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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 160, 162, 162.1, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or
(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).
(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 victim of the right to make an application for the order; and
(b) on application made by the victim, the prosecutor or any such witness, make the order.
486.6 OFFENCE — (1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
DATE: January 22, 2024 Information No.: 1711 998 21 1567 00
ONTARIO COURT OF JUSTICE
HIS MAJESTY THE KING v. ADAM NEVILLS
EXCERPT OF PROCEEDINGS (REASONS FOR SENTENCE)
BEFORE THE HONOURABLE JUSTICE M. POLAND On January 22, 2024, at SARNIA, Ontario
APPEARANCES: N. Mulpuru, Counsel for the Crown M. Hogan, Counsel for Adam Nevills
MONDAY, JANUARY 22, 2024
...PROCEEDINGS RECORDED BUT NOT TRANSCRIBED
REASONS FOR SENTENCE
POLAND, J. (Orally)
INTRODUCTION
On September the 2nd, 2021, Adam Nevills did the unthinkable. He got high on crystal methamphetamine and climbed through a window to enter the home of 81-year-old Mrs. B. He found her asleep and was in the course of sexually assaulting her when Mrs. B.’s son intervened.
It wasn't the first time that Adam Nevills had done something like this. In fact, just a few years before he had broken into a house in Chatham and had sexually assaulted a sleeping victim while high on crystal methamphetamine.
Adam Nevills knew that when he took crystal methamphetamine he was at risk of unleashing a sexual predator that existed within him. That knowledge was not enough to get him to stop.
The question here is not whether Adam Nevills presents a risk to the community. He clearly does. The question is whether the Crown has met the legal requirements and borne its onus to have Adam Nevills designated and sentenced as a Dangerous Offender within the meaning set out in s. 753 of the Criminal Code of Canada.
The evidence and submissions in this case occurred over four days ending on December the 5th, 2023. The court received a substantial volume of written material and heard from both a Crown and defence retained forensic psychiatrist. In handing down these reasons for sentence, I rely upon, adopt and incorporate the Agreed Statement of Facts that was filed in this proceeding as Exhibit 12.
The Application and responding materials filed in this case were organized and on point. The evidence and submissions made by counsel were focused and highly cogent. I appreciate the efforts of both counsel in presenting this case in such a professional manner.
Ultimately both counsel, and indeed both forensic psychiatrists agree that the sentence in this matter must, at a minimum, including a lengthy term in the federal penitentiary.
Mr. Hogan, counsel for Mr. Nevills, asserts that the Crown has not met its substantial onus of proof beyond a reasonable doubt to have Mr. Nevills declared a Dangerous Offender. He argues for a determinate sentence, but concedes that a Long Term Supervision order would be appropriate given Mr. Nevills' background and offending behaviour.
The Crown asserts that it has borne the onus to have Mr. Nevills declared a Dangerous Offender. The Crown seeks an indeterminate sentence and posits that the Parole Board of Canada would be in the best position to assess the merits of any future release of Mr. Nevills to the community through an application for parole.
THE LEGAL FRAMEWORK FOR A DANGEROUS OFFENDER LONG TERM OFFENDER APPLICATION
In any Application of this nature, the law demands a two-stage analysis: the designation stage and the sentencing stage. At the first stage, the inquiry must focus on whether or not the Crown has borne its onus to designate Mr. Nevills as a Dangerous Offender. At the second stage, the court must consider what sentence is appropriate to impose.
Where the accused has been designated a Dangerous Offender, there are three possible sentences: an indefinite sentence, a conventional fixed-term sentence, and a conventional fixed-term sentence combined with a Long Term Supervision order. Where the accused has not been designated a Dangerous Offender, there remain two possibilities: a conventional fixed-term sentence, or a conventional fixed term sentence coupled with a Long Term Supervision order.
Accordingly, this case requires the examination of two issues:
ISSUES
ISSUE NUMBER ONE: Has the Crown proved beyond a reasonable doubt that Mr. Nevills should be designated a Dangerous Offender?
ISSUE NUMBER TWO: What is the correct sentence to be imposed on the basis of the evidence that is before this court?
ISSUE NUMBER ONE – Has the Crown borne its onus at the designation stage?
The Commission of a Serious Personal Injury Offence under s. 752(a) and (b).
In order to discharge its onus to prove beyond a reasonable doubt that Mr. Nevills should be designated as a Dangerous Offender, the Crown must satisfy certain statutory pre-conditions on at least one of four possible pathways to such a designation. All of these pathways require a finding that the predicate offence is a serious personal injury offence as defined in s. 752(a) or (b) of the Criminal Code.
Section 752 states as follows:
"serious personal injury offence" means
(a) an indicatable offence, other than high treason, treason, first degree murder or second degree murder involving
(i) the use or attempted use of violence against another person, or
(ii) conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage on another person, and for which the offender may be sentenced to imprisonment for 10 years or more, or
(b) an offence or attempt to commit an offence mentioned in s. 271 (sexual assault), 272 (sexual assault with a weapon causing bodily harm) or s. 273 (aggravated sexual assault).
Here, Mr. Nevills enter a guilty plea to an indictable offence that carried a maximum sentence of life imprisonment.
Accordingly, the definition under s. 752 (a) is satisfied if the offence committed by Mr. Nevills
(a) was an offence involving the use or attempted use of violence against another person
(b) endangered or was likely to endanger the life or safety of another person, or
(c) was an offence in which Mr. Nevills inflicted or was likely to inflict severe psychological damage on another person.
Here, counsel for Mr. Nevills makes no strong argument that the offence in question was not a serious personal injury offence under s. 752 (a). This is an appropriate approach. Quite apart from the obvious likelihood of Mrs. B. suffering actual or likely severe psychological damage from Mr. Nevills' actions, the harm-based analysis noted in the case of R. v. Steele, [2014] SCC 61 also endorses an obvious finding that Mr. Nevills' agreed actions in entering an elderly woman's house and sexually assaulting her while she slept in her bed were, at a minimum, clearly violent in the unqualified sense described in that case.
