WARNING
The court hearing this matter directs that the following notice be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsections 486.4(1) and 486.4(3) of the Criminal Code. These subsections and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsections 486.4(1) and 486.4(3), read as follows:
486.4 Order restricting publication — sexual offences. —(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences:
(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,
(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or
(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).
(2) Mandatory order on application. — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and
(b) on application made by the complainant, the prosecutor or any such witness, make the order.
486.4 (3) Child pornography. — In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.
486.6 Offence. —(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
ONTARIO COURT OF JUSTICE
Between:
HER MAJESTY THE QUEEN
— AND —
C.B.
Before: Justice S.C. MacLean
Heard on: April 1, May 29, November 17, December 8 and 16, 2015, and February 9, 10, and 11, 2016
Reasons for Judgment released on: April 14, 2016
Counsel:
JulieAnn Barrett — Counsel for the Crown
Sean Fraser — Counsel for the Offender, C.B.
MacLean J.:
ISSUES BEFORE THE COURT
Positions of the Parties
1The Crown applies to have the offender, C.B., declared a Dangerous Offender with a determinate sentence of 14 to 15 years and a Long-Term Supervision Order (LTSO) following for a period of 10 years. In the alternative, the Crown asks that C.B. be declared a Long-Term Offender. The Crown argues that if C.B. does not meet the legal criteria for either of these findings, that the appropriate range of sentence is 14 to 15 years less pre-sentence custody.
2The Defence submits that the facts in this case do not support a finding of either Dangerous or Long-Term Offender. It is argued that the correct range of sentence for these offences is a totality of 8 to 10 years less pre-sentence custody.
3Exhibit 5 is the Consent of the Attorney General dated November 3, 2015, as required by s. 754(1)(a) of the Criminal Code, to proceedings being instituted to have C.B. declared a Dangerous Offender. Exhibit 7 is the Application by the Crown dated March 24, 2015 to have C.B. declared a Dangerous Offender pursuant to s. 753 of the Criminal Code, or in the alternative a Long-Term Offender pursuant to s. 753.1. It also contains an Application pursuant to s. 752.1 to remand C.B. to undergo an assessment to determine whether C.B. is a Dangerous Offender or Long-Term Offender. The results of that assessment will be reviewed under the section below relating to the evidence of Dr. Mark Pearce.
The Offences
4On April 1, 2015, C.B. entered pleas of guilty to the following offences (which all took place in the Town of Ajax, Region of Durham, Ontario):
September 3, 2014 to November 3, 2014, C.B. did, for a sexual purpose, counsel S.R., a person under the age of 16, to directly or indirectly touch, with a part of her body, the body of M.M., contrary to s. 152 of the Criminal Code of Canada.
September 3, 2014 to November 3, 2014, C.B. did, with a part of his body, for a sexual purpose, directly or indirectly touch the body of S.R., a person under the age of 16 years, contrary to s. 151 of the Criminal Code of Canada.
January 1, 2012 to November 3, 2014, C.B. did, for a sexual purpose, counsel M.M., a person under the age of 16, to directly or indirectly touch, with a part of her body, the body of S.S., contrary to s. 152 of the Criminal Code of Canada.
September 13, 2009 to November 3, 2014, C.B. did, with a part of his body, for a sexual purpose, directly touch the body of M.M., a person under the age of 16 years, contrary to s. 151 of the Criminal Code of Canada.
September 13, 2009 to November 3, 2014, C.B. did make child pornography in the form of a video recording of M.M., contrary to s. 163.1(2) of the Criminal Code of Canada.
September 3, 2014 to November 3, 2014, C.B. did make child pornography in the form of a video recording of S.R., contrary to s. 163.1(2) of the Criminal Code of Canada.
January 1, 2012 to November 3, 2014, C.B. did make child pornography in the form of a video recording of S.S., contrary to s. 163.1(2) of the Criminal Code of Canada.
January 1, 2014 to November 3, 2014, C.B. did make child pornography in the form of a video recording of E.S., contrary to s. 163.1(2) of the Criminal Code of Canada.
September 13, 2009 to November 3, 2014, C.B. did possess child pornography, contrary to s. 163.1(4) of the Criminal Code of Canada.
January 1, 2012 to November 3, 2014, C.B. did, with a part of his body, for a sexual purpose, directly or indirectly touch S.S., a person under the age of 16 years, contrary to s. 151 of the Criminal Code of Canada.
January 1, 2012 to November 3, 2014, C.B. did, with a part of his body, for a sexual purpose, directly or indirectly touch C.S., a person under the age of 16 years, contrary to s. 151 of the Criminal Code of Canada.
January 1, 2014 to November 3, 2014, C.B. did, with a part of his body, for a sexual purpose, directly or indirectly touch E.S., a person under the age of 16 years, contrary to s. 151 of the Criminal Code of Canada.
January 1, 2012 to November 3, 2014, C.B. did, for a sexual purpose, counsel S.S., a person under the age of 16, to directly or indirectly touch, with a part of his body, the body of M.M., contrary to s. 152 of the Criminal Code of Canada.
C.B. had originally entered a plea to another count of make child pornography with respect to C.S., however, it was later discovered that it was his brother, S.S., who was videotaped. As a result, on February 10, 2016 this plea was struck and the charge was withdrawn by the Crown.
The Crown elected to proceed by indictment on all charges.
THE EVIDENCE
The Admitted Facts
5The following facts were admitted by C.B.
There were five children who were victims of the offences. The offences came to light in November of 2014.
M.M. is the biological niece of the offender, C.B. She resided with both her grandmother, G.B., and C.B. who was her paternal uncle. M.M. had been placed in their care by the Children's Aid Society on January 9, 2012. Her date of birth is […], 2007. She was seven years old when the offences came to light. She was victimized by C.B. between the ages of two (when she was still in diapers) and seven.
S.S. is a child who resided in the neighbourhood and would often play at C.B.'s residence with his niece, M.M. S.S.'s date of birth is […], 2008. He was six years old when the offences came to light. The offences with respect to S.S. would have begun approximately in January of 2012, when S.S.'s family moved into the neighbourhood.
C.S. is S.S.'s older brother. His date of birth is […], 2004. He was ten years old in November of 2014.
E.S. is the younger sister of S.S. and C.S. Her date of birth is […], 2012. It is believed that the offences with respect to her occurred in the early months of 2014, when she was still under two years old.
S.R. is another child who lived in the neighbourhood who came over to play with M.M. Her date of birth is […], 2008 and she would have been six years old at the time of the offences.
6On Monday, November 3, 2014, uniformed officers of the Durham Regional Police Service were dispatched to attend a residence in Ajax. Information from Communications at that time was that the victim, six-year-old S.R., had been sexually assaulted by a neighbour, C.B., believed to be thirty years old. S.R.'s mother and father spoke with the officer who arrived to investigate the matter. It was apparent that S.R.'s mother had been crying and was very upset. She advised the officer that when she had been putting her four-year-old son to bed, his six-year-old sister, S.R., had come into the room and asked for a hug. S.R. and her mother went back to S.R.'s room where her mother laid down with her. S.R. proceeded to tell her mother that she wanted to tell her something and asked her not to tell anyone else. She told her mother that when she was over at M.M.'s house the last time, that C.B. had pulled her pants down and licked her vagina. S.R. told her mother that M.M. was initially in the room with C.B., but then had gone downstairs to play with S.R.'s brother, leaving S.R. alone in the room with C.B. She described to her mother that C.B. had wiped her with a towel after he licked her. She told her mother that C.B. also does this with M.M. She told her mother that this had occurred the same day that M.M. had given her coupons for Wendy's. S.R.'s mother asked if she could tell her father and her father came into the room and she advised him of this as well. S.R. and her brother attend a school in Ajax. S.R. had become friends with M.M. at school that school year, as of September 2014. There had been a number of play dates at M.M.'s house after school. M.M. had come to their home as well. The last play date at M.M.'s house had been two weeks prior to the police being called. S.R.'s mother recalled that C.B. had come to the door as his mother G.B. was not at home. S.R.'s mother had dropped off both of her children for the play date with M.M. This was the date that the coupons were exchanged for Wendy's.
7Based on that initial conversation with the police, the matter was referred to the Sexual Assault Child Abuse Unit for follow-up and for interviews to be conducted on November 4, 2014. S.R. attended at the Durham Regional Police station in Oshawa that day and was interviewed on videotape by officers of the sexual assault unit. Detective Constable Alves spoke with S.R., who confirmed they were on video. He went over with her the importance of telling the truth and confirmed that she knew the difference between the truth and a lie.
8S.R. told Detective Constable Alves that she is friends with M.M. and had gone over to her house a number of times. She described C.B. (she called him by his first name) as M.M.'s uncle who lives with them. M.M. lived with her uncle, C.B. and her grandmother. She advised that C.B. has fake toy guns that they play with. S.R. advised that the last time she was at their house, she was on C.B.'s bed watching a movie. It was an adult movie. The movie had been paused the entire time she was in C.B.'s room. S.R. described playing with toy guns. M.M.'s grandmother was home. S.R. believed that her brother, M.M., C.B. and M.M.'s grandmother were all there at the house when she was there.
9Detective Constable Alves went over with S.R. the parts of a bathing suit and what was covered by a bathing suit. He asked her about the conversation she had had with her mother the night before. S.R. asked what will happen to C.B.
10S.R. advised the officer that at one point she was alone in the room with C.B. C.B. told her he wanted to show her something on her body. He then pulled down her pants and then her underwear and then licked her vagina. S.R. described that this had happened on only one occasion, but then further said she was licked more than once. She described C.B. as using a towel to wipe off her vagina because it was wet. This had happened four to five weeks earlier. C.B. had told her not to tell.
11S.R. advised the officer that M.M. was also licked by C.B. and that she had watched this while it occurred and that M.M. was smiling. C.B. had asked S.R. to lick M.M. but she didn't do this.
12S.R. described seeing C.B. since that at the bus stop, but there had been no further visits since then.
13Based on that initial disclosure, on November 4, 2014, reasonable and probable grounds existed to arrest C.B. for the sexual assault of S.R. Officers attended at C.B.'s residence later that day to arrest him. He was initially placed under arrest only with respect to the sexual assault of S.R. He was given all of the appropriate rights to counsel and cautioned. He was also brought into an interview room to be interviewed. During the course of that interview he denied having been involved in any conduct with S.R., but did describe her climbing up on his lap at one point, and that she may have sat on his lap.
14During the course of that interview, Detective Constable Briese asked C.B. if there was anything that he might find on C.B.'s computer, at which point C.B. admitted that there was some stuff, some images, some child pornography that he had downloaded. At that point the officer also gave him all of the rights to counsel and caution with respect to the charge of possession of child pornography. C.B. was questioned again with respect to S.R. At that point he admitted that he had swung her up on the bed, her pants had come down, he didn't lick her, but he did give her a kiss. C.B. was held for a bail hearing.
15Based on the contents of the interview with C.B. the police then began an investigation with respect to child pornography and a search warrant was applied for with respect to seizing and examining a laptop computer and any cell phone as well. On Wednesday, November 5, 2014, C.B.'s computer was seized under the authority of a search warrant. The following day the computer was taken to the E-Crimes Unit to have an initial examination of the computer done, to see if child pornography was evident and available on a preliminary examination. An initial examination showed a number of videos. C.B.'s face was easily identified in some of the videos. There was a directory structure on the computer, very organized and labelled. The labels included: adult porn, child porn, child stills, child videos. It also had categories of M.M., S.R., S.S., E.S. and C.S., the names of the five victims in this case. A number of videos were seen at this point.
16Detective Constable Lockwood of the Internet Child Exploitation Unit then proceeded to examine the videos within the structure on the computer more carefully and thoroughly. In total there are 217 child pornography videos that were made by C.B. with respect to the five victims in this case. There is one video with respect to S.R. that lasts approximately 40 seconds. There is one video with respect to E.S. lasting approximately 31 seconds. Videos relating to S.S. last approximately 7 minutes. There is a 5-minute video showing S.S. and M.M. together. There are a multitude of videos involving C.B.'s niece, M.M., which total approximately 2 hours and 51 minutes of footage at various ages (commencing when she was about two years old) and in a variety of circumstances. Further descriptions detailing the contents of some of these videos will be set out under a separate heading below.
17The police also located several photos of child pornography on C.B.'s cell phone. They all appear to be screen shots or stills of the videos found on his computer.
18In addition to the child pornography made by C.B. with respect to the five known victims in this case, there were a further 1,377 child pornography videos possessed by C.B., which would have been downloaded from the internet. These include video clips of adult males having intercourse with female children and children engaging in sexual acts with one another.
The Child Pornography Videos
[The court provided extensive descriptions of the videotaped sexual abuse. Due to the extremely graphic and disturbing nature of this content, I have omitted the detailed descriptions while preserving the legal analysis and findings.]
Impact on the Victims and Their Families
97The parents of the children who were victims bravely read out their heartfelt Victim Impact Statements in court on April 1, 2015. They were barely able to hold back their tears as they did so. They described the devastating harm that has been done by C.B. to their families. They are set out here in full, edited only to protect the identity of the child victims.
[The court included comprehensive victim impact statements from the parents of the affected children, detailing the profound psychological, emotional, and practical impacts of the abuse on their families, including ongoing therapy, school disruptions, anxiety, and long-term developmental concerns.]
The Evidence of Dr. Mark Pearce
103Dr. Mark Allan Pearce, a forensic psychiatrist from the Centre for Addiction and Mental Health (C.A.M.H.) testified on February 9, 2016. His Curriculum Vitae is Exhibit 10. His 33-page report dated August 27, 2015 with an Addendum dated February 9, 2016 is Exhibit 11 and the report was adopted by Dr. Pearce when he gave his evidence.
104Dr. Pearce's qualifications as an expert witness in the field of forensic psychiatry and risk assessment as it relates to the issues on a Dangerous Offender and Long-Term Offender Application were conceded by the Defence. I accept that Dr. Pearce is very well qualified in this field.
105Dr. Pearce met with C.B. for 3.25 hours on one occasion, on July 8, 2015 at the Centre for Addiction and Mental Health (C.A.M.H.) in Toronto. Dr. Pearce was assisted by having access to a variety of material concerning C.B. such as disclosure documents and a transcript of the guilty plea, C.B.'s criminal record, C.B.'s provincial correctional records, information from C.B.'s mother and other miscellaneous documents. Dr. Pearce also had access to the medical records, including the results of phallometric testing performed that same day, July 8, 2015.
