Her Majesty the Queen v. Allen [Indexed as: R. v. Allen]
86 O.R. (3d) 376
Court of Appeal for Ontario,
Laskin, Simmons and LaForme JJ.A.
June 7, 2007
Criminal law -- Dangerous offenders -- Accused convicted of sexually assaulting two 14-year-old boys -- Trial judge designating accused dangerous offender -- Accused arguing should have been designated long-term offender as offences less serious than most dangerous offenders and arguing could be managed in community if receiving sex drive reducing drugs and strictly supervised -- Psychiatrist testifying that accused fitting with long-term offender regime as "some hope" of managing accused if taking chemically castrating drugs and accused under very high level of supervision akin to having parole officer as personal chaperone -- Trial judge did not err in holding that satisfied criteria for dangerous offender designation met -- Sexual offences against minors are serious -- Expert applying wrong legal test when stating that accused finding long-term offender regime if "some hope" could be controlled in community as opposed to statutory test of "reasonable possibility" of eventual control -- Accused not indicating willingness to take drugs and his response to them unknown -- Self-reporting not possible as accused manipulative and deceitful -- Not shown high level of supervision recommended by psychiatrist available -- Accused's appeal from designation offender dismissed.
The 50-year-old accused, who suffered from homosexual hebephelia, pleaded guilty to sexually assaulting two 14-year- old boys; threatening to burn the property of the father of one of the boys; carrying a weapon, a pellet gun for a dangerous purpose; indecent assault and gross indecency on two other boys. The Crown brought a dangerous offender application. The trial judge rejected designation of the accused as a long- term offender because he was not satisfied there was a reasonable possibility that the accused's risk of re-offending could eventually be controlled in the community. The dangerous offender application was granted and an indeterminate sentence was imposed. The accused appealed.
Held, the appeal should be dismissed. [page377]
The trial judge did not overstate the seriousness of the accused's criminal conduct and his danger to the public. While the predicate offences giving rise to the Crown's application might be relatively minor compared to the conduct in question in many other dangerous offender applications, sexual offences in any form against minors are serious. The accused manipulated two 14-year-old boys into thinking that in order to be saved when the world ended at the turn of the century, they had to strip to their underwear and lie in bed with the accused, who was also wearing only his underwear. That was an intrusive sexual assault. The accused had shown no remorse and no understanding of the seriousness of his conduct.
The trial judge did not misapprehend the evidence on whether the accused could be treated and whether his risk could be managed in the community. A psychiatrist who testified for the Crown on the application assessed the accused as being at a high risk to re-offend, and testified that chemical castration would likely work. However, there was no evidence whether the accused would be able to tolerate the drugs or how he would respond to them. Further, a person receiving sex drive reducing medication must assist the psychiatrist in determining the proper dose of the drug, but as the accused is manipulative and deceitful, his self-reporting would be unreliable. Finally, the trial judge found that the accused was unwilling to take the drugs. Community supervision of the type required by the accused, essentially a parole officer as his personal chaperone, would be exceptionally difficult and there was no evidence that it would be available. While the psychiatrist's ultimate opinion was that the accused was a "better fit" as a long-term offender as there was "some hope that something can be done" to manage him in the community, the psychiatrist misapprehended the statutory test. The test is not some vague hope of managing the risk in the community, but a reasonable possibility of doing so. The trial judge made no error in his assessment of whether the accused could be treated or whether his risk could presently be managed in the community.
APPEAL from the dangerous offender designation imposed by Morten J. of the Ontario Court of Justice, on April 9, 2002.
