Ruling on Dangerous Offender Application
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
Steven Ernest Slade
Before: Justice Lloyd Dean
Counsel:
- Gary Nikota, for the Crown
- Kevin Shannon, for the Offender
Introduction
1These proceedings, as is obvious from the passage of time, have been protracted in length, as well as legally complex and most challenging, for not only this court but for both counsel as well.
2On June 19, 2012, Mr. Slade pled guilty to Internet Luring and Breach of Probation. The offences took place between the 16th day of January 2012 and the 1st day of February 2012.
3Following the plea of guilty to these charges the Crown, with the consent of the Attorney General, brought an Application, dated January 9th, 2013 pursuant to the provisions of section 753 of the Criminal Code ("Code") to have Steven Slade declared a dangerous offender or in the alternative a long-term offender.
4An agreed statement of facts was read in and filed as an exhibit.
Facts of Predicate Offence
5On October 22nd, 2009, Mr. Slade pled guilty to distribute child pornography under section 163.1 of the Code, Internet luring under section 172.1, counselling an indictable offence under section 464(1) (two counts), and failing to attend court.
6On November 17th, 2009, Mr. Slade was sentenced to two years in the federal penitentiary followed by three years' probation. He was held until a few days before his Warrant Expiry Date. On his release from custody he was bound by the probation order. One of the conditions being that he was not to possess or use a computer, computer systems, services or programs or mobile computer devices or any other device that has a capacity of accessing the Internet except as required for employment or education purposes, the necessity of which is to be confirmed and approved in writing by his probation officer. In addition, he was also bound by a section 161 order prohibiting the accused from accessing the Internet to contact a person under sixteen years of age.
7On his release, November 16th, 2011, Mr. Slade moved to Toronto. On Friday, December 2nd, 2011, seventeen days after his release from the federal penitentiary, Mr. Slade attended at the Toronto Public Library, accessed the Internet and contacted a Facebook profile of a young man whom he believed to be a fifteen year old boy. In fact, this Facebook profile was a police created Facebook profile ("undercover profile"), controlled by Detective Jason Belanger of the Windsor Police Service ("WPS").
This undercover profile was a profile originally created by the police back in 2008, and Mr. Slade had first contacted this profile back in 2008 when he was living in Belleville, Ontario, absconding from his previous charges. Mr. Slade had been a "friend" of this undercover profile since then. There were no overt acts by the police to contact Mr. Slade after his release from the penitentiary. It was Mr. Slade who initiated the contact with this undercover profile, a person he believed to be a fifteen year old boy.
With respect to the actual content of the Internet chat on December 2nd, 2011, Mr. Slade messaged the undercover profile and almost immediately asked how old the person was. The undercover profile advised Slade that he was fifteen. Mr. Slade then advised that he was forty-four years of age and asked if the undercover profile wore diapers as well. Mr. Slade also asked the undercover profile if he wanted him to change his diapers. He further asked the undercover profile if he had pubic hair or if it was shaved. While this chat was brief and ended without a definite luring offence, the officer believed that Mr. Slade was improperly using the Internet, contrary to his probation order. A copy of the various Internet chats have been acknowledged and entered as an exhibit.
8On December 15th, 2011, Detective Belanger checked his Facebook account and learned that Mr. Slade had sent the undercover profile an "app" request requesting a Facebook game he was playing. The undercover profile messaged Mr. Slade and told him he would have to show the undercover profile how to play the game. Mr. Slade replied that he would. Later on December 15th, 2011, Mr. Slade again contacted the undercover profile. During the December 15th Internet chat another officer, Detective Jeff Taylor, subsequently assumed Detective Belanger's fifteen year old persona and continued the conversations. During this chat the conversation almost immediately became lewd. Mr. Slade informed the undercover profile that he had just been released from prison on November 15th, 2011, and that he was on Social Assistance. Mr. Slade revealed that he had been in prison for two years. He also said, "So you see, I like seeing young boys naked and in diapers." The undercover profile asked him if "the guys were mean to you there." Mr. Slade replied, "No, they didn't know what I was in on. So, would you bath me like a baby or take a bath and shower with me?" Mr. Slade described himself as being five foot four, 220 pounds, with brown hair and blue eyes and, quote, "six inches, cut." Mr. Slade also asked, "Would you fuck me bare or with condom?" He also asked the undercover profile if he lives in Toronto. The undercover profile told Mr. Slade he lives in Windsor, to which Mr. Slade replied, "I wish I was still in Windsor." Mr. Slade further told the undercover profile that he used to live on Bruce Avenue and was arrested there. The undercover profile asked Mr. Slade if he can't come back and Mr. Slade replied, "I can, but I might get killed because of what I was charged with because of the child porn." The undercover profile asked Mr. Slade if someone is after him, and Mr. Slade replied, "The bitches that set me up to go to prison? Nope, not that I know of."
9During this conversation on the 15th of December the undercover profile shifted Mr. Slade's attention to a different young boy persona in order to maintain the integrity of the undercover account. To that end, the undercover profile told Mr. Slade that he had a younger half-brother. Mr. Slade immediately questioned the undercover profile as to the half-brother's age, to which the police officer answered, twelve. The police also attempted a video call to confirm the identity, but were unsuccessful. Mr. Slade stated he was in a public library otherwise he would. He also stated, "I don't have a computer at home as yet, as cops took my computer when I got arrested." He added, "I wish I did as I'd go on cam in the nude for you."
10On Tuesday, January 3rd, 2012, Detective Belanger was on-line once again using his undercover profile when Mr. Slade messaged him. This chat was very brief, as they were not able to communicate directly.
11On Thursday, January 12th, 2012, Detective Belanger sent an unsolicited message to Mr. Slade to try to maintain contact with him because they had not made contact with him since January 3rd, 2012.
12On January 16th, 2012, at about eight in the morning, Detective Taylor created a Facebook account in the name of Alex Delong ("Alex"), a fictional fourteen year old boy, using photographs of a Windsor Police officer when the police officer was fourteen years of age. The account listed Alex's birthday as July 24th, 1997. Once the Alex account was activated, Detective Belanger logged into his fifteen year old persona's Facebook account and informed Mr. Slade that his half-brother, Alex, was now on-line. Mr. Slade responded, "How old is he?" And when told he is fourteen, Mr. Slade asked, "He ever walk around his house naked? Cool." It was at this time that the fictional Alex received a Facebook friend request from Mr. Slade, and the fictional Alex accepted the request. Again, the conversation immediately turned sexual, with Mr. Slade requesting, "So why don't you take your boxers off and be naked?" Mr. Slade continued asking Alex questions about his penis size, his pubic hair and if he was circumcised or not. At one point he asked Alex if he would be his boyfriend if he came back to Windsor. Alex asked Mr. Slade, "What's the oldest and youngest you've been with?", and Mr. Slade replied, "Ten-year-old was youngest. Oldest was like fifty." Alex replied, "Cool. I'm fourteen." Moments later, Mr. Slade told Alex to log into a certain website to see pictures of him nude and wearing diapers. To allow access, Mr. Slade provided a user name and a password. Using the credentials supplied by Mr. Slade, Detective Taylor was able to view images of the accused nude in a field. Mr. Slade asked Alex if he had ever been nude in front of kids younger than him, to which Alex asked, "Am I too old?" Mr. Slade responded, "Nope, you are perfect age. Would you fuck me up the bum too?"
13Periodically during the January 16th chat Mr. Slade would suddenly leave the chat and return. When questioned why, Mr. Slade advised that he was using the computers at a public library in the Toronto area. Every thirty minutes the computer session would expire and he would have to re-log-in in order to continue chatting through Facebook. During the chat on January 16th, Detective Taylor noted a cellular phone number listed on Mr. Slade's Facebook wall and sent him a text to verify it was an active number. Mr. Slade confirmed that it was.
14Over the period of January 16th, 2012 to February 1st, 2012, Detective Taylor, posing as Alex, a fourteen year old boy, chatted with Mr. Slade either through Facebook or via SMN text messaging on nearly a daily basis. Some of these conversations are both highly sexual and disturbing. For example, on January 19th, 2012, during a chat with Alex, Mr. Slade said, "After you shoot your cum into my bum would you have a shower to wash me or have me leave with cum in my bum?" Over the next few days leading up to the meeting in Windsor, Mr. Slade continually engaged in sexually explicit chat with Alex. Mr. Slade asked if there was anything Alex wanted to bring or do, and Alex suggested Mr. Slade write "Diaper boy plus Alex" on the backside of his underwear as a gift for him. Alex told Mr. Slade to wear them on the bus ride to meet him and that he would keep them when Mr. Slade left. Mr. Slade agreed to do so, and further suggested bringing additional pairs for him and his half-brother, whom he hoped would join in the sexual encounter.
15During these conversations, discussions of meeting each other occurred often. Different methods of travel were suggested, and it was decided that a Greyhound bus would be the preferred method. Alex advised Mr. Slade that he had looked into prices for a bus ride and it would cost approximately $120 for the ticket. Mr. Slade replied, "Okay. That's round trip. You won't call cops because I was in prison for child porn?" When questioned about the circumstances, Mr. Slade explained, "I was in possession of it. Now I'm on probation," and, "I was sentenced to two years jail and three years' probation." Further, Mr. Slade stated, "If someone knew I was having sex or talking to someone under sixteen I will be gone for three years."
16Detective Taylor, posing as Alex, advised Mr. Slade that his mother would be out of town on February 1st for the night. It was agreed that Alex would purchase the ticket and Mr. Slade would travel to Windsor to spend the night having sex with Alex while his mother was away. Alex told Mr. Slade the ticket would be waiting for him at the Greyhound bus station in Toronto, Ontario. Mr. Slade provided his Scarborough address and his date of birth in order to purchase the ticket for him.
17On January 30th, 2012, Alex advised Mr. Slade he was in line waiting to purchase his bus ticket. Mr. Slade responded by asking, "You're going to rub my front and French me when I get off the bus?"
18On February 1st, 2012, at 4:58 a.m., Mr. Slade sent Alex a text message advising that he wore the underwear to bed and would be wearing them on the bus. Another text message was sent at 6:58 a.m. wherein Mr. Slade advised he was almost at the terminal in Toronto. At 8:32 a.m. Mr. Slade sent a final text message stating, "Leaving Toronto now. Do pants and undies come off in stall?"
19Mr. Slade travelled to Windsor anticipating he would meet Alex in order to have sex with him. Upon his arrival in Windsor, Mr. Slade was arrested for luring a child and breach of probation. Mr. Slade was wearing a pair of white underwear with "Diaper boy Alex" written on the buttocks in black marker.
20At 2:29 p.m. that same day Detectives Belanger and Taylor attended the detention unit and Detective Belanger provided a secondary caution to Mr. Slade. When asked if he understood what was happening, Mr. Slade replied, "Yes." When questioned about the special request from Alex regarding his underwear with "Diaper boy Alex" on them, Mr. Slade advised he was wearing them under his clothes. Shortly thereafter he was led to a private room to be photographed wearing his underwear. Once completed, the garment was seized. A backpack Mr. Slade had in his possession was also seized, and its contents were photographed. Located in the bag, among other things, were eight diapers with either "Diaper boy Alex" or "Diaper boy" written on them, baby powder, and six more pair of underwear and a change of clothes. Photographs of the accused wearing the undergarments and the contents of the knapsack were filed as exhibits.
21Mr. Slade was cooperative when arrested and following contact with his counsel provided a voluntary statement to the police. He provided a full confession to the police. He admitted that he came to Windsor to have sex with teenage boys and that he did not know these teenage boys were fictional at the time. Further, Mr. Slade admitted he was aware of his court imposed conditions and that he was breaching those conditions at the Morningside Public Library in Toronto. He explained that he used his library card rarely, as there were computers that did not require the use of a library card in order to be used.
22Mr. Slade is now 47 years of age.