106By way of background, at the time he was interviewed C.B. was 30 years old, single with no children. He had been residing with his 62-year-old mother, G.B. and niece, M.M. (the daughter of his older brother), until he was incarcerated following his arrest on these charges on November 4, 2014. C.B.'s father had passed away in 2003. His upbringing and relationship with his parents is detailed in Dr. Pearce's report. C.B. was not employed at the time of his arrest. C.B. advised Dr. Pearce that he was not subject to physical or sexual abuse as a child. C.B. was never diagnosed with a learning disability or attention deficit hyperactive disorder (ADHD). C.B. denied being sexually coercive to others prior to the age of 18. He denied symptoms consistent with generalized anxiety disorder, panic disorder, obsessive-compulsive disorder, or post-traumatic stress disorder. C.B. advised Dr. Pearce that he has not experienced a major depressive episode or manic episode and that he has never experienced any psychotic symptoms.
107C.B. completed a Bachelor of Arts degree in developmental psychology in the spring of 2014, graduating from York University degree. He had a particular interest in child psychology. Dr. Pearce defined "developmental psychology" as "the study of how the mind operates in child infancy, in adolescence, and how it develops in terms of progression". C.B.'s mother, G.B., told Dr. Pearce that C.B., "wondered how the brain develops and how children and adolescents view the world". Dr. Pearce concluded that C.B. possessed "average intellectual abilities". He told Dr. Pearce that he was applying to become a foster parent. Around the time he was arrested, C.B. hoped to get a job with the Children's Aid Society so he could, "help kids and make a difference". He told Dr. Pearce, "I was interested in child psychology but it had nothing to do with my problem. I have always wanted to help people, in particular kids." He said he was fascinated by the way the mind works and decided the best way to help people would be to "learn how to raise kids properly".
108Dr. Pearce agreed with the Crown's suggestion that the fact that C.B. ingratiated himself with the families of the children who were victimized, that he studied child psychology, and that he enjoyed children's things are all indications of someone "who has shown himself to be fairly adept at playing a particular role and gaining access to children as a result". In his testimony Dr. Pearce described these concerns in the following manner:
"A. I think that's largely true. I think that Mr. B. thinks that he likes child psychology for reasons completely unrelated to his sexual interest. I think that he thinks he likes children's toys and going to children's birthday parties and that that's totally distinct from his sexual interest, and I think that is illogical and inaccurate. And again, I think it's a cognitive distortion." [Emphasis added]
109C.B. admitted to Dr. Pearce that he has a sexual interest in children. He realized from a young age that his sexual preferences were unusual. He described his sexual orientation as heterosexual, though he admitted to being attracted to both women and children (of both sexes). He denied any sexual interest in men. With respect to his sexual attraction to children, during the interview, C.B. told Dr. Pearce:
"My father is the reason I didn't get help for this when I was 9…When I started puberty, I was interested in girls but I also was interested in kids…and it just didn't go away. All the years I realized I had a problem, but I didn't know how to get help with it. I was worried that I would lose everybody, that people would think I am disgusting and stop loving me I guess. Given that I was already struggling for my father's approval; I didn't think I could open up to them about this".
110When asked by Dr. Pearce if he wished to change any aspect of his character, C.B. said, "Really? Yes, a lot. The fact that I'm attracted to children and the fact that I was too weak to control it. I would absolutely love to change that". Otherwise he would change nothing.
111Dr. Pearce testified that C.B.'s awareness that he was sexually attracted to children when he was only nine years old is "fairly young". Typically, Dr. Pearce's clients would realize this around the age of puberty, so at 11 or 12 to 14 years of age for boys. C.B. did not reach out to anyone for treatment or engage in any treatment. Dr. Pearce indicated that at that age, it wouldn't be expected that someone would engage in treatment or even know it was available.
112During the interview Dr. Pearce found C.B. to be "pretty open in terms of expressing his sexual thoughts and fantasies to me." The majority of his clients are not that forthcoming. C.B. views himself as "caring and compassionate", which he has in fact been at times but not at other times. There was a "running theme" in the interview which was that C.B. believes the offences in this case happened because he was too weak to control his sexual attraction to children.
113In spite of his sexual attraction to children, C.B. advised Dr. Pearce that he has, for years, hoped to become a parent. Dr. Pearce described this as a serious cognitive distortion. When asked if he still had these aspirations, C.B. had the following exchange with Dr. Pearce:
"I hope that is possible for me. I hope I can get the help that I need so that I can become a parent in the future, I think I can". When asked if there could be concerns about his being a parent, he replied, "No. It is complicated with the whole getting help thing. I controlled it all myself without help for 16 years then it went bad. I broke down and [offended]… But I think if I had help, I could be a parent. I would really love that". When asked why he wanted to become a parent, he stated, "I love kids and I don't mean that in relation to my charges. I think kids are a blast… In my life, before I was arrested, I was helping host birthday parties for kids' friends and I loved that". He spoke about participating in activities with children (like attending at the zoo) and informed that these are enjoyable for him. He stated, "I have a lot of fun with kids and I know I could do a good job of raising kids if it weren't for my problem". When asked how treatment may benefit him, C.B. stated, "[It wouldn't] get rid of the problem but getting help for it, getting support, not dealing with it alone [would help]. I know if I were a parent in the future, nothing bad would happen. I would never let this happen again". When asked how he could be certain of same, he replied, "Because I would kill myself first. I just couldn't do this, I couldn't hurt anybody. I hurt people so bad, I couldn't let that happen again". C.B. was tearful at this juncture of the interview."
114In a 13-page handwritten document prepared by C.B. for Dr. Pearce C.B. claims that:
"his interest in helping children and his desire to be a father have nothing to do with his sexual preferences. He indicates that his love of children's toys is also not related. He states, "I'm great with kids…and that's not because I'm after something. It's because I'm a fun and caring person". He spoke about his fondness for M.M. to the extent that he viewed her as "my kid". He claimed that his sexual interactions with S.S. and C.S. "their choice. They could decide what we did or if we even did anything at all… The children never thought of themselves as victims and I didn't see them as that way either". [Emphasis added]
115C.B. has no history of being in touch with a psychiatrist or psychologist, or having been prescribed psychotropic medication, or having been admitted to a psychiatric hospital. He has no history of alcohol or illicit substance abuse. Dr. Pearce was of the opinion that C.B. does not have a major mental illness.
116C.B. has, however, attempted suicide on two occasions. The first was in 2006 when he was speeding on the 401 highway after his birthday party. He became involved in a single motor vehicle collision. This is the incident which led to his conviction for Dangerous Driving in 2007. When asked by Dr. Pearce if he has purposefully caused the accident, C.B. told him that he "drove off the 401" as part of a suicide attempt. He told Dr. Pearce that he was:
"upset about everything. My girlfriend had been cheating on me… I had spent my life ignoring and suppressing my [sexual thoughts about children] … I didn't think I could be strong enough forever and knowing that I had to keep this bottled up for the rest of my life [was distressing]". He disclosed the fact that this was a suicide attempt to his mother and brother albeit did not acknowledge to them that his sexual desires contributed to the incident. He informed that he had not previously disclosed his sexual thoughts involving children to anyone."
117The second suicide attempt was on November 8, 2014, while incarcerated, shortly after his arrest on these charges. While in custody C.B. "dove off the second floor [of the range] head first". He told Dr. Pearce that he was distressed about his charges and he, "felt overwhelmed by what I had done. I just "cracked my head open and I was in hospital for most of November". C.B. had been "air-lifted" from the Central East Correctional Centre (CECC) to Kingston General Hospital (KGH). Nineteen staples were required to close the wound. He was eventually returned to custody and was placed on "super suicide watch" for some weeks. He met with the institutional psychologist and some weeks later was returned to the "PC" range. Exhibit 9 is the note written by C.B. to his mother, G.B., in November of 2014 before the suicide attempt. In addition to addressing a variety of other issues, with respect to his sexual activities with children he tells his mother,
"Mom…I should have come to you for help when I needed it instead of hiding my problem and allowing it to affect others. I was simply too afraid of losing everything wonderful in my life. I love you so, so much, and I am sorry to put you through all of this.
M.M. You have been the absolute highlight of my life…I hope you never forget my love for you. I'm sorry I can't be there while you grow up and I hope you forgive me for my mistakes…
Let the little ones know that it was inappropriate activity for their age and that I was in the wrong. But don't make them feel bad about it. In their minds they were not victims but willing participants who played games they enjoyed and were curious about. Let them know it was inappropriate but making them feel like victims would be traumatizing.
Maybe with my death the investigation will not do any more damage. I'm lost to everyone anyway. My death will be difficult but it will be final and I will bring no more harm and shame to my loved ones…"
118C.B. had told Dr. Pearce that he had chatted online and found "sort of support groups for those with pedophilic sexual preferences". It was in online chat rooms where users with a sexual interest in children talk about how to cope with their sexual interests and not victimize children. For example, as a way of finding out how to procure child pornography without getting detected. C.B. "made it sound as though he was chatting with other users for support". Dr. Pearce believed that was a more anonymous way of C.B. disclosing this issue than telling his mother or a girlfriend.
119With respect to his own sexual history, C.B. told Dr. Pearce the following during the interview:
"C.B. informed that he entered puberty at the age of 9; he recalled getting erections at that age and masturbating. He claimed that he was aware, by that time, that he was attracted to physically mature and immature females. He "also liked young boys". He believed that the physical changes associated with puberty onset 2 or 3 years later. C.B. reported that his genitalia is of normal appearance. He denied any difficulty achieving or maintaining an erection, or any ejaculatory-related difficulties.
As an adolescent, C.B. masturbated regularly, approximately four times per week. He had various sexual partners in his twenties thus did not need to masturbate very often. He prefers to engage sexually with a partner about four times per week. When he does masturbate, he typically has fantasized about adult females or male and female children. He estimated that he has spent a third of his time thinking about physically mature females and two-thirds of his time fantasizing about children. The latter would be split equally between male and female children. When asked, C.B. informed that he would fantasize about prior experiences with adult females he had dated. He admitted that he had, prior to his arrest, masturbated while recalling prior experiences with children he was sexually involved with. He stated, "But now, since my arrest, [those thoughts] are traumatizing to me. In fact, thinking about kids at all is traumatizing to me. Before my arrest, I think that's why I was filming stuff. I thought that if I could just watch that instead of [offending], that wouldn't be as bad. But now, I don't know if that helped, I think that it just made it more difficult for me. Seeing the content online, I think it just made it worse and caused things to spiral out of control even more"."
120In interview with Dr. Pearce, C.B. described his use of child pornography and his views of his victims' "choices":
"C.B. has occasionally viewed pornography, primarily online, albeit he typically masturbated "by my memory". When searching for pornography, he preferred "amateur, girl-next-door stuff". He admitted to viewing and masturbating to child pornography. He stated, "I accessed and possessed a lot of it… At one point I thought it could be just between me and the computer, and not involve my niece and her friends". He first viewed same during his adolescence around the age of 14. At that juncture he also discovered "online [pedophilic] communities" and he frequented chat rooms where he discussed his sexual preferences. He "needed to see that at the time because I saw that there were people controlling it and…I thought I could do this. It strengthened my resolve…and I remember how that made me feel, that I could talk to other people about this. It turned the tide for me and showed there was a way out for me". That is, C.B. had considered committing suicide around that time, given his sexual thoughts.
C.B. typically procured child pornography via "random websites". He denied using peer-to-peer programs. He did not pay to access child pornography (CP). He admitted that a collection of CP ("quite a bit") was located on his computer. He denied sharing child pornography with others at all. He never shared the pornographic movies he made with his victims. C.B. found he disliked users of the CP websites as he "spent a lot of my life helping kids…and I don't like people who wanted to hurt kids… I didn't hurt the kids up front… I made everything their choice, I didn't force or coerce them. I presented them with things and let them go with it, so they didn't know they were victims as none of us saw it that way … [But] they will be hurt, I was ignoring the long-term consequences…and was in denial. I've altered their outlooks, their behaviours and now they have to grow up…and feel like victims. They'll see things differently than anybody else and they will never be the same, as [compared to if] I had done nothing at all… And they'll probably learn to hate. I've pretty much put hate and mistrust into their lives".
Of note, C.B. denied an attraction towards pornography depicting violence or alternative/unusual sexual activity." [Emphasis added]
121C.B. denied having any paraphilic fantasies (deviant or unusual sexual preferences) such as exhibitionism, voyeurism, frotteurism, toucherism, sadism, masochism, bestiality, necrophilia, transvestism, transsexualism, fetishism, urophilia, or coprophilia. He admitted being sexually aroused by children's feet, as he "found them cute sexually" and that M.M. had touched his penis with her feet. He conceded he might have a "foot fetish", which Dr. Pearce described in his evidence as "partialism", i.e. a fetish with a specific body part. Dr. Pearce was not clear whether this was a long-term interest for C.B. or just a brief experimentation phase. With respect to urophilia and coprophilia (the use of urine and feces in sexual acts) that did in fact take place with M.M., C.B. told Dr. Pearce:
"But those things happened… I don't have an answer why that happened with my niece, while she was asleep. I didn't want to upset her or have her remember anything [about it]. None of that kind of interest ever happened before or after. I just did it a couple times because at that time, that aroused me. I think it may have been curiosity, just wanting to know why some people liked that. A lot of weird stuff happened in that last year [prior to my arrest]"
122Dr. Pearce testified that he did not have enough information to be able to determine whether C.B. could be formally diagnosed as having a urophilia or coprophilia paraphilia because there has to be a sustained interest over at least half a year to years to make such a diagnosis. He suggested that it was, however, a possible diagnosis for C.B. Dr. Pearce was uncertain as to whether it was a brief unusual sexual preference or if there was a sustained interest. Dr. Pearce was of the view, however, that this type of activity "involves a degree of humiliation to the victim that could be probably very psychologically traumatic for them." Dr. Pearce believed that this conduct was related "to risk a little bit", but that it was "fundamentally driven by the major risk factor which is the deviant sexual interest in children, pedophilia."
