WARNING
The court hearing this matter directs that the following notice be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:
486.4 Order restricting publication — sexual offences.
(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences:
(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,
(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or
(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).
(2) Mandatory order on application. — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and
(b) on application made by the complainant, the prosecutor or any such witness, make the order.
486.6 Offence.
(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
Court Information
Ontario Court of Justice
Between:
Her Majesty the Queen
— AND —
Cecil Munro
Before: Justice De Filippis
Heard on: October 21, 22, 30 & November 22, 2013; February 17 & March 11, 2014
Reasons for Judgment released on: April 30, 2014
Counsel:
- M. Malleson — counsel for the Crown
- A. Goldkind — counsel for the Defendant
De Filippis J.:
Introduction
1On 13 December 2012 I found the Defendant guilty of sexual assault, sexual interference with a person under the age of 16 years, and invitation to sexual touching involving a person under the age of 16 years, contrary to sections 271, 151, and 252 of the Criminal Code, respectively: See R v C.M. 2012 ONCJ 763. Following the verdict, on application by the prosecutor, I appointed Dr. Pearce, a psychiatrist to prepare a report that might be used as evidence at a dangerous offender hearing. The prosecutor later obtained the approval of the Attorney General to bring an application to have the Defendant declared a dangerous offender. These proceedings began before me on 21 October 2013.
2After the psychiatric report was prepared, the Crown moved to cross-examine the doctor. Counsel claimed the doctor is not his witness and he has the same right as the Defence to cross-examine. The Defence objected that this gives the Crown an unfair advantage and undermines the adversarial system. I ruled that both Crown and Defence had the right to cross-examine: See R v C.M. 2013 ONCJ 576
3The evidence at this hearing includes the victim impact statements with respect to the predicate offences, the psychiatric assessment, testimony from the author of the assessment and a representative of the Correctional Service of Canada, and transcripts of some of the defendant's prior sexual offences. The assessment includes information from a variety of sources, including a five and one-half hour interview with the defendant (self reporting) and review of correctional, medical and child welfare records.
4Neither party challenged the credibility and reliability of Dr. Pearce. I find his assessment to be thorough, fair, and helpful. He concluded that there are grounds to hope the defendant can be managed in the community through a long term supervision order (LTSO). Dr. Pearce immediately noted that this conclusion is based on a credibility assessment of the defendant that only the court could make and that his role was to identify the relevant factors for consideration.
5The Defence accepts that a LTSO is appropriate. The Crown opposes this and urges me to impose an indeterminate sentence. I have decided upon a fixed sentence, followed by a LTSO. These are my reasons.
Predicate Offences
6In convicting the defendant of the predicate offences, I made the following findings:
The victim, TT, is 15 years old. Her parents have been separated for three years and her mother lives with the defendant. She resides with her father and spent weekends with her mother and the defendant and, occasionally, visited after school. On the weekend in question, she joined her mother and the defendant at a neighbour's yard party. All, including the victim, consumed alcohol. Later, in the evening, TT's mother left the party and returned to her residence and went to bed. She was followed by the victim and, soon after, by the defendant.
Once at home, TT changed into her pajamas - boxer shorts and a T-shirt overtop her bra and underwear - and went to the kitchen to use the computer. When the defendant arrived from the party, he also changed his clothes and joined her at the kitchen table. He was drunk and dressed in a pink nightgown. This did not surprise the victim as she had seen him wearing a skirt and blouse before and he had explained he felt more comfortable in women's clothing. The defendant sat down beside TT and whispered "can I touch you". The complainant interpreted this as a sexual advance, told him to "fuck off", and went to the bathroom. The defendant followed her and, while TT sat on the toilet, again asked if he could touch her. TT pulled up her pants and returned to the kitchen. The defendant again followed and repeated his request to touch her. TT stood up and the defendant removed her shirt "as one would pull it off a baby". He then pulled down the complainant's boxer shorts and underwear. The defendant told TT that one of her girlfriend's said her "pussy stank" and he smelled her vaginal area, while seated in his chair. The victim reported that the defendant "tried to lick me" but she pushed his head away.
