DATE: 20010801 DOCKET: C25969
COURT OF APPEAL FOR ONTARIO
WEILER, ROSENBERG and FELDMAN JJ.A.
B E T W E E N :
Christopher Hicks and
HER MAJESTY THE QUEEN
Catriona Verner,
for the appellant
Respondent
- and -
J. Sandy Tse,
for the respondent
JAMES MASON
Appellant
Heard: June 18, 2001
On appeal from his sentence imposed by Justice David G. Humphrey on December 12, 1995
ROSENBERG J.A.:
[1] This is an appeal from the judgment of Humphrey J. on December 12, 1995 declaring the appellant to be a dangerous offender and imposing a sentence of indeterminate detention. This appeal first came before the court in 1999. At that time, the court was concerned about the lack of current information about the status of the appellant and whether he was receiving any treatment within the penitentiary. This was a particular concern in this case because the appellant had been in the penitentiary system since 1991 and was only nineteen when he committed the predicate offences that founded the dangerous offender application. We have now been provided with comprehensive reports from the penitentiary service as well as an expert report from a psychiatrist, Dr. D. Eaves.
[2] For the reasons that follow, I would dismiss the appeal.
FACTS
The evidence at the dangerous offender hearing
[3] In October 1991, the appellant pleaded guilty to sexual assault with a weapon and was sentenced to seven years' imprisonment. The facts of the offence were very serious. In July 1991, the appellant broke into a home and raped a woman at knifepoint.
[4] While the appellant was serving this sentence, the police were able to link him to a similar incident that occurred in October 1990. On this occasion, the appellant broke into a home and raped the complainant at gunpoint. Following the assault, the appellant stole some money from the complainant and left. The appellant pleaded guilty to sexual assault with a weapon and robbery. These were the predicate offences that gave rise to the dangerous offender application.
[5] The appellant had a prior conviction as a young offender for break and enter with intent to commit sexual assault. The appellant attempted to break into a woman’s home but he ran away when the complainant was able to call the police. Evidence was also adduced at the dangerous offender hearing of two other sexual assaults in 1989 that were not the subject of convictions. Humphrey J. found that one of these assaults took place. This offence was also a rape at knifepoint.
[6] Two psychiatrists testified at the dangerous offender hearing. There was little disagreement between them. The appellant suffers from two sexual paraphilias, voyeurism and, more seriously, preferential rape pattern. The appellant also suffers from alcohol abuse disorder and mixed personality disorder. Neither psychiatrist would diagnose the appellant as a psychopath. Dr. Klassen, the psychiatrist nominated by the Crown, testified that the appellant met the dangerous offender classification. He was of the view that despite the appellant’s young age, his personality had already been formed. In his view, the community could only be protected if the appellant was incarcerated or if he took sex-drive-reducing medication in perpetuity. He did not believe that the appellant could benefit from less invasive treatment and he felt that, in any event, the appellant lacked motivation for treatment.
[7] Dr. Ben-Aron, who was nominated by the defence, was initially somewhat more optimistic. He felt that the appellant was genuinely motivated to accept treatment. He also emphasized the impact of an incident in the penitentiary when the appellant was raped by another inmate. Dr. Ben-Aron was of the view that this gave the appellant some insight into the plight of his victims and was the beginning of an ability in the appellant to empathize with his victims. However, in his report and at trial, Dr. Ben Aron placed a significant caveat on this opinion because of the appellant’s involvement in an escape plot while he was at METFORS (the forensic psychiatry unit at the Clarke Institute). As he said in his report:
This expression of sensitivity for others, however, must be given an appropriate weighting, and it is necessary to take into consideration the alleged planned escape in which he was reported to have participated while in his recent stay in METFORS.
[8] The admissibility and use of the evidence of the escape plot is at the core of the appellant’s appeal. He submits that this evidence was inadmissible and should not have been relied upon by the psychiatrists in forming their opinions. The appellant was sent to METFORS in early 1995 for a dangerous offender assessment. During this time, another patient informed staff of an upcoming escape attempt involving himself, the appellant and a third patient. As a result of this report, the appellant was removed to a secure room and searched. The staff found a piece of paper containing details of an escape attempt. Using information from this paper, the staff located some metal bars that, according to the informant, were to be used to subdue at least one staff member. A staff member overheard the appellant speaking to the third patient and mentioning the word “bar”. The informant patient was an unsavoury witness. The appellant testified that he was not sure whether he was planning to escape. He admitted that the discussion about the escape at least included threatening nurses with a fire extinguisher. He stated that he had nothing to do with the metal bars. I will return to the question of the use of the escape plan evidence below.
