Her Majesty the Queen v. D.V.B. [Indexed as: R. v. B. (D.V.)]
100 O.R. (3d) 736
2010 ONCA 291
Court of Appeal for Ontario,
Moldaver, Cronk and R.P. Armstrong JJ.A.
April 20, 2010
Criminal law -- Appeals -- Fresh evidence on appeal -- Accused appealing decision declaring him to be dangerous offender and imposing indeterminate sentence -- Accused arguing that should be designated a [page737] long-term offender and required to serve one additional year's incarceration before given supervised release in the community -- Accused seeking to adduce fresh evidence as to his post-sentence treatment -- Report indicating accused not receiving sex offender treatment despite wait-listed for years for program -- Only change since sentencing accused's age as appeal heard ten years after original hearing -- No evidence accused's risk to children materially decreased were he released into the community following a long-term supervision order -- Fresh evidence not admitted as it could not reasonably be expected to have affected result.
Criminal law -- Dangerous offenders -- Trial judge properly declaring accused to be dangerous offender where there was reasonable possibility that his risk could be controlled during currency of ten-year long-term supervision order but not after conclusion of order -- Accused alcoholic pedophile having limited intellectual ability and minimizing both nature of offences and its impact on victims -- Willingness and ability to benefit from any treatment apart from pharmacological doubtful -- Evidence indicating that accused required to take alcohol-aversive drugs and sex-drive-reducing medication throughout life to decrease risk of further offences to acceptable level -- Evidence indicating accused unlikely to be voluntarily compliant -- No power to force him to take medications -- Accused arguing offences less morally blameworthy than those who committed more invasive or egregious sexual assaults as accused "merely" fondling children -- Dangerous offender declaration and indeterminate s entence not disproportionate because of nature of predicate offence -- Sexual assaults are serious personal injury offences and morally blameworthy especially where victims are children -- Accused's continuing serious risk of harm to children justifying segregating accused from society as dangerous offender.
Criminal law -- Long-term offenders -- Section 753.1(1)(c) of Code only satisfied if there is reasonable possibility that risk posed by offender will be controlled within duration of long-term sentence, such that offender would pose acceptable level of risk to community at conclusion of sentence -- Accused not meeting requirements of s. 753.1(1)(c) where risk might be controlled during currency of long-term sentence but would not remain at acceptable level following completion of sentence -- Accused alcoholic pedophile having limited intellectual ability and minimizing both offending conduct and its impact on victims -- Willingness and ability to benefit from any treatment apart from pharmacological intervention to deal with alcoholism and sexual drive doubtful -- Evidence indicating that accused required to take both alcohol-aversive drug and sex-drive- reducing medication for rest of life to decrease his risk to manageable level -- Accused unlikely to be compliant voluntarily with medica tion regime and no power to force him to take medications -- Section 810.2 of Code not providing adequate mechanism for addressing post-sentence risk -- Trial judge properly declaring accused to be long-term offender -- Criminal Code, R.S.C. 1985, c. C-46, ss. 753.1(1)(c), 810.2.
The accused pleaded guilty to sexual assault and breach of probation. The offence consisted of inserting his finger into the four-year-old victim's vagina. He had prior convictions for sexual assault and indecent assault. He suffered from pedophilia, and his ability to control his sexual impulses was limited by his mental retardation and significant alcohol abuse. The Crown brought a dangerous [page738] offender application. The psychiatrist and psychologist who assessed him for the purposes of the application expressed guarded optimism that the risk posed by the appellant could be reduced to an acceptable level during the currency of a ten-year supervision order. However, they were not prepared to say that there was a reasonable possibility that the risk would remain at an acceptable level following the conclusion of the ten-year supervision order. The sentencing judge declared the accused to be a dangerous offender and sentenced him to an indeterminate period of detention. The accused appealed, arguing that in order to meet the requirements of s. 753.1(1)(c) of the Criminal Code, there need only be a reasonable possibility that the risk would be controlled during the currency of the long- term sentence. He argued that if the risk of reoffending thereafter were to revert back to a substantial risk, s. 810.2 of the Code, which allows a court to impose conditions in a binding recognizance upon a person whom the court is satisfied that an informant reasonable believes will otherwise commit a serious personal injury offence, was the mechanism chosen by Parliament to address the problem. The accused applied to adduce fresh evidence on appeal concerning his post-sentence treatment.
Held, the appeal should be dismissed.
The fresh evidence indicated that the only change of any significance since the accused's sentencing was that he had aged ten years. He had not received intensive sex-offender therapy despite being wait-listed for the program for years. However, given his intellectual limitations and his doubtful willingness to engage in treatment, there may be limited benefits from it. The psychiatrists remained of the opinion that he represented a moderate to high risk for future sexual offences against children and that at the end of the period of long-term supervision, his risk may revert to an unacceptable level. Therefore, the proposed fresh evidence would not have reasonably affected the judge's conclusion that he wasn't satisfied that the accused's risk in the community was eventually manageable and the accused should be designated a dangerous offender. Any future improvement seen in the accused, and any factors that might eventually reduce his risk of reoffending to an acceptable level, were matters for the parole board to consider.
Section 753.1(1)(c) of the Code will only be satisfied if there is a reasonable possibility that the risk posed by the offender will be controlled within the duration of the long- term offender sentence, such that, upon its completion, the offender would pose an acceptable level of risk in the community. To reduce the accused's risk to a manageable level in the community, he would need to take alcohol-aversive medication and sex-drive-reducing medication for the rest of his life. He lacked the intellectual ability to benefit from non-pharmalogical therapy and, even if he had the capacity to benefit from other forms of treatment, the evidence indicated that it is doubtful that he was willing to undertake the required therapy. He continued to minimize and sometimes deny his offences and their impact on the victims. The accused cannot be ordered to take drugs and he was unlikely to comply with the required pharmacological regime voluntarily. Section 810.2 of the Code does not provide an effective mech anism for protecting the community from offenders who are highly dangerous after the conclusion of a long-term offender sentence. There is no power to order, nor are there the resources to provide, 24 hour a day, seven day a week supervision of persons under s. 810.2 orders, as would be required to ensure that the accused's risk could be managed safely. If accused persons cannot meet the relatively modest requirements of s. 753.1(1)(c) within the generous time frame allotted by Parliament, they should be declared dangerous offenders and given an indeterminate sentence. [page739]
The sentencing judge did not fail to give sufficient weight to the principle of proportionality. Once he found that the criterion for a long-term offender designation in s. 753.1(1) (c) was not met as the risk posed by the accused could not be reduced to an acceptable level by imposing a determinate sentence and a long-term supervision order, it followed that the same held true for a determinate sentence simpliciter. The sentencing judge did not mischaracterize the nature and seriousness of the predicate offence or the accused's degree of moral blameworthiness. In defining the term "serious personal injury offence" as including the offence of sexual assault, Parliament chose not to draw a distinction between forced intercourse at knifepoint and "mere" fondling or touching. Every sexual assault is to be treated as serious, especially where the victims are helpless children.
APPEAL from the sentence imposed by Whetung J. of the Ontario Court of Justice dated July 19, 1999 declaring the appellant to be a dangerous offender and from an indeterminate sentence.