TT was "standing there in shock" throughout these events. She went back to the bathroom and the defendant left the kitchen, presumably for bed. The next morning, TT's mother found her clothes on the hallway floor and asked "what were you doing?" to which she replied, "nothing".
The complainant continued to visit her mother after these events. On one such occasion, about a week later, the defendant approached her and said; "Do you know when I smelled your pussy? Don't tell your mom, it will hurt your mom." Several weeks later, TT saw the defendant forcibly pull her mother from the porch of a neighbour's home and escort her to his home. This upset her and she disclosed the previous events to a neighbour. The latter reported it to TT's mother and the police were called.
7I have the benefit of statements from the victim and her parents. TT wrote that the offences caused her "feelings to change" and noted that her family "started to act differently" but that she is otherwise "fine". Her parents expressed feelings of disgust, anxiety, and depression. TT's father stated that "although she may not admit to it, I feel that I have seen a significant change in my daughter's personality".
Defendant's Background
8The defendant has a criminal record with 60 convictions (including the predicate offences). It begins in 1976, when he was 17 and ends with the present offences in 2012, at the age of 51. The record includes five prior sex offences as well as crimes of dishonesty, violence, harassment, and failure to comply with court orders.
9This is a summary of the defendant's prior sex offences:
1978 - Indecent assault on a female – Nanaimo, British Columbia: The defendant sexually assaulted his eight year old niece over a two year period by fondling her breasts and vagina and digitally penetrating her on eight or nine occasions.
1980 - Indecent assault on a female (two counts): Campellton, New Brunswick: The defendant sexually assaulted two strangers, on different days, by charging them and fondling their breasts.
2000 - Sexual assault on a female – Cobourg, Ontario: The defendant sexually assaulted FL [the sister of JL - see 2004 conviction below]. FL was the defendant's step-daughter. He molested her about a dozen times over a three month period in the family home while her mother was at work. He took her to his bedroom and told her to disrobe. He fondled her breasts and vagina and ejaculated while the victim played with his penis. FL was 13 years old at the time. After these acts were completed the defendant reminded the victim not tell anyone as she would be blamed and her mother would leave her.
2002 - Sexual assault on a female – Oshawa, Ontario: The defendant sexually assaulted TH, a 16 year old female. The defendant was living in a rooming house that was also occupied by the boyfriend of TH. On one occasion the defendant followed TH from the residence and, while walking along the street, told her he "liked young girls and wanted to fuck her". He tried to kiss TH and after he was repelled, the defendant squeezed her breasts and buttocks, over her clothing.
2004: Sexual assault on two males – Oshawa, Ontario: At 24 years old, JL reported a historical sexual assault. The defendant was his stepfather in the several years preceding his eleventh birthday. The family unit consisted of his mother and sister [i.e. FL referred to above], the defendant, and two boys who are the biological sons of the defendant. When JL was nine or ten years old, while his mother was at work, the defendant told him to remove his clothing and inserted his penis into JL's mouth. He then placed LP's penis in his mouth. After these acts were completed, the defendant told JL to bend over and he anally penetrated him. Following these incidents, JL "started acting out" with his step brother because he "thought it was okay". During this time, the defendant was "sexually involved" with his biological eight year old son.
10The defendant was born in New Brunswick in 1959 and is now 53 years old. He is the seventh of nine children born to one mother and three fathers. The defendant met his father once; the latter did not provide financial support. His mother did not work and the family "lived on welfare". The defendant stopped going to school after grade eight and eventually drifted apart from his siblings and half siblings. He has lived in several cities in Canada, sometimes in shelters.
11Beginning at the age of 13, the defendant was sexually abused by an older man in the community. This man, identified by the defendant, performed oral sex on the young boy "lot's of times". Following this he was sexually abused by his sister-in-law, also identified by the defendant, as well as other unnamed men. In 1978, at the age of 19, the defendant was sentenced to two and one-half years in jail for indecent assault on a female. He claims to have been repeatedly raped anally while in the penitentiary. The defendant states he has been abused by "lot's of men, on the street, [and] in jail". He said the sexual abuse affected him greatly, especially his relationships with women, and that he turned to drugs and alcohol to cope. During his twenties, the defendant lived primarily as a woman and engaged in prostitution. He has attempted suicide three times.
