W A R N I N G

The President of the panel hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486.4(1), (2) or (3) or 486.5(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.4 (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of:

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 346 or 347,

(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C‑34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step‑daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C‑34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).

(2) In proceedings in respect of the offences referred to in paragraph (1) (a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and

(b) on application made by the complainant, the prosecutor or any such witness, make the order.

(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

486.5 (1) Unless an order is made under section 486.4, on application of the prosecutor, a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of justice.

(2) On application of a justice system participant who is involved in proceedings in respect of an offence referred to in subsection 486.2(5) or of the prosecutor in those proceedings, a judge or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of justice.

486.6 (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order.

CITATION: R. v. Saddlemire, 2007 ONCA 36

DATE: 20070123

DOCKET: C35266

COURT OF APPEAL FOR ONTARIO

CRONK, LANG AND MACFARLAND JJ.A.

B E T W E E N :

HER MAJESTY THE QUEEN

Respondent

• and -

SCOTT ROBERT SADDLEMIRE

Appellant

Bruce Engel for the appellant

Susan G. Ficek for the respondent

Heard: October 5, 2006

On appeal from the convictions entered by Justice Jean A. Forget of the Superior Court of Justice dated January 21, 1999 and from the sentence imposed by Justice Forget dated July 23, 1999, reported at [1999] O.J. No. 5478.

MACFARLAND J.A.:

OVERVIEW

[1] The appellant pleaded guilty to and was convicted on four charges: one count of break and enter with intent to commit murder; two counts of knowingly uttering a threat to sexually assault and cause death; and one count of criminal harassment. The appellant appeals his convictions, submitting that the sentencing judge erred in dismissing his application to withdraw his guilty plea.

[2] In addition, the appellant appeals the finding that he is a dangerous offender and the sentence of indeterminate detention. He argues that the sentencing judge erred by failing to consider whether he could be controlled by community supervision before declaring him a dangerous offender. In his written factum, the appellant further submitted that the sentencing judge erred by misapprehending the significance of his diaries.

[3] For the reasons that follow, I conclude that the guilty pleas were valid and properly accepted and relied upon by the sentencing judge. I also conclude that although the sentencing judge erred by failing to consider the long-term offender provisions of the Criminal Code before imposing an indeterminate sentence, there was no reasonable possibility that a different sentence would have been imposed but for the error. Accordingly, the appellant has suffered no prejudice and it is appropriate for this court to apply the curative proviso. Finally, I note that the sentencing judge’s reasons make no reference to the appellant’s diaries. Moreover, during oral argument before this court, the appellant abandoned this ground of appeal. I would therefore dismiss the appeal.

FACTS

[4] The appellant, who was twenty-five years old at the time, was arrested in the early morning hours of May 9, 1997 on the premises of a group home for mentally challenged adults.

[5] P.W., an employee of the home, was working the 11:00 p.m. to 8:00 a.m. shift on the night in question. At about 3:45 a.m. she heard a noise and went to investigate its cause. When she looked into the kitchen she saw the appellant standing in an open window. She knew that just prior to this, the window had been closed and the venetian blind down. P.W. recognized the appellant as the same man who had broken into this same group home on February 6, 1991 and sexually assaulted her. In respect of that incident, the appellant was convicted of sexual assault and sentenced to five years imprisonment. He served the full five-year sentence and was released on April 28, 1997 – only eleven days before he returned to the scene and the victim of his prior offence.

[6] On seeing the appellant, P.W. began to scream and pushed a panic alarm button that she had worn around her neck since the previous incident.

[7] Fortunately, the police responded almost immediately and the appellant was arrested at about 4:00 a.m. on the northwest corner of the group home property.

[8] The appellant indicated that he wished to speak to counsel and was given the opportunity to speak privately with two different lawyers before giving a videotaped statement to the police later that morning.

[9] In that statement he told police that he intended to break into the group home and do “the same thing as last time, except I wouldn’t have left [P.W.] alive. Last time I was caught for this, I broke in and raped [P.W.]. That was in 1990 or 1991. I went to jail in 1992. I should have killed [P.W.] the first time.”

[10] In the same statement the appellant also threatened to rape and kill two female police officers who were present at the police station at the time.

[11] On May 26, 1997, the appellant was remanded in custody for a sixty-day psychiatric assessment at the Oak Ridge facility of the Mental Health Centre Penetanguishene (“Penetanguishene”).

[12] Following the assessment, the appellant was returned to the Cornwall jail to await trial. While in custody there, he repeatedly telephoned P.W., sometimes identifying himself as “the Rider”. He also wrote P.W. a threatening letter. This continued conduct on the appellant’s part, from August 1997 through November 1997, formed the basis for the criminal harassment charge.