Cases referred to R. v. Goodwin, [2002] B.C.J. No. 2116, 2002 BCCA 513, 173 B.C.A.C. 35, 168 C.C.C. (3d) 14, 55 W.C.B. (2d) 190, not folld R. v. Lévesque, [2000] 2 S.C.R. 487, [2000] S.C.J. No. 47, 2000 SCC 47, 191 D.L.R. (4th) 574, 260 N.R. 165, J.E. 2000-1934, 148 C.C.C. (3d) 193, 36 C.R. (5th) 291, 47 W.C.B. (2d) 351; R. v. Palmer, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759, [1979] S.C.J. No. 126, 106 D.L.R. (3d) 212, 30 N.R. 181, 50 C.C.C. (2d) 193, 14 C.R. (3d) 22, 17 C.R. (3d) 34, apld R. v. S. (T.R.), [2009] B.C.J. No. 1529, 2009 BCCA 345, 274 B.C.A.C. 178, consd Other cases referred to R. v. Currie, 1997 CanLII 347 (SCC), [1997] 2 S.C.R. 260, [1997] S.C.J. No. 10, 146 D.L.R. (4th) 688, J.E. 97-1141, 115 C.C.C. (3d) 205, 7 C.R. (5th) 74, 34 W.C.B. (2d) 264; R. v. Johnson, [2003] 2 S.C.R. 357, [2003] S.C.J. No. 45, 2003 SCC 46, 230 D.L.R. (4th) 296, 308 N.R. 333, [2004] 2 W.W.R. 393, J.E. 2003-1825, 186 B.C.A.C. 161, 19 B.C.L.R. (4th) 243, 177 C.C.C. (3d) 97, 13 C.R. (6th) 205, 58 W.C.B. (2d) 154; R. v. L. (G.) (2007), 87 O.R. (3d) 683, [2007] O.J. No. 2935, 2007 ONCA 548, 226 O.A.C. 148, 225 C.C.C. (3d) 20, 75 W.C.B. (2d) 327 [Leave to appeal to S.C.C. refused [2008] S.C.C.A. No. 39] Statutes referred to Criminal Code, R.S.C. 1985, c. C-46, ss. 752, 753 [as am.], (1) (a)(i), (b), 753.1, (1), (a), (b), (c), 810.2, 811, [as am.], (a), (b)
John Norris and Brydie Bethell, for appellant. Shelley Hallett, for respondent.
The judgment of the court was delivered by
Introduction
MOLDAVER J.A.: --
[1] On January 14, 1999, the appellant, D.V.B., appeared before Whetung J. of the Ontario Court of Justice and entered pleas of guilty to one count of sexual assault and one count of breach of probation. [page740]
[2] Instead of proceeding with a conventional sentence hearing, the Crown applied under s. 753 of the Criminal Code, R.S.C. 1985, c. C-46 to have the appellant declared a dangerous offender, using the offence of sexual assault as the predicate offence.
[3] On July 19, 1999, following a full hearing designed to determine whether the appellant fit the dangerous offender criteria and if so, what sentence he should receive, Whetung J. found the appellant to be a dangerous offender and sentenced him to an indeterminate period of detention in a penitentiary.
[4] The appellant appeals from that decision. The appeal comes to us more than ten years after the impugned designation was made. In the interim, as the fresh evidence filed on appeal reveals, the appellant has not received any meaningful treatment while in prison, and apart from his chronological age, he remains by and large the same person he was when he entered the penitentiary system over a decade ago.
[5] Be that as it may, the appellant submits that he should not have been declared a dangerous offender and he seeks to be redesignated as a long-term offender. In his factum, which was filed in 2005, the appellant requested that he be sentenced as a long-term offender to "time served" plus a ten-year supervision order. In oral argument, counsel altered that position and now requests that the appellant be sentenced to an additional year in custody as a precursor to a ten-year supervision order.
[6] In support of his submission that the sentencing judge erred in declaring him to be a dangerous offender instead of a long-term offender, the appellant relies on the following three grounds of appeal: (1) The sentencing judge erred in holding that the requirements of s. 753.1(1)(c) of the Criminal Code would only be met if he were satisfied that it was reasonably possible to control the risk posed by the appellant within the duration of a long-term offender sentence, such that, upon its completion, the appellant would pose an acceptable level of risk in the community; (2) in imposing an indeterminate sentence of imprisonment, the sentencing judge failed to give adequate weight to the principle of proportionality; and (3) the dangerous offender finding should be set aside as unreasonable.
[7] For reasons that follow, I would not give effect to any of these grounds and would dismiss the appeal. [page741]
Relevant Statutory Provisions
[8] The relevant statutory provisions that were in place at the time of the appellant's dangerous offender proceeding are reproduced at Appendix "A". Subsequent amendments in the provisions have no bearing on the issues raised in this appeal.
[9] For convenience, the provisions of primary interest are reproduced below:
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. . . . . .
810.2(1) Any person who fears on reasonable grounds that another person will commit a serious personal injury offence, as that expression is defined in section 752, may, with the consent of the Attorney General, lay an information before a provincial court judge, whether or not the person or persons in respect of whom it is feared that the offence will be committed are named.
(2) A provincial court judge who receives an information under subsection (1) may cause the parties to appear before the provincial court judge.
(3) The provincial court judge before whom the parties appear may, if satisfied by the evidence adduced that the informant has reasonable grounds for the fear, order that the defendant enter into a recognizance to keep the peace and be of good behavior for any period that does not exceed twelve months and to comply with any other reasonable conditions prescribed in the recognizance, including the conditions set out in subsections (5) and (6), that the provincial court judge considers desirable for securing the good conduct of the defendant.
(4) The provincial court judge may commit the defendant to prison for a term not exceeding twelve months if the defendant fails or refuses to enter into the recognizance. . . . . .
- A person bound by a recognizance under section 810, 810.01, 810.1 or 810.2 who commits a breach of the recognizance is guilty of (a) an indictable offence and liable to imprisonment for a term not exceeding two years; or (b) an offence punishable on summary conviction. (Emphasis added) [page742]
The Predicate Offence
[10] The charge of sexual assault, which formed the predicate offence on the dangerous offender application, occurred on August 31, 1998. It involved K.C.-Y., a four-year-old child.
[11] On the day in question, K.C.-Y. and her parents were visiting K.C.-Y.'s paternal grandfather. He lived on a farm with his wife and the appellant, her son from a previous marriage. The appellant worked on the farm. He was 36 years old and single at the time.
[12] On the afternoon in question, the appellant lured K.C.-Y. into his bedroom, pulled her shorts down and inserted his finger into her vagina. The child was crying quietly and the appellant knew that he was hurting her, but he persisted nonetheless. The child suffered a laceration to her vagina and emotional trauma. In an interview with a psychologist several months after the event, the appellant stated that he was intoxicated at the time and had become "sexually aroused" by the child.
The Appellant's Prior Convictions
[13] At the time of the dangerous offender proceeding, the appellant had the following criminal record:
December 18, 1991 Mischief to Property $150 fine and 12 months' probation.
March 10, 1993 Sexual Assault and Breach of Probation Suspended sentence and two years' probation on each count concurrent.
March 30, 1998 Two counts of Indecent Assault Suspended sentence and three years' probation on each count concurrent.
