Her Majesty the Queen v. Sawyer

[Indexed as: R. v. Sawyer]

Ontario Reports

Court of Appeal for Ontario,

Tulloch, Pardu and Benotto JJ.A.

September 9, 2015

127 O.R. (3d) 686 | 2015 ONCA 602

Case Summary

Criminal law — Dangerous offenders — Appeal — Fresh evidence on appeal — Sentencing judge rejecting accused's assertion that his risk could be adequately controlled in community if he was supervised and took sex-drive reducing medication — Sentencing judge declaring accused to be dangerous offender and imposing indeterminate sentence — Accused appealing — Accused not permitted to adduce fresh evidence of his progress while being treated with sex-drive reducing medication — Evidence not credible to extent relied on self-report from manipulative offender regarding impact of medication and not likely to have affected result — Decreased testosterone level irrelevant to other emotional needs accused met by sexually offending — After-the-fact developments in accused's rehabilitation and treatment more appropriately matter for parole authorities rather than as means of undermining finality of trial judge's reasonable and error-free conclusion — Appeal dismissed.

Criminal law — Dangerous offenders — Indeterminate sentence — Accused pleading guilty to sexual interference — Accused having 30-year long history of sexually abusing young girls and manipulating people in authority in order to facilitate offending — Sentencing judge designating accused as dangerous offender and imposing indeterminate sentence — Accused's appeal dismissed — Sentencing judge reasonably concluding that mere possibility that accused might take sex-drive reducing medication did not adequately reduce high risk — Parole board unable to mandate taking medication and indirect enforcement mechanism that might be invoked inadequate given high risk to children — Sentencing judge not failing to apply forward-looking test and appropriate to consider history of past offending after intensive [page687] counselling and supervision and notwithstanding his age — Sentencing judge appropriately considering possibility of imposing lengthy determinate sentence followed by long-term supervision order — Sentencing judge reasonably concluding that evidence did not support reasonable expectation that risk posed by accused could be managed with determinate sentence.

The accused, who was 53 years old at the time of the offence, pleaded guilty to one count of sexual interference. The Crown applied to have him designated a dangerous offender. The accused had a 30-year long history of sexually abusing young girls both inside and outside of his family and of manipulating people in authority and his victims to ensure that he was allowed to continue to offend, including while being supervised by the Children's Aid Society. After a previous conviction for sexual interference, he received a three-year sentence and obtained extensive treatment and counselling while incarcerated. He had been diagnosed with a pedophilic paraphilia and a personality disorder. The sentencing judge rejected the defence submission that the accused's risk to the public could be adequately controlled in the community if he was supervised, continued counselling and took Lupron (a sex-drive reducing medication). She designated the accused as a dangerous offender and imposed an indeterminate sentence. The accused appealed the indeterminate sentence and sought to introduce fresh evidence on appeal of his progress while taking Lupron after the imposition of the sentence.

Held, the application to adduce fresh evidence and the appeal should be dismissed.

The sentencing judge did not misapprehend the evidence. It was open to her to conclude, on the evidence before her, that the mere possibility that the accused might be able to take Lupron and have his sex drive reduced did not adequately reduce the risk. The medical opinion regarding the accused's risk after being treated with Lupron was not unequivocal, and, even if it was, the sentencing judge was not required to accept it. It was not unreasonable for her to take into account his history of manipulating people in authority. She appropriately noted that the Parole Board could not order him to take medication. It could only order that he be under psychiatric care by a psychiatrist who might prescribe Lupron, if a workup established that there were no contraindications. If the accused then refused to take it or stopped taking it, CSC might have considered this to be a breach of the long-term supervision order, if it concluded that the accused had "no reasonable excuse" for not taking the medication. If the medication adversely affected the accused's health, that could be a reasonable excuse and there would be no means of enforcing compliance with Lupron. She also noted that the accused did not require an erection to re-offend. Further, the accused offended to meet his emotional as well as his sexual needs and Lupron would have no impact on his unmet emotional needs. The trial judge did not fail to apply a forward-looking test. She was entitled to take into account the accused's past behaviour, and did not allow his past failures to dictate the outcome. She appropriately considered the possibility of imposing a lengthy determinate sentence followed by a long-term supervision order. Her conclusion that there was no reasonable expectation that a determinate sentence and a long-term supervision order would adequately protect the public was not unreasonable. A judge cannot impose a determinate sentence outside the range of fit sentences for the offence to avoid imposing an indeterminate sentence.

The fresh evidence about the accused's treatment with Lupron was not admissible. The accused's self-reporting was not credible, and the evidence of a doctor [page688] was not credible to the extent that it was based on the accused's self-reporting. Moreover, the evidence could not be expected to have affected the result. Evidence of the accused's after-the-fact progress should not be admitted or relied on to undermine the finality of the sentencing judge's reasonable and error-free conclusion. The proposed fresh evidence was more appropriately a matter for the parole authorities.