PLEA AND SENTENCING

[13] On January 21, 1999, the appellant entered pleas of guilty to the four charges.

[14] The appellant discharged his first counsel because he wanted to plead guilty and she advised him not to. He retained a second counsel who also cautioned him against pleading guilty. The appellant did not dispute the facts, save for a few minor details relating to the specific locations where he had earlier spent time in custody. He admitted committing the offences alleged and told counsel he wanted to plead guilty.

[15] The appellant told counsel he needed treatment and wanted to serve any sentence imposed upon him at Penetanguishene. He was advised of the consequences of his guilty pleas, the Crown’s intention to seek a dangerous offender designation[^1] and the consequences if he was found to be a dangerous offender.

[16] The appellant signed an authorization to enter a guilty plea and formally admitted all elements of the offences. He indicated he was fully advised about alternative courses of action, about the possible consequences of guilty pleas and the maximum penalty that could be imposed upon him, namely an indeterminate sentence. Defence counsel had explained that an indeterminate sentence could mean life imprisonment.

[17] Both defence counsel testified that the appellant understood the process and the advice given. After the pleas were entered, the Crown filed his Notice of Intention to have the appellant declared a dangerous offender. The appellant was remanded for psychiatric assessment and consented to the assessment at Penetanguishene. The case was adjourned to May 4, 1999.

[18] In the interim, the appellant discharged his second counsel and retained a third. On May 4, 1999, that defence counsel brought an application to withdraw the guilty pleas. That application was dismissed. The sentencing judge concluded that the appellant met the criteria for a dangerous offender designation and imposed an indeterminate sentence.

ISSUES

[19] There are two issues of substance raised on this appeal:

1. Did the sentencing judge err in law by dismissing the appellant’s application to withdraw his guilty pleas?

2. Did the sentencing judge err in law by failing to consider whether the appellant could be controlled by community supervision before declaring him a dangerous offender?

[20] The third issue raised by the appellant is whether the sentencing judge erred in law by misconstruing the significance of the appellant’s diaries, which contained a record of his violent thoughts and fantasies but did not record past conduct or future intentions. The sentencing judge makes no reference whatsoever to the appellant’s diaries in his reasons. Accordingly I would reject this ground of appeal.

ANALYSIS

(1) Withdrawal of Guilty Pleas

[21] In his affidavit sworn in support of his application to withdraw his pleas of guilty the appellant stated:

2. On January 21, 1999, I plead guilty to a number of charges on the assumption that I would be sentenced to the Penetaguishene Mental Health Centre and to be released in 5-10 years.

and

4. I am not guilty of the charges I plead guilty to. I am only guilty of trespassing and never intended to hurt anybody on May 9, 1997.

[22] The law was well-stated by Doherty J.A. in this court’s decision in R. v. T. (R..) (1992), 1992 CanLII 2834 (ON CA), 17 C.R. (4th) 247 at 252:

To constitute a valid guilty plea, the plea must be voluntary and unequivocal. The plea must also be informed, that is the accused must be aware of the nature of the allegations made against him, the effect of his plea, and the consequences of his plea. [Citations omitted.]

[23] The defence concedes that the pleas were both voluntary and unequivocal. Counsel argues, however, that the pleas were not informed because no one told the appellant that he would not be serving his sentence at Pentanguishene if he pleaded guilty, nor that he would not be released from that facility in five to ten years.

[24] By the time he entered his pleas before the sentencing judge, the appellant had been represented by two experienced defence counsel.

[25] I note that in his affidavit the appellant does not say that he was misinformed about the consequences of pleading guilty in relation to where he would serve his sentence. He says he pleaded guilty “on the assumption” that he would be sentenced to Penetanguishene for five to ten years. Further, and in a similar vein, the following exchange between counsel and the court took place during the hearing of the appellant’s application to withdraw the pleas:

MR. ENGEL: But he’s not saying – Mr. Saddlemire did not say, “I’m pleading guilty and I know that I may spend the rest of my life in Kingston Penetentiary.” If he said that then I can’t make this argument. He anticipated going to Penetanguishene for the five to ten year period and …

THE COURT: I know but that’s only in his own mind.

MR. ENGEL: Granted, granted.

[26] The only reasonable conclusion one can draw from this exchange is that no one ever directly told the appellant or led him to believe he would serve his sentence at Penetanguishene. He simply assumed it.

[27] This conclusion is supported by the evidence of Julie-Ann Barrett, who represented the appellant before his pleas were entered. Ms. Barrett had advised the appellant to plead not guilty and said that she explained to him the consequences of a successful dangerous offender application, including “[t]hat it would mean an indeterminate imprisonment and any release would be determined by another body many years in the future in all likelihood.” Ms. Barrett said that she was sure she would not have used the term “indeterminate” with the appellant but rather was sure that she used the term “for life”, a lay term that he would understand.