(i) Sexual assault -- March 10, 1993
[14] On March 10, 1993, the appellant pled guilty to one count of sexual assault and one count of breach of probation. Sentence was suspended on both counts and he was placed on probation for two years.
[15] The sexual assault occurred on June 2, 1992. It involved a six-year-old child. The child and her parents were visiting a family with whom the appellant was living at the time. The incident occurred when the appellant took the child for a walk in the woods. At some point during the walk, the appellant picked the child up to protect her from bugs. It was then that he placed his hand down her shorts and touched her vagina over her underwear. After putting the child down, the appellant warned her not [page743] to tell anybody or he would hurt her. The appellant was on probation at the time for a property offence he committed in 1991.
(ii) Two counts of indecent assault -- March 30, 1998
[16] On March 30, 1998, the appellant pled guilty to two historic counts of indecent assault. The charges dated back to the 1970s, when the appellant was between the ages of 12 and 18. The offences consisted of fondling the genitals of two of his siblings -- twin brothers, seven years his junior. The appellant received a suspended sentence and three years' probation for these offences. Under the terms of the probation order, the appellant was prohibited from being in the presence of anyone under the age of 16 unless accompanied by someone age 21 or older -- a condition that he clearly breached when he lured K.C.-Y. into his bedroom on August 31, 1998.
The Appellant
[17] The appellant is now age 47. He was 36 when he committed the predicate offence of sexual assault on K.C.-Y. and 37 when he was found to be a dangerous offender.
[18] For purposes of the dangerous offender proceeding, the appellant was assessed by two forensic experts -- Dr. Gojer, a psychiatrist chosen by the Crown, and Dr. Eccles, a psychologist chosen by the defence. Both doctors prepared reports that were filed as exhibits on the dangerous offender application and each testified at the sentence hearing. Their findings and conclusions as to the appellant's mental status and the various factors that render him a danger to children are similar and non-contentious.
[19] At p. 7 of his report dated March 18, 1999, Dr. Gojer diagnosed the appellant as follows:
I diagnosed Mr. B. as suffering from heterosexual and homosexual paedophilia. Sexual sadism is a possibility too. He also has a serious problem with alcohol abuse. He also suffers from mental retardation of the mild variety.
[20] In the same report, again at p. 7, Dr. Gojer assessed the appellant's degree of dangerousness and the risk he posed for reoffending against children:
There is nothing in the history to suggest that Mr. B. has a personality disorder of an antisocial nature or that he suffers from psychopathy. On the other hand he does have a paedophilia, which is a relatively persistent illness which cannot be cured. His paedophilia places him at a risk of acting out on his sexual impulses and certainly places all children at risk from him. The ability that Mr. B. has in curtailing his sexual impulses is limited by his mental retardation. The use of alcohol can cause further disinhibition with a greater degree of impulsivity and acting out on underlying paedophiliac urges. [page744]
It is possible that Mr. B.'s alcoholism can be treated with very close supervision in the community. On account of limited insight into his drinking behavior and his mental retardation the prognosis for abstinence is guarded.
His sex offending behavior can be treated by using pharmacotherapy and cognitive behavior psychotherapy. The effectiveness that cognitive behavioural psychotherapy will have will be limited on account of his mental retardation and the backbone of any treatment for his sexual offending behavior should be pharmacotherapy. The use of antiandrogen drugs can bring about a significant reduction in the risk of him reoffending in a violent sexual manner in the future. Mr. B. is agreeable to taking medication to bring about a reduction in his sex drive by the use of oral or injectable antiandrogen drugs.
I note that Dr. Eccles evaluated Mr. B. in November 1998 as being at a moderate to high risk to reoffend based on actuarial factors and that he is at moderate risk to reoffend on the basis of clinical factors. He estimated the overall risk of reoffending as moderately high. I do not dispute these findings. It is my opinion that Mr. B. without treatment is a moderately high risk to reoffend with a sexual offense against a child.
[21] In a report dated November 19, 1998, Dr. Eccles evaluated the appellant's risk for reoffending following the August 1998 incident with K.C.-Y. Taking into account the nature and history of the appellant's offences against children, his arousal patterns, his intelligence and social competence, and various actuarial and clinical factors, Dr. Eccles concluded that the appellant posed a moderate to high risk of committing "either another sexual offense or a non- sexual violent offense". In support of his conclusion, at p. 7 of his report, Dr. Eccles highlighted the following concerns about the appellant:
Mr. B. is a sexual recidivist with relatively little insight into his behavior. He has reoffended while on supervision, and his victims have been relatively young. He has a sexual interest in children and no access to appropriately aged partners. Furthermore, he is deficient in the social skills that are helpful in acquiring such partners. His intellectual limitations, as well as his inability to read or write, will severely limit what he can achieve from any treatment he receives. Furthermore, his apparent addiction to alcohol is a significant risk factor, and provides additional complications for his treatment and risk management.
[22] With respect to the criteria needed to have the appellant declared a dangerous offender, Dr. Gojer expressed the following opinion, at p. 8 of his March 18, 1999 report:
Mr. B. has a sexual deviation, paedophilia which is a life long condition. He has clearly shown that he has been unable to control his impulses even while on probation and his current index offense is the digital penetration of a very young girl with him causing injury to her vagina. He has mild mental retardation and a history of alcohol abuse. Both conditions increase the risk of impulsive behavior and of acting out sexually in the future. These features, in my opinion, satisfy the criteria for a Dangerous Offender. [page745]
[23] Dr. Gojer and Dr. Eccles noticed two other disturbing features about the appellant that raised concerns about his treatability.
[24] First, both doctors were troubled by the appellant's tendency to downgrade his interest in children and to deny any misconduct towards them. At times, the appellant would take the position that his criminal convictions were unwarranted and that he had never sexually assaulted anyone. At other times, he would admit to his wrongdoings but attribute his misbehavior to the disinhibiting effects of alcohol. In an interview with Dr. Gojer, the appellant reportedly said that "it was his drinking that was responsible for the sexual assault" on K.C.-Y. and that "his problem with young girls is only when he drinks".
[25] The second disturbing feature noted by Dr. Gojer and Dr. Eccles was the appellant's ambivalence towards obtaining treatment. Despite assurances from the appellant that he was motivated to obtain help, both doctors remained skeptical, particularly in light of the appellant's tendency to deny his pedophilia and his prior wrongdoings.
[26] Dr. Gojer and Dr. Eccles testified that in the appellant's case, given his cognitive limitations, treatment could only be effected, if at all, through pharmacotherapy. To succeed, the appellant would have to commit to a life-long program in which he would be required to take anti-androgen medication once a month to curb his sexual urges and antibuse medication daily to prevent him from drinking. Slippage in either case, even for a brief period of time, would put children who might come into contact with the appellant at serious risk.
[27] The likelihood of the appellant taking his medication as required was highly questionable. If there was any hope at all, the appellant would have to remain motivated to obtain treatment for his entire life -- and for this to occur, he would have to accept the fact that he is a pedophile and that he poses a serious threat to children without treatment. In this respect, denial presented a serious obstacle -- why take medication for a problem that does not exist?
[28] Dr. Gojer and Dr. Eccles were asked to consider whether the appellant would be an appropriate candidate for a long-term offender sentence. Under that regime, he would be incarcerated for two or more years, following which he would be released into the community under the strictures of a supervision order for a period of up to ten years.