While not all offences of break and enter would satisfy the definition under s. 752 (b), where the break and enter offence includes an attempt to commit a sexual assault in order to found liability, in my view the definition under s. 752 (b) will necessarily be satisfied. With the kind of particularization as found in this case, a finding of an attempt to commit a sexual assault is necessary to make out the offence that is charged. It is also the case that regardless of the offence pled to, on the agreed facts presented to the court, Mr. Nevills conceded that he committed not just an attempt, but an actual sexual assault against Mrs. B. See R. v. Slade [2015] ONCJ 8, at para. 137.
THE POTENTIAL PATHS TO A DANGEROUS OFFENDER DESIGNATION
The Crown asserts that Mr. Nevills ought to be designated a Dangerous Offender on the basis of all four pathways found at s. 753(1).
Three of these pathways require a finding that Mr. Nevills constitutes a threat to the life, safety, physical or mental well-being of others in the context of behaviour that satisfies at least one of the following definitions:
s. 753(1)(a)(i) – A Pattern of Repetitive Behaviour – A pattern of repetitive behaviour of which the offence the offender has been convicted forms a part, showing a failure by the offender to restrain his behaviour and that there is a likelihood that the offender will either cause death or injury or inflict severe psychological damage to others because of his failure in the future to restrain his behaviour;
s. 753(1)(a)(ii) – A Pattern of Persistent Aggressive Behaviour – a pattern of persistent aggressive behaviour by the offender, of which the offence which he or she has been convicted for 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
s. 753(1)(a)(iii) – Conduct that is brutal in nature – Any behaviour by the offender, associated with the offence for which he has been convicted, that is of such a brutal nature as to compel the conclusion that offender's behaviour in the future is unlikely to be inhibited by normal standards of behavioural restraint.
The fourth pathway relates only to sexual offences. This pathway is applicable under s. 753(1)(b) of the Criminal Code of Canada where the offender"...has shown a likelihood of causing injury, pain, or other evil to other persons through a failure to control his or her sexual impulses."
In the circumstances of this case, it is unnecessary to conduct a full analysis under the provisions of s. 753(1)(a). That is because, in my view, Mr. Nevills' potential liability under the sexual offending provisions of the s. 753(1)(b) route is obvious. While Mr. Nevills' background may well also satisfy at least the first two paths under the s. 753(1)(a) provisions, a finding under any one of the provisions is entirely sufficient to ground liability.
Had it been required to, I would not have found that Mr. Nevills' behaviour would satisfy the requirements of s. 753(1)(a)(iii). In this respect, I agree entirely with Mr. Hogan on behalf of Mr. Nevills. At least as it pertains to the predicate offence, while Mr. Nevills may well have intended to commit an offence that was"coarse, savage and cruel" within the meaning described in R. v. Langevin, [1984]), the fact is that by a fortunate intervention, his intended course of action was thwarted. This is not to minimize the impact on Mrs. B. of the event that did unfold. It is simply to note that objectively, through no laudable action on Mr. Nevills' part, the event that did unfold was objectively much less egregious than might otherwise have been the case. The brutality analysis necessarily considers the character of the act committed, not the act that might have been committed.
Although unnecessary for my decision, it should be noted that had I been required to do so, I would have found that the group of offences that Mr. Nevills was convicted of in October 2018, and the predicate offences taken together consist of an obvious pattern of offending. While they are two groups of offences, with multiple individual offences contained within them, and while the characteristics of the victims are very different, Mr. Nevills' behaviour in both circumstances was strikingly similar. See R. v. Gibson [2021] ONCA 530. In both circumstances, Mr. Nevills ingested a significant amount of crystal methamphetamine, knowing what its effects would be. In both circumstances this decision was linked to conflict within his personal life and the drugs were taken without regard to the likely consequences to others. In both circumstances Mr. Nevills sought out victims to offend against sexually. He removed his pants. He entered dwelling houses specifically seeking out female persons to engage in non-consensual sexual intercourse. In both occasions he carried out his plans until he was interrupted by situational factors, and in both circumstances he attempted to avoid responsibility by employing deceit and manipulation. As I point out later, on the basis of the evidence contained in the reports of both experts, I would also find that Mr. Nevills' behaviour, particularly in relation to the predicate offence, represents a substantial degree of indifference respecting the reasonably foreseeable consequences of his actions.
Returning to the main pathway for the finding required in this case, in my view the evidence is clear that there are two evidentiary pillars to the finding that I have made under s. 753(1)(b):
The first evidentiary pillar that supports the finding is the presence of Mr. Nevills' criminal record. More specifically, the findings of guilt and facts associated on his criminal record to findings in relation to offences that gave rise to his conviction on October the 18th, 2018, for a series of offences, including two counts of being unlawfully in a dwelling house, a count of break and enter with intent, a count of break and enter and commit, and a single count of sexual interference. I will expound upon these circumstances momentarily.
The second evidentiary pillar that supports the finding relates to Mr. Nevills' behaviour during the predicate offence. Mr. Nevills' actions on September the 21st, 2021 had the likelihood of causing injury or pain through a failure to control his sexual impulses. His actions were sexually derived. They did in fact cause serious emotional or psychological injury or pain, both to Mrs. B. and to her son Mr. B. Particularly in the context of sexual offending, emotional and psychological harm inflicted upon a victim have been repeatedly and appropriately determined by courts to constitute bodily harm and recognizable injuries.