12The defendant was married once and has two male children. He has not seen them for over a decade. He has cohabitated with at least seven women for more than six months and claims to have had 50 sexual partners, "including hookers".
Dangerous Offender Designation
13The test to be applied in determining if a person is a dangerous offender is set out in Section 753 of The Criminal Code:
(1) On application made under this Part after an assessment report is filed under subsection 752.1(2), the court shall find the offender to be a dangerous offender if it is satisfied
(a) that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (a) of the definition of that expression in section 752 and the offender constitutes a threat to the life, safety or physical or mental well-being of other persons on the basis of evidence establishing
(i) a pattern of repetitive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a failure to restrain his or her behaviour and a likelihood of causing death or injury to other persons, or inflicting severe psychological damage on other persons, through failure in the future to restrain his or her behaviour,
(ii) a pattern of persistent aggressive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a substantial degree of indifference on the part of the offender respecting the reasonably foreseeable consequences to other persons of his or her behaviour, or
(iii) any behaviour by the offender, associated with the offence for which he or she has been convicted, that is of such a brutal nature as to compel the conclusion that the offender's behaviour in the future is unlikely to be inhibited by normal standards of behavioural restraint; or
(b) that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (b) of the definition of that expression in section 752 and the offender, by his or her conduct in any sexual matter including that involved in the commission of the offence for which he or she has been convicted, has shown a failure to control his or her sexual impulses and a likelihood of causing injury, pain or other evil to other persons through failure in the future to control his or her sexual impulses.
14The defendant has been assessed to be "high risk" and/or "very high risk" to re-offend on eight occasions: 1995, 1996, 2000, 2001, 2004, 2007, 2008, and 2010. In the opinion of Dr. Pearce, he remains a high risk and meets the statutory criteria:
Given the results of the PCL-R, Static-99R, SORAG and the HCR-20, it is my opinion that Mr. Munro is likely to re-offend sexually and/or violently. With respect to "indifference to the reasonably foreseeable consequences of his/her behaviour", this gentleman has, while in custody and out of custody, repeatedly received programming to assist him. He was, in 2008, educated about his risk for re-offense and was offered libido reducing medication, by Dr. Woodside at CAMH. It has often been suggested to him that he avoid alcohol and that he participate in treatment to assist him in that regard, and he has not availed himself of same. He has not avoided contact with children, despite recommendations that he do so. Thus, in my opinion and from a psychiatric perspective, there is ample evidence that Mr. Munro has manifested "indifference to the reasonably foreseeable consequences of his behaviour". Given the aforenoted considerations and again from a purely psychiatric perspective, it is my opinion that the statutory test for Dangerous Offender designation, as articulated in the Criminal Code, is met.
15The Crown asserts that the defendant comes within three of the applicable subsections - namely, ss. 753(1) (a) (i), (ii), and (b) – and must be declared a dangerous offender. The Defence submission that an LTSO be imposed is a concession that the declaration should be made. A court may impose a LTSO or determinate sentence on persons labelled "dangerous offenders." However, the dangerous offender designation is mandatory once the statutory criteria are met. This is made clear by the Ontario Court of Appeal decision in R. v. Szostak 2014 ONCA 15, which clarifies amendments to the Criminal Code in 2008:
[36] As I will show, there has been an important shift in the way in which the legislation works. The trial judge's discretion has narrowed in one sense, the judge no longer having discretion not to find a person a dangerous offender who fits the definition. But the discretion has been broadened in that the judge has wider sentencing options for a person who does come within the dangerous offender definition. In my view, these changes have an impact on the interpretation of the dangerous offender definition. In particular, it is my view that the possibility of successful treatment is of limited application in determining whether the person is a dangerous offender. The possibility of successful treatment is significant in choosing the appropriate disposition.