[29] Dr. Gojer and Dr. Eccles were very guarded in their responses. The appellant suffered from pedophilia -- a life- long condition that could be controlled but not cured. He would [page746] require treatment for the rest of his life and, in his case, given his cognitive limitations, pharmacotherapy was the treatment of choice -- indeed, it was the only realistic means of controlling his sexual urges towards children and preventing him from acting on them.
[30] Ensuring life-long compliance with his treatment program was critical -- and in the appellant's case, this meant intensive supervision and close monitoring -- something both doctors felt could be achieved under the strict controls of a ten-year supervision order. But once the supervision order terminated, it was impossible to predict how the appellant would fare. There would be no controls in place and it would be up to the appellant to decide, on a voluntary basis, whether he wished to continue with treatment. And if he chose not to continue his treatment, he would revert back to his present risk of reoffending and would pose a serious threat to the safety of children. Dr. Gojer explained the conundrum as follows:
Q. Okay, what about you said you use the phrase "low probability", what about after the 10 year [supervision order] period?
A. That's what I said, after the 10 years my understanding is that if he continues to take his medication, then it's very clear that his risk to the community will be low. If he chooses to stop taking his medication, the risk that he will have will start rising. This can be offset to a certain degree by any individual counselling or psychological therapies he has. Essentially Mr. B. needs therapy for the rest of his life and whether he will take therapy for the rest of his life or not I said is a debatable point, but the mere fact that in the past when he was on probation he refused to attend for therapy. Whether at the end of 10 years with all of the therapy he's had, he will continue taking therapy, it is a debatable point, I would say that the probability would be less rather than more. . . . . .
Q. Okay, and I know it's a difficult question, but as a reasonable man, are you able to assess, is it a reasonable possibility that there will be eventual control?
A. The reasonable possibility I would limit to a 10 year period. There's a reasonable possibility of controlling this man's behavior over a 10 year period.
Q. Okay, after the 10 year period?
A. I can not say there's a reasonable possibility. (Emphasis added)
The Sentencing Judge's Decision
[31] The sentencing judge had no difficulty concluding that the appellant met the "requisite criteria to be found a dangerous offender". As his reasons disclose, he was satisfied beyond a [page747] reasonable doubt that the appellant fit within the dangerous offender criteria identified in both s. 753(1)(a)(i) and s. 753(1)(b) of the Criminal Code.
[32] With respect to s. 753(1)(a)(i), the sentencing judge stated:
In my opinion, the Crown has met this burden of proof, and on the material before me I am satisfied that pursuant to section 753(1)(a)(i) that the present offence is a serious personal injury offence (as defined in section 752) and that Mr. B. constitutes a threat to the life, safety, or physical well-being or mental well-being of other persons by virtue of his pattern of repetitive behaviour, a part of which includes the present offence and which shows a failure to restrain his conduct which results in a likelihood of the prescribed harm to others through such failure.
[33] With respect to s. 753(b), the sentencing judge observed:
In addition, pursuant to section 753(b), the subject offence involves a serious personal injury offence as set out in section 752, and Mr. B. by this sexual matter, including the present matter has shown a failure to control his sexual impulses, thereby creating a likelihood of the prescribed harm.
[34] Having found that the appellant met the requisite criteria to be declared a dangerous offender, the trial judge recognized that he "need not necessarily find [the appellant] to be a dangerous offender". Other choices remained open to him, including the possibility that the appellant could be declared a long-term offender under s. 753.1 of the Criminal Code. In that regard, s. 753.1(1)(a) posed no problem. Imposing a sentence of two or more years on the appellant for the predicate offence of sexual assault against K.C.-Y. was clearly appropriate. Likewise, s. 753.1(1)(b) presented no impediment. On any view of the evidence, the appellant represented a substantial risk of reoffending. Hence, the matter came down to s. 753.1(1)(c) -- was there "a reasonable possibility of eventual control of the risk in the community"?
[35] As indicated, the evidence on this issue was mixed. Dr. Gojer and Dr. Eccles expressed guarded optimism that the risk posed by the appellant could be reduced to an acceptable level during the currency of a ten-year supervision order. Thereafter, they were pessimistic. Neither doctor was prepared to say that there was a reasonable possibility that the risk posed by the appellant would remain at an acceptable level following the conclusion of the long-term sentence. In this regard, Dr. Gojer considered it more likely than not that the appellant would discontinue therapy once the ten-year supervision order ended.
[36] In light of that evidence, the debate between Crown and defence counsel centred on the wording of s. 753.1(1)(c) and, in particular, whether the provision would only be satisfied if it were reasonably possible that the risk posed by the appellant would be [page748] controlled within the duration of the long-term offender sentence, such that, upon its completion, the appellant would pose an acceptable level of risk in the community; or, would the provision be satisfied if it were reasonably possible to control the risk posed by the appellant during the currency of the long-term sentence even though the same could not be said following its completion. The sentencing judge responded as follows:
Having heard both counsel at length on this point, I accept the Crown position that s. 753.1(1)(c) implicitly requires that there be a reasonable possibility of eventual control of the risk in the community and not simply that there be a reasonable possibility of control of the risk in the community for the period of the long-term offender order.
[37] The sentencing judge then turned to the evidence given by Dr. Gojer and Dr. Eccles and explained why, in his view, he was not satisfied that it was reasonably possible that the risk posed by the appellant would be controlled within the duration of a long-term sentence. In this regard, he noted that after the expiry of the ten-year supervision order, the appellant's risk of reoffending would revert to the "present prognosis [moderate to high risk of reoffending], absent ongoing treatment, which must be voluntary". The sentencing judge further observed that even during the ten-year supervision order, Dr. Gojer and Dr. Eccles were "not necessarily optimistic of [the appellant's] ability to comply with the requirements of the order absent close, and extremely close, supervision". While they saw "the risk as acceptable . . . for the period of any dictated treatment . . . their reluctance to express an opinion about voluntary treatment outside the ten- year period must be considered in light of their guarde d prognosis generally".
[38] In the end, the sentencing judge refused to give s. 753.1(1)(c) the "broader meaning" sought by defence counsel and he concluded that the long-term offender regime was not available to the appellant because "[he] does not meet the condition precedents of s. 753.1(1)".
[39] The appellant takes issue with that conclusion and raises it as his first ground of appeal.
Issue One: Did The Trial Judge Misconstrue S. 753.1(1)(c) of the Criminal Code?
[40] The appellant submits that the sentencing judge erred in holding that the requirements of s. 753.1(1)(c) would only be met if he were satisfied that it was reasonably possible to control the risk posed by the appellant within the duration of the long-term offender sentence, such that, upon its completion, the appellant would pose an acceptable level of risk in the [page749] community. According to the appellant, to meet the requirements of s. 753.1(1)(c), there need only be a reasonable possibility that the risk he posed would be controlled during the currency of the long-term sentence. If the risk of reoffending thereafter were to revert back to a substantial risk, s. 810.2 of the Criminal Code was the mechanism chosen by Parliament to address the problem.
[41] In support of his position, the appellant cites Donald J.A.'s majority decision in R. v. Goodwin, 2002 BCCA 513, [2002] B.C.J. No. 2116, 168 C.C.C. (3d) 14 (C.A.). Goodwin, it seems, is the only decision that addresses the issue in question, at least indirectly. Counsel were unaware of any other trial or appellate decisions on point.