[28] She did not recall raising the issue of placement with the appellant, but understood that he was anxious to serve any sentence imposed at Penetanguishene. Although she never told him explicitly that he would not be sent to Penetanguishene if he pleaded guilty, neither did she say anything to encourage him in the belief that he would serve his sentence there. According to Ms. Barrett, at no point did she understand or communicate that a dangerous offender designation would mean incarceration for only five to ten years. She was of the view that the appellant was aware he was looking at a very substantial period of incarceration.

[29] Ms. Barrett was replaced by Geraldine Castle-Trudel as counsel, who acted for the appellant at the time that the pleas were entered.

[30] Ms. Castle-Trudel’s evidence mirrors that of Ms. Barrett in several important respects. The appellant also told Ms. Castle-Trudel that he wanted to go to Penetanguishene, and she agreed to speak to the Crown and arrange a consent suggestion that the court recommend that he have his sixty-day assessment at Penetanguishene. She did not, however, get to a stage in her discussions with the appellant about where he would serve any sentence imposed, nor did the appellant indicate to her that he was pleading guilty so he could get to Penetanguishene. Ms. Castle-Trudel also told the appellant that if he pleaded guilty, the maximum penalty to which he would be liable was an indeterminate sentence, which, she explained, meant he could spend the rest of his life in jail.

[31] In his reasons, the sentencing judge noted that when the pertinent facts were read into the record by the Crown at the time the appellant entered his pleas, the appellant’s only disagreement with those facts concerned a minor detail with respect to the institutions where he had spent his previous time in custody. The sentencing judge observed that at the time he entered his pleas, the appellant was represented by able and competent counsel. He remarked that this was the first time in his experience where an accused wished to withdraw a guilty plea because the location where the sentence would be served was not the one the accused had in mind. The sentencing judge concluded his findings by adopting as his own the words of Doherty J.A. of this court in R. v. T.(R.), supra: “the total record before this court leaves no doubt that the pleas were valid in every relevant sense.”

[32] In my view, the record fully supports the conclusion of the sentencing judge.

[33] At best, the appellant’s understanding that his sentence would be of five to ten years duration and served at Penetanguishene was nothing more than an assumption on his part – an assumption directly contradicted by an overwhelming preponderance of evidence to the contrary.

[34] I would reject this ground of appeal.

(2) Dangerous Offender Designation and Indeterminate Sentence

[35] The predicate offence upon which the dangerous offender application was based was committed in May 1997, only a few months before the proclamation of the 1997 amendments to the Criminal Code that introduced the long term offender designation.

[36] The sentencing judge, at the time of sentencing, did not have the benefit of the Supreme Court of Canada’s decision in R. v. Johnson (2003), 2003 SCC 46, 177 C.C.C. (3d) 97. The Crown concedes that the sentencing judge erred in holding that the appellant should be sentenced under the prior regime without consideration of the long-term offender provisions.

[37] It is also conceded by the Crown that the sentencing judge erred in law when he concluded that after the August 1997 amendments the court no longer had a discretion regarding terms of the sentence to be imposed on a dangerous offender. The sentencing judge erroneously held that under the new regime, once an accused is found to be a dangerous offender, he must be sentenced to an indeterminate term of imprisonment. In Johnson, supra, at para. 20, the Supreme Court made it clear that such an interpretation “would introduce an unnecessary rigidity into the process and overshoot the public protection purpose of the dangerous offender regime.”

[38] However, because the sentencing judge was of the view that the former provisions of the Criminal Code (that is, those in force prior to the August 1997 amendments) applied, he found that he had a discretion whether to impose a determinate or an indeterminate sentence:

The paramount concern in deciding between a determinate and an indeterminate sentence is the protection of the public where, based on the evidence, the court is not confident that the offender will be cured prior to the expiration of an appropriate definite sentence. An indeterminate sentence will be imposed unless the actions of the offender can otherwise be controlled so as to protect the public.

[39] He concluded his reasons as follows:

I am satisfied that the best predictor of future behaviour is past behaviour and there are no significant intervening events in Mr. Saddlemire’s life to negate the above. I must add that there is no evidence of the probability of a cure during the time period of any determinate sentence and consequently for the protection of the public an indeterminate sentence is the only avenue open to this court on the facts and evidence before it.

[40] The sentencing judge perceived that he was left with what the court in Johnson, described at para. 44 as “the stark choice between an indeterminate sentence and a determinate sentence”. He did not consider the additional possibility of a determinate sentence followed by a period of supervision in the community, nor did he specifically turn his mind to the long-term offender provisions.

