Court of Appeal for Ontario

Date: 2025-07-29
Docket: COA-23-CR-1345
Coram: Julie Thorburn, Gary Trotter, Jonathon Copeland

Between:
His Majesty the King (Respondent)
and
Baba Ouedraogo (Appellant)

Appearances:
John Fennel, for the appellant
Elena Middelkamp, for the respondent

Heard: 2025-06-16

On appeal from the sentence imposed on September 6, 2023 by Justice Robert F. Goldstein of the Superior Court of Justice.

A. Overview

[1] This is an appeal of sentence. The appellant, Baba Ouedraogo, claims the sentencing judge erred in:

i. allowing the Long Term Offender (“LTO”) application to proceed although the same parties had litigated the same issue in the Ontario Court of Justice (“OCJ”);

ii. misapprehending the evidence and concluding that the appellant had a substantial risk of reoffence;

iii. concluding that the appellant had a substantial risk of reoffence although there were other reasonable possibilities arising from the evidence;

iv. imposing lifetime prohibition orders pursuant to ss. 161(a)-(c) of the Criminal Code, RSC 1985, c C-46; and

v. recommending phallometric testing as part of his Long Term Supervision Order (“LTSO”) contrary to his s. 7 Charter right to bodily integrity and s. 12 right to be free from cruel and unusual punishment.

[2] The appellant therefore seeks an order that his LTSO be vacated, the term of his s. 161 prohibition orders be reduced from life to 10 years, and, in the event his LTSO is not vacated, that the phallometric testing requirement be removed.

[3] At the end of the hearing, we dismissed this appeal with reasons to follow, including reasons on the sentencing judge’s recommendation that the appellant undergo phallometric testing.

[4] I begin with a review of the background evidence and the sentencing judge’s decision, followed by an analysis of the issues.

B. Background Evidence

[5] This was a very serious offence committed on a vulnerable young person. The appellant has committed two such offences.

[6] In this case, on November 2, 2019, the 15-year-old complainant was in downtown Toronto at Yonge-Dundas Square looking to purchase Xanax. Someone directed her to the appellant. She told the appellant her age.

[7] The appellant took the complainant to a stairwell in the Eaton Centre and demanded oral sex. The complainant declined. The appellant choked her, forced oral sex, and then told her to lie on the ground, at which point he took off her underwear, ripped her lingerie, and forced vaginal intercourse on her. When security found her, she had bruises around her eye and on her neck. She was barely conscious. Security personnel called an ambulance.

[8] At this judge-alone trial, the appellant admitted that he had vaginal intercourse with the complainant but said the sex was consensual and that he mistook her age.

[9] The appellant was convicted of sexual assault, sexual interference and choking to assist in the commission of sexual assault following trial. [2]

[10] At the time he committed these offences, the appellant had no criminal record.

[11] However, on July 30, 2019, several months before he committed these offences, the appellant committed another violent sexual assault and robbery against a different complainant. In that case, that complainant was sleeping on a park bench. The appellant covered his face with a bandana and wielded a piece of concrete with which he struck that complainant several times and threatened to kill that complainant. That complainant was dragged off the bench, and the appellant attempted forced penetration with his penis. The attack ended when passersby intervened.

[12] In that case, a judge of the OCJ convicted the appellant of disguise with intent to commit an indictable offence, sexual assault with a weapon, sexual assault, robbery, and failure to comply with his release order. A six-year global sentence and a 10-year LTSO were imposed (the “OCJ sentence”). The appeal of the OCJ sentence was dismissed: R. v. Ouedraogo, 2025 ONCA 444.

[13] The appellant has also been subject to at least six misconduct findings while incarcerated, that include altercations with staff, threats, assaults, and smearing feces on another inmate’s window.

C. The Sentence Under Appeal

[14] At his sentencing hearing for these offences, the appellant objected to the Crown’s position to declare the appellant a LTO on the grounds that another LTO application was already underway before the OCJ.

[15] The sentencing judge imposed a 6.5-year sentence less time spent in pre-sentence custody, lifetime prohibition orders pursuant to ss. 161(a)-(c), and a 10-year LTSO. He held that the sentence was to be consecutive to the OCJ sentence.

D. Analysis of the Appeal on Sentence

The Test to Overturn a Sentencing Decision

[16] A sentencing judge has broad discretion in imposing sentence, including parole ineligibility. Because the application of the sentencing factors in the circumstances of the offender is an individualized process, appellate intervention is warranted only where the sentencing judge has committed an error in principle or otherwise imposed a sentence that is demonstrably unfit: R. v. Lacasse, 2015 SCC 64, paras. 36-55; R. v. Friesen, 2020 SCC 9, paras. 25-26; and R. v. Shropshire, [1995] 4 S.C.R. 227, paras. 24-27, 31, 45-53.

