WARNING
The court hearing this matter directs that the following notice be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:
486.4 Order restricting publication — sexual offences.
(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences:
(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,
(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or
(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).
(2) Mandatory order on application. — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and
(b) on application made by the complainant, the prosecutor or any such witness, make the order.
486.6 Offence.
(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
Court Information
Ontario Court of Justice
Between:
Her Majesty the Queen
— AND —
Jamie Alexander Simpson-Fry
Before: Justice J. De Filippis
Heard on: August 25 & December 19, 2014; February 9, September 11, November 12, 25, 26, & December 8, 10, 14, 15, 2015; February 8, 9, 2016
Reasons for Judgment released: August 30, 2016
Counsel:
- Mr. Stephens — counsel for the Crown
- Mr. Cawkell & Ms. Henneboury — counsel for the accused
De Filippis, J.
Introduction
1The defendant was found guilty of sexual assault, forcible confinement, and threatening death. At the time he was bound by three probation orders to keep the peace and be of good behaviour. He was convicted of failure to comply with these court orders. The offences occurred on 13 October 2013 at the City of Pickering.
2The defendant had indicated he wished to plead guilty to the charges on the basis that he could not confirm or deny the facts alleged because of intoxication. I declined to accept such a plea, having regard to R v R.P. 2013 ONCA 53. On consent, the Crown read in the evidence that would have been given by witnesses and filed photographs and other exhibits. The Defence elected not to challenge the prosecution evidence, or call other evidence or make submissions. On this basis I was satisfied that the Crown had proven guilt beyond a reasonable doubt.
3As part of the sentence proceedings, the Crown applied to have the defendant declared a dangerous offender. The relevant legislation is set out in Part XXIV of the Criminal Code. The defendant claimed the statutory regime does not comply with the Charter of Rights and Freedoms. The remedy sought is to strike down and/or read down the impugned provisions. On consent, evidence and submissions relevant to the Charter challenge and sentence were subject to a blended hearing.
4The designation of dangerous offenders is governed by section 753 of the Code. The Crown asserted that the defendant comes within three of the applicable subsections - namely, section 753(1)(a)(i), (ii), and (b). Leaving aside the constitutional issues, the Defence conceded that the Crown had met the criteria set out in section 753(1)(a)(ii).
5I appointed Dr. Pearce to conduct an assessment for the purposes of this hearing. The Defence retained Dr. Gojer to do the same. These assessments contain information from a variety of sources, including interviews with the defendant (self-reporting) and review of court, correctional, medical and other records. I received both reports and heard the testimony of the two psychiatrists. I also considered victim impact statements and heard from a representative of the Correctional Service of Canada.
6I dismiss the Charter motions. I declare the defendant to be a dangerous offender and impose an indeterminate sentence. These are my reasons.
Constitutional Issues
7The parties filed extensive written submissions, with supplementary oral ones. While I considered these arguments, the British Columbia Court of Appeal released its reasons R v Boutilier 2016 BCCA 235. In rejecting a similar Charter challenge, this decision discusses most of the issues raised by the defendant. Accordingly, at my invitation, the parties made additional submissions about whether I should follow Boutilier. Since I have decided to do so, I need not conduct a detailed review of the written and oral arguments received in this matter. In saying this, I express my appreciation for the considerable efforts by counsel; however, the British Columbia Court of Appeal has resolved most of the relevant questions and I can do no better than to simply explain why I adopt its ruling. I will also describe why I decline to rule on the issues raised by the defendant that are not determined by Boutilier.
8Before dealing with the constitutional issues, it may be helpful to briefly set the legislative history:
The pre-1997 regime: A judge had a discretion not to designate a person a dangerous offender even if the statutory criteria had been met. If the declaration was made by the judge, s/he could sentence the offender to an indeterminate sentence or to a determinate sentence.
The 1997 amendments: Parliament introduced the "Long Term Offender" (LTO) designation. If a judge was satisfied a person met the criteria to be declared a dangerous offender, s/he could sentence the offender as such or refuse to designate the person as a dangerous offender and declare the person to be a LTO.
The 2008 amendments: The discretion at the designation stage was removed. Once a judge determined that a person met the statutory criteria, s/he must designate the person as a dangerous offender. In such a case, the sentence must be an indeterminate one unless the judge is satisfied that one of the lesser listed sentences would protect the public. The LTO regime remains.
9The defendant asserts that sections 753(1) and s. 753(4.1) of the current regime violate sections 7 and 12 of the Charter. It is argued that the impugned provisions mean that the dangerous offender designation would capture treatable offenders. This designation therefore is overbroad and disproportionate to the objectives of the statutory scheme. The 2008 amendments in question are as follows:
753. (1) On application made under this Part after an assessment report is filed under subsection 752.1(2), the court shall find the offender to be a dangerous offender if it is satisfied
(a) that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (a) of the definition of that expression in section 752 and the offender constitutes a threat to the life, safety or physical or mental well-being of other persons on the basis of evidence establishing
(i) a pattern of repetitive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a failure to restrain his or her behaviour and a likelihood of causing death or injury to other persons, or inflicting severe psychological damage on other persons, through failure in the future to restrain his or her behaviour,
(ii) a pattern of persistent aggressive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a substantial degree of indifference on the part of the offender respecting the reasonably foreseeable consequences to other persons of his or her behaviour, or
(iii) any behaviour by the offender, associated with the offence for which he or she has been convicted, that is of such a brutal nature as to compel the conclusion that the offender's behaviour in the future is unlikely to be inhibited by normal standards of behavioural restraint; or
(b) that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (b) of the definition of that expression in section 752 and the offender, by his or her conduct in any sexual matter including that involved in the commission of the offence for which he or she has been convicted, has shown a failure to control his or her sexual impulses and a likelihood of causing injury, pain or other evil to other persons through failure in the future to control his or her sexual impulses.
(1.1) If the court is satisfied that the offence for which the offender is convicted is a primary designated offence for which it would be appropriate to impose a sentence of imprisonment of two years or more and that the offender was convicted previously at least twice of a primary designated offence and was sentenced to at least two years of imprisonment for each of those convictions, the conditions in paragraph (1)(a) or (b), as the case may be, are presumed to have been met unless the contrary is proved on a balance of probabilities.
(4) If the court finds an offender to be a dangerous offender, it shall
(a) impose a sentence of detention in a penitentiary for an indeterminate period;
(b) impose a sentence for the offence for which the offender has been convicted which must be a minimum punishment of imprisonment for a term of two years and order that the offender be subject to long-term supervision for a period that does not exceed 10 years; or
(c) impose a sentence for the offence for which the offender has been convicted.
(4.1) The court shall impose a sentence of detention in a penitentiary for an indeterminate period unless it is satisfied by the evidence adduced during the hearing of the application that there is a reasonable expectation that a lesser measure under paragraph (4)(b) or (c) will adequately protect the public against the commission by the offender of murder or a serious personal injury offence.
753.01 (1) If an offender who is found to be a dangerous offender is later convicted of a serious personal injury offence or an offence under subsection 753.3(1), on application by the prosecutor, the court shall, by order in writing, before sentence is imposed, remand the offender, for a period not exceeding 60 days, to the custody of a person designated by the court who can perform an assessment or have an assessment performed by experts for use as evidence in an application under subsection (4).
(5) If the application is for a sentence of detention in a penitentiary for an indeterminate period, the court shall impose that sentence unless it is satisfied by the evidence adduced during the hearing of the application that there is a reasonable expectation that a sentence for the offence for which the offender has been convicted — with or without a new period of long-term supervision — will adequately protect the public against the commission by the offender of murder or a serious personal injury offence.
761. (1) Subject to subsection (2), where a person is in custody under a sentence of detention in a penitentiary for an indeterminate period, the Parole Board of Canada shall, as soon as possible after the expiration of seven years from the day on which that person was taken into custody and not later than every two years after the previous review, review the condition, history and circumstances of that person for the purpose of determining whether he or she should be granted parole under Part II of the Corrections and Conditional Release and, if so, on what conditions.
10The defendant claims that these changes, in combination with the existing legislation, has the following effect:
Section 753(1) removes any discretion not to designate someone who meets the criteria a dangerous offender.
Section 753(1.1) creates a reverse onus presumption that states that the dangerous offender criteria is met by anyone (for the most part) who has previously been to the penitentiary before. The defendant is required to disprove this presumption on a balance of probabilities.
Section 753(4) mandates the imposition of an indeterminate sentence of incarceration however s. 753(4.1) allows for a determinate sentence if there is a "reasonable expectation that a lesser measure…will adequately protect the public." Thus, the question of whether counseling or supervision can address an individual's dangerousness becomes an issue at the penalty stage and not the designation stage. This, it is argued, reverses the burden and requires the defendant to argue in mitigation that a determinate sentence is appropriate.
Section 753.01 now allows for the Crown to apply for an indeterminate sentence if an offender who is serving a LTSO either committed a serious personal injury offence (s. 753.01) or simply breached a condition of the LTSO (s. 753.3(1)). The court once again "shall" order an indeterminate sentence unless it is demonstrated that the public can be adequately protected. Again, this reverses the burden and requires the defendant to argue in mitigation that an indeterminate sentence is appropriate.
Subsections 753(4.1) and 753.01(5) both require a demonstration that there is a reasonable "expectation" rather than the previous "possibility" that an offender can be controlled in the community. Thus raising the standard required to find that a lesser sentence would be appropriate.
Finally, the parole eligibility period of an offender given an indeterminate sentence due to their dangerous offender status is seven years, and reviewed at least every two years thereafter.
11Section 7 of the Charter reads: "Everyone has the right to life, liberty and security of the person and the right not to be derived thereof except in accordance with the principles of fundamental justice". Section 12 provides that, "Everyone has the right not to be subjected to any cruel and unusual treatment or punishment".
