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. 486.5(1), (2), (3), (4), (5), (6), (7), (8) or (9) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:
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a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of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or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of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.
(3) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice if it is not the purpose of the disclosure to make the information known in the community.
(4) An applicant for an order shall
(a) apply in writing to the presiding judge or justice or, if the judge or justice has not been determined, to a judge of a superior court of criminal jurisdiction in the judicial district where the proceedings will take place; and
(b) provide notice of the application to the prosecutor, the accused and any other person affected by the order that the judge or justice specifies.
(5) An applicant for an order shall set out the grounds on which the applicant relies to establish that the order is necessary for the proper administration of justice.
(6) The judge or justice may hold a hearing to determine whether an order should be made, and the hearing may be in private.
(7) In determining whether to make an order, the judge or justice shall consider
(a) the right to a fair and public hearing;
(b) whether there is a real and substantial risk that the victim, witness or justice system participant would suffer significant harm if their identity were disclosed;
(c) whether the victim, witness or justice system participant needs the order for their security or to protect them from intimidation or retaliation;
(d) society’s interest in encouraging the reporting of offences and the participation of victims, witnesses and justice system participants in the criminal justice process;
(e) whether effective alternatives are available to protect the identity of the victim, witness or justice system participant;
(f) the salutary and deleterious effects of the proposed order;
(g) the impact of the proposed order on the freedom of expression of those affected by it; and
(h) any other factor that the judge or justice considers relevant.
(8) An order may be subject to any conditions that the judge or justice thinks fit.
(9) Unless the judge or justice refuses to make an order, no person shall publish in any document or broadcast or transmit in any way
(a) the contents of an application;
(b) any evidence taken, information given or submissions made at a hearing under subsection (6); or
(c) any other information that could identify the person to whom the application relates as a victim, witness or justice system participant in the proceedings. 2005, c. 32, s. 15.
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. 205, c. 32, s. 15.
CITATION: R. v. W.E.J.M., 2009 ONCA 844
DATE: 20091130
DOCKET: C48070
COURT OF APPEAL FOR ONTARIO
Laskin, Feldman and LaForme JJ.A.
BETWEEN:
Her Majesty the Queen
Appellant
And
W.E.J.M.
Respondent
Jamie Klukach, for the appellant
Paula Rochman, for the respondent
Jonathan Rudin and Mandy Eason for the intervener, Aboriginal Legal Services of Toronto
Heard: May 19, 2009
On appeal from the sentence of Justice Frances P. Kiteley of the Superior Court of Justice dated November 6, 2007.
Feldman J.A.:
[1] Following his pleas of guilty and subsequent convictions on two counts of aggravated sexual assault and two counts of choking to enable the commission of aggravated sexual assault, a 16-day sentencing hearing was held to determine whether the respondent should be declared either a dangerous or a long-term offender. The trial judge declared the respondent to be a long-term offender and imposed a determinate sentence of 14 years and 8 months together with 10 years supervision in the community. The Crown appeals the sentence, and asks this court to find that the respondent is a dangerous offender, or order a new hearing.
FACTS
[2] The respondent had a serious criminal record for four sexually-motivated offences prior to his guilty pleas on the predicate offences for which he was sentenced as a long-term offender.
[3] When he was 19 years old, he pled guilty to sexual assault on his seven year old female cousin. He had inserted his finger into her vagina and forced her to perform oral sex on him. At the same time he pled guilty to aggravated sexual assault on his 31 year-old female cousin. He raped her, having made a bet with another man that he could have sex with her. As she refused sex with him, he punched her in the head and face, broke a beer bottle on her face and held a kitchen knife to her throat, threatening to kill her if she did not pull down her pants. The pre-sentence report for the aggravated sexual assault conviction showed that the respondent had indicated that he derived “excitement and gratification in degrading and terrorizing his victims.” He was sentenced to a total of eight years for the two offences.
[4] While in custody for these two offences, the respondent committed two assaults on female staff members. In 1998, while incarcerated in the Saskatoon Regional Psychiatric Centre, he tried to push a female staff member back into the washroom as she was leaving it. He pled guilty to assault and admitted that he had intended to have sex with her. He received a sentence of six months consecutive to the time he was serving already. In 2002, in the Kingston Regional Treatment Centre, the respondent again grabbed a female corrections officer and forced her into a washroom, telling her to shut up. When she screamed for help, he released her and ran. He pled guilty to forcible confinement and assaulting a peace officer and received a sentence of 12 months consecutive.