[52] In my view, any doubt that intractability is not a necessary element to find a person to be a dangerous offender has been removed by the 2008 amendments. This legislation removes the discretion that existed under the 1997 legislation not to find a person to be a dangerous offender even though the person came within the definition in s. 753(1). That discretion has been replaced by a highly structured discretion in s. 753(4) and (4.1).
[54] It is apparent that Parliament [with the 2008 legislative changes] intended a broader group of offenders be declared dangerous offenders than was envisaged in Lyons where the court spoke of "a very small group of offenders".
16I agree that the defendant is a dangerous offender. At issue is the appropriate sentencing option within that designation. In this regard, the section 753 of the Code provides as follows:
(4) If the court finds an offender to be a dangerous offender, it shall
(a) impose a sentence of detention in a penitentiary for an indeterminate period;
(b) impose a sentence for the offence for which the offender has been convicted which must be a minimum punishment of imprisonment for a term of two years and order that the offender be subject to long-term supervision for a period that does not exceed 10 years; or
(c) impose a sentence for the offence for which the offender has been convicted.
(4.1) The court shall impose a sentence of detention in a penitentiary for an indeterminate period unless it is satisfied by the evidence adduced during the hearing of the application that there is a reasonable expectation that a lesser measure under paragraph (4)(b) or (c) will adequately protect the public against the commission by the offender of murder or a serious personal injury offence.
17Once the dangerous offender criteria have been met, there is no onus on the Crown to demonstrate beyond a reasonable doubt that the defendant cannot be controlled by a LTSO. See R. v. F.E.D. (2007), 2007 ONCA 246, 84 O.R. (3d) 721 (O.C.A.).
Defendant's Commentary
18Dr. Pearce recorded the following comments by the defendant:
[The defendant] reported that time spent in custody since July 29012 has "gone okay". He has been placed in protective custody and he claimed that he has not incurred any institutional misconducts. He has been involved with a social worker and a psychologist at C.E.C.C., "to help me deal with the stress and the anxieties and to talk about everyday issues". This has been helpful to some extent.
[The defendant] was unsure why he has not historically complied with conditions imposed by the Court. He will, however "absolutely" comply with such conditions in the future. He added, "I've been doing good for five years now."
[The defendant] indicated that he will participate in any treatment as recommended. He specifically indicated a desire to "keep talking about my past (to) get those nightmares out of my head". He would like to participate in a "group to learn about living with society, like paying my bills and stuff". He claimed that he will be honest with his probation officers. "That's never been an issue". He agreed to participate in group and individual therapy as recommended. He was "absolutely" amenable to accepting potent anti-libidinal medication; he has not previously been prescribed same. [The defendant] claimed, "That has never been offered to me before. When I was in jail before, I asked the group leader for that but they said I didn't really need that as I was in jail. I asked about if I would need it when I get out of jail and he told me to talk to my doctor on the outside. I was like, 'You freakin' idiot, I don't want to screw up and come back to jail"".
[The defendant] informed that he would avoid alcohol and drugs if mandated to do so. He would comply with weekly urine toxicology screening, if required. When educated about anti-alcohol medication (disulfiram), he was agreeable to same if recommended. He was of the belief that this medication had been "taken off the market".
[The defendant] indicated that, at the time of his most recent arrest, he was not subject to any probationary terms or conditions. He admitted that he has historically struggled in completing probation; he stated, "This last one is the only one I ever completed without new charges. When I was with [LM], I was always doing crime to make money, but I'm not into it anymore. I have no use for it. I will get a landscaping job as I love that and I really enjoyed spending my pay cheque, as I had earned that money".
[The defendant] was educated about his previously rendered paraphilic diagnoses. When asked if he agreed with same, in particular his attraction towards children, he stated, "I honestly don't know. I went a whole bunch of years without molesting anybody but I don't know why I started again".
