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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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.
ONTARIO COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
— AND —
ALEXANDER EVANS
Sentencing Judgment
Before Justice Brock Jones
Heard on November 9, 2023, and November 27-28, and December 5, 2024
Reasons for Judgment released on December 19, 2024
G. Elder and K. Wong counsel for the Crown
A. Goldkind counsel for A. Evans
Jones J.:
I. Introduction
1Ms. A.A. entered a fast-food restaurant on December 10, 2022, to use the women’s washroom. What happened next permanently affected her life. She was assaulted, at knifepoint, by a man who had been waiting in one of the stalls. He locked the outside door, preventing her escape, and threatened her with sexual and physical violence. Through persuasion and pleading, she convinced him not to hurt her. Instead, she had him escort her downstairs by tricking him into thinking she would provide him with money. Fortunately, as she planned how to obtain help, he lost interest in her and left the restaurant.
2On November 9, 2023, Alexander Evans entered guilty pleas to one count each of sexual assault with a weapon (Criminal Code section 272(1)(a)), forcible confinement (Criminal Code section 279(2)) and robbery (Criminal Code section 343).
3The parties agreed that Mr. Evans should be assessed by a forensic psychiatrist under Criminal Code 752.1 to determine if he met the criteria to be designated a dangerous or long-term offender. After obtaining the report, the Crown agreed it would not seek his designation as a dangerous offender, and Mr. Goldkind agreed his client should be designated a long-term offender. However, they disagreed about the length of the appropriate prison sentence to be imposed and the length of any long-term supervision order (“LTSO.”)
4After the sentencing hearing, I reserved my decision. For the following reasons, I have concluded that a five-year prison sentence, followed by a ten-year LTSO, is required.
II. The Agreed Statement of Fact
5The parties filed an agreed statement of fact. I have reproduced the salient features below.
6On December 10, 2022, Ms. A.A. was at the Eaton Centre in Toronto with her husband at approximately 9 p.m. They exited the Eaton Centre, and Ms. A.A. entered the Popeye’s Chicken restaurant at 273 Yonge Street to use the washroom. Her husband waited outside. The restaurant is two stories, with the service counter downstairs and an additional seating area upstairs.
7Ms. A.A. entered the women’s washroom and noticed that one of the two toilet stalls was occupied. There was no one else inside the washroom. She used the other stall. When she was finished, she observed a man standing at the sink washing his hands. She thought she mistakenly entered the men’s washroom, so she apologized to the male. This male was eventually identified as Alexander Evans.
8After apologizing, she attempted to exit the washroom, but Mr. Evans stopped her from opening the door by pulling her hand away. He told her to “Shut up.” Although she pulled as hard as she could, she could not open the door. Mr. Evans then locked it.
9He quickly brandished a kitchen knife. Ms. A.A. feared for her life. Mr. Evans told her, “Let’s fuck.”
10Ms. A.A. begged and pleaded with Mr. Evans to let her go. She also told him that she was pregnant. He continued to say variations of “Let’s fuck” and did not allow her to leave the room. She eventually dropped to the floor and put her forehead on his feet to beg. She also hugged him and called him “her brother.” The exchange went on for a few minutes. He would not allow her to leave and continued to repeat, “We’re going to fuck,” or words to that effect. He held the knife the entire time.
11Ms. A.A. removed her phone and gave it to Mr. Evans. She lied and said her friend was sitting outside and had her bank cards. She proposed that if he let her leave, she would take him to a bank machine and withdraw $5000. He agreed and unlocked the door. He exited first, and she followed a few seconds later. He followed her around the restaurant while she feigned searching for this “friend.”
12She attended at the service counter downstairs while Mr. Evans was close behind her. She asked an employee if they had seen her friend. She tried making facial expressions to various people in the restaurant to hint that she was in danger, but no one assisted her. While this was occurring, Mr. Evans drifted away from Ms. A.A. She decided to seize upon this opportunity by alerting a staff member that the man behind her was trying to stab her and asked them to call 911. The staff member refused and said they were too busy.
13As this occurred, Mr. Evans left the restaurant. Ms. A.A. left, found her husband, and told him what happened. They called 911 on his phone. She described the suspect.
14Police officers attended and searched the area. Mr. Evans was located approximately 20 minutes later across the street in the stairwell of a building. He was searched incident to arrest. Ms. A.A.’s phone was found on his person. Additionally, he had an imitation firearm concealed in a satchel and the kitchen knife he used to assault Ms. A.A. He also had two “exacto” knives and a small amount of crystal meth.
15At the time, he was bound by a probation order that included a term prohibiting him from possessing any weapons.
III. Prior Criminal Record
16Mr. Evans has a prior criminal record. I have included details of some of these previous entries where possible.
| Offence(s) | Date | Sentence |
|---|---|---|
| Sexual Interference (YCJA) | August 27, 2012 | Probation 2 years |
| FTC Recognizance | July 3, 2014 | 1 day (9 days PSC) |
| Assault | November 26, 2014 | Suspended Sentence + 12 months probation |
| Assault with intent to resist arrest Disarm Peace Officer Assault Peace Officer FTC Probation |
May 6, 2015 | 1-day jail 2 years probation 110 order – 5 years (235 days of PSC) |
| Carry Concealed Weapon FTC Probation |
September 21, 2016 | 20 days intermittent jail (3 days PSC) |
| Assault | January 25, 2019 | Suspended Sentence + 12 months probation (30 days PSC) |
| Assault Peace Officer x 2 | April 10, 2019 | Suspended Sentence + 12 months probation (1 day PSC) |
| Theft Under $5000 | February 2, 2022 | Suspended Sentence + 1 year probation |
| Robbery Possession of a Schedule 1 Substance |
April 1, 2022 | 9-month sentence, reflected as 186 days jail, in addition to 84 days credit for PSC 2 years probation 109 order - Life |
| Robbery | March 30, 2023 | 80 days PSC credited for 120 days 24 months probation 109 order - Life |
17Six of Mr. Evans’ prior adult convictions involve female victims, as does his single entry as a young person. These entries are marked in bold in the chart.
August 27, 2012 – Sexual Interference (YCJA)
18This offence occurred shortly after Mr. Evans arrived in Canada. The victim was an eight-year-old girl, and Mr. Evans was 16. The victim's mother and Mr. Evans’ father were friends. On January 8, 2012, Mr. Evans and his father were helping the victim’s mother move. A “tickling fight” ensued between the victim and other children, including Mr. Evans. Later that day, the victim disclosed to her mother that Mr. Evans had placed his hands all over her body, eventually moving one hand under her skirt and into her tights and inserting his finger into her vagina.
November 26, 2014 – Assault
19Mr. Evans went to his girlfriend’s house while he was “not mentally stable.” He was going to ask her to marry him. He held her hand, and she pulled away from him. She was holding a key, and he told Dr. Iosif, “The key pulled her finger a bit.”