12The trial judge in Boutilier, 2014 BCSC 2187, held that section 753(1) was unconstitutional and invalid on account of being overbroad. The court did not find a section 12 violation. The court also considered and dismissed the claim that subsection 753(4.1) violated either of sections 7 and 12. Not surprisingly, the defendant urged me to follow the Boutilier trial decision with respect to section 753(1), but not with respect section 753(4.1). The defendant also relies upon the decision of the Ontario Superior Court in R. v. Hill [2012] OJ 4266. In that case the court found that section 753(1.1) violates section 7 of the Charter.
13The trial judgment in Boutlilier was appealed by both parties. The Crown objected to the declaration of invalidity and the defendant questioned the dismissal of his constitutional challenge to s. 753(4.1) (as well as his dangerous offender designation and indeterminate sentence). The Court of Appeal allowed the Crown appeal and dismissed the defence appeal. Its reasons address the arguments presented before me.
14The Court of Appeal noted that the impugned sections are part of a single legislative framework for the preventative detention of offenders with an elevated risk of future harm. In holding that the judge erred in finding that s. 753(1) is overbroad, the Court noted that the section is one of several means for imposing a preventive sentence and does not directly impact on liberty; at most, it has only an indirect effect on an offender's liberty interest by triggering the presumptive disposition in s. 753(4.1). Section 753(4.1) is also not overbroad because there is residual discretion not to impose an indeterminate sentence if the evidence establishes a reasonable expectation that a lesser measure will adequately protect the public. Nor is it grossly disproportionate as the presumptive disposition, while limiting the exercise of discretion, does not mandate an indeterminate sentence.
15In upholding the challenged legislation, the Court of Appeal noted that an offender's personal circumstances are relevant at both the designation and penalty stages. Examining the offender's future treatment prospects for his elevated risk of harm at the designation stage would not ensure the protection of the public because the ability to manage the offender's risk of harm would have to be assumed in the absence of the implementation and monitoring of the proposed treatment. Nor could the benefits of an offender's treatment be assessed. The Court concluded that consideration of an offender's future treatability for his identified risk of harm to others at the sentencing stage does not capture offenders who may not be dangerous; the target group under s. 753(1) remains the same, the criteria to establish dangerousness remains the same, and there is a rational connection between the purpose and the effect of the provision.
16It is agreed that the appeal decision in Boutilier disposes of all issues raised before me except those related to sections 753(1.1) and 753.01. The Defence urges me not to follow the British Columbia Court of Appeal. In this regard, it is also submitted that the Court applied the wrong test with respect to section 12 of the Charter and erred in considering the parole process in its analysis.
17The Defence is correct in pointing out that I am not bound by Boutilier. A Court of Appeal from another province can only ever be persuasive because it has no supervisory power over Ontario courts. Ms. Debra Parkes, writing in the Manitoba Law Journal (Precedent Unbound? Contemporary Approaches to Precedent in Canada, (2007) 32 Man. L.J. 135 – 162) noted that:
As things have developed in Canada, the concept of "binding precedent" is limited to the vertical convention. Courts lower in the applicable hierarchy are bound to follow decisions of a higher court…. [T]he concept of "persuasive authority" refers to all decisions of courts outside the direct hierarchy of the instant court. For example, neither the Manitoba Court of Appeal nor the Manitoba Court of Queen's Bench is bound to follow a decision of the British Columbia Court of Appeal. In either case, the decision may be persuasive and may assist the court in coming to a decision, but stare decisis will not apply.
18Boutilier is a decision of a Canadian appellate court. The Court engaged in a fulsome and careful analysis of the issues. There is no reason I should not follow this well-reasoned judgment; indeed, I find it persuasive. The Court did not consider sections 753(1.1) and 753.01. I agree with the Crown that I need not decide those issues as they are not applicable in this case. If after these proceedings the defendant re-offends in such a way that engages these sections, a challenge to them can be made at that time.
19For these reasons the Charter motions are dismissed.
Index Offences
20As already noted, I refused to accept the defendant's guilty plea. The Defence consented to the Crown reading in the evidence, without questions or challenge. The Defence elected not to call evidence or make submissions. Accordingly, I found the defendant guilty. What follows are excerpts from the evidence read in by the Crown:
MR. STEPHENS [Crown]: [The complainant] left [XXX] address to return home at around 2:30 a.m. [She] observed a male, then unknown but later identified as Jamie Simpson-Fry, south of her location on Liverpool Road. She saw that he was stumbling and believed he was drunk. The male approached [her] and asked her where Tatra Drive was. The male then asked [her] for a cigarette. She told him she did not have any and continued walking southbound on Liverpool Road. As she walked, [she] could hear this male behind her and she could hear that he was now walking quickly. By the time [she] had reached XXX Liverpool Road, the male had caught up with her. He grabbed her from behind with one arm around her neck and a hand over her mouth. He said to her that if she screamed he would break her neck.
The male took [her] along the driveway of the residence and into the front lawn area. He pushed her to the ground and got on top of her. He removed her leggings, her underwear, and her shoes. While [she] was laying on her back, he raped her vaginally. The male then stopped. He did not ejaculate inside her and she does not know whether he ejaculated at all at this point. Approximately ten minutes later the male turned [her] over so that she was now laying face down on the ground and he then raped her vaginally a second time. The male did not ejaculate inside her but he lifted up her top and ejaculated on her back around the middle area.
The male held her at this location for about two hours. During the whole time he was mumbling things to her, but she could not understand what he was saying. [The complainant] stated that he was very drunk.
The male eventually told [her] to, "Get up." She dressed herself and they both continued to walk southbound along Liverpool Road. At this time the male was asking [her] if she would go back with him for a drink. [The complainant] stated that she made excuses, saying that she could not, as her mother was home waiting for her. The male also made a comment about having to make his way back to Oshawa, and having lost his cellular phone.
As they approached the intersection of Krosno Boulevard and Liverpool Road [the complainant] saw a group of people ahead. On observing this group the male stopped walking, took [the complainant] by the hand, and threatened her, saying that if she ever told anyone about this he would kill her. The male then crossed over Liverpool Road to the west side, and she last saw him walking westbound along Haller.
After the male then crossed over Liverpool Road to the west side, and she last saw him, [the complainant] made her way back home where she called her mother, [XXX], who told [the complainant] to contact police, which she then did. Police Constable Janovitz, 3434, in the company of Police Constable Moulton, 3596, were dispatched to the report of a sexual assault in the City of Pickering. Communications advised that [the complainant] was reporting being raped by a male while walking home along Liverpool Road, and that she had been held by the male for a considerable time.
Before handing [the complainant] over to the paramedics, police drove her along Liverpool Road northbound from Krosno Boulevard to the area [she] described. She was able to identify the location as [XXX] Liverpool Road. This is a detached single-storey property of older construction. There was a tall hedgerow surrounding all sides of the front lawn area, obscuring its view form the roadway or footpath. As you walk along the driveway, there is an access point to the front lawn running alongside the front of the residence. The access consists of a small paved path. This is where the male took her to, and raped her. The lawn area was very overgrown with weeds. There was an area adjacent to the path that looked as though it may have been flattened down but it is not an obvious flattened out area. However, any activity taking place at this location would be completely obscured from passing vehicles and pedestrians due to the height of the surrounding hedgerow.
On Sunday, October 13, 2013, Police Constable Delaney, 3558 was working in uniform capacity within the City of Pickering, Region of Durham. At approximately 8:53 a.m. he was in the area of Liverpool Road southbound from Bayly Street, assisting units trying to locate a male party. Jamie Simpson-Fry was believed to be arrestable after [an unrelated] domestic incident involving Rachel Clement.
While southbound on Liverpool Road, before passing Patmore Lane, P.C. Delaney briefly observed a male party walking eastbound toward Naroch Boulevard. At this time it was raining heavily and he was suspicious of the male walking in this weather. He turned around and headed east. As he got to the intersection of Patmore Lane and Naroch Boulevard, the male observed was now walking quite quickly north on Naroch. P.C. Delaney drove up to the male and while doing so, observed him to be wearing a grey hooded sweater with leaves on his back, as well as brown jeans. The male's hood was up and he was looking down at the ground. P.C. Delaney was unable to see the male's face so he called out to the male. He mumbled something quietly that P.C. Delaney did not hear. P.C. Delaney called out again, this time asking his name. At this time, the male turned toward him and said, "I'm wanted. Just arrest me." He then opened the back seat door and seated himself in the back of the police cruiser. The male was Simpson-Fry. P.C. Delaney confirmed verbally that he was Simpson-Fry.
At 9:26 a.m. the transport was complete. Simpson-Fry was paraded into cells. After being paraded his clothes were being seized as evidence. The clothes were seized as Simpson-Fry matched the description of a male involved in a sexual assault in the area where he was located, which was currently being investigated by the Sexual Assault Unit. Simpson-Fry was clothed in a disposable jumpsuit.
[At the hospital]….[The complainant] reported that she had not been menstruating or bleeding at the time of the assault. She reported that the penetration was by the assailant's penis, as well as by his fingers. Vaginal swabs were taken. In addition, rectal swabs were taken and a DNA reference sample was taken, as well. She also provided a urine sample. The debris from her shoes, which the police asked to have collected, was in fact collected. And the blood sample was collected and saved for police, as well.
Following that examination at Lakeridge Health in Oshawa, the skin swabs were sent to the Centre for Forensic Sciences for analysis. Skin swabs from the left neck, which were item 4-1, and the left back, which was item 5-1 [from the complainant] generated a male DNA profile suitable for comparison, and the profile was uploaded to the National DNA Databank.
After further investigation, the profile from swabs 4-1 and 5-1 were compared against a blood stain sample from Jamie Simpson-Fry. The conclusion was that Jamie Simpson-Fry cannot be excluded at 15 STR loci – L-O-C-I - as the source of the previously reported male DAN profile number one from the left neck swab, 4-1, and back swab, 5-1 from [the complainant]. The probability that a randomly selected individual unrelated to Jamie Simpson-Fry would coincidentally share the observed DNA profile is estimated to be one in 7.7 quadrillion. And this is based upon data from a sample of the Ontario population, including Asians, Blacks, Caucasians, East Indians, and Northern Ontario Natives. The probability has been calculated using the data available from the 13 core CODIS – C-O-D-I-S - STR loci.
