Court File and Parties

COURT FILE NO.: CR-19-40000393-0000 DATE: 20210224

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: Her Majesty The Queen Applicant – And – Danny Francisco Correa Respondent

Counsel: Henry Poon, Barry Stagg, for the Crown Jeffrey Fisher, for the Respondent

HEARD: September 30, 2020 and January 22, 2021

Carole J Brown J.

Sentencing: Reasons for Decision

[1] The Crown brought an application seeking i) a declaration that the respondent, Danny Francisco Correa, is a dangerous offender pursuant to s.753(1)(b) of the Criminal Code; ii) a determinate sentence for the predicate offence of attempted sexual assault of a further two years in the penitentiary; and iii) an order that the respondent be subject to long-term supervision for 10 years, under s.753(4)(b) of the Criminal Code. The Crown further seeks ancillary orders under the Criminal Code, including a DNA order and a s.109 firearm prohibition for life.

[2] The Crown submits that there are three essential controlling concerns in the sentencing evidence before this Court, which must be kept in mind in analysing the issues raised in this application, as follows:

1. Without successful intervention, the respondent presents a substantial risk of reoffending;
2. That risk unduly compromises the safety and well-being of young women in the community; and
3. The respondent has no insight into his mental and psychological disorders.

[3] As background, Mr. Correa came from Ecuador to Canada when he was in grade 7. He is a landed immigrant. He lived with his aunt in Toronto, who reported that he had behavioural problems, became angry when she set boundaries for his behaviour, and that she had great difficulty controlling him. (See psychological assessment of Dr. Zohar Waisman).

The Predicate Offence

[4] Mr. Correa, aged 35, pled guilty to voyeurism and was found guilty by a jury of attempted sexual assault and possession of a weapon, namely a pellet gun, for a dangerous purpose. He had climbed a ladder in the backyard of a residence, the occupants of which were unknown to him, and was peering through the bedroom window of the teenage daughters. He was wearing a backpack, in which were found, inter alia, condoms, Vaseline, a 12 foot cord and a pellet gun.

Previous Sexual Assault Offences

[5] Prior to these findings of guilt, he had been found guilty two previous times, within eight years, of offences related to sexual matters. In 2010, he was charged with sexual assault involving two young women, aged 17 and 21, who were unknown to him, both of which occurrences took place in a park, where the women were jogging and walking a dog. He made sexually inappropriate comments. He grabbed one of the women, turned her around and tried to kiss her, and touched her buttocks. He was charged and, in 2011, was found guilty of sexual assault, received a suspended sentence and a three-year probation order.

[6] In 2012, when he was 27 years old, he followed a 13-year-old girl, unknown to him, into the lobby of her apartment building. He loitered there for a while and watched as the girl had a pre-arranged meeting with her aunt. After the meeting, the girl entered the elevator and he followed her into the elevator of her apartment building. After the elevator door closed and the elevator started, he grabbed her and groped her sexually, touching her vaginal area over her clothing. He was arrested, charged and subsequently granted bail, while awaiting trial. He failed to comply with the conditions of his recognizance, which included house arrest. He absconded, was subsequently located in 2013 in Vancouver, British Columbia, and was returned to Toronto. He was convicted in 2014 of sexual assault and sentenced to 12 months imprisonment.

[7] With respect to all of these sexual offences, he has undergone psychiatric assessments. The findings of these various assessments are fairly consistent and include the following:

1. A history of diagnosis of schizophrenia;
2. A finding of pedohebephilia (sexual preference for children or pubescents), as revealed by phallometric testing;
3. A coercive sexual preference cannot be ruled out;
4. The respondent has minimal to no insight into his mental and sexological disorders (even after a significant period of incarceration for his sexual misconduct);
5. The respondent disputes these findings;
6. The respondent has been less than cooperative or reliable in his participation in these assessments;
7. There has been a history of non-compliance with court orders and other forms of boundary setting;
8. The respondent has minimal family support;
9. There is no stability in any aspect of his life;
10. No pro-social behaviour can be identified in the respondent’s background;
11. There is a history of absconding from institutional settings.