[5] The respondent served his entire sentence for these four previous offences of almost ten years to warrant expiry. Seven months after his release, he committed the predicate offences: two violent sexual assaults within nine days on two women, one a sex trade worker and the other a woman who told the respondent that she was a former sex trade worker. In the first incident, the respondent approached the woman and asked for a “blow job.” She said she was finished for the night, but for $20 she would take him to another woman. On the way, he strangled her from behind with a cloth belt, violently choking her, and forced her to perform oral sex and have vaginal intercourse. In the second incident, nine days later, he asked a woman if she was working the streets. She told him that she was no longer in the business and was going for a coffee. He joined her, and on the way, he punched her in the face causing her nose to bleed, then wrapped a bandana around her neck and violently choked her. When she continued to struggle, he threatened her with something in his back pocket. Fearing for her life, she allowed him to have vaginal sex with her from behind. He refused to use a condom. The respondent pled guilty to both offences.
[6] The respondent has a troubled personal history. His parents were both alcoholics. His mother is of aboriginal descent. At age three, he went to live with his aunt and uncle who raised him. He had weekend visits with his biological father, Donald Mumford, who sexually abused him. Donald Mumford was convicted of sexually abusing the respondent and his cousin and was incarcerated for those offences. The respondent was a poor student, frequently in trouble at school. He quit school after being expelled in grade 11. He completed no high school credits while incarcerated due to poor attendance and suspensions.
[7] The respondent also has an extensive institutional history that the trial judge described in detail in her reasons. Essentially, the respondent experienced significant difficulties participating in programs including educational, occupational and therapeutic. In particular, he had difficulty participating in the sex offender treatment program because of his problems with comprehension of the material. For example, in 1998 when he was in the sex offender treatment program at the Regional Treatment Centre (Prairies), he had difficulty with comprehension but participated to the best of his ability. As a result of his cognitive deficits, a program was tailored specifically to his needs. Nevertheless, it was during this program that he attempted to take a female staff person hostage, he engaged in consensual sex with other inmates, masturbated and exposed himself to staff and had outbursts of temper. He was discharged from the program because of his attack on the staff member.
[8] From 2000 to 2002 at the Kingston Penitentiary, the respondent received individual counselling from a staff member with the sex offender program for the purpose of developing coping mechanisms for his sexual behaviour and to prepare for the high-intensity sex offender treatment program at the Regional Treatment Center in Ontario. He transferred there in February 2002 and began the high intensity program on July 10. He was discharged after eight sessions when he assaulted a female staff member. He explained the attack as motivated by his desire to get off the unit. Since he had twice re-offended while undergoing treatment, it was felt that future treatment opportunities would be limited and at that time, anti-androgenic drug treatment was recommended.
[9] The respondent was transferred to the special handling unit in Quebec in December 2002, where he began another program, but dropped out in January 2003. From November 2003 to May 2004, he was treated twice a day with Androcur, a sex-drive reducing medication. It was reported at the time that he stopped taking it because of weakness, fatigue and lethargy. However, he told both psychiatrists who assessed him for these sentencing proceedings, Dr. Ramshaw and Dr. Gojer, that he stopped because he was growing breasts.
[10] His warrant expiry was November 2004. Toronto police were told about his impending release in their area and that he was being released “as an untreated sex offender who has anger and violence management issues.”
[11] The respondent was almost 29 years old when he was released into the community in November 2004. He voluntarily entered into a s. 810.2 recognizance for 12 months. He came to Toronto to live with his father, the man who had gone to jail for abusing him as a child. Donald Mumford was involved with a federally funded volunteer organization, Circles of Support and Accountability, whose mandate is to provide community support for sexual offenders. Through his father, the respondent also became involved with this organization, which monitored the relationship between the two men. It also helped to find the respondent a job and affordable housing to live on his own and arranged for counselling with a psychologist. The respondent participated in their fellowship work and did volunteer work himself. However, he was also using drugs and alcohol. While under the s. 810.2 recognizance and in spite of his involvement with the Circle organization, he committed the predicate offences.
REASONS OF THE SENTENCING JUDGE
[12] The sentencing judge’s reasons are lengthy and detailed. She reviews and summarizes the evidence of all of the witnesses. The Crown called Dr. Ramshaw, a forensic psychiatrist who conducted an assessment of the respondent for the purpose of the hearing and provided both a written report and oral testimony. Dr. Ramshaw reviewed all of the respondent’s history including his entire record from the penitentiary. She also interviewed him for the assessment. Dr. Ramshaw’s opinion was that the respondent represented a high risk to re-offend and that “while there are possible risk-reducing strategies, there are no clear treatment interventions that would render his risk assumable in the community, or result in eventual control with a period of up to ten years of supervision.”
[13] The defence called a number of medical expert witnesses as well as the respondent himself. Dr. Barry Stanley was called as an expert in Fetal Alcohol Spectrum Disorder (FASD). He did not assess the respondent personally but gave evidence about FASD. He testified that although FASD cannot be cured, to respond to symptoms cognitive therapy and drugs are used, including Ritalin for attention deficit issues, specific serotonin reuptake inhibitors (SSRI’s) for mood issues and anti-psychotics for mood and cognitive stabilization.