[42] Goodwin was a 37-year-old repeat offender with a mental age of an eight-year-old. From 1987 to 1999, he amassed a criminal record that included two convictions for assault and four convictions for sexual assault. Two of the sexual assaults involved the same woman. The first of these incidents occurred in 1987 when Goodwin and the victim were residents at the same treatment centre. On the occasion in question, Goodwin followed the victim into a public washroom and forced her to have intercourse with him. The second incident with the same victim occurred in 1995. On that occasion, Goodwin broke into her home, crawled into bed with her and fondled her vagina.
[43] Between those two incidents, in 1990, Goodwin entered the home of a woman with the intention of sexually assaulting her. After pushing her towards a bed, she told him that her boyfriend was outside and Goodwin fled.
[44] In 1999, Goodwin committed a further sexual assault which the Crown eventually used as the predicate offence in a dangerous offender application. The victim in that case was walking with her boyfriend on a public street in broad daylight. Goodwin approached the victim and grabbed her from behind. He placed one hand on her breast and the other on her genital area and pressed his body against her. The victim managed to break free and Goodwin fled.
[45] For purposes of the dangerous offender application, a psychiatrist assessed Goodwin and diagnosed him as hypersexual. In lay terms, this meant that whenever Goodwin had a sexual impulse, he had to gratify it -- and would do so, without thinking. His low intellectual capacity left him with little understanding, an inability to empathize with his victims and a limited capacity for training. Goodwin also suffered from an alcohol abuse disorder.
[46] According to the psychiatrist who assessed Goodwin, it was possible to manage Goodwin in the community with the use [page750] of anti-libinal medication and 24-hour supervision. Constant supervision was required because without it, Goodwin could not be relied upon to take his medication. And if he did not take his medication, he was certain to reoffend.
[47] Faced with that evidence, the sentencing judge found Goodwin to be a dangerous offender and sentenced him to an indeterminate period of detention. The sentencing judge refused to impose a conventional sentence -- and implicitly a long-term offender sentence. In his view, the type of supervision required by Goodwin could not be assured once those sentences were spent -- and without constant supervision, Goodwin was bound to reoffend.
[48] On appeal, Donald J.A., on behalf of himself and Rowles J.A., set aside the dangerous offender designation and substituted a long-term offender designation. Goodwin was sentenced to time served (approximately three and one-half years for the predicate offence) and he was placed under the strictures of a supervision order for ten years.
[49] In arriving at this disposition, Donald J.A. recognized, at para. 2 of his reasons, that on completion of the ten-year supervision order, Goodwin would "likely need court imposed controls for the rest of his life". Contrary to the position advanced by the Crown -- that the dangerous offender designation should be upheld and that Goodwin's release into the community should be left to the parole board -- Donald J.A. felt that s. 810.2 of the Criminal Code could be utilized to provide the necessary safeguards following the termination of Goodwin's ten-year supervision order. In his reasons, at para. 2, he acknowledged that for this to occur, it would be up to the Crown "to apply annually under s. 810.2 of the Criminal Code for recognizances to maintain the conditions necessary to manage [Goodwin] safely in the community. This is an onerous burden but one that will keep a mentally challenged man out of prison."
[50] At para. 5 of his reasons, after setting out s. 810.2 in its entirety, Donald J.A. stated:
This section came into force at the same time as the long- term offender provisions in 1997. In my opinion, it should be seen as a companion provision one that can operate as a follow-up measure when the term of community supervision expires and should be employed that way in this case.
[51] At para. 20 of his reasons, Donald J.A. quoted from the trial judge's reasons where the trial judge had stated that an indeterminate sentence of penal servitude was necessary "not either to punish [Goodwin] or to reform him, but rather to segregate him from society for both his own good and that of society as there is no reasonable possibility of ever controlling his risk in [page751] the community" (emphasis in original). Donald J.A. took issue with that statement. At paras. 21 and 22 of his reasons, he remarked:
With respect, I think the error in that analysis is to assess the risk as though the appellant was to be released into the community unmedicated and unsupervised. Expressed in terms of the dangerous offender provision, s. 753(1)(a), he only "constitutes a threat to the life, safety or physical or mental well-being of other persons", or in terms of s. 753(1) (b), "a likelihood of causing injury, pain or other evil to other persons through a failure in the future to control his . . . impulses", if he does not take anti-libidinal medication and reside in 24-hour care facility.
Therefore the question is whether there exists a sentencing option other than an indefinite sentence which guarantees those conditions for his lifetime. If there is then I do not think it is appropriate to operate on the assumption that the appellant will be free of those conditions in the community. (Emphasis added)
[52] Donald J.A.'s search for another "sentencing option" in Goodwin's case underscored his concern, identified at para. 8 of his reasons, that no matter how compassionately Goodwin might be treated as a federal prisoner, indefinite incarceration was "disproportionate in light of his low moral culpability . . . and every avenue within the law should be explored to ameliorate this situation".
[53] In sum, although Donald J.A. did not say so explicitly, he impliedly rejected the notion that s. 753.1(1)(c) would only be satisfied if it were reasonably possible to control the risk posed by Goodwin within the duration of a long-term offender sentence, such that, upon its completion, Goodwin would pose an acceptable level of risk in the community.
[54] In a dissenting opinion, Ryan J.A. concluded that the trial judge did not err in refusing to declare Goodwin a long- term offender. In her view, Goodwin did not qualify as a long-term offender because he did not meet the requirements of s. 753.1(1)(c). Ryan J.A.'s reasons in this regard are succinct and bear repetition in full. They are found at paras. 52 and 53 of her decision:
In my view the sentencing judge did not err. In order to qualify as a long-term offender the court must be satisfied under s. 753.1(1)(c) that "there is a reasonable possibility of eventual control of the risk in the community." A long- term offender sentence is composed of imprisonment for a two-year minimum followed by a supervision order not to exceed 10 years. In my view, the wording of s. 753.1(1)(c) means that there must be a reasonable possibility that the risk will be controlled within the duration of the long-term offender sentence. The evidence in this case is that the offender will not be controlled within the duration of the sentence. He will be a risk throughout his lifetime. His condition is intractable. As a result, he does not meet the long-term offender criteria. [page752]
My colleague's reasons for judgment recognize that the risk that Mr. Goodwin poses will not likely be controlled within the duration of a long-term offender sentence. He accepts the appellant's proposition that if necessary, Mr. Goodwin can be controlled through the provisions of s. 810.2 of the Code. I do not agree that those provisions should be used to supplement the perceived deficiencies of the long-term offender provisions. I do not need to address that issue. In my view the analysis must end with the finding that the appellant does not meet the long-term offender criteria. (Emphasis added)
[55] With respect to Donald J.A. and the majority opinion, I favour Ryan J.A.'s interpretation of s. 753.1(1)(c).