[9] As indicated, Humphrey J. found the appellant to be a dangerous offender. He held that the appellant fit within the definition in former s. 753(b), which provides as follows:
- Where, on an application made under this Part following the conviction of a person for an offence but before the offender is sentenced therefor, it is established to the satisfaction of the court
(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 conduct in any sexual matter including that involved in the commission of the offence for which he has been convicted, has 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 court may find the offender to be a dangerous offender and may thereupon impose a sentence of detention in a penitentiary for an indeterminate period, in lieu of any other sentence that might be imposed for the offence for which the offender has been convicted.
[10] Humphrey J. recognized that he had a discretion to impose a definite sentence notwithstanding the dangerous offender finding. He held, however, that in view of the evidence that there was no realistic expectation that the appellant’s preferential rape pattern paraphilia could be cured or abated within any prescribed time frame, there was no option but to impose an indeterminate sentence.
The fresh evidence
[11] For reasons that are not material to this appeal, the appellant was transferred to British Columbia while he was serving the initial seven-year sentence and he was returned there after he was declared a dangerous offender in 1995. At the request of this court, a British Columbia psychiatrist, Dr. Eaves, conducted an assessment of the appellant. That assessment was completed in January 2000. Dr. Eaves’ report is detailed and comprehensive. His report, together with the more recent reports from the penitentiary service, describes the treatment that the appellant has had to date and provides an assessment of the risk he presents at this time. While I will provide further details below, in summary, the appellant still represents a medium high to high risk to reoffend if released into the community. Further, while the appellant has undergone some treatment and made some progress he has also resisted other treatment.
[12] Dr. Eaves’ diagnosis of the appellant is similar to that of the psychiatrists who testified before Humphrey J. According to Dr. Eaves, the appellant has serious problems of alcohol abuse, dependence, and mixed paraphilia. He has a personality disorder of a mixed type, with narcissistic and borderline features. Dr. Eaves used a number of accepted risk assessment instruments to come to his conclusion that the appellant presents a moderately high to high risk of re-offending. It is worth reproducing the final paragraph of Dr. Eaves’ report:
I would conclude that Mr. Mason presents a moderately high to high risk of re-offending. This risk may be attenuated by a positive response to treatment intervention, and there is some evidence that he is positively motivated to conclude his current treatment programme and benefit from it, in contrast to his poor performance in the past. All the instruments that I have utilized indicate a high risk of recidivism. His personality characteristics are of most concern, since narcissism and grandiosity are antithetical to the development of true rapport and, hence, empathy. It is generally considered that the ability to form empathy is a critical item in determining whether a sex offender recidivates or not. His early childhood experiences may have blunted his affective (emotional) state to some extent, and, as Dr. Ben-Aron pointed out at trial, this is an area where therapeutic interventions can be focussed with consequent benefit. It is encouraging that Mr. Mason now seems motivated to take part in a treatment programme, but it is too early to say whether he has the capacity to truly benefit from it. Should he do so, then there would be reasonable likelihood that he could re-enter the community at some future point, given highly structured supervision and an ongoing treatment programme. Most of the intensive treatment programmes, such as those at the RHC [Regional Health Centre], are followed by relapse prevention programmes which identify a person's crime cycle, the circumstances in which persons are vulnerable to recidivism, and the steps they can take to render themselves safe. It would be imperative that Mr. Mason take part in such relapse prevention programmes prior to consideration of release on parole. [Emphasis added.]
[13] As indicated in the emphasized part, there is some suggestion that with appropriate treatment, the appellant might be able to enter the community at some point, under very strict controls. However, that point had not yet been reached in early 2000.
