REASONS FOR SENTENCE

Court Information

Ontario Court of Justice

Date: April 24, 2015

Between:

Her Majesty the Queen

— and —

J.D.S.

Before: Justice D.P. Cole

Heard on: July 25, October 8, 2013; February 14, 2014; February 14, 27, 2015

Reasons for Judgment released on: April 24, 2015

Counsel:

• M. Wilson, counsel for the Crown
• D. Brodsky, counsel for the offender J.D.S.

Introduction

[1] On July 25, 2013 the offender elected trial in provincial court and entered pleas of guilty to five charges of sexual misbehaviour with two complainants, as well as to one charge of disobeying a court order arising from his attempt to contact one of the complainants following his detention in custody.

[2] On April 24, 2015 the offender entered a plea of guilty to a second charge of disobeying the same court order, also by attempting to contact the same victim.

[3] (Because the principal victim is the offender's daughter, who shares the offender's surname, I have decided to identify the offender by his initials only. I refer to the victims as D.S. and C.C.).

[4] The five charges of sexual misbehaviour (disclosed by various counts in the Information) are as follows:

1. J.D.S. on or about the 17th day of June 2012…did commit a sexual assault on D.S.

2. J.D.S. on or about the 17th day of June 2012…did have sexual intercourse with D.S. while knowing that D.S. was his daughter.

3. J.D.S. sometime between and including the 1st day of December 2006 and the 1st day of January 2007…did for a sexual purpose touch D.S., a person under the age of 14 years directly with a part of his body, to wit his penis and hand.

4. J.D.S. sometime between and including the 7th day of December 2006 and the 1st day of January 2007…did have sexual intercourse with D.S. while knowing that D.S. was his daughter.

5. J.D.S. sometime between and including the 1st day of January 2001 and the 31st day of December 2002…did for a sexual purpose touch C.C., a person under the age of 16 years directly with a part of his body, to wit his penis.

[5] Crown counsel sought and received the permission of the Attorney General to seek to have the offender designated by me to be either a "dangerous offender (determinate)" or, in the alternative, a "long term offender" only in relation to counts 1 and 2. This requires some brief explanation. Crown counsel's remit from the Attorney General is not to seek to have the offender designated as a dangerous offender (indeterminate), but to seek to have the offender declared to be a dangerous offender (determinate). Given that the dangerous offender (determinate) regime came into effect on July 2, 2008 (P.C. 2008-0582), and given that counts 4, 5 and 11 pre-date the new regime, Crown counsel indicated that he would not be seeking to have the offender declared to be a dangerous offender in relation to those counts.

[6] Defence counsel resists the Crown's application to have the offender designated as a "dangerous offender (determinate)". He concedes, however, that, in light of his client's criminal history and Dr. P. Klassen's psychiatric report (described infra) I should impose a Long-Term Supervision Order (LTSO) following the expiry of a penitentiary-length term of imprisonment.

[7] Counsel took various positions as to the appropriate sentences to be imposed for the other three sexual offences and the two charges of disobeying court orders. Since the vast bulk of the evidence and submissions related to whether the offender should be designated a dangerous offender, I shall defer describing and evaluating those positions until after I have disposed of the issue of the dangerous offender designation.

The Facts in Relation to the Sexual Offending Against C.C.

[8] The victim in this matter is the niece of the offender. At the time of this incident, the victim was approximately 7 years old.

[9] During the winter months of 2001 and 2002, the offender was residing at [an address] in the City of Toronto, with his girlfriend and their daughter D.S. The victim was sleeping over at the home of the offender and was sharing a room with D.S.

[10] During the night, the offender came into the room and woke the victim up. The offender and the victim then went downstairs into the living room where he positioned the victim in front of him on the floor, while he sat on the floor with his back against the couch. He removed the victim's pajama bottoms and placed her legs around his waist while she lay face down on the floor. Though he did not penetrate her, the offender rubbed the victim's vagina with his penis until he ejaculated. He then used tissues to wipe the victim's vagina.

[11] The victim did not disclose the incident to anyone until June 15, 2012, when she told a teacher at her school, who subsequently notified the victim's mother. On July 20, 2012, the victim attended 41 Division and provided a statement to police. On August 31, 2012 the offender (who was already in custody) was advised of the charges in relation to the above incident.

The Facts Relating to the Sexual Offending Against D.S.

[12] Counsel filed an agreed statement of facts, which I have slightly edited to prevent any possible identification of the name or identity of the complainant:

The victim's parents separated sometime in 2002 or 2003. Following the separation, the victim would spend time with the offender on a monthly basis, often staying with him every other weekend. The victim also spent time on holidays with the offender and his family.

In December of 2006 the victim was 12 years of age. Around the time of the Christmas holidays that year, the victim was staying with the offender at his apartment….

On a day during this time period, the offender and the victim were away from the apartment when the offender told the victim that he had colon cancer and that he only had a year to live. The complainant believed the offender as other family members had suffered from the same or a similar illness. The offender further told the complainant that his then deceased mother (the victim's grandmother) had come to him in a dream and told him that the only way he could be healed would be to connect his soul to that of the victim through sexual activity.

When the two returned to the offender's apartment, the offender prepared his bedroom by placing a ring of candles around the bed. He also created a ring of salt surrounding the bed. The offender then told the victim to take off her clothes. The victim asked her father if she could keep her underwear on but was told by the offender that she could not, as it was necessary for them to "do it the way they were born". The offender then made the victim take off her clothes and removed his clothing. The offender then told the victim to step inside the ring in order for him to "complete the circle". The offender then placed the victim on the bed on her back and got on top of her. The offender then began touching the victim on her vagina. The offender then rubbed his penis on the victim's vagina and eventually progressed to inserting his penis in the victim's vagina. The victim experienced pain from the incident. The offender eventually withdrew his penis and ejaculated on the outside of the victim's vagina. The offender did not use a condom.

The offender told the victim that she had to sleep in his bed that night. A few hours later, the victim was sleeping on her side when she awoke to the offender removing her underwear and then rubbing his penis against her buttocks. The offender then ejaculated on the victim a second time.

A few days following the event, the offender and the victim talked about the incident. The offender told the victim that he needed to stop these terrible urges but that he "had to do it because it helped him".

The victim was afraid of the offender and afraid of how she would be perceived if anyone found out about what had happened with her father. As a result, the complainant did not tell anyone about the incident.

Over the years that followed, the victim was regularly subjected to similar sexual assaults by her father….The offender would start by tell the victim to take off her clothing. He would then put the victim on the bed and begin to touch her breasts and vagina. The offender would then insert his penis into the victim's vagina and then ejaculate on the outside of her vagina. Sometimes the offender inserted his penis all the way into her vagina. On other occasions he would only insert the head of his penis. The offender did not wear a condom.

Due to her fear of the offender, heightened by the offender's temper and his imposing physical size, as well as a fear of how she would be perceived if the sexual activity were revealed, the victim did not report any of these incidents to anyone.

In August of 2010, when the victim was 16 years of age, the offender picked the victim up in his car from her mother's house….The offender then drove the victim to a motel…where he rented a room. Upon entering the motel room, the offender told the victim to take off her clothes and lay down on the bed. The offender then began to touch the victim's breasts and vagina. The offender rubbed his penis against the victim's vagina before inserting his penis into the victim's vagina. Once again, the offender then ejaculated on the outside of the victim's vagina. The victim experienced pain as a result of the incident. The offender did not use a condom. The 16 year old victim was not using any form of birth control at the time.