[14] Dr. Nathan Pollock is a clinical psychologist who was accepted as an expert in neuro-psychological tests. He tested the respondent and interpreted tests administered by Dr. Ramshaw. The trial judge described his conclusions regarding the respondent’s significant cognitive limitations and their consistency with FASD as follows at para. 136:
Dr. Pollock concluded that cognitive testing indicates that Mr. Mumford has very modest intellectual abilities, problems with attention, difficulties with immediate and delayed memory and a tendency to become cognitively distracted and disorganized under stress. His findings of substantial cognitive impairment are consistent with the cognitive limitations reported with those with FASD. He noted that FASD is associated with intellectual limitations, attention deficit, learning and memory problems and impairment in language and motor abilities. As well, those with FASD tend to show slower processing speed and efficiently, particularly when cognitive tasks involve working memory. Impaired executive functioning, characterized by perseveration, cognitive inflexibility, distractibility and impulsivity, are also commonly associated with FASD.
[15] She also referred to his evidence that if the respondent were to receive sex offender treatment, it would have to be simplified for him and the treatment would have to be intensive and lengthy.
[16] Dr. Brenda Stade has a Masters in Nursing and a PhD in medical science. She leads the Fetal Alcohol Spectrum Disorder clinic at St Michael’s hospital. She was accepted as an expert in the diagnosis of FASD. She assessed the respondent and based on his history of prenatal exposure to alcohol, his neuro-psychological profile, and the fact that he has two of the three indicative facial features, she concluded that he has Partial Fetal Alcohol Syndrome (PFAS).
[17] Dr. Gojer was the psychiatrist who assessed the respondent for the defence. Based on his clinical interview of the respondent, together with the results of the cognitive tests performed by Dr. Pollock, Dr. Gojer’s diagnosis was personality disorder with anti-social traits. From the respondent’s history and criminal offending, Dr. Gojer found that he has multiple paraphilias, i.e. sexual deviations. He concluded that the respondent has FASD that has interfered with his learning ability, and caused attention deficit disorder, impulsivity and anger control problems. He also has a history of drug and alcohol abuse. Dr. Gojer concluded that: “The associated presence of brain damage increases disinhibition of sexual urges and the concomitant use of alcohol or drugs adds to this disinhibition. Clinical evaluation places him at the high risk for reoffending and does not negate the actuarial test findings.”
[18] Unlike Dr. Ramshaw, Dr. Gojer believed that the respondent could receive treatment that would lower his risk. He had told Mr. Mumford that the breast enlargement caused by the anti-androgen drugs could be surgically treated. He understood that on that basis, the respondent was willing to consider taking the drugs again. Mr. Mumford also testified at the hearing and told the sentencing judge that he was willing to take those drugs again and she accepted his evidence.
[19] Dr. Gojer identified other drugs that the respondent should take and had not yet taken, such as Ritalin for his attention deficit disorder, anti-psychotic drugs such as SSRI’s for his impulsive behaviours and antabuse, a chemical deterrent to alcohol use. He said that these problems, which he believes are related to the FAS, are all modifiable with drug treatment. The respondent would require special therapy to address his cognitive distortions toward sexual offending against women, particularly prostitutes, as well as individual counselling regarding self esteem, organization, attention problems, social skills and anger management.
[20] Dr. Gojer also discussed the “burn-out” factor which relates to the reduction in testosterone production at age 45, and the drop in sexual offending against adult women by offenders between the ages of 40 and 60 years.
[21] The sentencing judge summarized Dr. Gojer’s opinion as follows at paras. 165 and 166:
Based on his assessment of Mr. Mumford, his willingness to participate in treatment including anti-androgen drugs, together with his age specific inevitability, Dr. Gojer concluded from a psychiatric perspective that there is a reasonable possibility of control in the community.
