CITATION: R. v. Grayer, 2007 ONCA 13
DATE: 20070112
DOCKET: C40618
COURT OF APPEAL FOR ONTARIO
SIMMONS, ARMSTRONG and ROULEAU JJ.A.
B E T W E E N :
HER MAJESTY THE QUEEN
Daniel A. Stein,
for the appellant
Respondent
- and -
DAYLE GRAYER
Susan G. Ficek,
for the respondent
Appellant
Heard: July 27, 2006
On appeal from the sentence imposed on February 28, 2003 by Justice Joseph G. Quinn of the Superior Court of Justice in which he found the appellant to be a dangerous offender and sentenced him to detention in a penitentiary for an indeterminate period.
ARMSTRONG J.A.:
[1] The appellant appeals the finding of Justice Joseph G. Quinn of the Superior Court of Justice that the appellant is a dangerous offender. The dangerous offender finding was made following a trial by jury in which the appellant was convicted of four counts of break and enter and sexual assault on four elderly women, all of whom were attacked in their homes late at night.
[2] The appellant asserts that the trial judge erred in failing to impose a fixed sentence and long-term offender designation followed by a long-term supervision order in the community.
THE FACTS
October 3, 1998
[3] On October 3, 1998 between midnight and 1:00 a.m., the appellant broke into the house of M.M., a 77-year-old widow. The house was located in a rural area of the Township of Colchester in the County of Essex. The appellant entered Ms. M.’s bedroom, sprayed a fire extinguisher around the room and pushed Ms. M. onto her bed. He put his hand over her face and raped her. The appellant wore gloves, a mask and carried a flashlight. Ms. M. suffered a number of bruises from the encounter. She was able to contact the police by making a 9-1-1 call.
July 5, 1986
[4] In the early hours of July 5, 1986, the appellant broke into the rural home of S.B., an 82-year-old widow. The house was located in the Township of Colchester in the County of Essex. The appellant cut the telephone wires to the house before the break-in and then gained entry by smashing a window. Ms. B. was awakened and shouted at the intruder to get out. The appellant was masked and after a struggle with Ms. B., he raped her. After the appellant left, Ms. B. sat on the edge of her bed until daylight and then walked to her son’s house some 700 feet down a concession road.
September 14, 1985
[5] On September 14, 1985, at about 11:00 p.m., the appellant broke into the rural residence of O.N., an 83-year-old widow. The house was located in the Township of Colchester in the County of Essex. The appellant gained entry to the house by removing an air conditioner. The appellant had also cut the telephone wires to the house. Upon gaining entry to Ms. N.’s house, the appellant attacked her and raped her. The appellant wore a black balaclava. Ms. N. suffered bruising to her face.
June 19, 1983
[6] On June 19, 1983 at about 12:15 a.m., the appellant broke into the rural residence of C.R., a 74-year-old widow. He had cut the telephone wires to the house before entering. Ms. R. was asleep when she was awakened by a loud noise in the kitchen area. She got out of bed and walked to the kitchen where she was grabbed by the appellant. He put his hand over her mouth and pushed her into the bedroom. He tied her hands and feet with rope to the top and bottom of the bed. He put a pillow over her face and raped her. There were burn marks on her wrists and her right ankle from the rope. She had two small scratches on her nose. After the assault, she was able to free herself and walk to her daughter’s house nearby.
[7] The impact of these offences on each of the victims and their families was devastating. None of the victims continued to live in their homes where they had lived alone. At the time of trial, three of the four victims had died. The fourth victim was unable to testify. The appellant was convicted on the basis of DNA expert evidence. The DNA evidence identified the appellant’s semen at the scene of each crime. The appellant testified and denied his guilt.
THE DANGEROUS OFFENDER APPLICATION
[8] At the dangerous offender application hearing, counsel for the appellant made the following admissions:
Your Honour, I have been directed by Mr. Grayer to make certain admissions today before Your Honour and this Honourable Court and the admissions that are being made now are as follows: that Mr. Grayer lied before the ladies and gentlemen of the jury when he testified in effect that he did not commit sexual assault against Ms. M., Ms. B., Ms. R. and Ms. O.N.. In fact, he did commit sexual assault upon those victims. Those are the admissions. That’s the first matter. Is that right, Mr. Grayer?
MR. GRAYER: Yes, yes, Your Honour.