(1) Issue 1: Denial of an Order to Estop the LTO Designation for These Offences

[17] The appellant objected to the imposition of a LTSO in this case to “prevent the Crown from litigating the same issue twice”, as the factual record is similar and the same remedy was sought. The sentencing judge refused to do so, holding that issue estoppel did not apply and that the Crown was permitted to seek LTSOs in both this and the OCJ sentencing proceedings.

[18] The appellant concedes that a consecutive sentence is appropriate as this trial was separate from the OCJ trial and sentence. However, he claims that no LTSO should be imposed as the appellant was already subject to a 10-year LTSO pursuant to the OCJ sentence and both offences were considered in imposing that sentence.

[19] I do not agree. As noted by this sentencing judge, issue estoppel does not apply to individual sentencing decisions. While the Crown may not lead evidence that is inconsistent with findings made in an accused’s favour in a prior LTO proceeding, that is to ensure fairness to an accused and avoid inconsistent verdicts: R. v. Mahalingan, 2008 SCC 63, paras. 52-57. That, however, does not mean there cannot be two verdicts in two different LTO proceedings.

[20] In R. v. Thompson, 2014 ONCA 43, para. 61, leave to appeal to S.C.C. refused, 35932 (September 25, 2014), this court held that:

Findings of fact made by a sentencing judge under s. 724(2)(b) cannot found an issue estoppel. It would seem incongruous to permit findings made in some sentencing proceedings to serve as a foundation for the operation of the doctrine, yet deny the same status to others. [Citations omitted.]

[21] Moreover, the language of the Criminal Code makes it clear that an offender can be subject to more than one LTSO. Section 755(2) of the Code provides that,

The periods of long-term supervision to which an offender is subject at any particular time must not total more than 10 years. [Emphasis added.]

[22] Use of the plural “periods” suggests that an offender can be subject to more than one LTSO.

[23] In sum, issue estoppel does not apply to individual sentencing decisions as different sentencing judges may arrive at different conclusions as to the appropriateness of a sentence, including a LTSO: see R. v. Punko, 2012 SCC 39, para. 19; Thompson, at para. 61. One judge is not bound by another’s decision regarding an LTSO as each application is focussed on the sentence for the offence before them.

[24] In imposing the OCJ sentence, the OCJ judge properly considered the appellant’s subsequent conviction. Likewise, this sentencing judge properly considered the appellant’s prior conviction and the OCJ sentence in deciding an appropriate sentence for these offences and bearing in mind the appellant’s pattern of behaviour and future risk of reoffending.

[25] For these reasons, I would dismiss this ground of appeal.

(2) Issue 2: Whether the Sentencing Judge Misapprehended the Evidence in Concluding that the Appellant had a Substantial Risk of Reoffence

[26] The appellant claims the sentencing judge misapprehended the evidence in concluding that it was more likely than not that the appellant would reoffend in the same manner and therefore imposing a 10-year LTSO order. For the reasons that follow, I disagree.

(a) The Test to Impose a LTSO

[27] A court may find an offender to be a LTO where (i) a sentence of two years or more is to be imposed, (ii) there is a substantial risk the offender will reoffend, and (iii) there is a reasonable possibility of eventual control of risk in the community: Criminal Code, s. 753(1).

[28] Section 753.1(2)(b) provides that:

(2) The court shall be satisfied that there is a substantial risk that the offender will reoffend if
(b) the offender
(i) has shown a pattern of repetitive behaviour, of which the offence for which he or she has been convicted forms a part, that shows a likelihood of the offender’s causing death or injury to other persons or inflicting severe psychological damage on other persons, or
(ii) by conduct in any sexual matter including that involved in the commission of the offence for which the offender has been convicted, has shown a likelihood of causing injury, pain or other evil to other persons in the future through similar offences. [Emphasis added.]

[29] The first two criteria in s. 753.1 speak to the level of risk the offender is likely to pose in the future having regard to the offender's past conduct. They also establish the justification for subjecting an offender to a special sentencing regime based on the need for public protection. The Crown has the onus of proving those factors on the standard of proof beyond a reasonable doubt: R. v. F.E.D., 2007 ONCA 246, para. 52.

[30] The “substantial risk” threshold is lower than the threshold of “likelihood” to reoffend, used in respect of dangerous offender provisions. Unlike the “likelihood” threshold, “the sentencing judge must merely be satisfied that ‘there is a substantial risk that the offender will reoffend’”: R. v. Boutilier, 2017 SCC 64, para. 75.

(b) Whether the Sentencing Judge Misapprehended the Evidence

[31] The sentencing judge imposed a 10-year LTSO. The appellant received a sentence greater than two years and there is a reasonable possibility of eventual control of risk in the community, such that the only issue was whether the appellant was at substantial risk to reoffend. The sentencing judge held that the appellant was at a substantial risk to reoffend and therefore met the criteria set out in s. 753.1(2)(b)(i) of the Criminal Code. He considered substantial risk to turn on the question of likelihood which he interpreted to mean more likely than not.