When asked about the severity of his sexual offences, [The defendant] replied, "They were fondling and masturbation. I'd say they were serious for the girls, absolutely, because it could scar them and leave them with the mental image that this is how all men are. And that's not right". When asked whether he is at risk of re-offense, he replied, "I'm not going to say yes and I'm not going to say no. I hope not, but who can say that will happen 10 to 15 years down the road? I know that in the last four years I never touched nobody, but I got convicted based on my record. I will do my best to make sure that doesn't happen again". He agreed that libido reducing medication "wouldn't hurt", in terms of avoiding re-offense.
Psychiatric Commentary
19Dr. Pearce made these observations with respect to the defendant's diagnosis and prognosis:
…. his relevant diagnoses are his moderately severe substance use disorder, his deviant sexual preferences, as well as a personality disorder (antisocial personality disorder).
[The defendant] has repeatedly returned to substance use even when prohibited from using intoxicants (alcohol and cannabis most recently)…and he has not availed himself of anti-alcohol medication when provide to him…it is crucial that this gentleman be prescribed anti-alcohol medication to manage his risk in the community….
It is notable that he has not thus far been prescribed anti-libidinal medication, as he flatly refused same…he is now amenable to pharmacotherapy and this is a positive prognostic indicator; in my opinion, he requires same should he have access to the community…. Additionally, should this gentleman be incarcerated for some time and then subject to an LTSO for 10 years, he would be will into his seventh decade of life at the expiry of such an Order. At that age, his risk for sexual re-offence would be reduced, although he may nonetheless still require anti-libidinal medication to help ensure he does not re-offend….
20Dr. Pearce concluded that "considering the aforesaid factors and in particular [the defendant's] advancing age, there are some reasons for optimism that this gentleman will be manageable in the community upon the expiry of an LTSO". In arriving at this result, the doctor noted that since the defendant has repeatedly failed to comply with terms of his release, he "be managed primarily by means of biological therapies and external controls on his behaviour".
21Dr. Pearce believes sex reduction medication successfully mitigates risk. However, he acknowledged its limitations:
…clinically, I think we think it's effective, but- you know, the evidence base showing its effect is not robust. The other aspect of that is -that's true, people do offend for reasons other than just purely sex, as you sort of suggested. And finally, there are clients on sex drive reducing medication who counteract the effects of that medication by - for example, taking testosterone supplements, etcetera. And then some people who are on the medication not even taking supplements, they can still get an erection and they still are - have sexual desires. So, I agree, it's not a perfect answer, there are some problems with it.
Correctional Service Canada Commentary
22Ms Phillips offered an opinion with respect to the regulatory and practical implications of fixed sentences, LTSO's, and indeterminate sentences. She is of the view that LTSO's are inappropriate, especially for sex offenders, because resource limitations make it difficult to properly supervise the offender and manage risk. There is not enough staff to ensure an offender stays away from children or discloses his past to intimate partners and similar such terms. She pointed out that Corrections Canada does not have access to electronic monitoring and added that in any event such technology shows where a person is, not what that person is doing and who he is doing it with. She testified that an offender cannot be physically compelled to take libido reduction medication; instead, authorities can suspend the LTSO for up to 90 days and/or charge the offender with breaching its terms by not taking the medication as required.
Position of the Parties
23The Crown submits that an indeterminate sentence is necessary because the defendant cannot be controlled by a LTSO and, in any event, would be at a high risk of re-offending after it expires. In support of the first proposition, the Crown points out that the defendant has not been deterred by previous court orders. Although he has spent much of his life bound by court orders, he has been convicted of 60 crimes, including the six prior sexual offences. Significantly, he has been convicted of breaching an order made pursuant to s. 810.1, specifically designed to address the risk of sexual re-offence. The Crown correctly identifies the use of alcohol and libido reducing drugs, as well as counselling, as the lynchpin of Dr. Pearce's proposal that a LTSO be considered. The Crown submits that the defendant's background shows the lynchpin will not hold.