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, 4 W.C.B. 171, apld

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, 100 O.A.C. 161, 211 N.R. 321, 34 W.C.B. (2d) 264, consd

Other cases referred to

R. v. Bunn, [2014] S.J. No. 620, 2014 SKCA 112, 446 Sask. R. 184, 117 W.C.B. (2d) 420; R. v. C. (I.M.) (2014), 120 O.R. (3d) 1, [2014] O.J. No. 1918, 2014 ONCA 312, 308 C.C.C. (3d) 272, 318 O.A.C. 280, 112 W.C.B. (2d) 831; 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.L.), [2004] S.J. No. 589, 2004 SKCA 125, [2005] 7 W.W.R. 52, 254 Sask. R. 255, 189 C.C.C. (3d) 492, 64 W.C.B. (2d) 75; R. v. Little (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, 2008 CanLII 18932]; R. v. McCallum, 2005 CanLII 8674 (ON CA), [2005] O.J. No. 1178, 196 O.A.C. 101, 201 C.C.C. (3d) 541, 64 W.C.B. (2d) 668 (C.A.) [Leave to appeal to S.C.C. refused [2006] S.C.C.A. No. 145]; R. v. Osborne, [2014] M.J. No. 216, 2014 MBCA 73, 306 Man. R. (2d) 276, [2014] 10 W.W.R. 262, 604 W.A.C. 276, 314 C.C.C. (3d) 57, 115 W.C.B. (2d) 195; R. v. S. (D.J.), [2015] B.C.J. No. 1942, 2015 BCCA 111, 370 B.C.A.C. 57, 120 W.C.B. (2d) 321; R. v. Severight, [2014] A.J. No. 45, 2014 ABCA 25, 306 C.C.C. (3d) 197, 93 Alta. L.R. (5th) 356, 566 A.R. 344, 111 W.C.B. (2d) 383 [Leave to appeal to S.C.C. refused [2014] S.C.C.A. No. 184, 2014 CanLII 38979]; R. v. Sipos, [2014] 2 S.C.R. 423, [2014] S.C.J. No. 47, 2014 SCC 47, 2014EXP-2184, J.E. 2014-1238, EYB 2014-239528, 460 N.R. 1, 320 O.A.C. 76, 12 C.R. (7th) 18, 311 C.C.C. (3d) 121, 374 D.L.R. (4th) 46, 114 W.C.B. (2d) 251; R. v. Steele, [2014] 3 S.C.R. 138, [2014] S.C.J. No. 61, 2014 SCC 61, 310 Man. R. (2d) 236, [2014] 11 W.W.R. 427, 14 C.R. (7th) 1, 463 N.R. 125, 378 D.L.R. (4th) 296, 316 C.C.C. (3d) 315, 2014EXP-3126, J.E. 2014-1794, EYB 2014-242964, 116 W.C.B. (2d) 427; R. v. Taylor, [2012] O.J. No. 1564, 2012 ONSC 1025, 101 W.C.B. (2d) 66 (S.C.J.)

Statutes referred to

Criminal Code, R.S.C. 1985, c. C-46, ss. 151 [as am.], 683(1), Part XXIV [as am.], ss. 753 [as am.], (4)(b) [as am.], (c) [as am.], (4.1) [as am.], 759(1) [as am.], (7)

APPEAL from the indeterminate sentence entered by Gorman J. of the Superior Court of Justice on September 28, 2011.

Jill Presser and Andrew Menchynski, for appellant.

Susan Magotiaux, for respondent. [page689]

The judgment of the court was delivered by

TULLOCH J.A.: —

Overview

[1] The appellant pled guilty to one count of sexual interference under s. 151 of the Criminal Code, R.S.C. 1985, c. C-46 in 2010. The Crown applied to have him designated a dangerous offender. At his sentencing hearing, the main issue was whether the appellant should be sentenced to an indefinite term of imprisonment or whether there was a reasonable expectation that a lesser measure, a definite term of imprisonment followed by a long-term supervision order, would adequately protect the public. The sentencing judge concluded that the appellant was a dangerous offender and sentenced him to an indefinite term of imprisonment.

[2] The appellant challenges his indeterminate sentence and makes three arguments:

the sentencing judge misapprehended various aspects of the evidence;

the sentencing judge failed to apply a forward-looking test; and

the sentencing judge's conclusion that there was no reasonable expectation that a lesser measure would adequately protect the public was unreasonable.

[3] The appellant has also applied for leave to adduce fresh evidence relating to his treatment with sex-drive reducing medication.

[4] I would reject each of the appellant's arguments and dismiss the appeal. I would also dismiss the fresh evidence application, as the appellant's proposed fresh evidence does not meet the criteria set out in R. v. Palmer, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759, [1979] S.C.J. No. 126, and is therefore not admissible. In any event, the appellant's fresh evidence is more appropriately a matter for the parole authorities.

Facts

[5] The offence to which the appellant pleaded guilty and which led to the dangerous offender proceedings occurred in 2009. The appellant befriended the mother of eight-year-old A.G. He began to babysit A.G. and her siblings. The children slept over at his home and A.G. slept in the appellant's bed. On at [page690] least three occasions, the appellant put his hands down A.G.'s pants, touched her genitals and digitally penetrated her vagina and anus. On one occasion, he made A.G. touch his penis. On more than one occasion, she awoke to find him performing oral sex on her.

[6] About a month passed before a neighbour, suspecting abuse, contacted the police and the Children's Aid Society. The appellant was arrested that day. He was 53 years old at the time of the offence. The appellant has a long history of sexually abusing young girls.

[7] In 1982, the Children's Aid Society received a complaint that the appellant was sexually abusing his niece. The appellant admitted the allegations. The police investigated, but did not lay charges. Around the same time, there was a similar allegation, also admitted by the appellant, that he sexually abused the young daughter of a family friend.

[8] In the early 1980s, the appellant's biological daughter, A., disclosed that the appellant had been sexually abusing her. The Children's Aid Society found the disclosure credible, and placed her in foster care. At the appellant's sentencing hearing, A. testified that she could only recall one incident of sexual abuse. She stated that when she was older, she discussed the incident with the appellant, and he admitted to other incidents. He blamed her for the abuse.