[56] Contrary to the view expressed by Donald J.A., I do not take from the fact that s. 810.2 came into force at the same time as the long-term offender provisions that Parliament, presumably with a view to creating a harmonious scheme, intended to off-load on to s. 810.2 the important task of protecting the community from people who are highly dangerous and who have been unable to satisfy the relatively modest requirements of s. 753.1(1)(c). In my view, s. 810.2 does not contain the clout needed to shoulder that burden, nor does it provide for the machinery needed to process the never-ending stream of annual hearings that would result. In the context of the long-term offender regime, I prefer instead to view s. 810.2 as a safety valve that Parliament put into place to address those cases where the optimistic outcome envisaged by s. 753.1(1)(c) turns out to be unwarranted.
[57] With respect, the construction of s. s. 753.1(1)(c) that I favour does not lead to the unfair treatment of offenders, nor does it give rise to unjust sentences. Under the long-term offender regime, Parliament has built in a very substantial period of time for offenders to obtain the treatment they need to reduce their risk in the community to an acceptable level. Long-term offenders must be incarcerated for at least two years on the predicate offence, and thereafter, they can be subjected to a supervision order for up to ten years. For most people who are treatable, I would have thought that 12 years (and possibly much longer depending on the period of incarceration for the predicate offence) is a generous time frame within which to achieve the relatively modest progress contemplated by s. 753.1(1)(c). In this regard, it must be remembered that under s. 753.1(1)(c), a judge need not be satisfied that the risk posed by the offender will be controlled within the 12-year (or longer) time frame; all that is required is that there be a reasonable possibility that such control can be achieved.
[58] In sum, if persons who are otherwise highly dangerous cannot meet the relatively modest requirements of s. 753.1(1) (c) [page753] in the generous time frame allotted by Parliament, then in my view, they should be declared dangerous offenders and given an indeterminate sentence. As my colleague Cronk J.A. explained in R. v. L. (G.) (2007), 2007 ONCA 548, 87 O.R. (3d) 683, [2007] O.J. No. 2935, 225 C.C.C. (3d) 20 (C.A.), at para. 70 (leave to appeal to the S.C.C. denied [2008] S.C.C.A. No. 39):
The court is required on a dangerous offender application to balance the liberty interests of an accused with the risk to public safety that will arise on the release of the accused into the community. That balancing exercise is informed by this fundamental principle: in a contest between an individual offender's interest in invoking the long-term offender provisions of the Code and the protection of the public, the latter must prevail.
[59] I am concerned for another reason about Donald J.A.'s construction of s. 753.1(1)(c). If he is correct, I fail to see how any person who suffers from a condition that is potentially controllable with life-long supervision, 24 hours a day, seven days a week, could ever be declared a dangerous offender and given an indeterminate sentence. On Donald J.A.'s model, it would be up to the court to ensure that the necessary supervisory arrangements were in place, and there is no telling the amount of resources that would be needed to fund such a regime. In this regard, I refer again to my colleague Cronk J.A., at para. 70 of L. (G.), where she observed:
As I have indicated, the overriding purpose of the dangerous and long-term offender regimes is the protection of the public. Thus, "real world" resourcing limitations cannot be ignored or minimized where to do so would endanger public safety.
[60] And if the resources needed to provide life-long, round- the-clock supervision were not in place, the court would be at an impasse; s. 810.2 would be of no use and the public would be placed at great risk, left to wait as it were for the offender to commit yet another serious personal injury offence so that the Crown could bring a second dangerous offender application.
[61] Before leaving this matter, I note that in R. v. S. (T.R.), [2009] B.C.J. No. 1529, 2009 BCCA 345, the British Columbia Court of Appeal had occasion to consider Goodwin in the context of an appeal from a dangerous offender designation. One of the issues raised by the appellant was that in refusing to designate him a long-term offender, the trial judge failed to consider the possible application of s. 810.2 as a "method of control" that could be utilized to alleviate against the rigours of a dangerous offender designation.
[62] In rejecting that submission, Low J.A., on behalf of the court, had this to stay about Goodwin, at para. 27: [page754]
The circumstances were unusual in Goodwin and the majority in that case was of the opinion that there were various ways in which the risk posed by the offender could be reduced to an acceptable level. Employment of the provisions of s. 810.2 was merely one factor. The case was decided before Johnson in the Supreme Court of Canada and it is not a case of general application. It does not stand for the appellant's proposition that failure by a sentencing judge to consider these sections is an error. In dangerous offender/long-term offender proceedings they do not come into play except as an additional means of control. Standing alone, they cannot be seen as an eventual means of control. (Emphasis added)
[63] I agree with Low J.A.'s assessment of s. 810.2 and, in particular, the limited role it is meant to play in dangerous offender/long-term offender proceedings.
[64] For these reasons, I would not give effect to the appellant's first ground of appeal.
Issue Two: Did the Sentencing Judge Fail to Give Sufficient Weight to the Principle of Proportionality?
[65] It is well established that in the context of a dangerous offender application, the sentencing judge should only impose an indeterminate sentence "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 a long-term offender designation are insufficient" (R. v. Johnson, 2003 SCC 46, [2003] 2 S.C.R. 357, [2003] S.C.J. No. 45, at para. 29).
[66] The appellant submits that the sentencing judge failed to exercise his discretion in accordance with that principle. Had he done so, he would have sentenced the appellant as a long-term offender.
[67] I disagree. The principle of proportionality about which the appellant speaks has effectively been incorporated into the long-term offender provisions of the Criminal Code. As Iacobucci and Arbour JJ. pointed out, at para. 29 of Johnson, in deciding whether a long-term offender sentence is appropriate in any given case, the "essential question to be determined . . . is whether the sentencing sanctions available pursuant to the long-term offender provisions are sufficient to reduce this threat [of harm] to an acceptable level, despite the fact that the statutory criteria in s. 753(1) [the dangerous offender criteria] have been met". The answer to that question, of course, lies initially in the analysis dictated by s. 753.1(1)(c) -- whether there is a reasonable possibility of eventual control of the risk posed by the offender in the community. If that criteria is not met, then the long-term offender regime comes off the table and there is no need to travel further down th e proportionality road. [page755]
[68] In the case at hand, the sentencing judge found, correctly in my view, that the third criteria for a long-term offender designation, identified in s. 753.1(1)(c), had not been met. And once that determination was made -- that the risk posed by the appellant could not be reduced to an acceptable level by imposing a determinate sentence and a long-term supervision order -- it is axiomatic that the same would hold true for a determinate sentence simpliciter.
[69] To be fair, the appellant's chief complaint would appear to be that in his case, an indeterminate sentence of imprisonment is manifestly excessive and disproportionate to the nature and seriousness of his crimes and his degree of moral culpability. Put somewhat differently, the appellant maintains that the dangerous offender provisions were not meant to apply to persons such as him. In this regard, he stresses that he is not a psychopath; he does not suffer from a personality disorder; he has not engaged in a prolonged and persistent pattern of sexual misconduct; his crimes have been restricted to touching and fondling; and he has never exhibited the type of coercive, brutal and callous behavior that typifies most dangerous offenders.
[70] As for his degree of moral blameworthiness, the appellant submits that as a pedophile, he is unable, through no fault of his own, to control his sexual urges towards children. And much as he might like to obtain treatment, his ability to do so is compromised by his cognitive limitations over which he has no control.
[71] The appellant makes a strong argument that an indeterminate sentence of imprisonment in his case is manifestly excessive. In some respects, his is a sad case, and certainly atypical of the vast majority of dangerous offender cases we see in this court.