Cases referred to R. v. Currie, 1997 347 (SCC), [1997] 2 S.C.R. 260, [1997] S.C.J. No. 10, 146 D.L.R. (4th) 688, 211 N.R. 321, 115 C.C.C. (3d) 205, 7 C.R. (5th) 74; R. v. Grayer, [2007] O.J. No. 123, 219 O.A.C. 114, 215 C.C.C. (3d) 505, 2007 ONCA 13 (C.A.); R. v. Johnson, [2003] 2 S.C.R. 357, [2003] S.C.J. No. 45, 230 D.L.R. (4th) 296, 308 N.R. 333, [2004] 2 W.W.R. 393, 177 C.C.C. (3d) 97, 2003 SCC 46, 19 B.C.L.R. (4th) 243, 13 C.R. (6th) 205 Statutes referred to Criminal Code, R.S.C. 1985, c. C-46, ss. 752 [as am.], 753 [as am.], 753.1 [as am.]
Mara Greene, for appellant. Christine Tier, for respondent.
The judgment of the court was delivered by
LASKIN J.A.: --
A. Overview
[1] This is a sentence appeal. After a lengthy hearing, Morten J. declared the appellant, Rodney Allen, a dangerous offender. [page378] That declaration means that Mr. Allen must serve an indeterminate sentence of imprisonment. The question we must resolve is whether to change the sentence imposed by the trial judge and declare Mr. Allen a long-term offender. That declaration means that Mr. Allen would serve a fixed sentence of imprisonment followed by release into the community under a supervision order.
[2] Mr. Allen, who is now 50 years old, suffers from homosexual hebephilia. He is attracted to boys entering puberty. His disorder manifests itself by his seeking out, often by deceit, boys aged 11 to 14, so that he can be near them.
[3] In March 2001, Mr. Allen pleaded guilty to six offences: two sexual assaults, each on a 14-year-old boy; threatening to burn the property of the father of one of the boys; carrying a pellet gun for a dangerous purpose; indecent assault and gross indecency on two other boys. The first four offences took place in the summer of 1999; the latter two offences took place in 1983.
[4] The Crown then brought a dangerous offender application on the basis that Mr. Allen had committed a sexual assault, and that by his conduct he had shown a failure to control his sexual impulses and a likelihood of committing future injury or pain to other persons. The trial judge granted the application. He rejected designating Mr. Allen a long-term offender because he was not satisfied there was a reasonable possibility that Mr. Allen's risk of re-offending could eventually be controlled in the community. The trial judge found that Mr. Allen could not be effectively treated and could not be effectively managed in the community.
[5] Mr. Allen acknowledges that he meets the statutory criteria under the Criminal Code, R.S.C. 1985, c. C-46, for a dangerous offender declaration. He contends, however, that the trial judge erred by failing to exercise his discretion to designate him a long-term offender. He makes two main submissions in support of his contention. First, he submits that the trial judge overstated the seriousness of his criminal conduct and, therefore, his danger to the public. Second, he submits that the trial judge misapprehended the evidence on whether he could be treated and whether his risk of re- offending could be managed in the community.
B. Mr. Allen and His Criminal Conduct
[6] Mr. Allen was 45 years old at the time he was sentenced. He has a minor and unrelated adult criminal record. Growing up, he had difficulties at home and at school. Up until age five, he suffered from epileptic seizures. Psychological reports produced [page379] when he was a young boy suggest that these seizures caused brain damage. According to I.Q. testing conducted at the Centre for Addiction and Mental Health following his guilty plea, Mr. Allen's intellectual capacity is borderline, rated at 75-80.
[7] At age 14, Mr. Allen briefly went to Bowmanville Training School. After his release, he lived with his mother, to whom he claimed to be close, until her death in 1998. During that time, he achieved a grade eight education.
[8] At the time of his guilty plea, Mr. Allen owned his own bus company. He drove navy cadets and private school children to and from a variety of school and recreational activities.
[9] Mr. Allen's criminal conduct consists largely of what counsel characterized as "proximity seeking behaviour". He typically has engaged in manipulation and deceit to be close to pubescent boys, but he has rarely "acted out".
[10] The two 1983 offences to which he pleaded guilty -- indecent assault and gross indecency -- occurred when Mr. Allen made two young boys, who worked for him in a video arcade, strip and stand naked to earn his trust.
