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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 20230602 DOCKET: C68380

MacPherson, Pepall and van Rensburg JJ.A.

BETWEEN

His Majesty the King Respondent

and

Robert Sowell Appellant

Counsel: Daniel Brodsky, for the appellant Andrew Hotke, for the respondent

Heard: May 31, 2023

On appeal from the dangerous offender designation and sentence imposed on March 12, 2020 by Justice Frederic Campling of the Ontario Court of Justice.

Reasons for Decision

[1] The appellant pleaded guilty to luring for the purpose of making child pornography, transmitting explicit material to a child, possessing child pornography, and failing to comply with a recognizance. He was designated a dangerous offender pursuant to s. 753(1)(a)(i) of the Criminal Code, R.S.C. 1985, c. C-46, and received an indeterminate sentence.

[2] The appellant appealed on one ground only: that the sentencing judge provided insufficient reasons. At the conclusion of the hearing, we dismissed the appeal with reasons to follow. We now provide our reasons.

Background

[3] In 2008 the appellant pleaded guilty to sexual interference, child luring, making and possessing child pornography, and failing to comply with a recognizance. He received a custodial sentence of six years and five months. The charges involved the serious sexual abuse of three male children between 2005 and 2007, the discovery of thousands of images and videos of child pornography, including videos of the three children, and breach of his bail conditions by accepting employment near the home of one of the children.

[4] In 2015, the appellant breached the conditions of his statutory release when, on a weekend pass to visit his mother, he was found in possession of a computer with internet access. He also had a social media account under a false name, and had been using computers at the library since his statutory release in 2013. He was rearrested and held until warrant expiry.

[5] On his release from custody in May 2015, the appellant entered into a s. 810.1 recognizance for a two year term, that included, among other things, a requirement that he not engage or attempt to engage in any activity with a person under 16 years old, unless in the presence of an adult without a criminal record, and that he not own, use or possess a computer with internet access, unless for employment and only in the workplace as approved by a designated officer.

[6] The predicate offences occurred in 2016. While still bound by the s. 810.1 recognizance, the appellant initiated contact over the internet with a 12-year-old male, engaging in grooming behaviour and exploiting the child for sexual purposes. Forensic examination of the appellant’s devices revealed numerous screen capture images of video chats between the appellant and other pre-teen and early teenage males. The appellant admitted to using Dropbox to access child pornography.

The Designation and Sentence

[7] The appellant pleaded guilty to the predicate offences in July 2017, and the Crown applied for and obtained an order for his assessment under s. 752.1 of the Criminal Code. Upon receipt of the report of the assessor, forensic psychiatrist Dr. Sumeeta Chatterjee, the Crown applied to have the appellant designated as a dangerous offender, and sought an indeterminate sentence. The appellant was also assessed by a forensic psychiatrist retained by the defence, Dr. John Bradford. Both psychiatrists filed reports and testified at the hearing. The other witnesses were Dr. Percy Wright, a psychologist who met with and conducted testing of the appellant, and Gilbert Legault, an employee of Correctional Services Canada, who testified to institutional programming, including a program the appellant had taken.

[8] Defence counsel sought a determinate sentence of 8 to 10 years less pre-trial custody, or in the alternative time served plus two further years’ incarceration and a ten-year long term supervision order (“LTSO”).

[9] The sentencing judge determined that the appellant met the conditions for designation as a dangerous offender under s. 753(1)(a)(i). The appellant had committed the offences of luring for the purpose of making child pornography and transmitting sexually explicit material to a child, which constituted “serious personal injury offences” as defined by s. 752 of the Criminal Code. The evidence of the appellant’s criminal history, and his history of disobeying conditions, including the breach of the s. 810.1 recognizance, established a pattern of repetitive behaviour, showing a failure to restrain his behaviour and a likelihood of causing injury or inflicting severe psychological damage on others through failure in the future to restrain his behaviour.

[10] The sentencing judge imposed an indeterminate sentence after concluding that the appellant’s risk of future harm could not be controlled by a lesser sentence. He referred to the expertise of both forensic psychiatrists, noting that they agreed on the appellant’s diagnosis (a paraphilic disorder – pedophilia), and that the differences in their opinions pertained largely to predicting the appellant’s future dangerousness in the community. Dr. Chatterjee was of the view that the appellant’s risk could not be managed, while Dr. Bradford was more optimistic and expressed the opinion that the appellant had not yet received optimum treatment.