123C.B. described his sexual interaction with E.S. as, "A fun and extended diaper change that involved my mouth" when he spoke of it with Dr. Pearce, which the doctor described as another cognitive distortion. C.B. filmed his sexual interaction with 18-month old E.S. while he was next-door at her home babysitting. He told Dr. Pearce that he uploaded it to Dropbox then deleted it online immediately.
124When describing how his sexual offences came to the attention of the authorities, C.B. told Dr. Pearce that it was S.R. who had disclosed it. In describing his activities with S.R., C.B. said to Dr. Pearce that, "S.R. was really excited about it and she didn't want to stop. I put a stop to it and she asked if we could play that way the next time I visited." Another cognitive distortion, as described by Dr. Pearce. When interviewed by Dr. Pearce C.B. described his sexual activities was S.R. as follows:
"C.B. was sexually involved with [S.R.] once. She went to school with M.M. S.R. and her little brother had visited the family home to spend time with M.M. C.B. had known her for some years. M.M. and S.R.'s brother were playing together and S.R. attended C.B.'s room, "to see what I was doing. She had always taken an innocent liking to me". With her, C.B. "playfully peeked into her pants…and pulled them down". He touched her vagina (but did not penetrate her) and licked her vaginal area. M.M. went upstairs to discover C.B. with S.R., "and she wanted to join in and get involved. She started making suggestions, like let's do this now, then I stopped the game… M.M. suggested that S.R. lick her down there, but I said no, let's go back downstairs". C.B. did not believe that S.R. touched his penis. He did not ejaculate that day. The incident was filmed. He added, "Looking back on it, I think I was using S.R. just to tell on me, just to stop [my abusive activities]"."
125In his interview with Dr. Pearce, C.B. described the following with respect to his many sexual interactions with his niece, M.M.:
"C.B. was involved with M.M., his niece, as of her age of 2. At that time, he "sneaked a peak [into her diaper]". The majority of their sexual contact occurred in 2014 and they were sexually involved "every few months". M.M. resided alongside C.B.'s mother as of her age of 3 or 4. C.B. admitted to penetrating her anally twice, "at her insistence. What I said about me altering their behaviours and outlooks, she wanted me to do that. I kept saying no but she kept asking me to do it. So I gave in and I did it. I was trying so hard to stop what I was doing, but I had this excited little girl encouraging me". There was no vaginal penetration, "It simply didn't fit. There was rubbing, that was it". He ejaculated into her buttocks and onto her vagina. He engaged in oral sex with her; he performed cunnilingus on her "a lot or often enough" and she performed oral sex on him. C.B. stated, "She never wanted to and I never pushed for it, but eventually she asked to do that …and it happened on two separate occasions". He did not ejaculate while receiving fellatio. When asked to estimate how many times they were sexually involved, C.B. suggested that this occurred on 15 different occasions. As aforenoted, he videotaped their contact "almost every time". At one point in the interview, C.B. stated, "The bad stuff only comprised a very small percent of the time we spent together"." [Emphasis added]
126With respect to the sexual activities between M.M. and S.S., C.B. described to Dr. Pearce that the children, "just did it…given the door that I had opened for them. I had altered their outlooks and behaviours and they would just do this stuff". He denied encouraging them albeit he masturbated during the session."
127C.B. had hidden his sexual preferences from his mother for years. When C.B.'s mother, G.B., was interviewed by the police on November 10, 2014, she told that police what C.B. had said to her about his sexual activities with M.M. He had clearly minimized what he had done. G.B. said:
"He had told [me], in terms of his contact with M.M., "I never hurt her, anything he did was gentle and loving and she was okay with it, like a game between them. He said just touching, nothing bad, like he touches her there and she touches him there". He indicated he needed help and was "so sorry"."
128C.B. told Dr. Pearce that he was trying so hard to stop his sexual activities with children or trying to control himself, but he wasn't able to. C.B. denied in his interview with Dr. Pearce that he was ever physically aggressive or assaultive towards the children. He said he never threatened them. C.B. did, however, inform the children that the sexual activity was, "not allowed and that we shouldn't be doing it…so they kept it a secret". He denied specifically asking the children to keep it a secret. He added, "I was surprisingly educational about things. I taught them how to be respectful to each other, pretty much what every teenager should get".
129Dr. Pearce testified about the significance of C.B. having victims as young as 18 months (E.S.) and two years old (M.M.). He advised the Court that the younger the victim, "it's more likely there's a pedophilic preference present". Dr. Pearce testified that that diagnosis for C.B. is very clear, both based on his conduct with the victims, his admitted preference and the results of the phallometric testing. Dr. Pearce also indicated that with C.B. there is a "wider age demographic than may often be the case in terms of preferred victims."
130Dr. Scott Woodside of C.A.M.H. had reviewed the results of C.B.'s phallometric testing and those opinions are detailed in Dr. Pearce's report, Exhibit 11. Those test results were indicative of C.B.'s "erotic preference for pubescent and prepubescent children". The strongest positive reaction was with respect to prepubescent females, although there were also positive reactions to prepubescent males and pubescent females. Dr. Pearce cautioned, in his evidence, against interpreting these results as meaning that prepubescent females are his biggest interest over the long term. He also expressed the view that C.B.'s negative response to adult women on these tests does not necessarily have any significance.
131Based on C.B.'s admission that he has a sexual interest in children, his offending behaviour and the phallometric testing results, Dr. Pearce concluded that the diagnosis for C.B. is "bisexual pedohebephilia, seemingly the non-exclusive type". Dr. Pearce explained these terms in his evidence. "Bisexual" means an interest in both sexes. "Pedohebephilia" means a sexual interest in children, with the "hebe" part referring to a sexual interest in children around the age of puberty who are just starting to show secondary sexual characteristics. The "non-exclusive type" refers to his self-reporting that he has also a sexual interest in adult females. Dr. Pearce advised that he did not have a chance to speak with any prior adult female partners about their sexual relationship with C.B. Dr. Pearce's report explains that a diagnosis of pedophilia indicates:
"In the case of pedophilia, it denotes a primary sexual preference for children. This is not to say that such an individual could not engage in other forms of sexual activity, but does indicate a proclivity for sexual contact with children that cannot to be expected to remit. Whether an individual with pedophilia expresses that deviant sexual interest depends on a variety of factors, including the degree of psychological and social stress that an individual is under, and their ability to cope and adapt to that stress, the presence of alcohol or substance abuse, the presence of a concurrent antisocial personality disorder or psychopathy (which, in the absence of significant conscience development, will tend to reduce the resistance to acting out on their aberrant sexual drive), and the presence or absence of treatment. Treatment for individuals with pedophilia involves psychological, and at times, pharmacological intervention. Psychological treatment for individuals suffering from sexual deviance generally takes the form of cognitive behavioural therapy along a relapse prevention model, which may be administered in an individual, or more commonly, a group format. Generally, individuals will engage in a several month course of such treatment and then may have follow-up contact, at times on a life-long basis. Pharmacological treatment of pedophilia involves the use of sex drive reducing medication. This medication, which may be administered orally or by long acting intramuscular injection, permits for various degrees of "chemical castration". An individual's sex drive is thus reduced, and accordingly their likelihood of acting on deviant (and, unfortunately, non-deviant) sexual impulses is significantly reduced. These two primary forms of treatment should be supplemented by other treatments as required; for example, addressing the issues of depression, anxiety, unemployment, poor social skills, loneliness, and substance abuse."
132Dr. Pearce also concluded that while C.B. does not meet the full criteria for a personality disorder, "he lacks the ability to fully empathize with others and he harbours profound cognitive distortions in relation to his offending that are unexpected given his intellect and educational background". [Emphasis added]
Dr. Pearce's Opinions Regarding Risk Assessment and Treatment
133With respect to C.B.'s lack of ability to fully empathize and his unexpected profound cognitive distortions, Dr. Pearce agreed that this is a problem and one of the risk factors for C.B. going forward. He advised that C.B. will have to work on victim empathy development. C.B. also needs to work on these cognitive distortions, which he holds, in spite of his education and intelligence. Dr. Pearce testified that, "I have assessed hundreds of sexual offenders and they're among the most severe cognitive distortions that I've had someone admit to" [Emphasis added]. Dr. Pearce added that these cognitive distortions may not increase his risk by much, but that they definitely pose "a treatment hurdle and challenge".
134Dr. Pearce also agreed, however, that in fairness to C.B., he appeared to be open with the doctor in terms of his willingness to discuss his thought processes and his history. Dr. Pearce also agreed that C.B.'s openness is relatively rare compared to other individuals interviewed by him, and he testified that C.B. was significantly, "more forthcoming than the average client in similar circumstances". Dr. Pearce advised that C.B. was also very forthcoming with the phallometrist (phallometric lab technician). C.B. had not been as open with his treatment providers at the jail and minimized what had occurred when speaking with them. Dr. Pearce agreed that C.B. continued this openness that it would make him more amenable to treatment and in particular with regards to addressing his cognitive distortions. He described it as "a good sign for treatment, that he can open up".
135The number of victims that C.B. had in this case is also taken into account in assessing risk. His age is also an important factor. Since he is still only 30 years old, Dr. Pearce advised the Court that there are, "at least a couple of decades before the effects of aging on biology will reduce his risk naturally".
136In determining risk, Dr. Pearce's evidence was that the most important diagnosis for C.B. is the deviant sexual preference. In his report Dr. Pearce explains that C.B.'s diagnosis of pedophilia is a condition that is not expected to remit. In his evidence he explains this further and addresses risk assessment for C.B.:
"A. So a sexual interest in children is something that is considered lifelong. So for whatever reason, because we won't ever know the reason, Mr. B. has this interest in children, it's been present since he was very young and it's not going to go away. We have no cure for it, we can't switch that light switch off, unfortunately. It's something that I'm sure he does not want and would never have asked for. No one would ask for this type of affliction, but regardless, in him it's present and it will stay there forever and all we can do is manage it, preferably with medication and with other treatment as well. When I say it's not going to remit, it's not going to go away, we don't have a cure for it, but we can manage it with medication, help reduce how important it is to him with medication.
Q. And with a cooperative offender as well, correct?
A. Right. So it's much like, you know, any adult who's attracted to men or women. Mr. B. may be attracted to women as well, but he also is, I think, primarily attracted to children.
Q. And so certainly as he is sitting in the courtroom today, if this lifelong, intractable, incurable attraction is present and we see some of the cognitive distortions that seem pretty clear along with some of the other risk factors that you've talked about as being present, what would that say about his risk of re-offence in the future?
A. I think he's at significant risk of re-offence in the future. He's untreated at the moment, he has a clear sexual interest in children, he's offended against multiple victims in the past, he does not have good insight into his illness, condition, into the limitations he should take on as part of his future life. For example, not being a parent. I have very significant concerns about his potential for re-offence." [Emphasis added]
137In Cross-Examination, Dr. Pearce explained what he meant by "significant risk" as follows:
"Q. All right. So when you're talking about significant risk in relation to Mr. B., you're talking about effectively any risk at all being a meaningful risk, is that fair to say?
A. I don't think any risk at all would be meaningful risk, but a moderate risk or above would be a meaningful risk, I think.
Q. So in terms of say the risk of Mr. B., if you were to somehow zero in at say five percent within a reasonable period of time, five percent that he would commit a hands-on offence in relation to a child or any other vulnerable member of the community, would you consider that a significant risk, that five percent?
A. It would be close to – it would be getting close to significant, but probably not significant. I don't know if it helps. You know, looking at sexual offenders, the base rate, what we call the base rate of a sexual offender. So you take all the sexual offenders that are released in a year regardless of their risk level and you follow them for five or ten years, the base rate of re-offence is sort of 10 to 14 percent. And so I would consider anything probably close to that or above significant.
Q. Oh, I see.
THE COURT: Sorry, 10 to 14 percent?
A. Ten to about fourteen percent, yes, depending on the study.
THE COURT: So based on the study, okay. So anything at that level or above would be significant?
A. Yes.
THE COURT: I just wanted to catch up in my notes, thank you.
MR. FRASER: Q. So just to be clear then, Doctor, based on what you've said and to be fair to your evidence, your testimony, it's not a situation where I could validly accuse you of overreacting to say the harm that would be entailed by a hands-on sexual offence or its lack of social utility? I mean, you're not just simply saying, any risk is too much risk given what we're talking about? That's not your evidence before this Court?
A. No. I don't think that's probably helpful for me to say that because you're right, every – we can't just incarcerate everyone forever and we need to quantify someone's risk and put them in that – try to put them in the spectrum somewhere."
138Dr. Pearce testified that C.B. has held his fixed cognitive distortions over a period of time in different settings. Dr. Pearce hoped that with C.B.'s intelligence that these could be targeted with treatment. C.B.'s belief that he was not hurting his victims and that he "made everything their choice" was one of C.B.'s extreme cognitive distortions. As Dr. Pearce put it:
"A. He made many comments along these lines that showed the extent of his cognitive distortions and the limitations to his insight, and then also it was evident in other material too. For example, him speaking with the institutional physician, in a letter he wrote me. It was evident in different types of material that he had these very profound cognitive distortions." [Emphasis added]
139In his report, Dr. Pearce concludes that C.B.'s "insight was adjudged to be quite limited". Dr. Pearce also testified about his concerns with regard to C.B.'s many cognitive distortions including C.B. ever becoming a parent. His evidence on this point is as follows:
"A…. when he's talking about his future plans, and his future plans to me, as he told them to me, were to have children, for example. That's a major concern for me. He thinks that he won't be too weak in the future, but I'm not sure what would be different in the future should he have children, for example.
Q. So that's on page 5 [of the report], actually, where he's discussing with you about wanting to be a parent, he doesn't have any concerns for himself as a parent, and what are your views about that?
A. So Mr. B. can never be a parent, in my opinion. He can't have unsupervised contact with children ever, in my opinion. He has a sexual interest in children and a history of offending against multiple different children and I'm not confident he could control that in the future and the risk of harm is an unassumable risk, you know, from my perspective. You know, Mr. B. had a lot of what we call cognitive distortions. These are commonly seen in sexual offenders and these are – we teach them to clients getting treatment for sexual offences and we call them speaking/thinking. It's a bit of a brash way of saying that the thoughts that you're having, you're tricking yourself into believing what you want to believe. Mr. B. had very severe cognitive distortions about his offending and the victims he was involved with and the thought that he can have children and be a parent to a child is one of those cognitive distortions. He said, "I would never offend against my own children", on one hand, but then at a different time in the interview he said, you know, "M.M. was like a daughter to me." Right? So, I mean, that really highlights it right there. So, you know, what would be different if it was his own children? Well, the answer is, that's a very high-risk situation for Mr. B. to be in, be a parent. And so he had a lot of these cognitive distortions, and I think you'll see that throughout the report. And I think that reflects the fact that he's an untreated sex offender. So he hasn't had any treatment, education about this, and he needs it very badly, and I hope he'll benefit from it and it will help him. I was a bit surprised by how profound his cognitive distortions were only given his apparent intellect and education history. So he has, to my understanding, a degree in psychology and his cognitive distortions were probably amongst the most severe that we would encounter.