September 21, 2016 – Carry Concealed Weapon; Fail To Comply Probation
20Mr. Evans and the victim had been in an imitate partner relationship for about two years. However, at the time of the incident, they were not together. On Sunday, November 29, 2015, at approximately 4:30 pm, Mr. Evans attended the shelter where the victim was residing and sought her out. They argued over some speakers. He pulled out a knife with a 4-inch blade. While holding the knife in his hand and pointing it in the direction of the victim, he stated, “Fuck you, you fucking pussy, I’m gonna find you.”
21He was bound by a probation order which required him to “keep the peace and be of good behaviour.”
January 25, 2019 – Assault
22Mr. Evans met the victim in 2018, and they began an intimate partner relationship. On November 7, 2018, the victim noticed Mr. Evans awake at 6 am in an agitated state. He accused her of hiding his marijuana. She asked him to leave, and he pushed her with both hands. He struck her in the head. She fled to the bathroom, where she armed herself with a knife. Mr. Evans also obtained a knife.
23She put her knife down, and then he punched her in the head and all over her body. Outside the bathroom, she fell backwards into a closet, where he hit and choked her. He pointed his knife at her. She screamed for help and tried to escape. He grabbed her from behind and dragged her back into the apartment.
24She escaped again, and a neighbour intervened. Mr. Evans attempted to use the knife, but the neighbour grabbed it. He was cut in the process.
February 2, 2022 – Theft Under $5000
25Mr. Evans and the victim were in an intimate partner relationship. On Tuesday, August 11, 2021, at approximately 9:20 pm, they were on the subway making their way to Kennedy Station. They argued. When they arrived at their destination, he took her phone without her consent. She pursued him and punched him to recover her phone. Eventually, Mr. Evans pushed the victim with both hands multiple times. He also forced her against a glass wall and punched her. Finally, he grabbed her legs and tried to drag her out of the building. He told her, “I’ll kill you.”
April 1, 2022 – Robbery; Possession of a Schedule I Controlled Substance
26On Friday, February 4, 2022, Mr. Evans followed a woman into the lobby of a building. He tapped her shoulder and said, “Hi, Miss.” She turned around, and he brandished a knife and took her purse. She called 911. When Mr. Evans was arrested, he had a small quantity of fentanyl.
March 30, 2023 – Robbery
27Mr. Evans knew the female victim for about two months as her drug dealer. On November 7, 2022, she attended at his residence to obtain drugs. She did not have any money and owed him $100. He demanded her phone, but she refused. He held a glass bottle over his shoulder and motioned as if to strike her. He told her, “I will hurt you for my money.” Fearing for her safety, she gave him her phone.
IV. Victim Impact Statement
28Ms. A.A. described how the day of the offence changed her life forever. She was pregnant and feared for her life and the life of her baby. She is now scared to be around men on city streets. She has nightmares regularly. She cries whenever she thinks about the incident.
29She no longer ventures into the community as easily as before the attack. She gets scared using a public restroom.
30She was referred to mental health support services at Mt. Sinai Hospital. There, she was able to meet other women who were facing similar challenges and would share their stories. This has offered her some help and comfort.
31The damage Mr. Evan’s conduct caused to her mentally and emotionally “cannot be measured.” She feels it is “impossible” to return to a normal life. She considers herself traumatized.
V. Testimony of Dr. Iosif / [Criminal Code](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html) s. 752.1 Report
32Dr. Iosif of the Centre for Addiction and Mental Health (“CAMH”) met with Mr. Evans on April 3 and 10, 2024, for a combined eight-hour interview. She also reviewed various collateral sources of information, including prior medical and psychiatric records, jail records, and education records. She prepared a report pursuant to Criminal Code section 752.1.
33She was qualified as an expert witness in forensic psychiatry and testified on November 27 and 28, 2024.
34Mr. Evans is 29 years old. He was born in Jamaica and came to Canada in 2011. He has an older brother who lives in Toronto. He remains in contact with him. His mother, Juliet, lives in Washington State in the United States. His father, Franklin, travels between Canada and Jamaica, but Mr. Evans has not had any contact with him since he was incarcerated.
35Mr. Evans has a four-year-old child who lives with his former partner. He does not pay child support.
36Growing up, Mr. Evans had little contact with his father, who resided mainly in Canada. His maternal grandparents raised him in Jamaica. His mother abandoned him and would only visit every few months. When he was six years old, she left for England and only visited him every one to two years.
37When Mr. Evans arrived in Canada, he lived with his father temporarily. At the age of 16, he was forced to support himself. At 17, he moved in with his brother in Brampton. After a short period, he left and moved into a shelter because he “wanted more space.” Eventually, he rented an apartment on his own.
38Mr. Evans completed high school in Toronto. He denied any behavioural problems during this time. However, when he was 16, he was found guilty of sexual interference. He would not talk to Dr. Iosif about what happened. The Youth Justice Court ordered a YCJA section 34 psychological assessment. It was released to Dr. Iosif for review.
39After high school, Mr. Evan completed some upgrading courses at Seneca College.
40Mr. Evans had a variety of jobs as an adult, but the longest-lasting term of employment was only six months. He is currently a range cleaner at the Toronto South Detention Centre (“TSDC”).
41Regarding past sexual partners, Mr. Evans stated he had a “good amount” of women as partners of approximately the same age, and the sexual contact was always consensual. He described three significant relationships.
42Dr. Iosif asked Mr. Evans to explain his medical and psychiatric history. After reviewing his responses, she determined Mr. Evans was eager to minimize or dismiss his psychiatric history and the symptoms he experienced.
43Mr. Evans then reviewed his criminal history with Dr. Iosif. He did not dispute he had multiple entries for crimes against prior girlfriends and other women, although he did dispute some of the details, including some of what is contained in the police synopses. He admitted to carrying a knife in several of these incidents and using violence.
44When asked why so many of his victims were women, Mr. Evans told Dr. Iosif that he does not have many friends who are men. He denied he was violent with women, but the police tried to make him seem that way in their reports. He stated that women he had dated would explain he was not violent, but when asked to provide collateral sources to corroborate that claim, he did not give any.
45Regarding the offences before the court, Mr. Evans claimed he was intoxicated. He went to the washroom in the restaurant and was there, “just sitting on one of the toilets.” He was about to leave when someone entered. He did not know he was in a women’s washroom. He brandished his knife at Ms. A.A., and she offered him her phone and bank card.
46He had no recollection of making sexual remarks to the victim. He “never intended to touch her.” He merely wanted to get some money for food. He did admit to the forcible confinement offence, accepting that he shut the door on the victim. He asserted that he showed her the knife to ask for money.