Due to her ongoing fear of the offender, heightened by the offender's temper and his imposing physical size, as well as an ongoing fear of how she would be perceived if the sexual activity were revealed, the victim continued not to report any of these incidents to anyone.

In the summer of 2011 the victim was 17 years of age. The victim chose to reside that summer in a trailer… with her boyfriend and the offender. On an evening toward the end of July 2011, the victim found herself alone with the offender as her boyfriend had gone to work. The offender and the victim smoked marihuana together in the trailer. The offender then told the victim to go into his bedroom and take her clothes off. The victim told the offender that she would not do so and reminded the offender that he had promised her that he would no longer touch her sexually. The offender became increasingly angry and repeated his demands for the victim to take off her clothes. The victim, in fear of the offender, took off her clothes and lay down on the offender's bed. The victim put a pillow over her own face so that she could avoid seeing what the offender was doing. The offender then engaged in the same behaviour [as on previous occasions], beginning by touching the victim on her breasts and vagina, progressing to rubbing his penis against the victim's vagina and then inserting his penis into her vagina. The offender once again ended the incident by ejaculating on the outside of the victim's vagina. The victim experienced pain as a result of this incident. The offender was not wearing a condom.

The victim's boyfriend returned from work later that night and, based on her demeanour, could sense that something was wrong. After being pressed by her boyfriend, the 17 year old victim, for the first time in her life, told someone about the abuse she had suffered at the hands of her father. Due to her fear of her father and a fear of how she would be perceived, the victim pleaded with her boyfriend to keep her secret and not to call the police. He agreed to keep the incidents a secret.

A couple of nights later, the victim again found herself alone in the trailer with the offender. The offender engaged in the exact same conduct toward his daughter. He forced her to take off her clothing, touched her on her breasts and vagina, inserted his penis into her vagina and ejaculated on the outside of her vagina.

The complainant remained in [the trailer] for a short time following these incidents in order to spend time with her boyfriend. In order to avoid being subjected to any further abuse at the hands of her father, the victim would avoid being alone with him, sometimes remaining at her boyfriend's place of work for hours before he finished his shift. The victim left the trailer in early August 2011.

Following these incidents in the summer of 2011, the victim got in an argument with the offender about the abuse he had perpetrated against her. The victim told the offender that he did not appreciate how much his actions had hurt her. The victim explained to the offender that, as a result of his actions toward her, she had wanted to kill herself, had cut herself, and had used drugs. The victim told the offender that his behaviour toward her had "messed her up" for a period of time. The offender responded by stating that he had been unaware of the pain and damage that he had caused through his actions and promised the victim that he would never do it again.

Just under a year passed without any sexual incidents between the offender and the victim. During most of this time, the offender was residing in British Columbia. Then, on June 17, 2012, 8 days after the victim's 18th birthday, the offender and the victim were running errands…in the city of Toronto. They had been using a vehicle driven by the offender. When they got in the vehicle to leave the area, it would not start. The offender told the victim that this was a problem that happened frequently with the vehicle. The offender spent some time trying to start the vehicle but could not do so. The offender then told the victim that they would have to wait an hour or more and suggested that they go to his ex-girlfriend's apartment and wait for the vehicle to cool down. The victim agreed.

Once in the apartment the victim and the offender watched television and smoked marihuana alone in the apartment as the offender's ex-girlfriend was not present. The offender left at one point to check on the vehicle. When he returned, the offender told the victim that the vehicle had been towed. After a period of time, the offender told the victim that he was going to "have her tonight". The victim pleaded with the offender not to engage in sexual activity with her. She reminded the offender of the promises he had made following the incidents in the summer of 2011. The offender responded by telling her that it had been a year and that she should "just let him do it". The victim told the offender that if he did it (meaning the sexual activity), she would never speak to him again, would never love him again and would call the police. The offender became increasingly angry at the victim, stating, "I am already mad and frustrated, don't make me more frustrated." Fearing the offender, the victim complied with his demands.

The victim entered the bedroom and took off her clothing. The offender approached her from behind and began fondling her breasts. The victim laid down on the bed and put a pillow over her face so that she would not see what the offender was doing. The offender began to touch the victim's breasts and vagina and proceeded to rub the head of his penis against her vagina. The victim asked the offender if he was going to put it all the way in. When he told her it was his intention to do so, the victim pleaded with him not to do it. The offender responded by stating, "What do you mean "no"? Of course I will." The offender then proceeded to insert his penis into the victim's vagina and ejaculate on the outside of her vagina. The victim experienced pain from the actions of the offender. The offender was not wearing a condom.

After he ejaculated on her, the offender gave the victim some tissues to wipe herself with. The victim refused to use them as she had discussed with her boyfriend that, if the offender engaged in this type of behaviour again, she would not shower or clean herself so that evidence could be given to the police. The victim entered the bathroom and got dressed. The victim then engaged in a lengthy and frantic exchange of text messages with her boyfriend, telling him what had happened. The victim's boyfriend called police as the victim was afraid that, if she called, the offender would hear her. Due to the fact that the victim did not know her exact location, police had to engage in an urgent investigation in order to locate her. At approximately 3:00 am, police located the victim in the apartment with the offender. The offender was arrested at that time.

The Impact on D.S.

[13] D.S. prepared a written Victim Impact Statement (VIS), which she read in open court. Exhibit 4 reads as follows:

From the time this started happening to me when I was 12 and going through this process I have suffered and endured a painful emotional loss that I will never fully recover from.

I have experienced nightmares and loss of sleep, I went through inflicting pain on myself along with thoughts of suicide. I lost my dad as a parent, stress of having to press charges on a parent, any chance I could have had at having a normal teenage life as well as his side of the family due to his lies of what happened. I was forced to lie to my friends and family who could have helped me and the fact I could have told a long time ago and stopped this from happening to other and I will always feel guilt that others were harmed and affected at the hands of my dad. No matter what anyone says I will always be embarrassed this happened to me that I had to go through this I will always have my family but no one will ever be able to get on my level and fully understand how I feel, what I've been through and am still going through. I've had to go to counselling as well as pay for sessions and my transportation there. This has also affected me in a way where I am paranoid with my world around me and have trust issues with others. I struggle with self-esteem issues, difficulty with friendships and has affected me being intimate with my boyfriend. I've suffered weight loss & substance abuse due to the stress of dealing with this process. This has affected me from being able to live my life normally to the fullest. I have been delayed from starting post-secondary school, having a normal social life and will always have trouble understanding boundaries.

This situation has caused great loss in my life and because of it I will never be the same person.

The Facts in Relation to Disobeying the Court Orders

[14] On August 31, 2012, the offender was ordered detained in custody following a bail hearing. The bail justice further ordered that during his detention pending trial the offender must abstain from communicating directly or indirectly with D.S.

[15] In early January, 2013, the biological mother of D.S. received a handwritten letter addressed to her daughter. She immediately recognized the writing to be that of the offender. The letter read as follows:

I NEED TO TELL YOU THAT I LOVE YOU VERY MUCH. I MISS YOU AND I AM SO SORRY WITH ALL MY HEART. PLEASE FORGIVE ME. YOU AND B. PLEASE DON'T LOSE CONTACT WITH ME. LOVE FOREVER.

[16] On January 20, 2013, the mother attended 12 Division and turned the letter over to police. On February 7, 2013, the offender appeared at the Toronto West Courts. At this time, he was advised that he would be charged with Disobeying Court Order.