Q. I was going to ask you about that. So in terms of – and we see the number of times, and I'll go through them with you in the report, these cognitive distortions, I'm going to say, minimizing perhaps his offending. Is there any significance or consideration in terms of when we talk about risk in the future when you have someone who has, would appear to have, the education that he has, which includes specifically dealing with child psychology, and yet still have the cognitive distortions that he clearly has?
A. So I think it's important to remember that it doesn't look – it's not clear that cognitive distortions increase risk of future offending, so I think that's important to note at the outset, and in this case I had to sort of consciously push those profound cognitive distortions – I think that's probably the only way to label them. They're very extreme. I had to sort of try to push those out of my mind to be objective in my risk assessment of him and fair to him as well. That's my job is to be impartial and fair. I didn't want his cognitive distortions to colour that risk assessment result much because the literature says that cognitive distortions don't really relate to re-offence, as far as we know.
Q. So one of the things that does relate to re-offence, and correct me if I'm wrong, is insight or some understanding that what you're doing is wrong and can't be done again, does it not?
A. And so again, that doesn't seem to relate too much, doesn't tie too much, to risk of re-offence, as best we can measure. Maybe very slightly, but it's not strongly correlated with risk of re-offence.
The meta-analyses that look at these, you know, what relates to future risk of a future sexual offence, and it seems like terms like lack of insight, cognitive distortions, those don't seem to have a very strong correlation with predicting risk of future offence on their own. There are other factors that are much more predictive of future re-offence than those.
Q. And I take it from your answer previous to me then, the question of lack of insight or cognitive distortions on its own doesn't increase risk, but for instance that coupled with pedophilia, for instance, there would be some indication of a higher risk at that point, would there not?
A. It's hard to tease those two apart, but it's probably mainly about the pedophilia versus the limited insight." [Emphasis added]
140Regarding C.B.'s cognitive distortions, Dr. Pearce provided further clarification as to how this impacts risk assessment:
"Q. And Mr. Fraser was asking you, and you've said a number of times as well of course, that cognitive distortions in and of themselves don't necessarily increase risk, right?
A. Right.
Q. But is it fair to say that things that are sort of related to that, and I think you'd mentioned that earlier, so for instance lack of empathy for victims, could be a factor in increasing risk, correct?
A. It could. It doesn't seem to be strongly tied to that, but it could possibly.
Q. And we've mentioned a number of times about the lack of insight of an offender into their offences and consequences can be an important factor or a factor in terms of increasing risk of re-offence?
A. It can be a factor. Again, not an important factor, but it can be a factor.
Q. Or a lack of acceptance, for instance, of responsibility as well?
A. Yes. Again, a factor."
141Dr. Pearce gave evidence about the factors that he indicated are much more predictive of future re-offence than lack of insight and cognitive distortion. He testified that the number one (and fairly obvious) factor is C.B.'s sexual interest in children, which helps predict risk of future sexual offences against children.
142Another risk factor is the young age of the offender. The peak risk is when the offender is between 18 to 25 years old, and then it declines in a step-wise fashion from there. Substance abuse (not a factor in C.B.'s case) is also very predictive of risk. Having other criminal offences on one's record (antisocial behaviour) is predictive of re-offence. Failure to abide by court-imposed conditions increases risk. The number of victims, male victims (higher risk indicator than female victims), friends of male victims, all increase risk of future sexual offence. It was Dr. Pearce's opinion that the two suicide attempts by C.B. do not increase risk of future sexual offences.
143Dr. Pearce was asked about whether C.B.'s three "streams" of offending, i.e. 1) as a "hands-on" offender with his sexual offences against children, 2) his creation of child pornography and 3) his viewing of child pornography on the internet, puts him in a higher risk of re-offending. He was also asked if it made C.B. more difficult or complicated with respect to treatment. Dr. Pearce agreed with this suggestion, testifying at pages 12 to 13 of his evidence that:
"A. Yes. So I think that, you're right, I think there [are] different categories of offences here within the sexual offender spectrum, and obviously the more categories of offences the more we have to risk-manage. And when I say "we", I mean whoever's in charge of managing his risk to others and making sure he doesn't re-offend. So, you know, not only do you have to ensure that he doesn't offend against a child, then you have to ensure that he doesn't download child pornography thereby victimizing other children in that process. So there's more to risk-manage.
Q. Is there an increased risk at that point?
A. Yes. The short answer is yes [because] looking at risk of re-offence, obviously a possession of child pornography offence would be of concern to me if I was trying to risk-manage him and keep him safe from children in the future. I don't know if it's a consideration for the Court at this type of hearing, but it would be something – the more types of offences, the more you have to try to control, the more types of offences that he might recidivate with. So it does increase the risk to some extent.
Q. And correct me if I'm wrong, my understanding has always been that the treatment is not identical for those types of offenders either. Is that right? So a hands-on offender would not have the same treatment as someone who's being treated for a child pornography offence, correct?
A. Right, and I think you're referring to a child pornography offence where someone has just downloaded child pornography, they haven't, as far as we know, committed a hands-on offence.
Q. Yes.
A. Yes, those two receive different treatment. And so Mr. B., I think, needs both." [Emphasis added]
144Dr. Pearce was asked if C.B.'s viewing of online child pornography in addition to being a hands-on offender gave rise to any additional concerns about future offending. Dr. Pearce advised that this is difficult to assess, but ultimately was of the view that this would increase C.B.'s risk:
"A. Well, this is an area of active debate amongst the sex offender treatment community. Some treatment providers view accessing child pornography, child images, as in terms of a harm-reduction approach. So if they can they have an attraction to children. If they can use those types of materials as an outlet so they don't actually go seek out a child, that would be a harm reduction approach much like we use methadone for treatment of patients who have opiate addiction, heroin addiction. The other camp says that any masturbating to child pornography or child images is going to increase the risk the person's going to seek out an actual, real-life victim and commit a hands-on offence, and I don't think the best approach is clear. That's probably an individual – it probably depends on the individual a lot. For some clients, that might be enough to look at child images. In other clients, that may compel them or push them towards hands-on offending. So with Mr. B. it sounds like he had some insight into the fact that maybe that did push him to either want to make his own pornography or to want to commit a hands-on offence. So I think for him, that type of activity is risky.
Q. And certainly would you say, based on your evaluation of him, if he was to be viewing child pornography, for instance, in the community, what would that do his risk?
A. I think in his circumstance it's probably – it's hard to know for sure, but probably increase it."
145Dr. Pearce fully describes (in both his report and his testimony) the risk assessment tools that were utilized in assessing C.B. These tools look at static historical information for the person being assessed. They give "a risk assessment of future offence based upon a similarly-scoring accused whose risk over time is known". Where there is no prior criminal history for similar offences, the results are lower. Clinical risk factors are also considered in attempting to predict future risk. With C.B., Dr. Pearce used the three actuarial tools which are "among the best actuarial methods of risk assessment". None of these tools predict the risk of future possession of child pornography images (no tool for this exists, so risk assessment for this aspect is done clinically). Only the results and the explanation of what they mean for risk assessment will be described here.
146A psychopathy checklist, the PCL-SV (which is a screening version of the PCL-R) was used. C.B.'s score placed him at the 7th percentile. This is a low score and falls far short of that required to diagnose psychopathy. The scoring on this test includes looking at some anti-social factors, such as a criminal record, which are absent in C.B.'s case. Dr. Pearce explained that C.B. is not "a criminally-inclined man…except for the sexual offending, which in this case has been very significant".
147On the Sex Offence Risk Appraisal Guide (SORAG), C.B. had results that suggest, "a low to moderate risk of future violent (including sexual) recidivism." Those with similar scores recidivated at a rate of 39% over 10 years of opportunity. On the SORAG, recidivism is defined as being charged with a new violent offence, which could be anything from a minor assault to a sexual assault or a murder. Dr. Pearce could not recall if it also includes offences such as Threatening Death or Bodily Harm. Dr. Pearce did not know how much lower the 39% recidivism rate would be if the offences were limited to those where death, injury of severe psychological damage was inflicted on the victim.
148On the Static-99R, an actuarial risk instrument "best validated to predict the likelihood of future sexual offence", C.B. had a "moderate to high score. Similar scoring individuals recidivated sexually at a rate of between 18% and 30% over 10 years of opportunity". This recidivism refers to a conviction for any sexual offence, regardless of whether or not there was any serious injury or lasting trauma to the victim. It includes offences ranging from exhibitionism to aggravated sexual assault. Dr. Pearce could not say how much the recidivism rate would drop if the low end sexual offences were removed from consideration. Dr. Pearce explained that C.B.'s "moderate to high risk" score on the Static-99R was driven by his age and the number of charges he is facing in the current set of offences.
149Dr. Pearce based his opinion of C.B.'s future risk to re-offend on a "conglomeration" of all of the different test results combined with clinical risk factors. In concluding that C.B. is at "moderate" risk to reoffend, Dr. Pearce explained that:
"Overall and taking into account clinical factors relevant in this case, and being mindful that cognitive distortions likely do not impact upon future risk, I would conclude that C.B. is at moderate risk of future "hands on" sexual offence. I have not spoken to the potential for purely violent offence, even though the SORAG helps predict same, given that there is no known history of such behaviour.
In addition to speaking to the probability of recidivism, risk assessment also entails addressing issues of imminence, frequency, and severity of re-offence. In these domains, we are left with clinical judgment alone. In my opinion all are "live" variables, given this gentleman's pattern of offending. That is, C.B. has offended over a several-year period against related and non-related male and female victims. His offences against his niece were very severe, in my experience, given the nature of their activity as well as his videotaping of the encounters. Given this gentleman's age and diagnosis, there is, in my opinion, the potential for him to commit another serious sexual offence should he have access to a possible victim." [Emphasis added]
150In summarizing his conclusions about C.B.'s future risk, Dr. Pearce thought it was important to include in his report that C.B.'s "cognitive distortions likely do not impact upon future risk". He would normally not include that in a report, but Dr. Pearce testified that he felt it was important to put it in because C.B.'s cognitive distortions are so extreme. Dr. Pearce explained that, "although they're so extreme, that may not translate into risk".
151Dr. Pearce agreed that the clinical risk assessment of C.B. is important because in spite of him having no prior criminal history of similar offences, factors such as the nature and quantity of the sexual acts, the fact that it went on over a number of years, the fact that there were multiple victims, can all be considered, which might not be reflected in the scores on the actuarial tests. In explaining his conclusions that C.B. is a "moderate risk to re-offend" by committing another sexual offence, and that he presents with a "significant risk of sexual recidivism", Dr. Pearce testified that:
"A. So he's not in the highest-risk category in which we would be extremely concerned about sexual re-offence, but he's in a moderate risk category. So he's missing some risk factors that could elevate his risk like a substance abuse disorder, like a clear personality disorder, those kinds of things, but a moderate risk is of concern and speaks to the fact that he needs to be monitored closely in the future to prevent re-offence.
A. …when I say moderate, if I take a look at a hundred sexual offenders who have been convicted of a sexual crime it's helpful to place the accused somewhere on that spectrum, right? So one end of the spectrum is very low-risk offenders, those people that are older, maybe have had only one victim ever, don't have pedophilia compared to the high-risk offenders who are very psychopathic, antisocial, criminally inclined, sex offenders with multiple victims. And so he's somewhere in the middle, if you want to put it that way. He's – you know, half would be low risk of him and half would be a higher risk than him. It's less of concern. So, you know, the first third of that group, the lowest-risk third, they'd be the easiest ones to manage and reduce their risk and the other two-thirds would be more of a challenge with the top third being the most challenging and he would be sort of in the middle of – in the middle of that spectrum." [Emphasis added]
152In his testimony, Dr. Pearce clarified that his conclusions about risk assessment are done as though C.B. were to be released on the date the assessment is done; as if he were to be released back into the community without any monitoring/supervision or treatment. Dr. Pearce advised the Court that C.B.'s time spent in pre-trial custody did not have any impact on his conclusions about risk assessment, because C.B. has not had access to "robust or proper treatment" yet. Dr. Pearce was quite firm in his opinion that the deterrent effect of 15 months in pre-trial custody would not influence his conclusions about C.B.'s risk assessment. Dr. Pearce in fact added that if C.B. were to be released into the community prior to any treatment being completed institutionally, that it could in fact be "risk-enhancing". The risk assessment for C.B. might be modified/impacted in the future once treatment has taken place, depending on what setting he is placed in, et cetera. A lot of emphasis in treatment would have to be directed at addressing C.B.'s cognitive distortions. In Cross-Examination Dr. Pearce was asked about risk assessment assuming that treatment does take place in the future. His evidence was as follows:
"Q. If Mr. B. were to basically spend perhaps the next five, six, seven years or longer in a penitentiary setting, would that impact, and if so how, upon your risk assessment of Mr. B. being released into the community after such a lengthy period?
A. So just that time alone wouldn't help much because he'd still be in his thirties, so we're not going to get any dramatic age reductions, maybe very slight, but it would depend on that time, what he does with that time in terms of if he can participate in treatment and benefit from treatment during that time, then that would make his risk lower when he's going to be released from custody.
Q. All right.
A. It's hard to quantify that, but it would help make his risk lower, to some extent anyways.
Q. All right. And in terms of the treatment that you expect to be available to Mr. B., is it fair to say that a lot of emphasis in that treatment would be directed at addressing these cognitive distortions?
A. Yes.
Q. And do you have an opinion in terms of the effectiveness of this kind of treatment on addressing cognitive distortions?
A. It's hard to say. I think, generally speaking, there is some attenuation of the cognitive distortions with treatment, but it's individual and I don't know what it would be in this case."