[11] The 1999 offences occurred in the summer of that year when Mr. Allen met and became friendly with a group of five 14- year-old boys. These boys often came to Mr. Allen's apartment because he let them drink alcohol and smoke. Mr. Allen told the boys that he was a member of the FBI, that the world was going to end in 2000, but that they could be saved by lying down with him while naked. At separate times, the boys took off their clothes except for their underwear and lay down with Mr. Allen, who had also stripped down to his underwear. The friendship ended with some horseplay during which Mr. Allen pointed a pellet gun at one of the boys and fired it. He was arrested and incarcerated. While in jail, he telephoned the home where one of the boys lived and told the boy's father (who had answered the phone)"I'm going to burn your house down".
[12] On the dangerous offender application, the Crown led other evidence to show that Mr. Allen sought out pubescent boys. In one case, he induced a 14-year-old boy -- who was interested in an acting or modeling career -- to come to Toronto from Rochester on the pretext that he was an agent for young boys and worked for a company called "American Entertainment". The Crown also led evidence that Mr. Allen possessed child pornography: pictures on his computer of pubescent boys in their underwear, clothes or bathing suits, of nude males in their teens, and of boys engaged in sexual acts with adult males. [page380]
C. Dangerous Offender and Long-Term Offender Designations
[13] Under s. 753(1)(b) of the Criminal Code, a person may be declared a dangerous offender if that person is unable to control his or her sexual impulses and, as a result, will likely cause injury or harm to other persons:
753(1) The court may, on application made under this Part following the filing of an assessment report under subsection 752.1(2), find the offender to be a dangerous offender if it is satisfied
(b) that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (b) of the definition of that expression in section 752 and the offender, by his or her conduct in any sexual matter including that involved in the commission of the offence for which he or she has been convicted, has shown a failure to control his or her sexual impulses and a likelihood of causing injury, pain or other evil to other persons through failure in the future to control his or her sexual impulses.
[14] Section 752 of the Criminal Code defines "serious personal injury offence" to include a sexual assault. Mr. Allen acknowledges that he meets the criteria in s. 753(1)(b) to be declared a dangerous offender.
[15] A dangerous offender declaration is perhaps the most serious punishment in the Criminal Code. It is aimed at the prevention of future harm and the protection of the public. Even where, however, the statutory criteria for a dangerous offender declaration have been met, a sentencing judge has discretion to declare a person a long-term offender and impose a term of imprisonment of two years or more followed by a community supervision order of up to ten years. The sentencing judge may exercise this discretion if satisfied that imprisonment and community supervision would reduce the threat to the life, safety or well being of other persons to an acceptable level. See R. v. Johnson, 2003 SCC 46, [2003] 2 S.C.R. 357, [2003] S.C.J. No. 45, 177 C.C.C. (3d) 97. Section 753(5) gives the court this discretion:
753(5) If the court does not find an offender to be a dangerous offender,
(a) the court may treat the application as an application to find the offender to be a long-term offender, section 753.1 applies to the application and the court may either find that the offender is a long-term offender or hold another hearing for that purpose; or
(b) the court may impose sentence for the offence for which the offender has been convicted. [page381]
[16] Section 753.1(1) sets out the criteria for a long-term offender declaration:
753.1(1) The court may, on application made under this Part following the filing of an assessment report under subsection 752.1(2), find an offender to be a long-term offender if it is satisfied that
(a) it would be appropriate to impose a sentence of imprisonment of two years or more for the offence for which the offender has been convicted;
(b) there is a substantial risk that the offender will re-offend; and
(c) there is a reasonable possibility of eventual control of the risk in the community.
[17] As in most of these kinds of appeals, the principal issue in this case is whether the trial judge erred in holding that there is no reasonable possibility of eventual control of Mr. Allen's risk in the community. In other words, the critical issue turns on the trial judge's finding that Mr. Allen's risk of re-offending cannot be managed in the community.
