Publication Ban Warning

WARNING

The President of the panel hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.4(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences;

(i) an offence under section 151, 152, 153, 153.1, 155, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and

(b) on application made by the victim, the prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of their right to make an application for the order; and

(b) on application of the victim or the prosecutor, make the order.

(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community.

486.6(1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order.

COURT OF APPEAL FOR ONTARIO

DATE: 20230428 DOCKET: C68684

Fairburn A.C.J.O., Lauwers and Miller JJ.A.

BETWEEN

His Majesty the King Respondent

and

A.S. Appellant

Counsel: Andrew Furgiuele and Kamran Sajid, for the appellant Lisa Joyal, for the respondent

Heard: April 21, 2023

On appeal from the dangerous offender designation and indeterminate sentence imposed by Justice R. Cameron B. Watson of the Ontario Court of Justice on November 22, 2019.

REASONS FOR DECISION

FACTS

[1] On January 25, 2017, the appellant pled guilty to sexual assault, making child pornography (two counts), telecommunicating agreement to commit specific criminal offences with another believed to be under the age of 14 years (three counts), distributing child pornography (two counts), possession of child pornography (two counts), sexual interference, exposing genital organs to a person under the age of 16, invitation to sexual touching (four counts), making sexually explicit material available to a person under 16, and being a parent of a young person under the age of 18 years and procuring that person. The victims were her minor children.

[2] The Crown brought an application under s. 753 of the Criminal Code to have the appellant declared a dangerous offender and to have an indeterminate sentence imposed. The Crown submitted that the appellant committed a serious personal injury offence and (a) showed a pattern of repetitive behaviour, of which the offences for which she was convicted form a part, showing a failure to restrain her behaviour and a likelihood of causing death, injury or severe psychological damage on other persons, through failure in the future to restrain her behaviour (s. 753(1)(a)(i)), and/or (b) showed a failure to control her sexual impulses and a likelihood of causing injury, pain or other evil to other persons through failure in the future to control her sexual impulses (s. 753(1)(b)). The Crown further submitted that the totality of the evidence indicated that there was no reasonable expectation that a lesser punishment, other than an indeterminate sentence, would adequately protect the public. The defence asked that the appellant be designated as a long‑term offender, instead, with a determinate sentence of 8-10 years (taking into account the time already spent pre-trial), followed by a long-term supervision order, the length of which would be left to the discretion of the sentencing judge, to a maximum of 10 years.

[3] The sentencing judge designated the appellant as a dangerous offender and imposed an indeterminate sentence.

[4] The appellant raises two arguments on appeal:

1. The sentencing judge committed a “Boutilier error” by failing to consider the appellant’s future treatability at the designation stage.
2. The sentencing judge erred in law by failing to consider a less restrictive sentencing option.

ANALYSIS

[5] We do not accept that the sentencing judge failed to follow R. v. Boutilier, 2017 SCC 64, [2017] 2 S.C.R. 936. He cited it many times and was deeply familiar with its requirements.

[6] In the designation section of his reasons, the sentencing judge set out precisely the proposition of law that the appellant invokes: “In order for an offender to be designated a dangerous offender a court must conclude, after a prospective assessment of risk including future treatment prospects, that the offender is a future threat.” citing paras. 43-45 of Boutilier.

[7] The sentencing judge addressed both treatability and intractability in the concluding part of his reasoning in the designation section:

This Court concludes that [the appellant] is a future threat upon consideration of a prospective assessment of the risk she poses. This Court has taken into account what will be required with respect to future treatment prospects of [the appellant] based on the totality of the evidence in this case. This Court is satisfied on the totality of the evidence that [the appellant] possesses a high likelihood of recidivism and that her conduct is intractable.

There is nothing that this Court can find in the treatment prospects of [the appellant] which are compelling enough for this Court to conclude that [the appellant] does not present a high likelihood [of] harmful recidivism or that her behaviour is not intractable.

[8] The appellant’s submission that the sentencing judge did not give sufficient weight to the criterion of intractability is not supported by the reasons. Indeed, this criterion informed a substantial portion of the reasoning. The question of the appellant’s treatability also informed his reasoning. The sentencing judge complied with s. 753 of the Code and with Boutilier. He did not fail to consider the appellant’s future treatability at the designation stage.