[14] The various progress reports from the penitentiary detail the treatment afforded to the appellant and his progress. The most recent report is dated March 2001. Following the preparation of Dr. Eaves’ report, the appellant completed the Intensive Treatment Programme for Sex Offenders at the Regional Health Centre and participated in the Sex Offender Relapse Prevention Programming. The appellant is reported to have made significant gains through the Treatment Programme, although there was some “back-sliding” in his behaviour. The penitentiary consultants suggested that the appellant again participate either in the Intensive Treatment Programme for Sex Offenders at the Regional Health Centre or the moderate intensity treatment programme at Mountain Institution. They also recommended that the appellant participate in another alcohol abuse treatment programme. The appellant was reluctant to undertake these further treatments. Thus, while the appellant professes that he wishes to change his behaviour and has participated in several treatment programmes for that purpose, he lacked insight into the need for further treatment. An excerpt from one of the reports will give some indication of the difficulties that the appellant still presents:
Mr. Mason's violent sexual behaviour and voyeuristic behaviour started at a very early age. Continued treatment is recommended before this offender can be deemed an acceptable risk to the community. Mr. Mason has made some very impressive gains towards lowering this risk however release at this time would appear to be premature as he has only recently been able to accept the harm he has invoked on his victims. He reportedly maintained a lack of empathy for his victims even after his own experience of being sexually assaulted while incarcerated at Millhaven Institution.
Mr. Mason's crimes warrant caution as his victims suffered not only physical harm but as well the psychological trauma of being victimized in their own homes.
Currently Mr. Mason has regressed in his behaviour and has allowed his frustration to control him instead of him controlling his frustration. It is clear that Mr. Mason is not utilizing the skills taught to him through the various programs which is of grave concern to the Case Management Team. Mr. Mason must learn to work through his problems in a positive manner and not to digress into old patterns of behaviour when things don't go his way. Mr. Mason has not made an attempt to understand why further program recommendations have been made or even to effectively communicate with his Case Management Team. [Emphasis added.]
[15] The most recent psychological report also provides important information on the appellant’s treatment potential. In this report, the author, after detailing some quite significant and impressive progress, wrote as follows:
Having said that, significant concerns remain and I will highlight two. First, it is evident that, even after intensive treatment, Mr. Mason has found it difficult (especially during times of emotional strain) to control his urges to exhibit himself (i.e. arranging to be 'caught' masturbating at night-time count). Since his return to Mountain Institution earlier this year, by his own admission, he has engaged in this sort of exhibitionism a few times. I understand that Mr. Mason has not incurred any charges for this. Although to his credit Mr. Mason is being open about these urges and seems to be taking appropriate steps to gain control over them (e.g. through individual and group therapy, and through investigating pharmacological options), it is still apparent that Mr. Mason has a considerable way to go. Second, surrounding the two sexual allegations dating back to 1989 that led to no sustained charges, it is interesting that Mr. Mason remains somewhat defensive -- emphasizing that these complaints were bogus, and saying that "it really upsets [him]" that people continue to doubt his innocence. While I obviously can't and won't dispute his innocence (as he wasn't convicted of anything), it is likely that Mr. Mason acted in ways that were forceful, intrusive, and upsetting to those complainants (and probably other women as well). Moreover, it is troubling that Mr. Mason admittedly put a knife to the throat of one of these complainants to stop her from lashing out at him. Rather than being defensive about these sexual allegations, Mr. Mason could take a closer look at how, more generally in his life, he has mistreated and used women. [Emphasis added.]
[16] The author concluded with the following risk assessment:
Actuarial measures place Mr. Mason's risk of violent/sexual reoffense in the moderate-high to high range. Weighing available clinical and actuarial information, I would conclude that Mr. Mason's level of risk remains MODERATE-HIGH to HIGH, but I believe that he has begun to make some significant progress through treatment. I would encourage him to build upon these gains through additional programming. [Emphasis added.]
ANALYSIS
Use of the escape plan evidence
[17] Counsel for the appellant submits that the trial judge erred in admitting and relying upon the evidence of the escape plan. He argues that the Crown failed to prove the plan beyond a reasonable doubt and that, in any event, the evidence was inadmissible. The court did not call upon the Crown to respond to these submissions.
[18] As to the first point, there was a body of evidence upon which the trial judge could properly find that the important elements of the plan had been proved beyond a reasonable doubt. Further, despite his reservations about the credibility of the patient informer, the trial judge was satisfied beyond a reasonable doubt that there was such a plan, that the appellant was a participant, and that the plan envisaged the use of violence towards staff members. While it is clear that the trial judge would not have made those findings based solely on the informant’s evidence, the informant’s testimony was corroborated by independent evidence. The trial judge concluded that the evidence proved “Mason’s escape plan required at least threats of violence and confinement of staff in order to be viable”. There is evidence to support that finding.