Further, at the time of the incident on October 13, 2013, Jamie Simpson-Fry was bound by the conditions of three different Ontario Court of Justice probation orders, which were each still in force, and which each required him to, among other things, keep the peace and be of good behaviour. Those orders were dated January 17th, 2012, April 23rd, 2012, and June 3rd, 2013.
At the beginning of the incident, he took her shoes off and threw them onto the driveway, and then he pulled her leggings and underwear down but left her sweatshirt on. He did not use a condom. She could barely see anything. It was really dark.
He sexually assaulted her vaginally, using his fingers and then his penis the first time, and just his penis the second time. During the sexual assault he told her she was beautiful and he wanted her to be his girlfriend. After the second act of intercourse he ejaculated on her back.
She didn't understand what he was saying at times, so she just nodded her head. She was sitting there, shaking and scared. People were walking by on the sidewalk and he kept giving her dirty looks and said that if she said anything he was going to kill her. She couldn't see the people walking by on the sidewalk because there were bushes in the way, but she could hear them.
He tried to kiss her but she kept moving her head and pretending that she had to cough. He kept saying, "Kiss me, kiss me," and then he would forget right after that he said it. He did kiss her on the lips a couple of times during the two incidences of intercourse. During the second incidence of intercourse he told her that he was going to cum inside her. She freaked out and started kicking him, then he ejaculated on her back and used something to wipe it off.
After the second incidence of intercourse he saw the pack of smokes that had fallen out of her pocket and he took one. He told her to get up and she did. Then he grabbed her hand and they walked down the driveway. She had already gotten dressed at this point.
21After the evidence was read onto the record by Crown counsel, the following exchange occurred between me and Defence counsel:
THE COURT: ….By consent, the Crown's case is presented without witnesses and by a reading in of the evidence. Having heard that evidence, Mr. Cawkell, does your client challenge it?
MR. CAWKELL: My client is not in a position to challenge anything that the Crown has read in because of his mental state at the time. He was severely intoxicated and advises me that he blacked out. His intoxication was as a result of excessive drinking combined with the drug GBH, and at this point in time he is not in a position to dispute any of it. He cannot recall and is not in a position to raise the defence of consent and the DNA evidence and other evidence which put him there. In the circumstances, we are not challenging anything….
THE COURT: ….So you are not challenging the evidence. You have made some comments about it. Do you seek to call any evidence yourself?
MR. CAWKELL: None….
THE COURT: Do you have any submissions to make as to why I should not now find the defendant guilty on the evidence read in by the Crown, and which is not challenged by you or contradicted by any defence evidence?
MR. CAWKELL: No submissions, subject to a Kienapple argument down the road.
THE COURT: Okay. On that basis then, given that the defendant does not admit remembering the facts read in by the Crown, the evidence read in by the Crown, and given that he neither challenges them, nor seeks to contradict them, nor seeks to make any submissions with respect to mens rea or otherwise, as to why I should not find him guilty, I am satisfied the evidence read in by the Crown meets the elements of the offences in question, and I find him guilty of all of the charges on which he was arraigned.
Impact on the Victim
22The victim stated the following:
When I was sexually assaulted last October it had a huge toll on me. My life changed completely. I started hating myself and my emotions ran higher than they ever have. I questioned the situation in my mind several times, asking myself why something so awful had to happen to me. Why something so traumatizing had to change who I am for the rest of my life. I blamed myself for a very long time. I convinced myself that I was disgusting and wasn't worthy anything. I cried myself to sleep and I still do sometimes. The occasional time I have nightmares and for a very long time I refused to sleep because of them. What happened to me took place fairly close to home and I check at least fifteen times a day to make sure both doors in my apartment are locked. At first I wouldn't leave my apartment, I could even muster up the strength to walk to the end of the driveway. I took some time off school till I thought I was ready to go back. When I would walk to Highway 2 in the mornings to catch the bus to get to school I would cut through the mall and there would typically be older people jogging. I can't count how many times I would be thinking about how I got sexually assaulted and I would jump out of my skin when an old person would job past me because I thought I was getting attacked. When I was still attending school my grades plummeted, my test scores were terrible, and I just couldn't focus on anything. After a while I stopped going, it seemed useless to me and it made me feel hopeless. I started giving up on myself. I would tell myself that I would never amount to anything and that it was my fault, that I chose to be raped. I started leaving my apartment every so often with a mindset of not caring if it happened again or if something worse happened to me like murder. But I still couldn't walk by a man walking his dog without trembling to death and holding back tears as hard as I could. I still can't. I did not receive any physical injury from this. When I was taken to the Oshawa hospital I was asked questions and I was given a pap-smear. They gave me medication to prevent STD's, which I luckily do not have. Now that it's been almost a year since this occurred I've learned to believe in myself and I realized that it is not my fault and it never will be. I've coped with what happened to me by being around good people and by being strong. The only injuries I received from this are emotional pain, anxiety, depression and paranoia. Yes I consider those injuries because of the way they've impacted my life which does hurt me. Obviously I never want to see the man that sexually assaulted me ever again, I shouldn't have to be put through that. No one should.
23The victim's mother added these comments:
I am [the complainant's] mom I was asked to please fill out a victim impact letter or even just a regular letter in regards to how the incident has changed [her]. Where to start I guess the typical words no one deserves to go through what [she] went through. This guy has destroyed [her] life with what he did to her. When it first happened [the complainant] took the week off school her case worker told her to deal with the problem and get back to school cause she didn't believe [her] (that is a totally different case). So [the complainant] went back to school for I believe it was about a week and between all kids bugging her and constantly asking her questions about what happened she had had enough the principal and vice principal didn't do anything about it. She was just starting to get good grades, she dropped out of school, she won't go anywhere by herself now. She either wait's till her boyfriend gets to her place or her sister is home or we pick her up. [The complainant] won't even get on public transit now cause of the incident. It has seriously impacted her. She won't look for a job cause that means she has to go out on her own to look. [The complainant] WILL NOT go out on her own anymore cause of what this guy did to her. She won't talk about what happened to anyone as well as to what happened. We try to get her to talk but to no avail.
The Defendant's Comments about the Index Offences
24The assessments prepared by the two psychiatrists include the defendant's comments about the crimes in question. There is no significant difference in these accounts and neither was challenged by the parties. What follows is taken from the report by Dr. Pearce:
On the date in question, he was moving his friend's mother's furniture into storage (with the friend, Peter). They started drinking beer at approximately 10:00 or 11:00 in the morning. Rachel [the defendant's domestic partner] attended at Peter's mother's house and "she was mad obviously, because I was drunk. She was verbally aggressive towards people there, telling them they shouldn't have given me booze". He entered into her vehicle and while en route to Pickering, Rachel was "arguing, arguing with me. So I told her to pull over, I was getting out. I had a feeling that I was going to end up in jail and I said I was out of there". She dropped Mr. Simpson-Fry off on the side of the road, in Whitby. He then boarded a bus and attended at a bar in Pickering. He estimated arriving there in the early afternoon, around 14:00 or 14:30 hours, and he "stayed there all day drinking". He had intermittent contact with Rachel during that time. That evening at approximately 21:00 hours, he received a telephone call from the police "stating I was harassing her and threatening her. They told me to turn myself in, as I was going to be arrested". He was "cut off" at that bar and thus attended at another bar. He met some friends there and continued to consume alcohol. He swallowed "two caps" of GHB, provided to him by a friend. By that point, Mr. Simpson-Fry had had "at least 20 beers", as he was consuming "at least" a pint of beer per hour.
Mr. Simpson-Fry remained at the second establishment "until it was late. I don't really remember the time". He was "cut off at that bar too" and he "then ventured out". He could not recall in which direction he headed.
Mr. Simpson-Fry informed that the sexual assault transpired "just around the corner" from the second establishment he had frequented. He had not met the victim previously. He struggled in providing additional details, stating, "I only remember little flashes of the night. Next thing you know, I'm waking up in a park, Douglas Park. It was 07:30 or 08:00 in the morning and then I got arrested. I guess they were searching the neighbourhood for me. I jumped in the back [of the police car] and said I was wanted for [what had occurred with] Rachel. And that was it".
Mr. Simpson-Fry informed that the victim was 19 years of age at the time of the assault. He did not plan to assault her. He could not recall forcing himself on top of her or penetrating her. He was unsure how many times they had sexual intercourse. He did not believe that he wore a condom though he could not specifically recall same. He also could not recall threatening her or preventing her from leaving the area. He stated, "They said it happened on Liverpool, which is a pretty main street". When asked, he clarified that this comment was not meant to suggest that the assault did not occur. He could not recall ejaculating or being aroused that evening.
Mr. Simpson-Fry could not recall how long he was with the victim. When asked how he felt about what occurred, he replied, "I feel terrible. Just disgusted. I would never do anything like that when I'm sober. I don't understand why this just happens".
The Defendant's Background
25The defendant was born on September 29, 1983. He is now is now almost 33 years old. Much of the information about him came to me by way of the two assessments. As noted, they include self-reporting by the defendant and a review of review of court, correctional, and police records. Apart from the issue of what use, if any, can be made of the police records, the information about the defendant's background is not in dispute. As I will explain later, I have generally ignored the police (and most correctional) records. Also, as was the case with respect to the defendant's comments about the crimes in question, the reports presented by the two psychiatrists are consistent.
26The defendant was raised by his biological parents in Haliburton and Pickering. He is the eldest of three children in the family. When asked about his future plans, he stated,
I hope to get out and my lawyer tells me I'll be under some strict conditions. I would then work in the city, as a roofer. I'm doing grade 11 and 12 courses and I'm hoping that when I get out, I can enroll in a construction superintendent program at George Brown [College]. My plan is to hopefully build a few years of living proper in the community under restrictions and be able to build back a relationship with [former employer] so I can start building buildings again…with some schooling in the background. I want to get out and do good by everybody. I want to stop drinking, that's really my goal too.