24In advocating against an indeterminate sentence, the Defence points to the lengthy and careful report prepared by Dr. Pearce, adding that he "was not a 'hired gun' and his opinions ought to be given considerable weight". Counsel cautions against undue reliance of the testimony of Ms Phillips who, it is argued, is personally resistant to LTSOs; "….the Court cannot be handcuffed in its legitimate decision making power by an unwillingness on the part of CSC to properly allocate its resources to give effect to LTSO orders or to simply claim that it is too difficult to do so". It is submitted that while resource limitations cannot be ignored, the terms and conditions of an Order can be modified in such a way to work within those limitations.
25The Defence faults the Crown for expecting Dr. Pearce to provide "absolute certainty" that the LTSO would prevent re-offending, as evidenced by questions such as: What if Mr. Munro doesn't want to take his medication? What if there are side effects to the medication? What if he can't be monitored? What will happen once the LTSO has expired? The Defence suggests the concerns raised by the Crown are legitimate but they are theoretical and impose an impossible burden on the defendant. Counsel submits that the proposed course of pharmacological treatment will serve to reduce the defendant's sex drive, as will the natural course of aging. It submitted that the plan advanced by Dr. Pearce is comprehensive and feasible; it includes safeguards to ensure compliance and it is flexible enough to adapt to changing conditions.
Analysis
26I do not interpret the Crown submissions as a demand for certainty. In any event, the Defence is correct in stating that this is not the test. My decision is governed by section 753(4.1); since I have found the defendant to be a dangerous offender, I must impose a sentence of detention in a penitentiary for an indeterminate period unless I am satisfied by the evidence that there is a reasonable expectation the lesser measure of a fixed sentence, with or without a LTSO, will adequately protect the public.
27The defendant told Dr. Pearce he would comply with anti-alcohol and anti-androgen medication. I am mindful that he made these promises indirectly, without testifying and subjecting himself to cross-examination. Thus, I must assess his credibility against the evidence of the defendant's background and tools available to control him.
28As already noted, in 1978, the defendant sexually assaulted his eight year old niece. She later committed suicide. The defendant understands his actions might have contributed to her suicide. Notwithstanding this awareness, he has not taken treatments necessary to change his behaviour. In 2002, Mr. Munro was prescribed citalopram to reduce his libido, but he was non-compliant. In 2003, he was offered sexual offender treatment programming, but was removed from the group within a month for missing classes. In 2008, Dr. Woodside told the defendant about his high risk to re-offend and recommend anti-androgen medication as the only way to mitigate that risk. The defendant refused to take the medications. Instead, for the past five years, the defendant has consumed erection-producing medication (sildenafil, also known as Viagra). Alcohol was a factor in the predicate offences, as it has been in previous related offences. The defendant has breached non-alcohol terms in the past. Dr. Pearce proposes that such a term be enforced with the prescription of antabuse and monitored by urinalysis.
29Dr. Pearce understands that the viability of a LTSO requires faith in the defendant's promise to comply with its essential and most important term:
Q. Wouldn't your opinion about whether he can be managed on the order - on the ten year order be influenced if he were to say to you, I'm not taking sex drive reduction medication, I'm going to continue taking Viagra?
A. Yes. That would definitely influence my opinion.
Q. So, in large part, there is a credibility assessment for the Court to make about whether [the defendant] should be believed when he says, I'm going to co-operate with this, I'm going to take sex drive reducing medication?
A. It's true- yes, that's- that's right.
30According to Ms Phillips, urinalysis can be an effective means of testing for alcohol consumption. No evidence was called about how one might monitory compliance with sex reduction medication. However, in R v R.M. [2005] O.J. No. 4977 (Ont. S.C. J.), Justice Molloy found that it could only be done through blood tests.
31Dr. Pearce recommends that the defendant "should have no unsupervised access to children, for the foreseeable future… [or] become romantically involved with a partner who has a child under the age of 18….". According to Ms Phillips, such terms are hard to enforce. She testified that:
It's difficult to monitor because we do not follow the offender in the community 24/7, and information whether or not he's violated such a stipulation would be based on self reports and collateral contacts in the community…..He could be involved in a relationship and not advise us so we may not be aware.