Dr. Gojer said that from a therapy perspective he should receive anywhere from 4 to 5 years of treatment independent of the nature of the crime. Based on the “burn-out theory”, he suggested that Mr. Mumford should be on the Long Term Offender designation to his late 40’s or 50’s. He suggested that his sentence be approached this way: 5 to 6 years in jail to age 37 or 38 plus 10 years as LTO would take him past the age of 45 which is the point where, whether he is on anti-androgen or not, he is more likely to be managed in the community
[22] The sentencing judge also referred to some of the challenges by Crown counsel to Dr. Gojer in cross-examination, including whether his opinion regarding treatability was reasonable or just a hope. She quoted his response from the end of his cross-examination at para. 171:
Ms. Sweeney asked if it was his opinion that there is a reasonable possibility that Mr. Mumford could be treated or was he just being hopeful. His answer was as follows:
No. I’m basing it on clinical opinion. I’m not making a legal opinion. I mean, we use terminologies like “reasonable”, “possibility”, which have legal meaning. If I had to translate that into a clinical sense, I would say there are clinical issues that this man has that can certainly be modified, if not cured. I focus on the modification process. There are clinical issues that this man has that can be dealt with to such a degree that whatever risk he poses can be reduced to a low level. There are clinical factors like age that would continue to decrease his risk as he gets older. His risk will keep reducing, unlike the static risk assessment instruments. Clinically his risk will keep decreasing. So the additional component is the legal component, how that is combined and what kind of sentence of incarceration if he were to be released which would then take age into account also. So sometimes it’s difficult to translate clinical concepts into legal concepts.
[23] The defence also called witnesses from the Circles of Support and Accountability to discuss what services they could offer the respondent if he were released into the community. This evidence was particularly important because they had had an ad hoc support role with him when he was released in 1998 and eventually committed the two predicate offences.
[24] The witnesses described the program where it is instituted formally with an offender who is about to be released, usually at warrant expiry. Members of the program come to the institution several months before release, have access to the offender’s records, and develop a plan including a contact person and others who will “walk with” the offender, both literally and figuratively, while the offender re-integrates into society. The Circle is faith based, in conjunction with the Mennonite Church and is part of the Mennonite Central Committee (MCC) of Ontario. The Circle provides assistance in finding accommodation, a job, developing a social life, banking issues, and generally trying to keep the person busy and away from the temptation to turn to alcohol and drugs.
[25] The Circle also works with long term offenders. They provide psychologists and job training programs. They operate a sex offender treatment program as well.
[26] The witnesses explained that they intervened with the respondent because they were working with his father and were concerned about him moving back in with his father. He did volunteer work at their Thrift store and church. They wanted him to volunteer at the Sunday school but he knew he couldn’t because of his s. 810 order and discussed that with one of the Circle workers. He also met with one of their psychologists several times. He had a job, but lost it, then went on welfare. He began to use alcohol contrary to his s. 810 order and confessed this to the Circle. He showed up to the Circle consistently, except the night before he was arrested.
[27] The witness who was the co-ordinator of the respondent’s circle continued to visit him in the Don Jail during this process. She was “extremely disappointed and horrified” about his arrest. He confessed the two offences to her and they both cried.
[28] She explained that had the respondent been processed formally from the outset as a core member himself, they would have organized their approach differently, focusing on counselling, and ensuring that he did not live in an area with drugs and prostitutes. She told the court that the respondent would be welcomed as a core member of the Circle if he were a long-term offender and his re-integration would be more gradual with a more comprehensive plan in place for him.
[29] The sentencing judge concluded that:
Had the MCC (Mennonite Central Committee) been afforded the opportunity to do the job in accordance with their usual protocol and had Wayne not lost the job at that critical time, his risk of reoffending would have been lower.
[30] She also accepted that the Circle would be willing to continue to be engaged with the respondent as a long term offender.
[31] The sentencing judge was very impressed with the respondent’s own testimony before her. She noted that many of the manifestations of FASD as described in the evidence of the experts were manifested during the respondent’s testimony. She did not have the impression that he was lying. She agreed with defence counsel that the weaknesses in his evidence – including lack of memory and of remorse – were probably due to the normal passage of time and the consequences of the PFAS. She concluded that he was “authentic” and “doing his best to tell the truth.” She found that for his intellectual level, he knows what he did was wrong. Most importantly, although Dr. Ramshaw’s opinion was that he was motivated to obtain his freedom, not to change, the sentencing judge concluded, based on all of the evidence: “While recognizing its frailties, I accept his evidence that he will do the best he can to seek out help, to take medications, and to follow the rules.”
[32] The sentencing judge also reviewed the victim impact statements, which discussed the severity of the attacks and the permanent damage caused.
[33] After reviewing the evidence in detail and making the findings I have identified, the sentencing judge went on to assess the issue under ss. 753(1)(b) and 753.1 of the Criminal Code, whether the respondent qualified as a dangerous offender, and whether there was a reasonable possibility of his eventual control in the community, requiring her to rather impose long term offender status. Sections 753(1)(b) and 753.1(1) provide:
- (1) On application made under this Part after an assessment report is filed under subsection 752.1(2), the court shall 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.
753.1 (1) The court may, on application made under this Part following the filing of an assessment report under subsection 752.1(2), find an offender to be a long-term offender if it is satisfied that
(a) it would be appropriate to impose a sentence of imprisonment of two years or more for the offence for which the offender has been convicted;
(b) there is a substantial risk that the offender will reoffend; and
(c) there is a reasonable possibility of eventual control of the risk in the community.