The Evidence

[8] The Crown called witnesses, including psychologist Dr. Zohar Waisman, and Erin Brennan, Federal Parole Officer who testified as regards the operation of Correctional Services of Canada, with a focus on community supervision. Upon agreement of the parties, exhibits were filed and formed a part of the evidentiary record, as follows: Community Supervision Information Package, September 2019; Correctional Service Canada, Reintegration Programs; Overview of Institutional Services and Community Services for Dangerous Offender/Long-Term Offender Hearings.

[9] The respondent did not call evidence.

[10] I ordered an assessment pursuant to s.752.1 of the Criminal Code following conviction for the predicate offence. The assessment was conducted by Dr. Zohar Waisman, psychiatrist at the University of Toronto.

[11] Dr. Waisman, in his assessment, found the same concerns as those of the other psychiatrists, enumerated above, at para. 7. Mr. Correa continues to deny any psychological disorder. He remains non-compliant with respect to any treatment or medication administered. He has no identifiable support in the community and has shown a pattern of instability in personal relationships and an ambivalence toward forming relationships with others.

[12] In his report, Dr. Waisman stated that ‘[f]rom a psychiatric perspective, Mr. Correa has evidenced a failure to restrain his behaviour, and his sexual impulses, in terms of engagement in criminal behaviour that has caused harm to another as a consequence. (Waisman Report, p.29).

[13] As regards his diagnosis and prognosis regarding Mr. Correa, Dr. Waisman writes in his report:

He is impulsive, and his past criminal behaviour evidenced little, if any, consideration of the impact of his actions on victims.

He has poor insight into his paraphilic and sexual behaviour and schizophrenia.

According to the research, there does appear to be a general decrease in violent offending amongst all individuals after the age of 40 to 45, which is non-specific in nature, but may be related to biological variables, such as decreased testosterone, decrease in physical prowess and development of various medical conditions.

After a period of incarceration, he could be subject to a lengthy period of supervision in the community. Clinical factors that would not be expected to change over time with advancing age, to the same degree as some other variables, are his interpersonal effectiveness skills, anti-social traits, and negative attitudes.

[14] As regards risk of re-offence, Dr. Waisman found the following:

1. The respondent’s sexual misconduct has escalated in the severity and dangerousness of each subsequent offence, with successively increased planning;
2. The respondent has “evidenced a failure to restrain his behaviour and his sexual impulses, in terms of engagement in criminal behaviour that has caused harm to another as a consequence”;
3. The respondent “presents with a substantial risk of re-offence”.

[15] Dr. Waisman was unable to make a concrete diagnosis of antisocial personality disorder as he did not have a history of the conduct of Mr. Correa prior to age 15, which he explained is necessary for such a designation.

[16] Mr. Correa does suffer from schizophrenia, a paraphilic disorder in the form of pedophilia confirmed with phallometric testing and antisocial personality traits.

[17] Dr. Waisman testified that his assessment was based on the six hours spent with Mr. Correa, over two days, his overall observations of Mr. Correa, Mr. Correa’s responses to his questions, Mr. Correa’s behavior and aspect during their interviews and the experience he has gleaned and observations he has made over 20 years in the field, as well as the information provided as background information and the assessments of previous psychological assessors who have seen Mr. Correa. In other words, his assessment was based on a broad complex of factors.

[18] As regards the risk assessment and the reasonable possibility of eventual control of risk in the community, Dr. Waisman notes that the possibility of eventual control of risk hinges on whether the respondent is considered treatable (Waisman Report, p. 29). In this regard, Dr. Waisman, in his report, notes as follows:

A high degree of engagement in multiple treatment modalities over a substantial period of time will be necessary to address his long-standing risk issues. Given the multiple barriers identified above, his history of waning motivation, and characterological traits, including significant impulsivity and irresponsibility, it is my view that there is a guarded prognosis that this motivation will remain intact over the long term.” (p. 29).

“Realistic initiation and implementation of a comprehensive treatment and management plan, with genuine engagements sustained over the long term, would be very challenging from a psychiatric perspective given Mr. Correa’s difficulty managing stress and impulsivity and personality dysfunction.” (p. 31).