[9] From this point until 2000, the Children's Aid Society was heavily involved in the appellant's life. Several Children's Aid Society employees met with the appellant, his wife, his children, and his step-children during this period to ensure he was following the terms of a court order prohibiting him from being left alone with the children and to ensure he was not sexually abusing children. Some of these individuals testified at the appellant's sentencing hearing, and noted his ability to manipulate people in authority and his victims to ensure his abuse went undetected.

[10] Despite the regular involvement of the Children's Aid Society, the appellant sexually abused his stepdaughter, E., over a six-year period. The appellant touched E.'s breasts and genitals about three times a week. At one point, E. disclosed the abuse, but recanted a month later.

[11] In 1997, E. again disclosed the abuse. This time, charges were laid against the appellant. In 2000, he was convicted of sexual interference for his abuse of E. He was sentenced to three years in the penitentiary, and obtained extensive treatment and counselling while incarcerated. [page691]

The Expert Evidence at the Sentencing Hearing

[12] Dr. Lisa Ramshaw provided a report and testified at the appellant's sentencing hearing. She diagnosed the appellant with a pedophilic paraphilia, and a specific sexual preference for pre-pubescent girls. She also testified that the appellant has a personality disorder, not otherwise specified. He exhibits dependent and manipulative traits, as well as poor coping mechanisms.

[13] Dr. Ramshaw testified that while sexual behaviour may change over time, it is unlikely for sexual preference to change. She concluded that there was a significant likelihood that the appellant would re-offend. It was her opinion, however, that a risk management system could be put in place that might manage the risk to the public.

[14] The risk management system she proposed had six prongs.

[15] First, she suggested treating the appellant with high-potency sex-drive reducing medication called Lupron. This medication would result in castration levels of testosterone, and would reduce both the appellant's sex drive and sexual interest. However, exogenous testosterone, Viagra or other erectile dysfunction medications could counteract the effects of Lupron. The appellant was prescribed Viagra in 2009. Dr. Ramshaw acknowledged that testing the appellant to see if he had been taking other drugs to counteract the medication could prove challenging. The drugs he might take to counteract the Lupron leave the bloodstream quickly. Random blood testing would provide the best means of monitoring the appellant's compliance.

[16] Dr. Ramshaw testified that the appellant told her he would be prepared to take sex-drive reducing medication if he could tolerate it medically. The appellant has several medical conditions including Crohn's disease and diabetes. Dr. Ramshaw stated that Lupron was not contraindicated for the appellant's conditions, and that it has the fewest side-effects of the various types of sex-drive reducing medications.

[17] Second, she recommended that the appellant be placed in further sex offender treatment, including ongoing maintenance therapy once in the community.

[18] Third, she suggested that the appellant participate in anger management therapy.

[19] Fourth, she recommended that the appellant be closely monitored and supervised in the community. Because of his tendency to be manipulative, his self-reporting is not reliable. [page692] A supervising authority should corroborate his self-report by contacting collateral sources and conducting regular unannounced home visits.

[20] Fifth, she recommended that any potential supervisors, counsellors, or future partners be made aware of the appellant's history.

[21] Sixth, she stressed that the appellant should never be in the presence of unsupervised minors, should not be near child-focused areas and should disclose intimate relations to his supervisors.

Decision Below

[22] The sentencing judge designated the appellant a dangerous offender and imposed an indeterminate sentence of imprisonment subject to parole review. She found that the appellant had demonstrated a pattern of repetitive predatory sexual behaviour. While the appellant had been counselled, first by the Children's Aid Society, and then while incarcerated for sexually abusing E., the sentencing judge found that it was "all to no avail". She held that it was clear the appellant was unable to restrain his behaviour, and that there continued to be a strong likelihood of his causing injury, death or severe psychological damage to others.

[23] The sentencing judge rejected the defence's contention that the risk could be adequately controlled in the community if the appellant was supervised, continued counselling and took Lupron. She noted that the appellant had offended over a 30-year period with victims inside and outside his family. He continued to offend despite intensive supervision and counselling. He had reported his sex drive was already low in 2009, yet had sexually abused A.G. during this time.

[24] The sentencing judge acknowledged that the appellant had expressed willingness to take Lupron, but his assertion was untested. The Parole Board could not enforce medical intervention. The sentencing judge observed that none of the appellant's previous sexual assaults involved penile penetration. She concluded that the appellant was a skilled manipulator who continued to offend despite treatment, a diminished sex drive and advanced age. She designated him a dangerous offender and sentenced him to an indefinite term of imprisonment.

Grounds of Appeal

-- Did the sentencing judge misapprehend the evidence?

Did the sentencing judge fail to apply a forward-looking test? [page693]

Was the sentencing judge's conclusion that there was no reasonable expectation that a lesser measure would adequately protect the public unreasonable?

Discussion

[25] Below, I set out the standard of review for a dangerous offender designation as well as the general principles governing the designation of an offender as "dangerous" and the imposition of an indeterminate sentence. I then address each of the appellant's grounds of appeal in turn. In my view, the sentencing judge did not misapprehend the evidence nor did she fail to apply a forward-looking test. Her decision to impose an indeterminate sentence was not unreasonable. Finally, I address the appellant's proposed fresh evidence and explain why it is my view that this evidence is not admissible.

A. Standard of review

[26] Appellate review of a dangerous offender designation "is concerned with legal errors and whether the dangerous offender designation was reasonable": R. v. Sipos, [2014] 2 S.C.R. 423, [2014] S.C.J. No. 47, 2014 SCC 47, at para. 23. While deference is owed to the factual and credibility findings of the sentencing judge, appellate review of a dangerous offender designation is more robust than on a "regular" sentence appeal: Sipos, at paras. 25-26; R. v. Currie, 1997 CanLII 347 (SCC), [1997] 2 S.C.R. 260, [1997] S.C.J. No. 10, at para. 33.