[17] On November 6, 2013, a corrections officer at the Toronto West Detention Centre contacted police about a letter that the accused had attempted to send to his ex-girlfriend, Kaci McFadden, in which he asked her to pass information along to D.S. On November 12, 2013, a search warrant was granted and the letter was seized from the Toronto West Detention Centre. At this time J.D.S. was advised that he would be charged with an additional offence of Disobeying Court Order.

The Crown Application to Have the Offender Designated as a Dangerous Offender

[18] One of the principal factors motivating the Crown application is that the offender has a previous record from 1993 for a sexual assault on a child. Importantly, as with D.S., the victim of this assault was a child of one of his intimate partners, namely his then step-daughter C.S.

[19] According to the transcript of the sentencing proceedings before Marin J. the admitted facts supporting the offender's plea of guilty were that beginning in September 1989 the offender would frequently caress the then 9 year-old victim's breasts and vaginal area both over and under her clothes. These assaults occurred while the child's mother – who was at that time married to the offender – was either out of the house or was sleeping. The assaults were repeated many times over a period of some 2 ½ years until a complaint was made in early 1993.

[20] Though the offender turned himself in about one month after the police became involved, sentencing was delayed so that a psychiatric assessment of the offender could be conducted by Dr. H. Sahyoun. After interviewing J.D.S. over some eight sessions, the psychiatrist concluded that: "I do not believe that he represents a danger to the public or to children as far as his sexual behaviour….He appeared to be genuine, trying to get himself rehabilitated, and I believe that he would benefit from periodic supportive psychotherapy". Unfortunately, as sagely noted by Marin J.: "Of some concern…is the fact that the full range of psychiatric and psychological testing that may have been available and might have better assisted the Court in assessing risk was not carried out apparently because of pressures of time". Despite these deficiencies, Marin J. indicated that she had little option but to rely on Dr. Sahyoun's report, and she imposed a custodial sentence of 8 months, followed by probation for 3 years.

[21] The facts surrounding this conviction, and the offender's current view of that offence, were exhaustively reviewed in the current proceeding by Dr. P. Klassen, whose psychiatric assessment of J.D.S. was very much at the core of this Crown application. One of the optional conditions in the 1993 probation order was that the offender was to take treatment or counselling as recommended either by Dr. Sayhoun or by the offender's probation officer. It appears that in due course he was referred to the [now] Centre for Addiction and Mental Health, where he saw psychiatrist Dr. J. P. Fedoroff. While Dr. Fedoroff's initial assessment was made available to the court and to Dr. Klassen, for some unexplained reason Dr. Klassen was unable to obtain Dr. Fedoroff's treatment notes; it does appear from file information that the offender remained in treatment – albeit somewhat unwillingly, according to the probation supervisor's notes - with either Dr. Sayhoun or Dr. Fedoroff during a substantial portion of his probationary period.

[22] As will be seen during these reasons, Crown counsel argues that the offender's failure to learn from this 1993 conviction and sentence, obviously demonstrated by his later offending against C.C. and D.S., strongly militates in favour of the imposition of a dangerous offender designation. Crown counsel further emphasizes that this recurrent pattern of abusing children to whom he stands in loco parentis suggests that any child of any woman with whom he may become partnered in future is at significant risk.

[23] (Reference is made in the various materials obtained from correctional authorities to other convictions, peace bonds or withdrawn charges. Though these afforded Dr. Klassen some further background about the offender, as I read his report, he did not find them to be particularly significant in his formulation of his opinion, as none of them involved sexual offending or significant violence).

[24] In addition to reviewing the Ministry records and court transcripts I have referred to, Dr. Klassen of course had access to the synopses for the predicate offences (paras. 8-12 supra), all of which he used as the basis for interviews with J.D.S. for some 5 ½ hours over two days. He was also able to interview some of the offender's family members and one of his former romantic partners.

[25] Dr. Klassen personally administered and scored the offender on three well-known "third generation" actuarial instruments – the PCL-R, the SORAG, and the STATIC99-R. (Counsel are agreed that Dr. Klassen is very well placed and trained to administer and interpret these various instruments).

[26] Dr. Klassen scored the offender at 27 out of 40 points on the Psychopathy Check List – Revised (PCL-R):

A score of 27 places this gentleman on the 71st percentile with respect to a reference sample of North American offenders. Put another way, in a randomly selected sample of North American offenders, 71% would have a lower score….A score of 27 is a significant score, and suggests potential for general and interpersonal recidivism.

[27] Dr. Klassen explained in his testimony that as clinicians have become more experienced with the PCL-R, "it has become less of a diagnostic tool (of psychopathology) than it has become a…risk assessment...tool that…[is] useful in predicting risk of both general and violent recidivism and also…[predicting] responsiveness to treatment and community supervision" (p.60). Given that the mean score for Canadian adult male offenders is 23 (on a 40 point scale), Dr. Klassen thus considered J.D.S.' score of 27 to be "moderate or moderately high".

[28] Because the PCL-R is not specifically designed to assess an offender's likelihood of sexual reoffending, Dr. Klassen first scored the offender according to the Sex Offender Risk Appraisal Guide (SORAG). He concluded:

My score for this gentleman on the SORAG is 13. A score of 13 places this gentleman on the 65th percentile with respect to the reference or standardization sample. Similar scoring individuals recidivated violently or sexually at a rate of 59% over ten years opportunity in the community.

Interestingly, he immediately found it necessary to add that:

It should perhaps be noted that these probability estimates are now somewhat dated, [as] base rates of recidivism have declined [over time], and this may be somewhat of an overestimate of risk.

[29] On the STATIC99-R, "the most widely used sex offender risk appraisal tool…in the world" (Testimony p.90), Dr Klassen scored the offender at 2. He explained that:

A score of 2 places this gentleman essentially at the mean for convicted sex offenders in North America (48th percentile). Similar scoring individuals recidivated violently or sexually at rates of 27-31%, over 10 years opportunity in the community.

[30] Combining the percentile scores on both the SORAG and the STATIC99-R, Dr. Klassen concluded:

…these tools offer quite congruent findings; this gentleman is at, or slightly above, the mean for sex offenders ….Qualitatively, this gentleman may be described as essentially at moderate risk for serious (sexual or violent) recidivism.

[31] Having been involved in some 150 dangerous offender assessments, Dr. Klassen is obviously very well placed to comment on whether the criteria for a dangerous offender application have been met. Though expressing concerns about the offender's "potential for general and interpersonal recidivism" and "that there is an underlying interest in minors", Dr. Klassen was firm in his view, from a psychiatric perspective, that:

Actuarial risk assessment in this case suggests that this gentleman is not likely to reoffend; the STATIC99-R probability estimate is below 50%. The SORAG estimate is only slightly above 50%, and given that this probability estimate may be somewhat of an overestimate, I do not have confidence in stating that this gentleman is likely to reoffend…Accordingly, and from a purely psychiatric perspective, the test for Dangerous Offender status appears not to be met.

[32] While acknowledging Dr. Klassen's opinion that the test for dangerous offender status had not been met, Crown counsel highlighted a number of other elements of Dr. Klassen's report, including the results of phallometric testing, in an attempt to persuade me that "common sense" should lead me to conclude that a dangerous offender designation should be made. As he submitted most concisely: "in this case common sense should trump actuarial data".