[19] From a psychiatric perspective, he has shown a failure to control his sexual impulses. There has been an escalation in sexual behavior with each offence, he has not had a full complement of treatment for his sexual condition and until he receives a full complement of treatment, he will remain unable to control himself as regards his sexual impulses. Failure to intervene in his risk cycles suggests past treatment programs have not been effective in addressing the variable salient reoffending (Waisman Report, pp. 29-31).

[20] It is the opinion of Dr. Waisman that Mr. Correa would need to be in a place able to provide him with all requisite treatments, both psychiatric and medical. He is further of the opinion that it would be impossible to determine with certainty that he would improve with treatment. He testified that assuming compliance, Mr. Correa would require multiple domains of treatment, both biological and psychological, including the following:

Biological: Injectable depot medications for schizophrenia due to non-compliance issues; sex drive reducing medications; endocrinology consult.

Psychological: Extensive social supports, cognitive behavioural groups, symptom management groups, groups to teach social skills, cognitive ability, IQ testing for persons in the criminal justice system who have no real viable experience in the world, learning capacity/inabilities, relapse prevention for sexual offending, assessment for vocational aptitude, employment rehabilitation, vocational rehabilitation.

[21] As regards finding these programs in either the federal or provincial criminal justice systems or in the community, he stated that he did not know of any facility in the community that would cater to all of Mr. Correa’s needs. He stated that while programs exist individually in the community, he is not aware of any facility that would have all necessary programs in the same place and under appropriate supervision. He did not think that it would be sufficient to request or order that Mr. Correa attend programs. It was his opinion that someone needed to monitor Mr. Correa’s attendance at programs and treatments, as he has a history of not attending groups/therapies and non-compliance with treatments, including medications.

[22] He was aware that provincial programs exist at St. Lawrence Valley Correctional and Treatment Centre. He stated that completion of programming would likely take at least two years. This would also be dependent on Mr. Correa’s motivation to participate and get involved in assessments and medications. He believed that the length of all programs and relapse prevention would take at least one to two years to find stability on the medications. He indicated that a two-year program would be most effective in covering all assessments, programs and other topics required, as well as ensuring compliance with taking medications.

[23] Evidence was also adduced regarding the treatment programs available within the federal and provincial systems, and in the community, as set forth at para. 8, above.

[24] The evidence adduced indicates that in the penitentiary setting there will be an initial comprehensive assessment to determine the optimal compulsory correctional plan for Mr. Correa: Testimony of Erin Brennan; Community Supervision Information Package, September 2019. The penitentiaries further offer multi-targeted and sex offender programs for offenders who have unique needs that may impact functioning (including cognitive impairments, mental health issues and/or learning disabilities) and ability to participate successfully in correctional programming: Correctional Service Canada, Reintegration Programs, p. 6. They further offer a lengthy, high intensity sex offender program, delivered by trained facilitators, which would address all of the risk factors present in Mr. Correa: Correctional Service Canada, Reintegration Programs, pp.13-14.

[25] While some provincial jails offer some programs for mental illness and sexual offending, the materials adduced in evidence indicate that the programs, where they do exist, are conditional offerings, available to willing participants, or to those motivated for treatment who are willing to participate in group therapy, rather than being mandatory or compulsory. Further, the programs offered are for significantly shorter periods of time than in the penitentiary setting. See: Overview of Institutional Services and Community Services for Dangerous Offender/Long-Term Offender Hearings, pp.2-4.

[26] Therefore, the programs offered in the provincial jail settings are not suited to offenders who require longer-term intensive intervention or those who lack insight into any issues that they may have and lack any motivation or willingness to work on such issues.

Positions of the Parties

Position of the Crown

[27] It is the position of the Crown that the psychological assessments and the entire record of Mr. Correa present compelling evidence of a demonstrated “failure to control his sexual impulses” as required pursuant to s.753(1)(b) of the Criminal Code.

[28] The Crown further posits that the respondent has minimal to no insight into his psychological disorders, despite repeated convictions and incarceration, and that this failure to recognize or understand the disorders guarantees “future failures to control his sexual impulses”.

[29] The Crown maintains that each subsequent conviction involved an escalation in the gravity of the sexual assault, or intended sexual assault, which leads to a compelling conclusion of a high likelihood of causing pain, injury, or other evil to other young women. As a result, the respondent poses a significant risk to the safety and well-being of young women and girls in the community.