Overview of Evidence on Dangerous Offender Application
23A number of document briefs have been filed containing a substantial amount of material. The Crown called several witnesses. The material and witnesses set out in substantial detail Mr. Slade's past prior criminal conduct, his conduct while he served his sentence for the prior criminal convictions, his conduct surrounding the predicate offences and other past sexual related conduct. The Crown elicited evidence from WPS officers, corrections facilities, viva voce evidence of processes and procedures utilized by Corrections Services Canada ("CSC") Federal Parole and provincial Probation services. As well, the Crown called evidence of a psychologist and a psychiatrist who were properly qualified as experts. They provided viva voce evidence as well as reports/assessments. The psychological evidence also consisted of records from CSC. These records contained information with respect to psychometric testing, phallometric testing, the initial assessment, actuarial risk assessments, treatment records and a post treatment performance report. Other evidence was called regarding Mr. Slade's past sexual conduct in the community which did not lead to any criminal charges being laid.
Criminal Antecedents
24Mr. Slade has a criminal record which includes convictions for possession of child pornography, luring a child and counselling an offence not committed, all arising out of the same investigation in the summer of 2008. As a result he is on the Sex Offender Registry and is also bound by a section 161 order. Following are the circumstances surrounding the 2008 offences.
25In the summer and fall of 2008, Mr. Slade engaged in sexually inappropriate internet contact with a person he believed to be less than sixteen years of age. This conduct was initially noticed by a neighbour who contacted the WPS. Thereafter, the WPS took control of the profile of the underage boy and, similar to the predicate offence, engaged Mr. Slade in numerous on-line chats. During these chats Mr. Slade encouraged this purported underage boy to sexually assault an underage male relative. On September 10th, 2008, Mr. Slade masturbated on a web cam in front of a fictitious male whom he believed to be less than sixteen years of age. A search warrant was obtained for Mr. Slade's residence. On execution of the search warrant police noted a number of objects including baby soothers and diapers. Police also seized a lap top computer, several pieces of digital storage media, CDs and a computer tower. A forensic analysis established that Mr. Slade had possession of child pornography, namely five hundred sixty-eight digital images and one hundred sixty-five digital movies. Further analysis revealed that Mr. Slade was trading and sharing child pornography. As well, an examination of the chat logs indicates that Mr. Slade counselled a number of adults to sexually abuse children. There were also a substantial number of online chats including chats describing the creation of a video involving the physical abuse, torture and killing of a young boy.
26Upon his initial arrest in 2008 the contents of Mr. Slade's knapsack were seized and analyzed. The knapsack contained printed and digital images of child pornography. The initial analysis was done by Detective Belanger following Mr. Slade's 2008 arrest. Following Mr. Slade's arrest for the predicate offence a more detailed analysis of the knapsack and the other items seized was conducted by Constable James Hladki of the WPS. This analysis applied the definition of Child Pornography as suggested in the case of R. vs. Meikle [2011] O.J. No 4151 (OCJ). According to the Forensic Analysis Report (FAR) and the viva voce testimony of Constable Hladki there were two hundred thirty-five photographs of child pornography, largely young males, generally around the age of ten. Frequently these photographs showed boys performing sex acts on one another. There were also photographs depicting young boys being anally raped or otherwise sexually assaulted by adult males. There were some photographs depicting a diaper theme.
27With respect to the videos of child pornography, according to the FAR and the viva voce evidence of Constable Hladki there were one hundred eleven videos of child pornography, frequently young boys who appeared to be approximately ten years of age. These videos largely focused on young boys engaging in sexual activity with other young boys. There were also a number of videos depicting young boys being anally raped by adult males. Other videos included images such as the insertion of a rubber dildo into the anus of a young boy, a seven minute video depicting the insertion of a cylindrical object into the anus of a ten year old boy, a video of a young boy manually stimulating a horse and then performing fellatio on this horse until the horse ejaculated into the boy's mouth, an eleven minute video involving forced fellatio while the hands of a young boy were bound, sodomy on the young boy while bound, and a six minute video of an adult male binding a young boy followed by a depiction of the young boy bound and engaging in sexual activity with another young boy.
28The FAR indicates Mr. Slade had close to three thousand chat logs on various computing devices. These various chat logs suggest that they occurred over a two year period, from January of 2006 to the time of his arrest in 2008. In these chats Mr. Slade engages in sexually explicit chats with other males, repeatedly attempts to arrange meetings with other males, with a relatively constant desire to engage in sexual activity with their children. Included in these discussions of sexual activity with young children there is also, from time to time, a discussion of diapers and as well a mention of sexually assaulting a baby in diapers. There is an online discussion of bestiality with a dog, encouraging others to sexually assault boys as young as eight years of age and a discussion of making a child pornography movie involving torture in order to make money. Mr. Slade seems to attempt from time to time to have children meet with him. Mr. Slade had children's underwear sent to his apartment. In one communication Mr. Slade appeared to agree to procure the services of a thirteen year old boy for another adult male. The person with whom he was conversing agrees to pay $1000 to have sex with the male and $2000 if the boy was still a virgin. There is a discussion about raping the boy and Mr. Slade continues on with this topic by suggesting the insertion of objects and fists. In response to suggestions about beating the victim Mr. Slade indicates "that would be hot" and suggests using a paddle and cane. Further comments suggest that the presence of blood, the sexualisation of wounds and pain to the victim was sexually arousing to him. Mr. Slade indicated that he would accept $4000 for procuring the boy so the other male could rape, cut and beat him. However, Mr. Slade wanted the boy to live so he could live with the boy and eventually marry him. The other person leaves the conversation still asking to be able to kill the boy as part of the sexual activity. Not long thereafter Mr. Slade engages in another internet chat with a purported underage boy named Benjamin from Orangeville. During this chat there is some attempt to have this person attend at Windsor to visit him. There were nineteen chat logs wherein Mr. Slade claimed that he sexually assaulted a ten year old boy. These claims occurred during January 2006 to March 2007.
29The police have been unable to locate a live victim. Following his arrest on the predicate offence Mr. Slade provided a statement to Detective Belanger and while he made numerous admissions against interest pertaining to the predicate offence, he was adamant that he did not ever sexually assault a child.
30Mr. Slade was granted bail on the 2008 charges. One of the terms of his release was that he was to report to the WPS. He failed to do so. Within a few weeks of his release, he fled the jurisdiction. He planned on travelling to the United States. While some steps were taken to leave Canada, Mr. Slade ultimately decided to live in Belleville, Ontario, with his brother and went by the name of Steven Gillis (his mother's maiden name). He lived there for several months until he was arrested and returned to Windsor.
31While in Belleville, Mr. Slade had to volunteer at a community service organization as a condition for qualifying for Ontario Works. He was offered a number of possible placements but opted to volunteer at "Komputers 4 Kids", an organization that provides computers for disadvantaged children. A statement provided by a volunteer for "Komputers 4 Kids" indicates that those who were sent over from Ontario Works were closely monitored and it was unlikely that they would be able to do anything inappropriate. At the time of his arrest there was a document found on Mr. Slade which indicates that he was delegated to provide a computer to a woman with a five year old son. This activity was in contravention of the terms of his release.
32On March 11, 2009, when Mr. Slade was arrested at his residence in Belleville police found two computers and various computer storage devices. These were seized but have subsequently been destroyed and are not available for further analysis. Mr. Slade was charged with two counts of breach of recognizance and pled guilty to both charges. In addition to sixty-five days pre-trial custody, Mr. Slade was sentenced to five days incarceration on each count concurrent.
33In March 2009 Mr. Slade was returned to Windsor from Belleville to deal with the 2008 charges. He was further charged with fail to attend arising out of not attending a schedule court appearance. He did not seek bail and was detained in custody.
34On October 22, 2009, Mr. Slade pled guilty to a number of charges including distribute child pornography, luring a child, counselling an indictable offence of sexual interference, counselling an indictable offence and fail to attend. Before being sentenced a pre-sentence report was prepared. In the pre-sentence report Mr. Slade admitted to thinking about fifteen year old males in a sexual manner, although he "has no idea why". Mr. Slade insisted that he would never engage in sexual activity with a minor and indicated that he would comply with any court imposed conditions. He believed that he committed the offences because he found it to be both "addictive" as well as "arousing." The probation officer who prepared the report believed Mr. Slade to be at a risk to reoffend.
35On November 17, 2009, Mr. Slade was sentenced to two years' incarceration in the penitentiary in addition to six months pre-trial custody. He was also placed on a three year probation order, as well as being placed on the Sex Offender Registry, ordered to provide a DNA sample and placed under a Section 161 order which prohibited from attending a park where children are present, being employed or volunteering where he would be in a position of trust towards children, or using a computer system to communicate with a child under sixteen years of age. As a result of the two year sentence Mr. Slade was sent to the federal penitentiary.
Corrections Services Canada and Parole Board of Canada Records
36The Crown filed a documentary brief which contained Corrections Services Canada (CSC) and the Parole Board of Canada (PBC) records. The Crown also filed a compendium of the numerous programs offered by CSC.
37There are numerous programs aimed at assessing convicted sex offenders with a comprehensive treatment program aimed at addressing their particular treatment needs. Treatment is encouraged, but never compelled. Upon his arrival at the federal penitentiary Mr. Slade was assessed by the Specialized Sex Offender Assessment Unit at Millhaven. According to one of the reports filed, Mr. Slade was not forthcoming in his description of the events that led to his charges. This lack of cooperation led to Corrections authorities contacting Detective Belanger to obtain further information. Detective Belanger provided background materials, including his FAR. During the assessment process Mr. Slade expressed some animosity towards his neighbour who reported him to the police. He denied an acceptance of sex with children or feelings of sexual entitlement. The psychologist conducting the assessment stated that Mr. Slade did not appear to be genuine in his assertions.
38As part of this Specialized Sex Offender Assessment (SSOA), Mr. Slade was also subject to a series of psychological, psychometric and phallometric testing. After the SSOA it was determined that there were significant risk factors which clearly needed to be addressed. It was recommended that Mr. Slade be placed in the High Intensity Sex Offender Treatment program at the Regional Treatment Centre (RTC). This recommendation was made as there were a significant and wide ranging number of enumerated areas of concern with respect to dealing with Mr. Slade's future risk for sexual reoffending. These concerns included a deviant sexual preference, lack of cooperation with supervision, sex drive preoccupation, impulsivity, lack of concern for others, emotional identification with children, significant social influences, capacity for relationship stability, poor problem solving skills, hostility towards women and negative emotionality. Mr. Slade refused to accept the recommendation to attend a high intensity treatment program at the RTC. Instead he chose to pursue a medium intensity sex offender treatment program.
39Prior to Mr. Slade's Statutory Release Date of March 18, 2011, the issue of release on Parole was considered by the PBC, formerly the National Parole Board. According to the PBC report dated November 22, 2010, Mr. Slade's sexual preference is for children. Moreover, Mr. Slade agreed with that finding and confirmed that his "interest lies in males under 10 with certain characteristics." The PBC report also noted that Mr. Slade minimized his offences, had a non-compliant attitude and had difficulty controlling his sexual impulses. As a result of the decision of the PBC, Mr. Slade was detained until a few days before his Warrant Expiry Date of November 17, 2011, and on release was supervised on Probation. These records were further amplified by the viva voce testimony of Mr. Chris Zurczak, the lead parole officer for Essex and Kent County and an affidavit and viva voce testimony of Ms. Nikki Smith, a senior representative from PBC.
Evidence of Chris Zurczak
40Mr. Chris Zurczak, the lead parole officer for Essex and Kent County, was qualified as an expert in the process and procedures of CSC. He described the mandate and purpose of CSC: to protect society and re-integrate offenders back into society.
41Mr. Zurczak described in general terms the process for each offender sentenced to federal incarceration. Within five days of a sentence being imposed an offender is interviewed by a local Corrections officer and asked to describe his version of the events. This version is compared to the official version of the offence. Community contacts are also canvassed as well as the offender's social environment.
42Mr. Slade was assessed at the Joyceville Assessment Unit to determine security level and needs. Following the assessment a Corrections plan was formulated and the general information relayed to Mr. Slade. The involvement of the local CSC representative then ceases and the PBC then become involved in determining parole eligibility and release.
43Every person sentenced to federal incarceration has a Correctional Plan aimed at addressing his needs and re-integrating him back into the community. There are numerous potential programs, about two hundred of them. Treatment is always offered but participation is optional. That is, treatment cannot be forced. No one can be forced into a program, but progress in a program will affect parole.