47He did have a “toy gun” on his person and exacto knives from working in a warehouse. When confronted about the fact he was on a probation order which prohibited him from possessing weapons, he acknowledged this was a violation. He justified his actions because he was going downtown, “where anything can happen to you,” and he was thinking about his safety more than his probation conditions.
48Dr. Iosif considered him to have poor insight into the index offences. He wishes to live in the moment and dismiss what has happened in the past. He becomes evasive when asked about subjects he finds uncomfortable.
49Mr. Evans expressed a willingness to participate in sex offender treatment but denied he was a sex offender. He further denied he had any intentions to “coerce anyone sexually.” However, he wanted to make changes about himself and had been taking steps to do so since he was incarcerated.
50Dr. Iosif reviewed Mr. Evans’ prior medical records for her assessment. These included several incidents since 2018 where he exhibited strange, anti-social behaviour and was brought to CAMH for an evaluation. For example, on October 28, 2018, Mr. Evans was setting fires behind a YMCA and was brought to the emergency room at CAMH. Before that, he had an 18-day admission at North York General Hospital for mania with psychosis.
51On May 27, 2019, a TTC worker reported an emotionally disturbed person at Kipling Station. Mr. Evans was in his underwear, following women and being sexually aggressive. He wanted to fight with the police. He was talking to himself and not making sense. At the hospital, Mr. Evans said, “I am Jehovah.” He was described as “disorganized, not directable, violent.” He attempted to bite the nurse’s hands when she applied the blood pressure cuff. He had to be chemically sedated.
52On July 8, 2019, Mr. Evans was diagnosed with mania with psychosis, at elevated risk of decompensation, and acute psychosis. Cannabis was identified as a contributing cause of his anti-social behaviour. A Community Treatment Order (CTO) was issued on June 18, 2019. Mr. Evans was to attend appointments at St. Joseph’s Mental Health Centre. His mother was the substitute decision-maker.
53After being discharged from the hospital, Mr. Evans missed outpatient appointments in August 2019. He continued to use cannabis and was at a risk of relapse accordingly.
54A new CTO was issued on February 6, 2020. By July 2, 2020, Mr. Evans was deemed capable of consenting to treatment. He refused a subsequent CTO. The last CTO lapsed on August 5, 2020.
55Mr. Evans had been prescribed injectable medication for his bipolar diagnosis. His history of taking it is unclear. In November and December 2020, he attended injection appointments. Mr. Evans connected with a family doctor on January 13, 2021. However, Dr. Iosif did not have psychiatric records after that date to determine if he continued to accept treatment. Mr. Evans stated he did not take medication for four months prior to his arrest.
56While the preponderance of Mr. Evans’ victims are women, his past offending behaviour was generally associated with non-sexual violence. However, Dr. Iosif noted that there were several instances documented in his medical records of inappropriate sexual behaviour when manic that did not result in criminal charges. For example, in the hospital, he attempted to kiss a nurse, he commented on the staff’s physique, and in the community, he stripped to his underwear outside Kipling station and pursued women.
57Mr. Evans had three convictions in 2022, and each of them involved a female victim. He had little insight into his crimes against women. He told Dr. Iosif he is “neither violent with women nor a sex offender.”
58Mr. Evans has completed little psychological programming thus far. He did four one-hour courses in custody. Previously, while on probation, he was referred to the PAR program for intimate partner violence, but it is unclear if he completed it. He was removed from a “Healthy Relationships” course in 2016 because of non-attendance. He was removed from an anger management course in 2019 but completed it in 2020. Of concern, he has nevertheless re-offended violently multiple times in the last few years.
59Dr. Iosif concluded Mr. Evans suffers from bipolar affective disorder, antisocial personality traits and substance use disorder (alcohol and cannabis). The latter remains in remission in a controlled setting such as a jail. Mr. Evans is treated in custody for bipolar affective disorder with Abilify and Olanzapine, two antipsychotic medications. This is a lifelong condition requiring consistent treatment and cannot be cured. It is a medical certainty that if he does not keep taking his prescribed medications, he will experience another episode of a mood disorder (such as mania), which is linked to his re-offending. He has been stable for the last two years while in custody, demonstrating he responds well to the medications.
60His anti-social personality traits can only be managed through psychological treatments, typically one-on-one therapy sessions.
61Mr. Evans has had “sporadic compliance with psychiatric treatment and follow-up” when out of custody. Dr. Iosif’s opinion is that it remains uncertain how much Mr. Evans accepts his diagnosis and the need for treatment. He downplayed his symptoms and characterized them as matters of the past and thus no longer relevant. However, he has responded well to treatment while incarcerated.
62Mr. Evans’ diagnosis of antisocial personality characteristics should be revised once he is consistently treated for his underlying bipolar disorder and has an opportunity to re-enter the community. The antisocial characteristics may relate to his poorly controlled diagnosis of bipolar disorder.
63Regarding Mr. Evans’ sexual offending, Dr. Iosif could not conclude that Mr. Evans suffers from paraphilia (or that paraphilia must be ruled out.) His sexual behaviour should constitute a focus of rehabilitation and psychological intervention in the future. His violent behaviour towards women must undoubtedly be considered as a treatment plan is structured for him.
64Dr. Iosif administered several static risk management assessment tools. She applied the Psychopathy Checklist-Revised (PCL-R) test to assess Mr. Evans’ risk of reoffending. He scored 23, placing him in the moderate range. The test is predictive of future general and violent (sexual and non-sexual) recidivism and responsiveness to supervision.
65Mr. Evans completed the Sex Offender Risk Appraisal Guide (SORAG). It is considered one of the best actuarial instruments for predicting violence among male offenders with a history of sex offences. Mr. Evans’s total score on the SORAG was 21, placing him in the seventh of nine ascending risk categories. 80% of offenders in the same risk category committed a new violent offence within ten years of the opportunity (i.e. being released back into the community). Therefore, his current score indicates a high-moderate probability of violent recidivism.
66On the Static-99R, an instrument designed to predict sexual recidivism, Mr. Evans scored an 8. This suggests a high risk of sexual recidivism.
67Due to his criminal history, Mr. Evans was also scored on the Ontario Domestic Assault Risk Assessment (ODARA). This is an actuarial risk assessment that calculates how a man who has assaulted his female partner ranks among similar perpetrators concerning the risk of reoffending. It also calculates the likelihood that he will assault a female partner again in the future. Mr. Evans scored an 8, placing him in the highest-risk category. 70% of individuals with this score go on to commit another assault against a partner within five years.
68Dynamic risk assessment tools provided similar results. However, scientific research on dynamic factors is beginning and, therefore, provides less reliable results. A dynamic factor is a temporally varying personal or situational circumstance associated with risk.
69Mr. Evans was scored on the HCR-20V3 Structured Guide for the Assessment of Violence Risk. It includes variables that capture relevant past, present, and future considerations. Mr. Evans’ risk from a dynamic standpoint was determined to be high.