153In his report Dr. Pearce also specifically addresses whether C.B. meets the criteria for a Dangerous Offender Designation. His conclusions on this point are:
"In attempting to provide an opinion on this gentleman's suitability for a Dangerous Offender designation, it is important to state at the outset that the considerations below are from a purely psychiatric perspective. They may or may not overlap with the legal test and requirements that Your Honour is charged with deciding.
Taking into account Section 753 of the Code, it appears that this gentleman could be declared a Dangerous Offender is if he is found to fall within any of the aforenoted sections [the subsections of s. 753]. Of note, I typically do not offer an opinion on the issue of brutality as this is not an empirically determined or measured construct; thus it is not clear if my expertise in this area would be of any assistance to Your Honour. In addition, I am not sure if C.B.'s actions would be considered "aggressive" behaviour although if this is the case, it is my opinion that he has displayed indifference to the reasonably foreseeable consequences of his actions. That is, he is well-educated and he would, in all likelihood, have been aware of the possible repercussions of his assaultive behaviour. Notwithstanding same, he victimized different children on numerous occasions over the span of several years.
Overall and given the results of the PCL:SV, SORAG and Static-99R, it is my opinion that C.B. is at moderate risk to re-offend sexually, absent significant intervention and/or monitoring. In my opinion he has demonstrated a repetitive pattern of behaviour with respect to his conduct with his victims. That is, he has repeatedly sexually assaulted his niece and he "groomed" other children to satisfy his needs. He has failed to restrain himself from acting in such a fashion. His exploitive behaviour has likely caused, and could quite easily cause physical injury and/or severe psychological damage to his victims.
Finally, C.B. has shown an inability to control his sexual impulses. However, given that he is at moderate risk of re-offence, it is not clear if there is a likelihood of re-offence, though certainly there is a good chance of future victimization.
Overall, given the aforenoted considerations and from a purely psychiatric perspective, it is my opinion that the statutory test for Dangerous Offender designation, as articulated in the Criminal Code, is met. Issues related to the suitability for a Long-Term Supervision Order will be discussed below." [Emphasis added]
154Dr. Pearce clarified his opinion about the "likelihood" of C.B. re-offending in Examination-in-Chief as follows:
"A. I think there's a significant chance of re-offence if he's released today without treatment. I think it's primarily driven by his deviant interest, but the cognitive distortions are certainly complicating the matter. For example, him thinking that he can have children and I think he also spoke about moving out to British Columbia or something of the sort where he would have – be a stranger, be isolated, I think that's risky as well. It's helpful for him to have reasonable support. He's going to need a lot of help to cope with his problem, and it's not having help in the past is what drove his offending to some extent as well. So he's going to need a lot of assistance to not re-offend, I think.
Q. And at this point it would appear from some of his comments to you, would you agree with me, he doesn't seem to grasp that as of today?
A. I don't know about today, but when I met with him last summer...
Q. Fair enough.
A. ...at least, he had a very poor understanding of his offence cycle and future risk to the point that I was actually surprised given his education.
Q. What do you mean?
A. Well, I just – I mean, just he has a degree in psychology and he's, you know, seemingly a smart man, but, I mean, the fact that he made all these different comments to me and his gross unappreciation of his condition were very concerning in terms of future risk and I do hope that that can be treated and amended, but I was very shocked." [Emphasis added]
155In Cross-Examination Dr. Pearce was asked to clarify further the statement in his report that "it is not clear if there is a likelihood of re-offence". He testified as follows:
"Q. And Doctor, if I can direct your attention to page 26 of your report …it would be the second full paragraph…in that paragraph, second sentence, you indicate, "However, given that he is at a moderate risk of re-offence it is not clear if there is a likelihood of re-offence, though certainly there is a good chance of future victimization." When you indicate as part of that sentence that "it is not clear if there is a likelihood of re-offence", what specifically do you mean?
A. I mean a 51 percent chance or more of re-offence.
Q. And when you consider re-offence, what do you have in mind as sort of your operational definition for the purposes of that sentence, of what constitutes a re-offence?
A. For him it would be a hands-on sexual assault. It could possibly be very egregious in nature.
Q. And I think you make this clear in other parts of your report, it's not part of your operational definition of re-offence for the purposes of that part of your report of simple possession of child pornography, correct?
A. Right. I decide largely to not speak to that issue just [because] I didn't know if it was relevant to the test at hand."
156In his report, Dr. Pearce also addresses C.B.'s suitability for a Long-Term Supervision Order (LTSO). He specifically deals with the issue of "whether there may be, with the passage of time and/or treatment, a "reasonable expectation" of eventual control of the accused's risk in the community". The doctor explains,
"From a psychiatric perspective, whether he would be suitable for a LTSO hinges on whether he can be considered treatable and whether such treatment could be effective to the point that his risk could be managed within the community both while under supervision (and subject to the LTSO) and after the expiry of such an Order."
157With respect to diagnosis and prognosis, Dr. Pearce wrote the following in his report:
"First and foremost, one needs to know what the likelihood of response to treatment and/or supervision is for any given diagnosis. Once this is established, one can then look to the individual to see whether there is any reason to be more or less optimistic regarding that specific individual's likelihood of benefiting from treatment and/or supervision in a manner that reduces recidivism.
C.B.'s relevant diagnosis is his deviant sexual preference (pedohebephilia).
In this regard, he had very limited insight into his future risk to children though he has not yet participated in any treatment. Given his generally pro-social stance, his PCL:SV score and his intellectual abilities, I expect that he will participate in treatment and benefit from same. He must come to realize that he cannot, ever, be left alone with a child. He cannot father children and it is unreasonable to expect that he will be able to control his sexual impulses without anti-libidinal medication. He was ultimately agreeable to considering this medication, and he will require same when he eventually has access to the community, to manage his risk. While I would not expect his sexual preferences to change at any point, though his libido may be reduced with the passage of time, his deviant urges can likely be managed with potent sex-drive reducing medication.
In conclusion, in considering the aforenoted factors, there are some reasons for optimism regarding the likelihood of treating or managing C.B.'s relevant diagnosis."
158Dr. Pearce's report also indicates that although C.B. has not participated in treatment, his is amenable to it, and that his current motivation for treatment suggests reasons for optimism. With respect to his response to supervision, Dr. Pearce advises that most likely C.B. will abide by terms placed upon him. Dr. Pearce also concluded that C.B. has positive employment prospects, however, he is likely to be socially isolated upon his release from custody, which is "of concern". With respect to his suitability for a LTSO, Dr. Pearce concludes in his report that:
"In summary and considering the aforenoted factors, there are some reasons for optimism that this gentleman will be manageable in the community while subject to a LTSO and after the expiry of such an Order. In my opinion and from a purely psychiatric perspective, there appears to be a reasonable expectation of eventual control of C.B.'s risk in the community."
159With respect to the harm potentially caused to future victims of C.B., Dr. Pearce looked to his prior offending. This included the fact that C.B.'s prior sexual offences involved physical penetration as well as other sexual activities. Dr. Pearce added that, "I think the videotaping of victims adds a whole other layer of a complexity in trauma to the victims, given that's something that can never be resolved or taken away" for those victims who are aware that it was videotaped. Dr. Pearce expressed the opinion that if C.B. did re-offend, serious physical or severe psychological harm is very likely and that it is "very likely it could be extremely traumatic for any potential victims". When talking about future risk in this case, Dr. Pearce agreed that it includes his "appreciation of how damaging the abuse of a child could or likely would be to that child for many years to come". With respect to the harm done to the children in this case, Dr. Pearce testified that:
"Q. And of course there's certainly ample reason to believe that children abused in the fashion that Mr. B. abused them, particularly M.M., she would be placed at risk in terms of substance abuse issues in the future, I take it?
A. Yes.
Q. Lifestyle choices and whether or not there might be an unhealthy degree of, shall we say, promiscuity, for instance, or her attitude towards sexual relations will not be normal or healthy ultimately?
A. Yes, that's a risk.
Q. And indeed, just general self-esteem may be undermined for many, many years to come?
A. Yes.
Q. Suicide is also a risk?
A. Those are all correlates.
Q. All right. Is it fair to say that the long-term consequences I've just addressed, that wouldn't strike you as something that would be common sense to the average person necessarily?
A. Maybe not at first glance. They'd have to think more about it and probably talk to survivors or people who have worked with those clients.
Q. And as part of the treatment that Mr. B. will likely receive in the penitentiary, being alerted to those specific risks, would that form part of the information he's given in terms of the consequences of his behaviour on his victims?
A. Yes."
160Dr. Pearce also testified about the types of treatment that C.B. requires in the future and over what time frame he would require that treatment. Firstly, there are biological treatments that are medication-based treatments for sex offending which are akin to chemical castration. These are very powerful medications that stop the body from producing testosterone, which is linked to arousal, libido and sexual interest. It takes a few months to start on that treatment. Dr. Pearce indicated that taking this medication would be a very important part of risk management for C.B. Dr. Pearce recommends that this commence when C.B. is getting close to having access to the community as he is approaching his release from custody. There are side effects and potential complications to this medication. Dr. Pearce was of the opinion that this medication is, "In reality, probably… the most effective treatment for preventing sexual re-offence (Emphasis added)." This medication should commence when C.B. is being released into the community and continue until he is in his mid-sixties if not longer. When men enter their forties, fifties and sixties there is a gradual drop in testosterone, libido/sexual interest over time. Dr. Pearce indicated that statistics who that there is a very small number of sexual offenders who offend in their sixties, although there are some. There is a very dramatic drop in risk in their sixties. The situation would have to be assessed with C.B.'s treatment provider to assess how well he is tolerating the medication, the risks of discontinuing it, etc. Forensic psychiatrists who work with these clients try to drop the risk of re-offence close to zero. When asked if C.B. should be monitored until he is in his sixties, Dr. Pearce advised:
"A. I think that's the best case scenario. Typically, we don't have that obviously because that's a very long period of time, but what the hope is, is that during the long-term supervision order period of time and during the period of incarceration, that accused gains skills and learns to manage their risk on their own. And so the external controls of risk are no longer needed, hopefully, by the expiry of the long-term supervision order. That's in an ideal case."
161Secondly, C.B. also requires talk-based or psychotherapy-based treatments for sex offending. Dr. Pearce is of the view that C.B. needs "high intensity sexual offender treatment programming" (Emphasis added). This takes a "couple of years" because C.B. must be assessed, put in the right institution, be wait-listed, and then the programming itself is of several months' duration. That is the initial phase of the sexual offender treatment. When he is getting close to being released from custody C.B. should receive follow-up or "booster" programming to reinforce what he has learned. He will have to continue working on this on an ongoing basis. Dr. Pearce testified that, "You can't just complete treatment and never need it again, you have to be reminded what treatment taught you and receive refreshers on it. This programming would ideally occur simultaneously with C.B.'s transition into the community.
162Dr. Pearce testified that he hopes that Correctional Service Canada (CSC) offers C.B. a "high intensity sexual offender treatment program". He believed that C.B. would probably benefit from this type of programming because "he is open, can engage and he's seemingly intelligent". C.B. told Dr. Pearce that he is agreeable to participating in these programs. From his experience, Dr. Pearce believed that this type of programming would focus on different areas such as,
"A. ...For example, victim empathy, cognitive distortions, accepting responsibility for offences and so forth, and then I would hope that similar programming, although probably not as intense, could be restarted or happen again as he's about to access the community or as he's having access to the community just to bolster the effects of those institutional programs."
163Dr. Pearce testified that when the issue of medication was first raised, initially C.B. was quite opposed to taking it as a means of risk management. C.B. was searching for another way to deal with his problem. But after discussing it a bit further with the doctor, C.B. came around a bit to the idea that it might help him. Dr. Pearce gave him quite a bit of information about the medication including the benefits and possible side effects. Dr. Pearce advised C.B. of the following information:
"A. And so in terms of the side effect discussion I say that for the majority of patients these medications are well tolerated and there's very few side effects. However, there may be some minor side effects that can happen such as flushing, some discomfort at the injection site and then the more serious side effects are long-term side effects that we need to monitor for such as osteoporosis, there can be a very rare side effect of clots forming and problems with insulin use to the point of that patients can develop diabetes or start to develop diabetes because of the medications. Weight gain as well.
Q. And I take it while it's not a side effect, it would have been part of your conversation that Mr. B.'s attraction to adult females would also be significantly diminished by this medication? It's nonspecific in terms of what part of your libido is diminished given what you're starting with?
A. That's right. So it's a nonspecific reduction in sexual interest and that was – I think I probably portrayed it as one of the benefits of the medication for him in that his attraction to children would sort of fall by the wayside and the majority of these clients, prescribed medication, sex isn't as – no longer at the forefront of their minds. It's sort of an afterthought, it's not – like it's off the table almost, and they know about it and they would still have – they would say, "Well, I'm still attracted to this or that", but they just don't think about sex much or have much desire for it. It's quite an interesting phenomenon with the medication, and that's what we're going for. So the drive to offend then is taken away."
164When asked about the likelihood of re-offence and his attitudes towards treatment, C.B. told Dr. Pearce the following during their interview:
"C.B. opined that he presents no risk of re-offence. When asked what treatment he requires, he replied, "People to talk to, to not be alone with my problems". When asked if he would benefit from libido-reducing medication, he stated, "I don't see medication helping me". He was then educated about such medication, in terms of the risk/benefit profile. He stated, "I don't like that idea, because I like being a person. I like being attracted to women, I like being normal". When asked if he would consider anti-libidinal medication, he replied, "I don't know. I don't know what my future holds. I controlled it for 16 years, I just didn't control it for five years". He agreed that several children suffered as a result. When asked again if he would consider such medication, he stated, "I know I wouldn't hurt anybody… Isn't there any other way to control it?" When it was suggested to C.B. that there is some risk of re-offence, he was not willing to accept this possibility. He stated, "I want my life back. I want a chance to be a good person and do some good in the world. I'll do whatever it takes. I would absolutely consider the medication". He wondered whether he could safely parent, if prescribed libido-reducing medication." [Emphasis added]
165When asked how it impacts future risk if someone like C.B. appears not to be prepared to take the medication Dr. Pearce testified that:
"A. Well, it can be quite important in terms of future risk considerations, and I think sort of towards the end of our discussion he said, "No, I would..." - you know, "I'll do whatever it takes, I would absolutely consider the medication." He did say that, but, you know, if he had remained steadfast in his views that he does not need medication, that he'll never take medication, if he was more outspoken about that then that can really dramatically impact his risk. So in these assessments I try to look at risk of re-offence while they're in custody, which in this case is not an issue, but often I have to look at that because of violent offending, for example.