[9] At the conclusion of the dangerous offender application, the appellant addressed the court as follows:
I sincerely apologize to my victims and their families for the terrible suffering I have caused them. I would also like to apologize to my family and friends, to Your Honour, and also to Mr. H.. In my life I have made destructive decisions but with proper help I strongly believe I can turn my life around. And I would comply with any treatment order Your Honour recommends. I will take any medication my doctor prescribes.
[10] The appellant was born on September 7, 1956. He was 42-years-old when he committed the last sexual assault for which he was convicted. He was 46-years-old at the time of sentencing. He is now 50-years-old. He grew up on a farm near Windsor and comes from a family of 12 brothers and sisters. When he was arrested, he was living with his common-law partner and three children. He was working as a heavy equipment operator and had a good work history.
[11] The appellant’s criminal record was filed which consisted of a 1980 assault for which he was fined $150 and a 1980 possession of property obtained by crime under $200 for which he was fined $175. In 1991, he was convicted of obstructing a peace officer and fined $400.
[12] The Crown called Dr. Philip Klassen, a psychiatrist, who was on the staff of the Centre for Addiction and Mental Health in Toronto (the “Centre”). Counsel for the appellant called Dr. Julian Gojer, also a staff psychiatrist with the Centre. In addition, counsel for the appellant called Dr. William Palmer, a psychologist who had been employed by Corrections Canada at the Warkworth penitentiary between 1975 and 1998.
[13] Dr. Klassen was the only expert witness who had met with the appellant. The appellant was a patient at the Centre for some 55 days and Dr. Klassen met with him for a total of 8 to 12 hours.
[14] Dr. Gojer and Dr. Palmer, in rendering their opinions, each relied on information provided by Dr. Klassen in his report and in his evidence.
Dr. Klassen’s Evidence
[15] Dr. Klassen conducted the assessment of the appellant ordered by the trial judge pursuant to s. 752.1(1) of the Criminal Code. Dr. Klassen concluded that the appellant suffered from gerontophilia, a sexual deviancy marked by a preference for elderly female victims. There is no cure for this condition. One’s sexual preference has its onset in adolescence and remains for life.
[16] Dr. Klassen was concerned with conducting an assessment of the appellant’s risk to offend in the future. His assessment proved to be difficult due to a lack of relevant information. There was not much information concerning the appellant’s sexual relations with his partners. He refused to permit his former partner or his siblings to speak to Dr. Klassen. The appellant’s current partner at first agreed to speak to Dr. Klassen but then refused. She provided a note which was not of much use. The appellant did not talk to Dr. Klassen about his involvement in the index offences. He refused to participate in phallometric testing.
[17] The appellant expressed much hostility to others for his convictions. He alleged the police had lied and planted evidence. He described the jury as crooked. He complained that the judge was not qualified and had blocked evidence. He also complained that his lawyer was working with the Crown. He alleged that the Crown was somehow involved with the jury foreman.
[18] The appellant told Dr. Klassen that he had not committed any offences for which he had any regrets and that he did not feel sorry or guilty.
[19] In order to carry out his assessment of the risk of the appellant re-offending, Dr. Klassen employed two risk assessment tools – the Sex Offender Risk Appraisal Guide (“SORAG”) and the STATIC-99. Both of these instruments employ actuarial methods to provide probabilistic estimates of risk. Dr. Klassen stated in his report to the court that “probabilistic estimates of risk indicate the percentage of people, with the same score, on a given metric or risk assessment tool, who would be expected to re-offend within a defined period of opportunity.”
[20] The SORAG instrument takes account of different factors to arrive at a score for a particular individual. In the appellant’s case, Dr. Klassen was unable to score two factors – phallometric test results and sufficient background to complete a Psychopathy Checklist. These two factors each received a zero. The appellant’s SORAG score was +11 with a 59 percent long-term risk (over 15 years) to re-offend. If he had been able to conclude that the appellant suffered from a personality disorder, which he suspected, but could not prove, his score would have been +16 which placed him in the 76 percent long-term risk for re-offending.
[21] The STATIC-99 actuarial instrument produced a score for the appellant of 3 which Dr. Klassen said was moderately low. On this score, the appellant had a 34 percent risk of re-offending in a sexually violent manner over 15 years.
[22] Dr. Klassen acknowledged that the SORAG and STATIC-99 instruments produced divergent results. By way of explanation, he observed that the STATIC-99 instrument treated all of the appellant’s offences as one offence because he was to be sentenced on all offences at the same time. In respect of both instruments, Dr. Klassen said they produced floor probabilities and that they probably under-estimated the risk to re-offend by between 15 and 35 percent.