[27] Prior to the 2008 amendments to Part XXIV of the Criminal Code, the designation of an offender as dangerous would necessarily have resulted in the imposition of an indeterminate sentence. Now, the court has some discretion as to the sentence imposed, as discussed below. Whether this change results in a different standard of review for the dangerous offender designation as opposed to the sentence imposed has not been addressed in the jurisprudence and for the purposes of this appeal, it is not necessary for us to decide this issue.

[28] In my view, nothing turns on the standard of review here and, in any event, the standard of review for the imposition of an indeterminate sentence is likely the same as the standard of review for a dangerous offender designation. Section 759(1) grants an offender who is found to be a dangerous offender or a long-term offender a right of appeal "from a decision made under this Part on any ground of law or fact or mixed law and fact". The decision to impose an indeterminate sentence is made under "this Part" -- Part XXIV -- of the Criminal Code. In Currie, the Supreme Court interpreted an earlier version of [page694] this provision which also granted a right of appeal "on any ground of law or fact or mixed law and fact" and said the following, at para. 33:

[T]he role of an appellate court is to determine if the dangerous offender designation was reasonable. . . . I do not find the "manifestly wrong" or "demonstrably unfit" general sentencing standards . . . to be applicable to this situation. However, it is equally true that s. 759 cannot be interpreted as calling for the equivalent of a trial de novo on the dangerous offender application. Some deference to the findings of a trial judge is warranted. After all, credibility should be assessed and findings of fact should be made by the trier of fact.

[29] In my view, as the right of appeal is identically worded, the Supreme Court's interpretation of the scope of appellate review in Currie applies equally to the imposition of an indeterminate sentence. Courts can review the imposition of an indeterminate sentence for legal error and reasonableness, but should defer to the factual and credibility findings of the trier of fact.

B. General principles

[30] An indeterminate sentence is a preventative sanction, imposed on an offender "in order to address an elevated risk of future offending": Sipos, at para. 19. It is designed to protect the public from an offender who poses a real danger of future violence: R. v. Steele, [2014] 3 S.C.R. 138, [2014] S.C.J. No. 61, 2014 SCC 61, at para. 29. An indeterminate sentence has a very significant impact on the offender, and accordingly, Parliament has provided that it should not be imposed unless there is no reasonable expectation that a lesser measure will be able to adequately protect the public: s. 753(4.1).

[31] Section 753 of the Criminal Code requires a judge to find an offender to be a dangerous offender on an application made by the Crown if the court is satisfied:

753(1) . . .

(a) that the offence for which the offender has been convicted is a serious personal injury offence . . . 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 behaviour 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 behaviour and a 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 behaviour,

(ii) a pattern of persistent aggressive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a substantial degree of indifference on the part of [page695] the offender respecting the reasonably foreseeable consequences to other persons of his or her behaviour, or

(iii) any behaviour by the offender, associated with the offence for which he or she has been convicted, that is of such a brutal nature as to compel the conclusion that the offender's behaviour in the future is unlikely to be inhibited by normal standards of behavioural restraint; or

(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.

[32] Once the court concludes that an offender is a dangerous offender, it must impose a sentence of indeterminate detention "unless it is satisfied . . . that there is a reasonable expectation that a lesser measure . . . will adequately protect the public against the commission by the offender of murder or a serious personal injury offence": s. 753(4.1). The lesser measures referred to in s. 753(4.1) are specified in s. 753(4) (b) and (c) as either a determinate sentence for the offence plus a long-term supervision order for a maximum of ten years, or a sentence for the offence.

[33] As a preliminary matter, the Crown argues the "reasonable expectation" standard reflects a new standard for risk. Prior to 2008, the scheme for dangerous offender and long-term offender designations operated differently. Putting it simply, the court used to have discretion over whether to designate an offender a dangerous offender even if the statutory criteria were met. The court would have to consider whether the individual could instead be designated a long-term offender, which required there to be a "reasonable possibility" of eventual control of the risk in the community: see R. v. Johnson, [2003] 2 S.C.R. 357, [2003] S.C.J. No. 45, 2003 SCC 46.

[34] Now, when a court considers whether to impose an indeterminate sentence on a dangerous offender, the question is whether there is a reasonable expectation that a lesser measure will adequately protect the public. The Crown argues that the "reasonable expectation" standard requires the risk to be controlled to a higher degree of certainty than a "reasonable possibility".

[35] Without deciding this issue, I note that the Manitoba Court of Appeal has held that the language of "reasonable expectation" imposes a different and higher standard than a "reasonable [page696] possibility": R. v. Osborne, [2014] M.J. No. 216, 2014 MBCA 73, 314 C.C.C. (3d) 57, at paras. 73-74. In Osborne, the court accepted that a reasonable possibility is a belief that something may happen, whereas a reasonable expectation consists of a belief that something will happen (at para. 73). The Saskatchewan Court of Appeal and the British Columbia Court of Appeal have reached a similar conclusion, as have lower courts in Ontario: see R. v. Bunn, [2014] S.J. No. 620, 2014 SKCA 112, 446 Sask. R. 184; R. v. S. (D.J.), [2015] B.C.J. No. 1942, 2015 BCCA 111, leave to appeal to S.C.C. requested; see, for example, R. v. Taylor, [2012] O.J. No. 1564, 2012 ONSC 1025 (S.C.J.), at para. 346, in which "reasonable expectation" was defined as "a confident belief for good and sufficient reason based upon the quality and cogency of the evidence" (emphasis in original).