A. Then I have to look at, do I think the risk is manageable during the up to ten-year long-term supervision order, and then I have to look at, try to look at, you know, are they going to present a risk to others after the expiry of that supervision order? And so if Mr. B. were to say and be consistent about the fact that he's absolutely never going to take this medication no matter what as long as he lives then I'd be much more reluctant about his prognosis, I'd be much more guarded about his prognosis because, I mean, say for example he does get a ten year – I'm just – I heard the discussions earlier, so just say he does get a ten-year custodial disposition. Then he's in the community in his early forties and potentially off a long-term supervision order in his early fifties and that leaves me concerned that he's not at all open to managing his risk after that point because he may still need the medication, as I said, until his sixties.
A. So he needs to gain some insight into that and look at the fact that the medication is actually there to help him. You know, I don't think Mr. B. wants to be in custody, I don't think he wants to be hurting others for the most part. He's not a criminally-inclined man, but he needs to get a real grasp on his risk of re-offence and have an understanding of how to manage that, and the medication is there to help him while helping others as well. So I don't think he sees it that way and I hope that changes with treatment." [Emphasis added]
166As indicated, at the time of the interview, C.B. held views that there was no possibility of him re-offending. Dr. Pearce was hopeful that through reading the report, interacting with treatment providers and going through the court process, that C.B. would come to realize that, "there's always going to be a risk no matter what he does". It was Dr. Pearce's opinion that even if C.B. is on medication there will still be a risk. Dr. Pearce described it as C.B.'s "job going forward" to "aggressively get treatment" and follow the advice of professionals. C.B. must "minimize his risk as close to zero as can be accomplished". Dr. Pearce was strongly of the view that the best way to do this is for C.B. to take medication when he is living back in the community after being released from custody.
167Dr. Pearce was asked what impact it would have if C.B. maintained his views that he is not at risk to re-offend, Dr. Pearce testified:
"Q. And would you agree, Dr. Pearce, that if he maintains the position that there is no risk of re-offence, for instance, that he is not someone that has any risk of re-offence, that's more likely to feed a conclusion of someone that they don't need the medication as well, is it not?
A. Yes, and it imparts a negative prognosis if that were to be the case. If he were to say – for example, stick his head in the sand, if you want to use that analogy...
Q. Yes.
A. ...over the next X number of years in custody, deny his offences, rationalize them, say that the children initiated them, these kind of things, that he wasn't really harming them that much, they weren't victims, these kind of cognitive distortions, then his risk of re-offence will be elevated by the time of his – by the time he's released to the community.
Q. And those rationalizations you've just described are all ones that, at this point, he's said to you?
A. Yes, or to others."
168In Re-Examination, Dr. Pearce testified that in this case, some supervision of C.B. into his sixties would be the "ultimate" in terms of achieving protection of the public and risk reduction. It would be "the most efficacious way to reduce his risk as close to zero as it can get". He did acknowledge, however, that this would be very long period of supervision.
Dr. Pearce's Evidence Concerning Recommended Conditions
169In his report, Dr. Pearce set out a recommended list of structures and conditions that should be implemented by Correctional Service Canada once C.B. is placed in the community. They appear at pages 28 and 29 as follows:
"1. C.B. should complete sexual offender treatment programming during a period of incarceration. He should be referred for longitudinally-based, "booster" programming once he returns to the community, to bolster the effects of institutional programs.
C.B. should be assessed by a psychiatrist and prescribed Lupron prior to being released from custody. Should he not agree to same, his community reintegration should be much more gradual and he will require very close supervision to avoid re-offence (either a "hands on" offence or a possession of child pornography offence).
C.B. should be cautious in his use of alcohol and/or drugs, as these could lead to disinhibition and could increase the risk of re-offence.
C.B.'s whereabouts when outside a correctional facility should be subject to verification initially on a regular basis and parole officers should make regular, unannounced visits should he reside independently. C.B. should have no contact or access to persons under the age of 16.
C.B. should not be in possession of a weapon.
C.B. should continue with his schooling and/or pursue gainful employment. He should be supported and assisted in that regard.
Depending upon when C.B. is released from custody, it may be worthwhile for him and his mother to engage in family therapy, as she could be an important source of support for him one day. This could ultimately reduce the risk of re-offence.
C.B.'s future partners should be contacted by CSC officials and they should be made fully aware of his history. They should be instructed to notify the authorities if any concerns arise with respect to C.B.'s actions in the community."
170With respect to condition 7, Dr. Pearce agreed in Cross-Examination that it would be to C.B.'s benefit regarding his rehabilitation if his mother, G.B., were in a position in the future to support him emotionally and intellectually. He also agreed, however, that if M.M. continues to live with her grandmother, G.B., that any contact between C.B. and his mother has the potential of re-victimizing M.M. There is a risk of contamination of messages, regarding what is passed between them. The issue is very complex and it poses a significant dilemma in balancing what might be in C.B.'s best interests as opposed to the protection of M.M. as a victim. Dr. Pearce advised the Court that he does not have any information about M.M.'s psychological or psychiatric health, where she is on the therapeutic journey, or what psychological effect it could have on her "to even have a hint of a mention of C.B.".
Other Evidence
171Exhibit 1 on the Sentencing Hearing is the criminal record for C.B. It is a conviction for a non-cognate matter, the offence of Dangerous Driving. He was convicted in Oshawa on June 6, 2007 and received a fine of $1500.00 and a 2 year driving prohibition order. He has no other record.
172Exhibit 8 is a letter and records received from the Central East Correctional Centre (C.E.C.C.) in Lindsay in relation to C.B. The letter includes information regarding unit lock downs, and the reasons as well as the number of days that C.B. was housed in segregation. C.B. was admitted to C.E.C.C. on November 5, 2014. As of February 9, 2016, C.B. had been incarcerated for 462 days (as of April 14, 2016 it will be 529 days). In that time frame C.B.'s unit was locked down for less than 5 hours on 136 occasions. On 28 occasions the unit was locked down for 5 hours or more. The total lockdown period was 624 hours, which at 8 hours per day, is equal to 78 days. C.B. was triple-bunked for a total of 17 days (over two separate occasions). C.B. spent a total of 115 days, on two separate occasions, in segregation. The first occasion was following C.B.'s attempted suicide. The second occasion was at C.B.'s request for his own safety. Although initially the Defence were seeking enhanced credit in excess of 1.5:1 for pre-sentence custody to reflect lock-downs and segregation, the Defence later conceded that the Criminal Code and caselaw do not permit to Court to grant any credit greater than 1.5:1: see R. v. Summers, 2014 SCC 26, [2014] S.C.J. No. 26 (S.C.C.).
173C.B. was given an opportunity to speak at the sentencing hearing. He stated the following:
"C.B: Well, I'd just like to say that I really never meant to hurt anybody. I don't understand how I was able to ignore the long-term consequences of my actions and completely ignore the hurt that would be caused down the road. I – Dr. Pearce mentions how adamant I am about how I'm not going to re-offend in the future, and that's not a cognitive distortion on my part, it's a promise to myself because I do understand the risks that I pose to the community 'cause they're rooted in the struggles and the challenges that I've fought with my entire life. And I fought them for 16 years by myself, and I'm not by myself now. Now I can reach out for help and I don't have to be afraid anymore and I'm not going to be alone going forward. So I'm not going to let anything like this happen again. That's why I'm so adamant about that. Thank you, Your Honour.
THE COURT: Thank you, Mr. B."
174On February 10, 2016, Cathy Phillips, a Parole Officer Supervisor with Correctional Service of Canada (CSC) testified to inform the Court about available programs in the penitentiary system. Her Curriculum Vitae is Exhibit 12. Information about the Integrated Correctional Program Model is Exhibit 13. The Community Supervision Information Package is Exhibit 14.
175Ms. Phillips testified about the processes that will take place once C.B. is sentenced. She described the intake assessment which will take place at the Joyceville Assessment Unit and the development of a correctional plan for C.B. They will examine his static and dynamic risk factors. They will also utilize a tool called the Statistical Information on Recidivism. Ms. Phillips testified that whether or not the Court determines that C.B. is a Dangerous Offender, it will not impact the initial assessment at Joyceville. A variety of assessments will take place to determine what level of programming C.B. requires.
176Ms. Phillips advised the Court that the old cadre of programs is no longer available, as CSC now offers the Integrated Correctional Program Model, which includes sex offender treatment options. For sex offenders the primer program is 11 group sessions long. Exhibit 13, the Integrated Correctional Program Model, at pages 15 to 18 details the High Intensity Sex Offender Program. It is limited to 12 participants. This program consists of five modules which includes 104 sessions of 2 to 2.5 hours each, as well as six individual sessions. This program was implemented across Canada in June of 2015, so there is currently a wait-list of months before an offender can be admitted to it. This wait-list is expected to be reduced over time. Later in his sentence, an offender would complete the sex offender stream of the Institutional Maintenance Program and then the Community Maintenance Program, while on parole/conditional release. An alternative to the high intensity program is the Moderate Intensity Sex Offender Program which has 10 participants in each group and has 54 group sessions and 5 individual sessions. These programs are offered at all institutions. At intake, CSC would determine whether or not C.B. needs the moderate or high intensity program based on consultation with the case management team and the programs department.
177Ms. Phillips testified that an offender is eligible for day parole at one-sixth of their sentence, full parole at one-third, and statutory/mandatory release at two-thirds of their sentence. Day parole and full parole have to be earned by an offender. Ms. Phillips was of the view that C.B. would not earn parole unless he was committed to a treatment plan.
178Eleven months prior to their statutory release, a detention review is completed in every case. in C.B.'s case, the decision at the detention review would be premised on his firm commitment to rehabilitation and participation in programs. Where there is an offence, such as in C.B.'s case, of a sexual offence against a child, it can be determined by the Parole Board of Canada that he should be held until the end of his warrant expiry date, after which there would be no community supervision. This is unless a LTSO is in place, in which case there is community supervision following release for the length of time of the LTSO. CSC is responsible for the supervision of LTSO's even though it is no longer a custodial sentence. The frequency of contact between the supervisor and the offender might be more frequent on a LTSO, but otherwise there is no difference between the supervision of a regular offender and a person subject to a LTSO.
179For offenders on a LTSO, a residency condition can be imposed by CSC. This would require the offender to reside at a specific place, usually a Correctional Residential Facility or a Community Correctional Centre. Most high risk or long-term offenders end up at one of the Community Correctional Centres in Ontario, either at the Keele Community Correctional Centre in Toronto or the Henry Trail Community Correctional Centre in Kingston. These are considered to be low-security facilities, with no guards. The Keele Centre is a 40-bed institution. As of the date of Ms. Phillips' testimony, that location had 18 long-term offenders. That facility has 4 parole officers, one parole supervisor, and one reintegration worker who is on-site providing some dynamic security and to assist offenders with their needs. There is also a Commissionaire on site to act a basic security to sign the offenders in and out, do head counts and report unusual behaviour (for example, reporting an offender for being under the influence of alcohol if there is a no alcohol condition).
180Where an offender has been placed on a LTSO by the courts, the Parole Board decides what special conditions will be imposed. This is based on recommendations made by CSC prior to the offender's release, which will outline a plan as to how to manage risk. Any recommendations made by the Court will be taken into consideration, but are not binding and may not be put in place by the Parole Board as a condition on the offender's release. In recommending conditions, CSC takes into consideration a number of things including whether the condition can be monitored, whether the condition is directly related to risk, whether the conditions are consistent with one another, and whether the condition is clearly worded, so that it can be proven if a violation has occurred.
181Ms. Phillips testified that in C.B.'s case, CSC would include a condition that he not be with children. In her evidence she explained that there may or may not be a treatment term for C.B. once he is released into the community. If counselling was ordered and he refused to take it, it would be breach. Special conditions have to be directly linked to the offence, so CSC would have to assess whether there needs to be a no alcohol/drugs term for C.B. If such a condition were in place, the offender would be monitored through random urinalysis. Ms. Phillips also testified about what occurs if there is a breach of a condition by an offender.
182With respect to whether C.B. would receive sex-drive reduction medication (as recommended by Dr. Pearce) while in the community, Ms. Phillips explained as follows:
"Q. The second condition in Dr. Pearce's report, and he spoke about it quite a bit yesterday in his evidence as well, is the taking of Lupron, and I know you're familiar with that term with respect to sex offenders, is that right?
A. Yes.
Q. And ideally, Dr. Pearce talked about Lupron being started before he goes into the community. Do you know if that's the way Correctional Services Canada addresses the matter?
A. A request can be made for him to go on Lupron in the institution. Whether or not it will happen, I'm not sure in terms of their processes. I have been involved in processes where offenders come out to the community and go on Lupron and it tends to be a lengthy process because there's a lot of tests that need to be conducted beforehand. So it could take several months for somebody to actually - from the time of release to the time he gets on Lupron.
Q. And I think that's what Dr. Pearce was thinking in his evidence yesterday was that that process begin before he's released into the community so that – not years prior, but a few months prior so that when he does enter the community, if he's on a long-term supervision order the Lupron would already be in place.
A. Yes, that would be ideal.
Q. And is the taking of Lupron something that can be ordered by the Parole Board or how is that wording normally addressed? Because I'm sure it's a fairly common term wanted by psychiatrists and courts with respect to sex offenders in particular.
A. Well, we can't force medication. So what you will see is a condition for the offender to participate in a psychiatric assessment and follow the treatment recommendations. That treatment recommendation may be that he go on sex drive reduction medication such as Lupron, and then if the offender fails to take the Lupron then we would have to assess what our next course of action may be. For some offenders, it could be a health-related reason that they don't take the Lupron, so we'd have to look at the whole situation as a whole.
Q. Okay, but that's the way it would be handled in terms of your experience on long-term supervision orders?
A. Yes."
183With respect to Dr. Pearce's recommendation that C.B. and his mother engage in family therapy, Ms. Phillips testified that CSC does not normally provide counselling for an offender and his family. Outside counselling would have to be sought for that.