44While incarcerated an attempt is made to identify static and dynamic factors, and conduct a domain analyses to determine the needs and programs an offender will be offered. The programs are aimed at lessening the risk and identifying contributing factors to criminal acting out.
45Eligibility for parole does not mean that parole will be granted. Factors that affect parole include how an offender has done in treatment, community support (including halfway house), police concerns, victim concerns and the prison behaviour record. While parole is not a right, statutory release will be granted unless the PBC determines that an offender must be detained. Thereafter, there is a yearly review. Even if detained past the statutory release date, an offender is still encouraged to take programs. Being held to the WED is relatively uncommon – only approximately 4% of federal inmates are so detained.
Evidence of Nikki Smith
46Ms. Nikki Smith, a representative from the PBC testified about the processes, procedures, record keeping for the PBC and described the function of the PBC. Ms. Smith described the function of the Parole Board as an administrative tribunal obligated to consider all relevant and reliable information. She described in general terms the type of reports kept and considered by the PBC. The particular reports pertaining to Mr. Slade were filed as exhibits. Ms. Smith gave evidence regarding when an offender is eligible for release and parole.
47The records were further explained and amplified by the viva voce testimony of Dr. Yolanda Fernandez, a psychologist.
Probationary Supervision
48The court heard evidence and received documents surrounding the supervision of Mr. Slade while he was on probation with respect to the 2008 offences. John Baker, an experienced Probation officer who specializes in the treatment of convicted sex offenders, supervised Mr. Slade.
49Mr. Baker determined Mr. Slade needed high intensity supervision. This is the most stringent level of probationary supervision requiring more frequent reporting and strict compliance with all probationary terms and generally far more intensive probationary supervision. Mr. Baker's efforts to assist Mr. Slade's re-integration into the community included connecting him with a number of social agencies including the John Howard Society and the Circle of Support and Accountability. Mr. Baker also tried to engage Mr. Slade in treatment and counselling. A referral was also made to the Centre for Addiction and Mental Health.
50During a meeting with Mr. Baker on December 15, 2011, Mr. Slade attempted to have his probationary term varied so that he could gain access to the internet to start a leather trinket business. That request was denied. At that same meeting Mr. Slade was warned of his restrictions and signed an acknowledgement that he was not to have contact with anyone under the age of sixteen years. Despite this warning and signing the acknowledgement within two hours of the meeting Mr. Slade attended a library in Toronto, gained access to the internet and engaged a purportedly underage boy in sexual conversations. On January 12th, 2012, Mr. Slade told his probation officer that he was in compliance with his probation conditions and specifically denied any computer use. That statement was obviously not true, as the facts surrounding the predicate offence establish. Mr. Slade breached his probation order continuously.
51Debra Dumouchelle, a supervisor within Probation, provided additional information with respect to levels of probationary supervision and the process and procedures of probationary supervision.
Testimony of Psychologist, Dr. Yolanda Fernandez
52Dr. Fernandez was qualified as an expert witness with respect to the treatment of sex offenders, as well as phallometric testing. Dr. Fernandez has been employed for several years overseeing the delivery of mental health services for maximum security inmates, is responsible for sex offender treatment for all sex offenders entering the federal system in Ontario, and a senior therapist at the Bath Institution. She has also been trained in the use of various actuarial scores. Her testimony served to give the court further insight into the CSC psychology records which were tendered as documentary evidence at this proceeding. She provided background information with respect to the process and procedures of CSC in place to deal with sex offenders. She described the specialized sex offender assessment, which encompasses actuarial scoring, phallometric tests, a review of circumstances surrounding the underlying offence and an assessment of treatment needs, including the intensity of treatment required. On completion of testing a report is prepared.
53Dr. Fernandez described the underlying science and the process involved in phallometric testing. Specifically, the instrument measures erectile response to various stimuli and is used in making a determination of the subject's interest/response to the respective stimuli. The results of this testing and the results of other actuarial scoring instruments are used in formulating a treatment and release plan for convicted sex offenders. According to Dr. Fernandez sexual deviancy is strongly correlated to the risk of future reoffending.
54Dr. Fernandez provided evidence with respect to the phallometric testing administered to Mr. Slade. Mr. Slade's testing resulted in a finding that Mr. Slade showed no response to sex with females of any age. He showed a low response to sex with consenting adult males. He demonstrated interest in sex that involved passive sex with male children. He also had a deviant response to sex with male children involving violence, although not as strong a response as passive sex with male children. He exhibited no response to violence without sex. The testing overall revealed that Mr. Slade has a sexual interest in male children, with or without violence. That is, with respect to sex with boys, he was not turned off or inhibited by the presence of violence. He was however not sexually aroused by pure violence without sex.
55Dr. Fernandez described the use of actuarial scores and the use of statistical correlations to predict future risk for re-offence. As well, as a clinician she described the process of identifying needs and factors to be addressed in treatment.
56She was questioned at some length about the initial assessment that was completed by the specialized sex offender assessment unit. She testified that during his assessment Mr. Slade was not forthcoming about the events leading to his prior charges, and as a consequence further information was sought and obtained from the WPS.
57Dr. Fernandez was asked about the chat logs from 2008 obtained from the WPS wherein there were "chats" surrounding the creation of a film involving the rape, degradation, mutilation and torture of a young boy in return for the payment of money. According to Dr. Fernandez these chat logs suggest sexual interest in sexual activity that involves violence, and was in accord with the phallometric testing which suggests that Mr. Slade was definitely not disinhibited by violence.
58The document brief filed during the application indicates that shortly after this online discussion about creating a snuff film and sexually abusing a child, Mr. Slade appeared to attempt to make arrangements to have a young boy attend at his house. Dr. Fernandez indicated that as a clinician this would definitely be concerning. However, clinically she could not make a prediction about what a person would or would not do in the future.
59There were questions asked of Dr. Fernandez about the chat logs pertaining to bestiality with a dog and horse, ejaculating and urinating on children, being naked in public, conversations about diapers, bondage and wanting to play the role of a child. According to Dr. Fernandez, this indicated that Mr. Slade was indiscriminate in his sexual interests. While this wide ranging sexual interest in deviant activities might suggest novelty seeking and might go in a benign direction, these sexual interests could also go in a different and concerning direction involving violence. Over time the person may be willing to look in a lot of different directions from a sexual perspective. From a clinical perspective this desire to seek more out presents a challenge for treatment as there is a need for novelty and treatment should assist him in pursuing conduct that allows him to address this need for novelty in a way that is not harmful or illegal.
60Dr. Fernandez was also specifically asked about Mr. Slade's numerous inquiries over the internet when he asked if children bled or screamed during the abuse. As well, on one occasion Mr. Slade indicated that he would be willing to have sex with a two-week–old baby. Dr. Fernandez indicated that these particular comments also indicate that Mr. Slade is quite indiscriminate in his sexual interests. Not surprisingly, she testified that a sexual interest in babies is quite uncommon. She also indicated that Mr. Slade's inquires about whether children bled when a person first had sex with a child and Mr. Slade's apparent arousal by this information demonstrated a lack of remorse. As well, while some sex offenders would find the distress of a victim abhorrent, Mr. Slade did not appear to be distressed at the idea that children would be harmed or distressed by the criminal activity. This indicated a treatment target to try to instil a better understanding of the effect of trauma on victims.
61While Mr. Slade denied an acceptance of sex with children, from a clinical assessment the assessment unit did not believe that his assertion was genuine and clinically the unit did not believe there was genuine remorse.
62During treatment Mr. Slade was asked about his obtaining and possessing pornography. Mr. Slade claimed that he searched the internet about once a month for an hour and his search did not discriminate between different ages and types of sexual activity. This assertion was not in accord with the information provided by the police. That is, there appears to be a measure of minimization by Mr. Slade. According to Dr. Fernandez this minimization would make treatment more difficult.
63Dr. Fernandez discussed the actuarial scores that were utilized to assess Mr. Slade's then present risk of recidivism. According to Dr. Fernandez, given Mr. Slade's reoffending and committing the predicate offence, his present risk of future violent recidivism would be higher.
64Dr. Fernandez testified that following the conclusion of the initial assessment, there was an initial recommendation for a moderate intensity treatment program. However, as a result of the scores on the phallometric tests, Mr. Slade's deviancy and CSC polices in place, there was an override so that Mr. Slade was recommended for the High Intensity Sex Offender Treatment Program ("HISOTP") at the RTC. The RTC is a secure psychiatric hospital which is located on the grounds of the Kingston Penitentiary. The HISOTP, at the time of Mr. Slade's incarceration was not available at that time at the Bath Institute. An offender may choose not to attend a certain program. Mr. Slade chose not to attend the HISOTP. As CSC does not compel treatment, he was not forced to attend the HISOTP. According to Dr. Fernandez, from a clinical perspective this indicated that he did not appreciate the seriousness of his problem and was not prepared to address his problem at a level that it needs to be addressed.
65During cross examination, Dr. Fernandez described the HISOTP, which attempts to motivate individuals to deal with issues of risk. From the minute an individual arrives at the assessment unit there is an attempt to motivate that person to deal with risk. HISOTP is a structured program but tailored to assist each offender in identifying his own issues. She testified that although it is highly structured it also addresses individual needs. Given that Mr. Slade was successful in some respects in his work record and in completing his high school equivalence there is no evidence to suggest that he could not complete the program. At this point, he is simply choosing not to. She could see no reason why Mr. Slade couldn't successfully complete the program. She further advised the HISOTP is now available at the Bath Institution. Also during cross examination Dr. Fernandez testified that some of Mr. Slade's behavior, in terms of minimizing and blaming others, is not uncommon and that it is sometimes difficult for persons to become motivated to be successful in a treatment program.
66Dr. Fernandez was well aware of the medium Intensity sex offender treatment program as she used to deliver this program. She described the program as an effective or reasonable program. The program would have tried to help Mr. Slade identify his trigger areas and provide him with the tools that he would need to control those triggers and manage them once released in the community. The program would have attempted to develop a plan on how to manage risk factors in the future, how to mitigate them, keep them in-check as much as possible and would have dealt with what Mr. Slade needs to do personally. The program would have also spent some time talking about managing sexual deviancy. While in the treatment program Mr. Slade appeared to focus on his own personal trauma from being sexually abused as a child. While not insignificant this is not particularly relevant to managing future risk. His progress in managing his future risk was limited. His understanding of his problem with deviant sexual arousal and sexual pre-occupation was underdeveloped. Dr. Fernandez indicated that the medium intensity sex offender treatment program was not adequate to address his needs. Mr. Slade needed a more comprehensive approach to address his sexual deviance. However if an offender does not wish to attend at a HISOTP he will not be forced to do so and will be allowed to attend at a moderate intensity program as CSC would prefer that he at least gain some tools to manage his deviancy, rather than none.
67Dr. Fernandez discussed Mr. Slade's sexual pre-occupation. There were 2,800 chat logs that were sexually orientated, along with the child pornography. The assessment indicated that Mr. Slade spent a considerable amount of his time in sexual endeavours. This preoccupation would need to be addressed in treatment. This sexual pre-occupation was noted even after Mr. Slade completed the medium intensity sex offender treatment program.
68Dr. Fernandez was asked about the conduct of Mr. Slade in signing an acknowledgement regarding a probationary requirement that he not contact children and a few hours later attending at a public library and contacting purportedly underage children over the Internet. According to Dr. Fernandez, clinically this suggested that Mr. Slade was not actually committed to managing his deviant sexual arousal and was essentially going through the motions. His extremely short survival time before reoffending, while not statistically significant, from a clinical perspective, indicated that upon his release from custody Mr. Slade either had no intention of managing his deviancy or had no ability to do so. As for Mr. Slade's actions in travelling by bus to Windsor, this conduct represents an escalation of his conduct. Clinically, it makes little sense that he would have travelled to Windsor to meet an underage boy for no reason.