[30] It is the position of the Crown that all of the above indicates that the respondent is a dangerous offender as defined in s. 753(1)(b) of the Criminal Code.

[31] The Crown seeks a penitentiary term during which the necessary assessments and programs to attempt to rehabilitate him can occur, followed by a long-term supervisory order of 10 years.

Position of the Respondent

[32] It is the position of the respondent that the facts in this case are ambiguous and the necessary factual underpinnings and his intention to break and enter into the residence to facilitate a sexual assault are ambiguous and not supported beyond a reasonable doubt by the evidence. In this regard, he relies on the cases of R. v. Brown, [1991] 2 S.C.R. 518 and R. v. Ferguson, 2008 SCC 6, paras 16-19.

[33] The respondent takes the position that he is not seeking a long-term offender designation and does not pose a substantial risk of reoffence. He therefore does not fulfil the criteria for a dangerous offender or long-term offender designation.

[34] The respondent maintains that any treatment programs that may be of benefit to Mr. Correa may be found in the provincial system and that, given that he has now been incarcerated for 2.5 years, he should only remain in the provincial system for one more day and then be released on probation for a maximum of three years.

[35] He relies on the following with respect to this position:

1. Based on the Static-99 R actuarial tool, it is unlikely that Mr. Correa will sexually reoffend within five years. Mr. Correa is not in the high risk category. I note that Dr. Waisman is not in agreement with this and states that on the Static 99R, Mr. Correa’s overall score falls in the moderate to high risk category (Waisman Report, p.31).
2. Mr. Correa is not psychopathic. If he were, that would significantly increase his risk and significantly decrease any ability to be properly treated;
3. Mr. Correa has not been diagnosed with antisocial personality disorder. If he were, that would increase his risk and decrease any ability to be properly treated;
4. Mr. Correa has not caused pain, injury, or other evil since 2012. The predicate offences consist, at most, of awaiting an opportunity which was unlikely to occur, and which he did nothing to facilitate;
5. There was a six-year gap between the previous offence in 2012 and the predicate offence in 2018.

[36] In the alternative, in the event that a long-term supervision order is required by the court, it is the position of the respondent that there is no presumption that the long-term supervision order must last for 10 years.

The Law

Dangerous Offender Designation

[37] Pursuant to s. 753(1)(b) of the Criminal Code, under which the applicant proceeds, the dangerous offender designation is defined as follows:

On application made under this Part after an assessment report is filed under subsection 752.1(2), the court shall find the offender to be a dangerous offender if it is satisfied

(b) that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (b) of the definition of that expression in section 752 and the offender, by his or her conduct in any sexual matter including that involved in the commission of the offence for which he or she has been convicted, has shown a failure to control his or her sexual impulses and the likelihood of causing injury, pain or other evil to other persons through failure in the future of controlling his or her sexual impulses.

[38] As regards sentencing, ss. 753(4) and (4.1) provide as follows:

(4) If the court finds an offender to be a dangerous offender, it shall

(a) impose a sentence of detention in a penitentiary for an indeterminate period;

(b) impose a sentence for the offence for which the offender has been convicted – which must be a minimum punishment of imprisonment for a term of two years – and order that the offender be subject to long-term supervision for a period that does not exceed 10 years; or

(c) impose a sentence for the offence for which the offender has been convicted.

(4.1) The court shall impose a sentence of detention in a penitentiary for an indeterminate period, unless it is satisfied by the evidence adduced during the hearing of the application that there is a reasonable expectation that a lesser measure under paragraph (4)(b) or (c) will adequately protect the public against the commission by the offender of murder or a serious personal injury offence.

Long-Term Offender Designation

[39] Pursuant to the Criminal Code s.753.1, an offender may be found to be a long-term offender rather than a dangerous offender if the court is satisfied that:

(a) it would be appropriate to impose a sentence of imprisonment of two years or more for the offence for which the offender has been convicted;

(b) there is a substantial risk that the offender will reoffend; and

(c) there is a reasonable possibility of eventual control of the risk in the community.