Both Mrs. B. and her son Mr. B. put forward compelling and well written Victim Impact Statements in these proceedings. They were also supported by a third Victim Impact Statement put forward by Mrs. B.’s granddaughter S. Taken together, these Victim Impact Statements demonstrate clearly that Mrs. B. was extremely traumatized by Mr. Nevills' actions. As a result, she has suffered obvious psychological and emotional injury, which has manifested itself in a nearly total loss of her independence. Mrs. B. notes that whereas before this crime she lived an independent and engaged life. As a result of this crime she has been plagued with anxiety and is withdrawn socially. She states:
I used to be an independent woman. I could go get groceries, visit family and friends, or just drive to the water and have a coffee while watching the boats. I haven't left my home since this incident occurred, other than for necessary doctors appointments.
Later, Mrs. B. recounts:
My quality of life is declining because of the lack of sleep, stress and anxiety this incident has caused. I am tired and wish I could sleep. I wish I could go back to the way I used to feel before this, before the incident. I feel like I am trapped in my own home. All of this is making me miserable.
Mrs. B. also notes that paradoxically, even though it was her son who saved her from Mr. Nevills by his quick intervention, she feels that her relationship with him has suffered as well. Mr. B. himself describes being haunted by the sound of his mother shouting for his help as Mr. Nevills was in his bedroom.
In his Victim Impact Statement, Mr. B. states:
I am worried about my mother being at home alone. Her exhausted state, due to lack of sleep, is causing her many problems at home and she has been a different person since the offence took place. I feel anxious when I am out and worry about her being home.
As was made clear in the admitted facts in the predicate offence, Mr. Nevills is a man with a longstanding drug addiction that he has not succeeded in controlling. On the night of September 21st, 2021, before breaking into Mrs. B.’s bedroom with the intention of sexually assaulting her, he smoked crystal methamphetamine.
Both of the forensic psychiatrists who offered assessments in this case, Drs. Iossif and Klassen, noted that Mr. Nevills understands that his consumption of crystal methamphetamine is accompanied by strong sexual urges that he has failed to control effectively in the past. Notwithstanding his knowledge of the sexually disinhibiting effect of crystal methamphetamine consumption, Mr. Nevills nonetheless chose to get high and put the community at risk. The outcome for Mrs. B. and her son was tragic, but foreseeable based on Mr. Nevills' past conduct. Although not a necessary finding under s. 753(1)(b), to use the statutory language present in s. 753(1)(a)(ii), this conduct underscores a conclusion that Mr. Nevills evidenced a substantial indifference to the reasonably foreseeable consequences of his behaviour.
Mr. Nevills' awareness of his own proclivities was made clear to him during the October 2018 events. At this time, according to information contained in both the report of Dr. Iossif at Exhibit 4 and particularly in the report of Dr. Klassen at Exhibit 7, Mr. Nevills consumed a large quantity of crystal methamphetamine and broke into or unlawfully entered as many as seven house"looking for women" after watching pornography. In one of these houses, he got into bed with a five-year-old female child. In another, he entered the bedroom of a 13-year-old female, got into her bed and fondled her buttocks. In the later homes that he entered, Mr. Nevills had removed his pants and was naked from the waist down. This was precisely the state that Mr. Nevills was in when he was arrested after assaulting Mrs. B.
Mr. Nevills' failure to control his sexual impulses was, as indicated, foreseeable. He knew the risk associated with taking large quantities of crystal methamphetamine, particularly as it related to his propensity to offend sexually. He consumed the drugs notwithstanding his awareness of that risk and he failed to control his behaviour. The outcome of these events had the clear potential, and in fact did result in the obvious and serious emotional and psychological injuries inflicted upon Mrs. B.
In my view, the evidence here clearly satisfies the requirements of s. 753(1)(b). Having said that, however, the heart of the issue in this case is not whether Mr. Nevills' behaviour satisfies the bare statutory requirements. It clearly does. The more challenging analysis here derives from the jurisprudential requirement to examine both the prospective risk that Mr. Nevills poses, and the concept of intractability.
ASSESSING PROSPECTIVE RISK AND TRACTABILITY
Assessing the prospective risk that Mr. Nevills poses is relevant to the designation phase of the inquiry. See R. v. Boutilier, 2017 SCC 65, at para. 23. In order for the Crown to bear its onus, it must demonstrate that it is beyond a reasonable doubt that Mr. Nevills poses a high likelihood of harmful recidivism and that his conduct is intractable. Intractable means"behaviour that the offender is unable to surmount."
The evidence in this case demonstrates that Mr. Nevills presents a high likelihood of harmful recidivism. This evidence is contained most persuasively in the content of both the reports and testimony from the forensic psychiatrists who offered evidence in this proceeding. The ultimate findings of both the Crown and defence experts are in fact largely consistent with each other, notwithstanding that their assessments occurred about 18 months apart. This consistency of findings over time, and by two very well regarded experts leaves the court with significant confidence in their conclusions.
Both forensic psychiatrists diagnosed Mr. Nevills with antisocial personality disorder, with some borderline personality disorder traits. Both agree that he meets the diagnostic criteria for a polysubstance use disorder. Both also suggest the potential for a paraphilic disorder. In particular, Dr. Klassen noted that this final component of the diagnosis remains uncertain, at least in part because the results of the phallometric testing that he conducted were unclear. In that respect, while the report suggested results that were not indicative of a coercive sexual preference, the report also contained the caveat that this conclusion must be"interpreted with caution" in light of what is described as"likely suppression and response manipulation" by Mr. Nevills during the testing.
Both forensic psychiatrists scored Mr. Nevills using a variety of instruments in an effort to assess his potential for recidivism. Dr. Klassen's risk assessment conclusion was as follows:
Taken together, these risk instruments suggest that Mr. Nevills is at very high risk of sex offender recidivism absent significant intervention.