[23] Dr. Klassen, in his report, said that the appellant was a moderate risk to re-offend. In his evidence at the dangerous offender hearing, he testified that the appellant was probably in the moderate to moderately high category of risk to re-offend, “but in the moderate risk range”. He also testified that if the four convictions were treated separately by the STATIC-99, then the appellant’s score would be 5 rather than 3 which would put him in the moderately high range with a risk to re-offend of 52 percent.
[24] Dr. Klassen was asked his opinion about what possible risk management might be available to the appellant. Dr. Klassen responded that there are two treatment approaches to deviant sexual interest – the psychological and the pharmacological. At the time that Dr. Klassen saw the appellant, he would not have been accepted into psychological treatment. He expressed a high degree of animosity towards the authorities and denied offending or any sexual behaviour problem. There were also problems related to the pharmacological treatment (chemical castration). Dr. Klassen testified that the biggest problem with pharmacological sex drive reduction has been the fact that offenders do not want to take the drugs. It is very difficult to convince offenders to take the drugs because all sex drive is suppressed equally. The drugs do not target the deviant sex drive; sexual function is largely extinguished, including consensual sexual function. There is also a problem of titrating the proper dose. You have to rely on self-reporting from the offender. There are also problems related to the side effects of the sex drive reducing drugs and again, one has to rely on the self-report of the offender to give you straight answers concerning the side effects. There is a risk the offender will fabricate the effects to get off the drugs.
[25] Dr. Klassen was questioned as to what effect age would have in respect of the management of a deviant sexual offender. He replied that age is an important variable in offenders against adult females. He testified that there is a significant declining effect in respect of sexual activity for offenders in their sixth decade. However, exactly when the decline in deviant sexual desire and conduct may occur is not possible to pinpoint. Dr. Klassen testified that he had not personally assessed a person in his fifties who committed a violent sexual assault against an adult female. Similarly, none of his colleagues had done so.
Dr. Gojer’s Evidence
[26] Dr. Gojer, a witness called by counsel for the appellant, testified that using Dr. Klassen’s SORAG scoring, the appellant is a moderate risk to re-offend. On the basis of Dr. Klassen’s STATIC-99 scoring, the appellant is in a moderate to low moderate range to re-offend. He attributed the lower STATIC-99 score to the fact that the STATIC-99 instrument treats all four offences as one offence while the SORAG instrument treats them separately.
[27] It was Dr. Gojer’s opinion that the STATIC-99 instrument should be given slightly more weight than the SORAG instrument but he would agree with Dr. Klassen that overall the SORAG is more robust.
[28] Dr. Gojer testified that a clinical assessment is important in order to obtain further information from a dynamic perspective. It is important to talk to the offender to obtain information about the offences and what caused him to select a certain victim and to plan his offending conduct. It is also important to know what was going on in the offender’s life that caused him to commit such serious crimes. The offender’s history of sexual violence is also important.
[29] Dr. Gojer testified that the appellant may oscillate between a low moderate and high moderate risk to re-offend. However, his conclusion, simply stated, was that he was a moderate risk to re-offend.
[30] At the end of his cross-examination, Dr. Gojer concluded that the appellant represented a substantial risk to re-offend. He reasoned as follows:
The conclusion is based on the fact that if he is at least a moderate to moderately high risk to re-offend [sic]. It’s also based on a clinical aspect that this individual has a paraphilia which tells you there’s a pattern of offending and the pattern is expected to continue at least till the mid-50’s. And to me in my opinion, that would at least mean that he would be a substantial risk to the community.
[31] Dr. Gojer was asked about risk management of the appellant. He said that even at a moderate risk to offend, from a clinical perspective, he would not be prepared to let the appellant into the community. Dr. Gojer said that his release had to be predicated upon taking sex drive reducing drugs.
Dr. Palmer’s Evidence
[32] Dr. William Palmer is a psychologist who was called as a witness by counsel for the appellant. He testified as to the use within the penitentiary system of the General Statistical Index of Recidivism (“GSIR”). This tool predicts violent recidivism and is used to determine the placement of offenders within the penitentiary system and to assess an inmate’s risk of recidivism upon release. It was not used by either Dr. Klassen or Dr. Gojer. Using this tool, Dr. Palmer concluded that the appellant was a 5 percent risk to re-offend violently after three years and an 11 percent risk to re-offend violently in 10 years. Dr. Palmer was not aware of any studies comparing the GSIR to either the SORAG or the STATIC-99.