D. Analysis
(1) Did the trial judge err in overstating the seriousness of Mr. Allen's criminal conduct?
[18] Mr. Allen concedes that although his sexual assaults arguably lie at the lower end of the scale of seriousness, they nonetheless may give rise to a dangerous offender declaration. He must make this concession because, as the Supreme Court of Canada said in R. v. Currie, 1997 347 (SCC), [1997] 2 S.C.R. 260, [1997] S.C.J. No. 10, 115 C.C.C. (3d) 205, once an offender has committed a serious personal injury offence as defined -- as Mr. Allen has -- the dangerous offender application is triggered without regard to the objective seriousness of the underlying offence.
[19] Where the relative seriousness of the offender's criminal conduct may matter is in evaluating the offender's future danger to the public. Here, Mr. Allen argues that the trial judge overstated the seriousness of his conduct. He makes two points. He argues that his conduct was mainly "proximity seeking" -- seeking the friendship of young boys -- and only rarely has he actually committed sexual offences against children. And, he also argues that the trial judge exaggerated the seriousness of his conduct by misapprehending three aspects of the evidence: the trial judge found Mr. Allen's conduct was serious because he groomed young boys for sexual abuse, he used weapons to control young people when he did not get his way, and he encouraged homosexual behaviour between adults [page382] and children. Mr. Allen contends that these three finding are not supported by the evidence.
[20] I do not propose to examine these alleged misapprehensions of the evidence, because even if made out they are peripheral to the disposition of this case. Even if I were to accept Mr. Allen's point, this would not materially lessen the seriousness of his conduct. The underlying or predicate offences giving rise to the Crown's application may be relatively minor compared to the conduct in question in many other dangerous offender applications. But, sexual offences in any form against minors are serious.
[21] Mr. Allen manipulated 14-year-old boys into thinking that in order to be saved when the world ended at the turn of the century, they had to strip to their underwear and lie in bed with a 42-year-old man also wearing only his underwear. This is an intrusive sexual assault. And, it is the kind of sexual assault that we in society cannot tolerate. Mr. Allen has shown no remorse for his conduct and no understanding of its seriousness. Moreover, even if society could accept some risk of this kind of offending conduct, we would have to have some assurance that this risk could be managed. To this issue, the key issue on the appeal, I now turn.
(2) Did the trial judge misapprehend the evidence on whether Mr. Allen could be treated and whether his risk can be managed in the community?
[22] The trial judge found as facts that the risk Mr. Allen would commit more sexual offences against 11- to 14-year-old boys was very high and that there was no reasonable possibility of addressing that risk in the community. Mr. Allen accepts that he is at a high risk to re-offend, but submits that he can be treated for his disorder by chemical castration drugs and that his risk can then be appropriately managed in the community by tight supervision.
[23] I do not accept this submission. The trial judge's findings are supported by the evidence, especially the evidence of Dr. Klassen, a psychiatrist with the Centre for Addiction and Mental Health, whom the Crown called in support of its application. Dr. Klassen assessed Mr. Allen's risk of re- offending if released in the community, and his amenability to treatment and community supervision. He testified:
-- Mr. Allen was at a high risk to re-offend.
-- Chemical castration drugs to inhibit Mr. Allen's sex drive would likely work, but Mr. Allen had shown no willingness to take these drugs. [page383]
-- If released into the community Mr. Allen would require supervision so strict as to amount to needing a personal chaperone.
I will briefly elaborate on these three opinions.
(a) High risk to re-offend
[24] Dr. Klassen performed an actuarial risk assessment of Mr. Allen. He relied on three different tests. On the basis of these test results, Dr. Klassen was of the opinion that Mr. Allen had a high risk of re-offending. On one of the tests, the Psychopathy Checklist-Revised, Mr. Allen scored 29. According to Dr. Klassen, this score was "suggestive of significant treatment resistance, significant difficulties with community supervision, and [was] suggestive of substantial risk of reoffence in and of itself".