[41] Here, the Crown argues that had the sentencing judge considered the long-term offender provisions, the sentence would inevitably have been the same based on the record before the court. A similar argument was advanced in Johnson, in response to which the Supreme Court said at para. 50:

Where the error of law consists of the sentencing judge’s failure to consider the availability of the long-term offender provisions, it is only in the rarest of circumstances, if any, that there will be no reasonable possibility that the sentencing judge would have imposed a different sentence but for the error. The criteria set out in the long-term offender provisions are substantially different from the criteria set out in the dangerous offender provisions. Therefore, the evidence and arguments that are relevant under the long-term offender application are not precisely the same as the evidence and argument that are relevant under the dangerous offender application. Absent a thorough inquiry into the suitability of the long-term offender provisions at the sentencing hearing, it will be difficult, if not impossible, for an appellate court to be satisfied that the sentencing options available pursuant to the long-term offender provisions would have been incapable of reducing the threat of harm to an acceptable level.

[42] The only question that remains is whether this case is one of those “rarest of circumstances” contemplated in Johnson, in which there is no reasonable possibility that the sentencing judge would have imposed a different sentence but for his error in failing to consider the long-term offender provisions of the Code. In my view, this case falls within that exceptional category of cases.

[43] The appellant was twice psychiatrically assessed in relation to these charges, first after his arrest in May 1997 by Dr. Arthur L. Keith at Penetanguishene, and then by Dr. R. Ian Hector of the same institution in March 1999 after his pleas were entered and before he was sentenced.

[44] Dr. Keith’s report was part of a binder filed on consent at the sentence hearing, which contained numerous records, including psychiatric and psychological reports, completed while the appellant was incarcerated at various institutions in the province; case overviews in relation to the current charges before the court; copies of the indictments; the appellant’s criminal record; and a case overview and reasons for sentence in relation to the previous assault on P.W. as well as the pre-sentence report prepared in relation to that charge.

[45] All these materials were reviewed by Dr. Hector prior to the completion of his report. In the conclusion to his report, Dr. Hector stated:

Mr. Saddlemire…meets the criteria of psychopathic personality disorder that is the most reliable predictor of recidivism in criminal activity. Mr. Saddlemire also meets the criteria for the diagnosis of paraphilia: sexual sadism, a condition which is not remediable in the present state of scientific knowledge.

These factors taken in the context of the offence history of Mr. Saddlemire lead us to predict a highest level of probability of recidivism in respect to further violent interpersonal aggressive behaviour.

On all of the valid measures for re-offence that are currently available to psychiatry, Mr. Saddlemire meets the highest level of probability of recidivism. It is relevant to note here that Mr. Saddlemire has re-offended while in the secure custody of jail.

In my view, Mr. Saddlemire represents a very serious risk of re-offence and a greater danger to the public safety.

[46] In his oral testimony, Dr. Hector expanded upon and provided the bases for these conclusions. The multi-disciplinary team at Penetanguishene employs a number of assessment instruments to diagnose patients, appraise risk, and devise treatment strategies. Two of those assessments, the Violence Risk Appraisal Guide (“V-RAG”) and the psychopathy check list (“PCL-R”), are performed independent of the patient; scores are calculated on the basis of the information contained in the patient’s clinical file. The V-RAG is considered a reliable predictor of the probability of re-offence and the PCL-R a “very high prognostic indicator of a potential for further violent behaviour”. The Research Department at Penetanguishene also performs phallometric testing to identify the presence of deviant sexual interests.

[47] The appellant’s score on the V-RAG placed him in the highest of nine categories for risk of violent recidivism. The report noted that among mentally disordered offenders previously studied, only approximately one per cent obtained higher scores than that of the appellant. Moreover, one hundred per cent of those in the appellant’s category reoffended violently within an average of ten years after release.

[48] The appellant met the criteria for psychopathy as indicated by the PCL-R. In two series of phallometric tests, the appellant exhibited a very high magnitude of sexual response to scenarios depicting rape and non-sexual violence, as well as those depicting consensual sexual activity. The technician who conducted the test noted in his report that it was unusual for a non-rapist to exhibit the appellant’s pattern of response.

[49] Other tests revealed that the appellant met the criteria for Antisocial Personality Disorder with passive-aggressive traits prominent, and was functioning in the borderline range of intellectual ability (Full Scale I.Q. of 72).

[50] The final diagnosis of the appellant in accordance with the nomenclature of the American Psychiatric Association’s Diagnostic and Statistical Manual, Fourth Edition (DSM IV) was:

Axis I – Psychiatric Clinical Syndrome:

▪ paraphilia with sexual sadism

▪ substance abuse disorder, alcohol

Axis II – Underlying Personality Structure:

▪ anti-social personality disorder

Axis III – Related Medical Condition

▪ none, the appellant is in excellent physical health

Axis IV – Current Stressors

▪ none

Axis V – Overall level of functioning

▪ score of 50; functioning well, especially in contrast to his previous admission.