[72] That said, I am not persuaded that the sentencing judge erred, either in declaring the appellant to be a dangerous offender or in sentencing him to an indeterminate period of detention.
[73] The sentencing judge was very much alive to the appellant's plight and the atypical aspects of his case. Notwithstanding his conclusion that the appellant did not meet the long-term offender criteria, the sentencing judge went on -- in the event he was mistaken -- to consider whether he should exercise his discretion against declaring the appellant to be a dangerous offender. In the end, although he chose not to do so, his reasons show a great deal of empathy towards the appellant.
[74] The sentencing judge described the appellant as "a sad sort of person . . . who can and should and does attract a great deal of sympathy". In this regard, he noted: [page756]
There are factors that play in his persona which seem to be beyond his control. He is developmentally challenged. He is a pedophile. He is an alcoholic. He has had a life which . . . seems to have largely been joyless.
[75] While mindful of these features, the sentencing judge was alive to other features of the case that weighed against exercising his discretion in favour of declaring the appellant to be a long-term offender. In this regard, the sentencing judge considered the appellant's prospects for treatment and noted that without medication, "there would be no substantial change possible". The sentencing judge also took into account the nature and seriousness of the predicate offence and the appellant's degree of moral turpitude. The offence involved "the sexual touching and physical injury of a four-year old child". The appellant knew that "this was wrong" and he also "knew that he was physically hurting the child because she was crying . . . but he was able to ignore it and continue with the act". In the sentencing judge's opinion, the appellant's crime was "extremely serious" and his "moral turpitude" was a matter of "grave concern".
[76] Having considered the appellant's treatability, the nature and seriousness of the predicate offence and the appellant's atypical features, the sentencing judge explained why in the end, he felt it necessary to declare the appellant a dangerous offender:
Nonetheless, in finding Mr. B. to be a dangerous offender I am not doing so because he is developmentally delayed, or because he is a pedophile, or because he is an alcoholic. Rather, I am finding him to be a dangerous offender because these conditions, taken collectively and together with the present offence, and the history represented by his past offences, together with the prognosis and treatment prospects testified to by the doctors and their opinions in that regard make him a dangerous offender as contemplated by parliament in section 753 of the Criminal Code.
There is no conventional sentence which I can impose in this matter which would adequately protect the public from Mr. B. and the sort of acts he has committed and is likely to commit in the future. The finding of a person as a dangerous offender is not a matter to be taken lightly, and in my opinion it is the required disposition here.
[77] Despite the appellant's argument to the contrary, I am not persuaded that the sentencing judge erred in exercising his discretion as he did. In particular, I do not accept the appellant's submission that the sentencing judge mischaracterized the nature and seriousness of the predicate offence or the appellant's degree of moral blameworthiness.
[78] Parliament has seen fit to define the term "serious personal injury offence" as including the offence of sexual assault. In doing so, Parliament chose not to draw a distinction between forced intercourse at knifepoint and "mere" fondling or touching. Every [page757] sexual assault is to be treated as serious and doubly so, in my view, where the victims are helpless children.
[79] To the extent that the appellant bases his "disproportionality" argument on the nature and seriousness of his crimes, a similar argument was considered and rejected by the Supreme Court of Canada in R. v. Currie, 1997 CanLII 347 (SCC), [1997] 2 S.C.R. 260, [1997] S.C.J. No. 10. At para. 24 of that decision, Lamer C.J.C. made the following apposite comments:
By definition, therefore, arguments of proportionality do not withstand scrutiny. There may be, as the respondent asserts, an objective difference between the nighttime rape at knife point and the predicate offences [repeated sexual touching of young girls in public], but this distinction is not reflected in s. 752 or 753 of the Criminal Code. Indeed the respondent is asking the Court to alter or even reduce the definition of "serious personal injury offence". The alteration would, as the appellant notes, effectively guarantee that an accused who has committed an arguably less serious sexual predicate offence would never be declared a dangerous offender. I cannot imagine that Parliament wanted the courts to wait for an obviously dangerous individual, regardless of the nature of his criminal record and notwithstanding the force of expert opinion as to his potential dangerousness, to commit a particularly violent and grievous offence before he or she can be declared a dangerous offender.
[80] As for the appellant's degree of moral blameworthiness, I do not see the characteristics that make the appellant "less blameworthy" as having much impact on the dangerous offender application. The focus of such an application is on future dangerousness and the protection of society. The appellant is a pedophile. While that is unfortunate, the reality remains that, untreated, he presents a serious threat to the safety of children in our society. And, as my colleague Cronk J.A. pointed out in L. (G.), at para. 70: ". . . in a contest between an individual offender's interest in invoking the long- term offender provisions of the Code and the protection of the public, the latter must prevail".
[81] Unfortunately for the appellant, he comes out on the losing end of that contest. Children cannot protect themselves. They are generally vulnerable and helpless. When it comes to their safety, we must be vigilant. In the case of pedophiles for whom there is no reasonable possibility of eventual control of the risk they pose in the community, there is only one option -- they must be segregated from society.
[82] For these reasons, I would not give effect to the appellant's second ground of appeal.
Issue Three: Is the Dangerous Offender Designation Unreasonable
[83] The appellant did not press this issue in oral argument. It should be self-evident from my analysis of the first two issues that this ground of appeal must fail. [page758]
[84] In my view, it was open to the sentencing judge on the record before him to declare the appellant to be a dangerous offender and sentence him accordingly.
Fresh Evidence
[85] The appellant has filed fresh evidence on the appeal. Ms. Hallett, for the Crown, takes no objection to our reviewing the proposed evidence, but in the end, she submits that we should not receive it because if believed, it could not reasonably, when taken with the other evidence adduced at the sentencing hearing, be expected to have affected the result. For reasons that follow, I agree.
[86] The proposed fresh evidence consists of an updated assessment of the appellant prepared by Dr. Gojer, dated February 4, 2009; a transcript of the cross-examination and re- examination of Dr. Gojer on the updated assessment, dated June 23, 2009; a report dated November 27, 2008 prepared by Dr. N. Pollock, a psychologist; an intake report on the appellant and follow-up assessment reports prepared by Correctional Services of Canada from 1999 to 2007; a letter dated June 15, 2009 to Ms. Hallett from Mr. J. Francis, a parole officer with Correctional Services of Canada; and a letter dated June 24, 2009 to Mr. Norris from Ms. C. Sandbach, a parole officer with Correctional Services of Canada.
[87] The Correctional Service Reports portray the appellant as a co-operative individual who presents few, if any, problems as an inmate. He has adjusted well to prison life; he is described as a good worker and he has taken steps to further his schooling. He has also attended Alcoholics Anonymous meetings to address his alcohol dependency.
[88] That said, to date, the appellant has not engaged in a sex offender treatment program. The appellant's special needs make such a treatment program problematic but Correctional Services feels that the appellant is a suitable candidate for the High Intensity Sex Offender Treatment Program offered at the Regional Treatment Centre in Kingston. Indeed, Correctional Service Reports dating back to 1999 recognize that the appellant would benefit from this program. At present, however, he remains "wait-listed", a designation that has remained constant for the past ten years.
[89] At the court's request, counsel for the appellant undertook to find out from the correctional authorities why the appellant had not yet been enrolled in the High Intensity Sex Offender Treatment Program and when this might be expected to occur. [page759]
[90] Mr. Norris has now reported back to the court. In a letter dated March 29, 2010, he advises that the appellant's parole officer, Ms. Sandbach, has provided the following information.