69Dr. Fernandez further stated Mr. Slade's reluctance to take sex reduction medication indicates from a clinical perspective a lack of commitment to address his treatment needs. This reluctance suggests that at this point in time Mr. Slade is not willing to do everything he possibly can to manage his risk. This issue might be able to be addressed in the context of the HISOTP. Further, with respect to treatment, Mr. Slade's thrill seeking coupled with his wide ranging sexual deviancy suggests a complicated and challenging case for treatment. Clinically it is difficult to predict what direction his deviancy will lead him, including a potentially violent direction. While it is very difficult to narrow down what the next type of sexual behaviour will be, it could entail violence. Without treatment his risk will remain the same, namely moderate to high risk, but more likely high risk. With treatment, risk is reduced although to an unquantifiable amount. Successful treatment means internalizing the program rather than merely sitting through a program. Dr. Fernandez indicated that no one can predict how long it will take to treat Mr. Slade so that his risk will be manageable. It is Dr. Fernandez's opinion that there is no commitment to treatment, and while Dr. Fernandez hopes Mr. Slade will be ready at some time to engage in treatment, no one can predict when that will occur.
70Dr. Fernandez further testified that sexual activity with underage children is definitely potentially a damaging experience. This often has a psychological impact on them. This psychological trauma is not dependant on physical trauma. As well, some of the internet chats which discussed violence could have caused psychological trauma.
Testimony of Psychiatrist Dr. Phil Klassen
71Dr. Klassen, was appointed pursuant to section 752.1 of the Code to conduct an assessment. His report was filed as an exhibit in the application. He also testified during the application. He was qualified, on consent, as an expert to give opinion evidence with respect to psychiatry, paedophilia, risk assessment and future dangerousness.
72Dr. Klassen provided some background information on certain psychiatric concepts germane to the application.
73He ultimately diagnosed Mr. Slade as suffering from a personality disorder, namely a sexual paraphilia, including multiple paraphilia, as well as a schizoid personality disorder. He believes Mr. Slade is at significant risk to reoffend sexually, particularly as it relates to Mr. Slade's sexual paraphilia. According to Dr. Klassen's report Mr. Slade suffers from a paraphilia disorder, more specifically, a deviant sexual preference. The paraphilia of greatest concern is Mr. Slade's same-sex pedophilia, his sexual preference for prepubescent males. Dr. Klassen in his testimony indicated that he would expect this to be a stable preference, which is more likely with same-sex or homosexual pedophilia. In Mr. Slade's case, he has never had sexual relations with an adult and one would expect this interest in minors to continue albeit generally speaking sexual interest and sexual behaviour tends to decline as people get older. Dr. Klassen explained that while this risk of sexual behaviour declines over time, this is not something that is dichotomous; that is, this sexual misbehaviour is not continuous to point "X" and then discontinues. Within a risk level there is a fairly linear decline with advancing age. The slope of the risk line for offenders against adult females declines more quickly. The risk slope line is also steepest for incest offenders, or even for offenders against family members. However the slope of the line is shallowest for persons with pedophilia, particularly same sex pedophilia. That is, for same sex pedophilia, the time horizon for worrying about the behaviour continues more or less to death. This misbehaviour can continue into a person's seventies or eighties. There is a continual risk of reoffending, albeit eventually quite small.
74Dr. Klassen testified and in his report wrote of Mr. Slade's sexual deviancy relating to having an interest in diapers. Such diaper fetish involves a masochistic element, exhibitionism and fantasizing that he is a child in a sexual context (known as auto pedophilia). However, for Mr. Slade the main focus is his same sex pedophilia with these other facets to Mr. Slade's deviancy orbiting the primary interest. These other paraphilia are expected to be stable although the intensity of a person's interest tends to wane over time.
75During the assessment Mr. Slade told Dr. Klassen that in the past he was previously aroused to mostly young boys perhaps twelve years of age but now was primarily attracted to adult males. Dr. Klassen testified that Mr. Slade's criminal behaviour was consistent with his sexual preferences and he does not believe Mr. Slade's self-report about his sexual preferences to be true.
76Dr. Klassen was asked about his clinical perspective regarding the Internet chat logs. He indicated the nature of the themes that a person is preoccupied with or gravitates towards tells us something about the underlying interests. While the aggressive and even sadistic themes are in the range of possibilities for Mr. Slade, Dr. Klassen recognized there is a tendency to push the envelope online and the comments might be more graphic, intrusive or problematic to what one typically sees in real life. While Mr. Slade's thoughts on paper are pretty fringe, it is not clear what they would translate into behaviourally in all but the most optimal conditions. Optimal conditions for Mr. Slade would be few consequences and relatively unfettered access to children, with little supervision.
77Dr. Klassen noted that Mr. Slade's pornography collection has more non-coercive material than coercive material. While Dr. Klassen could not exclude that Mr. Slade is coercive or sadistic with children, what a person says on the Internet does not necessarily translate into that kind of behaviour with a victim. Dr. Klassen further stated that Internet chats can illustrate what a person indulges in and his sexual preoccupation. They can also speak to what a person's potential might be under ideal circumstances. That said there typically is a gap between what a person might say and what a person might do. Dr. Klassen likened the viewing of child pornography as "setting up your own phallometric laboratory" and often those who view child porn are frequently pedophilic.
78Dr. Klassen provided evidence on the best approach from the perspective of a psychiatrist to analyze and quantify the risk of future sexual recidivism. In his opinion, the essence of the art and science of risk assessment is to minimize the art and maximize the science. To do so clinicians rely on actuarial scales rather than clinical judgment. Clinical judgment is rarely used to override actuarial risk. These actuarial assessment tools do not indicate that a particular person will or will not recidivate but rather that a person similarly situate will recidivate. This approach is commonly used in Corrections and in Ontario Review Board hearings. These actuarial scales do not capture the severity of the reoffending. During cross-examination Dr. Klassen acknowledged that there are issues with the use of actuarial scales but suggested that these scales are better than other approaches and certainly better than clinical assessments.
79Internet luring offenders may be partitioned off from far more fantasy driven offenders to more hands on offenders. For the purpose of his actuarial assessment, Dr. Klassen likened Internet luring to invitation to sexual touching. In cross-examination he acknowledges some shortcomings in relying on the numbers generated by the instrument in that it is not known how many in the sample are offenders with similar offences. This could weaken the confidence in the extrapolation. As well, Internet luring involves two sets of persons, those who are fantasy driven pedophiles and those who are more like hands-on pedophiles. While there is validity in using these instruments Dr. Klassen would feel more confident if there was a new replication of the statistic. Dr. Klassen also provided background information on the LSIOR, a shorter term risk assessment tool, which was utilized by probation and corrections officers.
80Dr. Klassen risk assessment included an analysis of a number of actuarial scores including the SORAG and STATIC 99R.
81According to the SORAG scale Mr. Slade placed in the 81st percentile, with respect to the standardized sample which indicates that similarly scoring individuals reoffended violently or sexually at a rate of 76% over ten years.
82According to the STATIC 99R scale Mr. Slade is at the 97th percentile with respect to the standardization of samples, which indicates that of a hundred randomly selected sex offenders 97% would be at lower risk than Mr. Slade. In terms of risk, Mr. Slade has approximately 5.2 times the risk of offending in comparison with the "average" sex offender. This would put a similarly situate person in the range of 30-50% over ten years of opportunity. Dr. Klassen places Mr. Slade's risk closer to 50%.
83Taken together, actuarial scores indicate that Mr. Slade is at moderately high to high risk of recidivism qualitatively.
84Dr. Klassen also provided his perspective on the circumstances surrounding the predicate offence. The fact that Mr. Slade travelled to Windsor by bus to meet with whom he believed to be underage boys Dr. Klassen feels is significant, as his prior offending remained in the fantasy realm. In the predicate offence, Mr. Slade's actions in travelling to Windsor with diapers - his primary fetish- in his back pack suggest that the trip to Windsor was a sexually motivated journey.
85Dr. Klassen did acknowledge that there is a possibility that police officers may become a very enticing thirteen year old. However as a psychiatrist there is little he could add to the observation. That said a police officer could not tempt a person into engaging in the conduct unless the person had the inclination to engage in it. As a general rule, people go through life engaging in personal probability statements to determine conduct.
86Dr. Klassen found that while it's challenging to state with certainty whether Mr. Slade is likely to reoffend a case could be made that he is likely to reoffend. Further, given Mr. Slade's performance in treatment, his awareness of his sexual proclivity and his rapid recidivism, Mr. Slade could be said to be indifferent to the reasonably foreseeable consequences of his behaviour.
87With respect to his prospects for treatment, Dr. Klassen discussed past attempts to treat Mr. Slade and his failure to take responsibility for his actions. His record of fleeing the jurisdiction following his arrest for the 2008 offences, contemplating fleeing the country, not participating well in treatment and reoffending seventeen days after his release from custody suggests that his track record for taking responsibility and accountability is poor.
88With respect to the treatment of Mr. Slade's personality disorder, according to Dr. Klassen, Mr. Slade was not particularly troubled by his personality, and as a result, there is no sense of a high degree of personal distress motivating him to change. As a result of this lack of motivation, treatment of his core personality style is not likely to be of particular value.
89In terms of dealing with his pedophilia, Dr. Klassen believes that Mr. Slade is an excellent candidate for sex-drive reducing medication, and indeed the taking of sex reduction medication is critical and perhaps essential to reducing risk. The various options in administering and adjusting sex reduction medications were also discussed at some length in cross-examination. Dr. Klassen believed that the taking of sex drive reduction medication could be part of a treatment program. According to Dr. Klassen, apart from rare occasions where a person is incapable of giving consent, a physician would not administer sex reduction medication unless a person consents.
90In his report, Dr. Klassen notes that Mr. Slade does not suffer from antisocial personality disorder per se, but does have some antisocial personality traits, including failing to conform to social norms with respect to lawful behaviour, irresponsibility, a failure to plan ahead and a lack of remorse. He does not have so much a problem with self-regulation but rather a problem in a very specific area, namely the control of his pedophilia.
91In cross-examination Dr. Klassen indicated that generally there are two main things that drive sex offending, namely psychopathy and pedophilia. The more worrisome offenders have both. While Mr. Slade has a pedophilia, he does not have a high PCLR score, which would lead Dr. Klassen to conclude he is not psychopathic.
92Dr. Klassen indicated that Mr. Slade's lack of disclosure during treatment could be attributable to the prison setting, his schizoid tendency and his lack of interpersonal skills in communicating. It is possible he could be more forthcoming if he engages in further treatment. As well, while his self-disclosure was not that great with Dr. Klassen, this could be attributable to Mr. Slade being anxious about his sentencing hearing given the serious nature of the hearing. In the past his self-disclosure has been somewhat better and might improve with successful treatment.
93Further, in cross-examination Dr. Klassen acknowledged that everyone's impulsivity diminishes over time and this diminished impulsivity would give an offender more time to contemplate whether he will follow through with reoffending. That said Mr. Slade has more of a compulsivity problem rather than an impulsivity issue. His offending suggests persistence rather than sudden and emotionally driven acting out.
94According to Dr. Klassen, during Mr. Slade's last time in the federal penitentiary he dismissed the notion that he was going to engage in treatment. Dr. Klassen believes that high intensity treatment would be preferable.
95With respect to the issue as to whether there is a reasonable possibility of eventual control of the risk in the community, Dr. Klassen suggested, with some hesitancy, that following treatment and with a potentially lengthy residency condition Mr. Slade may present with a reasonable possibility of eventual control in the community. However it is Dr. Klassen's opinion that Mr. Slade will remain a risk for many years to come and his risk would remain well beyond the expiry of a ten year supervision term.
96According to Dr. Klassen, Mr. Slade's risk could not be managed by probation as probation lacks the necessary levers to address Mr. Slade's difficulties. Absent chemical castration, which is not available with probation, it would not be helpful to treat on probation. He described the treatment program in the provincial setting as similar to the federal system but less intense.
Other Evidence
97The Crown also adduced evidence of Mr. Slade's efforts in the past to place himself in a position of trust and authority towards young boys.
98Mr. Slade was involved in Scouts Canada for several years until he was expelled due to inappropriate behaviour. His inappropriate behaviour consisted of meeting with young boys at the Scout shop and on one occasion having a young boy attend at his residence. Mr. Slade hired counsel in an unsuccessful attempt to secure re-instatement with Scouts Canada.