[51] Dr. Hector explained the importance of the diagnosis on each axis, and of the interaction between them.

[52] Paraphilia, Dr. Hector explained, is a condition in which the individual experiences sexual arousal and satisfaction in relation to an object that is inappropriate, either by virtue of age or in terms of the nature of the object. Sexual sadism is a condition in which the individual experiences sexual arousal and satisfaction through the infliction of pain upon a sexual object, and through the infliction of humiliating or denigrating behaviours in respect of the object.

[53] Dr. Hector’s observations of the appellant confirmed the phallometric assessment findings and the diagnosis of paraphilia, sexual sadism. As Dr. Hector testified:

It was interesting listening to him and watching him respond to direct questions about his sexual fantasy and about his sexual life, and to his pre-occupation longstanding now with images of sexual violence. And he, in my judgment of his behaviour, quite readily acknowledged the inappropriateness of his own emotional response to the presentation and discussion of such imagery. He would beam with obvious delight and then interrupt himself as if recognizing that that was not the appropriate thing to be doing when being examined by a psychiatrist about sexual fantasy and sexual behaviours that might be construed to be ominous and a potential threat to others.

He acknowledged a life long pre-occupation with fantasies of sex and violence, and he acknowledged that he prefers that such imagery in most of his conventional entertainment of reading, television and movies and so forth. He acknowledged familiarity with and the frequent use of pornography involving images that were violent, both sexually violent and not sexually violent. And he acknowledged the presence of both sadistic that is pain inflicting behaviour with sexual arousal, and masochistic, that is the experience of pain as sexually pleasureful and he described male and female bondage. He also described voyeuristic behaviours and he acknowledged the intent to humiliate or denigrate the female object.

[54] The appellant’s diagnosis of substance use disorder increases the likelihood that he will re-offend, as the use of alcohol makes it very difficult for the appellant to control his fantasies and disinhibits him from acting on them.

[55] Axis II describes underlying personality, which is significant because, as Dr. Hector explained, “clinical prognosis in a general sense in psychiatry is very much dependent upon the strength of the underlying personality.” In other words, the underlying personality is an important indicator of outcome. As noted above, the appellant’s Axis II diagnosis was anti-social personality disorder. This, coupled with his high score on the PCL-R, indicates a very high risk for re-offence and a less than satisfactory prognosis in relation to any program of treatment or rehabilitation.

[56] Dr. Hector noted that the diagnosis of anti-social personality disorder was made only because the diagnosis of psychopathic personality was not available under the DSM IV. Dr. Hector characterized a psychopathic personality as one that has certain vulnerabilities resulting in a potential for unpredictable and often violent acting out. Describing persons with psychopathic personalities he remarked:

It’s not that they lack intelligence, it’s not that they lack logic, it’s not that they lack social skills, it’s not that they lack the capacity to speak with perfect logic and reason, but they lack the capacity to conduct themselves with decency and propriety.

[57] Dr. Hector observed that persons with psychopathic personalities often exhibit an “extraordinary absence of any sense of time guiding and directing their behaviour.” He noted that the appellant’s second assault on P.W. was a perfect example. He described the dominant feature of the psychopathic personality as unpredictability with sudden explosions of behaviour, frequently of quite incredible proportion. The psychopathic personality has certain vulnerabilities that lead to this potential for unpredictable and often violent acting out.

[58] Dr. Hector stated that the combination of demonstrated sexual deviance in the presence of psychopathic personality was of particularly great concern. Research undertaken at Penetanguishene indicates that individuals who have sexual deviance as demonstrated by phallometric testing, together with high pscyhopathy scores, will have the highest incidence of recidivism.

[59] The appellant received a score of 50 on Axis V, which reflected his relatively high level of functioning, especially in comparison to his level of functioning during his previous admission. While this would appear to indicate some improvement, Dr. Hector rejected the suggestion that this change had any significance in relation to the appellant’s capacity to be rehabilitated. The appellant was previously admitted in May 1997 for an initial assessment to determine whether he was competent to stand trial and whether a finding of not criminally responsible might be available to him. On that occasion, Dr. Hector and other members of the assessment team concluded that the appellant was consciously exaggerating and feigning symptoms of a major mental disorder, presumably in an attempt to reduce his culpability for the charges that had been laid against him.

[60] In his report, Dr. Hector concluded that the appellant

presents a constellation of personality (anti-social personality disorder, PCL-R score meeting the criteria for psychopathy), psychological (rehearsal in fantasy),[^2] clinical (paraphilia – sexual sadism and substance use disorder) and social factors…which are known to link to serious interpersonal violence, especially towards women.