27The defendant has worked as a landscaper, labourer, and roofer. He described himself as a good employee but has lost jobs because of his frequent incarceration and missed days of work "at times" given substance abuse. He added that he is "terrible" at managing his financial affairs, "because of the cocaine habit, it just goes. Or you get drinking in the bar and…you wake up at the end of the weekend with no money".
28The defendant first drank alcohol at age 12. He started consuming on a daily basis, up to 12 beverages a day, about a decade later. His father and brother have also abused substances. The defendant admitted that his alcohol abuse has caused social, occupational and legal difficulties and noted that he has experienced amnesia secondary to over-consumption "lots of times". He told the two psychiatrists he would participate in substance-related treatment programming, including anti-alcohol medication.
29The defendant first smoked marijuana at the age of 11 and regularly consumed it around the age of 14. He stopped two or three years later because it made him "zone right out and feel completely antisocial". However, he replaced this with cocaine and his consumption became "problematic" at the age of 23 or 24. He eventually used up to two grams of cocaine daily, often alongside his partner (Lyndsay). He typically snorted this substance and sometimes smoked it. This caused social and financial difficulties. He financed his cocaine use by working and, at times, he sold this substance. He experimented with opioids (heroin and Oxycontin) while in the penitentiary. On rare occasions he used hallucinogenic mushrooms and LSD. The defendant has taken ecstasy – up to four days per week over one three-month period. He explained that he "then got locked up and couldn't sleep for two weeks. I got dope sick and that was the end of that". The defendant has experimented with GHB; in fact, he used this substance (along with alcohol) prior to committing the index offences.
The Defendant's Criminal Record
30The defendant was first convicted, in youth court in 2000 and has continuously offended since then. His criminal record is set out below. Also included are comments made to the psychiatrists and transcript excerpts, where available.
On April 25, 2000 in Oshawa Youth Court, the defendant was convicted of two counts of mischief over $5,000, possession of break in instruments, carrying a concealed weapon and fail to appear. He served 11 days of pre-sentence custody and was handed 10 days in secure custody followed by 30 days in open custody. He was placed on probation for 12 months.
On September 12, 2000 in Oshawa Youth Court, the defendant was convicted of assault, uttering threats and fail to comply with disposition. He served 34 days of presentence custody and was given a 15-day secure custodial disposition. He was placed on probation for 18 months. Mr. Simpson-Fry could not recall the details and suggested it stemmed from "just a drunken night".
On April 24, 2001 in Oshawa Youth Court, the defendant was convicted of 2 counts of assault, assault with a weapon, two counts of assault peace officer, two counts of fail to comply with disposition and possession of a scheduled substance. He served 40 days of pre-sentence custody and was handed a 50-day secure custodial disposition to be followed by 30 days in open custody. He was placed on probation for 18 months. The defendant told the psychiatrist, "I remember being drunk and fighting .... We fought and police were called and I fought with police I guess. They were probably just trying to arrest me but I was drunk and disorderly."
On August 21, 2001 in Oshawa Youth Court, the defendant was convicted of uttering threat and fail to comply with disposition. He served five days of pre-sentence custody and was given a 14-day secure custodial disposition followed by 40 days in open custody. He was placed on probation for two years and a discretionary prohibition order was issued.
(First Adult Entry) On January 4, 2002 in Oshawa, the defendant was convicted of assault with intent to resist arrest and fail to comply with probation order. He served 39 days of pre-sentence custody and was handed a 1-day custodial disposition. He was placed on probation for two years and a mandatory or discretionary prohibition order was issued. The defendant does not recall this incident as he was "extremely intoxicated at that time".
On June 28, 2002 in Oshawa, the defendant was convicted of assault with intent to resist arrest, fail to appear and fail to comply with probation order. He served eight days of pre-sentence custody and was given a seven day custodial disposition. The defendant does not recall details relating to these offences and believes he was intoxicated at that time.
On August 13, 2002 in Oshawa, the defendant was convicted of causing a disturbance and fail to comply with a probation order. He was handed a 14-day custodial disposition and was placed on probation for two years. In commenting on this, the defendant stated, "Sounds like another drunken disturbance. Like I said before, there was quite a few of them. Generally that is most of my record, just a couple pages of being drunk and stupid".
On September 13, 2002 in Oshawa, the defendant was convicted of fail to comply with a probation order. He served 14 days of pre-sentence custody and was handed a 21day intermittent sentence. He was "extremely intoxicated".
On November 25, 2002 in Oshawa, the defendant was convicted of unlawfully at large, theft under $5,000 and driving while ability impaired. He was handed a 75-day custodial disposition and was prohibited from driving for 1 year. He stated that he was "drunk and waiting for a cab and somebody pulled up and left their car running". He impulsively decided to take the vehicle. He was unlawfully at large at the time.
(First Federal Sentence) - On July 11, 2003 in Newmarket, the defendant was convicted of robbery, forcible confinement, use of imitation firearm during commission of an offence and fail to comply with disposition (YOA). He served 107 days of pre-sentence custody and was given a two year custodial disposition. He was placed on probation for 3 years and a mandatory prohibition order was issued. A pre-sentence report noted that the defendant had "failed to avail himself of counselling and of treatment opportunities" in the past, for his alcohol misuse. The author suggested that he required "intensive treatment in the area of alcohol abuse…for an extended duration"….
I was the judge who sentenced the defendant. The transcript reveals that I noted a "very serious criminal record" that was "remarkable" given the defendant's age. The defendant told me he wished to get help for his alcohol abuse and added, "I was only there for a break and enter. I'd just like to say that I'm seeing now – sort of opened my eyes that I'm not just affecting myself but also people around me".
When asked about this conviction, the defendant told Dr. Pearce that the victim was "an older drug dealer". He attended at the victim's home after "setting up a buy" - albeit it was "bad timing and the entire family was present. The defendant reported that he wanted to steal cocaine or money from the victim but he left empty-handed. He had brought an air pistol with him and he wrapped the imitation firearm in a bandana. When asked about the forcible confinement charge, he replied, "It was just that I was in the dwelling with him. I didn't tie him up or anything". The victim was not injured. He was not intoxicated at the time of these offences.
The defendant was federally incarcerated and statutorily released. Ten days later he was apprehended because "I thought it was a good idea to have some drinks in the basement. A few of us, residents in the halfway house, then went to the bar across the street …I think someone called the cops as I was being drunk and disorderly."
The defendant was released again. He reported that three weeks later, "I got into a fight with my roommate at the halfway house. It was alcohol related. The staff there noted a cut on my jaw and…I wouldn't divulge who did what… So I got sent back".
On December 21, 2004 in Kingston, the defendant was convicted of assault with intent to resist arrest and resist arrest. These charges stem from the bar fight referred to above when the defendant was first statutorily released. He was given a 50-day custodial disposition, to be served consecutively to the unexpired portion of his sentence.
On May 16, 2006 in Oshawa, the defendant was convicted of drive while ability impaired, fail or refuse to provide sample, assault with intent to resist arrest, uttering threats and theft over $5,000. He served 180 days of pre-sentence custody and was handed a 180-day custodial disposition. He was placed on probation for 2 years. The defendant reported that he entered a motor vehicle while intoxicated, "to get smokes". He denied that he ever planned to drive the car. The police "ran my name and next thing I know, I'm going to jail". He believed he threatened the arresting officer, "I was drunk and probably saying something stupid". He could not recall details in relation to the theft over $5,000 entry.
On August 27, 2007 in Oshawa, the defendant was convicted of assault and fail to comply with probation order. He served 90 days of pre-sentence custody and was given a suspended sentence. He was placed on probation for 24 months. Defence counsel told the court that the defendant had "shown maturity": He wished to enter into a carpenter's union and he was going to "get out of Oshawa" to avoid further difficulties and "start fresh". The defendant told the judge that he was participating in counseling for "mainly alcohol abuse".
On April 8, 2008 in Oshawa, the defendant was convicted of assaulting peace officer and causing a disturbance. He served 86 days of pre-sentence custody and was handed a suspended sentence. He was placed on probation for 12 months and a discretionary prohibition order was issued.
(Second Federal Sentence) On April 9, 2009 in Oshawa, the defendant was convicted of robbery with violence and fail to comply with probation order. He served 18 months of pre-sentence custody and was handed a four year custodial disposition.
The defendant told the psychiatrist that the robbery was, "… a spur of the moment kind of thing. I walked into the store and no one was behind the counter. It was about 08:00 hours, after a few nights of bingeing". He said the store owner was not injured; "she was shaken up a little bit given the events that had taken place. She was in shock as it was so early in the morning. She went into the back and came back and there I was. She got pushed out of the way". The defendant stated he committed the robbery on impulse and was coming off a high from cocaine and crystal methamphetamines.
The transcript of sentencing before Justice Sosna reveals that the defendant did more than push the victim out of the way. Video surveillance showed that he was behind the counter with the clerk looking at something when suddenly, and without warning, the woman was grabbed around the face or throat area and thrown to the ground, struggling to be released, flailing her feet and her arms. The defendant then lifted her up and held her as they walked around the counter, before the victim broke free and fled the store. Defence counsel suggested the defendant was coming off a period of heavy drug ingestion and committed this robbery to pay off drug debts.
The defendant was statutorily released on December 7, 2010. This was suspended on March 4, 2011 after he returned to the half-way house in a highly intoxicated state. He was released again on July 28 but arrested one month later for the offences noted below.
On January 17, 2012 the defendant was sentenced for two counts of assault and one count of assaulting a peace officer. The incident occurred at a pub. He was given a four month custodial disposition and placed on probation for two years. He was released from custody on March 17, 2012 but re-incarcerated the next day for the offences noted below.
On April 23, 2012 the defendant was sentenced to assault, mischief, and failure to comply with probation. He was handed a 53 day jail sentence in addition to 37 days already spent in custody. He was placed on probation for two years.
On June 3, 2012 the defendant was convicted of assault, mischief, and failure to comply with probation. He was given an 81 day intermittent sentence in addition to 39 days already spent in custody. He was placed on probation for two years. The incident involved a domestic partner and the defendant had consumed alcohol.