Dr. Iossif concluded:
In summary, the instruments scored in the actuarial portion of the risk assessment suggest that Mr. Nevills' risk of violent recidivism of a general, sexual or domestic nature is high.
The evidence in this Application concerning Mr. Nevills' past behaviour and present orientation reflect a number of concerns about his future risk.
First, as already pointed out, he has a lengthy criminal record. As previously noted, this criminal record contains highly concerning entries with behaviour that is closely related to the predicate offence in this case. These offences resulted in convictions in October 2018, with Mr. Nevills being sentenced to jail for 2 years less 1 day, on top of 110 days of pre-sentence custody. This is a substantial sentence that Mr. Nevills finished serving less than a year before committing the predicate offence.
In the meantime, Mr. Nevills committed a further offence of break and enter. While the information about this offence is very limited, on Mr. Nevills' own account, he was found guilty after entering an abandoned structure to steal copper. It would also appear that at the time of the predicate offence, according to information contained at page 13 of Dr. Klassen's report, Mr. Nevills was apparently subject to a 90 day conditional sentence of imprisonment in relation to this earlier break and enter and was awaiting the installation of a GPS-based ankle monitoring device. This sentence was apparently to be served at his father's residence, but Mr. Nevills overdosed on drugs shortly after being released from pre-sentence custody and his father terminated permission to live at his residence as a result.
The combination of Mr. Nevills' failure to remain abstinent from drug use, criminal offending and disregard of court orders is consistent and long standing. Apart from the 2018 offence, Mr. Nevills' criminal record evidences no other sexual offending, but his offending nevertheless involves numerous entries for break and enter, past offences including assaultive conduct in the context of an intimate partner relationship, uttering threats, and obvious disregard for court orders. Dr. Iossif refers to Mr. Nevills' record as evidencing"criminal versatility." This description appears to be apt.
The evidence of Mr. Nevills' long standing drug use is substantial and concerning. Dr. Iossif's report describes the issue as follows:
Mr. Nevills has good insight into the nefarious role his addiction has played in his life. He is aware that being intoxicated makes him angrier, more impulsive and inappropriately sexually aroused. He is also fully aware that his behaviour will result in legal repercussions, whether due to breaching previous conditions or incurring new criminal charges. However, such insight has not motivated Mr. Nevills to commit himself to substance relapse prevention treatment and to attempt to remain abstinent from substances.
As Mr. Nicol pointed out during submissions, Mr. Nevills has been on probation for most of his adult life. Indeed he was subject to probation both at the time of the Chatham sexual offending and at the time of the commission of the predicate offence. He has, without doubt, been subject to numerous court orders requiring him to attend counselling and assessment for drug addiction. He has failed to engage meaningfully with any such treatment efforts. Although he has attended short programming in custody, including some NA and AA meetings, Mr. Nevills has never attended such meetings in the community, even, as Dr. Iossif's reports notes at page 13, when he professed to be strongly motivated to do so.
Mr. Nevills has also attended more intense substance abuse treatment programs. An early attendance, while Mr. Nevills was a youth, lasted less than a week. A second effort five years later resulted in Mr. Nevills completing 21 days of a 28 day program. He left the program on his own initiative without completing it. His engagement with an out of custody methadone program was limited given his missed appointments and positive street drug screening results. When given the opportunity to participate in sex offender and substance treatment at the Ontario Correctional Institute, following the 2018 Chatham offences, he was discharged from the program for"not having shown motivation to engage in treatment and demonstrated likelihood of interfering in the treatment of others."
At present, Mr. Nevills reports a strong motivation to remain abstinent and to pursue treatment directed at substance abuse and sexual offending. He is willing to engage in psychotherapeutic interventions and pharmacotherapy to address both issues. Both experts associated Mr. Nevills' willingness to pursue this treatment, as well as his motivation to pursue other pro-social engagements, including advancing his education and pursuing a trade, as potentially positive. Dr. Iossif's report strikes an appropriate cautionary note about this professed motivation given his lack of prior effective engagement with treatment. In respect of Mr. Nevills' motivation, at page 47 of her report, Dr. Iossif states:
This is an encouraging although not uncommon stance for someone facing legal proceedings for Dangerous Offender/Long-Term Offender designation...It remains to be seen whether the motivation professed by Mr. Nevills currently actually translates into the commitment and will power necessary to actually make a change in his life through the intense and long-term psychological treatment necessary for such a transformation.
Dr. Klassen's report notes that Mr. Nevills' potential family support, physical abilities and the fact that he is"cognitively intact" are also positive features. As such, these factors might be seen to positively influence both prospective risk and tractability. I note in passing that Dr. Klassen disagreed with Dr. Iossif on the issue of family support, but that disagreement occurred as a result of a change of circumstances. Mr. Nevills' family did not participate during Dr. Iossif's report. Mr. Nevills father, John Nevills, did participate during Dr. Klassen's assessment.
CONCLUSION ON THE DESIGNATION STAGE
To a certain extent, the concepts of prospective risk, the likelihood of harmful recidivism and intractability converge around the concept of treatability. Any lack of clarity in the law on this issue has now clearly been resolved. The potential that an offender may be successfully treated bears upon not only likelihood of recidivism but a determination on tractability. These are relevant considerations both in the designation phase and in the sentencing phase, albeit for different reasons.
In R. v. Francis, [2023] ONSC 760 at para. 72 the court said the following:
At the designations stage, the purpose of looking into prospective treatability is focused upon a concern over the offender's future threat or risk to public safety. At the sentencing stage, the same evidence is considered, but through a different lens. The question at the sentencing stage is not whether the appellant will continue to be a threat to society, but rather what sentence should be imposed to manage that threat.
On the basis of treatability issues, which of course relate to prospective risk and tractability, there are, broadly speaking, three factors that auger against a declaration that Mr. Nevills is a Dangerous Offender.