[61] Finally, Dr. Hector reviewed the social factors that were present in the appellant’s family personal history and determined that on all the valid measures of potential for re-offence that are currently available to psychiatry, the appellant meets the highest level of probability of recidivism.

[62] At the time that Dr. Hector gave his testimony, the appellant had already fulfilled the experts’ prediction that he would re-offend. While in secure custody awaiting trial on these charges he committed a series of other offences for which he was sentenced to eighteen months in custody.

[63] Dr. Hector had reviewed the warrant expiry release report prepared at Kingston Penitentiary immediately before the appellant’s release from custody in April 1997. That document indicated that the appellant’s score on an actuarial predictor of general recidivism (likelihood of committing any indictable offence) was moderately high at sixty per cent, while his score on the Statistical Prediction of Violent Recidivism by sex

offenders was much higher, and suggested that his risk for violent re-offending was one hundred per cent over a seven-year period. As we know, the appellant proved the validity of that assessment eleven days after his release.

[64] The appellant participated in two programs for sexual offenders, one at the Regional Treatment Centre at the Kingston Penitentiary and another at the Warkworth Institution, but was removed from both because he demonstrated inappropriate sexual behaviour and program administrators were concerned that he posed a risk to female staff. The appellant persisted in threatening and sexually inappropriate behaviour despite being treated with both sex hormone suppression and anti-depressant (Paroxetine) therapies.

[65] Importantly, Dr. Hector was asked how optimistic he was that the appellant would substantially benefit from any treatment, and responded:

I’m not optimistic at all – I’m afraid to say, I’m sorry to say Mr. Saddlemire has three discrete conditions for which medicine has, psychiatry has at this moment of history, no effective treatment. The paraphilic disorder, sexual sadism is a very serious disorder which obviously can lead to very serious physical violence, including murder of women or of the sexual object because it doesn’t necessarily involve women as the object. There is no effective treatment available for it.

[66] Dr. Hector explained that a great number of treatments have been tried for those diagnosed with paraphilic disorder, sexual sadism, including various kinds of psychosocial interventions, as well as the use of sex hormone therapy to suppress libido. Outcome research suggests sex hormone therapy is much less effective than had been hoped. One of the reasons for its ineffectiveness is that it is, in fact, exceedingly effective. This seeming paradox is explained: individuals who receive sex hormone therapy report that it suppresses their sexual fantasies and libido, but find they cannot tolerate life without sexual fantasy and activity and discontinue treatment.

[67] Similarly, the anti-social personality disorder is not amenable to treatment. Many treatment modalities have been tried over the years, but without success. Research at Penetanguishene and elsewhere has repeatedly indicated that treatment actually makes many individuals worse.

[68] The likelihood that the appellant’s substance use disorder could be treated effectively, given his lack of treatment commitment, is quite low. Spontaneous remission rates for alcoholism in the community are two per cent; the best treatment clinics in the world report remission rates of four percent. The rare individuals who are successful are those who are personally committed to treatment.

[69] Overall, Dr. Hector concluded:

So if one pools the three things that afflict Mr. Saddlemire, in addition to a basic inadequacy of resources, he isn’t very bright, he hasn’t got any useful occupational skills, he doesn’t have a lot of social support in terms of his community. I think the family, as I understand it, have really gone a long way in an effort to provide him some support but I think they’ve been exhausted by the burden. If you take the large view of it all, Mr. Saddlemire has four seriously limiting factors in terms of his prognosis. And I think the potential for rehabilitation, in any meaningful sense, is very poor indeed. I think that he will continue to act out, that he will continue to represent a very serious risk to adult females, particularly vulnerable females. I think that he will continue to exhibit anti-social behaviours of a variety of kinds as he has done over the years. I think that he will continue to exhibit sexually deviant behaviours, in addition to the serious assault, the things that he does acknowledge like voyeurism, frotterism and other behaviours that are less intrusive, less threatening, less dangerous but nonetheless unacceptable socially. I think that his capacity to gain from any treatment even as it’s available at the moment is quite limited because he hasn’t the capacity to commit himself over time to the effort that’s necessary if you’re going to succeed in psychosocial rehabilitation.

[70] In relation to repetitive behaviour, he testified as follows:

Well, I see Mr. Saddlemire has actually demonstrated very well any concerns about that. Mr. Saddlemire within a very short period of time begins to drink and re-offends or at least presents himself in a situation where he could well have acted out and it seems clear from his own description that he had that intention. That particular event for me is compelling evidence that he has the capacity to re-offend and in a repetitive fashion. I think the persistence of the sexually inappropriate behaviours that – that extends through the whole of his period in custody contributed to that also.

So long as we have evidence of his history, he’s been using alcohol since a very young age, he’s been exhibiting significant anti-social behaviours through his adolescence, he’s exhibited sexually deviant behaviour which appears supported by the instruments that we have, and he has two conditions which I believe drives the behaviour, and all of that I think suggests that he has a high potential to repeat the behaviours that we’ve already seen.