[33] Dr. Palmer accepted Dr. Klassen’s conclusion that the appellant is likely a moderate risk to re-offend from an actuarial perspective. He agreed in cross-examination that one may tend to adjust the actuarial data slightly by reference to clinical data. He also agreed that clinical data was relevant to how one manages the treatment of a sexual offender, assuming that he gets out of jail at some point in the future.
THE REASONS OF THE TRIAL JUDGE
[34] The trial judge reviewed the evidence of Dr. Klassen, Dr. Gojer and Dr. Palmer. He then turned to a consideration of the criteria for making a dangerous offender finding as provided in s. 753(1) of the Criminal Code. After quoting the aforesaid section, the trial judge stated:
The Crown must prove the following beyond a reasonable doubt.
(1) That Dayle Grayer was convicted of a serious personal injury offence.
(2) That the offence for which Dayle Grayer was convicted was part of a pattern of behaviour which has involved violence, aggressiveness or brutal conduct or a failure to control sexual impulses.
(3) That Dayle Grayer’s past pattern of conduct was likely to continue and to result in the kind of suffering against which the section seeks to protect, that is, endangering the life, safety or physical well being of others or in the case of sexual offences, conduct causing injury, pain or other evil to other persons.
It is acknowledged by counsel and I find as a fact that the first two criteria have been proved by the Crown beyond a reasonable doubt. The offence of breaking and entering the residence of an elderly lady and then sexually assaulting that elderly lady is a serious personal injury offence. Dayle Grayer’s offences all involved the break and enter of a residence of an elderly lady and sexual assault. The offences took place on June 19th, 1983, September 14th, 1985, July 5th, 1986 and October the 3rd, 1998. This was obviously a pattern of behaviour involving violence, brutal conduct and an inability to control sexual impulses.
The issue which has been the central focus of this hearing and which the Crown must prove beyond a reasonable doubt is the likelihood that Dayle Grayer will commit similar offences when released. I must be satisfied beyond a reasonable doubt that based on evidence presented at this hearing, not that Dayle Grayer will re-offend in the future, but that there is a likelihood that Dayle Grayer in the future will commit similar offences. In order to make a finding on this issue I must as Morden J. stated in R. v. Knight (1975), 1975 CanLII 1424 (ON SC), 27 C.C.C. (2d) 343 at 356:
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.
[35] I should state that no issue is taken on this appeal with the trial judge’s summary of the relevant criteria for a dangerous offender finding.
[36] The trial judge observed that there was no disagreement among the experts that the appellant suffered from gerontophilia, a coercive sexual preference for elderly females – a life-long condition that may be controlled or managed but not cured.
[37] In considering the evidence relating to the actuarial risk of re-offending, the trial judge rejected the argument of counsel for the appellant that the STATIC-99 results raised a reasonable doubt that the appellant will re-offend. The trial judge found that the STATIC-99 instrument indicated a moderate risk to re-offend. He observed that a moderate risk is not a low risk or no risk.
[38] The trial judge also concluded that the divergent results of the two actuarial instruments, used by Dr. Klassen, cut down their reliability as predictors of future risk to re-offend. In particular, he found that Dr. Klassen’s explanation for the divergent results cast doubt on the accuracy of the STATIC-99 instrument.
[39] The trial judge concluded that the appellant presented a substantial risk to re-offend. The trial judge said that he was satisfied beyond a reasonable doubt that the appellant would likely re-offend unless limited by external controls:
Finally the uncontradicted evidence of all experts was that gerontophilia was causing Mr. Grayer to break and enter the homes of elderly women and rape them. The evidence was also uncontradicted that gerontophilia could not be cured. If Mr. Grayer was not able to control his gerontophilia over the past 15 years, absent any external controls, there would be no reason to conclude that he could control his sexual impulses in the future. I am satisfied beyond a reasonable doubt that absent any external controls there is a likelihood that Dayle Grayer would commit similar offences in the future.
[40] The trial judge then turned his attention to the long-term offender provisions of the Criminal Code and in particular whether the appellant’s risk of future re-offending was capable of control in the community in accordance with s. 753.1(1)(c) of the Criminal Code. Section 753.1(1) of the Criminal Code provides:
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 re-offend; and
(c) there is a reasonable possibility of eventual control of the risk in the community.