The first is Mr. Nevills' self-professed motivation to pursue treatment both for substance use issues and for sex offending. This factor is very difficult to assess. Mr. Nevills' present sincerity is accepted as given. It is supported as well to a certain extent by evidence that is before the court on this Application. Based on Mr. Nevills' self-reporting noted in Dr. Klassen's report and based on an absence of evidence of institutional misconduct tendered by the Crown, Mr. Nevills' behaviour while awaiting sentence in this Application has demonstrated improvement. Mr. Nevills has not resorted to illicit substance use while on remand as he has in the past. He has not engaged in the making of "brews" as he has done in the past, and he has not incurred any institutional misconduct. While programming for Mr. Nevills has been limited based on the fact that he is an unsentenced prisoner, Mr. Nevills has availed himself of the resources that were available and has completed 12 short programs.
The challenge of course is that Mr. Nevills' stated motivation while in custody awaiting sentence must be seen in the context of his historic behaviour both after sentencing, and while in the community. Although Mr. Nevills has been given a number of opportunities to pursue treatment and rehabilitation, he has not meaningfully engaged to date. All efforts to this point, even the effort made after sexually offending against a child while he was under the influence of crystal methamphetamine has been undermined by Mr. Nevills' failure to remain motivated and to follow through. If one might imagine one time in Mr. Nevills' past where his motivation to turn away from past habits ought to have been met with a sincere undertaking on his part, it was in reference to these 2018 convictions. The report from the Ontario Correctional Institute about Mr. Nevills' behaviour and failure to engage in both substance and sex offender treatment following that conviction is disappointing to say the least. This failure on Mr. Nevills part was only compounded by Mr. Nevills post-sentence failure of the PARS program and his refusal to complete the program again as required by his probation officer. His refusal to share his relapse prevention plan with his probation officer, which was part of his sex offender relapse prevention treatment is of serious concern, particularly in light of the subsequent predicate offence with the attending severe consequences for Mr. Nevills' victims.
The second factor is the clear link between Mr. Nevills' criminal offending and his drug use. Any evidence of the existence of a paraphilia, existing necessarily independent of Mr. Nevills' drug use, on the evidence before this court, is equivocal. Mr. Nevills' sexual offending has always occurred while significantly intoxicated by crystal methamphetamine. As Dr. Iossif points out, Mr. Nevills reports an 18 month period of sobriety during a relatively uncommon period of stability in his life in his early 20s. This period corresponds with a portion of his relationship with a woman named Shania, and their mutual residing with her parents. More importantly, this period of sobriety also correlates to a gap in Mr. Nevills' criminal record between 2012 and 2016. This is strong evidence of the significant but unsurprising link between Mr. Nevills' substance abuse and his criminal offending.
An examination of Mr. Nevills' pattern of offending also demonstrates no sexual offending in the absence of crystal methamphetamine intoxication. In short, this evidence suggests that if Mr. Nevills could maintain abstinence, his risk of offending would necessarily decrease significantly. As Mr. Hogan properly pointed out, Mr. Nevills' situation is different from a person with an intractable paraphilia like, for example, pedophilia. In such a situation, there are few markers to point out to the authorities whether or not the criminogenic motivator is active or not at any given moment. With Mr. Nevills, however, any indication of future drug use, which can be monitored through close supervision and regular drug testing, presents a readily identifiable indicator of enhanced risk. Of course, for the reasons mentioned previously, the linkage between Mr. Nevills's drug use and his offending is somewhat of a double-edged sword. As pointed out, the evidence to date demonstrates little success on Mr. Nevills' part in maintaining sobriety.
The third factor is related to the first two. It is the point noted in Dr. Klassen's evidence that Mr. Nevills has not previously been a candidate for a long term, highly structured, and closely monitored rehabilitation program of the type that can be delivered in the federal correctional system. Both experts agree that if there is any prospect for Mr. Nevills not reoffending in the future, it would necessarily be linked to a highly structured, highly engaged plan of rehabilitation, engagement and very close supervision. Unfortunately, as Dr. Iossif's report notes at page 16, while Mr. Nevills himself recognizes the importance of structure and supervision to his success, he has consistently undermined his own rehabilitative prospects even when afforded the opportunity to complete targeted programming within the Ontario correctional system.
As an added factor, it is also noteworthy that both experts were examined on the likely effect of aging on the future risk posed by Mr. Nevills. The experts were in agreement that age has a recognizable inverse relationship with future offending. In other words, as a person ages, they are generally observed to offend less. The relationship between aging and offending, but particularly sexual offending is linear. As with all offenders who are young, like Mr. Nevills, the age factor will reduce the risk of recidivism in the population in general. This feature begins to make a significant difference as an offender reaches his 40s. Whether or not Mr. Nevills' advancing age will attenuate his personal risk, or the degree to which that risk might be attenuated, is difficult to assess and is of course related to the presence or absence of other risk impacting factors.
In order to succeed in its Application to have Mr. Nevills designated as a Dangerous Offender, The Crown must prove that Mr. Nevills demonstrates both a high likelihood of harmful recidivism and that his conduct is intractable. Ultimately, I am of the view that while the Crown has demonstrated beyond a reasonable doubt that Mr. Nevills presents a high likelihood of harmful recidivism, the Crown has not proved beyond a reasonable doubt that his conduct is intractable. As Dr. Iossif noted, evidence of treatability remains equivocal. To put it otherwise, Dr. Iossif's comment, along with her testimony, demonstrated that there is at least some prospect of future treatment for Mr. Nevills. Both experts express concerns about Mr. Nevills' failure to engage appropriately in treatment to date. Nonetheless, both experts averted to the fact that Mr. Nevills has never had the opportunity for a long term, highly structured, closely monitored treatment plan, such as those available through the imposition of a lengthy federal sentence.