[71] Dr. Hector was also questioned about escalating behaviour. After referring to the published literature describing the evolution of sexually sadistic behaviour with fantasies gradually evolving both in their range and seriousness, he had this to say about the appellant:

I think we have good evidence of that with Mr. Saddlemire. I mean I see no reason to disbelieve what he was so strenuously cautioned about saying when he was being initially interrogated that he was – had an intent to kill somebody. I think Mr. Saddlemire could, in a state of intoxication and sexual arousal, act out in a very dangerous fashion.

So Mr. Saddlemire has demonstrated an escalation in both the range and quality of the behaviours towards more intrusive, more threatening and more dangerous behaviours. And I think the potential for further escalation is a significant risk.

[72] Dr. Hector’s evidence was not shaken or changed in any way on cross-examination. He confirmed his opinion that the appellant has serious problems that are not amenable to treatment, and that any effort to treat him may in fact make him worse.

[73] The following exchange between defence counsel and Dr. Hector is significant in respect of the issue facing this court:

Q. So are you saying then, “Just leave him, don’t even try to fix Mr. Saddlemire because we could have a more dangerous, a worst product afterwards? Is that what you’re telling the court?

A. No. No. I certainly wouldn’t like to be thought of as saying that. I’m talking about the current state of scientific knowledge. I think there’s an enormous amount of work to be done in respect to discovering the etiology of these conditions and if we can ever come to understand what actually causes them, we might then be in a position of applying some remedial treatment.

I want to maintain an attitude of hope. I certainly want to continue research into the subject and like everyone, we hope ultimately to provide some treatment but I’m saying at this moment in scientific knowledge, I don’t believe there is a demonstrated effective treatment for those conditions.

[74] When asked if the appellant was somebody that Penetanguishene could work with today, Dr. Hector responded:

No, no, he’s not. And I express that opinion on the basis of my – my opinion which is – which incorporates all of the assessments done by all of the members of the multi-discipline team.

I would have considerable reservations about accepting him into a treatment program because of the nature of the three conditions that I referred to. I would have considerable reservations about doing that, but I probably would. I mean we do make the effort of treating individuals who, on general grounds, one might consider to be treatment resistant or – inaccessible to treatment. But on the basis of all the information, I don’t think that we have anything to offer Mr. Saddlemire.

[75] Dr. Hector was also questioned in relation to the application of “the burn-out theory” to the appellant. It was suggested that as individuals like the appellant age, their urges to engage in sexually deviant and anti-social behaviour tend to decrease, to which Dr. Hector responded, “there’s a widespread mythology about that”. He elaborated:

First of all with respect to sexual behaviour and secondly with respect to anti-social behaviour. I mean it’s a commonly held belief that people with anti-social personalities tend to diminish in the frequency and seriousness of the antisocial behaviour in their forties or fifties. There’s no doubt that there is a decline in sexual productivity, libido, whatever, with advancing age but it most certainly does not disappear. And sexually deviant behaviour most certainly does not disappear with advancing age. I have seen individuals commit sadistic crime with homicide at advanced age so the impulse to act out in these fashions does not decline or disappear with age.

[T]he rather simple view that as one gets more mature or less aggressive or less dangerous ipso facto by virtue of age is not supported.

[76] Dr. Hector was also queried about the appellant’s “Ghost Rider” or “Rider” persona and what, if any, significance it had. The appellant had referred to himself by those names while he was under assessment, and when he made threatening telephone calls. Dr. Hector did not consider the appellant to be suffering from multiple personality disorder. The only significance he ascribed to the appellant’s “Ghost Rider” persona was that it provided the appellant with an easy way to avoid accepting personal responsibility for his own behaviour by pawning it off on another identity.

[77] When asked if he had had any success in treating people like Mr. Saddlemire, Dr. Hector replied:

No, I’m sorry to say I have not. I’ve had the rather discouraging task of representing men at review boards annually and making statements like I’ve made today about those individuals.

[78] He was also asked whether he could be confident that the appellant would be able to follow probationary conditions that might afford some assurance of public safety. He responded:

No. I’m afraid my answer to that question has to be, no, and a categorical, no. The reason for that is the underlying personality disorder psychopathy…[T]hat disorder is a serious handicap because what it does…is limit the individual’s capacity to contain their behaviour. Impassivity, unpredictability, need for stimulation is the dominant characteristic of that particular disorder. And the individual can make the most compelling presentation of themselves in the sense of committing themselves to follow through with some program of treatment and in an instant be behaving differently. And I think we – that that was described in the records from the Regional Treatment Centre.