On October 12, 2013 the defendant was charged with assaulting his domestic partner. While incarcerated for the index offences in this dangerous offender hearing, he was convicted of assault.
On October 13, 2013 the defendant committed the index offences.
Psychiatric Evaluation and Opinion
31The two psychiatrists in this case agree about much of the information leading up to their respective opinions. Their diagnosis, risk assessment tools, and test results are consistent. Both conclude the defendant is a significant risk to public safety. They differ with respect to whether and how that risk can be managed. I will focus on this difference and it will suffice to briefly summarize the preliminary non-disputed matters.
32Doctors Pearce and Gojer both find that the defendant does not suffer from a major mental illness, such as schizophrenia or bipolar affective disorder. He does not appear to have met criteria for a major depressive episode. He does not have a history of inappropriate sexual behaviour. Both doctors conclude that the defendant meets the criteria for a diagnosis of antisocial personality disorder and substance use disorder. With respect to the latter, both agree that alcohol dependence is severe. Dr. Pearce characterized it as a polysubstance dependence because drugs have also been a significant problem for the defendant.
Diagnosis
33Dr. Pearce noted that the defendant has, for many years, abused alcohol. He has been involved in dozens of incidents related to the overconsumption of this substance and while intoxicated, he is violent and unpredictable. He developed limited insight into his alcohol dependence. He has also abused other substances, including cocaine. His use of alcohol and cocaine has been most problematic and has repeatedly resulted in social, occupational and most importantly, legal difficulties. While he has not attended at a detoxification facility or for inpatient substance abuse treatment, he has, while incarcerated and in the community, participated in substance-related treatment programming. Nevertheless, he has repeatedly returned to use of substances. Dr. Pearce wrote that the defendant, "clearly suffers from a very severe, treatment-resistant polysubstance use disorder."
34The defendant has an unenviable criminal record. Dr. Pearce pointed out that while many offences were impulsive and precipitated by substance misuse, other, more serious offences were committed while the defendant was sober:
Maladaptive characterological traits have been evident longitudinally and also when sober. That is, Mr. Simpson-Fry can present as manipulative, duplicitous, self-centered and with a significant temper. He has assaulted strangers, his partner and police officers and now has sexually assault an adult female not known to him. He has consistently failed to abide by judicial orders to the extent that he repeatedly violated his statutory release. He has often demonstrated irresponsibility and a lack of remorse. Overall, it is clear Mr. Simpson-Fry suffers from antisocial personality disorder; while his temper becomes more prominent when he is disinhibited by the effects of alcohol or other substances, he does not, in my opinion, suffer solely from a substance use disorder.
35Dr. Gojer reached similar conclusions:
Mr. Simpson-Fry's behavior that has repeatedly brought him into conflict with the law is indicative of an antisocial personality disorder. His offending has been acquisitive and interpersonal. He has a long history of alcohol and drug abuse. The use of drugs and alcohol to some degree has worsened the expression of his antisocial personality disorder.
36According to Dr. Pearce, the essential feature of antisocial personality disorder is a pervasive pattern of disregard for, and violation of, the rights of others, occurring since the age of fifteen. The disorder is indicated by three or more of the following characteristics:
- Failure to conform to social norms with respect to lawful behaviours
- Deceitfulness as indicated by repeated lying, use of aliases, or conning others for personal profit or pleasure
- Impulsivity or a failure to plan ahead
- Irritability and aggressiveness
- Reckless disregard for the safety of self or others
- Consistent irresponsibility as indicated by a repeated failure to sustain consistent work behaviour or honour financial obligations
- Lack of Remorse
37Dr. Gojer, who had the benefit of reading Dr. Pearce's report before preparing his, did not dispute the description of anti-social personality disorder.
Risk Assessment Tools
38The two psychiatrists used the following risk assessment tools: the Violence Risk Appraisal Guide (VRAG, to be used when the index offence was a non-sexual violent offence) and the Sex Offender Risk Appraisal Guide (SORAG, to be used when the index offence was a sexual offence). The latter two incorporate the Psychopathy Checklist-Revised (PCL-R), which in and of itself is a useful assessment tool, and is also of assistance in predicting compliance with community supervision and treatment responsiveness. Dr. Gojer also used the SVR20. Dr. Pearce is less familiar with that tool and relied on the HCR20. Moreover, Dr. Pearce employed the Static99R, whereas Dr. Gojer used a slightly different version, the Static 2002R.
39Dr. Pearce noted that scientific research has consistently shown that these actuarial methods of risk assessment are the most accurate. They provide probabilistic estimates of risk, based solely on empirically established relationships between predictors and the outcome of interest; a probabilistic estimate of risk indicates the percentage of people with the same score, on a given metric or risk assessment tool, who would be expected to re-offend within a defined period of opportunity.
40Dr. Gojer pointed out that risk assessments are complex procedures and fraught with controversy. However, evaluating an individual using an array of techniques and instruments allows one to understand the qualitative and quantitative components that contribute to risk assessment. He added that for risk assessments to be meaningful, it is important to examine dynamic factors that can be managed.
41The reports filed in evidence describe the nature and function of each risk assessment tool. The two expert witnesses achieved the same result on the PCL-R; namely, 27 out of 40. A good score is under 10 and this is the norm. A rating of 30 or more indicates a psychopath. Moreover, the VRAG test results point to a high risk of violent recidivism. The doctors differ with respect to the test results dealing with the risk of committing a sexual offence. Dr. Gojer disputes the opinion of Dr. Pearce that the defendant is at a high risk.
Prognosis: Management of Risk
42As already noted, it is with respect to the prognosis or management of the risk that the psychiatric evidence is in some conflict. I say "some conflict" because both doctors acknowledge that the defendant is a significant risk to public safety. However, one is of the opinion that this risk can be managed through a LTSO and the other does not. I will quote liberally from the evidence with respect to this debate.
43It is the opinion of Dr. Pearce that;
Mr. Simpson-Fry is likely to re-offend violently and/or sexually, absent significant interventions. This gentleman has demonstrated a repetitive pattern of behaviour with respect to his assaultive behaviours. He has assaulted many persons he has come into contact with while intoxicated and he has been involved in two robberies. The sexual offence he committed (which included forcible confinement and uttering threats) is also evidence of violence and aggression, from my perspective. Such actions could quite easily cause serious physical injury and/or severe psychological damage to his victims.
With respect to "indifference to the reasonably foreseeable consequences of his/her behaviour", Mr. Simpson-Fry has repeatedly offended in a violent fashion while intoxicated even though he has participated at least twice in substance abuse treatment programming. He has been made aware (and at times asserted himself) that his predilection for alcohol can cause him to act violently. Notwithstanding same, he has, without fail, turned to alcohol and/or other intoxicants even when prohibited from doing so and even when his support network has insisted that he avoid substances of abuse. Thus there is, in my opinion, significant psychiatric support for the notion that Mr. Simpson-Fry has manifested "indifference to the reasonably foreseeable consequences of his behaviour".
The above-noted risk assessment suggests that Mr. Simpson-Fry presents with a substantial risk of violent recidivism; he is, in my opinion, at high risk of committing another violent offence. From a psychiatric perspective, whether he would be suitable for a Long-Term Supervision Order (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 an LTSO) and after the expiry of such an Order.
Mr. Simpson-Fry's relevant diagnoses are his personality disorder (antisocial personality disorder) and his very severe substance use disorder. With respect to his substance use disorder, it is important that Your Honour be aware that these disorders are treatment resistant and that they have a high relapse rate. Mr. Simpson-Fry has participated in intensive treatment though has never been able to maintain his sobriety. His insight into his problematic use of alcohol and drugs has often been limited, though during the interview this seemed to have improved and he was willing to partake in additional programming (including pharmacotherapy). Notwithstanding same, I have ongoing concerns about this dynamic risk factor. That is, CSC officials have not been able to risk manage Mr. Simpson-Fry even under the strictest conditions (in a medium secure correctional facility and at a CCC) to the extent that he re-offended violently. He has acknowledged recent use of drugs (marijuana) during this period of incarceration and his unwillingness to abide by restrictions has been prominent for nearly two decades.
Despite his stated intentions, there is little reason for optimism that Mr. Simpson-Fry's substance use disorder can be treated and managed even while under a LTSO, let alone upon the expiry of such an Order in 10 (or possibly more) years. Even if he were to comply with and tolerate disulfiram, which may or may not occur, there is an ongoing risk of other substance misuse that cannot be similarly targeted. I am not satisfied that he would remain abstinent for the next decade or following that.
With respect to this gentleman's personality disorder, the prognosis for same is typically guarded as treatment for personality disorders is challenging; maladaptive traits are longstanding and thus resist change. While I cannot conclude that Mr. Simpson-Fry is psychopathic, his ingrained antisocial attributes remain prominent even when he is not turning to use of intoxicants. That being said, he does have some positive attributes; he can present as hard-working and others have commented that he is a "good guy" if not abusing alcohol or drugs.
It is also worth considering whether Mr. Simpson-Fry will "burn out" as he ages; he is now 31 years of age. There is some scientific literature that suggests that offenders, as they enter into their fifth decade of life, may become less likely to commit violent and non-violent offences.
In summary and considering the afore-noted factors, there are few reasons for opptimism that this gentleman will be manageable while incarcerated and subject to a LTSO, or following the expiry of such an Order. At this juncture, I cannot conclude that there is a "reasonable expectation" of eventual control of the risk in the community, from a psychiatric perspective.
44In trial testimony, Dr. Pearce acknowledged that anti-alcohol medication (disulfiram) can be an effective means of controlling those who offend because of the abuse of this substance and that urinalysis is efficient monitoring tool. He noted that the defendant's present agreement to take the drug is a "good sign" but cautioned that one must "look beyond words to actions in risk assessment". Moreover, disulfiram will not work with respect to drugs such as cocaine, GHB, marihuana and opiates that the defendant also abuses. Some medications exist, such as methadone for an opiate addiction, but none are as helpful as the anti-alcohol treatment.
45Dr. Pearce testified that the treatment for anti-social personality disorder is primarily a counselling program. He noted that "success is mixed". The greatest impact is the aging process; "older means less risk'.