In some respects, this case presents with significant factual similarities to the case of R. v. Patel, [2020] BCCA 92. In that case, an offender with a relatively lengthy non-sexual record of offending was convicted in the predicate offences of having engaged in sexual offences directed at young people in the context of a life-long substance addiction. In that case, however, in addition to the substance issues, the offender was found to have a paraphilia known as hebephilia. The expert evidence demonstrated that the chance of addressing the offender's criminogenic factors was"rather gloomy" and the changes needed to treat the offender were"unlikely to occur." In addition, given the unusual offending pattern involved, the expert was"cautious about relying on more general research that suggests the slowing down in older sex offenders." On the basis of that evidence, the court agreed with the trial judge that the offender's prospects of treatability were based merely on hope, and not upon a"reasonable expectation" of treatability. See R. v. Patel at para. 178.
Here, the evidence is beyond mere hope or wishful thinking. There is at least a modest basis to anticipate success given the offender's outlook and stated motivation. The absence of any negative reports concerning his behaviour during remand, the anticipated effects of aging, the strong structure and close supervisory resources available, and the absence of strong evidence of an underlying paraphilia. Neither expert provided evidence that the changes necessary to support Mr. Nevills' future success were"unlikely to occur." Both experts also noted the demonstrated absence of high scores on the PLC-R test, and the related absence of a finding of psychopathy. Mr. Nevills' PCL-R scores were observed to be somewhat elevated compared to the population in general. While this perhaps was related to his antisocial personality disorder, both experts noted that his openness to human connection was a positive feature that would be inconsistent with psychopathy and potentially supportive of future rehabilitative efforts, which would necessarily require relationship building.
In view of all of the foregoing, while the evidence is not overwhelmingly positive, there is some basis to conclude that Mr. Nevills is treatable. In the result, I am compelled to find that there exists a reasonable doubt about Mr. Nevills' intractability.
As a result, I am unable to designate Mr. Nevills a Dangerous Offender. As his counsel urged me to do, however, I instead designate Mr. Nevills a Long Term Offender under s. 753(5)(a) of the Criminal Code.
ISSUE NUMBER TWO – WHAT IS THE CORRECT SENTENCE FOR MR. NEVILLS?
First, given my conclusion with respect to the designation issue, it is not possible to impose an indefinite sentence upon Mr. Nevills. Such a sentence is reserved exclusively for cases where the Crown has proved the offender to meet the requirements of s. 753(1)(a) or (b) to the standard of proof beyond a reasonable doubt.
Two further questions remain:
What should Mr. Nevills sentence be; and
Should the sentence imposed be coupled with a Long Term Supervision order?
In this respect, I am again assisted by the submissions of counsel. Mr. Hogan, on behalf of Mr. Nevills, appropriately concedes that a Long Term Supervision Order should be imposed in this case. The purpose of such orders is to"protect the public and to rehabilitate offenders and reintegrate them into the community." See R. v. Ipeelee, 2012 SCC 13, at para. 50.
I intend to give effect to both counsel's concession and the concerns echoed by both experts, which clearly endorse this approach. In terms of the length of the sentence, again, the ranges of sentence suggested by the parties are not far apart. Mr. Hogan concedes that the evidence in this case demonstrates that in order for the risk that Mr. Nevills poses to the community to be addressed, as both experts testified, Mr. Nevills must be the subject of a lengthy penitentiary sentence.
It may be appropriate to indicate at this time why a lengthy sentence is required and how it is justified. First, on the basis of the general sentencing principles that must be applied to this case, it is clear that even absent the fact that this sentencing is taking place in accordance with the Dangerous Offender provisions of the Criminal Code, had this matter proceeded on the basis of general sentencing principles, a very lengthy sentence would have issued in any event.
Here, notwithstanding that, however, in this case the sentencing context is different. In that respect, I am grateful to the Court of Appeal of Ontario for its guidance in the case of R. v. Spillman, [2018] ONCA 551.
In that case, the Ontario Court of Appeal noted that when an accused is sentenced under the Dangerous Offender provisions of the Code, the general sentencing principles that would otherwise be applicable are necessarily modified. While the courts findings related to determinate sentences for those designated to be Dangerous Offenders under s. 753(4), in coming to its decision, the Ontario Court of Appeal relied on the case of R. v. Hopley, [2015] BCCA 499. Hopley was actually a case involving the sentencing of a Long Term Offender that pointed out that sentencings for both Dangerous and Long Term Offenders occur under Part XXIV of the Criminal Code, and that as such they are"structurally different and have a different focus" than those imposed under the general sentencing provisions of the Criminal Code of Canada.
I agree with counsel therefore that the court's findings in Spillman apply to this case. In particular, I adopt Justice Watt's direction at paragraph 51, which states:
A hearing judge may impose a fixed-term sentence that exceeds the appropriate range in the non-dangerous offender context, to ensure that the offender has access to treatment programs in a penitentiary.
In Spillman, the court goes on to establish three constraints on the imposition of such sentences. These three constraints include:
The requirement that the sentence cannot exceed the maximum for the predicate offence;
The fact that the sentencing objectives, principles and factors found at s. 718 to 718.2 must be incorporated into the sentence; and
The length of sentence imposed must be responsive to evidence adduced at the hearing.
Here, the predicate offence carries a maximum sentence of life imprisonment. Counsel have responsibly taken the Ontario Court of Appeal's direction in Spillman into account when presenting their positions. The Crown asserts that a sentence approaching double digits should be imposed. The defence concedes that in order to give effect to the evidence adduced at the hearing, particularly by Dr. Iossif and Dr. Klassen, the sentence must be in the range of five to eight years. Nonetheless, the defence also acknowledged in submissions the overarching expert-endorsed requirement that supervision of Mr. Nevills should extend into his mid-40s in order to achieve the protective influence of Mr. Nevills aging.
