- DATE: 20020617 DOCKET: C24448
COURT OF APPEAL FOR ONTARIO
RE:
HER MAJESTY THE QUEEN (Respondent) - and - CARL STEVEN RUTT (Appellant)
BEFORE:
MOLDAVER, GILLESE and ARMSTRONG JJ.A.
COUNSEL:
Christopher D. Hicks and Michael W. Lacy
For the appellant
Philip Downes
For the respondent
HEARD:
June 5, 2002
RELEASED ORALLY:
June 5, 2002
On appeal from the sentence imposed by Justice D.M. Stone on September 9, 1994.
E N D O R S E M E N T
[1] The appellant either suffers from an anti-social personality disorder or a personality disorder with anti-social traits. He has further been diagnosed as a paedophile and a sadist and he is prone to substance abuse. As the trial judge pointed out in his thorough and cogent reasons, the appellant is a very dangerous man and he poses a serious threat to society.
[2] Based on the evidence before him, the trial judge concluded that the appellant was a dangerous offender and that an indeterminate sentence was warranted. Those findings are amply supported by the evidence and in our view, far from being unreasonable, they are unassailable. Contrary to the submission of the appellant, we are not persuaded that in coming to the conclusions he did, the trial judge fell into any error, either in his appreciation of the law or the evidence. Accordingly, we see no basis for disturbing his findings on appeal.
[3] The appellant has, however, filed fresh evidence with a view to persuading us that a new hearing should be ordered to enable him to establish that he should be declared a long-term offender as opposed to a dangerous offender.
[4] Assuming, without deciding, that the appellant is entitled to avail himself of the long-term offender regime, when the fresh evidence upon which he relies (primarily the updated report of Dr. Bradford) is considered along with the other evidence, including the evidence before the trial judge, Dr. McDonald's updated report, and the post-sentence report, we have not been persuaded, as required by the fourth test in R. v. Palmer (1979), 1979 8 (SCC), 50 C.C.C. (2d) 193 (S.C.C.), that it could reasonably be expected to have altered the result.
[5] In particular, it does not pass the "reasonable possibility of eventual control of the risk" test set out in s. 753.1(1)(c) of the Code. In this regard, we note that the main thrust of the appellant's argument is that the fresh evidence shows that the trial judge erred when he assumed that the appellant would not submit to treatment. Admittedly, the fresh evidence shows that the appellant has completed a number of treatment programs. While at first blush that evidence would appear to undermine the assumption made by the trial judge, a closer reading of the material shows otherwise. Apart from Dr. McDonald's updated report in which the appellant is portrayed as a person with an anti-social personality disorder who is using the treatment programs not so much to get the help he needs but to manipulate the system, the following passage from page 1 of the post-sentence report is in our view revealing:
Another important high risk factor for Mr. Rutt was deviant thoughts and fantasies. It seemed difficult for him to acknowledge the role of his deviant thoughts and fantasies in his offences against male children. Although he discussed this issue during his disclosures, he chose not to address it in the remainder of the program. This was a sensitive and uncomfortable area that Mr. Rutt chose to avoid whenever possible. At the end of the program, Mr. Rutt recognized that this is an area he would benefit from exploring further in the future.
[6] The fact that the appellant was prepared to disclose his deviant thoughts in respect of male children is not equivalent to his seeking or undertaking treatment for the same. In fact, as the passage quoted clearly states, the appellant chose not to address it in the program. It goes without saying that mere presence in a program of treatment does not constitute treatment. In our view, the appellant's choice not to address the issue shows that the trial judge was not in error . On the contrary, it affirms his conclusion that the appellant would not take meaningful steps to accept treatment.
[7] While perhaps unnecessary to state, our reasons for refusing to order a new hearing to permit the appellant to establish that he should be found a long-term offender apply with equal force to his submission that if the long-term offender regime is not available, he should receive a new hearing to establish that a determinate as opposed to indeterminate sentence should be imposed. Accordingly we would dismiss the appeal.
Signed: "M. J. Moldaver J.A."
_____ "Robert P. Armstrong J.A."
_____ "Eileen E. Gillese J.A."