[9] The appellant’s particular argument is that the sentencing judge failed to give sufficient weight to the appellant’s treatability as explained by the forensic psychiatrist, which was supported by the evidence of a psychologist. We reject this argument for three reasons. First, the weight to be given to evidence is completely within the province of the sentencing judge to whom we must defer absent an error. Second, a judge is not required to accept an expert’s opinion in whole or in part. This too is completely within the sentencing judge’s province: see Levac v. James, 2023 ONCA 73, at para. 82. Third, the sentencing judge did accept much of the forensic psychiatrist’s testimony, and also explained why he rejected the evidence on which the appellant relies.

[10] The forensic psychiatrist diagnosed the appellant as having borderline personality disorder, pedophilic disorder, non-exclusive type, limited to incest, and substance abuse disorders. Two of these, her pedophilia and her borderline personality disorder, are essentially incurable and can only be managed.

[11] The sentencing judge quoted several parts of the forensic psychiatrist’s report around manageability:

In summary, based on the risk assessment noted above, it is my opinion that [the appellant] is low-moderate risk for violent (and sexual) recidivism. In this case, despite [the appellant] being assessed as a low-moderate risk, the severity, and potential severity, of the offending behaviour may influence the decisions regarding the ongoing need for monitoring and supervision

[T]he question as to whether [the appellant] could be managed in the community ultimately lies with the Court … In my opinion, if [the appellant] is placed in the community, the following structures and conditions should be considered:

(c) [The appellant] should undergo substance use programming both in the institution and in the community. She should remain abstinent from alcohol and street drug use in perpetuity.

(f) [The appellant] should be subject to intensive case management and supervision upon any eventual release into the community. There should be clear communication with [the appellant] about the behavioural expectations during any period of supervision. It would be expected that she would be willing to seek assistance and to communicate any stressors or developing areas of concern to her case management team. In specific, her relationships with men and her access to chatlines, social media or electronic devices should be monitored.

g) [The appellant] should not have unaccompanied access to children under the age of 16 in the community in perpetuity.

[12] The sentencing judge rejected the forensic psychiatrist’s evidence that the appellant was only a low to moderate risk for violent (and sexual) recidivism. He based this on several factors that he extracted from the psychiatrist’s evidence, including: that the appellant’s pedophilia “is not limited to just incest and that she may be interested in other people’s children”, which was borne out by the evidence; that the evaluation seemed inconsistent with the “intensive risk management plan”; that her borderline personality disorder is particularly severe; that her cognitive distortions are “deeply ingrained, and longstanding, and have persisted notwithstanding the medication and therapy” in the carceral institution; and the intensification of the appellant’s offending over time.

[13] The sentencing judge quoted the forensic psychiatrist’s evidence about the complexity of the appellant’s case given multiple diagnoses:

Q. And how is treatment complicated by the presence of these three specific disorders?

A. Well, I think treatment can become complicated given the fact that she suffers from multiple disorders, that each disorder in and of itself confers a particular treatment and management plan and so the complexity of that management plan would be increased. I would also note that the diagnosis of a pedophilic disorder is atypical in females and so the management and monitoring of that disorder would require a level of understanding and knowledge that may be different from the norm. So, I think that these are some complicating factors.

[14] Finally, the sentencing judge noted the evidence that the actuarial risk assessment tools for female pedophiles were limited, given the small number of females diagnosed with pedophilic disorders, which the forensic psychiatrist acknowledged “do not have a high degree of predictive accuracy.”

[15] It is evident that the sentencing judge engaged deeply with the psychiatric evidence. His rejection of the evaluation that the appellant was only at a low to moderate risk for violent (and sexual) recidivism was carefully explained and was rooted in the evidence.

[16] The sentencing judge is also said to have erred by not expressly mentioning the written opinion offered by a psychologist. This doctor was not called as a witness in the proceedings. Yet, the substance of her report was included in the 78-page assessment report provided by the psychiatrist who did testify in the proceedings. The sentencing judge’s reasons for rejecting the psychiatrist’s ultimate opinion on the issue of risk are equally applicable to the psychologist’s written report.