70Dr. Iosif also applied the Structured Assessment of Protective Factors for Violence Risk (SAPROF). This is a violence risk assessment tool specifically developed for the assessment of protective factors for adult offenders. The tool was intended to be used in addition to risk-focused assessment tools, such as the HCR-20V3. Even considering Mr. Evans’ protective factors, such as having life goals (wanting to attend college) and having some external controls in place once he leaves custody, he scored with a high degree of risk of future violence.
71Dr. Iosif concluded that Mr. Evans is at a high risk of sexual recidivism and domestic partner violence, absent significant intervention. The possibility of eventual risk control depends on the treatability of his underlying problems. For Mr. Evans, the most critical diagnoses are bipolar affective disorder, substance use disorder, and antisocial personality traits. Dr. Iosif singled out his propensity to violence toward women as a significant concern that is linked to these conditions. All of these require intensive, long-term (possibly indefinite) psychiatric and psychological treatment.
72Mr. Evans requires a high level of support and external supervision. Presently, Mr. Evans does not see himself as a sexual offender or someone violent towards women and motivating him to meaningful change through programming may be difficult. Dr. Iosif believed that any release into the community should occur gradually, with an extended period in a residential correctional facility and limited privileges earned through compliance with rules and expectations. His whereabouts should be regularly monitored.
73At the same time, Dr. Iosif was optimistic about Mr. Evans’ potential for rehabilitation. He is young and intelligent and could likely benefit from treatment. First, he must demonstrate a commitment to following through with all recommended programming and a willingness to take his prescribed medication when in the community. Long-term programming could take up to ten years to be successful.
VI. Testimony of Ms. Rhona James, Ministry of the Solicitor General
74Ms. James is the Deputy Superintendent of Programs at the Maplehurst Correctional Complex. She has worked in various roles for the Ministry of the Solicitor General since 1998.
75She provided an overview of the provincial correctional system and how it addresses high-risk and sexual offenders. The availability of programming varies from institution to institution. Inmates must partake voluntarily; no one is compelled. I will not review the details of her testimony about the types of programming available to inmates held in provincial jails in this judgment other than to state that there are specific programs for both violent and sexual offenders.
76Ms. James testified at length about the interplay between the provincial and federal correctional systems. The Ministry of the Solicitor General has a comprehensive offender tracking system for its purposes but does not have access to the federal information system. This can result in some offenders “falling through the cracks” if they are meant to transition from provincial facilities (e.g. a jail sentence of less than two years) to federal supervision (e.g. an LTSO.) Sometimes, the Ministry will not even realize that an inmate is subject to federal community supervision after discharge.
77There is a disconnect between these two systems. Unless a representative from the federal system reaches out to a provincial counterpart, there may be a flawed transition. While they can work collaboratively together, there are barriers in place. As a result, there is a risk that the intended degree of court-ordered supervision may not exist during a transitional period.
VII. Testimony of Mr. Adrian Alexander, Correctional Service of Canada (“CSC”)
78Mr. Alexander testified how the CSC manages high-risk offenders in custody and prepares them for community-based supervision under an LTSO.
79While in custody, the CSC develops an individualized plan for each inmate through its integrated correctional program model. The offender intake assessment process is comprehensive. Once completed, programming is made available to address mental health issues, intimate partner violence and other areas of concern, such as sexual violence.
80Once an offender is released into the community through the statutory release provisions of the Corrections and Conditional Release Act, the parole board will place conditions upon them. The parole board also sets the conditions for an LTSO. If an offender serves a federal sentence, the CSC will have the time to accumulate considerable information about the offender’s risk factors, personal needs, and response to programming. This, in turn, allows them to plan for the offender’s release into the community effectively.
81By contrast, if the offender does not receive a federal custodial sentence, monitoring their case effectively through community-based programming such as an LTSO is far more difficult. For example, if an offender is sentenced to “time served” while at a provincial jail with an LTSO to commence thereafter, release planning will not be completed before the start of the LTSO. This presents a very challenging problem. He echoed Ms. James’ concerns about a lack of information sharing between the two correctional systems.
VIII. Positions of the Parties
82The parties agree that Mr. Evans should be designated as a long-term offender. On behalf of the Crown, Mr. Elder and Ms. Wong seek a five-year sentence followed by a ten-year LTSO and various ancillary orders that are not disputed. They do not dispute that with Summers credit, Mr. Evans has served the equivalent of at least a three year sentence already. They also do not dispute that the conditions he has faced while incarcerated may be considered a mitigating factor. Yet, whatever amount of credit I award Mr. Evans for the time he has already served, they argue that a further two-year sentence is necessary.
83Sentencing decisions involving an LTO demand that public safety concerns be emphasized. Mr. Evans presents an ongoing and serious risk to the community's safety. I should consider the benefits to him of accessing more comprehensive programming available in a penitentiary. Furthermore, the testimony of the correctional authorities was that a clean transition from a federal sentence would greatly improve Mr. Evans’ supervision in the community under an LTSO. Even if I determine the provincial and federal correctional authorities should improve how they cooperate and share information, the sentence I impose must be based on what resources presently exist.
84While Mr. Evans’s rehabilitation efforts while in custody are to be commended, far more is required. He requires long-term programming to address his criminogenic needs.
85Furthermore, a global five-year sentence for Mr. Evans’ offences lies squarely within the range established by the existing authorities. I will review some of these authorities later in this judgment. Mr. Elder argued that even outside the unique sentencing considerations associated with an LTO hearing, this devastating harm caused by the sexual assault cries out for an exemplary sentence. Ms. A.A. may never fully recover from what she experienced.
86Mr. Goldkind submits Mr. Evans is in a time-served position. He has served the equivalent of a three-year penitentiary sentence. That is a significant penalty for a young man who has never had a jail sentence longer than nine months previously. Any community safety concerns can be adequately addressed through a LTSO. He submits an appropriate length of the LTSO is five to seven years, depending on how much, if any, further custody is also imposed.
87Mr. Evans pleaded guilty and spared the victim from having to testify. He has rehabilitative potential, and the Crown agrees he can be controlled in the community if he demonstrates a willingness to engage with programming. Mr. Evans has not faced a single allegation of misconduct while awaiting sentencing despite being held in a notoriously difficult environment at the TSDC. That speaks to his commitment to cooperating with the correctional authorities. Furthermore, Dr. Iosif accepted there was no evidence of malingering by Mr. Evans when she interviewed him. When he says he is willing to take programming, I should accept this as genuine.
88Mr. Evans did not express any refusal to take his medication. On the contrary - he has been voluntarily taking his medication for bipolar affective disorder for over two years since his arrest. That also speaks to his desire to address his mental health disorders and is the best means by which to protect the public in the future. His major mental illness reduces his moral culpability and should reduce the weight I place on general deterrence and denunciation.