32I agree with the Defence that the judicial role cannot be compromised by the deliberate or unreasonable failure of government to provide the basic resources needed to implement a statutory regime. There is no evidence the government has done this. On the other hand, as the Court of Appeal for Ontario pointed out in R. v. G.L. (2007), 2007 ONCA 548, 225 C.C.C. (3d) 20 (Ont. C.A.):
….the overriding purpose of the dangerous and long-term offender regimes is the protection of the public. Thus, 'real world' resourcing limitations cannot be ignored or minimized where to do so would endanger public safety. The court is required on a dangerous offender application to balance the liberty interests of an accused with the risk to public safety that will arise on the release of the accused into the community. That balancing exercise is informed by this fundamental principle: 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.
33Assuming the defendant could be controlled in the community pursuant to a LTSO, I must also be satisfied that the treatment provided is such that his risk of re-offending would be mitigated after expiry of the order. Dr. Pearce testified that, in general, child sexual predators remain a risk to an older age than those who sexually offend against adults.
34The defendant has had a sad life: He was molested as a boy and sexually assaulted as a young man. He has had a transient lifestyle, trying to cope with his substantial challenges through substance abuse. During this time, he has committed many offences and hurt others, including children. He has been repeatedly assessed as a risk to the community. He remains at a high risk to re-offend.
35The risk posed by the defendant is primarily with respect to young people. In R. v. D.V.B. (2007), 2007 ONCA 13, 215 C.C.C. (3d) 505 the Court of Appeal for Ontario observed that:
Children cannot protect themselves. They are generally vulnerable and helpless. When it comes to their safety, we must be vigilant. In the case of pedophiles for whom there is no reasonable possibility of eventual control of the risk they pose in the community there is only one option - they must be segregated from society.
36The Court of Appeal for Ontario in R. v. Madden, 2014 ONCA 135 reiterated that s. 753.1(1)(c) provides that a LTSO cannot be a sentencing option unless there is a reasonable possibility that the risk the offender poses will be controlled within the duration of the sentence. In that case the Court noted that the test was not net because the offender's "condition is intractable and he will be a risk throughout his lifetime". By the same token, as held by the Supreme Court of Canada, an indeterminate sentence is not appropriate "if the long-term offender provisions are sufficient to reduce the threat to the life, safely or physical or mental well-being of the persons to an acceptable level". In R v Johnson 2003 SCC 46.
37The test is not whether the defendant can be cured of the psychological and other issues that have caused him to harm young people. Rather, I must decide if the risk of re-offending can be reduced to an acceptable level. In my opinion, a fixed sentence followed by a properly structured LTSO will protect the public and serve the principles of denunciation and deterrence.
38The defendant is a threat to the public, especially young people, because of his substance abuse, deviant sexual preferences and personality disorder. It will be a challenge for correctional services to monitor compliance with the necessary term that he not have unsupervised contact with persons under 18. However, a properly structured LTSO can provide the authorities with meaningful and practical tools to address the other issues. This enforcement and the sanctions available in the event of a failure to comply with any term constitute an effective safeguard.
39I would not readily trust the defendant to keep his promises. However, I accept that he is presently motivated to comply with a LTSO. More importantly, I am confident that its essential terms can be enforced by those charged with the responsibility to do so. In this regard, I note that the defendant has never been under such a long period of continuous supervision. Moreover, his failure to comply with any term can result in his immediate and summary re-incarceration for up to 90 days and, if found guilty, to a jail sentence up to 10 years (section 753.3 of the Code). All agree that the taking anti-libido medication and abstinence from alcohol and other intoxicants are the essential terms. These are, as the Crown correctly points out, the lynchpin. Adherence to these terms means the risk to public safety is reduced to an adequate level. Breach of these terms means the defendant is a significant risk to the public. The defendant will understand that such a breach would carry severe consequences. This deterrent should reinforce his present motivation over the long term. Accordingly, it is reasonable to conclude that the lynchpin will hold.