[41] In his consideration of whether the appellant’s risk of re-offending could be controlled within the community, the trial judge considered four possible control factors that had been raised by the expert witnesses: psychological treatment, pharmacological treatment, supervision and age.
[42] The trial judge concluded that the appellant was not a candidate for psychological treatment. Such treatment is founded on the premise that the appellant accepted his guilt and has a desire to change. The trial judge observed that the appellant had denied his guilt before the jury. The trial judge found that his subsequent acknowledgement of guilt at the time of the dangerous offender application was “not very convincing”. The trial judge accepted Dr. Klassen’s evidence that psychological treatment would not be helpful.
[43] In respect of pharmacological treatment, the trial judge accepted the concerns of both Dr. Klassen and Dr. Gojer in regard to such treatment. These concerns included:
(i) pharmacological treatment interferes with normal sex life;
(ii) the correct dose is dependent upon feedback from the appellant;
(iii) there are side effects which could be real or concocted;
(iv) whether the Parole Board would order the drug treatment if there were side effects;
(v) whether the appellant would consent to such treatment while under supervision and subsequent to his release;
(vi) whether the court had authority to order drug treatment or only to recommend it to the Parole Board. Dr. Gojer testified that the court could not order drug treatment and Dr. Klassen testified that he was unaware of the Parole Board using drug treatment.
[44] The trial judge, in his consideration of supervision in the community, commented that Dr. Gojer had testified that the appellant’s risk could be managed in the community if there was a sex offender counselling programme, daily monitoring and spot checks, a stable residence and a judicious use of drugs. The trial judge observed that Dr. Gojer did not testify as to how such supervision could be carried out in Essex County. There was no evidence as to the type of counselling programmes available or where a stable residence would be. Members of the appellant’s immediate family were present in court during the trial and the dangerous offender hearing. However, no family members testified as to the degree of supervision and support that they could offer.
[45] In respect of age, the trial judge made reference to both the evidence of Dr. Klassen and Dr. Gojer on this issue. He observed that both Dr. Klassen and Dr. Gojer testified that a combination of drugs and age would substantially reduce the appellant’s risk of re-offending. He commented on Dr. Klassen’s evidence to the effect that it was rare to find males over 50 years of age commit violent sexual offences against adult women.
[46] The trial judge concluded that there was not a reasonable possibility of eventual control of the appellant’s risk to re-offend in the community.
[47] In the result, the trial judge declined to make a long-term offender order. He concluded that the Crown had proved beyond a reasonable doubt that the criteria for a dangerous offender designation had been established.
THE GROUNDS OF APPEAL
[48] The appellant raises several grounds of appeal. Some of the grounds are over-lapping and they are broken down into a number of sub-grounds. For ease of analysis, the grounds of appeal can be summarized as follows:
(i) The trial judge misconstrued and misapplied the expert evidence as it related to the assessment of the risk to re-offend.
(ii) The trial judge erred in his appreciation and appli-cation of the pharmacological evidence.
(iii) The trial judge erred in rejecting the impact of super-visory and treatment resources on the appellant’s risk to re-offend.
(iv) The trial judge erred in failing to consider the impact that age and the passage of time would have on the appellant’s risk to re-offend.
ANALYSIS
(i) Did the trial judge misconstrue and misapply the expert evidence as it related to the assessment of the risk to re-offend?
[49] In his original report, Dr. Klassen had said that the appellant represented a 58% chance to re-offend over seven years and a 76% chance to re-offend over 15 years. The trial judge accepted these figures in his reasons for judgment. The trial judge apparently overlooked the fact that Dr. Klassen changed his mind when he testified. As stated above, the higher SORAG risk percentages were calculated on the premise that the appellant suffered from a personality disorder. In his evidence, he said that although he suspected that the appellant suffered from a personality disorder, he was unable to prove it. He therefore concluded that the appellant represented a 59% risk to offend over 15 years.
[50] Counsel for the appellant submitted that the SORAG scores should have been excluded or at least approached with caution because they took into account charges in addition to convictions.
[51] Counsel for the appellant was critical of Dr. Klassen as an expert witness because he could not give a working definition of actuarial science. Dr. Klassen admitted that actuarial science was not his field. Counsel for the appellant submitted that the trial judge failed to consider the evidence of the only witness knowledgeable in actuarial science, Dr. Palmer.