[33] Crown counsel first pointed out that it is not the case that Dr. Klassen found from his review of the case that there was no evidence to support a dangerous offender finding; rather, as a cautious clinician, he was not satisfied that he could comfortably make certain assumptions based on the facts and data available to him. Both in his examination in chief of Dr. Klassen and in his submissions Crown counsel brought out several other factors – that Dr. Klassen was not certain what he was being told by the offender or his family members about his early years or some of his work patterns were entirely accurate (Testimony p.53; Psychiatric Report p.25); that the offender may have intentionally attempted to "stifle" the phallometric testing in an attempt to downplay his deviant tendencies (Testimony p.38; Psychiatric Report p.19); that, for purposes of scoring the STATIC99-R, the test protocol assumed that there was only one previous victim at the time the offender began to sexually assault D.S., when, obviously, there were two – C.S. and C.C.; and that the offender persisted in escalating the frequency and degree of sexual misbehaviour and aggression in regard to D.S. All of these are factors which the Crown argued can and should be considered by me, even though they could not be adequately captured in actuarial data.

[34] Above all, Crown counsel argues that the following inferences – which he says are logically derived from the facts - should impel me to the conclusion that the only way that society can be adequately protected is through the imposition of a dangerous offender (determinate) designation:

• Despite having been convicted and sentenced to custody for his prior offending against C.S., the offender resumed sexual offending against children;

• Despite having been treated for sexual offending as part of his 1993 probation order, he continued to reoffend;

• The offender's continual blaming of his sexual offending on his consumption of testosterone or other anabolic steroids (Psychiatric Report pp. 25-7) is not only completely unrealistic, but, more importantly, provides a convenient excuse that allows him to continue to avoid responsibility for his acts;

• Regardless of whether his deviant behaviour is labelled as a "paraphilia" or a "paraphilic disorder" (Psychiatric Report p.29-30; Testimony pp.69-77), "common sense" indicates that the offender obviously has an ongoing attraction to pre-pubescent or pubescent females, as demonstrated by his continued offending against the three victims. Thus, assumptions about "burnout" occurring around the age of 60 (Testimony p.97) do not apply to such an offender;

• His pattern of offending does not indicate that these offences could be characterized as spontaneous (which might indicate that he suffers from "indiscriminate hypersexuality", or that substance abuse may have loosened his inhibitions); to the contrary, as noted by Dr. Klassen, at least with C.S. and D.S., the evidence shows that there was "a considerable temporal distinction between conception and execution" (Testimony p.26; Psychiatric Report p.29). Crown counsel suggests that this strongly supports the notion that the offender is conniving and cunning in his ability to create situations where he may abuse trust (my words, not his), and that therefore other children may well be at risk in the future, particularly children of intimate partners with whom he might become involved in the future. As Crown counsel summarized, "the probability of future offending rises with each victim" (see Testimony p.31).

• The continuing escalation of his sexual misbehaviour, as evidenced by his pattern of incest with his daughter, is very troubling, not only from the very fact of escalating from penile touching to intercourse, but also because of his continuing threats and indifference to D.S.' continually expressed objections over a six-year period. As Dr. Klassen agrees that the offender is "callous", reveals "some narcissistic traits" (Testimony p.58-9), and shows "some cognitive distortions and some minimization" (Testimony p.53), and that he therefore "meet[s] the adult criteria for antisocial personality disorder ([albeit] not the full criteria for the disorder)" (Psychiatric Report p.28), Crown counsel argues that this strongly militates in favour of the imposition of a dangerous offender designation (followed by a lengthy Long Term Supervision Order).

[36] In terms of the various statutory routes to dangerous offender status, Crown counsel submits that they are all met in the case at bar.

[37] In relation to s.753(1)(a)(i) of the Code, Crown counsel points to what he says is evidence of:

• "a pattern of repetitive behaviour"- Crown counsel says this is obvious from the facts;

• "the offence for which he has been convicted shows a part"- Crown counsel says this is again obvious from the facts;

• "showing a failure to restrain his behaviour and a likelihood of causing death or injury to other persons…through failure in the future to restrain his behaviour" – Crown counsel especially refers to the fact that the offender (a) failed to learn from his 1993 offences, and (b) continually fails to admit that he has ongoing problems with sexual deviancy.

[38] In relation to s.753(1)(b) of the Code, Crown counsel first points out – and the defence concedes - that the offences against D.S. obviously amount to "personal injury offences" as that term has been defined in the Code. Crown counsel goes on to suggest that these demonstrate:

• "a failure to control his sexual impulses" – which he argues is obvious from the offender's continual offending against both D.S. and the other victims;

• "show[ing] a failure to control his sexual impulses and a likelihood of causing injury, pain or other evil to other persons…through failure in the future to restrain his sexual impulses" – which he says is amply established by the pattern of sexual offending;

[39] Recognizing that defence counsel would no doubt argue that the "likelihood" criteria in s.753(1)(a)(i) and s.753(1)(b) have not been met in the case at bar, Crown counsel referred to some recent case law on point. He began by pointing me to the decision of Code J. in the recent case of R. v. P.G. 2013 ONSC 589, in turn quoting the seminal decision of the Supreme Court of Canada in R. v. Lyons. Though the quote is lengthy, it is entirely apposite to cite considerable portions of the decision:

18 The one difficult issue, in relation to the s. 753(1)(a) and (b) statutory tests, is whether the requisite "likelihood" of re-offending in the future has been established. Predicting future conduct is notoriously difficult and the exact meaning of the s. 753 "likelihood" test is subtle. The ordinary dictionary meaning of the word "likelihood", as well as its normal legal usage, is "probability", that is, something more than mere "possibility". See: The New Shorter Oxford English Dictionary, Oxford University Press 1993, Vol. 1, p. 1588; Black's Law Dictionary, 9th Ed. 2009, at p. 1012; D.A. Dukelow, Dictionary of Canadian Law, 3rd Ed. 2004, at p. 723; R. v. H. (J.T.) (2002), 2002 NSCA 138, 170 C.C.C. (3d) 405 at paras. 68-75 and 101-4 (N.S.C.A.) . When applying this meaning to the "likelihood" test found in s. 753, the courts have stressed that it refers to probable "risk" or "potential for harm", as a present fact, rather than to proof of a future event which would be an impossibility. The best discussion of this difficult subject is found in the judgment of LaForest J., speaking for the majority in R. v. Lyons (1987), 37 C.C.C. (3d) 1 at paras. 92-95 and 99-100 (S.C.C.), where he stated:

Paragraphs (a) and (b) of s. 688 [now s. 753] both require proof that the offender represents a threat of some sort to society. It is nowhere required that it be proved that the offender will act in a certain way. Indeed, inherent in the notion of dangerousness is the risk, not the certainty, of harm.

The appellant asserts that a "likelihood" is ipso facto not susceptible of proof beyond a reasonable doubt. He cites in support the following statement of Isabel Grant, in her article "Dangerous Offenders" (1985), 9 Dal. L.J. 347, at p. 360:

How does one prove beyond a reasonable doubt that at some time in some setting, an individual is likely to endanger some person. Surely if we add "beyond a reasonable doubt" to a "future likelihood" the sum total can be no greater than a balance of probabilities; a standard we would never accept in a criminal trial.

However, as Holmes has reminded us, the life of the law has not been logic: it has been experience. The criminal law must operate in a world governed by practical considerations rather than abstract logic and, as a matter of practicality, the most that can be established in a future context is a likelihood of certain events occurring. To doubt this conclusion is, in actuality, to doubt the validity of the legislative objectives embodied in Part XXI, for to require certainty in such matters would be tantamount to rendering the entire process ineffective.