184Regarding the term recommended by Dr. Pearce that C.B.'s future partners should be contacted by CSC officials, Ms. Phillips testified that there would normally be a condition with respect to disclosing any relationships. She advised that CSC would be obligated to meet that person and advised them of his criminal history. If he was in a relationship with someone who has children, Ms. Phillips could foresee a condition for him not be in the presence of children unless there was a responsible adult (as designated by CSC) present. CSC could prevent C.B. from going into that person's home or having contact with their children. The situation would be assessed to determine whether or not the risk is manageable.
THE LAW WITH RESPECT TO DANGEROUS AND LONG-TERM OFFENDERS
The Legislation
185Sections 753 and 753.1 of the Criminal Code of Canada state, in part, as follows:
Application for Finding that an Offender is a Dangerous Offender
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.
Sentence Upon Finding that Offender is a Dangerous Offender
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.
When is a Sentence of Indeterminate Detention to be Imposed?
(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.
If Offender is Not Found to Be a Dangerous Offender
(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 which the offender has been convicted.
An Application for Finding that an Offender is a Long-Term Offender
753.1(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 re-offend; and
(c) there is a reasonable possibility of eventual control of the risk in the community.
Substantial Risk
753.1(2) The court shall be satisfied that there is a substantial risk that the offender will re-offend if
(a) the offender has been convicted of an offence under section 151 (sexual interference), 152 (invitation to sexual touching) …163.1(2) (making child pornography) …163.1(4) (possession of child pornography) …; 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 offence.
Sentence for Long-Term Offender
753.1(3) If the Court finds an offender to be a long-term offender, it shall
(a) impose a sentence for the offence for which the offender has been convicted, which must be a minimum punishment for a term of two years; and
(b) order that the offender be subject to long-term supervision for a period that does not exceed 10 years.
If Offender Not Found to Be a Long-Term Offender
753.1(6) If the court does not find an offender to be a long-term offender, the court shall impose a sentence for the offence for which the offender has been convicted.
[Emphasis added]
186If the statutory criteria are met under s. 753, the Court shall declare the offender a dangerous offender. The Court then has discretion as to which sentence shall be imposed. s. 753(4) and (4.1) provide for the sentencing option of a determinate sentence (with or without a long-term supervision order to follow) where there is a reasonable possibility of eventual control of the offender's risk in the community.
187I accept the Defence submissions that:
The general purpose of dangerous offender legislation is to protect society from a relatively small group of offenders who have exhibited a pattern of behaviour or conduct which is substantially or pathologically intractable, and who therefore represent an unacceptable risk to public safety in the future. Accordingly, a review of the relevant jurisprudence demonstrates clearly that the primary purpose of a dangerous offender proceeding is the "protection of the public". The overriding aim is not punishment but the prevention of future violence through the imposition (if necessary) of an indeterminate sentence.
Consequently, in making the determination as to whether an indeterminate sentence should be imposed, the law is clear that the Court must always give effect to this basic purpose. In 2008, the Court of Appeal for Ontario in Little clarified the approach to be followed when balancing the state and the offender's interests in the following manner:
…the overriding purpose of the dangerous and long-term offender regimes is the protection of the public. Thus, 'real world' resourcing limitations cannot be ignored or minimized where to do so would endanger public safety. The court is required on a dangerous offender application to balance the liberty interests of an accused with the risk to public safety that will arise on the release of the accused into the community. That balancing exercise is informed by this fundamental principle: in a contest between an individual offender's interest in invoking the long-term offender provisions of the Code and the protection of the public, the latter must prevail. [emphasis added]
There are three avenues to reach a finding that the offender is dangerous pursuant to section 753(1)(a) of the Code: pattern of repetitive behaviour; pattern of aggressive behaviour; and behaviour of a brutal nature. Proof of any single criteria is sufficient.
188The Crown is not seeking that C.B. be declared a Dangerous Offender on the basis of "a pattern of persistent aggressive behaviour" as defined in s. 753(1)(1)(ii).
Serious Personal Injury Offences
189The parties agree that the offences in this case meet the definition of "serious personal injury offences" as set out in s. 752 of the Code.
Pattern of Repetitive Behaviour
190Defence Counsel in his submissions correctly states the law with respect to what the criteria are for "a pattern of repetitive behaviour" to be proven:
The first avenue to a finding of dangerous offender status is provided for in section 753(1)(a)(i) of the Code. It requires a pattern of repetitive behaviour by the offender showing a failure to restrain his or her behaviour and a likelihood of causing death or injury, or inflicting severe psychological damage on other persons through a failure in the future to restrain his behaviour. The offence for which he has been convicted must form a part of the pattern.
A "pattern" is evident when a significant number of relevant similarities exist between each example considered. The mere existence of a history of criminal activity is insufficient to form a pattern. There must be some thread connecting prior incidents together that exhibits repetitive behaviour, showing a failure to restrain oneself, which causes injury and is likely to do so in the future.
The pattern may be established on the basis of one prior incident provided that it and the predicate offence(s) display elements of similarity. As the number of prior incidents increases, the degree of similarity required decreases. The offender's crimes must contain similarities with each other in order to create the pattern but there can still exist distinctive differences as long as the differences leave the key significant elements in place.
Likelihood of Future Harm
192The Defence submits in written argument that in order to prove that there is a "likelihood" of future harm that the Crown must establish beyond a reasonable doubt as follows:
The second component of subparagraph (i) is that the pattern must reveal a likelihood that the offender will cause death, injury or severe psychological damage to others through a failure to control his future behaviour.
While "likelihood" has been interpreted as being something less than certainty, there still must be a finding of the identified threat/danger to be probable. In Lyons, the Supreme Court stated that "an individual can be found to constitute a threat to society without insisting that this require the court to assert an ability to predict the future." In discussing the legitimacy of the use of psychiatric evidence as part of the Court's assessment of the requisite degree of future risk posed by the Offender before the Court, the Supreme Court clearly spoke of "likelihood" as synonymous with the term "likely" as can be found in paragraph 97 of that Lyons: "… psychiatric evidence is clearly relevant to the issue whether a person is likely to behave in a certain way ..."
193In R. v. Lyons, at paragraph 92, the Court gives important direction about "exactly what is and what is not required to be proved on such an application". The sections "require proof that the offender represents a threat of some sort to society. It is nowhere required that the offender will act in a certain way. Indeed, inherent in the notion of dangerousness is the risk, not the certainty, of harm". In R. v. Payne, Justice Hill accepts that the law before the legislative amendments interpreted "likelihood" to mean something other than "certainty or probability", and that the offender in that case could be described as a "substantial risk" of reoffence. At paragraph 108, Justice Hill continues:
In considering, within the meaning of paragraph 753(1), whether it has been established beyond a reasonable doubt that there is a present likelihood of inflicting future harm, an essential component of a dangerous offender finding, the court is entitled to consider matters of cure, treatment and control. In the long-term offender regime, by the statutory direction of paragraph 753.1(1)(c), the court is obliged to consider whether, despite the accused's substantial risk to re-offend, "there is a reasonable possibility of eventual control of the risk in the community". It appears then that where there is no reasonable possibility of eventual control of the accused's substantial risk of re-offence, the court must conclude the accused to be a dangerous offender.
194In deciding whether "likelihood" has been proven, the Supreme Court of Canada in R. v. Lyons confirmed that expert opinion evidence of psychiatrists is relevant to the Judge's assessment in determining the risk of re-offence and the possibility of controlling that risk in the community. It is important to note, however, that this determination is a legal question that is ultimately best left to the Judge and should not be abdicated to the expert witness. A sentencing Judge is obliged to reach his or her own conclusion about an offender's risk. The Court notes that:
In determining the likelihood of risk of reoffence and the possibility of controlling that risk in the community, it is relevant for the judge to take into account the expert opinion evidence of psychiatrists. That is not to say that the trial judge is bound to accept the opinion of one psychiatrist or the other, but rather that the expert evidence is relevant to the judge's inquiry, with determinations as to the weight and reliability of that evidence left to the judge. In this regard, the Supreme Court in Lyons referred with approval to the following "common sense observations":
I accept the submission that the evidence of a psychiatrist, psychologist, or criminologist is at times highly speculative and in certain instances a lay person is in as good a position to make a prediction as to future dangerousness. In the final say, the court, however, must be so satisfied and not the expert witnesses. That is not to say that the experts may not assist the court, especially as to whether the offender currently suffers from a psychological disorder, e.g. psychopathy, which may be relevant to the likelihood of future dangerous conduct.
[Emphasis added]
Behaviour of A Brutal Nature
200The Crown submits that C.B. also meets the criteria to be declared a Dangerous Offender pursuant to s. 753(1)(a)(iii) on the basis that his behaviour in the offences in this case is of such a "brutal nature" as to compel the conclusion that his "behaviour in the future is unlikely to be inhibited by normal standards of behavioural restraint". It is argued that in considering this sub-section, that the Court should look to not just the "hands-on" offences in this case, but also to the videotaping of the sexual violations of the victims.
201In R. v. Campbell, Justice Hill dismissed the application to have the brutality section declared unconstitutional. The section contemplates "behaviour of a significantly aggravated form". In R. v. Langevin, the Court held that, "conduct which is coarse, savage and cruel and which is capable of inflicting severe psychological damage on the victim is sufficiently 'brutal' to meet the test". Behaviour of "such a brutal nature" does not necessarily demand a situation of "stark horror".
The Type and Length of Sentence to Be Imposed
205I accept the Defence submission that, "under the current regime, if the accused satisfies the long-term offender criteria and there is a reasonable possibility that the harm could be reduced to an acceptable level under the long-term offender provisions, the proper sentence, under the current regime, is not an indeterminate period of detention, but, rather, a determinate period of detention followed by a long-term supervision order."
206The Crown and Defence agree that if there is a finding that C.B. is a Dangerous Offender, that in applying s. 753(4.1), that there is a reasonable possibility of eventual control of C.B.'s risk in the community, and that there is a reasonable expectation that a sentence other than an indeterminate sentence will adequately protect the public against the commission by C.B. of a serious personal injury offence. I agree with this position. The parties disagree, however, as to the appropriate range of the fixed portion of the sentence and as to whether a Long-Term Supervision Order is necessary.
207The maximum sentence for the offences here is 10 years. There is a minimum sentence of one year for those offences under s. 151 (Sexual Interference), 152 (Invitation to Sexual Touching, 163.1(2) (Make Child Pornography), and a minimum sentence of six months for s. 163.1(4) (Possession of Child Pornography).
CONCLUSIONS
225I wish to thank Ms. Barrett on behalf of the Crown and Mr. Fraser, on behalf of the Defence, for their excellent work in this very difficult case. Their written and oral submissions were of tremendous assistance to me.
226I do not accept that the Crown has proven beyond a reasonable doubt that C.B. meets the criteria for a Dangerous Offender as set out in s. 753(1)(a)(iii) for conduct of a "brutal nature". While the evidence in this case clearly establishes that any re-offending by C.B. could result in severe psychological damage to the victim, and there are many extremely disturbing aspects to C.B.'s conduct (in particular with respect to M.M.), I am of the view that C.B.'s conduct does not rise to the level that would be necessary to render it "coarse, savage and cruel". While the conduct might be very "cruel" it is not "brutal" as defined legally. It does not rise to the same level of brutality as described in the other cases that I was referred to. I am, however, very concerned based on the evidence, that C.B. is "unlikely to be inhibited by normal standards of behavioural restraint" should he remain untreated.
227I find that the Crown has proven beyond a reasonable doubt that C.B. meets the following criteria for a Dangerous Offender as set out in s. 753(1)(a)(ii):
the offences committed by C.B. in this case are serious personal injury offences;
C.B. constitutes a threat to the physical or mental well-being of other persons;
this threat is established on the basis of evidence establishing a pattern of repetitive behaviour by C.B. of which the offences for which he has been convicted forms a part, showing a failure to restrain his or her behaviour; and
there is a likelihood of C.B. causing injury to other persons, or inflicting severe psychological damage on other persons, through failure in the future to restrain his behaviour.
228I also find that the Crown has proven beyond a reasonable doubt that C.B. meets the following criteria for a Dangerous Offender as set out in s. 753(1)(b):
the offences committed by C.B. in this case are serious personal injury offences;
C.B. by his sexual conduct in these sexual offences for which he has been convicted, has shown a failure to control his sexual impulses; and
there is a likelihood that C.B. will cause injury, pain or other evil to other persons through failure in the future to control his sexual impulses.
229I accept the evidence of Dr. Pearce that C.B. has demonstrated a pattern of repetitive behaviour with respect to his conduct with his victims by repeatedly sexually assaulting his niece and "grooming" other children to satisfy his needs. He has failed to restrain himself from acting in such a fashion and has shown an inability to control his sexual impulses.
230It is absolutely clear to me that C.B. has caused physical injury and/or severe psychological damage to his victims and would continue to do so to any future victims.
231Even though in Dr. Pearce's report in one sentence he states, "it is not clear if there is a likelihood of re-offence", he goes on to state, "though certainly there is a good chance of future victimization". I do not interpret that one sentence in isolation as undermining the totality of Dr. Pearce's evidence as contained in his report and testimony where he concludes that the criteria of "likelihood" is met in this case. I am satisfied beyond a reasonable doubt that on the basis of all of the evidence presented, including the evidence of Dr. Pearce, that "likelihood" of re-offending has been proven for the reasons indicated below.