[52] Counsel for the appellant provided a detailed review of the actuarial evidence, including an analysis of its strength and weaknesses and the differing views of each of the expert witnesses. All of this analysis was advanced in order to persuade this court that the trial judge had erred in preferring the evidence of Dr. Klassen over the evidence of Dr. Gojer and Dr. Palmer. In reality, counsel was urging us to retry the case.
[53] The fact that the trial judge appears to have overlooked the lower SORAG score, obtained by Dr. Klassen, is cause for concern. However, the bottom line of the evidence of both psychiatrists was that the appellant was a moderate risk to re-offend. Dr. Gojer, the psychiatrist called as a witness by the appellant, was unequivocal in his conclusion that the appellant represented a substantial risk to re-offend, based on his actuarial score and on his clinical diagnosis of paraphilia. The trial judge accepted that evidence.
[54] In my view, the trial judge properly considered that the SORAG instrument takes into account criminal charges in addition to criminal convictions. The trial judge adverted to the evidence of Dr. Klassen that actuarial tests have their limitations. I also note the submission of counsel for the respondent, with which I agree, that the information considered by psychiatrists in rendering an opinion of risk assessment is not limited to information which would be admissible as evidence in a criminal trial.
[55] In my view, the fact that actuarial science was not Dr. Klassen’s field is of no moment. The actuarial instruments were used to assist in assessing the appellant’s risk to re-offend. Each of the experts emphasized their various limitations. Dr. Palmer, a witness called by the appellant and to whom the appellant said the trial judge should have paid greater attention because of his actuarial expertise, made the following statement in his report, which he confirmed in his evidence:
I believe Dr. Klassen’s comment that “Mr. Grayer is likely at moderate risk of re-offence, from an actuarial perspective” reflects the most appropriate reconciliation of the divergent estimates [as between the GSIR, the SORAG and the STATIC-99].
[56] It is clear that the trial judge placed great weight on the conclusions of Dr. Klassen concerning the appellant’s risk to re-offend. This is not surprising since it was only Dr. Klassen who actually met the appellant. It is also not surprising in view of the fact that both Dr. Gojer and Dr. Palmer relied upon the report and evidence of Dr. Klassen in coming to their own conclusions. While the detailed analysis by appellant’s counsel of the expert evidence could have led the trial judge to another conclusion, I do not believe that it is open to this court to come to any different conclusion. In order to do so, we would be accepting the invitation to re-try the case.
(ii) Did the trial judge err in his appreciation and application of the evidence concerning pharmacological treatment?
[57] Counsel for the appellant argues that the trial judge erred in dismissing sex drive reducing drugs as a factor in assessing the appellant’s risk to the community. Counsel further submitted that the trial judge erred in his review of Dr. Klassen’s evidence concerning the appellant’s hostility to authority. The trial judge stated that the appellant’s hostility made him a poor candidate for pharmacological treatment when in fact Dr. Klassen had referred to psychological treatment.
[58] Counsel for the appellant also submits that the trial judge erred in dismissing the possibility of a mandatory drug treatment condition for the appellant and failed to construe properly the powers of the National Parole Board as they related to conditions of release.
[59] In my view, the trial judge made no error in his consideration and appreciation of the use that could be made of sex drive reducing drugs in respect of the appellant. The trial judge made express reference to the evidence of Dr. Klassen and Dr. Gojer in respect of the use of drugs such as Lupron, which have the capacity to reduce the appellant’s sex drive and thereby reduce his risk of re-offending in the community.
[60] I do not regard the trial judge’s reference to the appellant’s hostility to authority and pharmacological treatment, which the appellant submits should instead have been attributed to psychological treatment, as material. Common sense would suggest that the appellant’s hostility to authority would be relevant to whether he is a reasonable candidate for drug treatment as well as psychological treatment.
[61] If the appellant was released in the community as a long-term offender, the terms of his release would be fixed by the National Parole Board pursuant to the provisions of Part II of the Corrections and Conditional Release Act, S.C. 1992, c. 20. During the testimony of both Dr. Klassen and Dr. Gojer, there was discussion as to whether the Board would or could impose mandatory drug treatment on the appellant. The discussion is reflected in the reasons of the trial judge. Counsel for the appellant submitted that the weight of authority in Canada suggests that the National Parole Board does have the jurisdiction to impose drug treatment as a condition of release pursuant to a long-term supervision order. The Corrections and Conditional Release Act provides in s. 134.1(2):
The Board may establish conditions for the long-term supervision of the offender that it considers reasonable and necessary in order to protect society and to facilitate the successful re-integration into society of the offender.