[40] Section 753(1) contemplates two categories of dangerousness: (a) dangerousness resulting from violent behavior and (b) dangerousness ensuing from sexual behavior, as is the case here.

The Jurisprudence

[41] The Crown must demonstrate two elements in order to obtain a designation of dangerous offender. First, the offence for which the offender has been convicted must be “a serious personal injury offence” as defined in the Code. Second, the offender must, by his conduct in any sexual matter, including that involved in the commission of the offence for which he has been convicted, have shown 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 control his sexual impulses. The sentencing judge must conduct a prospective assessment of dangerousness through an assessment that the offender poses a high likelihood of harmful recidivism and that his conduct is intractable, i.e. behavior that the offender is unable to surmount: R. v. Boutilier, 2017 SCC 64.

[42] As the Supreme Court of Canada observed in R. v. Boutilier, supra., the purposes of prospective evidence at the designation and sentencing stages are different. The designation stage is concerned with assessing the future threat posed by an offender. The penalty stage is concerned with imposing the appropriate sentence to manage the established threat. Though evidence may establish that an offender is unable to surmount his or her violent conduct, the sentencing judge must, at the penalty stage, turn his or her mind to whether the risk arising from the offender’s behaviour can be adequately managed outside an indeterminate sentence.

[43] Section 753(4.1) states that a judge shall impose an indeterminate sentence unless he or she is satisfied on the evidence that there is a reasonable expectation that a lesser measure… will adequately protect the public against the commission by the offender of murder or a serious personal injury offence. The sentencing judge should declare the offender dangerous and impose an indeterminate period of detention if, and only if, an indeterminate sentence is the less restrictive means by which to reduce the public threat posed by the offender to an acceptable level: R. v. Boutilier, supra.

[44] In this case, the Crown concedes that an indeterminate sentence is not necessary, but that a robust and stringent intervention and long-term supervision is necessary to protect the public against the risk of re-offence.

[45] The long-term offender designation differs from the dangerous offender designation in that it applies to offenders for whom there is a reasonable possibility of eventual control of the risk in the community. Based on all of the evidence, including the psychological assessment of Dr. Waisman, as well as the background psychological evidence, past attempts at treatment, and Mr. Correa’s denial of any mental issues, and taking into consideration the relevant jurisprudence, I am not satisfied that there is a reasonable possibility of eventual control of the risk to the community.

[46] The Court of Appeal for Ontario in R. v. Spilman, 2018 ONCA 551, [2018] O.J. No. 3297, at paras. 24 et. seq., citing Boutilier, described the dangerous offender proceedings as follows:

[24] Dangerous offender proceedings are sentencing proceedings. But unlike other sentencing proceedings, dangerous offender proceedings entail a two-stage process.

[25] To begin, the designation stage. This involves and requires a determination of whether the evidence adduced on the hearing satisfies the requirements of section 753(1) of the Criminal Code for the offender to be designated a dangerous offender: R. v. Boutilier 2017 SCC 64.

[26] To obtain a designation of dangerousness resulting from the offender’s violent behavior, the Crown must prove beyond a reasonable doubt that:

i. The offence of which the offender has been convicted – the predicate offence – is a “serious personal injury offence” as defined in s. 752; and

ii. The offender must represent a threat to the life, safety or physical or mental well-being of other persons on the basis of evidence establishing a violent pattern of conduct within ss. 753(1)(a) or (b).

[28] The second stage of the dangerous offender regime – the penalty stage – has to do with the sentencing of those found to be dangerous offenders. As in all sentencing proceedings, it is incumbent on the hearing judge to apply the principles and mandatory guidelines put in place by ss.718-718.2 of Part XXIII of the Criminal Code. Parliament has decided that, for individuals designated as dangerous offenders, protection of the public is an enhanced sentencing objective. However, it does not follow from the mere enhanced place of protection of the public that this objective forecloses all others in the sentencing decision. It remains necessary to evaluate all the circumstances.

[47] The provision requires the judge to examine the evidence adduced at the hearing to determine whether there is a reasonable expectation that a lesser measure – a conventional fixed-term sentence or a fixed-term sentence of at least two years followed by a long-term supervision order – will adequately protect the public against the risk that the offender will commit murder or a serious personal injury offence. The hearing judge must first exhaust the less coercive sentence options to address this risk of recidivism before imposing a sentence of indeterminate detention in a penitentiary.