[36] I do not feel it is necessary to decide this issue at this time as the parties did not devote a significant amount of time to it in argument. The appellant's primary submission was that it was not necessary to decide this issue. In my view, more extensive argument could be useful to understand how the standards here interact with the scheme for designating an offender a long-term offender. In any event, based on my conclusion that the appeal should be dismissed, nothing turns on this issue. The sentencing judge refers to "reasonable possibility" in her reasons. The parties used "reasonable expectation" and "reasonable possibility" interchangeably and did not argue before her that these standards are different. First, if the standards are different and "reasonable expectation" is stricter, the sentencing judge may have wrongly imposed the less stringent standard. But any error by the sentencing judge in employing a "reasonable possibility" standard could only have inured to the appellant's benefit, as this would be the easier to meet of the two standards. Second, if the standards are the same, the sentencing judge's reasons do not indicate any error.

[37] The Crown's position is that even if the standards are the same, the "reasonable possibility" standard was not met on the facts of this case. I agree. It is important to note that the law is clear that a reasonable possibility does not mean a mere possibility or a hope that the risk might be controlled in the community: see R. v. McCallum, 2005 CanLII 8674 (ON CA), [2005] O.J. No. 1178, 201 C.C.C. (3d) 541 (C.A.), at para. 47, leave to appeal to S.C.C. refused [2006] S.C.C.A. No. 145. A complete elimination of risk is not required, but there must be proof that the nature and severity of the risk can be adequately contained in the community by treatment, external controls, some other means or a combination of mechanisms: [page697] R. v. Little (2007), 87 O.R. (3d) 683, [2007] O.J. No. 2935, 2007 ONCA 548, 225 C.C.C. (3d) 20, at paras. 39 [and] 42, leave to appeal to S.C.C. refused [2008] S.C.C.A. No. 39, 2008 CanLII 18932.

[38] With these principles in mind, I turn to the appellant's grounds of appeal.

C. Did the sentencing judge misapprehend the evidence?

[39] The appellant submits that the sentencing judge misapprehended the evidence in four respects, and that these misapprehensions led her to an unreasonable result. He argues the sentencing judge misapprehended the evidence of (i) his treatment prospects, (ii) whether Lupron would reduce his risk, (iii) whether the Parole Board could enforce a condition requiring him to take Lupron and (iv) the fact that he re-offended after having gone through treatment. I disagree.

(1) The appellant's treatment prospects

[40] The appellant argues that the sentencing judge misapprehended the evidence of his treatment prospects should he be prescribed sex-drive reducing medication. The appellant suggests that the sentencing judge should not have rejected Dr. Ramshaw's opinion that Lupron would make the risk manageable on the basis that his willingness to take the drug had not been tested. The appellant also argues that the sentencing judge should have accepted Dr. Ramshaw's opinion that he was likely to comply with treatment, and that Lupron was unlikely to be contraindicated despite his age and other medical conditions.

[41] I reject these arguments. It was open to the sentencing judge to conclude, on the evidence before her, that the mere possibility that the appellant might be able to take Lupron and have his sex drive and interest in sexual activity reduced did not adequately reduce the risk.

[42] First, I would note that Dr. Ramshaw's opinion regarding the appellant's risk after being treated by Lupron was not as unequivocal as the appellant suggests. Dr. Ramshaw stated that the appellant "may benefit from this medication", but set out in her report many areas of uncertainty, including whether the appellant would be able to take the medication, both in terms of contraindications and potential side-effects, and whether he was committed to taking it. Dr. Ramshaw also noted that some people do offend while on the medication and there were ways the appellant might get around Lupron. Additionally, the pursuit of sexual gratification was not the only reason the appellant offended, and Lupron would not address the appellant's other motivations. [page698]

[43] Even assuming that Dr. Ramshaw offered an unequivocal opinion, the sentencing judge was not required to accept it. She was required to consider the evidence as a whole, which included the uncertainties outlined above, the appellant's fixed maladaptive traits that predisposed him to offend against children, and the appellant's history of manipulating people in authority in order to permit him to continue offending. It was not unreasonable for her to take account of this evidence in rejecting his argument that he would be able to take Lupron and that Lupron would make the risk he posed manageable.

(2) The effect of Lupron on the risk posed by the appellant

[44] The appellant argues that the sentencing judge erred in concluding Lupron would not affect his risk because he did not require an erection to offend, and that Lupron was therefore "inapplicable" to him. Again, I disagree.

[45] With respect, I do not agree that the sentencing judge reasoned in the manner the appellant suggests. She did not conclude that the possibility of control of sexual urges by Lupron was generally irrelevant, but rather that one of the effects of Lupron -- erectile dysfunction -- would not contribute to reducing the risk posed by the appellant because he did not require an erection to offend. The sentencing judge commented that the appellant's assertion that he would take Lupron remained untested, that the Parole Board could not enforce medical intervention and that none of the appellant's previous sexual assaults involved penile penetration. The sentencing judge then noted that he continued to offend despite treatment, a diminished sex drive and advancing age. The sentencing judge referred to the fact that the appellant did not require an erection to offend in the context of evidence that his sex drive had diminished before he committed the predicate offence and evidence that he was motivated to offend for emotional as well as sexual reasons. The fact that he did not require an erection to offend was relevant in light of this evidence.

(3) The Parole Board's ability to require the appellant to take medication

[46] The appellant also argues the sentencing judge misapprehended the evidence and the law when she concluded that the Parole Board could not enforce a term that required the appellant to take certain medication. The appellant submits that such a term could be enforced indirectly, by way of a term requiring the offender to follow psychiatric counselling. An [page699] offender could be charged with a breach if he failed to follow the treatment recommended by his psychiatrist.