[62] This court has not specifically commented on the authority of the National Parole Board or this court to impose drug treatment as a condition of release into the community on a long-term supervision order. However, Justice Hill of the Superior Court has considered this issue in a most helpful and thorough judgment in R. v. Payne (2001), 2001 CanLII 28422 (ON SC), 41 C.R. (5th) 156 at para. 138:
[A]n offender on conditional release by way of a long-term supervision order may be compelled by a term of the order to undertake treatment and related pharmaceutical intervention where essential to management of the accused’s risk of reoffending. In other words, the offender’s consent to such a condition is not required. Should the offender breach terms of the order respecting treatment or medication, he or she is subject to apprehension with suspension of the order pursuant to s. 135.1 of the Act or to arrest and prosecution pursuant to s. 753.3(1) of the Code. The entire object of the long-term offender regime would be undermined by providing the offender the ability to defeat risk management. Accordingly, mandatory treatment and medication conditions in an order are a proportionate response to protecting the public from a person who, by definition, is a substantial risk to reoffend.
[63] Counsel for the respondent concedes that a mandatory condition for drug treatment could be imposed by the National Parole Board upon a long-term offender. The Crown also concedes that the trial judge may not have appreciated this to be the case. On the view I take of this case, I do not find it necessary to decide this issue. Whatever the state of the law, this is not a case to recommend or to order pharmacological treatment.
[64] It is apparent that the co-operation of the appellant would be essential if he was to be a candidate for drug treatment. The appellant’s co-operation in arriving at his proper dosage and in assessing its side effects is required. The trial judge stated that he accepted Dr. Klassen’s evidence that the appellant was hostile to authority. He also found that the appellant’s “admission of guilt and desire to change [were] not sincere.” In my view, if the trial judge had approached this matter on the basis that he could combine a long-term offender designation with a recommendation for mandatory drug treatment to the National Parole Board, as a condition of his release to the community, he would not have done so. The trial judge’s findings show that such a recommendation would not likely be effective and is not justified.
(iii) Did the trial judge err in rejecting the impact of supervisory and treatment resources on the appellant’s risk to re-offend?
[65] The trial judge referred to Dr. Gojer’s evidence concerning the management of the appellant’s risk to re-offend in the community. As referred to above, Dr. Gojer testified that the risk could only be managed in the community provided that the appellant was involved in a sex counselling programme, daily monitoring and spot checks, a stable residence and a judicious use of drugs. The trial judge observed that there was no evidence concerning the type of counselling programmes available in Essex County and no evidence as to who would do the daily monitoring and spot checks. The trial judge did not think that the appellant’s family would be helpful in his supervision as was suggested by the appellant’s counsel at trial. The trial judge also observed that Dr. Klassen testified that the appellant would have to admit his guilt for psychological treatment to be of benefit.
[66] On this appeal, counsel for the appellant made an application to admit fresh evidence. The fresh evidence provided information concerning services that were available through the Windsor Area Parole Office to supervise long-term offenders’ reintegration into the community. The services outlined in the fresh evidence included sex offender treatment, available residential facilities, anger management programming, psychological counselling, medical resources for the provision of sex drive reducing medication, the performance of spot checks and home visits by parole officers.
[67] None of the fresh evidence deals directly with the particular circumstances of the appellant. However, of greater significance is the fact that, other than the brief statement made by the appellant at the conclusion of the dangerous offender application, there is no evidence or information that the appellant would be agreeable to involving himself in a community-based programme which would be closely supervised. While I accept that there is no onus on the appellant to offer evidence, either at trial or on appeal on these issues, in the absence of evidence from the appellant, we are left with the evidence at the hearing of the appellant’s hostile and non-cooperative attitude. To conclude that the appellant is a suitable candidate for supervision within the community because the Windsor Parole Office has access to a wide range of services would be speculative at best. Much more than speculation is required to satisfy the court that the appellant’s risk to re-offend could be managed in the community.
[68] In R. v. Levesque, 2000 SCC 47, [2000] 2 S.C.R. 487 at para. 16, the Supreme Court held, “Although the rules concerning sources and types of evidence are more flexible in respect of sentence, the criteria for admitting fresh evidence on appeal are the same, regardless of whether the appeal relates to a verdict or a sentence.” The principles for admitting fresh evidence were articulated in the seminal case of R. v. Palmer, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759 at 775:
(1) The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in a criminal case as in civil cases: see McMartin v. The Queen. [Citation omitted.]