[32] The appellant claims the sentencing judge misapprehended the evidence in concluding that the appellant was at substantial risk to reoffend and cause physical injury or psychological damage. For the reasons that follow, I disagree.

[33] In deciding that the appellant was at substantial risk to reoffend, the sentencing judge correctly set out the applicable threshold:

Is there a likelihood that [the appellant] will cause death or injury or inflict severe psychological damage to other persons? “Likelihood” is more than a mere possibility; and it is less than beyond a reasonable doubt: R. v. J.T.H., 2002 NSCA 138, para. 50; Lyons, supra, at p. 364-365. I interpret “likelihood” to mean more likely than not, or a balance of probabilities.

[34] The sentencing judge noted that a “trial judge is never bound to accept the opinion of [a] psychiatrist, but a psychiatrist still has a role to play in assisting the court. The fact that predictions are hardly an exact science does not lessen the value of the expert evidence.” In so doing, he noted that this court in R. v. K.C., 2022 ONCA 738, para. 133, accepted the trial judge’s conclusions that there was a high likelihood of recidivism notwithstanding the expert’s view that the offender was around the 50% mark for recidivism, because there was other evidence to support that conclusion.

[35] In this case, Dr. Klassen was appointed by the court to complete a psychiatric assessment of the appellant and his report was filed as part of the record. Dr. Klassen worked from information provided to him by Crown counsel as the appellant declined to participate in the assessment. He reviewed the appellant’s immigration, health, and tax records along with his offence and misconduct history in custody, he listened to the appellant’s statement to the police regarding the assault that was the subject of the OCJ sentence, and he reviewed the trial transcripts and the reasons for judgment in that case.

[36] Dr. Klassen scored the appellant on the Static-99R [3] at 5, which falls in the 89th percentile in terms of risk. Dr. Klassen was not provided with information as to whether the appellant had ever had a long term intimate relationship. As such, his relative risk was scored at 2.8, which is at 2.7 times the risk of sexual recidivism compared to the “average” sexual offender. Dr. Klassen noted that similar scoring offenders reoffend sexually at projected rates of 32% to 38% over 10-20 years in the community. Dr. Klassen therefore concluded that the appellant had a “substantial risk” of sex offender recidivism though he could not say that it was “probable” that he would reoffend.

[37] The sentencing judge considered Dr. Klassen’s opinion and other evidence, including the appellant’s history of violent sexual assaults on two very vulnerable underage people.

[38] The sentencing judge acknowledged that predictions are not an exact science and that Dr. Klassen’s opinion was not dispositive of whether the appellant was likely to reoffend. Nonetheless, he was satisfied beyond a reasonable doubt that the appellant was at substantial risk to reoffend.

[39] In coming to this decision, he placed considerable weight on Dr. Klassen’s opinion because: (1) it was based on actuarial evaluation; and (2) to the extent his opinion was based on his clinical judgment, his judgment reflected his training and experience.

[40] He also held that the best predictor of future behaviour is past behaviour. The sentencing judge considered that the appellant had violently sexually assaulted two young-looking people, causing injuries to both, and he penetrated or attempted to penetrate both. Both victims were vulnerable, isolated, and unsuspecting. He also held that where, as here, there is no evidence that the offender has any insight into his offence, any future sexual offence would likely cause serious physical and psychological damage.

[41] The sentencing judge interpreted “likelihood” that the appellant would cause death or injury or inflict severe psychological damage to others, as meaning he was more likely than not to reoffend on a balance of probabilities, and that he was also likely to inflict death or injury and severe psychological damage, as the offence is likely to be a sexual offence.

[42] Because he found the appellant met the test under s. 753.1(2)(b)(i), the sentencing judge held that he did not need to consider s. 753.1(2)(b)(ii), although he found that the appellant likely would also have met the criteria under the second branch.

[43] I see no misapprehension of the evidence. For these reasons, I would dismiss this ground of appeal.

(3) Issue 3: Whether the Sentencing Judge Reasonably Rejected Other Possibilities

[44] The appellant also claims that in finding the appellant a substantial risk to reoffend, the sentencing judge erred in failing to consider other possible reasonable conclusions.

[45] The appellant claims it was equally reasonable to use the routine recidivism rates rather than the high risk rates and that if so, the appellant’s risk of reoffence would be no higher than that of other sexual offenders. He notes that the defence expert, Dr. Kriegman, testified that the Static-99R was basically a clinical judgment as to when to use the high risk/high needs category, and that such clinical judgments are suspect because they decrease the accuracy of prediction.