[47] In my view, the appellant's argument is unsupported on a fair reading of the reasons. The sentencing judge stated that the Parole Board could not enforce medical intervention. This comment was consistent with the evidence. It was not unreasonable for the sentencing judge to conclude that the indirect mechanism of enforcement suggested by the appellant would not adequately reduce the risk.

[48] The evidence before the sentencing judge from Correctional Services Canada was that the Parole Board would not impose a long-term supervision order condition requiring a person to take a certain medication. It would, as the appellant suggests, require an offender to follow psychiatric counselling as recommended by a psychiatrist, who might in turn prescribe Lupron. If an offender refused to take medication, Correctional Services Canada might interpret this as a breach of the counselling condition. Unless the refusal to take medication amounts to a breach of the long-term supervision order, there is no way to re-incarcerate the offender.

[49] As the respondent points out, the appellant would only be charged with a breach if he failed to comply with a term of a long-term supervision order without a reasonable excuse. A reasonable excuse could potentially include that the medication had unacceptable side effects or was contraindicated by the appellant's health conditions. The sentencing judge did not have definitive evidence on whether the appellant would suffer from significant side effects or be unable to take Lupron for other reasons. While she did not refer to it in her reasons, it would have been reasonable for her to conclude, as she implicitly did, that the indirect enforcement mechanism proposed by the appellant was inadequate given the lack of evidence about the appellant's ability to take Lupron.

[50] The sentencing judge also had limited evidence of the appellant's willingness to take Lupron. She had only his second-hand assertion to Dr. Ramshaw. It would not have been unreasonable for her to conclude that without further evidence of the appellant's commitment to taking Lupron, a long-term supervision order with an indirect enforcement mechanism would not adequately reduce the risk.

(4) The significance of the appellant's treatment and re-offence history

[51] The appellant submits the sentencing judge misapprehended the evidence of the fact that he had re-offended despite [page700] having been through intensive sex offender treatment. He argues that she failed to appreciate that his treatment was successful for some time and that Dr. Ramshaw's proposed plan involved treatment as only one prong in a more comprehensive overall strategy.

[52] I reject this argument. The appellant admits that the fact that he re-offended despite having been through intensive treatment was a relevant consideration. The sentencing judge recited the appellant's history of abusive behaviour and would have been aware that there was a gap in his record of offending. It would have been evident to her that the plan proposed by Dr. Ramshaw did not rely on treatment alone, but as one part of an overall strategy. Indeed, she summarized Dr. Ramshaw's proposed strategy in detail.

[53] Further, the sentencing judge referred to the appellant's prior treatment as only one factor in a series of factors leading to her conclusions that (1) the appellant was a dangerous offender and (2) no lesser measure could reasonably be expected to reduce the risk he posed. She did not rely on it as the only factor or the determinative factor. The sentencing judge was entitled to rely on the fact that the appellant re-offended despite having been through intensive treatment in reaching these conclusions.

D. Did the sentencing judge fail to apply a forward-looking test?

[54] The appellant argues the sentencing judge erred by reciting his "past failures" rather than considering the possible future impact of a lengthy determinate sentence combined with a lengthy period of supervision. The appellant suggests the sentencing judge was required to consider whether imposing the maximum term of imprisonment, ten years, in combination with a ten-year long-term supervision order would adequately reduce the risk.

[55] I also reject this argument. The sentencing judge was alive to the need to apply a forward-looking test. As the appellant admits, she was entitled to take into account the appellant's past behaviour. She did not allow the appellant's "past failures" to dictate the outcome, and she considered the possibility of a lengthy term of imprisonment.

[56] The applicable provisions of the Criminal Code reflect the need for courts to consider past conduct when determining future risk. Parliament has established "a standard of preventive detention that measures an accused's present condition according to past behaviour and patterns of conduct": Currie, at para. 26. An offender will only be designated "dangerous" if he or [page701] she has demonstrated past behaviour (including and in addition to the predicate offence) indicating that he or she poses a threat. The offender's past behaviour is relevant to the nature of the threat.

[57] The sentencing judge was entitled to consider the appellant's "pattern of repetitive predatory sexual behaviour" and to assess his future prospects in light of his past conduct. The appellant's "past failures", in particular his response to supervision and treatment, were relevant to whether the risk he posed could be adequately managed. As the respondent notes, Dr. Ramshaw testified that "past behaviour is the best predictor of future behaviour". The sentencing judge appropriately considered the appellant's history in light of the risk management plan proposed by Dr. Ramshaw for the future.

[58] R. v. L. (G.L.), [2004] S.J. No. 589, 2004 SKCA 125, 189 C.C.C. (3d) 492, cited by the appellant, is distinguishable. In this case, the expert focused on whether the offender was treatable at the time he wrote his report. He considered mainly the present, when he should have assessed whether there was a prospect that the risk could be reduced to an acceptable level following treatment programs in prison and release in the community (at paras. 48-50). The evidence regarding potential treatment options was inadequate as a result. The sentencing judge here considered the appellant's future prospects and had adequate evidence on which to do so.

[59] The sentencing judge also considered the impact of a lengthy period of imprisonment. The appellant's counsel had suggested a range of around five to six years, less credit for time served. He referred to a potential ten-year long-term supervision order. The Crown had suggested that if an indeterminate sentence was not appropriate, the appropriate range was six to eight years. While the sentencing judge did not refer to these ranges, her reasons revolve around the central issue of whether a determinate sentence and a long-term supervision order could be imposed. Given the submissions made before her, in my view, she must be taken to have considered the potential deterrent and rehabilitative effects of a lengthy period of imprisonment followed by a long-term supervision order.