[79] Dr. Hector’s view is that the appellant acts impulsively and unpredictably. He has an anti-social personality disorder and suffers from sexual sadism, as well as a substance abuse condition. Under the present state of scientific knowledge, the appellant is both unpredictable and untreatable and there is nothing that could be done that could reasonably be expected to successfully rehabilitate him. The appellant requires protective custody until such time as there is available the knowledge and capacity to treat one or more of the conditions that lead to his present situation.

[80] There was no expert psychiatric evidence called by the defence to contradict or even respond to Dr. Hector’s views. Following the sentencing judge’s ruling on May 5, 1999 dismissing the appellant’s motion to withdraw his guilty pleas, the matter was adjourned to June 28, 1999 for hearing of the dangerous offender application. There was ample time to speak with or retain a psychiatric expert or experts if the defence was of a mind to do so. Moreover, there is no fresh evidence application before this court to suggest that psychiatric evidence helpful to the appellant’s position was or might be available. I am left to conclude on reasonable inference that such evidence does not exist. The opinion of Dr. Hector is one that would be shared by other psychiatrists.

[81] It is settled that the primary purpose of the dangerous offender regime is the protection of the public. As the Supreme Court of Canada noted in Johnson, supra, quoting Chief Justice Dickson in Hatchwell v. The Queen, 1974 CanLII 203 (SCC), [1976] 1 S.C.R. 39 at 43:

[29] [T]he dominant purpose of preventive detention is “to protect the public when the past conduct of the criminal demonstrates a propensity for crimes of violence against the person, and there is a real and present danger to life or limb”. Absent such a danger, there is no basis on which to sentence an offender otherwise than in accordance with the ordinary principles of sentencing. The principles of sentencing thus dictate that a judge ought to impose an indeterminate sentence only in those instances in which there does not exist less restrictive means by which to protect the public adequately from the threat of harm, i.e., where a definite sentence or long-term offender designation are insufficient. The essential question to be determined, then, is whether the sentencing sanctions available pursuant to the long-term offender provisions are sufficient to reduce this threat to an acceptable level, despite the fact that the statutory criteria in s. 753(1) have been met.

[82] While the sentencing judge did not inquire into the suitability of the long-term offender provisions at the time of sentencing, on the particular facts of this case I am of the view that it would have made no difference to his disposition if he had. It is clear from Dr. Hector’s uncontradicted evidence that, given his particular constellation of anti-social personality disorder, sexual sadism, psychopathy and substance abuse disorder, the appellant is untreatable; he would be unable to follow any probationary terms that might be imposed; and he would almost certainly violently re-offend.

[83] The community can be protected only if the appellant is kept in secure custody. Nothing short of that will contain the appellant and safeguard the public’s security.

[84] I can only conclude on the record that Mr. Saddlemire’s case falls within the category of rare and exceptional cases contemplated by the Supreme Court of Canada in Johnson, supra: there is no reasonable possibility that the sentence imposed would have been any different had the long-term offender provisions been considered.

[85] In these circumstances, it is appropriate to apply the curative proviso. The appellant has suffered no prejudice and the result would necessarily have been the same had the sentencing judge’s error not occurred.

[86] This case can be distinguished from R. v. Rathwell, [2005] O.J. No. 2443 (C.A.), in which the findings of the trial judge did not exclude a reasonable possibility that treatment of the appellant could be effective under a long-term offender designation. Here the trial judge concluded that a determinate sentence was not appropriate and the record clearly discloses that there is no possible treatment available for the appellant and no reasonable possibility of eventual control at some fixed future date. In this case, unlike Johnson, supra, and R. v. Ferguson, [2005] O.J. No. 3387 (C.A.), the evidentiary record does provide an adequate basis to support the finding of dangerous offender and the imposition of an indeterminate sentence. Contrary to the appellant’s submission, Dr. Hector was specifically asked about a determinate sentence and the subsequent imposition of probationary terms and rejected that possibility as quite unworkable for the appellant. Similarly this case is not like this court’s decision in R. v. Robinson (2006), 2006 CanLII 33189 (ON CA), 212 C.C.C. (3d) 439 where the psychiatric opinions on dangerousness and treatability were infected by consideration of inadmissible evidence.

[87] For all these reasons, I would dismiss the appeal.

RELEASED: January 23, 2007 “EAC”

“J. MacFarland J.A.”

“I agree E. A. Cronk J.A.”

“I agree S. E. Lang J.A.”

[^1]: The dangerous offender application was available only with respect to the offence of break and enter with intent to commit the indictable offence of murder.

[^2]: Extensive research at Penetanguishene and elsewhere demonstrates that the presence of rehearsal in fantasy is a prelude to sexual acting out. In Dr. Hector’s view, the appellant does consider and has persistent and ongoing fantasies that eventually drive his behaviour.