[48] In determining the length of the fixed term custodial component of a composite sentence under s.753(4)(b), the hearing judge is not restricted to imposing a term of imprisonment that will be appropriate on conviction of the predicate offence but in the absence of a dangerous offender designation. The hearing judge must take into account the statutory limits of the offence for which the sentence is being imposed, the paramount purpose of public protection under Part XXIV and other applicable sentencing principles under ss.718-718.2. This analysis may justify fixed term sentences lengthier than those appropriate outside the dangerous offender context.

[49] The principal focus of sentences under Part XXIV is on the protection of the public. With respect to a long-term offender order, the protection of the public is sought to be achieved by reducing the offender’s risk through programming and treatment while serving the determinate sentence in order to facilitate the offender’s supervised reintegration into the community.

Analysis and Conclusion

[50] I have carefully read and considered the evidence on this application, the viva voce testimony, the agreed-upon facts, as contained in the exhibits entered on agreement, the caselaw presented and the submissions of counsel.

[51] I find that Mr. Correa must be designated a dangerous offender. The offence for which Mr. Correa was convicted is a serious personal injury offence as described in s.752(b) of the Code. He has and continues to show failure to control his sexual impulses, as is witnessed by his previous convictions and I am satisfied beyond a reasonable doubt that there is a significant likelihood of recidivism and causing injury, pain or other evil to others through failure to control his sexual impulses. I base this on the fact that he continues to deny that he has schizophrenia or that he has uncontrollable sexual impulses, and the fact that he has not completed any treatment previously administered and is non-compliant in taking medications. Until he recognizes and admits to himself that he does suffer from serious mental issues and until he seeks and participates in the treatment necessary, I am unable to conclude that he is not a dangerous offender. I am not satisfied, based on the above, that there is a reasonable possibility of eventual control of the risk in the community, as would be necessary for a designation of long-term offender.

[52] I have also taken into account the recommended treatments that he should undergo. I accept that these treatments should be provided to him. I am of the view, based on all of the evidence, that these treatments will require a prolonged period of time to complete, and must be undertaken in a facility where Mr. Correa can be supervised.

[53] Mr. Correa struggled with behavioural issues, relationships and respecting boundaries over the years. He has been convicted on three occasions in the last eight years of sexual offences, which have escalated in seriousness. These offences are recognized as serious personal injury offences pursuant to the Criminal Code. While the predicate offence was an attempted sexual assault, as he was not able to break into or force his way into the house, it does not diminish the incident, nor the effects on the victims, and the resulting psychological injury and pain based on their Victim Impact Statements, which were adduced in evidence at the hearing. Based on the Victim Impact Statements of the twin teenaged daughters, and those of their parents, all have been significantly affected emotionally and psychologically by the incident. The teenaged victims are anxious, nervous, afraid that this may happen again. Further, their grades have suffered as a result of the incident and the emotional and psychological impact on them. The parents are also significantly affected, fearful that such a thing may happen again, fearful and anxious for their daughters’ and their own safety and security. The emotional and psychological impacts continue to affect them all.

[54] Based on the psychological assessment and findings of Dr. Waisman, which I have accepted, I believe that it may be difficult to fully treat Mr. Correa, given his ongoing denial of any psychological issues or problems, including his schizophrenia and his sexually impulsive behaviour. Based on all of the evidence that I have seen, heard and read, I believe that any possibility of effective treatment will require a long-term approach, with assessments, testing, the administration of medications and meaningful participation in programs designed to assist with his issues regarding sexual assault. I am satisfied beyond a reasonable doubt that it will be important for him to be in a facility for a longer period of time in order to ensure that these assessments, the testing, the administration of medications and the participation in programs can occur on a consistent and supervised basis. I am of the view, having assessed all of the evidence, that this is necessary in order to attempt to assist him. I am further of the view that this must be done in a custodial setting to ensure the safety of the public and community, and, particularly of young women.