46Dr. Gojer asked a colleague, Dr. Kalia to "spend a few sessions with Mr. Simpson Fry to determine if he was a suitable candidate for treatment." Dr. Kalia wrote that:
Mr. Simpson-Fry clearly recognized his problems that resulted in a long history of criminal involvement. He readily acknowledged and identified factors that played a major role in his criminal behaviour. He understands the causal relationship between his personality difficulties and criminal behaviour….. He admitted that he was in denial throughout his life and rationalized his alcohol abuse. He explained that his difficulties with anger were linked to his alcohol abuse. He would become confrontational and aggressive after consuming alcohol.
He also mentioned that he did not attend many programs offered to him. "I was ashamed of discussing my actions in the group". He said he was always running away from reality and did not have the courage to address his "faults". He said his "inaction" and not heeding the advice of professionals and family to seek treatment led him where he is today. "This is the reason I am facing the Dangerous offender label".
He said he is now aware that his behaviour adversely impacted many individuals in the past. He said his aggressive and violent actions impacted many victims. He said he feels "ashamed and disgusted" how he treated many people in his life including his loved ones.
Mr. Simpson-Fry said he has realized that he needs assistance from professionals to address his long-term difficulties. He said he is confident to focus on following through with his treatment.
Overall, Mr. Simpson-Fry displayed a good propensity for insight and critical self-reflection. He reported a positive attitude towards the possibility of personal change, the value of therapy, and the importance of personal responsibility.
47On the basis of Dr. Kalia's report and the aforementioned risk assessment tools, Dr. Gojer provided the following opinion:
Mr. Simpson-Fry has clinically modifiable factors that could attenuate his risk. His alcohol abuse can be targeted by several clinical methods. The use of Antabuse (disulfiram), a chemical deterrent, and the use of Campral to reduce cravings for alcohol are pharmacological interventions that have not been tried up to this time. They are known to be effective in conjunction with the psychosocial therapies like individual and group therapies and community support groups like AA. Making abstinence and attendance for the therapies and enforcing the pharmacological treatments can be made secondary to stipulations that are part of a parole release. This is likely to see a significant decrease in aggression and violent acting out. It also will allow him to focus on education, stable employment and a stable relationship.
The penitentiary has numerous programs that would benefit him. This includes anger management programs, domestic violence programs, sex offender programs and substance use programs. These programs can be supplemented with cog skills and socialization programs to enhance pro social attitudes. He has been assessed has having the capacity and amenability to participate and benefit from these programs. To avail of these programs he will need a substantial period of time in custody. A sentence of 5 to 8 years could see him engage in the programs and repeat them if necessary. It would take him close to the age of 40 years.
If a substantial period of follow up under strict conditions for another 10 years is imposed, this would take him to the age of about 50 years. A Long Term Offender Designation superimposed on a Dangerous Offender finding will allow the parole board to effectively manage him in the community. This will allow the imposition of pharmacological treatment, residential requirements, community treatment, abstinence from drugs and alcohol and random testing to ensure compliance with sobriety. It will allow for his work, education and relationships also to be monitored. At the age of 50 years, one can expect maturity, adherence to a life style that was set in place for 10 years, links to community supports and ties, and the associated age related attenuation of aggression and need for drugs and alcohol. (The recommendations of Dr. Pearce are helpful in this respect.) There could then be a reasonable possibility of eventual control of his risk in the community.
[The defendant] is at moderate to high risk of further violent act and domestic situation and low risk for sexual offence. Risk is tied to use of alcohol. Clinically, his history of antisocial behaviors, concomitant abuse of alcohol both in the community and while incarcerated, and problems regulating his temper suggest that he is a high risk to reoffend violently. His history of compliance while on judicial release and while in custody has been problematic. He has not participated or completed any treatment program satisfactorily. On the other hand, an assessment of treatment amenability appears to have some promise. Mr. Simpson-Fry's history of sexual offending stands out as unusual in his long history of general and non-sexually violent offending. When applying risk assessment instruments that combine his history of violent offending with his sexual offending, he comes across as a high risk to reoffending sexually. The Static 2002R rates him as a lower risk and clinically, in the absence of a sexual deviation, I see his risk to reoffend sexually as low.
48In trial testimony, Dr. Gojer noted that the defendant's high risk of re-offending means he requires high intensity programs while incarcerated follow-up maintenance programs while in community. He agreed that persons subject to a LTSO cannot be compelled to take treatment, but they can be punished for non-compliance "and this is highly coercive". He conceded that to ensure the defendant takes the anti-alcohol medication means having him attend an outpatient clinic on a regular basis or have nurse visit him; "some system to watch him swallow the pill".
Management of LTSO by the CSC
49Ms. Cathy Phillips is employed by the Correctional Service of Canada (CSC) and has knowledge of the procedures of that service and the parole board, including the management of persons subject to LTSOs. Her expertise in this regard is conceded by the Defence.
50Ms. Phillips testified that the CSC is a world leader in rehabilitating offenders. The CSC offers three programs in its institutions at moderate or high intensity: (1) Multi-targeted (100 sessions for high intensity and 50 for moderate); (2) Sex offenders (104 sessions at high intensity and 52 for moderate); (3) Aboriginals (112 sessions at high intensity and 56 for moderate). This is a new model that delivers rehabilitation programs in a different way. On arrival at the institution, an offender placed is placed on a wait list for the applicable stream. There is a continuous intake process; at any given time there are 12 offenders in each program with people entering and exiting the stream. A maintenance plan is offered once an inmate is released.
51According to Ms. Phillips, the CSC no longer provides specific programs for alcohol or substance abuse. The new model adopts a holistic approach that addresses individual needs. Substance abuse counselling, if applicable, will be part of that. An offender cannot be forced to take a program. However, the failure to participate can adversely affect parole eligibility.
52Ms. Phillips testified that a LTSO does not affect a determinate sentence. That is, the fixed sentence is subject to the usual rules pertaining to parole and release, without reference to the LTSO. The latter is simply an "add on" and results in a longer period of supervision. A person who fails to comply with a term of an LTSO is subject to a 90 day suspension and re-incarcerated. In addition, the person can be prosecuted pursuant to the provisions of the Criminal Code. In such a case, the normal criminal process applies with the right to a bail hearing and the setting of a trial date or guilty plea. If convicted, the offender can be sentenced up to 10 years. While serving such a sentence, the LTSO is suspended.
53Conditions set by a judge in imposing a LTSO are not binding on the Parole Board. The standard conditions include, keep the peace and be of good behaviour, advise of residence address and any changes thereto, report as required, remain in Canada, advise if arrested for any offence, carry the parole card at all times and produce it to police and CSC officials, not to possess weapons, and report changes in work, finances or domestic relationships that may affect compliance with LTSO. In addition, the Parole Board may establish special conditions that are related to the management of risk, such as taking medication and counselling. With respect to medication, even if this term is imposed, an offender cannot be compelled to consume it. However, the failure to comply could attract a 90 day suspension and/or prosecution for breach of the LTSO.
54The Parole Board may include a special term to monitor the offender for substance abuse. In such a case, an offender is subject to random urinalysis, at least three times in the first 90 days, and more often throughout the period of the LTSO if there are reasonable grounds to believe it is needed.
55Those subject to a LTSO are supervised at community correctional centres. Up to 40 offenders are accommodated at such centres and all are typically subject to a curfew. Ms. Phillips noted that the odors are not locked and offenders have access to the community. Staff includes a commissionaire on duty at all times, four parole officers, a re-integration worker, and a once weekly visit by a psychiatrist.
Dangerous Offender Designation
56As already noted, there is no dispute that the defendant meets the statutory criteria to be designated a dangerous offender. However, the Crown and Defence do not agree that all routes to this designation apply. Related to this debate is an evidentiary issue raised during the sentence hearing. The material before me, and relied upon by the doctors, includes the facts of the index offence, the defendant's criminal record, court transcripts with respect to some of the prior convictions, self-reporting by the defendant, correctional service reports, and police synopses pertaining to the criminal record. The Defence argued that the correctional service reports and – especially – the police synopses (and occurrence reports) are not admissible on the ground of unreliability; see R v Gibson 2012 ONSC 5527. The Crown pointed to section 723(5) which provides that hearsay evidence can be admitted at a sentence hearing. I need not resolve this debate as I have avoided reliance on the impugned information, including references to it in the reports of Doctors Pearce and Gojer. I have focussed on the evidence that the parties agree is relevant and admissible.
57However, the following non-controversial correctional service information is worthy of note. The defendant has been assessed for risk on a number of occasions. These are the results:
- May 14, 2001 - High risk of re-offence.
- July 10, 2001 - High risk of re-offence.
- September 13, 2001- High risk of re-offence.
- November 16, 2006 - Very high risk to re-offend.
- June 22, 2012 - Very high risk to re-offend.
- September 18, 2013 - High risk of re-offence.
58The Crown asserts the Defendant should be declared a dangerous offender based on sections 753(1)(a)(i), 753(1)(a)(ii) and 753(1)(b). The Defence concedes that the number and nature of the defendant's prior offences "easily satisfy 753(1)(a)(ii)". Counsel fairly points out that the many convictions for violence and the available transcripts establish a "pattern of persistent aggressive behaviour". I agree and would only add that I have also considered the defendant's self-reporting about these offences.
59The Defence argued that the Crown cannot rely on 753(1)(a)(i) because there is no evidence of repetitive behaviour. Counsel stated, "Admittedly, the defendant is almost always drunk when he commits crimes but intoxication is a factor of criminality not a pattern of repetitive behaviour that indicates he is likely to cause death or bodily harm". The Defence noted that there are no past convictions for sexual offences and there is no evidence that the defendant would show a failure to control his sexual impulses. Counsel suggested that section 753(1)(b) does not apply as a route to a dangerous offender designation.