Moreover, I am not convinced, even as a matter of logic, that the appellant's submission is sound. It seems to me that a "likelihood" of specified future conduct occurring is the finding of fact required to be established; it is not, at one and the same time, the means of proving that fact. Logically, it seems clear to me that an individual can be found to constitute a threat to society without insisting that this require the court to assert an ability to predict the future. I do not find it illogical for a court to assert that it is satisfied beyond a reasonable doubt that the test of dangerousness has been met, that there exists a certain potential for harm. That this is really only an apparent paradox is aptly captured by Morden J. in R. v. Knight (1975), 27 C.C.C. (2d) 343 (Ont. H.C.) at p. 356:

I wish to make it clear that when I refer to the requisite standard of proof respecting likelihood I am not imposing on myself an obligation to find it proven beyond a reasonable doubt that certain events will happen in the future - this, in the nature of things would be impossible in practically every case - but I do refer to the quality and strength of the evidence of past and present facts together with the expert opinion thereon, as an existing basis for finding present likelihood of future conduct.

[40] While I of course accept these as accurate statements of the law, P.G. was obviously a very different case from the facts I am dealing with in the case at bar. Most importantly, Code J. was entirely satisfied that there was a proven and accurate diagnosis of pedophilia, combined with "the complete refusal by P.G. to acknowledge his separate preference for children, and to engage in treatment, and the resulting exacerbation of his risk of reoffending" (para. 49). In the case at bar Dr. Klassen was entirely clear that there is no conclusive evidence of pedophilia, and the offender has admitted to Dr. Klassen that he requires treatment for sexual deviance and has offered do "whatever it takes" to stop himself from reoffending.

[41] In addition to the quotes outlined above, the main reason Crown counsel cites P.G. is for the proposition that a court is by no means obligated or compelled to base its decision solely upon psychiatric opinion. Code J. cites the 1984 decision of Ewaschuk J. In R. v. Moore (1984), 10 C.C.C. (3d) 306 at 310-11, in a passage cited with approval in R. v. Lyons:

I accept the submission that the evidence of a psychiatrist…is at times highly speculative and in certain instances a lay person is in as good a position to make a prediction as to future dangerousness. In the final say, the court…must be so satisfied and not the expert witness.

[42] This theme was repeated more recently by Pomerance J. in R. v. McLaughlin 2014 ONCJ 48, [2014] O.J. No. 570 (at paras. 134-8). In considering a dangerous offender application where there were conflicting psychiatric opinions based on differing interpretations of the profiles revealed by actuarial instruments, Justice Pomerance cited with approval both the Ontario judgments I have just referred to as well as the judgment of the Alberta Court of Queen's Bench in R. v. Mousseau, 2003 ABQB 621, 351 A.R. 23:

Above all, the responsibility remains with the court to assess and weigh the opinion evidence, to determine whether the thresholds set out in the Criminal Code have been met, and to determine whether, based on past behaviour, the accused is a threat and should be designated as a dangerous offender. It is the court that decides what the key elements of the conduct are and in so doing must use the psychiatric and psychological evidence cautiously.

[43] Though I would voice the caveat that the whole reason actuarial instruments have been researched and developed so extensively stemmed from efforts – many of them by Canadian researchers - to augment cumulative clinical evidence and judgment more scientifically, I nevertheless accept that the court must be the final decision-maker in these dangerous offender designation cases. Having said this, I note that in all of the cases I have just referred to there were both conflicting (or significantly divergent) psychiatric opinions and fact patterns very different from the case at bar. In the case I am dealing with, the only differences of opinion are those between a very experienced and highly skilled mental health professional and a Crown who is attempting – quite properly – to marshal such arguments as he can in favour of his position.

[44] Defence counsel responds to all of this by arguing that the Parliament's use of the term "likelihood…approaches [a standard] close to an absolute certainty…one of a very high degree of probability, as anything else would amount to simply a chance with no constitutionally satisfaction cushion associated with the probability" (Defence factum para. 11). By analogy to Supreme Court of Canada decisions such as R. v. Swain (1991), 63 C.C.C.(3d) 481, R. v. Winko (1999), 135 C.C.C. (3d) 129 and R. v. Tulikorpi [2003] S.C.R. No. 67, he argues that, although in these cases the standard of proof is civil, these decisions provide a functional analytical comparison. As he pithily put it in his oral submission, the 2008 amendments "put us back to R. v. Neve, not to R. v. Carleton".

[45] I have carefully reviewed all of these and some other judgments not referred to by counsel. It seems to me that if a court is being asked to take the rare step of imposing a dangerous offender designation (determinate or indeterminate), one should have a clear and explicit evidentiary and logical basis for so doing. In my judgment that level of proof simply is not clearly present in this case, despite Crown counsel's well-presented arguments in favour of that position. In reviewing publicly available statistics one learns that, since the inception of the dangerous offender regime in 1977, on average 18 Canadian offenders per year have been designated as dangerous offenders. Within this context, I am of the view that J.D.S. does not clearly qualify as one of that very restricted number.

[46] To put this at a more conceptual and abstract level, the legal philosopher Robert Dworkin aptly suggests a test of what he calls "vivid dangerousness" before (the U.S. equivalent of) a dangerous offender designation may be applied. In the case at bar, some evidence of long-term dangerousness clearly exists, but in my judgment it is insufficiently "vivid" to justify the imposition of the designation. Once a denunciatory custodial term has been served, J.D.S.' potential deviant acting out with young children may be better addressed by explicit, stringent and carefully monitored release conditions, rather than by imposing a dangerous offender designation. Both practically and philosophically the principle of restraint surely implies nothing less.

[47] I should add that in relation to s.753(1)(a)(ii) of the Code, where the statute omits the need for any establishment of "likelihood" as a condition precedent to a finding of dangerous offender status, Crown counsel points particularly to the offender's ongoing threats (explicit and implicit) to D.S. in support of his argument that the offender demonstrates "a pattern of persistent aggressive behaviour by the offender…showing a substantial degree of indifference on the part of the offender respecting the reasonably foreseeable consequences to other persons of his behaviour".

[48] I agree that there is much in the offender's behaviour that is demonstrative of narcissism, callousness and indifference to his daughter's suffering. Unfortunately, this can likely be said for any offender who engages in continual sexual misbehaviour with a child who has reached an age where they understand that such behaviour is clearly wrong. But that does not mean that any offender who commits incest on an ongoing basis should be found to be a dangerous offender; otherwise the offenders in the sentencing precedents I shall refer to in the next section of this judgment would likely all have been so designated. I thus decline to make such an order under s. 753(1)(a)(ii) in this case.

[49] In result, therefore, the Crown application to have J.D.S. declared to be a dangerous offender is dismissed. However, given defence counsel's concession that the offender should be made subject to a Long-Term Offender Designation, that portion of the Crown application is allowed.

The Sentences to Be Imposed for the Sexual Offences

For the Sexual Offence Against C.C. (Count 11)

[51] Because this offence was the earliest in time I propose to impose the sentence for this offence first, and then to impose consecutive sentences for some of the offences against D.S.

[52] Crown counsel argues that, subject to making an appropriate credit for time spent in pre-sentence custody, I should impose a sentence of 18 months to 2 years for this offence. Defence counsel did not make a specific proposal as to what sentence I should impose for this offence. He argued that I should subsume it into a total sentence of "three years in addition to time served".