89My sentencing decision should focus on Mr. Evans’ long-term rehabilitation, which will be achieved through an LTSO. If he does not comply with the conditions placed on him by the parole board, the consequences will be severe, further incentivizing him to continue with his treatment.
90Both Ms. Frank and Mr. Alexander testified about the lack of information sharing between the provincial and federal correctional systems. These problems, which should have long ago been addressed, must not be somehow used to punish Mr. Evans with an excessive sentence. It is not his fault that there is no process to ensure an offender who has reached “time served” cannot be easily transitioned to a sentence involving a federal community supervision plan. Mr. Goldkind concedes, however, that if I were to determine a five-year sentence is otherwise justified, many of his arguments lose their persuasiveness. He further acknowledges that his client has a concerning record of violence against women.
91However, Mr. Goldkind noted that in his review of the case law for sexual assault with a weapon, many of the aggravating factors that might justify a five-year sentence are absent. This was not a case of intimate partner violence. Mr. Evans did not ever physically touch the victim. He asks me to find his offending behaviour was linked to his major mental illness, which is a mitigating factor that distinguishes this case from most of the reported decisions relied upon by the Crown.
IX. Sentencing Law
(i) General Principles
92Criminal Code Section 718 describes the purpose of sentencing:
The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:
a. To denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;
b. To deter the offender and other persons from committing offences;
c. To separate offenders from society, where necessary;
d. To assist in rehabilitating offenders;
e. To provide reparations for harm done to victims or the community; and,
f. To promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or the community.
93General deterrence and denunciation must be given primacy when sentencing an offender for a serious sexual assault: R. v. Brown, 2020 ONCA 657, at paras. 67-8; R. v. G.M., 2015 BCCA 165, at paras. 17–18. Criminal Code section 718.04 further requires a sentencing court to give primary consideration to the objectives of denunciation and deterrence for an offence that “involved the abuse of a person who is vulnerable because of personal circumstances – including because the person is Aboriginal and female.”
94A sentence must be proportionate to “the gravity of the offence committed and the moral blameworthiness of the offender”: Criminal Code section 718.1. The more serious the crime and its consequences, or the greater the offender’s degree of responsibility or moral blameworthiness, the heavier the sentence required: see R. v. Lacasse, 2015 SCC 64, at para. 12.
95There are various factors to consider when assessing an offender’s moral culpability. As explained in R. v. Hills, 2023 SCC 2, at para. 58:
The offender’s moral culpability or degree of responsibility should be measured by gauging the essential substantive elements of the offence, including the offence’s mens rea, the offender’s conduct in the commission of the offence, the offender’s motive for committing the offence, and aspects of the offender’s background that increase or decrease the offender’s individual responsibility for the crime, including the offender’s personal circumstances and mental capacity …
96In R. v. C.K., 2023 BCCA 468, at para. 71, the British Columbia Court of Appeal held that the assessment of an offender’s degree of personal responsibility for an offence must consider the following:
The level of planning and intentionality brought to the crime;
The degree, nature and extent of the offender’s personal participation in the offence;
The means or method by which the crime was committed;
The motive or reasons for the offender’s participation;
The offender’s awareness of the legal and moral wrongfulness of their conduct;
Their awareness of the actual or reasonably foreseeable harms flowing from their conduct (immediate and long-term); and
Their persistence in perpetrating the offence despite that awareness.
97The personal characteristics of the offender must be carefully considered before determining his degree of responsibility. This forms part of the overall proportionality analysis. An individualized approach to sentencing is required: see R. v. Parranto, 2021 SCC 46, at para. 12.
(ii) Aggravating and Mitigating Factors
98Criminal Code section 718.2(a) requires that a "sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender." The following aggravating factors are present in this case:
Mr. Evans hid in a stall in the restaurant’s women’s washroom, lying in wait for a victim, which was at a minimum opportunistic;1
Ms. A.A. was attacked in a location where she was entitled to feel safe, and where her privacy should have been respected;
She was unarmed and defenceless;
Mr. Evans locked her in the bathroom and persisted with his assault despite her pleas for mercy;
He threatened her with a knife;
The impact of this assault on Ms. A.A. was profound;
Mr. Evans was bound by a probation order at the time, which required him to “keep the peace and be of good behaviour” and prohibited him from possessing any weapons and
Mr. Evans stole Ms. A.A.’s phone.
99The following mitigating circumstances must also be considered:
Mr. Evans pleaded guilty, sparing the victim from having to testify and saving the administration of justice the time and resources necessary for a trial;
He is a relatively young man;
He has shown a willingness to engage with treatment and has responded well to his medication the last two years; and
He has the love and support of members of his family.
(iii) Sentencing for Sexual Assault With A Weapon
100The maximum sentence for sexual assault with a weapon is fourteen years, which is higher than the ten-year maximum for sexual assault simpliciter. A higher maximum sentence indicates that Parliament views the objective gravity of the offence more seriously, which should result in a higher sentencing range: R. v. Friesen, 2020 SCC 9, at paras. 95-97.
101In R. v. Barton, 2019 SCC 33, the Supreme Court wrote that “[w]ithout a doubt, eliminating … sexual violence against women is one of the more pressing challenges we face as a society”: see para. 1. In Friesen at para. 89, the Supreme Court of Canada held:
All forms of sexual violence, including sexual violence against adults, are morally blameworthy precisely because they involve the wrongful exploitation of the victim by the offender -- the offender is treating the victim as an object and disregarding the victim's human dignity (see R. v. Mabior, 2012 SCC 47, [2012] 2 S.C.R. 584, at paras. 45 and 48).
102Courts of Appeal across Canada continue to condemn all sexual assaults for the devastating crimes that they are. In R. v. A.J.K., 2022 ONCA 487, the Ontario Court of Appeal held at para. 74:
All sexual assaults are serious acts of violence. They reflect the wrongful exploitation of the victim whose personal autonomy, sexual integrity, and dignity is harmfully impacted while being treated as nothing more than an object. Whether intimate partners or strangers, victims of sexual violence suffer profound emotional and physical harm and their lives can be forever altered. So, too, can the lives of their loved ones.
103In R. v. Maslehati, 2024 BCCA 207, the British Columbia Court held that all sexual assaults are “serious”: see para. 72. In R. v. Merasty, 2023 SKCA 33 at para. 23, the Saskatchewan Court of Appeal stated, “[no] matter what form it takes, a sexual assault is a forceful subjection of the victim to their assailant’s sexual desires.”
104Mr. Evans’ conduct must be denounced in the strongest terms imaginable. Women must be able to go about their daily lives in this city free from violence. His actions created an experience of unimaginable terror for Ms. A.A. She feared for her life and that of her unborn child. He positioned himself in a women’s washroom, armed with a knife. After he approached his victim, he locked the outside door, preventing her escape before making demands for sexual gratification. Despite her begging him for mercy and to stop, he continued to threaten her with physical and sexual violence.