60The Crown accepts the Defence concession with respect to section 753(1)(a)(ii) and is content to move forward on that basis. In any event, counsel suggested that notwithstanding Dr. Gojer's opinion regarding the defendant's risk of re offending sexually and i n spite of the fact the defendant is not known to have been involved in any prior sexual assaults, I should prefer the opinion of Dr. Pearce that the index offence shows a failure to control sexual impulses and this raises a future risk.
61I agree with the Defence that section 753(1)(b) does not apply to this case. The evidence does not suggest a "failure by the defendant to control sexual impulses". On the contrary, the index offences are part of are "pattern of aggressive behaviour". However, I reject the Defence arguments with respect section 743(1)(a)(i). The index offences are also part of a repetitive behaviour by the defendant that is likely to cause death or injury to others through failure to restrain this behaviour – namely, his severe substance abuse and anger.
62Since the defendant comes within the statutory criteria, I must declare him to be a dangerous offender. In R. v. Szostak 2014 ONCA 15, the Court of Appeal for Ontario commented on the 2008 amendments to the Criminal Code:
As I will show, there has been an important shift in the way in which the legislation works. The trial judge's discretion has narrowed in one sense, the judge no longer having discretion not to find a person a dangerous offender who fits the definition. But the discretion has been broadened in that the judge has wider sentencing options for a person who does come within the dangerous offender definition. In my view, these changes have an impact on the interpretation of the dangerous offender definition. In particular, it is my view that the possibility of successful treatment is of limited application in determining whether the person is a dangerous offender. The possibility of successful treatment is significant in choosing the appropriate disposition.
Position of the Parties on Sentence
63The Crown argued that an indeterminate sentence is required in this case. Should I not agree, it is the position of the Crown that a fixed sentence of nine years be imposed, less presentence custody at a credit of 1 to 1, followed by a ten year LTSO. The Defence submitted that an appropriate disposition is seven years, less presentence custody at a credit of 1.5 to 1, followed by a ten year LTSO.
64The Crown pointed to R v Sawyer 2015 ONCA 602 as an instructive case and suggested that in dismissing an appeal from an indeterminate sentence, the Court of Appeal "upheld considerations which (albeit in the context of treatments to reduce sex drive as opposed to treatments to reduce alcohol abuse) appear to have equal value in the present case". At trial, an expert had proposed a risk management system that included, medication, assuming it could be tolerated medically, random blood testing to monitor compliance, further issue-specific treatment including maintenance therapy once in the community, and close supervision in the community. In rejecting the proposal, the trial judge noted that (1) in spite of an expressed willingness to take medication aimed at treating the defendant's particular issue, that willingness was untested, (2) that in spite of an indirect "follow-treatment condition" enforcement mechanism, the Parole Board could not directly enforce medical interventions, and (3) that the threat of a 'Breach-LTSO' charge was only of potential assistance if it could be proven that failure to take the medication occurred without a reasonable excuse and that excuse could potentially include unacceptable side effects which the sentencing judge did not have definitive evidence on. Each of these findings was upheld by the Court of Appeal.
65The Crown suggested the evidence before me is similar to Sawyer. In this regard counsel noted that Ms. Phillips testified that correctional authorities cannot force a person to take mediation and that their role is essentially limited to offering a safe deposit box where medicine may be safely stored at the half way house or community centre. In any event, it is the evidence of Dr. Pearce that the defendant has a serious, treatment-resistant, polysubstance use disorder and an antisocial personality disorder. With respect to the former, the defendant has not participated in and/or benefited from treatment, including intensive treatment. Dr. Pearce also expressed the opinion that even if the defendant could deal with his alcoholism in a satisfactory manner, he would likely re-offend.
66The Crown asserted that the opinion of Dr. Gojer that the defendant would likely to benefit from treatment because he is essentially an untreated person is contrary to the evidence in this case. Counsel added that the defendant's "purported amenability to treatment is nothing more than mere words – no different than the words uttered but obviously not followed through on many prior occasions.
67The Defence argued that Sawyer is distinguishable because the Court of Appeal also upheld the trial judge's finding that the "appellant had demonstrated a pattern of repetitive predatory sexual behavior". Counsel added that "determining dangerousness…must involve different considerations when one is dealing with a sexual predator whose failure to control their impulses causes harm to children as opposed to an aggressive offender who fails to consider the reasonable consequences of their actions that might cause harm to others." In any event, it is submitted that the circumstances and plan to control risk for the defendant much different than that in Sawyer and lead to the conclusion that there is a reasonable expectation of control in the community.
68The Defence rejected the suggestion that the defendant cannot be trusted to honour his promise to take treatment: "regardless of the past, Mr. Simpson-Fry is now facing the possibility of a life sentence without parole. In light of these circumstances, it is entirely possible that he has now made fundamental realizations about his behavior". In this regard, counsel noted what was said in R v Badger 2012 CarswellSask, at paragraph 99: "Motivation is motivation, and if it derives, even in significant part, from fear of being locked away as a dangerous offender, it is not the less real because of that".
69It is acknowledged that the defendant "has some deeply embedded psychiatric issues such as his substance use disorder and his Anti-Social Personality Disorder' and that these are "treatment-resistant". Defence counsel submitted that "Mr. Simpson-Fry does not need to be cured to avoid an indeterminate sentence, rather he needs to be adequately contained". Part of the plan is for the defendant to "learn and practice abstinence" through psychiatric counselling, aided by the use of Campral to curb the craving for alcohol and Antabuse (disulfiram) to deter its consumption. Failure to follow such a plan could result in a breach of the LTSO and administrative suspension for up to 90 days and/or prosecution pursuant to the Criminal Code. The plan offered by the Defence includes incarceration in a federal institution during which the defendant can participate in "intensive programming", followed by a 10 year LTSO "which will take him into his late 40s when it can be reasonably expected that he will be less impulsive and able to control his behavior".
Analysis
70Having found the defendant to be a dangerous offender, I have three sentence options: Section 753(4) provides for an indeterminate sentence, a fixed sentence in the penitentiary, or such a fixed sentence, followed by a LTSO for up to ten years. However, my ability to choose among these options is governed by section 753(4.1):
The court shall impose a sentence of detention in a penitentiary for an indeterminate period unless it is satisfied by the evidence adduced during the hearing of the application that there is a reasonable expectation that a lesser measure under paragraph (4)(b) or (c) will adequately protect the public against the commission by the offender of murder or a serious personal injury offence.
71In deciding if there is a "reasonable expectation that a lesser measure will adequately protect the public", I take into account the defendant's stated desire to seek professional help and abide by the terms of any release plan, including taking medication to deal with his alcohol dependence. In this regard, I note that he made these promises indirectly, to the doctors, without subjecting himself to cross-examination. This, in itself, does not mean I refuse to trust him; however, it does point to the additional significance of the evidence about the defendant's background, the expert opinions about his prognosis, and the feasibility of managing his risk in the community.
72The offences that result in the defendant being declared a dangerous offender are shocking. After a day of drinking alcohol and consuming drugs, during which the police contacted him to advise he surrender for offences against his domestic partner, the defendant grabbed a stranger at night on a public street. He forcibly confined the young woman behind bushes for two hours while he sexually assaulted and threatened her. The assaults included raping her twice and ejaculating on her back. It is no surprise that the crimes have had a significant impact on the victim (and her mother). Moreover, although this is the defendant's first sexual offence, it is part of a life of persistent criminality.
73In the three year period between 1999 and 2002, the defendant was sentenced ten times, including the imposition of eight probation orders. Seven of these eight probation orders contained counselling conditions. He failed to comply with at least one term of all probation orders (usually the alcohol counselling term).
74In 2003, the defendant pled guilty before me to charges of robbery, forcible confinement, and use of an imitation firearm (home invasion). In sentencing him to two years in jail, followed probation for three years with terms that included counselling for alcohol abuse, I said the following to the defendant:
The sentence I have imposed is designed to teach you a lesson and also to provide you with a hope of recovering from alcoholism. You simply have to do that for two reasons. First of all, if you do not do that nothing I have done today will matter, you will get into trouble again. I simply guarantee you that…..[Second] If you do not deal with your alcoholism you cannot have a happy life and you only get one. When the end of your days come and you do not get to say to yourself, next time I am going to do it differently, next time I am going to be sober, next time I am going to be productive and I am going to be happy.... I hope that you will think about that carefully when you are in jail and as you get ready for counselling and treatment and I hope that you will make an honest and sincere effort to deal with it. Because even though you have a bad record and this is a terrible setback you can still put this behind you, you can still move on, and you can still do yourself proud, and make others proud of you even with the terrible thing that you have done to this family. So good luck.
75The defendant served 16 months in jail before being statutorily released from Collins Bay Institution on November 8, 2004. Eight days later, he committed further offences while intoxicated. He was sentenced for other offences in May 2006 and August 2007. All involved alcohol abuse. On the latter occasion, counsel for the defendant submitted to the court, "h e's a young individual with a horrendous record….He's been in custody since May 13th and I would hope that he has learned his lesson this time and is going to start fresh." The defendant himself told the judge that he was participating in counselling for alcohol abuse.
76In April 2008, the defendant was sentenced for assaulting a peace officer and causing a disturbance by being drunk. Again, the sentence included probation with counselling terms. The judge spoke to the defendant as follows:
Certainly wish you well in the future sir but there's a significant problem here when I look at a record with 42 prior convictions, probably 30 of them for assaultive types of behaviour sir…. And numerous drinking and drug related offences there. There is significant problems that you have to deal with sooner or later and you really have to get to the bottom of what's causing all these problems sir because the reality is you're just going to be getting yourself involved in longer and longer jail sentences…. And for you to say that it's not an alcohol problem with your record is a little bit surprising but you're just going to have to start figuring out yourself where the problem is so that we can get things moving on. You understand all of that?
Defendant: Yes.
77Not quite four months later, the defendant committed a violent robbery of a convenience store to obtain money to pay a drug debt. In sentencing him to the penitentiary, the judge stated,
Mr. Fry, on a 30 month sentence, I am sure you have been institutionalized enough to know that you won't serve the 30 months. You will be given remission. But more importantly, you will be given a chance to take some programs if you want to take them. For whatever assistance it can offer you, I will recommend that you be sent to an institution that offers programs for substance addiction, alcohol addiction and anger management. Good luck.