[60] I would note that there is some question as to whether the sentencing judge could have imposed a ten-year determinate sentence and a ten-year long-term supervision order to manage the risk if she concluded that a fit determinate sentence would otherwise be in the ranges suggested by defence and Crown counsel. The dangerous offender provisions form part of the sentencing process, and their interpretation must be guided by the [page702] fundamental purposes and principles of sentencing, including proportionality: Johnson, at paras. 22-23.

[61] In R. v. Severight, [2014] A.J. No. 45, 2014 ABCA 25, 306 C.C.C. (3d) 197, leave to appeal to S.C.C. refused [2014] S.C.C.A. No. 184, 2014 CanLII 38979, the Alberta Court of Appeal considered an argument that the sentencing judge should have designated Severight a long-term offender and imposed the maximum determinate sentence available (with no credit for pre-sentence custody) and a long-term supervision order rather than designating him a dangerous offender and imposing an indeterminate sentence. The sentencing judge had held that ten years would be a fit determinate sentence for the offence; the maximum was 14 years.

[62] The majority rejected Severight's argument. The sentencing judge determined that a ten-year sentence was fit. Imposing a 14-year sentence would not have been proportionate, and would be unfair, harsh and contrary to principle (at paras. 35-36). The majority also commented, at para. 37, that manipulating the sentence in this manner "would inject the court into a process better suited to the parole authorities". Accordingly, I am of the view that the sentencing judge was not required to consider imposing a sentence that may have been outside the appropriate range for this offence.

[63] In any event, the sentencing judge did not fail to apply a forward-looking test and appropriately considered the possibility of imposing a lengthy determinate sentence followed by a long-term supervision order.

E. Was the sentencing judge's conclusion that there was no reasonable expectation that a lesser measure would adequately protect the public unreasonable?

[64] Finally, the appellant argues that on the available evidence, it was unreasonable for the sentencing judge to conclude that there was no reasonable expectation that a lesser measure would adequately protect the public. In support of this argument, he points to the evidence of Dr. Ramshaw, who he says concluded that the risk could be managed through a determinate sentence and a long-term supervision order, the gap in his offending behaviour, his history of not offending while under supervision by the criminal justice system, and his advancing years and deteriorating health.

[65] In my view, the sentencing judge's conclusion was reasonable and founded on the evidence. The appellant's argument on this issue is bound up with his argument that the sentencing [page703] judge misapprehended the evidence, so to some extent, the analysis above addresses it. I will address it briefly here.

[66] The issue of whether the risk posed by the appellant could be adequately reduced using a lesser measure turned on Lupron. While Dr. Ramshaw's plan had several prongs, Lupron was the most significant as the other prongs alone were unlikely to be adequate. The sentencing judge had limited evidence of the appellant's willingness and ability to take Lupron. There was evidence that Lupron was not contraindicated for the appellant's medical conditions, but he had not had a definitive workup and whether he would experience side effects was unknown.

[67] Even if treatment with Lupron was possible, the evidence was that Lupron could only go so far. First, the appellant could avoid the effects of Lupron by taking other drugs. Second, the appellant offended not only for sexual gratification, but to cope with stressors and to fulfill his emotional needs. He copes poorly with stress and would face a high probability of stress if left alone in the community. Third, his fixed maladaptive personality traits predisposed him to offending against children. His not insignificant level of psychopathy meant he was less inhibited and more likely to re-offend. The appellant minimized his responsibility and attributed his difficulties to others. He was unlikely to seek out help on his own. Fourth, while risk generally decreases with age, the appellant had offended into his 50s and the expert evidence was equivocal on whether he would experience "burn out". Finally, the evidence was unequivocal that the appellant was extremely manipulative and monitoring him was likely to be difficult. Lupron would not assist with any of these factors, and it was open to the sentencing judge to conclude that the remaining measures would not provide sufficient assistance.

[68] It was reasonable for the sentencing judge to conclude that there was inadequate evidence to suggest the appellant could and would commit to taking Lupron over the long term. It was also reasonable for her to conclude that the evidence did not support a reasonable expectation the risk he posed could be managed with a determinate sentence and a long-term supervision order.

F. The fresh evidence

[69] There are two parts to the appellant's fresh evidence. He has tendered his own affidavit and an affidavit from Dr. Mark Pearce. Both the appellant and Dr. Pearce were cross-examined on these affidavits. In brief, beginning in 2013, the appellant [page704] has been treated with Lupron. The appellant has offered his perspective on the effectiveness of his treatment. Dr. Pearce offers his opinion on the appellant's treatment and the manageability of the current risk. Dr. Pearce largely agrees with Dr. Ramshaw's report, but has offered his own analysis and additional comments in light of the appellant's treatment with Lupron.

[70] The court may admit fresh evidence on an appeal from a dangerous offender designation when it is in the interests of justice to do so: ss. 759(7) and 683(1). The well-known Palmer test governs the admissibility of fresh evidence in this context. The proposed fresh evidence must meet four criteria:

the evidence must not have been capable of being adduced at trial through due diligence;

the evidence must be relevant in the sense that it bears on a decisive or potentially decisive issue;

the evidence must be credible in the sense that it is reasonably capable of belief;

if believed, when taken with the other evidence, the evidence must be expected to have affected the result.

[71] If the Palmer criteria have been satisfied, the court may consider the fresh evidence when deciding whether a dangerous offender designation is unreasonable: Sipos, at para. 42.