99Mr. Slade also attempted to hire a young boy as a babysitter through a community based electronic web site. The web site provided an outlet for people who wanted to donate household goods, products or services, or secure part-time employment. On February 27, 2008, a thirteen year old boy posted an advertisement on the website seeking employment as a babysitter. A person, now known to be Mr. Slade, responded: "Would you babysit adult babies. Let me know." Mr. Slade's response to the advertisement set off red flags to those involved in the community electronic billboard. Amber Daoud testified she became concerned and contacted the thirteen year old who posted the advertisement and asked him to tell his parents. Ms. Daoud then engaged Mr. Slade in conversation over the Internet. Mr. Slade sent her naked pictures of himself. Mr. Slade admitted to her that he liked seeing young boys nude as they were changing and getting ready for bed. Mr. Slade told her it "gets me hard too." Mr. Slade further admitted to her that he "was into child porn and shit like that". During the course of this Internet conversation Mr. Slade also asked Ms. Daoud about her employment as a child care worker and indicated to her that he wanted to work with her as a child care worker. He indicated that he would like to change the diapers of kids, indicating that he thought it would be cool to do so. Mr. Slade was ultimately banned from the website, as well as related web sites and the police were contacted but no charges were laid.
100The court heard testimony from Desmond Phillips who was one of the proprietors of Notty Acres Farms, a bed and breakfast establishment. He testified Mr. Slade lived at the Notty Acres Farms, assisting in the guest house in return for room and board. At the time Mr. Phillips was the non-custodial parent of three children who were five, seven and nine years of age. On a number of occasions Mr. Slade offered to babysit these children.
101Mr. Slade did not testify or call any evidence on the application.
102The Crown provided the court with an electronic casebook in which there were eighty-seven cases.
The Position of the Crown
103The Crown submits the offence of Internet Luring constitutes a serious personal injury ("SPIO") offence pursuant to section 752 of the Code and therefore a conviction for Internet Luring could give rise to Mr. Slade being declared a dangerous offender.
104It is the position of the Crown that Mr. Slade's admitted conduct surrounding the predicate offence constitutes both an offence of violence as defined in subsection (a) and a sexual offence as set out in subsection (b) within the definition of serious personal injury offence found in s. 752.
105The Crown submits the conduct of Mr. Slade in the predicate offence from the initial contact, through the recruitment process, where he engaged in highly sexually charged banter with a person whom he believed to be underage, which culminated in an attempt to consummate the sexual assault on the underage boy, constitutes the attempted use of violence against another person or conduct likely to endanger the life or safety of another or likely to inflict severe psychological damage on another person. Therefore, the Crown argues Mr. Slade has committed an offence of violence under subsection (a).
106As well, the Crown submits the actions of Mr. Slade which include the numerous admissions made during his Internet chats with purportedly underage boys, followed by his subsequent conduct of writing the name of his intended victim on his underwear, travelling to Windsor by bus while texting his intended victims, discussing immediate sexual contact on his anticipated arrival and carrying a back pack with diapers, leave little doubt as to his intention to commit a sexual assault. The Crown also points to his subsequent admission to Detective Belanger - that he travelled to Windsor to meet these underage boys. All of that evidence the Crown argues collectively provides cogent evidence of an attempt to commit a sexual assault involving underage boys and therefore falls within the ambit of subsection (b).
107Once the court has determined that Mr. Slade has committed a serious personal injury offence the Crown argues there is enough evidence before this court to make a finding that Mr. Slade is a dangerous offender.
108The Crown points to Mr. Slade's antecedents, related record, sexual deviancy and prior response to community supervision and treatment to support its submission. The Crown submits there is ample evidence of similar conduct involving unrestrained dangerous conduct which leads to the inevitable conclusion that Mr. Slade is likely to reoffend in the future. It is the position of the Crown that whether the test be "likely" as suggested in R. v. Currie, [1997] 2 S.C.R. 260, or "very likely" as suggested in R. v. Lyons, [1987] 2 S.C.R. 309, the Crown has as required by sections 753(1) (a)(i) and 753(1)(b) of the Code established well beyond any reasonable doubt that Mr. Slade is very likely to violently re-offend as a result of pathologically intractable behaviour. The Crown points to the actuarial analysis of Dr. Klassen to support its position.
109The Crown further submits the circumstances of the predicate offence indicate an attempt over several weeks to groom two underage boys over the Internet. The Offender packed his knapsack with diapers, consistent with his fetish. He wrote the name of his intended victim on his underwear. He picked up a bus ticket. He travelled to Windsor. He texted the underage boys discussing his desires to promptly consummate the sexual relationship with them. He placed himself in a position where, but for the fact that the underage boys were police officers he could have quickly consummated the offence of sexual assault. They Crown argues Mr. Slade's actions were acts far beyond preparatory acts and in law constitute acts done for the purpose and intention of committing a crime of sexual assault. Collectively the only common sense inference is that on the continuum from preparation to attempt the Offender moved inexorably to attempt.
110The Crown submits that once the court finds Mr. Slade a dangerous offender the totality of the evidence indicates that there is no reasonable expectation that a lesser punishment than an indeterminate sentence would adequately protect the public. In the alternative the Crown submits, if the court determines there is a reasonable expectation that a determinant sentence will adequately protect the public against the commission of murder or a SPIO, the Crown seeks a dangerous offender designation with a lengthy and substantial determinant sentence and a ten year Long-Term Supervision Order (LTSO). In the further alternative the Crown submits if the court determines the Crown has failed to establish beyond a reasonable doubt the elements set out in section 753(1)(a) or (b), the Crown relies upon the specific provisions in section 753(5) and section 753.1 which provide a specific statutory authority to designate Mr. Slade a long-term offender.
The Position of the Defence
111It is the Defence's position that a dangerous offender designation at this juncture is not available or required.
112Defence counsel submits that the psychiatric evidence in general is fair and unbiased and should be seriously considered particularly in light of Mr. Slade's very limited criminal record and the limited evidence of his prior behavior. Defence suggest that the psychiatric and psychological evidence should lead this court to find that Mr. Slade is not a lost cause but rather an excellent candidate for treatment and counselling which would enable him to reintegrate into society. He submits the psychiatric evidence tendered in this matter points to an outcome in which Mr. Slade ought to be sentenced to a further period of custody to be followed by a LTSO which will assist him in his rehabilitation and at the same time protect the public. Defence counsel has asked this court to consider a LTSO less than the maximum of ten years.
113Defence counsel submits the Court should sentence Mr. Slade to a further two years in the penitentiary in addition to the time Mr. Slade has spent in pre-sentence custody (a little more than 34 months). Counsel submits Mr. Slade should be given credit for the time he has spent in pre-sentence custody on a 1.5 to 1 basis and as of today's date that would equate to approximately four years and three months. Therefore Mr. Slade, if given a two year sentence today, would be receiving the equivalent of a six year and three month sentence.
114Defence counsel submits an additional two year sentence will afford Mr. Slade access to the HISOTP which was the program recommended to Mr. Slade during his previous period of custody but was, at the time, unavailable in the medium security Bath Institute where he was assigned. It's the defence's position that both Dr. Fernandez and Dr. Klassen have testified that this would be an appropriate course of treatment for Mr. Slade.
115Defence counsel further submits this may well have been a case for the defence to ask the court to consider a lesser period of further custody. Counsel indicates that Mr. Slade is in agreement that a Federal placement is necessary in these circumstances and therefore counsel asks the court to find that two further years is within the appropriate range in these circumstances.
116It is further suggested by defence counsel that a LTSO with appropriate conditions would be appropriate. Of particular concern with respect to Mr. Slade's' case would be the imposition of an Order that he take sex reduction medication. The PBC can impose a condition that requires a specific treatment and failure to comply with same would result in a breach of that Order and Mr. Slade could be charged and face consequences which may include being placed in custody. The LTSO would be suspended while he was in custody. Defence counsel also points out that CSC and PBC have a number of resources available that contemplate and provide for dealing with offenders and their re-integration into the community, including making a residency condition for up to 180 days, which is a renewable condition. Given the forgoing defence counsel submits the Court could make such recommendations upon sentence that will guide PBC in fashioning an order that will adequately take into account the needs of Mr. Slade and the areas of concern contemplated by Dr. Klassen and Dr. Fernandez.
Dangerous Offender Designation
117The dangerous offender and long-term offender provisions of the Code are set out in Part XXIV, sections 752 to 759. Section 753 deals with dangerous offender applications and the relevant parts of that section for this case are as follows:
753(1) On application made under this Part after an assessment report is filed under subsection 752.1(2), the court shall find the offender to be a dangerous offender if it is satisfied
(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.
753(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.
753(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.
753(4.2) If the application is made after the offender begins to serve the sentence in a case to which paragraphs (2)(a) and (b) apply, a sentence imposed under paragraph (4)(a), or a sentence imposed and an order made under paragraph 4(b), replaces the sentence that was imposed for the offence for which the offender was convicted.
753(5) If the court does not find an offender to be a dangerous offender,
(a) the court may treat the application as an application to find the offender to be a long-term offender, section 753.1 applies to the application and the court may either find that the offender is a long-term offender or hold another hearing for that purpose; or
(b) the court may impose sentence for the offence for which the offender has been convicted.
118Section 753(1) describes two paths to a finding that a person is a dangerous offender.
119Section 753(1)(a) deals with offenders who have been convicted of a SPIO as defined in s. 752(a). If the offender has been convicted of a SPIO as defined in s. 752(a), the court must then determine whether the Crown has established that the offender constitutes a threat to the life, safety or physical or mental well-being of other persons. The Crown can meet this burden by showing that the offender fits within any of the three subcategories of s. 753(1)(a).
120Section 753(1)(b) is a second path to finding that a person is a dangerous offender. It also involves a requirement that the offender be convicted of a SPIO. The Crown can meet this burden by establishing the offender has committed an offence or attempted to commit an offence described in (b) of the definition of serious personal injury in s. 752.
121The burden of proof rests with the Crown to establish beyond a reasonable doubt the statutory criteria in s. 753(1)(a) or (b) have been met. If they do, the dangerous offender application succeeds. The offender must be declared a dangerous offender. The criteria under s. 753(1) are disjunctive. That is, an offender may be declared a dangerous offender if the evidence establishes that he/she meets any one of the four criteria under subsection (1)(a) or (b): see R. v. Lewis (1984), 46 O.R. (2d) 289 (C.A.).
122As stated in s. 753(4) when the offender meets the requirements of s. 753(1)(a) or (b) and is declared a dangerous offender, the court must impose either an indeterminate sentence, a determinate sentence for the offence for which the offender has been convicted and order him to be subject to long-term supervision for a period that does not exceed ten years, or impose a sentence for the offence for which the offender has been convicted.
123As stated in 753(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 SPIO.
124As stated in s. 753(5) if the offender is not found to be a dangerous offender, the court may treat the application as a long-term offender application, and either declare the offender to be a long-term offender or conduct another hearing, or impose a sentence for the offence for which the offender has been convicted. If the offender is found to be a long-term offender, the court shall impose a sentence for the offence for which the offender has been convicted and order the offender be subject to long-term supervision for a period that does not exceed ten years. (s. 753.1(3))
Serious Personal Injury Offence (SPIO)
125SPIO is defined in s. 752 as follows:
"serious personal injury offence" means
(a) an indictable offence, other than high treason, treason, first degree murder or second degree murder, involving
(i) the use or attempted use of violence against another person, or
(ii) conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage on another person,
and for which the offender may be sentenced to imprisonment for ten years or more, or
(b) an offence or attempt to commit an offence mentioned in section 271 (sexual assault), 272 (sexual assault with a weapon, threats to a third party or causing bodily harm) or 273 (aggravated sexual assault).
126The Crown elected to proceed by indictment, therefore Mr. Slade has been found guilty of an indictable offence. The maximum punishment for the offence is ten years. Those two requirements having been met, the court can go on to consider the other criteria for determining whether Mr. Slade has committed a SPIO.
127The Crown concedes there is no authority that they are aware indicating the offence of luring a child is a SPIO. Defence counsel could not provide any. I have not been able to find any.
128I will first deal with part (b).