(b) Not amenable to treatment
[25] Dr. Klassen testified that those suffering from hebephilia can be treated. Chemical castration drugs reduce the person's sex drive and thus the impetus to act out. There was, however, no evidence about whether Mr. Allen would be able to tolerate these drugs or how he would respond to them. During the two years of the proceedings against him, he made no effort to try the drugs or be screened for them by an endocrinologist.
[26] The trial judge's real concern, however, was not about whether a particular drug would work on Mr. Allen, but about Mr. Allen's unwillingness to take the drugs. Dr. Klassen canvassed this question with Mr. Allen. He concluded that Mr. Allen's willingness to take the drugs was "virtually nil". Indeed, Mr. Allen said to Dr. Klassen"I don't care, you do damage to me and I sue you".
[27] On the application Mr. Allen's counsel informed the court that his client was willing to take the drugs. Mr. Allen then undermined his counsel's position by accusing the Crown attorney of conspiring with other witnesses to put him in the position he was in.
[28] In the light of Mr. Allen's complete rejection of treatment, I do not think that it is an answer to say -- as his counsel submitted -- that this court should recommend that the National Parole Board require he take drug treatment as a condition of his release. Although the trial judge did not expressly address the possibility of a recommendation to the Board, his reasons show that such a recommendation would not be effective. This court made the same point in R. v. Grayer, 2007 ONCA 13, [2007] O.J. No. 123, 215 C.C.C. (3d) 505 (C.A.), at para. 64: [page384]
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.
Because of Mr. Allen's evident unwillingness to co-operate in taking sex-inhibiting drugs, a similar recommendation in this case would be futile.
(c) Risk cannot be managed in the community
[29] In dealing with whether Mr. Allen's risk could be managed in the community, Dr. Klassen made three important observations: Mr. Allen was willing to work on the "margins of conventional society" by, for example, seeking out street children; Mr. Allen worked as a long distance bus driver; and, Mr. Allen is manipulative and deceitful, making any form of self-reporting meaningless. These considerations demonstrate that community supervision of Mr. Allen would be exceptionally difficult. Electronic monitoring is not an option because it has no tracking capability. Dr. Klassen testified that in addition to taking the drugs, Mr. Allen needed a probation officer who would be able to act as a chaperone. There was no evidence that this level of supervision was even reasonably possible.
[30] Mr. Allen draws some comfort from Dr. Klassen's ultimate opinion: that he was a "better fit" as a long-term offender. There are two answers to this. First, the trial judge was not required to accept Dr. Klassen's ultimate opinion. Second, and more important, Dr. Klassen's opinion misapprehended the statutory test. He explained why he thought the best fit for Mr. Allen was as a long-term offender in these words:
To try to put it succinctly, I -- I have real trouble with exactly how to define that phrase, reasonable possibility of eventual control of the risk in the community. I -- I think it -- what it sort of suggests to me is that there's some hope that something can be done to manage this individual in the community, and I -- I think interpreted broadly, yes, I -- I think that Mr. Allen and what we know about Mr. Allen would fit with that.
(Emphasis added)
[31] The test of course is not some vague hope of managing the risk in the community but a reasonable possibility of doing so. [page385] That the trial judge was alive to the difference is evident from this passage in his reasons: "If there was any treatment possibility or something had been placed before this court beyond 'hope' it might have given the court another alternative."
[32] The record does seem to show that Mr. Allen suffers from mental deficiencies, which may reduce the level of his moral blameworthiness. Nonetheless, the trial judge made no error in his assessment of whether Mr. Allen could be treated or whether his risk could presently be managed in the community.
E. Conclusion
[33] The trial judge's findings of fact are supported by the record. He did not materially err in his appreciation of the evidence. I would uphold his conclusion that Mr. Allen be declared a dangerous offender.
[34] Accordingly, I would dismiss the appeal.
Appeal dismissed.