[34] She first dealt with the issue whether the respondent is also a pedophile, having attacked his child cousin, because that designation would reduce the applicability of the burn-out theory, which is more pertinent to those who attack adult women than those who attack children. She concluded that for the purposes of the sentencing hearing, the diagnosis of pedophilia was unclear, and on that basis she would not consider him a pedophile for this purpose.
[35] The sentencing judge found that she preferred the evidence of Dr. Gojer over that of Dr. Ramshaw. Although both were well-qualified, Dr. Ramshaw thought it was unlikely that the respondent has PFAS and therefore that diagnosis did not figure into her assessment of the respondent’s treatability and eventual control in the community. The sentencing judge found that: “In my view, the recent diagnosis of PFAS is relevant to treatability and eventual control and therefore relevant to establishing a fit and just sentence.”
[36] In conducting the statutory analysis, the trial judge first confirmed that the respondent met all the criteria for a dangerous offender designation under s. 753(1)(b) and, in particular, that he is at high risk of re-offending sexually and violently.
[37] Turning to the criteria for the long-term offender designation, it was clear that the predicate offences would attract a multi-year sentence – the defence was asking for 8 to 12 years. Therefore the two year minimum threshold was met.
[38] The big issue for the court was the treatability of the respondent. The sentencing judge concluded that he is treatable. She attributed his lack of success with sex offender treatment programs in the past to his undiagnosed and untreated FASD. She accepted his evidence that he is now willing to try the anti-androgen drugs again in anticipation of a release date from the penitentiary. She found that:
Mr. Mumford is highly motivated to assure me that he is committed to treatment. I have accepted his evidence that he is older now, he has learned that he must be treated because he is a danger to others, and he is committed to treatment. Whether he follows through with that commitment is a function of his abilities and the resources that are made available to him.
[39] The sentencing judge also relied on the fact that the respondent’s FASD had been untreated and that its effects can be managed with drugs that he has not yet tried. In the community, the evidence of Dr. Stade was that there is an Ontario program that would provide regular income to the respondent of about $1000 per month and this would alleviate some of his financial stresses so that he could focus on compliance issues. Finally he would have a relationship with the Circle organization. Specifically, the sentencing judge found that “the evidence is more than ‘mere speculative hope’” that the respondent is treatable.
[40] The sentencing judge referred to this court’s decision in R. v. G.L. (2007), 2007 ONCA 548, 87 O.R. (3d) 683, where the court stated that for a long term offender, the sentencing court requires evidence that the offender could be meaningfully treated within a definite period of time and that the resources required to implement the necessary supervision conditions for eventual control in the community were available.
[41] Dealing first with the resource issue, the sentencing judge referred to the conditions that Dr. Ramshaw said would be necessary if the court were to consider a long term offender designation. She assumed that Dr. Ramshaw would not have identified conditions for which resources were not available. The conditions that were ultimately imposed were specified by respondent’s counsel and were consistent with what was suggested by Dr. Ramshaw. The sentencing judge noted that they were not the type of unacceptable conditions as were imposed in G.L., such as almost 24 hour surveillance by experts or residence in a community correctional center for a protracted period of time, when such residencies are statutorily limited to 90 days.[^1]
[42] In her conclusion, the sentencing judge stated that there was evidence that the respondent “can be meaningfully treated within a definite period of time,” that the resources needed to supervise him in the community are available and that the long- term sentence sanction will be “sufficient to reduce the threat he poses to an acceptable level.”
[43] Finally, the sentencing judge addressed as an issue separate from whether to declare the respondent a long-term offender, her exercise of discretion whether to make a dangerous offender order. For that purpose, she referred specifically to three other factors. First, she considered his behaviour while on release between November 2004 and June 2005. She observed that although he had failures leading up to the predicate offences, he also showed some control and compliant behaviour even though he was not on medication or properly supervised. She noted in particular that he had told Dr. Gojer that he was carrying a cord and contemplating raping a prostitute from January 2005, but did not act on it until June.
[44] The second factor the sentencing judge noted was Dr. Gojer’s evidence that virtually no resources are allocated to prisoners who have been designated as dangerous offenders. Only one per cent of dangerous offenders ever get out, so for those offenders, such a sentence amounts to a life sentence because parole will not be granted. In contrast, there is pressure on Correctional Service Canada to implement a plan for prisoners who are long-term offenders who will be released into the community. Parole and medical authorities are also sensitized to respond to the needs of long-term offenders.