[53] While I have by no means forgotten that this was a second sexual offence against a young child, for which the offender had already been punished some years earlier (as described in paras. 18-21, supra), I respectfully disagree with the length of sentence proposed by Crown counsel for this offence. This was a one-time incident, thankfully not repeated. Though any sexual offence should be taken seriously by the courts, the facts outlined in paras. 8-10, supra simply do not rise to the level of sentence proposed by Crown counsel. In my judgment a sentence of 12 months should be imposed (before making appropriate credit for pre-sentence custody and the guilty plea, as discussed in paras. 77-85 infra).

For the Offences Against D.S. (Counts 1, 2, 4 & 5)

[54] Crown counsel took the position that the incest offences (Counts 2 and 5) merit sentences of 8-10 years custody. Given that the reason for proceeding with two separate incest charges had to do with the enactment and proclamation in force of the "dangerous offender (determinate)" regime (discussed in para. 5 supra), he properly conceded that the sentences for these two counts should be concurrent to one another, albeit consecutive to the sentence imposed for the offence against C.C. Crown counsel further submitted that the other sexual offences (Counts 1 and 4) merit concurrent sentences of 8 years custody.

[55] I reiterate that defence counsel did not make a specific proposal as to what sentences I should impose for these offences. He argued that I should subsume them into a total sentence of "three years in addition to time served".

[56] Counsel cited a considerable body of case law in support of their respective positions. In reviewing these various trial and appellate authorities I consider it most appropriate to start with a quotation from the important case of R. v. D.D. [2002] O.J. No. 1061, where Moldaver J.A. wrote for the court:

44 To summarize, I am of the view that as a general rule, when adult offenders, in a position of trust, sexually abuse innocent young children on a regular and persistent basis over substantial periods of time, they can expect to receive mid to upper digit single penitentiary terms. When the abuse involves full intercourse, anal or vaginal, and it is accompanied by other acts of physical violence, threats of physical violence, or other forms of extortion, upper single digit to low double digit penitentiary terms will generally be appropriate….

[57] In my view the emphasized portions in the previous paragraph largely frame the parameters of the sentences to be imposed for these offences. Starting from age 12 until she finally complained to the police at age 18, D.S. was regularly subjected to numerous forms of sexual abuse. The offender penetrated her on the very first occasion, having deviously manipulated her young mind through a form of extortion. While I do not know how many times he had intercourse with her over the years, it is clear that she succumbed on the basis that he expressly or impliedly threatened her with physical harm.

[58] Two other elements of D.D. are instructive. Though that offender had a criminal record, the court considered it to be "relatively minor" – theft of a vehicle, possession of marijuana and breach of recognizance in respect of the sexual assault charges he was then facing (para. 16). I first note that none of these findings of guilt was for a sexual offence. Secondly, unlike the offender in the cases at bar, D.D. had not been imprisoned for any length of time. In my judgment, both the fact that J.D.S. had been convicted of a sexual offence against a young child and the fact that he had been sentenced to 8 months in custody, clearly indicates that his moral blameworthiness was extremely elevated. And to this I add that he knew at the time he started to offend against D.S. that he had already offended against C.C., which makes his continued offending even more serious. To quote another portion of D.D.:

Throughout their formative years, [children] are manifestly incapable of defending themselves against predators like [D.D.] and, as such, they make easy prey. People like [D.D.] know this only too well and they exploit it to achieve their selfish ends, heedless of the dire consequences that can and often do follow.

[59] Against this heightened level of moral blameworthiness, I must of course balance the fact that, unlike D.D., the offender in the case at bar did enter a plea of guilty fairly early in the proceedings, which had the practical effect of not requiring D.S. to testify. As I will discuss later in these reasons, in my view a somewhat lower sentence should be imposed to recognize the significance of the guilty plea.

[60] I have found some of the post-D.D. jurisprudence from the Court of Appeal to be of particular assistance in balancing these various factors. I shall briefly describe these chronologically.

[61] In R. v. M. (C.) [2008] O.J. No. 2119 a jury found that the offender had raped his daughter over a three-year period "more or less daily", beginning when she was 13 years old. This was frequently accompanied by considerable physical violence. As a result of his assaults she contacted a sexually transmitted disease and then became pregnant (terminated by way of an abortion which he arranged). The offender had a criminal record, albeit not for sexual offences. The trial judge imposed a 10-year sentence. Holding that the victim had suffered "significant physical and psychological harm", the Court of Appeal upheld the sentence, commenting that while the sentence was lengthy, it was not outside the acceptable range.

[62] In R. v. S.M.H. [2011] O.J. No. 1187 the Court of Appeal considered the case of a father who committed numerous acts of sexual misbehaviour against one of his daughters when she was between 11-13 years of age. The offender appealed against a sentence of 51 months imposed at trial. Citing D.D. the Court of Appeal refused to interfere with the sentence imposed. I note, however, that the Court of Appeal went out of its way to note that the trial judge "was completely aware of the appellant's age and his serious medical condition…and that he was essentially a first offender" (para. 16), all factors that are absent in the case at bar.

[63] In R. v. P.M., 2012 ONCA 162, [2012] O.J. No. 1148, Rosenberg J.A. indicated for the Court that in circumstances:

Where a father has committed repeated acts of incest with his daughter over many months it will be highly unusual for a court to impose a sentence of less than five to six years.

[64] In another 2012 decision, R. v. D.M. 2012 ONCA 520, [2012] O.J. 3616, the Court of Appeal considered a Crown appeal against a sentence of 3 years imposed following a jury trial on an uncle who "engaged in a near-daily chain of progressively more invasive sexual touching, escalating to sexual intercourse two to three times per week [likely 124 times]". The Court of Appeal held that the sentencing judge had failed to appreciate the significance of the D.D. decision. She further erred by not referring to the statutory aggravating factors enunciated by Parliament in ss.718.01 and .2(ii.i) and (iii) of the Code. After reviewing pre- and post-D.D. jurisprudence, Feldman J.A. was clear that:

44 To conclude on the issue of the proper range of sentence, although sentencing is always and individualized process of decision-making, where there is prolonged sexual abuse and assault of a child, including penetration, by an adult in a position of trust, the minimum sentence will be five or six years in the penitentiary.

[65] Even though the 57 year-old offender had no previous record and had filed an impressive array of 27 letters of reference at sentencing, the Court found that his behaviour was so egregious that the 7 year sentence proposed by the Crown was appropriate i.e. an advance on what the Court considered should normally be the sentence for such offences.

[66] These appellate decisions were considered by Tetley J. in R. v. J.L.D. [2013] O.J. No. 1521, a trial decision I have found to be quite useful in formulating the quantum of sentence to be imposed in the case at bar. In that case the offender had sexually abused his daughter over a 15-year period, commencing when she was 4, escalating to rubbing his penis against his daughter's exposed vagina two or three times a week as she approached puberty, and eventually to "regular" acts of forced sexual intercourse starting when she was 17. As a result of these latter assaults, the victim became pregnant, in response to which the offender "engaged in an act or acts designed to occasion a miscarriage of the fetus and maintained secrecy of his parentage for years after the birth" (para. 14).

[67] Though the facts of J.L.D. were somewhat more aggravated than those I am considering – given the age of the child at the onset of sexual offending, the frequency and duration of offending, and, above all, the impregnation of the complainant – in my view there are considerable similarities between that case and the fact pattern in the case at bar. These are:

• The abuse of an individual under the age of 18, which is a statutorily recognized aggravating factor as codified in Section 718.2 of the Code.

• The breach of trust arising from the fact the offender is the complainant's father.