232Considering all of the evidence before me and the law which must be applied to it, I am satisfied that the Crown has proven the future conduct element of s. 753(1)(a) and (b) beyond a reasonable doubt, that is, the "likelihood of C.B. …causing…injury to other persons, or inflicting severe psychological damage on other persons, through failure in the future to restrain his behaviour" or "to control his sexual impulses". This result is arrived at from all of the evidence including:
the assessments and opinion of Dr. Pearce including the conclusion that C.B. is at a "moderate" and "significant" risk to re-offend in a sexually violent manner with children absent significant intervention and/or monitoring. Dr. Pearce is of the opinion that that C.B. meets the criteria for a Dangerous Offender from a psychiatric perspective. This includes that C.B. has "displayed indifference to the reasonably foreseeable consequences of his actions…he would, in all likelihood, have been aware of the possible repercussions of his assaultive behaviour. Notwithstanding same, he victimized different children on numerous occasions over the span of several years". Looking at the totality of Dr. Pearce's evidence, including the results of the actuarial tests and clinical information, the Court finds that there is a real and significant risk of C.B. re-offending that meets the criteria of "likelihood";
C.B.'s admission that he is sexually attracted to children and that he was too weak to control it when committing the offences;
C.B.'s conduct which appears to have been planned and premeditated. This included C.B. gaining access to (by ingratiating himself with the families of the children who were victimized), and his grooming of, the five young victims, deliberately creating opportunities to offend, in particular with respect to his niece, M.M.;
that C.B. had the victims engage in sexual activities with one another including sexual intercourse between M.M. and S.S.;
C.B.'s long-term and repetitive abuse of M.M. from the age of two when she was still in diapers, until she was seven-years-old;
C.B. was in a position of trust with respect to all of the victims when they were in his care. This was particularly so with respect to his niece, M.M., who had been placed by the Children's Aid Society to live with C.B. and his mother when her own parents could not care for her. His conduct was an enormous breach of trust when he was acting in a parental role in relation to M.M.;
C.B.'s ongoing repetition of the offences in relation to five separate victims, including children as young at 18 months old, indicating that these were not isolated offences;
C.B.'s creation of child pornography by the videotaping of four of the victims, including the many years of abuse of M.M. (showing the sexual grooming of her from a very young age to full anal intercourse at ages 6 or 7, and acts of coprophilia and urophilia while she was both awake and sleeping) he masturbated while watching the crimes and also while recalling prior experiences with children;
C.B.'s extreme psychological and emotional manipulation of M.M. to the point of having her "willingly" engage in many types of sexual activities including full anal intercourse. Over a course of years, through repeated acts of sexual violation, C.B. made what is reprehensible "normal" to her;
the acts of coprophilia, urophilia and partialism that C.B. engaged in with M.M., including while she was sleeping, although Dr. Pearce could not make a diagnosis of those paraphilia;
C.B.'s possession of a significant amount of child pornography of unknown victims obtained from the internet and his admission that seeing the content online "caused things to spiral out of control even more". C.B. masturbated while viewing this child pornography;
C.B.'s participation in online "chats" with others in "sort of support groups for those with pedophilic sexual preferences";
C.B.'s limited insight into the offences including his belief that there is no risk that he will re-offend. This is combined with the extreme cognitive distortions that C.B. continues to hold, including that the sexual interactions with his victims were "their choice", and that he still believes he could be a parent in the future. While it was Dr. Pearce's evidence that these are not predictors of future risk, that the cognitive distortions are "certainly complicating the matter" and that he will need a lot of assistance to not re-offend;
C.B.'s university education in developmental psychology and his attempt to become a foster parent with the Children's Aid Society combined with his cognitive distortion that these interests have nothing to do with his sexual preferences;
the diagnosis of bisexual pedohebephilia, seemingly the non-exclusive subtype, the fact that it is a life-long condition with no cure;
Dr. Pearce's opinion that C.B.'s sexual preference for children is unlikely to subside until he is sixty years old at the earliest. C.B. is currently in his thirties;
that C.B. has no prior convictions for similar offences. Also, that C.B. admitted his offences and that he is amenable to counselling which may lead to risk reduction; and
that in spite of C.B.'s openness and willingness to engage in counselling in the future, he has never received counselling or treatment for his sexual preferences. It is uncertain whether he will agree to engage in treatment by taking medication to reduce his sex-drive, which medication, according to Dr. Pearce, is necessary to reduce his risk of re-offending.
RESULT
233Based on all of the evidence in this case I find that C.B. is a Dangerous Offender. There will be a sentence of 13 years and 6 months less pre-sentence custody. Since the evidence is that C.B. will continue to remain a risk into his sixties and there is a need to protect the public, this sentence will be followed by a Long-Term Supervision Order for the maximum period of 10 years.
234The offences involving M.M. are extremely serious, including the sexual abuse of her over many years on numerous occasions by her uncle, C.B., who was in a parental role. They include the most intrusive forms of sexual abuse of a child (including anal intercourse), as well as degrading conduct involving urine and feces. It also involved having her interact sexually with the other child victims including having vaginal intercourse with her friend S.S. Much of this abuse was videotaped with her knowledge. One can only imagine the impact of these crimes on her in the future, and the extent of the severe psychological harm done to M.M. can only be fully measured in the years to come. The physical and psychological harm done to M.M. must be reflected in the sentences imposed. The sentences in relation to M.M. should come close to the maximum sentence while recognizing that C.B. has taken responsibility for his actions without having M.M. further traumatized by having to testify. The Court would have imposed a sentence of 10 years if not for the pleas of guilty. In light of the pleas of guilty and the totality of the sentences being imposed, the Court is of the view that the sentence should be one of 8 years.
235The conduct of having S.S. engage in sexual intercourse with M.M. is very aggravating and requires the longest period of consecutive time. The Court would have imposed a sentence in the range of 3 to 5 years consecutive, if not for the totality of the sentences and the pleas of guilty. Count 19 with respect to S.S. will be a sentence of 3 years. Count 5 is the corresponding count in relation to M.M. and will be a sentence of 3 years concurrent.
236The other counts in relation to the offences committed by C.B. in relation to S.S., and the counts relating to S.R. and S.S.'s siblings, C.R and E.R. will be concurrent sentences of 2 years to reflect the totality of the sentences being imposed. If it were not for totality (including the consecutive sentences for making child pornography), the Court would have imposed sentences of 2 years consecutive for each of the remaining 3 victims. Given the ages and nature of the sexual activities (including sexual activities between the children), the sentences should reflect the physical and psychological harm done to all of the child victims. The impact on the victims and their families is profound. It cannot be stated more eloquently than what is set out in their Victim Impact Statements.
237The making of child pornography is extremely serious and also requires some consecutive time (including being mindful of the minimum sentences). A 2 year consecutive sentence will be imposed. The possession of child pornography from the internet is separate and distinct conduct involving the victimization of numerous unknown children. This also requires a consecutive sentence, and given totality, a 6 month consecutive sentence will be imposed.
238Taking into consideration the totality of the sentences and being mindful that there will also be a 10-year Long Term Supervision Order to follow, the individual fixed sentences are (with the concurrent sentences listed after those which are consecutive):
Count 6: September 13, 2009 to November 3, 2014, C.B. did, with a part of his body, for a sexual purpose, directly touch the body of M.M., a person under the age of 16 years, contrary to s. 151 of the Criminal Code of Canada. 8 years consecutive to any other sentence, less pre-sentence custody. The pre-sentence custody will be noted as 487 days at 1.5:1 (an additional 243 days) which equals credit for 2 years (730 days). This leaves 6 years remaining to be served.
Count 19: January 1, 2012 to November 3, 2014, C.B. did, for a sexual purpose, counsel S.S., a person under the age of 16, to directly or indirectly touch, with a part of his body, the body of M.M., contrary to s. 152 of the Criminal Code of Canada. 3 years consecutive to any other sentence.
Count 7: September 13, 2009 to November 3, 2014, C.B. did make child pornography in the form of a video recording of M.M., contrary to s. 163.1(2) of the Criminal Code of Canada. 2 years consecutive.
Count 11: September 13, 2009 to November 3, 2014, C.B. did possess child pornography, contrary to s. 163.1(4) of the Criminal Code of Canada. 6 months consecutive to any other sentence, less pre-sentence custody of 42 days giving credit at 1:5 to 1, 63 days leaving 117 days to be served consecutive.
Count 5: January 1, 2012 to November 3, 2014, C.B. did, for a sexual purpose, counsel M.M., a person under the age of 16, to directly or indirectly touch, with a part of her body, the body of S.S., contrary to s. 152 of the Criminal Code of Canada. 3 years concurrent.
Count 2: September 3, 2014 to November 3, 2014, C.B. did, for a sexual purpose, counsel S.R., a person under the age of 16, to directly or indirectly touch, with a part of her body, the body of M.M., contrary to s. 152 of the Criminal Code of Canada. 2 years concurrent.
Count 3: September 3, 2014 to November 3, 2014, C.B. did, with a part of his body, for a sexual purpose, directly or indirectly touch the body of S.R., a person under the age of 16 years, contrary to s. 151 of the Criminal Code of Canada. 2 years concurrent.
Count 8: September 3, 2014 to November 3, 2014, C.B. did make child pornography in the form of a video recording of S.R., contrary to s. 163.1(2) of the Criminal Code of Canada. 2 years concurrent
Count 9: January 1, 2012 to November 3, 2014, C.B. did make child pornography in the form of a video recording of S.S., contrary to s. 163.1(2) of the Criminal Code of Canada. 2 years concurrent
Count 10: January 1, 2014 to November 3, 2014, C.B. did make child pornography in the form of a video recording of E.S., contrary to s. 163.1(2) of the Criminal Code of Canada. 2 years concurrent
Count 16: January 1, 2012 to November 3, 2014, C.B. did, with a part of his body, for a sexual purpose, directly or indirectly touch S.S., a person under the age of 16 years, contrary to s. 151 of the Criminal Code of Canada. 2 years concurrent.
Count 17: January 1, 2012 to November 3, 2014, C.B. did, with a part of his body, for a sexual purpose, directly or indirectly touch C.S., a person under the age of 16 years, contrary to s. 151 of the Criminal Code of Canada. 2 years concurrent.
Count 18: January 1, 2014 to November 3, 2014, C.B. did, with a part of his body, for a sexual purpose, directly or indirectly touch E.S., a person under the age of 16 years, contrary to s. 151 of the Criminal Code of Canada. 2 years concurrent.
239The total sentence is therefore 13 years and 6 months less 529 days of pre-sentence custody credited at 1.5:1 (an additional 264 days) which equals credit for 2 years and 63 days (i.e. 793 days). This pre-sentence custody will be reflected on Counts 6 and 11. This leaves 11 years and 117 days remaining to be served in total to be followed by a Long-Term Supervision Order for 10 years.
ANCILLARY ORDERS
240On February 10 and 11, 2016 the following Ancillary Orders were made on consent:
A DNA Databank Order on all counts;
A Weapons Prohibition Order for Lifetime pursuant to s. 109 of the Criminal Code;
A Sex Offender Information Registration Act (S.O.I.R.A.) Order for Lifetime on all counts; and
Victim Fine Surcharges totalling $1000.00 (for those 5 offences where it is mandatory after the amendments) or 10 days in default with an extension granted of 10 years to pay in light of the lengthy sentences being imposed.
241On April 14, 2016 the following Ancillary Orders were made:
A Non-Communication Order on Detention pursuant to s. 743.21 of the Criminal Code;
A Prohibition Order for Lifetime pursuant to s. 161 of the Criminal Code;
A Forfeiture Order for a MacBook Pro and a Samsung Galaxy 3 cell phone and the return of all other items seized;
Sealing Orders with respect to some exhibits with an exception for the Children's Aid Society to have access to Dr. Pearce's report to assist with counselling and treatment for M.M.; and
An Order pursuant to s. 760 of the Criminal Code that medical reports, transcripts and some of the exhibits be forwarded to the Correctional Service of Canada.
RECOMMENDED TERMS
242I strongly recommend that in implementing this sentence that the following terms be put into place and steps taken by Corrections Service of Canada (CSC):
While in custody, it is very strongly recommended that C.B. complete the High Intensity Sex Offender Program. He should also be referred for longitudinally based, "booster" programming once he returns to the community that bolsters the effects of institutional programs.
C.B. should attend and cooperate with any assessments and counselling by a psychiatrist. He should follow the recommendations of his psychiatrist, including the taking of sex-drive reducing medication, such as Lupron, and he should commence any such medication early enough before his release into the community to ensure that it is fully effective upon his release. Should he not agree to taking medication as recommended by his psychiatrist, his community reintegration should be much more gradual and he should be very closely supervised to avoid re-offence (either a "hands on" offence or a possession of child pornography offence).
CSC should decide if an assessment should be conducted to determine if C.B. requires counselling for alcohol or drugs, and if he requires it, C.B. should participate in such assessment and counselling as is deemed necessary by CSC. C.B. should be cautious in his use of alcohol and/or drugs, as these could lead to disinhibition and could increase the risk of re-offence.
C.B. should reside at a place approved of by the Parole Board, and if deemed appropriate by the Parole Board, to reside at a Community Residential Facility or Community Correctional Centre. C.B.'s whereabouts when outside a correctional facility should be subject to verification initially on a regular basis and parole officers should make regular, unannounced visits should he reside independently.
C.B. should not associate or communicate, directly or indirectly, by any physical, electronic or other means, with any person under the age of 16. C.B. should not act in any parental or supervisory role, or in any position of trust or authority towards any child under the age of 16, whether or not the parent of that child is consenting.
C.B. should disclose any relationships to CSC to ensure that there are no children that C.B. might have access to. C.B.'s future partners should be contacted by CSC officials and they should be made fully aware of his sex offence history with children. They should be instructed to notify the authorities if any concerns arise with respect to C.B.'s actions in the community, especially with respect to children. CSC should alert the Children's Aid Society if there is any concern about any child.
C.B. should not associate or communicate, directly or indirectly, by any physical, electronic or other means, with any of the victims in this case or any members of their immediate family. C.B. should remain at least 500 metres away from any known place of residence, education, work and worship of those people, and shall remain at least 500 meters away from any place where they are known by him to be. The only exception is with respect to his mother, G.B., however, only if she files her written revocable consent with CSC in advance, and only if the needs of C.B.'s niece, M.M., are placed first. Should G.B. agree to have any form of contact with her son, C.B., under no circumstances should C.B. associate or communicate, directly or indirectly, by any means, with M.M. through his mother, G.B.
C.B. should not be in possession of a weapon. More specifically, C.B. should not possess any weapon(s) as defined by the Criminal Code (for example: a BB gun, pellet gun, firearm, imitation firearm, cross-bow, prohibited or restricted weapon or device, ammunition or explosive substance or anything designed to be used or intended for use to cause death or injury or to threaten or intimidate any person).
C.B. should not possess or use any computer, photographic/video equipment or any other electronic device that has internet access or that can take or record images, except with the advance written permission of CSC. C.B. should provide CSC with all of his usernames and passwords to allow for monitoring of his use of any computers/devices. C.B. should not access any websites, social media, email or any other electronic platform which gives him access to children under the age of 16, to child pornography, or to discussion about child pornography and/or sexual activities with children under the age of 16. C.B. should not download or possess any child pornography images/videos.
Released: April 14, 2016
Signed: "Justice S.C. MacLean"