105Mr. Evans was not a first-time offender. He has a troubling record for violence against women. He was subject to a probation order and was aware of the harm his actions would likely cause Ms. A.A. Despite this, he was not deterred. He only stopped his assault after she attempted to bribe him. As described in her VIS, the trauma associated with this event continues to affect her on a daily basis.
106There must be a reflection in contemporary sentencing judgments of our “deepening understanding” surrounding the harm caused by sexual assaults: see R. v. Bunn, 2022 MBCA 34, at para. 122. In A.J.K, the Ontario Court of Appeal noted that “[a]s the years pass, enlightenment on the implications of sexual violence continues to permeate our conscious minds”: see para. 75. In Friesen, the Supreme Court of Canada held that “our understanding of the profound physical and psychological harm that all victims of sexual assault experience has deepened”: see para. 118.
107Prior reported sentencing decisions for sexual assault with a weapon of this magnitude indicate a range of anywhere from three years to ten years (or more) of incarceration may be appropriate: see R. v. Campbell-Ball, 2019 SKCA 41, at para. 42; R. v. Codrington, 2023 ONSC 6352, at paras. 39-48.
108In R. v. MSA, 2022 ONSC 6818, the victim was assaulted by her husband throughout their marriage. The assaults included numerous instances of both physical and sexual abuse. Justice Monahan (as he then was) found that on at least four occasions between 2009 and 2018, the offender forced his wife to engage in sexual intercourse without her consent. He also threatened his wife with a knife on one occasion, which constituted a conviction for a single count of assault with a weapon. The Court imposed a sentence of four years, choosing concurrent as opposed to consecutive sentences: see paras. 50-51.
109In R. v. G.S., 2022 MBCA 35, the appellant was the victim’s husband. The appellant held a knife to her neck, threatened to kill her, choked her and sexually assaulted her. He was convicted of sexual assault with a weapon, choking to overcome resistance and uttering threats. He was sentenced to four years imprisonment, which was upheld on appeal. The Court of Appeal noted the sentence was “low”: see para. 24.
110In R. v. Alexander, 2013 ABCA 231, the accused was only 18 years old. He contacted a sex trade worker on Craigslist and lured her to a parking lot where he sexually assaulted her while holding a knife to her throat. When he was finished, he stole money from her. The trial court found the offences were planned and deliberate. The victim suffered long-term psychological harm. The accused pleaded guilty to sexual assault with a weapon, robbery and failure to comply with a recognizance. He was sentenced to six years’ imprisonment, which the Court of Appeal reduced to five years.
111In R. v. Ricciardi, 2019 ONSC 6607, the offender was found guilty after a trial of multiple offences, including an attempted sexual assault. That offence involved an unprovoked attack on a woman who worked at a Bridal Store. The offender punched her in the face, knocking her to the ground. He held a knife to her throat. He told her he would kill her unless she kept quiet. He ordered her to turn over, but before she could comply, the attack was interrupted by a stranger, and the offender fled.
112The offender was 63 years old with a minor prior criminal record. He struggled with alcohol and drug dependency. Justice Di Luca found he committed a planned attack with significant physical violence that had a serious impact on the victim, physically and emotionally. A 5-year sentence was imposed, which was upheld on appeal as part of a global sentence of 14 years: see para. 111, and R. v. Ricciardi, 2021 ONCA 96.
113In R. v. Valley, 2023 ONSC 166, the offender was found guilty of sexual assault, unlawful confinement and failure to comply with a probation order. The offender entered a Subway restaurant at 2:00 am and assaulted a vulnerable young female employee. He forced her to the ground and prevented her from calling 911. He choked her until she could not speak or breathe. He removed her clothing and his own, exposing his penis. She was ultimately able to break free and find help. She suffered serious physical injuries and emotional trauma.
114The offender was 21 years old with a lengthy criminal record, including for prior crimes of violence. He was subject to multiple probation orders at the time of the offence. Justice Boswell imposed a five-year sentence: see para. 52.
115In R. v. Ouedraogo, 2023 ONCJ 136, a woman was asleep on a bench in a parkette in downtown Toronto. They were suddenly attacked by a masked man wielding a block of concrete. They were struck multiple times and sexually assaulted. The offender attempted to place his penis inside their vagina. He threatened to kill the victim. A passerby heard their screams for help. Eventually, the offender ran away and stole the victim’s backpack.
116The offender was 28 years old. The parties agreed he was to be treated as a first-time offender. A forensic psychiatrist assessed him as being at a high risk for future violence and a substantial risk for future sexual violence. Justice Silverstein imposed a six-year prison sentence and a ten-year LTSO: see para. 84.
(iv) Pre-Sentence Custody
117Mr. Evans has been in custody since his December 10, 2022, arrest. He has spent 741 days, or over two years in pre-sentence custody. The parties agree that he should be credited with 1,112 days, or slightly more than three years, pursuant to R. v. Summers, 2014 SCC 26.
118Mr. Evans was incarcerated at the TSDC. I agree with Mr. Goldkind that I may consider the notoriously difficult conditions at that institution as a mitigating factor. Institutional records filed by Mr. Goldkind established that Mr. Evans endured near constant full and partial lockdowns since his arrest on the index offences.2 Triple-bunking has been a regular feature for inmates in most wings of the TSDC since February 20, 2024. Judicial commentary on these conditions is long-standing and well-known. This year, Justice Molloy commented on them in R. v. Shaikh and Tanloi, 2024 ONSC 774, at paras. 73-81, and Justice Himel did so in R. v. Gokool Clark, 2024 ONSC 5927, at paras. 75-80. I agree with the analysis contained in both decisions.
119Nevertheless, caution is warranted in this case. In R. v. Marshall, 2021 ONCA 344, at para. 52, the Ontario Court of Appeal held that credit for difficult pre-sentence conditions is “not a deduction from the otherwise appropriate sentence, but is one of the factors to be taken into account in determining the appropriate sentence.” This factor cannot distort a sentence such that it becomes inappropriate.
120I therefore consider this a mitigating factor but will not quantity the credit to be awarded.
(v) Length of the Appropriate Sentence
121Mr. Evans entered guilty pleas and precluded Ms. A.A. from having to testify at a preliminary hearing and a trial. While this is a mitigating factor, it is of moderate weight. The evidence against Mr. Evans was overwhelming as he was arrested shortly after the crime happened, in the vicinity, and with possession of the victim’s phone as well as the knife used in the attack: see R. v. F.H.L., 2018 ONCA 83, at para. 22. This was a very strong case for the Crown.