[45] The third factor is the respondent’s aboriginal status and the requirements of R. v. Gladue 1999 CanLII 679 (SCC), [1999] 1 S.C.R. 688 and R. v. Kakegagamick (2006), 2006 CanLII 28549 (ON CA), 81 O.R. (3d) 664 (C.A.). The sentencing judge observed that although s. 718.2(e) of the Code did not apply because a sentence of imprisonment was being imposed, the respondent’s aboriginal status should be considered in all sentencing proceedings. In this case, the respondent’s mother was aboriginal, he had come to identify as an aboriginal, and he suffered from FASD. Although the evidence was not in the record before the sentencing judge, the factum filed by the Intervener on this appeal, the Aboriginal Legal Services of Toronto, documents that there is a high incidence of FASD in the incarcerated aboriginal population.
[46] Taking everything she reviewed into account, the sentencing judge concluded that a fit sentence was a determinate sentence of 14 years 8 months, of which there was 10 years left to serve, followed by supervision in the community for 10 years with the following conditions suggested to the parole board:
I encourage the National Parole Board to consider imposing these conditions on Mr. Mumford:
(b) not to have contact directly or indirectly with MV or ST;
(c) reside for a suitable period of time when released into the community in a supervised residential facility and abide by the rules of the facility until such time as the Supervisor or designate determines that you are able to manage in a less supervised residential facility;
(d) reside at all times at an address approved by your Supervisor or designate and not to move to a new residence until the address is approved by your Supervisor or designate;
(e) attend at St. Michael’s Hospital Fetal Alcohol spectrum Disorder Clinic or a similar type specialized Clinic and follow any recommendations for medication, treatment or counseling as determined by the personnel of the Clinic;
(f) take by injection any sex drive reduction medication or antiandrogen medication as prescribed by a qualified psychiatrist and only to stop the medication if a qualified psychiatrist determines that the side effects are intolerable;
(g) attend at a substance abuse and/or alcohol abuse programme as recommended by your Parole Officer;
(h) attend at a treatment or counseling programme for sex offenders that is willing to reasonably accommodate low functioning individuals and any other counseling programme willing to accommodate low functioning individuals deemed appropriate by your Supervisor;
(i) attend at and maintain contact with a programme within the community for Native persons;
(j) with respect to any counseling, treatment or support programme you are attending pursuant to this Order and with respect to any medications you are receiving pursuant to this Order, to sign any documents requested by your Supervisor or designate that will allow for monitoring by your Supervisor or designate of your compliance with this Order;
(k) abstain absolutely from the consumption of alcohol and any substance defined in the Controlled Drugs and Substance Act unless prescribed by a physician or approved by your Supervisor or designate;
(l) abstain absolutely from the consumption and possession of any form of testosterone, or androgen drugs;
(m) be subject to random drug or chemical testing either by serological or urinalytical analysis in order to confirm that
(i) you are not taking any drugs or alcohol not prescribed or permitted pursuant to this order;
(ii) you are taking all drugs that are prescribed pursuant to this Order, and
(iii) your hormonal and testosterone levels are at l levels that a qualified psychiatrist deems appropriate;
(n) take all reasonable measures to obtain lawful part- time employment or to attend educational or training development courses and to advise your Parole Officer or designate of your place of employment, education or training; and
(o) not be alone with anyone under the age of 18 unless in the company of a person approved by your Supervisor or designate.
[47] The sentencing judge also urged the institution to begin the assessment process for the respondent regardless of whether an appeal was taken from her decision, and directed that the reports of Drs. Ramshaw, Gojer, Pollock and Stade be forwarded to the CSC for their review.
ISSUES
[48] The Crown’s position on this appeal is that the sentencing judge erred in law by failing to give effect to the purpose of the dangerous offender provisions, which is the protection of the public. In particular, the Crown submits that the conclusion that the respondent could be meaningfully treated within a determinate period of time was unsupported by the evidence, and furthermore, that the sentencing judge misapprehended the evidence of Dr. Ramshaw regarding the potential for treating the symptoms of FASD. Finally, the Crown submits that she erred in exercising her discretion not to designate the respondent a dangerous offender by taking into account, the lack of treatment that may be available in prison to designated dangerous offenders, a factor which the Crown submits is irrelevant.
ANALYSIS
Issue 1: Dr. Gojer’s evidence
[49] Dr. Gojer provided a written report and gave oral evidence. In his written report, he did not express the opinion that with proper treatment including drugs and counselling therapies, there is a reasonable possibility of eventual control of the risk in the community. In his oral evidence, he clarified that he was not prepared to answer that question because it contained a legal component regarding what legal control mechanisms could be put in place in the community. Specifically, he was asked:
Q. And just lastly, I take it, then, if I might say where you part with Dr. Ramshaw, we pointed out to you some of the specific terms that you agreed with her that Mr. Mumford is a high risk to reoffend, but that there is you feel once one looks at him as a whole, that there is a reasonable possibility of eventual control in the community.