Part (b) of s. 752
129Mr. Slade has pleaded guilty to count one on the information, the wording of which is as follows:
"...did by means of a computer system within the meaning of subsection 342.1(2) of the Criminal Code, communicate with a person, namely Constable Jeff Taylor, posing as a fourteen year old male, who was or was believed to be under the age of 16 years, for the purpose of facilitating the commission of an offence under s. 271 of the Criminal Code... contrary to Section 172.1, subsection (1), clause (b) of the Criminal Code"
130Section 172.1(1)(b) comprises three elements: (1) an intentional communication by telecommunication; (2) with a person whom the accused knows or believes to be under the age sixteen years; (3) for the specific purpose of facilitating the commission of one of the specified offences listed therein - sexual assault being one of them - with respect to the underage person.
131Of importance, Mr. Slade has not been convicted of any of the offences listed in part (b). The Crown has argued the accused conduct in the offence amounts to an attempt to commit a sexual assault.
132What effect, if any, do the words "for the purpose of facilitating the commission of an offence under s. 271" in the count that Mr. Slade has pleaded guilty to have on the determination? Does that put Mr. Slade within the ambit of part (b)? Or to put it another way, does it make any difference that the wording in s. 172.1(1)(b), is "facilitating" rather than "attempting"?
133I think it does. In R. v. Legare, 2009 SCC 56, [2009] 3 S.C.R. 551 (S.C.C.), at paragraph 28 the court stated,
28 Section 172.1(1) makes it a crime to communicate by computer with underage children or adolescents for the purpose of facilitating the commission of the offences mentioned in its constituent paragraphs. In this context, "facilitating" includes helping to bring about and making easier or more probable -- for example, by "luring" or "grooming" young persons to commit or participate in the prohibited conduct; by reducing their inhibitions; or by prurient discourse that exploits a young person's curiosity, immaturity or precocious sexuality.
[Emphasis in original]
134Facilitating is not the same as attempting.
135Is it the offence the offender has been convicted of that matter for the determination of whether the criteria in part (b) has been met or is it the underlying conduct around the offence that is determinative? The Crown has argued that all of the conduct of the accused must be examined and considered in determining the applicability of part (b).
136While the Crown has given a persuasive argument, I am not convinced that it is the underlying conduct that is to be considered at this point of the evaluation. Every case that I have reviewed in which part (b) applied has involved the offender having been convicted of an offence listed therein. There was nothing stopping the Crown from having a charge laid charging Mr. Slade with attempting to commit a sexual assault if they felt there was sufficient evidence to do so. Apparently it was never thought of or they chose not to.
137Of note, luring a child is one of the offences listed within s. 753.1(2) with respect to long term offender applications. Parliament is deemed to act deliberately: see R. v. Clark, 2005 SCC 2, [2005] 1 S.C.R. 6 at para. 53. If it was the intent of Parliament to include something in the legislation then they could have done so. Parliament could have chosen to list the offence of luring a child in paragraph (b) of s. 752 as they did within s. 753.1(2).
138In conclusion, the Crown has not satisfied me that the offence committed by Mr. Slade falls within part (b).
Turning My Mind to Part (a) of the Meaning of Serious Personal Injury (s. 752)
139In a recent decision the Supreme Court in R. v. Steele, 2014 SCC 61, [2014] S.C.J. No. 61, Wagner J. writing for the court stated at para 56, in part,
[56] … As a preliminary matter, there is no indication that the various parts of the definition of an SPIO in s. 752 are mutually exclusive: see R. v. J.Y. (1996), 141 Sask. R. 132 (C.A.), at para. 22. On the contrary, I can think of many scenarios in which an offence causing the harms outlined in subpara. (a)(ii) would clearly also involve "the use or attempted use of violence". The same can be said about para. (b) of the definition, which lists a number of sexual offences to include them in the definition of an SPIO. The offences enumerated in para. (b) will of course often also meet the qualitative criteria of subparas. (a)(i) and (a)(ii). The fact that a proposed interpretation would bring some offences within the ambit of more than one part of the definition in s. 752 should not, in itself, justify narrowing the definition to avoid such overlaps.
140And further at paras. 61, in part, and 62,
"...There is no indication that Parliament intended to create an exhaustive list of all offences constituting SPIO's in all cases." Rather, as this court stated in Currie, para (b) serves to make it clear that the enumerated sexual offences, whatever form they may take, are inherently serious and may trigger a dangerous offender application (para 22).
[62] The reason why Parliament included a list of sexual offences is surely not that sexual offences are not otherwise covered by the expression "use or attempted use of violence". The more reasonable view is that Parliament included the list to make it clear that such offences will constitute SPIOs in all circumstances, even those that are committed with minimal physical force and that do not result in bodily harm. Furthermore, the view that Parliament, in enacting para. (b) of the definition, was rejecting a narrow approach that might exclude some sexual offences is consistent with my interpretation of subpara. (a)(i), which rules out a similarly narrow approach in the context of threats of violence.
141The fact that luring a child (s. 172.1) is not one of the enumerated offences does not preclude it from being considered under (a)(i) or (a)(ii). Steele makes that abundantly clear.
Does the Predicate Offence Involve the Use or Attempted Use of Violence Against Another Person as Required by Para (a)(i)?
142One of the challenges in this case is the fact that there is no individual victim who has been harmed by the commission of the predicate offence (nor was there a victim in the related previous offence). In both circumstances, Mr. Slade's communication was with an officer posing as an underage male teenager.
143In R. v. Alicandro, 2009 ONCA 133, [2009] O.J. No. 571, the Court of Appeal stated at para. 38, in part,
…A review of the case law demonstrates that police officers posing as young persons is almost the exclusive manner in which this provision is enforced. This is hardly surprising. Children cannot be expected to police the Internet. The state is charged with the responsibility of protecting its children. That responsibility requires not only that the appropriate laws be passed, but that those laws be enforced.
144In Alicandro the court dealt with the issue of whether a person who communicates with an officer posing as an underage person could be found guilty of committing an offence under s. 172.1(1)(c). The court concluded it made no difference that it was an undercover officer rather than an actual underage person. The same would obviously hold true in the case before me which involves s. 172.1(1)(b).
145In Alicandro the court did not have before it a dangerous offender application. The issues I am dealing with were not before that court. The question remains whether the fact that it was an officer posing as an underage person effects the decision in any way with respect to the determination of whether there was a use of violence or attempted use of violence.
146In Steele, supra, Wagner J. writing for the court states, in part at para. 39,
[39] …In subpara. (a)(i), the word "violence" is not qualified, which means that the criteria may be satisfied even if the violence in question is not in itself "serious" (see Goforth, at para. 21; Lebar, at para. 67; R. v. Smith, 2012 ONCA 645, at para. 2). The degree of seriousness intended by Parliament exists if all three requirements of the definition are met. Thus, an offence that involves the use or attempted use of violence against another person is not an SPIO under para. (a) of the definition if it is not an indictable offence or if it is not punishable by a sentence of imprisonment for 10 years or more. Just as para. (b) of the definition does not invite the court to assess the manner of commission of the enumerated offences, subpara. (a)(i) does not invite it to assess the seriousness of the violence the offender used or attempted to use; any level of violence is sufficient.
147At paras 42 – 51, Wagner J. states that the prevailing definition of violence is a harm-based one. That is, violence that focuses on acts by which a person causes, attempts to cause or threatens to cause harm; as opposed to a force-based definition that focuses on the physical nature of the act or means employed to produce the harm.
148In para 58 Wagner J. states:
"...subparagraph (a)(i) concerns violent acts – 'the use or attempted use of violence' – and requires violent intent on the offender's part. This part of the definition will apply to an offender who intentionally causes, attempts to cause or threatens to cause harm."
[Emphasis in original]
149Adopting the reasoning found in Alicandro, I conclude it matters not that the offender was actually communicating with an undercover officer, rather than an actual fourteen or fifteen year old. If his actions, by word or deed show an intent to use violence or an attempt to use violence he would be caught by part (a)(i).
150The Crown has argued that any sexual offence is inherently violent. Does the fact that he intended to have sex with underage boys, which is clear from his words and his travelling to Windsor by bus, show that he used or attempted to use violence?
151The officers in the case before me were posing as a fourteen and fifteen year old boy. The language used by the officers during the "chats" with Mr. Slade were words which imply that the boys were consenting to the sexual advances of Mr. Slade and would be willing to participate. Of course, because of the operation of s. 150.1(1) of the Code any consent they gave would be vitiated and had the accused had sex with the fourteen or fifteen year old boy he would be guilty in law of sexually assaulting them. But that does not necessarily lead to the conclusion that it would be considered a violent act?
152Sex, in and of itself is not violent. Sexual assaults can be committed without violence. For example a male can touch a woman for a sexual purpose without that woman's consent without any force beyond the use of force that naturally occurs during intimacy but still be guilty of sexually assaulting that woman if that touching is done without her consent. Therefore, it cannot be said that all sexual assaults can be considered violent. It depends on the facts found in each case.
153The cases the Crown relies on to support its position all involve a victim actually being assaulted (touched physically) without their consent or threatened with words to have bodily harm done to them. The statements of the court in those cases must be considered in the context of the facts of those cases. In the case before me, the facts are such that the offender never actually touched or attempted to touch an actual underage person. As stated by the Supreme Court in Steele (the above reference to para. 58), the use or attempted use of violence requires a violent intent on the offender's part. The Crown has the burden of proving beyond a reasonable doubt that the accused has committed a SPIO. Although the Crown's argument is somewhat persuasive and while I do not in any way condone Mr. Slade's conduct, I am not convinced beyond a reasonable doubt on the facts of the predicate offence that Mr. Slade's actions fall within the ambit of part (a)(i).
Now Turning to Part (a)(ii)
154In Steele, Wagner J., continuing in para 58 of Steele states:
"...subparagraph (a)(ii), on the other hand, relates solely to the effects of conduct. It does not refer to violence in general, or even to intent."
155In R. v. Morgan, [2005], 195 CCC (3d) 408 (O.C.A.), McFarland J.A., speaking for a unanimous court, at paras. 12 and 13 states,
[12] Section 752(a)(ii) sets up two preconditions. First the offence must be one where the offender may be sentenced to 10 years or more. Obstruction of justice is such an offence.
[13] Second, to meet the definition the conduct must be such that inter alia it was "inflicting or likely to inflict severe psychological damage upon another person" here Ms. C. The section requires that the conduct have actually inflicted severe psychological damage on a complainant or be such that it is likely to cause severe psychological damage. It is in this sense that the offence can be said to be a serious personal injury offence. Trivial conduct or conduct de minimis would not meet the severity requirement.
[Emphasis added]
156With respect to the first part of (a)(ii), "conduct endangering or likely to endanger the life or safety of another person". The conduct of Mr. Slade did not endanger the life of another person nor was it likely to endanger another person as there was no actual victim. Mr. Slade was communicating with an officer posing as an underage person. Does the section require that there actually be a person endangered or likely to be endangered? Does it only matter what was in the offender's mind (i.e. his intent)? The above excerpt from Morgan indicates there is a requirement that someone was "actually" endangered or likely to have been caused severe psychological damage. I have come to the same conclusion with respect to the first part of (a)(ii), "conduct endangering or likely to endanger the life or safety of another person". In my view it is necessary that the conduct "actually" endanger the life or was likely to endanger the life of a real person, not a fictious person.
157Further with respect to the second part of (a)(ii), "inflicting or likely to inflict severe psychological damage upon another person". Even if the Morgan case could be distinguished from this case, I find there is insufficient evidence before this court that Mr. Slade's conduct caused severe psychological harm, and insufficient evidence to satisfy me that his conduct was likely to cause severe psychological harm to the fourteen and fifteen year old boys with whom he believed he was communicating.
158I recognize the ultimate purpose of the dangerous offender legislation is to protect the public by preventing harm from continuing to be done by those who present as a risk as set out in s. 753: see Lyons, supra. Mr. Slade, as conceded by the defence, presents as a risk to reoffend, but the legislation requires as a pre-condition to a finding that an offender is a dangerous offender that the offender be found to have committed a SPIO. Not everyone who is a criminal or a danger to the public is a dangerous offender. The dangerous offender legislation is not intended to be a process of general application, but rather of exacting selection. It is designed to capture those "clustered at or near the extreme end": R. v. Neve, 1999 ABCA 206, para. 59. It is not intended to remove all recidivists from society: Neve, para. 119.