• The nature and duration of the sexual abuse in issue – though the sexual abuse of D.S. did not begin until she was 12, sexual intercourse began on the first occasion and continued for some 6 years, longer than the period of forced intercourse in J.L.D.

• The resort by the offender to various forms of threats of force and psychological compulsion designed to secure the complainant's cooperation in meeting the offender's sexual demands, and the maintenance of her continuing silence regarding her father's abusive sexual activity.

• The gross violation of the complainant's childhood years, the wilful deprivation of her sexual innocence and the callous and careless violation of the complainant's sexual integrity and the disregard for and theft of her virginity.

[68] I also note that J.L.D. was a first offender, both at the time of offending and 40 years later when he was charged with these "historic" offences. Additionally, Tetley J. somewhat reduced the 11 year sentence he would otherwise have imposed, in part because of the offender's age at the time of sentencing (81). As previously noted, the offender in the case I am considering has a previous record for sexual offending against a young child, and he is of an age (50) which does not usually merit any reduction of sentence.

[69] In its 2014 decision in R. v. P. (G.) 2014 ONCA 39, [2014] O.J. No. 253 the Court of Appeal considered historic offences that occurred during the 1990s against his biological son and daughter. Starting from the time she was 5-6 years old until she was 12, the offender abused her in escalating ways, progressing to fellatio and intercourse approximately 3 times each week. The offences against his son occurred up until the boy was approximately 12 years old, similarly escalating in severity until they became a daily routine of touching, oral and anal sex. Sentences totalling 8 years were upheld. Of particular interest for the case at bar is the Court's treatment of a previous related record for sexual interference against a young neighbourhood boy, for which the offender was sentenced to 9 months. When he was released from custody he again started offending against his daughter and son. Writing for the Court Rouleau J.A. stated:

46 The appellant acknowledges that the sentence was within the range of sentences appropriate for offences such as these. The appellant was in a position of trust. The abuse was frequent and ongoing. Although there was no collateral physical violence, the appellant's manipulation and ongoing abuse of the complainants left both complainants psychologically scarred. The appellant had previously served a custodial sentence on an earlier sexual assault and remained undeterred. As a result, I consider the trial judge's determination that a global eight year sentence appropriate and that it reflects no error.

[70] Before moving to consideration of (1) the offender's guilty plea, and (2) credit for time spent in pre-sentence custody, I should now indicate my view of the "global" sentence that, absent these two mitigating factors, should be imposed for the incest offences. Balancing the facts of this case against recent appellate guidance and the helpful trial decision in J.L.D., I have come to the conclusion that a "global" sentence of 9 years for incest (to be served consecutively to the sentence to be imposed for the offence against C.C.) would be adequate to reflect the offender's very elevated moral blameworthiness in the case at bar, particularly having regard to his failure to learn from his previous carceral sentence for a sexual assault on a young child. And I agree with Crown counsel that concurrent "global" sentences of 8 years would be appropriate for the other sexual offences of sexual assault and sexual interference.

The Sentence to Be Imposed for the Charges of Disobeying Court Orders

[71] Crown counsel proposed that sentences of 6 months concurrent on each charge be imposed for these offences, but that these sentences be served consecutively to all other sentences. Defence counsel did not articulate a specific proposal with respect to these particular offences.

[72] While I agree with Crown counsel that these two offences merit a total sentence of 6 months consecutive, I would hold that in order to more accurately denounce the offender's flagrant flouting of a recently imposed court order, sentences of three months consecutive for each offence should be imposed, to be served consecutively to the other sentences being imposed for the substantive offences.

[73] In light of these repetitive breaches, I additionally deem it necessary to impose an order under s.743.21 of the Code prohibiting the offender from communicating directly or indirectly with D.S. during the custodial portion of the sentence, unless D.S. indicates that she wishes to have contact with the offender while he is serving sentence – in which case I am to be consulted prior to any such contact.

The Length of the Long-Term Supervision Order (LTSO)

[74] Counsel are agreed that there is little trial or appellate jurisprudence carefully analysing what length of LTSO should be imposed. I suspect this is because courts are usually more focused on whether a dangerous offender designation should be made, and, under the "dangerous offender (determinate)" regime, on what length of determinate sentence should be imposed.

[75] In the case at bar, Crown counsel argues that an order imposing the maximum duration of 10 years should be made given the offender's "ongoing risk to the community, specifically vulnerable female children". Without precisely articulating how he came to the LTSO length which he did, defence counsel (who is very experienced in this area of sentencing law) suggests that an LTSO order for 5 years would be sufficient.

[76] As previously discussed, the offender is now 50 years of age, and Dr. Klassen considers that he both can and should be carefully monitored until he is in his 60s (Testimony pp.73; 105). Given the conclusion I have come to as to the appropriate custodial term which will precede the LTSO, it is my view that an LTSO order for 7 years will be appropriate.

Credits to Be Applied Against the "Global" Sentence

Crown Position on "Capping" the Global Sentence to be Imposed

[77] In both his written factum and oral submissions Crown counsel took the position that even if I were to impose sentences at the upper end of what he proposed – 10-12 years - nevertheless: "[t]aking into account the principle of totality applicable to the upper end of the range sought, it is the position of the Crown that an appropriate sentence would be one of 10 years less credit for pre-sentence detention".

[78] Given this offender's moral blameworthiness and his repetitive sexual offending against young children, it will be seen that I have come to the prima facie conclusion that custodial sentences "globally" totalling 10.5 years (before the commencement of the 7-year LTSO) would normally be appropriate to adequately reflect denunciation and individual deterrence. However, the law is clear that I am also to consider what is known in Canadian sentencing law as "the principle of totality" – that whatever sentences might otherwise be rationally imposed, the sentencing judge is required to "take a second look" to ensure that the total/global sentence not be so high as to be entirely crushing for the offender.

[79] While some might be critical, I commend Crown counsel for proposing a 10-year global "cap" for these seven offences. It is my view that he has behaved with appropriate restraint consistent with his role as "minister of justice". I also agree that he has "pegged" the total/global sentence at an appropriate level; accordingly, I shall limit the upper "cap" of the custodial sentences to 10 years, less allowances for (1) the offender's plea of guilty and (2) his time spent in pre-trial custody.

Credit for the Pleas of Guilty

[80] Crown counsel stated during submissions that he had "factored in" the offender's guilty pleas in his assessment of the 10-year global penalty to be imposed. However, neither counsel expressly addressed what amount of credit should be applied to acknowledge the offender's pleas of guilty. The various Canadian sentencing texts virtually all note that the rationales for (usually) reducing sentences in guilty plea cases are often inconsistent and/or contradictory. For example, Professor Manson writes: "The extent of the mitigating value is affected by the timing of the guilty plea: the earlier, the better." But, somewhat confusingly, he then goes on to suggest that "[c]onvenience to the court by saving its time is not a reason for mitigation...a guilty plea must reflect more than time-saving to support mitigation." (The Law of Sentencing, p. 133). In referring to "disparate principles" in this area, Justice Renaud writes: "The question of the mitigating weight to be assigned to an offender who pleads guilty, or who does not, is quite controversial." (Speaking to Sentence: A Practical Guide, p. 152). In an earlier edition of his text Mr. Ruby writes: "The courts have not been precisely clear about why they are offering a discount for pleas of guilty; the failure to have a consistent rationale has resulted in decisions that to some extent are inconsistent and difficult to understand." (Sentencing, 5th ed., p. 224; these words have been omitted from the current (8th) edition).