A. Well, you’re asking me the million dollar question. I can phrase it this way: There are a multitude of treatment options that have not been explored while in custody that are all reasonable. There are a multitude of treatment possibilities that can be put into place that are reasonable in the community. The eventual control does depend on the nature of the sentence that he may receive in order to avail of such treatment in the community. That is why I said a psychiatrist just looking at the psychiatric and social aspects can talk about the reasonableness and the possibility of these options being available. But there is this additional legal component which intersects and involves perhaps other elements I’ve not been through in these proceedings and listen to other things that may have been said.
[50] Dr. Gojer’s evidence was that in his opinion, the drug therapies directed to alleviate the cognitive problems caused by the FASD would make it possible for the respondent to participate in sex offender treatment programs, and would allow him to have individual counselling therapies to address his many problems with anger, sexual urges, socialization and others. Also, Mr. Mumford was now prepared to take the anti-androgen medication necessary to reduce sex drive, and to undergo the breast reduction operation, if necessary, to alleviate that side effect of those drugs.
[51] Dr. Gojer added that he was taking into account the “burn-out factor” in his opinion that the respondent could be given a determinate sentence that would allow him to grow older in prison, so that when he was released into the community, his sex drive would be lower because of his advanced age. At the end of his cross-examination, Crown counsel asked Dr. Gojer about the range of sentence he was recommending. He responded that that he was suggesting a sentence of at least four to five years “from a therapy perspective.” Then he would add one to two years to bring the respondent close to age 50. He was then asked:
Q. Is it your opinion that there’s a reasonable possibility that he could be treated?
A. Yes.
Q. In that time period?
A. Yes.
Q. Are you just being hopeful?
A. No. I’m basing it on clinical opinion. I’m not making a legal opinion. I mean, we use terminologies like “reasonable”, “possibility”, which have legal meaning. If I had to translate that into a clinical sense, I would say there are clinical issues that this man has that can certainly be modified, if not cured. I focus on the modification process. There are clinical issues that this man has that can be dealt with to such a degree that whatever risk he poses can be reduced to a low level. There are clinical factors like age that would continue to decrease his risk as he gets older. His risk will keep reducing, unlike the static risk assessment instruments. Clinically his risk will keep decreasing. So the additional component is the legal component, how that is combined and what kind of sentence of incarceration if he were to be released which would then take age into account also. So sometimes it’s difficult to translate clinical concepts into legal concepts.
[52] In this sequence, Dr. Gojer gave the opinion that the respondent could be treated within a definite period of time, being five to seven years and that the risk he poses “can be reduced to a low level.” He denied that he was basing his opinion on merely being hopeful, and stated that it was clinically based.
[53] The Crown seems to be asserting that the sentencing judge was not entitled to rely on this evidence because Dr. Gojer focused on treatability and not on what controls in the community would be required in order to conclude that there is a reasonable possibility of control in the community. Therefore, she was bound to conclude that, contrary to the doctor’s statement, his opinion amounted to mere hope and speculation.
[54] Crown counsel summarized her position in her factum at para. 88:
Given the evidence, the trial judge’s finding that the Respondent could be meaningfully treated amounted to mere hope and speculation. The evidence about his treatability did not support a finding that his overall prognosis could improve within a determinate time period so as to render his risk manageable in the community upon his release. The trial judge’s optimism about the Respondent’s continued motivation to undergo treatment was misguided because it rested on the view that significant treatment inroads could be made prior to his release. Without successful treatment, the prospect of the Respondent sustaining motivation to comply with drug and counselling therapies in the community was poor. He had demonstrated no insight into his behaviour and his expressions of remorse were highly qualified. Dr. Gojer recognized that the prospect of indeterminate detention was a strong motivator for the respondent and that once it was removed, his motivation could drop off.
[55] In effect, the Crown is asserting that the sentencing judge was obliged to give effect to the opinion evidence of Dr. Ramshaw, and to discount the opinion of Dr. Gojer. Clearly, that is not the case. Having found both doctors to be qualified to give opinion evidence in this area, the sentencing judge was entitled to prefer the evidence of Dr. Gojer and to accept it. I agree that it might have been more objectively convincing, had Dr. Gojer referred to specific examples of patients similar to Mr. Mumford where these treatments had been used and had had the effect he says they will have on the respondent. However, the doctor expressed his opinion based on his extensive experience as a forensic psychiatrist treating sex offenders and other mentally ill offenders as well as working and collaborating with other psychiatrists in the field. The sentencing judge was entitled to accept it.
[56] On the issue of hope and speculation, one must observe that because the dangerous offender/long-term offender hearing is conducted for the purpose of sentencing, it takes place immediately following conviction for the predicate offence and the order is made following the hearing. However, the evidence deals with what is likely to occur in the distant future, many years hence. One cannot know the future with certainty. More particularly, in cases such as this one where the prognosis for the reduction of the risk is dependent on the offender undergoing treatment while serving the determinate sentence, there can never be a guarantee that it will occur or be successful.
