COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Charbonneau, 2012 ONCA 282
DATE: 20120501
DOCKET: C47394
Weiler, Simmons and Cronk JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Marc Charbonneau
Appellant
Marc Charbonneau, in person
Joseph Di Luca, duty counsel
Eric Siebenmorgen, for the respondent
Heard and released orally: April 17, 2012
On appeal from the sentence imposed on June 22, 2007 by Justice Catherine D. Aitken of the Superior Court of Justice, sitting without a jury.
ENDORSEMENT
[1] The appellant appeals his dangerous offender designation and indeterminate sentence. He submits that a long-term offender designation and determinate sentence of 8 years would be more appropriate. At that time the appellant would be 57 years old and a ten-year supervision order would bring him to the age of 67.
[2] The sentencing judge concluded that even when the appellant is in his sixties, the risk he poses to sexually re-offend would not be manageable in the community. The appellant submits that this conclusion is unreasonable and contrary to the weight of the expert evidence, in particular that of Dr. Dickie. We disagree.
[3] Viewed in the manner most favourable to the appellant, the expert evidence before the sentencing judge established:
- The appellant’s risk of sexually re-offending before he reaches 60 years of age can be reduced to a manageable level if, but only if, he abides by a sex drive-reducing course of medication. However, the appellant has consistently objected to such medication and does not accept the need to take it.
In these circumstances, the sentencing judge was fully justified in concluding that, at least until the appellant is in his sixties, he has to be “in a setting where he does not have access to potential sexual victims”;
- The appellant’s risk of sexually re-offending after he reaches 60 years of age is likely to be reduced by age and health factors, in particular, by a natural reduction of his sex drive. Nonetheless, a viable system of meaningful external controls would still be required.
There was ample evidentiary foundation for the sentencing judge’s conclusion that the required system of external controls was “realistically unlikely...to bring the risk posed [by the appellant] to a manageable and acceptable level”. For example, the evidence indicated that the appellant has an established and lengthy history of non-compliance with court orders, he lacks community and family supports, he is manipulative and cannot be relied upon for accurate self-reporting, no treatment program will fundamentally change his nature and tendencies and, given his history and strong sex drive, it is likely that he will seek sexual gratification when the opportunity presents itself.
The sentencing judge also rejected the theory that once the proposed period of long-term supervision ended, the appellant’s risk of sexually reoffending due to reduction of his sex drive was negligible. This theory of sexual “burn out” was based primarily on academic literature. The sentencing judge was entitled to reject it based on the evidence of the appellant’s particular sexual characteristics and history, set out above.
- Finally, even Dr. Dickie, whose risk management assessment most favoured the appellant, acknowledged that the potential for controlling the risk of the appellant reoffending with respect to domestic assaults was far more remote and unlikely to disappear.
[4] In these circumstances, there was more than ample evidentiary support for the sentencing judge’s conclusion that there was no reasonable possibility of eventually controlling in the community the risk to women (and especially vulnerable women) presented by the appellant.
[5] Accordingly, the appeal is dismissed.
“K. Weiler J.A.”
“Janet Simmons J.A.”
“E.A. Cronk J.A.”