[46] The sentencing judge acknowledged the defence expert’s statement that relying on clinical judgment to classify an offender as high risk has the potential for inaccurate prediction. He noted however that Dr. Klassen justified his decision to place the appellant in the high risk category as follows:

[I]t's true that the distinction over time between high risk/ high needs and routine samples has varied and has not always been clear.... I think the principle issue for me in terms of high risk/ high needs is – the gravitas of the situation that we're facing ... the offending for which [the appellant] has been convicted is very severe, it's relatively dense, with two incidents in a space of less than a year, there's no indication of engagement in terms of reducing risk or managing needs.... [A]s somebody who has seen a lot of sex offenders, this is not routine. This history is not routine.

[47] In accepting Dr. Klassen’s psychiatric opinion, and after considering the other evidence of his offences, the sentencing judge held:

If [the appellant], after two violent sexual assaults on young vulnerable [victims] in a short time – including one committed while on bail for the other – is not to be categorized as high risk for the purposes of actuarial evaluation, then the obvious rhetorical question becomes: who is?

[48] Moreover, contrary to the appellant’s submission, R. v. Ndhlovu, 2022 SCC 38, paras. 83, 91-92, is distinguishable. In Ndhlovu, at paras. 83 and 91-92, unlike this case, the sentencing judge had “absolutely no concerns that he would reoffend”.

[49] Within the dangerous and long-term offender designation context, the question of whether an offender is likely to reoffend is a matter of fact: Boutilier, paras. 81-85. There is no error in principle or palpable or overriding error which would warrant overturning this finding of fact.

[50] For these reasons, I would dismiss this ground of appeal.

(4) Issue 4: The Lifetime Prohibition Orders

[51] The appellant claims the lifetime prohibition orders under s. 161 of the Criminal Code should be reduced to 10 years as the evidence does not establish that the appellant had a sexual preference for children and the sentencing judge found that there was a reasonable possibility of eventual control in the community.

[52] The objective of s. 161 is to protect children. Prohibition orders under this section are discretionary and appellate intervention is only justified where there is an error in principle affecting the sentence or the sentence is demonstrably unfit: R. v. Durigon, 2021 ONCA 775, para. 5. The terms of such orders are case specific and there is no requirement to have other related convictions or a finding of pedophilia: R. v. J.B., 2022 ONCA 214, para. 56.

[53] In this case, the appellant committed two very similar violent sexual offences within a short period on very young-looking people, one of whom was in fact a minor. There was no evidence as to the appellant’s insight into the offence as he chose not to participate in the assessment. Moreover, the possibility of eventual control in the community alone does not mean that the appellant will no longer pose a risk to children such that a s. 161 protective order is unreasonable.

[54] It is important to note that should the appellant successfully participate in treatment or gain insight into his offences, he may return to court to seek a variation in this term of the order pursuant to s. 161(3) of the Criminal Code.

[55] For these reasons, I would dismiss this ground of appeal.

(5) Issue 5: The Recommendation that the Appellant Submit to Phallometric Testing

[56] The sentencing judge held that, among other conditions, the appellant “submit to any actuarial, phallometric, or other testing as required by [his] LTSO supervisor”. The appellant claims the phallometric testing recommendation should be removed.

[57] In R. v. Ramgadoo, 2012 ONCA 921, para. 61, this court held that,

when deciding whether to make a long-term offender or a dangerous offender finding, sentencing judges should consider a mandatory treatment recommendation as one of the conditions of the order, where necessary for the particular offender and where the offender has demonstrated a willingness to comply.

[58] However, without the offender’s consent, there is no jurisdiction to order phallometric testing as there is no provision in the Code to allow such an order: R. v. Bird, 2019 SCC 7, para. 34.

[59] The Crown concedes that a condition to submit to testing was not available as there was no evidence the appellant was willing to comply with phallometric testing. However, the Crown claims this ground of appeal is premature as the Parole Board of Canada is not the court: it only imposes the conditions of LTSOs, and no conditions have yet been set.

[60] I disagree. Since there is no legal basis to include a recommendation for phallometric testing absent the consent of the offender, I would allow the appeal of the sentencing judge’s recommendation that the appellant undergo phallometric testing and vacate the recommendation.

E. Conclusion

[61] For the above reasons, I would dismiss the sentence appeal, save and except for the recommendation to the Parole Board that the appellant undergo phallometric testing.

Released: July 29, 2025

“G.T.T.”
“Thorburn J.A.”
“I agree. Gary Trotter J.A.”
“I agree. J. Copeland J.A.”

[1] This appeal is subject to a publication ban pursuant to ss. 278.95 and 486.4 of the Criminal Code, R.S.C. 1985, c. C-45.

[2] R. v. Ouedraogo, 2022 ONSC 2130.

[3] The Static-99R is a risk assessment tool used when the index offence is a sexual offence.