COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Madden, 2014 ONCA 135

DATE: 20140221

DOCKET: C55448

Rosenberg, MacPherson and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Terrance Madden

Appellant

David Rose, acting as duty counsel

Michael Fawcett, for the respondent

Heard: February 18, 2014

On appeal from the sentence imposed on April 18, 2012 by Justice David G. Carr of the Ontario Court of Justice, sitting without a jury.

ENDORSEMENT

[1] The appellant appeals from the finding by Carr J. that the appellant is a dangerous offender and from the sentence of indeterminate detention.

[2] The appellant submits that the sentencing judge erred by failing to properly address the issue of reducing the risk through the use of verifiable anti-androgen injections that would result in chemical castration. The appellant argues that the DO designation should be set aside and be replaced by a long term offender designation together with an order under s. 810.2 of the Criminal Code.

[3] For the following reasons we do not accept that submission and the appeal is dismissed.

[4] The predicate offences that led to the DO finding occurred in 2007. The appellant was performing janitorial services in a rooming house in which he was residing. He paid two young girls, ages seven and ten, who lived in the rooming house, to help him with his cleaning. In the course of his interaction with them he sexually assaulted them and took photographs of the abuse.

[5] The appellant pled guilty to two counts of sexual assault, two counts of making, printing or publishing child pornography and one count of disobeying a court order.

[6] The offences have had a devastating psychological impact on the complainants.

[7] At the DO hearing, the prosecution led evidence of the appellant’s extensive involvement with the criminal justice system, an involvement that started in 1976. The appellant’s criminal record includes 23 convictions for sexual offences including sexual assault, sexual interference, invitation to sexual touching and indecent act.

[8] The appellant has been diagnosed as a pedophile with a number of additional psychiatric conditions including having a borderline personality disorder. The only chance of imposing a LTO on him instead of an indeterminate sentence hinges on the proposition that the appellant could be controlled by anti-androgen injections.

[9] The sentencing judge found that control through these injections was speculative. His reasons for this finding are, in our view, supported by the record. They include the fact that chemical castration is only effective if the appellant continues to take his sex drive medication. At any time the appellant can stop taking his medication as he has many times in the past. Surgical castration is not reliable as it can be reversed through the consumption of drugs such as viagra.

[10] We are satisfied that the sentencing judge did not err in assessing the evidence on the anti-androgen issues and concluding that the risk the appellant poses is significant and continuous and that neither the passage of time nor treatment can reduce this risk to an acceptable level. The appellant has been found to be manipulative. He appears co-operative when dealing with psychiatrists and others and has participated in extensive therapy. However, the evidence is clear that the appellant invariably returns to a course of conduct that involves his going off his medication and his committing further serious personal injury offences.

[11] We reject the appellant’s suggestion that the risk he poses could be controlled by setting aside the DO designation and substituting a LTO designation together with an order under s. 810.2 of the Code.

[12] In order to qualify as a LTO the court must be satisfied under s. 753.1(1)(c) that there must be a reasonable possibility that the risk the offender poses will be controlled within the duration of the LTO sentence.

[13] The evidence in this case is that the appellant will not be controlled within the duration of the sentence. His condition is intractable and he will be a risk throughout his lifetime. As a result, he does not meet the long-term offender criteria.

[14] We do not accept the appellant’s proposition that the risk can be controlled by the addition of an order under s. 810.2 of the Code. A s. 810.2 order is a form of recognizance that requires an offender to maintain certain necessary conditions following his term of long-term supervision or face re-incarceration.

[15] The relationship between a s. 810.2 order and the availability of a LTO was examined in detail by Moldaver J.A. in R. v. D.V.B., 2010 ONCA 291. In D.V.B., a sex offender was designated a dangerous offender. He appealed his designation on the basis that the sentencing judge erred in declaring him a dangerous offender instead of a long-term offender. The appellant argued that to be a LTO instead of a DO, there need only be a reasonable possibility that the risk 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.” (para. 40).

[16] In D.V.B., Moldaver J.A., writing for a unanimous panel of this court, rejected this argument. At para. 56 he explained:

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... 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.

[17] In short, “if persons who are otherwise highly dangerous, cannot meet the relatively modest requirements of s. 753.1(1)(c) in the generous timeframe allotted by Parliament… they should be declared dangerous offenders and given an indeterminate sentence.” (D.V.B., at para. 58) This remains the state of the law in Ontario. In the circumstances of this case, a s. 810.2 order cannot be used as a stop-gap.

[18] The psychiatric and other evidence at the dangerous offender hearing overwhelmingly established that the appellant is a dangerous offender and that an indeterminate sentence is the only possible disposition.

[19] Accordingly, the appeal is dismissed.

“M. Rosenberg J.A.”

“J.C. MacPherson J.A.”

“Gloria Epstein J.A.”