(2) The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial.
(3) The evidence must be credible in the sense that it is reasonably capable of belief, and
(4) It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.
[69] In my view, the fresh evidence proffered by counsel for the appellant does not satisfy the fourth principle in Palmer. The fresh evidence could not reasonably have affected the result in view of the finding of the trial judge concerning the hostile and non-cooperative attitude of the appellant.
[70] It is important, as this court and the British Columbia Court of Appeal have previously said, to bear in mind that the test under s. 753.1(1)(c) of the Criminal Code is whether “there is a reasonable possibility of eventual control of the risk in the community.” The French version of the subsection calls for “une possibilité réelle”. I adopt the following excerpt from the reasons of Feldman J.A. in R. v. McCallum, 2005 CanLII 8674 (ON CA), [2005] O.J. No. 1178 at para. 47:
Case law from this court and from the British Columbia Court of Appeal under the former dangerous offender legislation and the amended provisions has held that in order to achieve the goal of protection of the public under the dangerous offender and long-term offender provisions, there must be evidence of treatability that is more than an expression of hope and that indicates that the specific offender can be treated within a definite period of time: R. v. Poutsoungas (1989), 1989 CanLII 7104 (ON CA), 49 C.C.C. (3d) 388 (Ont. C.A.); R. v. Higginbottom (2001), 2001 CanLII 3989 (ON CA), 156 C.C.C. (3d) 178 (Ont. C.A.). In R. v. M.(J.S.) (2003), 2003 BCCA 66, 173 C.C.C. (3d) 75 (B.C.C.A.), the court stated that the basic purpose of the dangerous offender provision before the 1997 amendment was the protection of the public and that under the amended legislation, the test for achieving that goal is set out in s. 753.1(1)(c), namely, whether there is a reasonable possibility of control in the community of the risk of the offender re-offending. The court also noted that the French version of the section requires “une possibilité réelle”, or a “real possibility”, which may require an even higher degree of certainty in the evidence than the English version, a “reasonable possibility”.
[71] I am unable to conclude that the trial judge erred in rejecting the impact of the supervisory and treatment resources on the appellant’s risk to re-offend. The additional fresh evidence does not assist.
(iv) Did the trial judge err in failing to consider the impact that age and the passage of time would have on the appellant’s risk to re-offend?
[72] As discussed above, Dr. Klassen testified that there is a significant decline in a person’s sex drive in his sixth decade. However, it is not possible to predict with precision when the decline may occur. Dr. Gojer, who was called as a witness for the appellant, confirmed the evidence of Dr. Klassen. Dr. Gojer also testified that from a clinical perspective, he expected the appellant’s pattern of offending would continue until at least his mid-fifties.
[73] Counsel for the appellant submits that the trial judge failed to deal adequately with the age issue in his reasons for judgment.
[74] The references to age in the reasons for judgment are sparse and there is little, if any, analysis as it relates to the appellant. However, the trial judge referred to the evidence of Dr. Klassen and Dr. Gojer in respect of when a decline in sexual drive is likely to occur and the impossibility of accurately assessing the time of its onset in a particular individual, including the appellant. While the trial judge’s reasons are limited in relation to this issue, they do make it clear that the trial judge turned his mind to the question of age. It is apparent that the trial judge considered age in relation to all of the factors that were relevant to the control of the appellant’s risk within the community and concluded that, at the age of 46 years, the appellant was not a candidate for designation as a long-term offender and eventual release into the community. No doubt as time passes, the appellant will have an opportunity to raise this issue before the National Parole Board.[^1]
[75] I am therefore not persuaded that the trial judge erred in his treatment of the impact of the appellant’s age and the passage of time on the appellant’s risk to re-offend.
DISPOSITION
[76] For the above reasons, I would dismiss the appeal.
RELEASED:
“RPA” “Robert P. Armstrong J.A.”
“JAN 12 2007” “I agree Janet Simmons J.A.”
“I agree Paul Rouleau J.A.”
[^1]: Subsection 761(1) of the Criminal Code provides for a parole eligibility review: “…where a person is in custody under a sentence of detention in a penitentiary for an indeterminate period, the National Parole Board shall, as soon as possible after the expiration of seven years from the day on which that person was taken into custody and not later than every two years after the previous review, review the condition, history and circumstances of that person for the purpose of determining whether he or she should be granted parole under Part II of the Corrections and Conditional Release Act and, if so, on what conditions.