[81] Perhaps this lack of judicial consensus as to the rationale(s) for reducing a sentence following a plea of guilty explains why there does not seem to be much consistency in Canadian judicial views as to what amount of credit should be allowed following a guilty plea entered at a relatively early stage in the proceedings. This is different from some other common law jurisdictions. For example, since 2003 the English Criminal Justice Act has provided statutory guidance to sentencing judges:

1. In determining what sentence to pass on an offender who has pleaded guilty to an offence…a court must take into account:

(a) the stage in the proceedings for the offence at which the offender indicated his intention to plead guilty, and

(b) the circumstances in which this indication was given.

[82] To complement the statutory enactment, the [then] English Sentencing Guidelines Council developed a formula for applying the reduction principle, the portions most relevant to the case at bar being:

4.1 The level of reduction should be a proportion of the total sentence imposed, with the proportion calculated by reference to the circumstances in which the guilty plea was indicated, in particular the stage in the proceedings. The greatest reduction will be given where the plea was indicated at the "first reasonable opportunity".

4.2 …the level of the reduction will be gauged on a sliding scale ranging from a recommended one third (where the guilty plea was entered at the first reasonable opportunity in relation to the offence for which sentence is being imposed), reducing to a recommended one quarter (where a trial date has been set) and to a recommended one tenth (for a guilty plea entered at the 'door of the court' or after the trial has begun.

[83] While Canadian courts have been most reluctant to employ any mathematical formula to the question of the quantum of a reduction in sentence for a guilty plea, there does seem to be a consensus in Canadian case law that a plea of guilty relatively early in the process (usually after disclosure has been received) will attract the greatest reduction. In the case at bar, even though the guilty plea was not formally entered until some 13 months after he was arrested, and thus cannot be characterized as a guilty plea at "first reasonable opportunity", I am of the view that some numerical reduction should be made to credit this offender properly for his pleas of guilty. In addition to the utilitarian considerations of saving court time and expense, the victims were spared the anxiety of having to be concerned about whether they would be required to testify in a public forum.

[84] I have given some consideration as to whether I should follow English and New Zealand practice and reduce the sentence I have found to be "globally appropriate" by some 20-25% in light of the offender's guilty plea prior to preliminary inquiry or trial. Though I have been unable to find any Canadian case law on point, my sense is that a credit at that level would be too high, especially in a case as serious as this.

[85] On this point I have again found the decision in R. v. J.L.D. to be of some assistance. I note from paras. 101-103 that, while Tetley J. did not itemize the credit for the guilty plea, he "mitigated" the 11-year sentence he would otherwise have imposed by some 22 months "by crediting [the offender] for [his] guilty plea, [his] first offender status and [his] age". Because, as previously discussed, the latter two factors are not present in the case at bar, in my view a reduction of 12 months would represent a generous allowance in the case at bar. (Having said this, in the absence of appellate guidance on point, I fully acknowledge that there is an element of arbitrariness in the attribution of a number to represent appropriate credit for the guilty pleas).

Credit for Time Spent in Pre-Sentence Custody

[86] The offender has been in detention since his arrest on the main charges since June 17, 2012, a period of 1042 actual days to today's date. Since none of the factors enunciated in s.719 (3.1) of the Code apply to this offender, Crown counsel properly suggests that I should grant the offender credit at a rate of 1.5:1 for time spent in pre-trial custody. Calculated mathematically, this amounts to 1563 days.

[87] I would have proposed to deduct this further number of "days" from the global sentence I would otherwise have imposed, and then gone on to impose the actual sentences in "days". That is transparent, simple and logical. However, when I told the local authorities at this courthouse what I intended to do, they remonstrated with me that the computer-generated forms on which the various sentences are recorded before a formal committal warrant can be printed will not accept 4-digit numbers. They requested that instead of using "days", I should record all the various deductions and sentences in "months" – "otherwise the Ministry of the Attorney General ICON computer will not accept it".

[88] Using the example of the credit for pre-trial custody by itself for a moment, this is absurd. Converted to 30-day "months", 1563 days comes out to 52.1 months. If I reduce the credit so as to "round it down" to 52 months, the offender will have a reasonable complaint that I have not fully credited him at 1.5:1. If I "round it up" to 53 months, I will have offended at least the thrust of the recently enacted amendments to s.719, to the effect that any credit for pre-trial custody should not exceed 1.5:1.

[89] In true Luddite fashion I have decided that the fairest thing to do is to record the various deductions and actual sentences ultimately imposed in days. (It also makes perfect sense, because the penal administrators who will calculate the offender's parole eligibility, statutory release and warrant expiry dates when he reaches the federal penitentiary system will use actual days, because it is the most accurate method). Ministry officials will simply have to find some way of adjusting ICON to reflect the pronouncement of sentences in days.

Conclusion Regarding Total Sentence to Be Imposed

[90] After making these various deductions for the guilty plea and the pre-trial custody, the offender will be sentenced to a further 1725 days in custody (4 years and 9½ months). I arrive at this figure in the following way:

Global sentence of 10 years (365x10) = 3653 days

Less allowance of 12 months overall credit for guilty plea = 365 days

Less allowance for pre-trial custody credit 1042 days @ 1.5:1 = 1563 days

Balance of custodial sentence = 1725 days

I now turn to the issue of attributing actual sentences to the seven counts for which he is to be sentenced.

Custodial Sentences

[91] On count 11 (sexual interference with C.C.), the offender is sentenced to 365 days in custody.

[92] On count 1 (sexual assault on D.S. on June 17, 2012), the offender is sentenced to 1180 days consecutive to the sentence imposed on count 11, followed by a Long Term Offender designation for a period of 7 years.

[93] On counts 2 (incest with D.S. on June 17, 2012), 4 (sexual interference with D.S. – December 2006), and 5 (incest with D.S. - December, 2006), the offender is sentenced to 1180 days, followed by a Long Term Offender designation for a period of 7 years. These sentences are to be served concurrently with the sentence imposed on count 1.

[94] On the two counts of disobeying court orders, the offender is sentenced to 90 days custody on each count (180 days total). These sentences are to be served consecutively to one another and consecutively to all other sentences imposed.

[95] For greater clarity, it is my intention that the offender be sentenced to a total custodial term of 1725 days, followed by a Long Term Offender designation for 7 years.

Ancillary Orders

[96] Though victim surcharges could be imposed for all of the offences for which the offender is being sentenced, because these offences pre-date October 24, 2013 I retain discretion not to make such orders. Given this offender's penurious background, combined the length of time for which he is now to be incarcerated, it would be risible – as well as offensive in a decent and compassionate society – to assume that he will have the resources to satisfy such orders ($1400.00) after his release from custody several years from now.

[97] There will be an order of prohibition pursuant to s.161 (a) and (b) of the Code for a period of 10 years.

[98] There will be an order for the production of a DNA sample pursuant to s. 487.04 of the Code on counts 1, 2, 4, 5 and 11 (primary designated offences).

[99] The offender will be designated as a person convicted of a SOIRA-designated offence pursuant to s. 490.012 of the Code for life.

[100] There will be a weapons prohibition order pursuant to s.109 of the Code for a period of 10 years.

[101] There will be an order under s.743.21 of the Code prohibiting the offender from communicating directly or indirectly with D.S. during the custodial portion of the sentence. (If D.S. indicates to correctional authorities that she wishes to have contact with the offender while he is serving his custodial sentence, I may be spoken to with a view to modifying this order).

Released: April 24, 2015

Signed: Justice D.P. Cole