159In conclusion, with respect to whether the Crown has satisfied me beyond a reasonable doubt that Mr. Slade has committed a SPIO, they have not done so.
160That of course doesn't mean that little can be done in such a case as this where an offender such as Mr. Slade is before the court after having been convicted of luring a child. As I noted earlier, s. 753(5) states that if the offender is not found to be a dangerous offender, the court may treat the application as a long-term offender application, and either declare the offender to be a long-term offender or conduct another hearing, or impose a sentence for the offence for which the offender has been convicted. If the offender is found to be a long-term offender, the court shall impose a sentence for the offence for which the offender has been convicted and order the offender be subject to long-term supervision for a period that does not exceed ten years. (s. 753.1(3)).
161I will now treat the application as a long-term offender application.
162Section 753.1 of the Code deals with long-term offender applications and states as follows:
(1) The court may, on application made under this Part following the filing of an assessment report under subsection 752.1(2), find an offender to be a long-term offender if it is satisfied that
(a) it would be appropriate to impose a sentence of imprisonment of two years or more for the offence for which the offender has been convicted;
(b) there is a substantial risk that the offender will reoffend; and
(c) there is a reasonable possibility of eventual control of the risk in the community.
(2) The court shall be satisfied that there is a substantial risk that the offender will reoffend if
(a) the offender has been convicted of an offence under section 151 (sexual interference), 152 (invitation to sexual touching) or 153 (sexual exploitation), subsection 163.1(2) (making child pornography), 163.1(3) (distribution, etc., of child pornography), 163.1(4) (possession of child pornography) or 163.1(4.1) (accessing child pornography), section 170 (parent or guardian procuring sexual activity), 171 (householder permitting sexual activity), 171.1 (making sexually explicit material available to child), 172.1 (luring a child) or 172.2 (agreement or arrangement — sexual offence against child), subsection 173(2) (exposure), 212(2) (living on the avails of prostitution of person under eighteen), 212(2.1) (aggravated offence in relation to living on the avails of prostitution of a person under the age of eighteen years) or 212(4) (offence — prostitution of person under eighteen) or section 271 (sexual assault), 272 (sexual assault with a weapon) or 273 (aggravated sexual assault), or has engaged in serious conduct of a sexual nature in the commission of another offence of which the offender has been convicted; and
(b) the offender
(i) has shown a pattern of repetitive behaviour, of which the offence for which he or she has been convicted forms a part, that shows a likelihood of the offender's causing death or injury to other persons or inflicting severe psychological damage on other persons, or
(ii) by conduct in any sexual matter including that involved in the commission of the offence for which the offender has been convicted, has shown a likelihood of causing injury, pain or other evil to other persons in the future through similar offences.
[Emphasis added]
163As I noted earlier, the offence of luring a child is included as one of the enumerated offences in s. 753.1(2)(a). Therefore, Mr. Slade is subject to being found a long term offender if the criteria of s. 753.1 are met.
164In a fairly recent decision of the Supreme Court, R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, the court in explaining the long-term offender regime, stated at paras. 45 – 47,
[45] LTSOs are administered in accordance with the Corrections and Conditional Release Act, S.C. 1992, c. 20 ("CCRA"). LTSOs must include the conditions set out in s. 161(1) of the Corrections and Conditional Release Regulations, SOR/92-620. In addition, the National Parole Board ("NPB") may include any other condition "that it considers reasonable and necessary in order to protect society and to facilitate the successful reintegration into society of the offender" (CCRA, s. 134.1(2)). A member of the NPB may suspend an LTSO when an offender breaches any of the LTSO conditions, or where the NPB is satisfied that suspension is necessary and reasonable to prevent such a breach or to protect society (CCRA, s. 135.1(1)). Offenders serve the duration of the period of suspension in a federal penitentiary. Failure or refusal to comply with an LTSO is also an indictable offence under s. 753.3(1) of the Criminal Code, punishable by up to 10 years' imprisonment.
[46] According to the CCRA, "[t]he purpose of conditional release is to contribute to the maintenance of a just, peaceful and safe society by means of decisions on the timing and conditions of release that will best facilitate the rehabilitation of offenders and their reintegration into the community as law-abiding citizens" (s. 100). The CCRA also sets out a number of principles that shall guide the NPB in achieving the purpose of conditional release. These include, inter alia, "that the protection of society be the paramount consideration in the determination of any case" and "that parole boards make the least restrictive determination consistent with the protection of society" (CCRA, ss. 101(a) and 101(d)). These principles are intended to guide the NPB in its decision making, whereas courts must adhere to the principles set out in the Criminal Code when sentencing for breach of an LTSO.
[47] The legislative purpose of an LTSO, a form of conditional release governed by the CCRA, is therefore to contribute to the maintenance of a just, peaceful and safe society by facilitating the rehabilitation and reintegration of long-term offenders. This direction is consistent with this Court's discussion at para. 42 of R. v. L.M., 2008 SCC 31, [2008] 2 S.C.R. 163, on the distinction between the dangerous offender designation (which does not include a period of conditional release) and the long-term offender designation.
Although they both contribute to assuring public safety, the dangerous offender and long-term offender designations have different objectives. Unlike a dangerous offender (s. 753 Cr. C.), who will continue to be deprived of liberty, since such offenders are kept in prison to separate them from society (s. 718.1), a long-term offender serves a sentence of imprisonment of two years or more and is then subject to an order of supervision in the community for a period not exceeding 10 years for the purpose of assisting in his or her rehabilitation (s. 753.1(3) Cr. C.). This measure, which is less restrictive than the indeterminate period of incarceration that applies to dangerous offenders, protects society and is at the same time consistent with [translation] "the principles of proportionality and moderation in the recourse to sentences involving a deprivation of liberty" (Dadour, at p. 228). [Emphasis in original.]
165The Supreme Court went on to identify two specific objectives of long-term supervision as a form of conditional release: (1) protecting the public from the risk of re-offence, and (2) rehabilitating the offender and reintegrating him or her into the community. And further stating that the latter objective may properly be described as the ultimate purpose of an LTSO, as indicated by s. 100 of the Corrections and Conditional Release Act, though it is inextricably entwined with the former: see para. 48 of Ipeelee.
166In the case of R. v. F.E.D., 2007 ONCA 246, [2007] O.J. No. 1278, the Court of Appeal states at para. 52,
52 The first two criteria in s. 753.1 are similar to the criteria in the dangerous offender provisions. They speak to the level of risk the offender is likely to pose in the future having regard to the offender's past conduct. They also establish the justification for subjecting an offender to a special sentencing regime based on the need for public protection. Accordingly, these are matters that the Crown should properly bear the onus of proving on the standard of proof beyond a reasonable doubt.
It would appear then that the Crown must satisfy me beyond a reasonable doubt that it is appropriate for me to impose a sentence of imprisonment of two years or more and that there is a substantial risk that the offender will reoffend.
Is It Appropriate to Impose a Sentence of Imprisonment of Two Years or More?
167By asking this court to impose a sentence of two years in addition to the time already spent in custody, the defence in effect concedes a sentence of two years or more is appropriate. The pre-sentence custody amounts to four years and three months.
168The Crown has argued that should I find that Mr. Slade is not a dangerous offender, I should sentence him to a substantial period of time in custody followed by a long term supervision order. By requesting a substantial period of custody and a long term supervision order I have taken the Crown's position to mean they are seeking a sentence of more than two years in addition to the pre-sentence custody Mr. Slade has served. In effect then, I have a joint position that the sentence should be at a minimum two years in addition to the pre-sentence custody.
169Applying the purpose and principles of sentencing found in s. 718 through s. 718.2 to the facts of this case and the circumstances of Mr. Slade, and realizing that I have two experienced counsel before me submitting that the sentence should be at a minimum two years, I find the first criteria has been met by the Crown.
Is There a Substantial Risk That the Offender Will Reoffend?
170I will first consider s. 753.1(2)(b)(ii), which I reproduce again here for ease of reference,
Section 753.1(2)
(b) the offender
(ii) by conduct in any sexual matter including that involved in the commission of the offence for which the offender has been convicted, has shown a likelihood of causing injury, pain or other evil to other persons in the future through similar offences.
[Emphasis added]
171The words injury and evil are not defined in the Code. Injury is defined in the Miriam Webster dictionary as "harm or damage: an act or event that causes someone or something to no longer be fully healthy or in good condition". Evil is defined in the Miriam Webster dictionary as "morally reprehensible", "arising from actual or imputed bad character or conduct.
172The Alberta court of Appeal in the case of R. vs. Dwyer (1977) 34 CCC (3d) 293 at para. 16, in part, stated,
[16] In general understanding, when "evil" is used as a noun it usually connotes moral badness or depravity.
173Having considered the criteria set out in section 753.1(2)(b) I am satisfied that there is a substantial risk that Mr. Slade will reoffend. One does not have to strain to see that Mr. Slade clearly meets the criteria of s. (2)(b)(ii). It is clear to me that when one considers the evidence before this court regarding Mr. Slade's conduct surrounding the predicate offence, the evidence surrounding his past criminal conviction, the disturbing contents of the Internet chats (as set out above when I reviewed the evidence), the psychiatric evidence heard and filed and the other evidence heard and filed clearly show a likelihood of Mr. Slade causing injury, pain or other evil (as defined above) to other persons in the future through similar offences.
174I also point out that defence counsel concedes, through his submission as to what the appropriate disposition should be, that Mr. Slade is a substantial risk to reoffend.
175Having found that I am satisfied the criteria of s. 753.1(b)(ii) have been met I do not feel it necessary to make a finding on whether or not s. 753.1(b)(i) has been met.
176Having found that the first two criteria (subsections (a) and (b)) under s. 753.1(1) have been met, I must now decide if I am satisfied that the third and final criteria (ss. (c)) has been met, namely is there "a reasonable possibility of eventual control of the risk in the community".
Reasonable Possibility of Eventual Control of the Risk in the Community
177Again referring to F.E.D., supra, the Court of Appeal stated at paras. 54 and 55,
54 Finally, I note that, in addition to Proulx, supra, there are other cases that have held that a requirement that a court be "satisfied" of a particular matter does not necessarily connote a standard of proof beyond a reasonable doubt. See, e.g. R. v. M.(S.H.) (1989), 50 C.C.C. (3d) 503 (S.C.C.), in which McLachlin J. noted that the concept of a standard of proof is "typically concerned with establishing whether something took place" and is "less helpful" when one is engaged in balancing various factors and considerations. See also R. v. A.O; R. v. J.M., 2007 ONCA 144, [2007] O.J. No. 800 (C.A.).
55 Viewed in the context of the foregoing factors, I see no necessity or rationale for viewing the third criterion in s. 753.1 as imposing a burden of proof.
178Another helpful case from the Ontario Court of Appeal is R. v. D.V.B., 2010 ONCA 291, [2010] O.J. No. 1577, wherein the court at para. 57 states,
57 With respect, the construction of s. s. 753.1(1)(c) that I favour does not lead to the unfair treatment of offenders; nor does it give rise to unjust sentences. Under the long-term offender regime, Parliament has built in a very substantial period of time for offenders to obtain the treatment they need to reduce their risk in the community to an acceptable level. Long-term offenders must be incarcerated for at least two years on the predicate offence and thereafter, they can be subjected to a supervision order for up to ten years. For most people who are treatable, I would have thought that 12 years (and possibly much longer depending on the period of incarceration for the predicate offence) is a generous timeframe within which to achieve the relatively modest progress contemplated by s. 753.1(1)(c). In this regard, it must be remembered that under s. 753.1(1)(c), a judge need not be satisfied that the risk posed by the offender will be controlled within the 12-year (or longer) timeframe; all that is required is that there be a reasonable possibility that such control can be achieved.
[Emphasis added]
179I must also be mindful that the evidence relating to this third criterion must amount to more than a hope that the risk in the community can be controlled. In the case of R. v. McCallum, [2005] O.J. No. 1178 the Court of Appeal states, in part, at para. 47,
47 Case law from this court and from the British Columbia Court of Appeal under the former dangerous offender legislation and the amended provisions has held that in order to achieve the goal of protection of the public under the dangerous offender and long-term offender provisions, there must be evidence of treatability that is more than an expression of hope and that indicates that the specific offender can be treated within a definite period of time: R. v. Poutsoungas (1989), 49 C.C.C. (3d) 388 (Ont. C.A.); R. v. Higginbottom (2001), 156 C.C.C. (3d) 178 (Ont C.A.).