40The defendant will serve a fixed sentence to be followed by a LTSO for a period of ten years. While in custody, the defendant should complete counseling programs to deal with substance abuse, anger management, antisocial attitudes, and sexual offender therapy. In this regard, I note the following comments by Dr. Pearce:
These [programs] should continue once he returns to the community. [The defendant] should be subject to intense supervision upon any eventual release to the community. I would envision residential placement in a community correctional centre (CCC) for an extended period of time, with privileges to leave the facility granted only after demonstrated compliance with programs and supervision. Any such release should take place on a graduated and slow basis to allow for rapid intervention (breach) should [The defendant] fail to comply with all conditions. [The defendant] whereabouts when outside a correctional facility should be subject to verification initially on a daily basis and parole officers should make regular, unannounced visits should [the defendant]. Munro reside independently. [The defendant] should be prohibited from having contact with any criminally-oriented peers outside of correctional facilities.
41The defendant will be bound by the following terms in the LTSO:
i) Keep the peace and be of good behaviour;
ii) Report as required by Correctional Services Canada;
iii) Reside where directed by Correctional Services Canada;
iv) Take counseling as directed by Correctional Services Canada;
v) Take antabuse (disulfiram) and libido reducing medication, as prescribed and, if required, do so in the presence of Correctional Services Canada staff or designate;
vi) Submit to random blood tests and urine toxicology screening to monitor compliance with the prescription for antabuse (disulfiram) and libido reducing medication;
vii) Abstain from the possession, purchase or consumption of alcohol and non-prescribed drugs and intoxicating substances;
viii) Not to enter any establishment, the primary purpose of which is the sale of alcohol;
ix) Immediately inform Correctional Services Canada if he enters into an intimate relationship with any person;
x) Not to be alone with and/or have unsupervised access to any person under the age of 18, without the prior approval of Correctional Services Canada;
xi) Not to associate with any person deemed unsuitable by Correctional Services Canada;
xii) Not to be in possession of a weapon;
xiii) Actively seek and maintain employment;
42I find that with the aforementioned LTSO there is a reasonable possibility of controlling the defendant's risk of re-offending and adequately protects the public. I acknowledge the Crown's concern about the potential risk posed by the defendant after the expiry of the LTSO. However, the defendant's past misconduct is not necessarily indicative of future behaviour, having regard to the counselling and treatment plan the defendant will be subject to for the next 13 years. By that time, the then 68 year old man should not be a risk to public safety.
43A LTSO must follow a fixed sentence of at least two years in the penitentiary.
The Fixed Sentence
44The Court of Appeal for Ontario has made it clear that the sexual abuse of young persons must be dealt with by severe penalties; the objective is to protect these vulnerable members of our community by sentences that denounce and deter. See, for example, R. v. D.M., 2012 ONCA 520. Having regard to the offence and offender in this case, I am of the opinion that the appropriate sentence is one of six years in the penitentiary. In coming to this conclusion, I note that there are no significant mitigating factors in this case. The aggravating factors are these: The defendant was in a position of trust over the victim. The latter was 15 years old. The defendant forcibly removed her clothing, smelled her vaginal area and attempted to lick her vagina. He persisted in doing so, after the victim clearly told him to stop. The defendant later tried to convince the victim not to report the sexual assault. The defendant has not expressed remorse. He has sixty prior convictions, including six for sexual offences. In the past, the defendant has not complied with counselling and treatment that could address the issues that cause him to offend sexually.
45The defendant was arrested on July 11, 2011. He did not apply for bail. As of the date of these reasons he will have been incarcerated for 21.5 months. At a credit of 1.5:1, that amounts to 32 months in presentence custody.
Conclusion
46To give effect to a six year sentence the defendant will be incarcerated for 40 months in addition to 32 months of pre-sentence custody.
47The fixed sentence will be followed by a long term supervision order for ten years on the terms set out above.
48In addition, I impose the following ancillary orders: A section 161 order for life; a section 109 weapons prohibition order (restricted and non-restricted) for life; an order prohibiting communication with the complainant while the defendant is serving his sentence; a SOIRA order for life; a DNA order.
Released: April 30, 2014
Signed: "Justice J. De Filippis"
1The 2014 hearings were by way of written submissions.