now expressed willingness to sign up for – and to have been accepted into - an intensive sex offender treatment program while incarcerated. Several recent cases have considered this argument. As I read the decisions, while the absence of prior treatment efforts is clearly relevant to a determination of whether an offender qualifies for dangerous offender status, that absence is not determinative of the assessment I must make as a sentencing judge. Though there are a few indications that Mr. Cote may now be beginning to realize how serious his problems are, as the Saskatchewan Court of Appeal noted in R. v. Goforth 2007 SKCA 144, [2007] S.J. No. 643 "a dangerous offender designation is not contingent on a finding that the offender has absolutely no prospect of successful treatment while incarcerated" (at paras. 43-44, 53-54). See also R. v. Simon 2008 ONCA 578, [2008] O.J. No. 3072 at para. 93; R. v. H.B. 2011 ONSC 1413, [2011] O.J. No. 1049 at para. 122; R. v. Halliday [2012] O.J.No. 2311 at paras. 8-10, 15.

131Ms Goldenberg urged that I should adopt the approach in R. v. Jones [2008] O.J. No. 2067, where Hill J. declined to impose a dangerous offender designation and instead imposed a definite sentence followed by an LTSO order, on the basis that "there is a reasonable possibility of eventual control…in the community" (para. 91). I have carefully read this decision and note that in the same paragraph that there are two important factors that, in my view, substantially differentiate the offender in that case from Mr. Côté. First, Hill J. found that Mr. Jones "is motivated for treatment including sex-drive reduction pharmacological treatment". This must be compared to Mr. Côté's continued expressed unwillingness to commit himself seriously to such a course of treatment. Second, Mr. Jones had not been diagnosed as a "sexual sadist". In this case, at base both Drs. Woodside and Gignac come to the conclusion that Mr. Côté can properly be diagnosed as suffering from such a dangerous paraphilia.

132Finally, Ms Goldenberg points out that the cases cited by Crown counsel are much more obvious examples of where a dangerous offender designation accompanied by an indeterminate sentence was found to be appropriate. She points to R. v. Allen and R. v. Grayer as illustrative of the general principle that society's ultimate condemnation should be reserved for only the clearest of cases. She suggests that this case more closely resembles such cases as R. v. Jones, R. v. Payne, [2001] O.J. No. 146 (S.C.J.) at para. 111, and R. v. Stratton [2010] O.J. No. 5353 (O.C.J.) at para. 41. I have reviewed all of these cases, and particularly remind myself that Mr. Côté has not been formally diagnosed as suffering from an antisocial personality disorder; as such, I agree that it is not crystal clear that he presents the same risk as some of the other offenders courts have dealt with. However, I reiterate that, even though Mr. Côté may now be (rather belatedly) motivated to seek treatment for his various conditions, in my overall view the risk he presents at this stage is simply too great for society to take a chance (see R. v. Evans [2008] O.J. No. 3649 at para. 120; aff'd [2011] O.J. No. 1327).

DISPOSITION

133Mr. Côté is found to be a dangerous offender under s.753 of the Code. Pursuant to s.753(4)(a), he is sentenced to detention in a penitentiary for an indeterminate period.

134Pursuant to s.760 of the Code it is ordered that a copy of all reports and testimony given in this proceeding by psychiatrists, psychologists, criminologists and other experts, together with a copy of these reasons and a copy of the transcript of the proceedings against this offender be forwarded to the Correctional Service of Canada for information. For greater certainty this includes a copy of all Exhibits filed in this proceeding, except the Report of Dr. J. Gojer (Exhibit B).

135There will be an order for the production of a DNA sample pursuant to s. 487.051(4) of the Code.

136The offender will be designated as a person convicted of a designated offence pursuant to s. 490.011(1)(a) of the Code for a period of 20 years.

137There will be a lifetime prohibition on the offender being in possession of any firearms, explosives or ammunition, pursuant to s.110 of the Code.

138In light of the disposition I have now arrived at, I think I would be remiss if I did not express my preliminary view that there is one element of the calculation of Mr. Côté's sentence that may need to be further considered by a court (I briefly discussed this with counsel at one stage of these proceedings). In the communication I recently received from the federal sentence administration officials, they indicate that they are presently unable determine the date Mr. Côté was formally arrested on what I have referred to in these reasons as "the Toronto charges". It appears from Det. Field's testimony that he arrested Mr. Côté when he went to Millhaven Institution sometime in April, 2008 – I was not provided with the exact date - to pick him up so that he could be brought to Metro West court to face the Ontario charges to which he ultimately pleaded guilty before me. When that precise date is provided to federal sentence administrators, no doubt they will consider it as the "date on which the person was taken into custody for the offence for which the indeterminate sentence was imposed" (Code s.761). On that basis they will presumably compute his parole eligibility date as arising 7 years from the exact date in April, 2008. I would request that Crown counsel determine this exact date from Det. Field and pass that information along to the sentence administration officials.

139However, I believe that this may not result in the fairest computation of Mr. Côté's parole eligibility date. To the full knowledge of Ontario officials, Mr. Côté has been in continuous custody in Canada since April 25, 2005. If his parole eligibility date is computed from that date, rather than from the date he was actually arrested in 2008, this will have the effect of advancing his parole eligibility by some three years.

140Though there are from time to time cases in which the authorities deliberately (and improperly) choose not to execute arrest warrants, there is no suggestion of that here. I suspect that the failure to arrest Mr. Côté on the Ontario charges immediately upon or sometime close to his arrival in Canada is something that simply did not occur to Ontario police officials or officials of the Ontario Ministry of the Attorney General dealing with Mr. Côté's case. If I am right in this, what has likely gone on here is similar to what occurred in Parker v. Canada (Solicitor General), where the authorities did not realize that the failure to formally arrest a prisoner serving sentence in another province until he was returned to Ontario had the effect of deferring his ability to apply for a review of his parole ineligibility period by some months. In that case, Henry J. held that, even absent any intent by the police to deprive the applicant of his rights, because the prisoner's s.7 Charter rights had been improperly interfered with, the court found it fit to fashion a remedy by declaring the prisoner to be eligible to apply for a review of his parole eligibility period upon the earlier date i.e.15 years from the date he should have been arrested by the Ontario authorities.

141I have given some thought to whether it would now be appropriate for me to invite counsel to convene a "Nasogaluak" hearing, where factual determinations on this issue could be made and a potential remedy applied. After considering this carefully, I am of the view that this kind of remedy is not what the Supreme Court of Canada had in mind in R. v. Nasogaluak and R. v. Bellusci. Those cases dealt with sentencing judges' powers to order reductions in quantum of sentence; they did not at all deal with determining release eligibility. In my view, if available on the facts, that determination should be made by a Superior Court hearing an application for declaratory relief, not by me in this sentencing hearing. Even if I were to be persuaded that factually this might be the right thing to do, I consider that I lack jurisdiction to make an order directing sentence administration officials to compute Mr. Côté's parole eligibility date as arising 7 years from April 25, 2005 i.e. that it has already arrived.

Released: November 15, 2012

Signed: "Justice D.P. Cole"