[57] It is clear that the sentencing judge thoroughly reviewed all of the evidence. She was under no misapprehension or misunderstanding about it. She recognized that the respondent is an extremely dangerous man, who, without all of the treatments, therapies, and controls anticipated, will continue to be a danger. However, she was entitled to accept the evidence of the defence psychiatrist, Dr. Gojer, that the respondent is treatable within a definite period of time, that this treatment will cause his risk of re-offending to be significantly reduced, and that with the appropriate community controls in place, enforced by the legal system, the risk will be reduced to an acceptable level.
Issue 2: Did the sentencing judge misapprehend the evidence of Dr. Ramshaw?
[58] Dr. Ramshaw believed that even if the respondent had FASD, treating it would not reduce his risk to re-offend because although the symptoms of FASD are treatable, she believed that FASD was not the cause of the respondent’s sexual offending behaviours. The sentencing judge did not misunderstand this evidence; rather, she rejected Dr. Ramshaw’s opinion and accepted the evidence of Dr. Gojer that treating the FASD symptoms would allow the respondent to be treated for the underlying problems, as has been explained above.
Issue 3: Did the sentencing judge take irrelevant factors into account?
[59] The Crown asserts that the sentencing judge erred by taking into account as a factor in determining long-term versus dangerous status, the evidence that dangerous offenders do not receive sufficient allocation of resources to allow them to be treated and have a chance at achieving parole.
[60] The evidence of Dr. Gojer on this issue is most concerning. In R. v. Lyons 1987 CanLII 25 (SCC), [1987] 2 S.C.R. 309, the constitutional validity of the dangerous offender designation was premised in part on the fact that a designated offender has the possibility of obtaining release on parole: see paras. 46-51. If, in reality, there is virtually no chance of achieving parole for offenders who would first require treatment, and who are unlikely to receive it, then the basis for the validity of the provision is subject to challenge.
[61] I agree that a person who would otherwise be found to be a dangerous offender cannot be made a long-term offender for the reason that otherwise the person will not receive treatment in the institution. That is not the analysis the sentencing judge employed in this case. Under s. 753 of the Code as it read at the time of this decision, even where an offender met all the criteria to be declared a dangerous offender, the sentencing judge had a discretion whether to designate or not[^2]. I see no reason why a sentencing judge may not take into account the effects, based on evidence, of such a designation on the offender. Failing to designate a dangerous offender does not, of course, qualify the person to be long-term offender, as that requires the reasonable possibility of control in the community. However, a sentencing judge may merely impose a determinate sentence for the predicate offence, without making any further designation.
[62] I see no error in the approach of the trial judge to her exercise of discretion not to declare the respondent a dangerous offender.
FRESH EVIDENCE
[63] Counsel for the respondent introduced, on consent, the institutional record regarding the respondent since the date of the long-term offender order. There was no further report but merely a record. One aspect of the record caused concern to counsel and the court and counsel agreed to make further inquiries following the hearing of the appeal to clarify the entry. This entry indicated that the respondent had re-started the anti-androgen medication, then stopped it again. In subsequent correspondence, Crown counsel advised that this entry was in error.
[64] The fresh evidence is not of particular assistance on the appeal. It appears that treatment is not proceeding as quickly as one might hope, but the respondent is on some medication and has discussed the commencement of the anti-androgen drugs. Neither party relied on the fresh evidence on the appeal.
CONCLUSION
[65] The respondent is a highly dangerous sexual offender who requires specialized drug treatments, therapies including sex offender treatment and anti-androgen drugs in order to reduce the risk, as well as significant restrictions, obligations, and supports when released into the community. He clearly qualifies as a dangerous offender. The trial judge accepted the evidence of the psychiatrist called by the defence who assessed the respondent and concluded that with all the treatments, some of which were never offered to the respondent before, together with the appropriate legally imposed controls in the community, there is a reasonable possibility of reducing the risk to an acceptable level. The sentencing judge was entitled to accept that evidence and to prefer it to the evidence called by the Crown.
[66] The Crown appeal is therefore dismissed.
Signed: “K. Feldman J.A.”
“I agree J. Laskin J.A.”
“I agree H.S. LaForme
RELEASED: “JL” November 30, 2009
[^1]: Corrections and Conditional Release Act, 1992, c. 20, s. 135.1(2).
[^2]: Section 753 was amended by Bill C-2, with force as of July 2, 2008. There is now no discretion not to designate an offender as dangerous if the criteria are met, but there is discretion in ss. (4) whether to impose the indeterminate sentence.