122I find that Mr. Evans has an extremely high degree of moral responsibility for these crimes. He had been convicted six times previously of assaultive behaviour towards women. He told Dr. Iosif every time he was previously incarcerated, it was an “awakening,” and he recognized “the need to change.”3 Yet he did not change and instead committed even more serious offences than he had previously.
123Disturbingly, his violence towards women has been escalating. His victims in 2022 included women who were not his current or prior intimate partners. He robbed three women that year and used a weapon each time. The index offences are yet another example of him using a knife against a female victim. For the first time, his offences included threats of sexual violence. Based on his lengthy prior criminal record and his admissions to Dr. Iosif, he would have been aware of the legal and moral wrongfulness of his actions and the potential for both immediate and long-term physical and psychological harm to his victim. Instead, he downplayed or denied his past violence towards women, including his former girlfriends, to minimize his blameworthiness.4
124Mr. Evans’ denial of the sexual aspect of his crimes against Ms. A.A. is particularly disturbing. It is yet one more example of his inability to address his severe and deep-rooted problems of violence toward women. He cannot meaningfully change and rehabilitate himself until he accepts what he has done. Indeed, his explanation to Dr. Iosif for being in the women’s washroom at this restaurant while armed with a knife as somehow originally merely an innocent mistake is completely unworthy of belief. It illustrates the extreme risk he presents as he does not respect boundaries and women’s private locations.
125I accept the opinion evidence of Dr. Iosif regarding Mr. Evans’ risk and therapeutic needs. Reviewing all the evidence in this case, I find Mr. Evans is at a very high risk of re-offending violently and sexually against women in the future, absent sustained and intensive long-term treatment. At present, he remains an ongoing danger to all women. His victim pool appears virtually limitless, as it includes adult women who range from his former partners to complete strangers. Until Mr. Evans meaningfully engages in appropriate programming and commits to taking his prescribed medication while out of custody, that degree of risk will not change.
126Dr. Iosif was clear that when Mr. Evans is released back into the community, he should be placed in a residential facility with regular monitoring. Ensuring a seamless transition between any custodial sentence he is ordered to serve and his supervision in the community will be essential to protect the public.
127Yet this will be Mr. Evans' first lengthy custodial sentence. He suffers from a major mental illness connected to his offending behaviour, which is generally accepted as an important mitigating factor at sentencing: see, for example, R. v. Fabbro, 2021 ONCA 494, at para. 25. I conclude he was not taking his prescribed medication for several months in 2022, which lead to his bipolar disorder remaining untreated and thus establishes the necessary causal link between his mental health condition and the commission of the offences. This does attenuate his moral culpability to a degree.
128Considering credit pre-sentence custody, both parties are effectively arguing for a penitentiary sentence, although Mr. Goldkind submits that his client has already served what is required. In R. v. Borde, 2003 CanLII 4187 (Ont. C.A.), the Ontario Court of Appeal explained the restraint principle at para. 36:
The length of a first penitentiary sentence for a youthful offender should rarely be determined solely by the objectives of denunciation and general deterrence. Where, as here, the offender has not previously been to penitentiary or served a long adult sentence, the courts ought to proceed on the basis that the shortest possible sentence will achieve the relevant objectives.
129Nevertheless, there are recognized limits to the application of this principle. Mr. Evans was relatively young, 26 at the time of these offences, but already a violent recidivist. Moreover, he has a long record for crimes of violence like the ones before the court. His history of non-compliance with community-based dispositions stands in contrast with his demonstrated ability to comply with taking his medication and taking therapeutic programming while in custody. A further custodial sentence will likely promote, rather than hinder, Mr. Evans’ rehabilitation: see R. v. Faroughi, 2024 ONCA 178, at para. 81.
130Mr. Evans was also well aware of the need to take his medication to control his episodes of mania and how that could influence his offending behaviour in 2022, which reduces the mitigating impact of his mental health condition for these offences: see R. v. Maier, 2015 ABCA 59, at para. 40. Furthermore, where an offender’s mental illness makes him an ongoing danger to the community, the illness alone is not a reason to reduce an otherwise appropriate sentence: see R. v. Haly, 2012 ONSC 2302, at para. 34.
131The sentence I impose must adequately denounce the objective gravity of these crimes and reflect the devasting nature of sexual violence against women. It must also recognize the tremendous harm caused to Ms. A.A: Criminal Code section 718.2(a)(iii.1). While general deterrence remains important, Mr. Evans must also be specifically deterred. His previous sentences have not gotten the message through that there will be no tolerance for any future criminal behaviour and stark consequences for any future offences committed against women in particular. I recognize, though, that I must not allow the impact of the offences on Ms. A.A. to overwhelm the balancing required when crafting an appropriate sentence: see R. v. Rabbit, 2023 ABCA 170, at paras. 51-53.
132Mr. Evans’ prior sentences for violent behaviour with a knife have been no greater than the equivalent of a nine-month custodial term. I am mindful of the “jump principle”, which stands for the proposition that a subsequent sentence imposed on an offender should not be disproportionate to sentences imposed for prior offences: see R. v. Green, 2021 ONCA 932, at para. 11. However, that principle has little application where the offender’s crimes show a dramatic increase in seriousness or the offender has multiple convictions and previous sanctions have been ineffective in deterring him: see para. 12. He is long past the time for shorter, reformatory jail sentences.
133An appropriate disposition for the count of sexual assault with a weapon is at least five years of incarceration.
134Forcible confinement is punishable by a maximum of ten years in custody. As explained by Justice Schreck in R. v. Jogiyat, 2024 ONSC 3498, the sentencing range for forcible confinement is “broad and will be dependent on a number of factors, including the duration of the confinement, the circumstances in which it took place, and the purpose for which the accused confined the victim”: see para. 69. Robbery has a maximum punishment of life in prison, reflecting the myriad ways the offence may be committed.
135The parties agreed the gravamen of Mr. Evans’ criminal conduct was captured by the offence of sexual assault with a weapon, and I will designate that offence as the primary offence accordingly. I impose a one-year jail sentence for the count of forcible confinement concurrently. I impose a two-year jail sentence for the robbery count, also concurrent.
136Due to the risk Mr. Evans presents to the community upon his release and the need to ensure a safe transition to his supervision by the Parole Board of Canada under the LTSO, a two-year penitentiary sentence will be imposed today in addition to any credit for pre-sentence custody. An emphasis on public safety lies at the centre of all sentencing decisions made under Part XXIV of the Criminal Code: see R. v. Spilman, 2018 ONCA 551, at para. 33. As held by Justice Trotter (as he then was), the advantages of keeping an offender in the federal system may be considered when deciding upon an appropriate sentence for a long-term offender: see R. v. Lawson, 2015 ONSC 5315, at para. 92; see also R. v. Hopley, 2015 BCCA 499, at para. 59.