[19] The appellant’s second argument is that the evidence of the escape plot was inadmissible because it was, in law, irrelevant to the psychiatrists’ expert assessments. This submission is based on the decision of the Supreme Court of Canada in R. v. Howard (1989), 1989 99 (SCC), 48 C.C.C. (3d) 38. The importance of this evidence to Dr. Ben-Aron’s ultimate opinion cannot be doubted. Without it, Dr. Ben-Aron was of the view that it was premature to classify the appellant as a dangerous offender. He thought that the appellant’s own victimization in the penitentiary might be a sufficient impetus for the appellant to change, accept treatment, and significantly diminish his dangerousness. However, as he testified in chief in response to questions from the appellant’s lawyer, these hopes were dashed when the respondent took part in the escape plot. To quote Dr. Ben-Aron, “It suddenly diminishes the significance of his being terrorized in prison, diminishes the significance of his being empathetic to possible victims of assault”. In the result, Dr. Ben-Aron shared Dr. Klassen’s opinion that the appellant met the dangerous offender classification.
[20] The emphasis that the trial judge put on this evidence also cannot be doubted. It was an important consideration in his decision not to exercise his discretion to impose a definite sentence. As he said:
For reasons mentioned in his report, [Dr. Klassen] is not optimistic that Mason will or could successfully undergo treatment. I hope he is wrong. Everybody, including the accused, believes he is a dangerous person, except for that one hopeful note of Dr. Ben-Aron which I read and which he abandoned after hearing of the escape. I am driven to conclude that there is no realistic expectation that Mason’s preferential rape pattern paraphilia will be curbed or abated within any prescribed time frame, if ever. Therefore, I have no option but to impose an order detaining the accused in a penitentiary for an indeterminate period. [Emphasis added.]
[21] In my view, the escape plot evidence was admissible and could be taken into account by the psychiatrists in forming their opinions. This case is different from Howard. In Howard, the accused was tried for first degree murder. Prior to that trial, his alleged accomplice pleaded guilty to second degree murder. At his own trial, the accused testified that he was with the accomplice the entire evening when the killing occurred and gave a detailed account of his whereabouts. He denied that he and the accomplice had killed the deceased or had been with the deceased that evening. The accused then proposed to call an expert on footprints to testify that footprints found near the body could not have been made by the co-accused. The trial judge ruled that Crown counsel would be permitted to cross-examine the witness on whether or not he had taken into account the fact that the co-accused had pleaded guilty and at the sentence hearing had admitted that the footprints were his. As a result of this ruling, the defence did not call their expert and the accused was convicted. The Supreme Court of Canada held that the trial judge erred in ruling that these questions could be put. The appellant relies upon the two propositions stated by Lamer J., for the majority, at p. 46 of the Howard decision. I will deal with each in turn.
[22] First, Lamer J. held that the fact the accomplice had pleaded guilty and had acknowledged that the footprint was his was “not at the time the question was intended to be put to the expert, and was not going to become, a fact adduced in evidence; nor was it a fact that could fairly be inferred from the facts in evidence”. The evidence of the escape plot is entirely different. It is evidence of the appellant’s background and character. Section 757 of the Criminal Code expressly provides for the admissibility of evidence of character at the instance of the Crown. At Howard’s trial, evidence that his alleged accomplice had pleaded guilty and admitted certain facts was hearsay and irrelevant. The escape plot evidence in this case was evidence of the appellant’s own conduct and relevant to the issues on the dangerous offender application.
[23] The second proposition set forth in Howard is that “an expert cannot take into account facts that are not subject to his professional expert assessment, as they are irrelevant to his expert assessment; a fortiori, as injecting bias into the application of his expertise, he should not be told of and asked to take into account such a fact that is corroborative of one of the alternatives he is asked to scientifically determine”. In Howard, the defence expert was skilled in comparing shoe imprints. He obviously had no skill in evaluating the validity of a guilty plea and the facts read in to support the plea. The use of the escape plot evidence in this case is different. The psychiatrists’ expertise extends to assessing the patient’s previous behaviour and using that and other information to predict future behaviour. It was well within Dr. Ben-Aron’s expertise to determine the importance of the escape plot information. Had the trial judge found that the plot was not proven, this would have impacted on the value of Dr. Ben-Aron’s ultimate opinion. However, as I have noted, the trial judge found that the essential elements of the plot had been proven.
[24] Accordingly, the trial judge did not err in admitting the escape plot evidence and relying upon that evidence in concluding that the appellant was a dangerous offender. The evidence was also properly taken into account by the trial judge in deciding that he should not exercise his discretion against imposing an indeterminate sentence. I can see no basis for interfering with those decisions. They are reasonably supported by the evidence: R. v. Currie, 1997 347 (SCC), [1997] 2 S.C.R. 260 at 279.