[91] Ms. Sandbach reports that the appellant has not yet been enrolled in the High Intensity Sex Offender Treatment Program because the program is offered infrequently -- "once a year if we're lucky" -- and offenders with fixed release dates are therefore given priority over offenders like the appellant, who are serving indeterminate sentences. The fact that the appellant has an outstanding appeal is not a problem, given his willingness to participate in the program regardless of the appeal.
[92] Ms. Sandbach further advises that when the program is next offered, the appellant will be given the opportunity to participate in it. That information is helpful and we see it as a positive measure from which the appellant will hopefully benefit. We sincerely trust that the appellant will be enrolled quickly in the program, given the lengthy passage of time to date.
[93] With that in mind, I return to Dr. Gojer's reassessment. Stripped to its essentials, as I read Dr. Gojer's updated report and his cross-examination, it would appear that very little if anything has changed other than the appellant's chronological age. The appellant continues to be in a state of denial. He has now conjured up an innocent explanation for the predicate offence involving K.C.-Y. He claims that his twin brothers "made up a story" about him because they "were angry . . . when he refused to let them drive a tractor". He denies having placed his hands down the pants of a six-year-old child while giving her a piggy-back ride. And perhaps most significantly, he claims that he has "never had any sexual interest in children".
[94] At the same time, Dr. Gojer reports that the appellant "admits to having pedophilic interests" and "seems to appreciate the wrongfulness of his actions, the possible harmful effects for a victim, and he expresses regret for his past behaviour". Dr. Gojer also reports that the appellant's "express commitment to treatment, including pharmacological approaches, is encouraging". Against this, however, he acknowledged to Ms. Hallett in cross-examination that the appellant's tendency to deny his wrongdoings and to downplay his sexual interest in children constitutes "an aggravating risk factor" in terms of his treatability.
[95] In the end, Dr. Gojer confirms his original opinion that the appellant poses a moderate to high risk of reoffending against children. He further reiterates that, in his view, the appellant could "be managed in the community on a Long-Term Offender Designation". His updated report concludes as follows: [page760]
[The appellant] is now 47 years old and will be about 57 years of age when a 10-year supervision ends. While his risk will not be eliminated, age alone will see a reduction in likelihood of offending. Ongoing management can be continued on an 810 order.
[96] With respect, I find Dr. Gojer's reassessment to be unhelpful. In the end, apart from stating the obvious -- that at the completion of a ten-year supervision order, the appellant will now be close to 60 -- Dr. Gojer basically states that there have been no significant changes in the appellant and certainly none that would materially reduce the risk he presents to children. Dr. Pollock comes to the same conclusion in his report.
[97] All in all, the proposed fresh evidence falls far short of satisfying the test for admissibility set out in R. v. Lévesque, 2000 SCC 47, [2000] 2 S.C.R. 487, [2000] S.C.J. No. 47, 148 C.C.C. (3d) 193. In particular, it fails the fourth part of the Palmer test (R. v. Palmer, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759, [1979] S.C.J. No. 126) in that if believed, it could not reasonably, when taken with the other evidence adduced at the sentencing hearing, be expected to have affected the result.
[98] Accordingly, I would not admit the proposed fresh evidence. In my view, any improvement seen in the appellant, and any factors that might eventually reduce his risk of reoffending to an acceptable level, are matters for the parole board to consider. In carrying out its task, I am confident that the parole board will take into account the appellant's special needs and the atypical aspects of his case.
Conclusion
[99] The appellant was properly found to be a dangerous offender. I see no basis for interfering with the indeterminate sentence imposed by the sentencing judge. Accordingly, I would dismiss the appeal.
Appeal dismissed.
APPENDIX "A"
- In this part, . . . . .
"serious personal injury offence" means (a) an indictable offence, other than high treason, treason, first degree murder or second degree murder, involving . . . . . [page761] (ii) conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage upon another person,
and for which the offender may be sentenced to imprisonment for ten years or more, or (b) an offence or attempt to commit an offence mentioned in section 271 (sexual assault), 272 (sexual assault with a weapon, threats to a third party or causing bodily harm) or 273 (aggravated sexual assault). . . . . .
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 (a) that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (a) of the definition of that expression in section 752 and the offender constitutes a threat to the life, safety or physical or mental well-being of other persons on the basis of evidence establishing (i) a pattern of repetitive behavior by the offender, of which the offence for which he or she has been convicted forms a part, showing a failure to restrain his or her behavior and likelihood of causing death or injury to other persons, or inflicting severe psychological damage on other persons, through failure in the future to restrain his or her behavior, . . . . . (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. . . . . .
(4) If the court finds an offender to be a dangerous offender, it shall impose a sentence of detention in a penitentiary for an indeterminate period. . . . . .
(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. . . . . . [page762]
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.
(2) The court shall be satisfied that there is a substantial risk that the offender will reoffend if (a) the offender has been convicted of an offence under section 151 (sexual interference), 152 (invitation to sexual touching) or 153 (sexual exploitation), subsection 173(2) (exposure) or section 271 (sexual assault), 272 (sexual assault with a weapon) or 273 (aggravated sexual assault), or has engaged in serious conduct of a sexual nature in the commission of another offence of which the offender has been convicted; and (b) the offender (i) has shown a pattern of repetitive behaviour, of which the offence for which he or she has been convicted forms a part, that shows a likelihood of the offender's causing death or injury to other persons or inflicting severe psychological damage on other persons, or (ii) by conduct in any sexual matter including that involved in the commission of the offence for which the offender has been convicted, has shown a likelihood of causing injury, pain or other evil to other persons in the future through similar offences.
(3) Subject to subsections (3.1), (4) and (5), if the court finds an offender to be a long-term offender, it shall (a) impose a sentence for the offence for which the offender has been convicted, which sentence must be a minimum punishment of imprisonment for a term of two years; and (b) order the offender to be supervised in the community, for a period not exceeding ten years, in accordance with section 753.2 and the Corrections and Conditional Release Act. . . . . .
810.2(1) Any person who fears on reasonable grounds that another person will commit a serious personal injury offence, as that expression is defined in section 752, may, with the consent of the Attorney General, lay an information before a provincial court judge, whether or not the person or persons in respect of whom it is feared that the offence will be committed are named.
(2) A provincial court judge who receives an information under subsection (1) may cause the parties to appear before the provincial court judge. [page763]
(3) The provincial court judge before whom the parties appear may, if satisfied by the evidence adduced that the informant has reasonable grounds for the fear, order that the defendant enter into a recognizance to keep the peace and be of good behavior for any period that does not exceed twelve months and to comply with any other reasonable conditions prescribed in the recognizance, including the conditions set out in subsections (5) and (6), that the provincial court judge considers desirable for securing the good conduct of the defendant.
(4) The provincial court judge may commit the defendant to prison for a term not exceeding twelve months if the defendant fails or refuses to enter into the recognizance.
- A person bound by a recognizance under section 810, 810.01, 810.1 or 810.2 who commits a breach of the recognizance is guilty of (a) an indictable offence and liable to imprisonment for a term not exceeding two years; or (b) an offence punishable on summary conviction.