ADDRESSING THE SENTENCE OBJECTIVES, PRINCIPLES AND FACTORS
The sentencing factors under s. 718 include the requirement for the sentence imposed contributes to respect for the law and helps to maintain a just, peaceful and safe society. The traditional sentencing principles that are engaged here include the requirement that the sentence denounce Mr. Nevills' crime, that it deters both Mr. Nevills and like minded persons from committing similar offences, and that it promotes a sense of responsibility in Mr. Nevills and requires him to acknowledge the harm that he has caused to the community, and to both Mrs. B. and Mr. B. and their other family members.
While the objective seriousness of the sentence would not render fit a sentence fashioned principally with rehabilitation in mind, it is nonetheless important to remember the Supreme Court's admonition that rehabilitation is:
...intimately linked to human dignity in that it reflects the conviction that all individuals carry within themselves the capacity to reform and re-enter society...Criminal law is based, and must be based, on a "conception of the human being as an agent who is free and autonomous and, as a result, capable of change."
See R. v. Bisonnette, [2022] SCC 23 at para. 83.
Regardless, as s. 718.1 directs, the fundamental purpose of sentencing is to impose a sanction that is proportionate to the gravity of the offence committed and the degree of responsibility of the person who committed it.
In sentencing Mr. Nevills, I take note of both the aggravating and mitigating factors present. Here, Mr. Nicol suggests that the only mitigating factor in play is the fact that Mr. Nevills' guilty plea saved Mrs. B. and her family members the requirement to come to court to testify. While that is a very important factor to consider, it is not the only mitigating circumstance. Such a plea also saves the justice system the resources necessary to afford Mr. Nevills his right to a trial. Those resources in this case would have been considerable.
Mr. Nevills has expressed his remorse, both through his plea and in person through his comments to the court and to both experts who assessed him. I accept Mr. Nevills' expression of remorse as genuine, as I am required to do in the absence of evidence to the contrary.
Mr. Nevills is relatively youthful, he has at least some family support, and he is a man who had some aspects of instability in his life while growing up. The reports relied upon by the experts in this case demonstrate the responsibility for Mr. Nevills' introduction to substances and substance abuse at the shockingly young age of nine ultimately falls at the feet of his father. While Mr. Nevills continues to admire his father, the reality is that part of the challenges that Adam Nevills now faces were foisted upon him by his unstable upbringing. His father's role in that instability is frankly obvious on the face of the evidence before me.
Mr. Nevills is entitled to credit for his time spent in custody. To date that credit, grossed up at the rate outlined in R. v. Summers, 2014 SCC 26, amounts to approximately three-and-a-half years of pre-sentence custody credit.
The aggravating factors present in this case are obvious. They are critical to assess in fashioning an appropriate sentence. These factors include the following:
Mr. Nevills was aware that by ingesting a large quantity of crystal methamphetamine his sexual impulses would be triggered, he understood his past propensity to seek his own immediately gratification at the expense of others. To be clear, this self induced intoxication does not in any way reduce Mr. Nevills' moral culpability. It aggravates it significantly in the circumstances; See R. v. Berseth, 2019 ONSC 732, at para. 105.
Mr. Nevills' self-avowed intention to seek out a female person as the object of his sexual outlet, notwithstanding her obvious lack of consent utterly fails to express even the faintest scintilla of empathy for his victim;
Mr. Nevills has a significant and largely unrelenting criminal record. It is replete with offences of violence, breaches of court order and break and enters. This offence represents his sixth break and enter conviction. Most aggravating is of course his strikingly similar entry in October 2018 for break, enter and commit sexual offences, including sexually interfering with a child.
Mr. Nevills has been afforded many opportunities at public expense to seek out rehabilitation for substances and sexual offending. He has failed to engage appropriately and has constantly chosen to seek opportunities to get high instead of to pursue the difficult path of recovery and abstinence.
Mr. Nevills failed to follow through with his sexual offender treatment by failing to submit his relapse prevention plan.
Mr. Nevills was not only on probation at the time of his offence, he was the subject of a conditional sentence order. Such an order is fashioned as a jail sentence that is to be served in the community. Mr. Nevills immediately ignored the terms of his conditional sentence and began consuming drugs. He overdosed and rendered his living accommodations unavailable to him. He then descended into a spiral of uncontrolled and depraved behaviour. This represents an abject failure of the conditional sentencing regime. Such failures have strong negative implications for the administration of justice.
In victimizing Mrs. B., Mr. Nevills not only sexually attacked a vulnerable victim, but he did so in her own home while in the course of a break and enter. Together, these are statutory aggravating circumstances under s. 348.1 of the Code, which refers to an offence of this nature as a"home invasion." That is an accurate description of this offence considering that Mr. Nevills not only knew or hoped that the victim was home, but he entered her home with the intention of sexually assaulting her.
The impact of this offence on Mrs. B., her son, and her extended family has been serious, long-term and very significant. Mr. Nevills' actions have rendered this formerly active and engaged woman, in her elderly years, into a homebound, anxiety-filled shadow of her former self. In all likelihood, the tragic reality is that Mrs. B. will be forced to live with the debilitating impact of this crime for the rest of her life. This is a very important factor to consider in sentencing Mr. Nevills.
I conclude in general that a determinate sentence in the range suggested by counsel is appropriate in this case. I come to this conclusion not only because such a sentence would best give effect to the structure proposed by both of the experts in this case, but also because a sentence in this range is entirely supported by the facts, background and sentencing principles at play in this case.