137A further two-year sentence (to reflect a five-year global sentence) is proportional to his moral culpability for these offences and is the least restrictive sentence capable of adequately protecting the public.
X. Duration Of The Long-Term Supervision Order
138The parties agree that Mr. Evans should be designated a long-term offender. I agree. There is a substantial risk he will re-offend, but there is also a reasonable possibility of eventual control of that risk in the community if he partakes in treatment: see Criminal Code section 753.1(1). I therefore designate Mr. Evans a long-term offender.
139The parties differ on the length of the LTSO. An LTSO is a non-custodial sentencing option that extends the time the CSC will supervise and support an offender in the community. The period of imprisonment I impose, and the LTSO are separate components of Mr. Evans’ sentence. The distinction was explained by the Supreme Court of Canada in R. v. L.M., 2008 SCC 31, at para. 46:
These two types of decisions can be distinguished on the basis of the objectives and methods, and certain technical aspects, of the sentencing process. The principal objective of a prison sentence is punishment, although the sentence must be determined in accordance with the principles set out in the Criminal Code. On the other hand, the objectives of and rationale for the supervision of an offender in the community are to ensure that the offender does not reoffend and to protect the public during a period of supervised reintegration into society.
140The dominant consideration when determining the appropriate length of an LTSO is the protection of society: see R v Millie, 2022 SKQB 139, at para. 53. The order is intended to help prevent future criminal conduct and must assess the offender’s risk, of which the predicate offences form a component: see R. v. Blair, 2002 BCCA 205, at para. 37.
141In Millie, Justice Dawson described how a court should determine the length of the LTSO through an individualized approach to risk management:
Fixing the appropriate length of the order requires an assessment of the risk of reoffending, the availability and likely effectiveness of any possible treatment programs, and the length and level of supervision necessary to provide the required support and structure upon release from imprisonment: Blair; R. v. Sakebow, 2004 SKCA 127. In short, the length of a long-term supervision order should be tailored to the specific needs of the offender: R. v. Knife, 2015 SKCA 82 at paras 95-97, [2015] 12 WWR 469.
142In R. v. K.R.S., 2004 SKCA 127, the Saskatchewan Court of Appeal held that the sentencing court should also consider the severe consequences of a breach of a LTSO. Those include the possibility of reincarceration for the unexpired balance of the term of the order: see para. 65.
143Mr. Goldkind directed me to several authorities that consider how a court should calculate the length of an LTSO and not impose a ten year period automatically: R. v. Clarke, 2024 ONSC 436; R. v. Mikkigak, 2022 NUCJ 16; and R. v. J.D.S., 2015 ONCJ 226. In Clarke, Justice Schreck noted that an LTSO cannot be any longer that is necessary to address the offender’s risk to the public: see para. 32. Furthermore, the offender’s time in custody should be considered when determining the length of the LTSO. The court must consider how much additional supervision is necessary to protect the public after the offender has served the custodial sentence: para. 33.
144Each of these cases noted the age of the offender may be a relevant factor to consider. For example, in Clarke, Justice Schreck concluded that the offender did not require supervision after the age of 50, which he would reach after serving an eight year LTSO: see para. 35.
145Dr. Iosif concluded Mr. Evans may require treatment indefinitely. He shows little to no insight into his underlying problems respecting women, which will make treatment difficult. The potential harm of a future offence could involve devastating physical or psychological trauma to another woman. While he has responded well to treatment for his bipolar disorder while incarcerated, that is only one part of the intensive rehabilitative programming he requires to reduce his risk level. Thus far, he has demonstrated a disturbingly poor compliance record in the community.
146Dr. Iosif’s report explains that bipolar affective disorder is treatable by way of medications. Mr. Evans has also not had a consistent track record of continuing this treatment when out of custody. If he fails to take his medication, he may find himself in a manic episode lasting at least one week. In this state, he is at an elevated risk for re-offending.
147Predicting whether Mr. Evans will meaningfully respond to community-based programming is difficult. His unwillingness to even admit he has an established record of committing crimes of violence against women is a poor harbinger of the future. He requires many years of closely monitored community reintegration. Treatment for his antisocial tendencies will not be easy. To the extent he has a substance abuse problem, management of that condition will also turn largely on his motivation to change.
148Mr. Evans does have the love and support of his brother and mother in the community. That provides some measure of additional protection when he is released.
149Yet there is no denying that Mr. Evans presents a significant ongoing danger to the community's safety. He is 29 years old, and after serving a two-year sentence, he will be 31. A ten-year LTSO will keep him under federal supervision until he is 41. That is appropriate and required to address his degree of risk. While I agree with (and am bound by) the analysis of Justice Schreck in Clarke, each case is unique. Dr. Iosif testified that by applying various actuarial instruments, she determined Mr. Evans had a high risk of reoffending sexually and / or violently within ten years of release back into the community. I did not hear evidence that he would be expected to have a noticeably lower risk of reoffending simply due to the natural process of aging to 41.
150I impose a 10-year LTSO.
XI. Ancillary Orders
151The following ancillary orders are not disputed:
Weapons prohibition order under section 109 of the Criminal Code for life;
DNA order pursuant to section 487.051(1) of the Criminal Code; and
Mr. Evans is prohibited from communicating directly or indirectly with Ms. A.A. or any member of her family, while in custody, under Criminal Code section 743.21(1).
152Mr. Evans will be ordered to comply with the Sex Offender Registry for 20 years under Criminal Code sections 490.012(1) and 490.013(2)(b).
153The victim fine surcharges are waived.
154A copy of this judgment and Dr. Iosif’s report will be provided to the Correctional Service of Canada.
Final Remarks
155Sentencing hearings of this nature can be extremely complex and consume inordinate amounts of court time. Mr. Elder, Ms. Wong, and Mr. Goldkind are to be commended for how they litigated this case. As Crown counsel, Mr. Elder and Ms. Wong acted diligently and were able to set hearing dates on relatively short notice despite their very busy schedules, but with due consideration to Mr. Evan’s status in custody. Mr. Goldkind was efficient, fair, and focused during his cross-examination of each witness.
156All counsel identified the issues in dispute and made organized and helpful submissions. No time was needlessly wasted. I appreciate the reasonable concessions and agreements made by both sides. The repute of the administration of justice is greatly enhanced by such impressive professionalism.
Released: December 19, 2024
Signed: Justice B. Jones
Footnotes
- The Crown conceded it could not prove his actions were planned and deliberate beyond a reasonable doubt.
- There is often very little meaningful difference between a full and partial lockdown at the TSDC.
- Page 18
- Mr. Evans was asked by Dr. Iosif about other charges that were dismissed, withdrawn or stayed. He denied responsibility for these offences and the Crown did not lead other evidence to prove he committed them. I have chosen to disregard these allegations and they have played no role in my sentencing decision.