Court File and Parties
Court File No.: [Not provided]
Date: January 15, 2014 Location: London, ON
Ontario Court of Justice
Between:
Her Majesty the Queen Respondent
-and
Paul Walter Morden Applicant
Reasons for Decision
Matter heard: November 4 and December 13, 2013
Reasons for decision released: January 15, 2014
Counsel:
- D. Mailer for the Applicant Mr. Morden
- L. Casey for the Crown
GEORGE J.:
[1] Mr. Morden commenced an application to vary the lifetime section 161 prohibition made November 1, 2007. The relief sought is a shortening of its length, as well as a variation of its terms to allow for some flexibility.
[2] Submissions were made on November 4, 2013. On December 13 I advised counsel of my decision, indicating that written reasons would follow. These are my reasons.
[3] Upon review of the material and after considering counsel's submissions, I will not alter the prohibition's length. I am not an appeal court judge reviewing this matter. Such a review court might have interfered with the length, especially so given the insufficient reasons setting out how that conclusion was arrived at. In fact, after a review of the transcript there is a complete absence of reasons.
[4] The signed order does however indicate that it is to be in effect for the applicant's lifetime.
[5] I am being asked to consider a variation application, which requires me to apply a very specific test. In applying that test, I have determined that the threshold has not been met, at least as it impacts duration. It is simply not my function, on this evidentiary record, to interfere with that aspect of the sentencing judge's decision, being mindful of section 161(3) of the Criminal Code which provides that:
a court that makes an order of prohibition or, where the court is for any reason unable to act, another court of equivalent jurisdiction in the same province, may, on application of the offender or the prosecutor, require the offender to appear before it at any time and, after hearing the parties, that court may vary the conditions prescribed in the order if, in the opinion of the court, the variation is desirable because of changed circumstances after the conditions were prescribed.
[6] This is a permissive section, simply allowing a court to exercise its discretion, but only after a clearly set out threshold has been met (changed circumstances).
Background
[7] The background is as follows. In 1992 the applicant was convicted of sexually violating three boys. He received a six month jail sentence. Between 2001 and 2006 he relapsed. He acted sexually inappropriate with five boys all between the ages of 8 and 13 years. This behaviour included sexual touching and oral sex, and was committed in a breach of trust situation. An agreed statement of facts was filed and marked as an exhibit. I won't repeat them other than to say it was abhorrent behaviour and surely conduct society would find repulsive. The applicant was charged, found guilty of these offences, receiving a two year penitentiary sentence. This is what underlies the November, 2007 order.
Terms of the Prohibition Order
[8] This order prohibits the applicant from doing the following:
a) attending a public park or public swimming area where persons under the age of fourteen years are present or can reasonably be expected to be present, or a daycare centre, school ground, playground or community centre; or
b) seeking, obtaining or continuing any employment, whether or not the employment is remunerated, or becoming or being a volunteer in a capacity that involves being in a position of trust or authority towards persons under the age of fourteen years; or
c) using a computer system within the meaning of subsection 342.1(2) for the purpose of communicating with a person under the age of fourteen years.
[9] No flexibility was built into these terms.
Probation Order Inconsistency
[10] A two year probation order was made as well. Of interest is paragraph (t), which reads as follows:
- he is not to be in the company of any child under the age of 16 years unless accompanied by a responsible adult.
- he is not to attend places where children might reasonably congregate unless accompanied by a responsible adult.
[11] These two orders are clearly incompatible in that the probation order permitted attendance at the very places contemplated in the section 161 language, so long as he was present with a responsible adult.
[12] The trial judge, who was in the best position to assess risk at that time, and who had access to all relevant information respecting the offences, created a regime whereby the applicant could have been in compliance with his probation order but at the same time in breach of the prohibition. I can only conclude this was an oversight and that the court would have considered it appropriate to permit flexibility within the prohibition, at least as it relates to the term impacting his ability to attend certain places.
[13] Although not current, and not pertinent as to length, this is relevant to the question of whether I should amend any of the prohibition's terms. This should at least form part of the overall risk assessment.
Analysis of Applicant's Efforts
[14] The defence focused on the efforts the applicant has made since his 2007 conviction, pointing out that he has received counselling, has the benefit of a strong support network, and has gained full-time employment. It is clear that what has complicated matters, and what has motivated the applicant to commence this proceeding, is he is now involved in a romantic relationship with someone who has children in her home, and that he has become active in a local church. Understandable, but those consequent inconveniences are of little relevance.
Crown's Position and Risk Assessment
[15] The Crown highlights the applicant's recidivist behaviour, and asks that I be mindful of the purpose behind section 161 which is to protect vulnerable children from sex offenders. It recognizes the considerable rehabilitative efforts but submits that that is continuing and but a work in progress. I agree. These efforts are what can only be described, at best, as ongoing. They are certainly as of yet unfulfilled goals, and in order to terminate or decrease the length of the order, successful rehabilitation would need to be established. It has not.
[16] The Crown also opposes any amendments permitting flexibility. It argues that the restriction on the applicant's freedom is minimal and that any inconvenience, whether relationship or employment based, must yield to the protection of children. In this respect, the most compelling piece of evidence is that of a former counsellor, who provides the opinion that "although Mr. Morden has made some progress and functions well with strictly defined boundaries, when those boundaries are removed he falls back quickly into sexually reoffending behaviour". It is described as a compulsion.
Decision and Variation
[17] Having considered counsel's submissions, and after review of the materials, I am of the belief that with sufficient boundaries, there can be some limited relaxation of the prohibition. I will then vary subsection (a) which will now read as follows:
attending a public park or public swimming area where persons under the age of fourteen years are present or can reasonably be expected to be present, or a daycare centre, school ground, playground or community centre, except in the presence of a responsible adult, who is at least 21 years of age and has no criminal record.
[18] As indicated at the outset, this remains a lifetime order.
[19] I have made, and initialed, the change on the face of the existing order.
Reasons released: January 15, 2014
Justice Jonathon C. George