As with any sentencing under Part XXIV of the Criminal Code, my overriding concern in sentencing Mr. Nevills is directed at the protection of the public. I have already found that Mr. Nevills will continue to present a high likelihood of harmful recidivism in the foreseeable future. On the basis of the evidence presented, I find that likelihood and the risk posed by Mr. Nevills can, nonetheless, be appropriately managed.
MANAGING THE RISK OF RECIDIVISM
I conclude that Mr. Nevills' risk can be managed because of the relationship of three factors that will be at play throughout Mr. Nevills' sentence.
First, Mr. Nevills will be afforded the opportunity to participate in extensive and highly structured treatment, both for substance abuse and for sexual offending. This treatment will be critical to Mr. Nevills' ultimate success. At the same time, Mr. Nevills' participation in that treatment will be critical to advancing his own interests in making more amenable the conditions of his confinement through the offender classification system and by reducing future restrictions on his liberty through putting his best foot forward for phased release through access to the federal parole system. In this sense, Mr. Nevills' interest and society's interest in having Mr. Nevills fully engage in his treatment program are aligned.
The second factor that will be at play is the presence of significant structure and close supervision both during confinement and after release into the community. Even when Mr. Nevills is ultimately released from custody, and no longer subject to the terms of his determinate sentence, he will be subject to the terms of an extended Long Term Supervision Order. This order will permit Corrections Canada to very closely monitor Mr. Nevills' reintegration into the community. As I have already found, the risk that Mr. Nevills poses to the community is at least in one sense relatively easy to supervise. Mr. Nevills' primary risk factor will remain his ongoing drug addiction. As his offending history notes, when he is clean, Mr. Nevills poses a reduced risk of recidivism. This is one area that is able to be quite closely monitored and I fully expect that Mr. Nevills will be required to submit to drug testing throughout his sentence to monitor for the existence of any and all non-prescribed substances including alcohol. Any so-called "dirty test" will work as an immediate trip wire that will suggest to the supervising authorities that enhanced measures and further liberty restrictions will be necessary.
The final factor that will work to reduce the risk that Mr. Nevills poses will be age. Mr. Nevills will be the subject of close and careful supervision from now until, at a minimum, a time when he will be in his mid-40s. The evidence offered by both forensic experts demonstrates clearly that as Mr. Nevills ages, and certainly by the time that he is in his mid-40s, the risk of subsequent offending across the offender population that Mr. Nevills emanates from is significantly reduced.
QUANTIFYING THE SENTENCE
Quite apart from the requirement to protect the public and the requirement to give effect to the experts' suggestion that the sentence be sufficient to permit substantial and structured rehabilitation, the very aggravating circumstances of this case, and in particular the impact on the victim Mrs. B., demonstrates clearly that the Crown's sentencing proposition must be favoured. In so deciding, I reject the defence contention that a range of sentence of five to eight years would be appropriate in these circumstances.
After considering all factors, including most critically the requirement to protect the public, in my view, the correct sentence in the circumstances of this case is one of nine-and-a-half years of incarceration. From that sentence will be deducted the sum of three years and six months, which will be credited by way of pre-sentence custody credit. The result will be a remnant of six years in the penitentiary. This sentence shall be applied to the break and enter offence. Concurrent sentences of three months custody on the s. 177 offence, and three months custody on the s. 733.1 offence shall also be applied.
In addition to the foregoing determinate sentence, Mr. Nevills is hereby rendered subject to a Long Term Supervision Order for the maximum period prescribed in statute, which is 10 years.
There are in addition some ancillary orders that must be applied as well.
Mr. Nevills will be the subject of an order under the Sex Offender Information Registration Act for life.
Mr. Nevills is hereby prohibited from possessing firearms under s. 10, again for life. Mr. Nevills, accordingly, you are prohibited from possessing any firearm, cross-bow, restricted weapon, ammunition and explosive substance for life.
Pursuant to the provisions of s. 743.21, Mr. Nevills will not communicate or associate directly or indirectly by any physical, electronic or other means with Mrs. B. or Mr. B. or any member of their immediate family, except through counsel.
Are there any other orders that need to be addressed here? Ms. Mulpuru?
MS. MULPURU: I don't believe so, Your Honour. Thank you.
THE COURT: Mr. Hogan?
MR. HOGAN: I'm not sure if DNA is mandatory.
THE COURT: Oh, yes, thank you. Yes, it is mandatory, it is a primary offence. DNA will be directed. Of course Mr. Nevills' DNA is already in the databank, so it would be a matter of a fingerprint at this point I suppose, but yes, it would be appropriate to make such an order and I do so.
CLERK REGISTRAR: Your Honour, is that just on the Count 1, 348, or is it also on the 177?
THE COURT: I don't know if – is 177 eligible?
MS. MULPURU: I don't believe so, Your Honour.
THE COURT: I don't think it is. Just give me a second. No, it's not. Probably should be, but it's not. All right.
CLERK REGISTRAR: And, Your Honour, one further indulgence. Are there any specific orders that you'd like to put on the conditions for supervision?
THE COURT: May I see that document.
CLERK REGISTRAR: Yeah, I can – would you like me to print it off?
THE COURT: Sure.
CLERK REGISTRAR: Okay.
...END OF EXCERPT AS REQUESTED
...WHEREUPON THESE PROCEEDINGS WERE CONCLUDED
ELECTRONIC FORM 3
Certificate of Transcript Evidence Act, Subsection 5(2)
I, Adrienne Dela Cruz, certify that this document is a true and accurate transcript of the recording of Rex v. Adam Nevills, in the Ontario Court of Justice, held at 700 North Christina Street, Sarnia, Ontario, taken from Recording(s) No. 1711_CrtRm303_20240122_091204 6_POLANDMA.dcr, which has been certified in Form 1.
March 1, 2024 (Date) (Signature of authorized person) Adrienne Dela Cruz
ACT ID: 2060293924 adriennetranscription@gmail.com