[17] The appellant also argues that the sentencing judge erred in his approach to the evidence of an employee of Corrections Services Canada at the designation stage of his reasoning. In particular, the appellant says that this evidence was important to consider at that point in the reasoning because available programming can directly inform the question of future dangerousness.

[18] We see no error in the sentencing judge’s approach. He directly engaged with this evidence and summarized it, albeit in the sentencing portion of his reasons. Those reasons are clear that there is nothing in the Corrections Services employee’s evidence that would support a different finding at the designation stage. It was general evidence about the types of treatment programs available for individuals such as the appellant while in the penitentiary, if those individuals choose to participate in that programing. It was entirely disconnected from the appellant’s own ability to be treated while incarcerated or managed in the community. The trial judge came to factual conclusions about the appellant that were inconsistent with her ability to engage with that programming. Those factual conclusions were available to him on the record.

[19] We also reject the second argument that the sentencing judge failed to consider a lesser sentence. This was the focus of his reasoning in the penalty stage of his decision. He noted that the “basic purpose of the dangerous offender provisions is the protection of the public”, citing R. v. D.V.B., 2010 ONCA 291, at paras. 58 and 81. He explained, “[c]onsiderations surrounding protection of the public necessarily involve a present assessment of risk and a future assessment of risk, at a time when a conventional sentence or when a determinate sentence paired with the imposition of a long-term supervision order will expire.” This approach is eminently sensible.

[20] The sentencing judge concluded that:

In the case before me, after careful consideration of the totality of the evidence, there is no evidence before me which allows me to determine that [the appellant] can be rehabilitated within a determinate period of time. Hope and optimism are insufficient for the imposition of anything less than an indeterminate sentence.

Until [the appellant] gets the help she needs, which depends upon her commitment and engagement in a meaningful way which requires her to make substantial efforts while incarcerated to address and attempt to deal with the issues that she has which underline her diagnoses she must remain segregated from society.

[21] The sentencing judge added:

On the record before me there is no evidence that [the appellant] could be meaningfully treated within a definite period of time and that the resources required to implement the necessary supervision conditions for eventual control in the community are available. The restrictive provisions necessary to control the risk of re-offending by [the appellant] coupled with the need to protect the public would at present and in future essentially replicate 'jail-like' conditions in the community. Courts have found under those circumstances that indeterminate sentences are warranted.

[The appellant] represents a continuing and ongoing danger to the public. The only way to protect the public in the instant case is to ensure that [the appellant] is incarcerated for the rest of her life or until such a time that [the appellant] receives proper treatment and the correctional authorities deem a supervised release or other forms of release are possible. [Citations omitted]

[22] In explaining his decision, the sentencing judge drew on the forensic psychiatrist, who suggested that the appellant be prohibited from using alcohol and street drugs in perpetuity, and be prohibited from unsupervised access to children under 16 in perpetuity. These requirements led the sentencing judge to the observation that perpetual limits could not be achieved by a supervision order because, at its conclusion, the appellant would return to the community unsupervised. He noted, “[a] court should not impose a determinate sentence followed by a long-term supervision order if it is not satisfied the offender can remain in the community unsupervised at the expiry of that supervision order.”

[23] The sentencing judge noted that the appellant “presents a lifelong risk that cannot be managed within [a] determinate sentence and a 10-year long-term supervision order.” He added, based on the evidence of an expert, that the supervision available for the appellant after release “is not sufficient to protect the public from ongoing harm”. He concluded:

There is no evidence, beyond mere hope/optimism, that at present or in the future [the appellant] can be adequately treated, supervised or monitored so as to ensure public safety. Community supervision is not sufficient to contain [the appellant’s] ongoing risk.

[24] Thus, the argument that the sentencing judge failed to consider a lesser sentence has no merit. There is nothing that persuades us that the sentencing judge’s exercise of discretion in sentencing rested on a wrong principle or that he made a palpable and overriding error of fact in imposing an indeterminate sentence. Appellate deference is due.

[25] The appeal is dismissed.

“Fairburn A.C.J.O.”

“P. Lauwers J.A.”

“B. W. Miller J.A.”