[72] When deciding whether to rely on fresh evidence on a sentence appeal, courts must bear in mind the institutional limitations of appellate courts and the importance of finality: Sipos, at para. 30. The integrity of the criminal process could be undermined by routinely deciding sentence appeals based on after-the-fact developments: Sipos, at para. 30. Courts will generally take a cautious approach to intervening on the basis of this kind of evidence. Evidence of an offender's "post-sentencing rehabilitative efforts and prospects" will only exceptionally be admissible: Sipos, at para. 43. This type of evidence is generally best left for the correctional authorities to assess in the administration of the indeterminate sentence.

[73] Below, I explain why it is my view that the appellant's fresh evidence is not admissible. I also agree with the respondent that the appellant's real argument is that he has progressed such that his status should be reassessed. The Parole Board is better placed to determine whether his progress justifies his release on day parole or, when the time comes, full parole. [page705]

(1) Due diligence

[74] This criterion is not applied as strictly on criminal appeals, but remains a factor to consider. To the extent the fresh evidence relates to treatment the appellant has received after being sentenced, in my view, it could not have been adduced by the exercise of due diligence at his hearing. I would note that to the extent the fresh evidence consists of Dr. Pearce's analysis of evidence before the sentencing judge, it was, in fact, already adduced.

(2) Relevance

[75] The aspects of the fresh evidence relating to the appellant's treatment prospects and risk management are relevant to issues argued at sentencing. The central issue at his sentencing hearing was whether there was a reasonable expectation that the risk posed by the appellant could be managed by a lesser measure than an indeterminate sentence.

(3) Credibility

[76] The respondent argues that the appellant's evidence is not reasonably capable of belief. The respondent submits that the evidence at the sentencing hearing demonstrated that the appellant's self-reports cannot be relied on because the appellant is manipulative and deceitful. The respondent notes that Dr. Pearce's evidence confirms the sentencing judge's conclusion in this respect.

[77] I tend to agree. Both experts agree that the appellant's self-reporting is not reliable. The evidence is unequivocal that the appellant is manipulative and will say what he thinks people in authority want to hear in order to obtain an advantage. To the extent the appellant reports on his subjective experience while taking Lupron, including its effectiveness and any side-effects he experiences, his report is not credible and for that reason is not admissible.

[78] The respondent concedes that Dr. Pearce's evidence is credible, except to the extent he relies on the appellant's self-report. I agree that Dr. Pearce's evidence is credible, but is not reliable to the extent that it is based on the appellant's self-report.

(4) Effect on the result

[79] To the extent that Dr. Pearce has offered his opinion on the record before the sentencing judge, his evidence is not new or previously unknown information: [page706] R. v. C. (I.M.) (2014), 120 O.R. (3d) 1, [2014] O.J. No. 1918, 2014 ONCA 312, at para. 66. He also largely concurs with Dr. Ramshaw. In that respect, his evidence cannot be expected to have affected the result. An appeal is not an opportunity to add to the evidence by leading a concurring expert opinion on the same issues: C. (I.M.), at paras. 67-69.

[80] Even the truly "fresh" evidence, in my view, would not lead to a different result. The credible fresh evidence establishes that at the present time, the appellant can and has been taking Lupron. The Lupron has reduced the appellant's testosterone level to an undetectable level. This would have been helpful to the sentencing judge, but is by no means determinative.

[81] The fresh evidence does not address the sentencing judge's other concerns about risk. Dr. Pearce agrees that the appellant is manipulative and his self-report cannot be relied upon. Besides the decrease in the appellant's testosterone level, all other measures of the effectiveness of Lupron come from the appellant's self-report. The appellant claims it is working, but his evidence is inherently unreliable. Dr. Pearce agrees with Dr. Ramshaw that some people can and do offend while on Lupron. He agrees the appellant will be difficult to monitor because of his fixed, maladaptive personality traits. He also agrees that the appellant offends in part because of his unmet emotional needs, and that the Lupron will not address this motivation.

[82] Dr. Pearce also raises a new concern about a potential side effect of Lupron. Dr. Pearce testified that Lupron may lead to greater difficulty in managing the appellant's diabetes. The appellant's medical records confirm he has experienced greater difficulty managing his diabetes since beginning Lupron. Dr. Pearce agreed that Lupron may be the cause. This evidence raises questions about the long-term manageability of Lupron and whether the appellant would or could continue to take it over the course of a long-term supervision order and beyond.

[83] The fresh evidence does not suggest that the sentencing judge's conclusion was unreasonable. Taken at its highest, it provides some answers to questions that were unanswered at the time of the hearing. It does not suggest that the multiple concerns expressed by the sentencing judge were without foundation. In my view, the evidence cannot be expected to affect the result.

[84] Even if the fresh evidence were admissible under the Palmer criteria, I would not rely on it based on the Supreme Court's recent comments in Sipos. The appellant's fresh evidence [page707] is composed largely of after-the-fact developments in his treatment and rehabilitation. He began treatment with Lupron about two years after he was sentenced. This case is not exceptional. The appellant has made some progress in his treatment and his progress will be assessed by the correctional authorities in the course of administering his sentence. The direction given by the Supreme Court in Sipos suggests that the evidence of the appellant's after-the-fact progress should not be admitted or relied on to undermine the finality of the sentencing judge's reasonable and error-free conclusion.

Conclusion

[85] The appellant has not shown that the sentencing judge fell into legal error or that her conclusion was unreasonable. The appellant's fresh evidence is not admissible and, in any event, is properly a matter for the parole authorities. Accordingly, I would dismiss the appeal.

Appeal dismissed.

End of Document