[11] The sentencing judge rejected the defence position at the hearing of the application and concluded that the imposition of a determinate sentence followed by a ten-year LTSO would be inappropriate. He found that there was no safe way to put the appellant in the community and to protect potential victims. Despite the appellant’s saying he would accept Lupron, a sex drive reducing medication, the sentencing judge was not confident he would follow through with it, or that the doctors would prescribe the medication. Nor was the sentencing judge satisfied that the appellant would be effectively monitored. He stated that he was not satisfied by the evidence adduced during the hearing that there was a reasonable expectation that a lesser measure than an indeterminate sentence would adequately protect the public.

Discussion

[12] At the hearing of the appeal, the appellant’s counsel indicated that no issue was taken with the designation of the appellant as a dangerous offender. The sole issue was whether the sentencing judge provided sufficient reasons for rejecting a determinate sentence followed by a ten-year LTSO and for imposing an indeterminate sentence.

[13] The appellant’s counsel correctly submitted that the core issue at the dangerous offender hearing was the intractability of the appellant’s risk, which turned on his treatability in the community. He asserted that the sentencing judge’s reasons did not explain why he rejected Dr. Bradford’s opinion that the appellant could be treated, and that, in fact, the sentencing judge rejected Dr. Bradford’s opinion “capriciously”. The appellant also argued that the sentencing judge conducted his own research without providing an opportunity for counsel to respond.

[14] We disagree. The sentencing judge’s reasons, although brief, are not insufficient, and when considered in the context of the record were responsive to the key issue that was before the court: R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, at paras. 28-33, 55; R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 15.

[15] Pursuant to s. 734(4.1) once the sentencing judge determined that the appellant was to be designated a dangerous offender, he was required to consider whether there was a “reasonable expectation” that a measure less than an indeterminate sentence could protect against the appellant’s recidivism: R. v. Boutilier, 2017 SCC 64, [2017] 2 S.C.R. 936, at paras. 60, 65; R. v. Straub, 2022 ONCA 47, 160 O.R. (3d) 721, at para. 61.

[16] We agree with the Crown that this issue fell to be determined on the narrow question of whether the prospect of the appellant taking sex drive reducing medication, specifically the hormonal agent Lupron, would give rise to a reasonable expectation that a jail sentence followed by an LTSO would adequately protect against the appellant’s recidivism.

[17] Contrary to the appellant’s submission, the sentencing judge did not reject Dr. Bradford’s opinion capriciously. He recognized that Dr. Bradford’s opinion was that the appellant’s risk could be controlled. Dr. Bradford’s opinion on treatability was that the appellant had not yet received “optimal treatment” and that, in his view, such optimal treatment would include sex drive reducing medication as well as treatment for the appellant’s cognitive distortions.

[18] The sentencing judge concluded that, while it might be possible to include as a term of an LTSO a requirement for medication and treatment, this would not control the appellant in the community and protect potential victims. He provided three reasons for that conclusion: first, the appellant’s past statements concerning sex drive reducing medications undermined the court’s ability to have confidence that he would follow through with taking Lupron; second, the court could not be confident that the appellant’s doctors would administer Lupron to him and also monitor his taking of it with blood samples; and third, the legal system would have much less ability to meaningfully react if the appellant was released on an LTSO or subject to another s. 810.1 recognizance and became an imminent threat, by accessing the internet or by other conduct.

[19] Each of these reasons was amply supported by the record. Dr. Wright testified that the appellant indicated that he was not interested in sex drive reducing medication, and that, given his relationship while incarcerated, he viewed himself as capable of having an adult sexual relationship and wanted to preserve that possibility. Doctors had previously cautioned against sex drive reducing medication because of the appellant’s medical issues. The appellant’s history of psychological treatment and self-reported motivation to engage in therapy had not prevented recidivism in the past, and he had a history of non-compliance with his conditions of release.

[20] Nor did the sentencing judge base his decision on evidence or information that was not before the court and to which counsel had no opportunity to respond. His decision responded to the arguments made before him and to the detailed evidence that he heard, and in respect of which he was actively engaged during the five-day sentencing hearing. After stating that he had conducted his own research and found some cases suggesting that it could be a condition of long-term supervision to require the appellant to take a drug like Lupron, he explained why, in the present case, that would not be sufficient to manage the appellant’s risk.

Disposition

[21] For these reasons the appeal was dismissed.

“J.C. MacPherson J.A.”

“S.E. Pepall J.A.”

“K. van Rensburg J.A.”