The fresh evidence
[25] I have set out in summary form the fresh evidence tendered by the parties on this appeal. The appellant submits that based on this evidence, this court should set aside the dangerous offender finding and the indeterminate sentence and designate the appellant as a long-term offender in accordance with s. 759(3)(a)(i) of the Criminal Code, or in the alternative order a new hearing under s. 759(3)(a)(iii) at which the judge could consider whether an order should be made that the appellant is a long-term offender.
[26] The long-term offender provisions of the Criminal Code came into force in 1997 several years after the hearing before Humphrey J. The submission that this court should find the appellant is a long-term offender or order a new hearing to permit the judge to consider such a disposition thus raises an important question as to whether these provisions should be given retrospective effect. Counsel for the appellant and the respondent made very helpful submissions on this issue and provided us with most, if not all, the cases that have dealt with the issue. However, I need not decide that issue, since I am satisfied that the fresh evidence does not provide a basis for this court to find that the appellant should be declared a long-term offender or order a new hearing.
[27] Under s. 759(3)(a)(i) of the Criminal Code, on an appeal against a finding that an offender is a dangerous offender, this court may “find that the offender is not a dangerous offender, find that the offender is a long-term offender” and impose a minimum sentence of imprisonment for two years and order the offender to be supervised in the community for up to ten years. Thus, it is a prerequisite to this court exercising its jurisdiction that we find that the offender is not a dangerous offender. While this court was provided with considerable evidence about the appellant’s progress, I cannot find that the appellant is not a dangerous offender.
[28] I am also not persuaded that this is a proper case to order a new hearing so that the appellant can seek to establish he should be declared a long-term offender. Section 753.1 describes the prerequisites for a long-term offender finding:
753.1 (1) The court may, on application made under this Part following the filing of an assessment report under subsection 752.1(2), find an offender to be a long-term offender if it 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. [Emphasis added.]
[29] The important consideration for this case is the emphasized portion that, “there is a reasonable possibility of eventual control of the risk in the community”. The appellant has made some progress while in prison and the proposed fresh evidence shows reason for greater optimism concerning the appellant’s amenability to treatment than was the case at trial. On the other hand, the fresh evidence also tends to diminish the impact of the appellant's experience as a victim on his ability to show empathy to his own victims. Regrettably, at this point the evidence also shows that the possibility that the appellant’s behaviour can be controlled in the community is no more than speculative. On the basis of the extensive material placed before this court, I simply cannot say, at this time, that there is a reasonable possibility of eventual control of the risk in the community. Despite the appellant’s participation in several programmes, he remains a moderately high to high risk to reoffend and commit offences of extreme gravity. Speculation is not a sufficient basis for setting aside a dangerous offender finding that was fully supported by the evidence at the time and almost six years later remains supported by the evidence. In summary, I am satisfied that there is not a realistic prospect of management of the risk in the community, following the serving of a determinate custodial sentence.
[30] In view of this conclusion, I need not consider the question of interpretation of the relationship between the dangerous offender and long-term offender provisions and whether the new provisions give the judge a discretion not to make a finding that the accused is a dangerous offender because he or she meets the long-term offender pre-requisites. See R. v. Payne, 2001 28422 (ON SC), [2001] O.J. No. 146 (S.C.J.); R. v. Lyons (1987), 1987 25 (SCC), 37 C.C.C. (3d) 1 (S.C.C.) at 29; R. v. Neve (1999), 1999 ABCA 206, 137 C.C.C. (3d) 97 (Alta. C.A.) at 175-80.
DISPOSITION
[31] Accordingly, I would dismiss the appeal. I cannot conclude this appeal without making these observations. This is a tragic case for all concerned, the many victims and the appellant. The appellant was brutally treated as a child and it should come as little surprise that he has emerged as a badly damaged and dangerous individual. Nevertheless, there is at least now some hope that with time and appropriate treatment the appellant can be released. These reasons should not be read as a finding that the appellant can never be released. To the contrary, the members of the court were encouraged by the information that after this appeal was adjourned the appellant was able to participate in intensive treatment programmes and to make some progress. However, the Parole Board will be in the best position to decide when to release the appellant into the community. Finally, I wish to thank counsel for their assistance in this case.
RELEASED: AUG 01 2001 KMW
Signed: “M. Rosenberg J.A.”
“I agree K.M. Weiler J.A.”
“I agree K. Feldman J.A.”