78After statutory release in 2011, the committed further offences for which he was sentenced in January and April 2012 and June 2013. On each occasion, he was sent to jail and placed on probation with counselling terms. Four months after the last sentence, he abducted and sexually assaulted the victim in the matter before me. Afterwards, he was found guilty of domestic assault.
79The expert evidence is particularly important to my decision. That said, I am mindful that in R. v. George, 2016 ONCA 464, the Court of Appeal commented, with approval, that the trial judge "noted the legal principles applicable to the assessment of this evidence, including the need to critically assess and not merely 'rubberstamp' a psychiatrist's opinion".
80There is no doubt that both doctors correctly assessed the defendant to be at a high risk to re-offend violently. The reasons for this are equally clear: the defendant has a severe polysubstance use disorder coupled with an antisocial personality disorder. Dr. Pearce suggests both disorders are of equal concern. Dr. Gojer is of the view that the defendant's long history of alcohol and drug abuse has worsened the expression of the antisocial personality disorder. It may be that both are saying the same thing; that, at present, both disorders are pressing concerns. In any event, the record supports Dr. Gojer's opinion about how matters developed over time.
81Dr. Gojer believes the risk posed by the defendant can be managed in the community. In reaching a conclusion regarding the defendant's amenability to treatment, he adopted the opinion of Dr. Kalia who interviewed the defendant and was impressed with his insight and promise to reform. Dr. Gojer also spoke to the defendant and believes that he has been in denial and now accepts that he has an alcohol problem. Dr. Gojer fairly acknowledged that it is possible that defendants tell assessors what they think they want to hear.
82Dr. Gojer's faith in the defendant and ability to be monitored is the foundation for his opinion. He noted that that the defendant's risk to public safety means he requires high intensity programs while incarcerated and follow-up maintenance programs while in community. He testified that "making abstinence and attendance for the therapies and enforcing the pharmacological treatments can be made secondary to stipulations that are part of a parole release". In this regard, he said that "the central focus is on alcohol counselling"; the other components, such as medications, are adjuncts. With respect to the administration of medication, he suggested that this could be accomplished under the supervision of a community nurse or family member; that is, there "must be some system to watch him swallow the pill". Dr. Gojer agreed that persons subject to a LTSO cannot be compelled to take treatment. However, they can be punished for non-compliance "and this is highly coercive".
83In my view, the defendant's background and criminal history does not warrant Dr. Gojer's faith in him. Moreover, I am not satisfied that the potential prosecution for breach of the LTSO will deter the defendant. Before committing the index offences, the defendant was placed on probation 15 times (almost all with counselling terms). He breached every one. This record of non-compliance reveals a total disregard for court orders and potential sanctions.
84Dr. Gojer noted that any release plan requires anti-alcohol medication and that, given the defendant's background, this treatment must be closely supervised. He is correct about the necessity for medication. The defendant has participated in intensive counselling in the past but never been able to maintain his sobriety. Without medication, correctional officials have been unable manage the defendant's risk, even under the strictest conditions. That said, I am not confident the treatment plan for the substance use disorder is realistic.
85Assuming the Parole Board made anti-alcohol medication a condition of the LTSO, the evidence presented by Ms. Phillips does not give me confidence that there are adequate resources to ensure the defendant will comply. In stating this, I understand that the judicial role cannot be compromised by the deliberate or unreasonable failure of government to provide the basic resources needed to implement a statutory regime. On the other hand, as the Court of Appeal for Ontario pointed out in R. v. G.L. (2007), 2007 ONCA 548:
….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.
86In any event, Dr. Pearce testified that the defendant's disorders are so severe that "there are few reasons for optimism that this gentleman will be manageable while incarcerated and subject to a LTSO, or following the expiry of such an Order". He added that "I cannot conclude that there is a 'reasonable expectation' of eventual control of the risk in the community, from a psychiatric perspective." In reaching this conclusion, Dr. Pearce acknowledged that anti-alcohol medication (disulfiram) can be an effective means of controlling those who offend because of the abuse of this substance and that urinalysis is an efficient monitoring tool. However, disulfiram will not work with respect to drugs such as cocaine, GHB, marihuana and opiates. The defendant has abused these substances for many years and they are an important part of his substance abused disorder.
87I agree with Dr. Pearce that the anti-alcohol treatment plan cannot, in itself, manage the defendant's risk. That is, even if he agrees to take the medication and could be closely supervised to ensure compliance, this can only partially address the substance disorder. The defendant's severe dependence on illicit drugs remains unaffected by that medication. Counselling is the primary vehicle to deal with drug addiction but this requires an honest effort by the defendant - something he has not demonstrated to date.
88Counselling is also the main treatment for anti-social personality disorder. In this regard, Dr. Pearce noted that success is mixed and the greatest impact is the aging process. I accept his opinion. He said,
At present, we have very little treatment for individuals with antisocial personality disorder. There is little empirical evidence suggesting that these individuals are capable of personality change, even with assiduous treatment. Treatment for antisocial personality disorder primarily focuses on anger management training, social skills training, and vocational training in order to attempt to provide the individuals with a viable trade. Anti-aggressive chemotherapy may be of some potential benefit, although there is little evidence to suggest that this modality is able to contain an individual's risk of aggression in the future.
89The defendant committed the index offences at the age of 30. It was the latest event in a life of crime that began when he was a youth. In a 13 year period he has been sentenced to the provincial reformatory numerous times and to the federal penitentiary twice, for a total of 5.5 years. He has continued to re-offend. As already noted, he has been repeatedly placed on probation and consistently ignored those orders. The defendant's persistent criminality is almost all related to substance abuse that, in turn, has worsened his anti-social personality disorder.
90The Defence argued that Sawyer is distinguishable. I do not think so. I agree with the Crown that Sawyer is instructive. The case before me is also similar to R. v. McKenzie, 2015 ONCA 917. In upholding the imposition of an indeterminate sentence, the Court of Appeal noted:
[6] The appellant is addicted to alcohol, cocaine and heroin, and his criminality is strongly associated with his drug use. Both Crown and defence experts agreed that when not affected by drugs, he is a low risk to reoffend, but when using drugs he is a serious danger to the public.
[7] The trial judge, proceeding under the version of s. 753 of the Criminal Code in force prior to the amendment in 2008, concluded that the prospects of the appellant being able to overcome his lifelong addiction to drugs and alcohol and the life of violent crime associated with his drug use were so slim that they could not be said to amount to a reasonable possibility of control in the community. The sentencing judge accepted the evidence of the Crown's expert that the appellant had had the benefit of every conceivable treatment program, and had completed many successfully, but that every time he was released into the community he committed further violent offences, usually very quickly.
[8] Both Crown and defence experts were clear that the appellant, even after successful completion of a treatment program, required close supervision to manage the risk he posed to the public. The sentencing judge found that the level of supervision he would be subject to as a long term offender was inadequate to manage the risk.
[10] The difficulty is that at the end of a long term supervision order, the appellant would no longer be subject to any supervision. Counsel suggests that by the end of the order the appellant would be "burned out". However, the only evidence in the record was that the appellant has demonstrated no signs of burnout.
91The defendant has demonstrated a pattern of repetitive behaviour showing a failure to restrain himself such that he is likely to cause death or injury to others. During this time, he has also established a pattern of aggressive behaviour showing a substantial degree of indifference respecting the reasonably foreseeable consequences to others. I must impose a sentence of detention in a penitentiary for an indeterminate period unless satisfied by the evidence that there is a reasonable expectation the lesser measure of a fixed sentence, with or without a LTSO, will adequately protect the public. The Court of Appeal for Ontario in R. v. Madden, 2014 ONCA 135 reiterated that s. 753.1(1)(c) provides that a LTSO cannot be a sentencing option unless there is a reasonable possibility that the risk the offender poses will be controlled within the duration of the sentence. In that case the Court noted that the test was not net because the offender's "condition is intractable and he will be a risk throughout his lifetime.
92I am not satisfied that there is a reasonable expectation that a fixed sentence, with or without a LTSO will adequately protect the public. In coming to this conclusion, I have considered, as set out above, the defendant's past performance as a predictor of future behaviour, including his abysmal record of non-compliance, the expert opinions, the voluntary nature of treatment inside the penitentiary and in the community, the limitations inherent in a LTSO, particularly with respect to chemical treatment, the absence of such treatment for all aspects of the polysubstance use disorder, and the substantial difficulty in addressing the defendant's antisocial personality disorder.
93It may be that one day the defendant will be found to no longer present an unmanageable risk to the public and can be paroled. I hope so, especially as he is a relatively young man. However, on the evidence adduced before me, I cannot see that day and must impose the sentence required by law.
Conclusion
94The defendant is declared to be a dangerous offender because he meets the criteria in subparagraphs 753(1)(a)(i) and (ii). He is sentenced to an indeterminate period of custody, as required by section 753(4.1).
Ancillary Orders
95I issue the ancillary orders:
- The defendant will provide a sample of his DNA;
- A lifetime weapons prohibition (section 109);
- A SOIRA order for twenty years;
- A section 743.21 non-communication order with the victim and her mother.
And a further order is requested pursuant to section 760 of the Criminal Code for a copy of all reports and testimony given by psychiatrists together with a transcript of the trial of the offender to be forwarded to the Correctional Service of Canada.
Released: August 30, 2016
Signed: "Justice J. De Filippis"
Footnotes:
1Prior to these dates, I conducted judicial pretrial meetings with counsel in 2013 and 2014. During that time, the DNA results in this matter became known and the nature of the proceedings changed, such that, on the consent of counsel, I presided over this non-contested trial and dangerous offender hearing.
2Shortly before the release of these reasons, I became aware of the recent decision in R v Wong 2016 ONSC 2984. In that case, the Ontario Superior Court dismissed a similar challenge to the constitutionality of ss. 753(1) and 753.01. The Defence in that case had argued that the combined effect of the sections impermissibly curtail judicial discretion at sentencing and are overbroad, resulting in a violation of s.7.