180When considering the entirety of the evidence heard on this application, admittedly there is some concern on the court's part as to whether Mr. Slade will ever stop pursuing or acting out his sexual preferences, which the evidence clearly shows is towards young males.
181Dr. Klassen believes Mr. Slade, then 44, was at moderately high to high risk of (some form of) offending behaviour, and would be for years to come. Dr. Fernandez reports the testing performed by her team at the Millhaven Assessment Unit put Mr. Slade, who was then 42, at a moderate-high risk.
182It is Dr. Klassen's opinion that Mr. Slade should receive high intensity psychological sex offender treatment programming at a federal institution. He believes Mr. Slade is an excellent candidate for sex-drive reducing medication. It's his opinion that Mr. Slade does not appear to be particularly interested in that option. Dr. Fernandez testified that this issue might be able to be addressed in the context of the HISOTP.
183Dr. Klassen states in his report that It is difficult to offer an unequivocal opinion on the issue of the effectiveness of a LTSO in managing Mr. Slade, pointing out that thus far, his offending has not been severe, objectively, but it's not clear what might have happened had his efforts not been thwarted. Dr. Klassen goes on to state that assuming a (potentially lengthy) residency condition, Mr. Slade may present with reasonable possibility of eventual control in the community. Although Dr. Klassen believes the risk will remain beyond the expiry of a 10 year LTSO.
184Dr. Fernandez testified with respect to treatment that Mr. Slade's thrill seeking coupled with his wide ranging sexual deviancy suggests a complicated and challenging case for treatment. Clinically it is difficult to predict what direction his deviancy will lead him, including a potentially violent direction. Without treatment, his risk will remain the same, namely moderate to high risk, but more likely high risk. With treatment, risk is reduced although to an unquantifiable amount. It was Dr. Fernandez's evidence that no one can predict how long it will take to treat Mr. Slade so that his risk will be manageable. At the present time there is no commitment to treatment, and while Dr. Fernandez hoped that he will be ready at some time to engage in treatment, no one can predict when that will occur. Dr. Fernandez believes Mr. Slade is capable of completing the HISOTP as she could see no reason why he wasn't capable of completing the program. The main issue is his willingness to participate in the program.
185Mr. Slade is not someone who can be described as a career criminal. His criminal record is not long. His first set of convictions occurred in 2009. The predicate offences before the court are his second set of convictions.
186In 2009, because of the nature of the charges and facts surrounding the case, he received a penitentiary sentence despite not having any prior record. It was the first experience in a jail facility. He was placed in a medium security institution. After being assessed with the assessment tools, it was initially recommended that he take the medium intensive sexual treatment. However, there was a clinical override of that assessment and a recommendation that he take the high intensity sexual treatment program was made. Treatment can only be recommended, it cannot be compelled. The HISOTP at that time was not offered at the medium security institution Mr. Slade was at. It would have required Mr. Slade to be moved to a high security institution. He chose to stay at the institution he was at and take the medium intensity program. Of note, he could not even be compelled to take that program. He took it and completed it, even though it was not going to change the fact that he was not going to be released until at or near his Warrant Expiry Date. That is a positive sign that Mr. Slade was amenable to some treatment. Although his sincerity while taking the program is questionable given the evidence presented. As well, from the evidence on this application, taking the medium intensity program was not effective at all in changing his behaviour once he was released. That is of some concern. However, in some regards that is not surprising given the recommendation of the clinical staff at the institution that he take the high intensity program. It is also not surprising given Dr. Klassen's opinion of Mr. Slade and what Dr. Klassen feels is needed.
187When asked by Dr. Klassen during the interview with him, as regards to anything about himself that he might change, Mr. Slade indicated, "not breaking the law...getting the help I need." According to Dr. Klassen's report, Mr. Slade hopes to receive treatment. He also reported feeling guilty about his transgressions.
188As I said, Mr. Slade has only one previous experience in custody and with programming/counselling while in custody. The evidence surrounding Mr. Slade's lack of motivation or unpreparedness to provide information or participate has to be considered in light of that fact. In my opinion, there is not a sufficient amount of historical evidence to conclude that there is no reasonable possibility of eventual control of the risk in the community after a further period in custody of at least two years plus ten years of supervision, with appropriate terms. Section 753.1 does not require the court to be satisfied that the risk will be eliminated within the time period of the LTSO. Nor does the court, as noted in the case of D.V.B., supra, have to conclude there is a certainty the risk will be controlled, only that there is a reasonable possibility of control. I am satisfied that there is such a reasonable possibility.
189Having found that all the criteria of 753.1 have been met, I make a finding that Mr. Slade is a long-term offender.
Sentencing
(Note: Having rendered the decision above, the court allowed counsel to make any further submissions on sentence including any ancillary orders they would be seeking. The defence position remained the same as in their written argument and previous oral submissions. The Crown indicated they would be seeking a three year sentence in addition to the pre-trial custody earned as well as several ancillary orders, which they outlined. Following is my decision given orally on the same date.)
Oral Decision
190After reviewing the written argument and submissions with respect to sentence and hearing further submissions today, the court is prepared now to proceed to the sentence on this matter.
191Of course, what I am mindful of is this sentencing is governed by the purpose of principles of sentencing found in s. 718 through s. 718.2 of the Code. I've considered the purpose and principles of sentencing as set out in those. Of course, not all of them are applicable to this particular case. The primary concerns here as far as this court is concerned are the principles of denunciation, specific deterrence and general deterrence. Further, the court has to take into account the mitigating and aggravating factors of this case.
192The mitigating factors are that Mr. Slade has pled guilty and he's to be given credit for that; he did cooperate with the investigation and confessed to his wrongdoing. He has expressed, at least to Dr. Klassen, that he is amenable to treatment. Of course there is some scepticism of that based on his past conduct and it's often said that the best predictor of future behaviour is past behaviour. But, I will take Mr. Slade at his word. I recognize that he met with Dr. Klassen after having been in the institution where Dr. Fernandez and other people who assessed Mr. Slade were not totally convinced that he jumped with both feet into the treatment. I think in Dr. Klassen's report there also was an indication that Mr. Slade's brother wasn't necessarily convinced, and I think I'm saying that charitably. The brother had some scepticism about Mr. Slade's commitment to the treatment program during his last stay in prison. I think he said more directly that his brother probably fooled everybody. But again, those were things that were based on his past. He says now to Dr. Klassen that he needs treatment. He also expressed to Dr. Klassen the sex reduction program (pharmacological program) is a possibility. Although, Dr. Klassen later expressed that Mr. Slade indicated he liked his sex drive. So those are things that although I've given him the benefit of the doubt by saying he's amenable to treatment and I've put it on the mitigating side of the ledger, it's not a strong mitigating factor because of all the ambivalence that is there about it.
193The aggravating factors are of course the type of offence that he's been found guilty of and by that I mean the targets of his offences are underage children. It's been said time and time again that children are one of the most vulnerable persons in our society. When determining the appropriate sentence on a case involving an attempt to harm children or where they are the target of criminal acts, the sentence should reflect the strong denunciation that is required. Also aggravating is that he was bound by a s. 161 order and a probation order at the time of these offences. Further, he engaged in the conduct that is before this court seventeen days after his release from a federal penitentiary knowing full well, and appreciating, that if he was caught doing what he was doing he would be returned to prison. That did not deter his behaviour. He took steps by travelling to Windsor to act out his sexual desires, although he claimed at one point he wouldn't have followed through. He would've gone back home. I'm not sure that any of us would trust that statement.
194Having considered the purpose and principles of sentencing and the mitigating and aggravating factors, I've come to the conclusion that a sentence in the range of six to seven years is appropriate. As I mentioned earlier, he should receive pre-sentence custody in the range of four years and three months given the time he has spent in custody being credited on a 1.5:1 basis.
195The sentence I am imposing here on count one is a further two years and three months which brings him, when you consider his pre-sentence custody, to a total of six and a half years. I believe that is the appropriate sentence given the mitigating and aggravating factors that I've set out here.
On count three it will simply be twelve months concurrent.
196On count one there will be a weapons prohibition for life pursuant to s. 109 of the Code or firearm prohibition, I should say.
197There is a DNA order on count one requiring Mr. Slade to provide a sample of his blood to the Windsor Police Services as soon as practicable.
198There will be an order under the Sexual Offender Information Registration Act otherwise known as SOIRA for life. Again, that is on count one.
199There is a s. 760 order.
200Dealing with the s. 161 order, I was caught a bit off guard when Mr. Nikota expressed that there was that issue still to resolve. As I've been working through this judgment, that part I had dealt with long ago in my mind. I went back and read your written submissions. The Crown had conceded that a s. 161 order is a punishment and therefore the court cannot impose the prohibitions set out in the current s. 161 (the wording of s. 161 having changed since the offences before the court were committed). But then you told me you had given me both sides of the argument just before lunch, so I went back and I looked and I read the decisions of the Ontario Superior Court again, the decision of R. v. M.E. 2012 ONSC 1078, [2012] O.J. 1627, a decision of Justice Code. And I also re-read the case of Farler, the Nova Scotia Court of Appeal decision found at 2013 NSCA 13, [2013] N.S.J. 41 and I agree with the reasoning in those cases. So I think ultimately the Crown's position is correct in terms of conceding that point. In particular the reasoning in Farler was persuasive. It had more in-depth reasoning than the Superior Court's decision. The reasoning in Farler was very persuasive in terms of it finding that s. 161 was a punishment. So therefore it's the old provisions of s. 161 that apply in this case.
201That being said, there is a s. 161 order for life. I feel it's appropriate to make it for life given the evidence that I've heard in this case, in particular Dr. Klassen's evidence and report. I do note, because I did hesitate about making it for life, but I do note there is a subsection in s. 161 that allows for a condition of the order to be varied if the circumstances justify it. So even though I've made it for life, if Mr. Slade makes significant progress, which would certainly be my hope, he can always address that at some later point. The conditions of this 161 order will be that Mr. Slade be prohibited from attending a public park or public swimming area where persons under the age of 16 years are present or can reasonably be expected to be present or a day-care centre, school ground, playground or community centre. Further, that he be prohibited from seeking, obtaining or continuing any employment whether or not the employment is remunerated or becoming or being a volunteer in a capacity that involves being in a position of trust or authority towards persons under the age of 16 years; or using a computer system within the meaning of subsection 342.1(2) for the purposes of communicating with a person under the age of 16 years.
202With respect to the long-term supervision order, the term that I feel is appropriate is the maximum term of ten years. I recommend the following terms be part of the long-term supervision order:
That it start off with the maximum residency condition of 180 days.
That Mr. Slade be given sex reduction medication.
That he attends sex offender treatment counselling or any other counselling for specific risks identified.
That he not have any contact including communicating by any means with a person who is under the age of 16 years unless with the advance written permission of the supervisor.
And finally,
- That he not possess or use any computer or any other device that has Internet access or access to any other digital network unless with the advance written permission of the supervisor.
203Those are the recommendations that I am making with respect to the long-term supervision order.
204There is no victim surcharge on either count and I believe, counsel, that that completes this matter unless there is something more you want me to consider.
MR. SHANNON: I don't think so.
MR. NIKOTA: No, thank you.
THE COURT: All right. I want to thank counsel for your diligence and your stick-to-itness as this was a long, difficult process. As I was going through my judgment I recognized the tremendous amount of work, Mr. Nikota, that you had to put into this and people in your office. I recognized that Mr. Shannon on behalf of Mr. Slade had to put in a tremendous amount of work reviewing all of that material that Mr. Nikota put together and so I thank you, both of you, you've done well. Thank you for your patience with me having to also put the matter over several times to go through all of that and try and grapple with this area that, as I said, had no precedent for me to lean on. All right, good luck to you, Mr. Slade.
MR. NIKOTA: Thank you, Your Honour.
MR. SHANNON: Thank you, Your Honour.
THE COURT: You're welcome.
Released: January 9, 2015
Justice L. Dean