[55] I am not of the view that releasing him now into the community on probation, even strict probation, for a three-year period, as urged by counsel for Mr. Correa, will be sufficient. I am further not of the view, based on all the evidence, that a provincial setting will provide him with the assistance necessary to attempt to rehabilitate him, as much as is possible.

[56] I am mindful of and have taken into consideration that past attempts at treatment have been unsuccessful due to Mr. Correa’s denial of any psychological issues and his failure to continue with medications which were administered to him.

[57] I am not satisfied, based on all of the evidence, that there is a reasonable possibility of eventual control of the risk in the community, given his past offences and failure to comply with the recommended and requisite medications and treatments given, and his inability to control his impulses, and based on the report of Dr. Waisman that Mr. Correa has demonstrated an ongoing failure to control his sexual impulses; there has been an escalation in this sexual behaviour with each offence; he has not had a full complement of treatment for his sexual condition; and until he does so, will be unable to control his sexual impulses. I have not seen evidence to establish that there is a possibility of eventual control of the risk in the community. Nevertheless, I am of the view that the appropriate and requisite assessments, tests, medications and treatments should be given in an attempt to assist him and in an attempt at control of the risk to the public. I am of the view that the best place for such assessments, tests, treatments and administration of medications is in the penitentiary setting, where all programs that would address his needs are found, and are compulsory.

[58] In considering the sentence for Mr. Correa, I have considered the evidence, submissions, caselaw and all of the factors and sentencing principles as set forth at paras. 46 - 48, above.

[59] I am fully aware that Mr. Correa has been in pre-trial and pre-sentence custody for a little over 2.5 years. However, in all of the circumstances of this case, I am satisfied that incarceration for an additional two-year period is necessary in order to provide the time for him to undergo assessment, testing, administration of medications and participation in the programs which will focus on his specific issues, and in a consistent and supervised manner. In this regard, I rely on R. v. Spilman, 2018 ONCA 551, [2018] O.J. No. 3297, in which it was found that when imposing a sentence under ss.753(4)(b) or (c), a sentencing judge may impose a fixed term sentence that exceeds the appropriate range in the non-dangerous offender context, to ensure the offender has access to treatment programs in a penitentiary to address the significant threat posed to the community.

[60] I note that no enhanced credit for pre-sentence custody was requested and, in all of the circumstances of this case, I do not grant any enhanced credit. See R. v. Spilman, supra., pp.32 et seq.

[61] For the reasons given above, I am also of the view that Mr. Correa should be subject to a period of long-term supervision for 10 years. I am not satisfied by the evidence adduced during the hearing of the application that the sentence alone of 2 years, with the assessments available in a penitentiary setting, will adequately protect the public against re-offence by Mr. Correa. I am aware that there is no, or no sufficient, evidence of any ongoing support in the community. Nor is there any evidence of support from family members. I am of the view that the 10-year supervisory order is appropriate in order to ensure that he continues, on his own initiative, outside an institutional setting, to comply with and take the medications administered to him, to practice appropriate behaviour with respect to relationships and boundaries, to be able to control his sexual impulses, as well as his schizophrenia. I find that this will be important and necessary to assist him as much as possible to reintegrate into society and the community, and to minimize the risk of re-offence to the extent possible.

Sentence and Ancillary Orders

[62] Accordingly, I sentence Mr. Correa to two years in penitentiary, in addition to his pre-trial and pre-sentence custody, during which time he will be able to obtain the medical assistance and medications necessary with respect to his schizophrenia and pedohebaphilia, as well as the behavioural modification and training necessary for his issues. Following his incarceration, he will be subject to a 10 year long term supervisory order, during which time he will be assisted in terms of reintegration into the community, and supervision as regards continued compliance with requisite medications and ongoing programs focused on his issues in an attempt to minimize any risk to the community of recidivism. As regards the convictions for voyeurism and possession of a pellet gun for a dangerous purpose, I sentence Mr. Correa to 1 day concurrent to the 2 year sentence for each.

[63] Further, Mr. Correa is subject to ancillary orders under the Criminal Code, as follows: a DNA order, a SOIRA order for life pursuant to s. 490.013(4), and a s.110 order for 10 years.

Carole J. Brown J. Released: February 24, 2021