WARNING

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences.

(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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 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) MANDATORY ORDER ON APPLICATION

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.

486.6 OFFENCE

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

Court Information

Ontario Court of Justice

Date: 2019-12-18

Court File Nos.:

• Central East-Newmarket 4911 998 15 09057
• 4911 998 15 02699
• 4911 998 14 06724

Between:

Her Majesty the Queen

— AND —

Derek Fellows

Before: Justice A.A. Ghosh

Heard on: December 11, 12, 13, 14, 22, 2017; February 18, 20, March 27, 28, April 3, 4, June 11, 27, July 16, October 24, 25, December 14, 19, 2018; October 25, November 4, December 18, 2019

Reasons for Judgment released on: December 18, 2019

Counsel:

• Ms. J. McIntyre — counsel for the Crown
• Mr. D. Goodman — counsel for the defendant Mr. Fellows

Ghosh J.:

Overview

[1] The Crown applies to have Derek Fellows declared a "Dangerous Offender", pursuant to section 753(1) of the Criminal Code. The offender pleaded guilty to committing "sexual assault" by luring a young boy into a forest and then attempting to force anal intercourse on him. He also pleaded guilty to possessing child pornography and to breaching two court orders that prohibited him from being in the company of children.

[2] Mr. Fellows has a criminal record involving the repeated sexual exploitation of children. This is his second "hands on" offence, having been convicted in 2005 for repeatedly sexually assaulting a 7-year-old boy he knew. This is also his third entry for possessing child pornography.

[3] The Crown applies to have Mr. Fellows designated as a dangerous offender and to be sentenced to an indeterminate penitentiary term. The Defence opposes the dangerous offender designation and submits that Mr. Fellows should either be subject to a custodial term followed by a long-term supervision order (LTSO) or to a lengthy determinate sentence.

Summary of the Evidence

Predicate Offences

[4] On September 12, 2014, 10-year-old S.D. attended a sleepover at his friend's family farm in York Region. Derek Fellows had been working on the farm attending to odd jobs for approximately a year. S.D. had met the offender several times prior to this day. Mr. Fellows had told the boy on a previous meeting that he wanted them to observe a coyote den together in the woods.

[5] On the morning of September 13, 2014, S.D. had been playing outside when his friend walked into the home for a short while. Mr. Fellows walked over to S.D. and stated: "Come on, quickly, let's go to the coyote den before they come back." The offender took S.D. into the woods.

[6] Once they were alone in the wooded area, Mr. Fellows stated: "I'm sorry" and grabbed S.D. and pushed him to the ground. It was muddy. The offender pulled down the boy's pants and boxer shorts. S.D. rose and began to run but tripped over his pants and fell onto his front.

[7] Mr. Fellows turned S.D. over and began to suck on the boy's penis. S.D. was crying and the offender put his hand over the boy's mouth to prevent him from screaming. Mr. Fellows told S.D. he would kill the boy's parents if he told anyone.

[8] S.D. was turned onto his stomach. The offender rubbed cream in between the cheeks of the boy's buttocks and then attempted to insert his penis into the child's anus. This continued for some minutes. S.D. told Mr. Fellows that his parents would be there soon. The offender stopped, and S.D. ran crying towards the barn.

[9] One of the adult residents located the distraught child and scolded him for going alone into the dangerous woods. S.D. mentioned Mr. Fellows through his tears but did not explain what had just occurred. He then went to wait for his parents outside on a nearby rock. Mr. Fellows walked over and told S.D. that he should remain quiet about their encounter in the woods.

[10] S.D.'s father attended and drove his son home. The boy soon told his father that he had been "raped" and that they needed to move away. The father called the police. Officers attended S.D.'s home and the farm where the sexual assault occurred.

[11] As the officers arrived at the farm, they stopped a vehicle leaving the property. The owner of the property was driving Mr. Fellows somewhere and told the police that she wanted the offender off her property. A short while before, Mr. Fellows had told her that he had done something stupid and that he had tried to hang himself in front of S.D.

[12] Police were directed to a barn where the offender had apparently attempted to kill himself. Officers located a slip-knotted rope wrapped around a crossbeam and hung over a rafter with a pair of sunglasses under a nearby ladder. There was a mark on the offender's neck.

[13] A forensic examination of S.D.'s seized underwear confirmed the presence of semen and the saliva of Mr. Fellows.

[14] At the time of the offence, Mr. Fellows was subject to two court orders limiting his access to children. The offender was subject to a probation order prohibiting him from being "anywhere where children under the age of 16 are known to be". He was also subject at the time of the offence to a recognizance that similarly prohibited him from communicating with children under the age of 16.

Discovery of Child Pornography

[15] Some months after the arrest, a computer was discovered in the farmhouse of the same property. Mr. Fellows had been working in the farmhouse. The device was turned over to the police and a forensic examination of its contents was conducted.

[16] The examination revealed that Mr. Fellows was the owner of the computer and that it contained child pornography in a variety of formats. A review of the utilized web browser demonstrated that Mr. Fellows had routinely accessed websites and platforms associated with child pornography.

[17] Police also located 276 videos and 947 images of child pornography on the computer. Many of these images and videos were accessible to others. Most of the child pornography located depicted prepubescent boys being sexually assaulted or exploited.

The Criminal Record of Derek Fellows

[18] Derek Fellows' criminal record consists of the following:

January 12, 2005 — Toronto

• (1) Accessing Child Pornography; (2) Possession of Child Pornography
• 1-year Conditional Sentence, concurrent (9 weeks of pre-sentence custody); 2 years of probation; s.161 and s.110 orders for 5 years

November 3, 2005 — Lindsay

• (1) Sexual Assault (2) Sexual Interference
• 8 months custody (6 months concurrent for sexual interference) and 3 years of probation

August 13, 2012 — Toronto

• (1) Possession of Child Pornography
• 9 months custody (272 days of pre-sentence custody); 2 years probation; s.161 order for 10 years

Previous Conviction for Sexual Assault / Sexual Interference

[19] On November 3, 2005, Mr. Fellows was sentenced after trial for sexual assault and sexual interference. The findings made supported that the offender repeatedly committed sexual assaults in the home of the child victim over the course of two years. Mr. Fellows knew the mother of the victim and had been spending a great deal of time at the victim's home.

[20] The most intrusive act involved Mr. Fellows taking off the 7-year-old boy's clothing and then sucking on the boy's penis. There were also several found instances of sexual touching. An adult caregiver walked in on one of the encounters. The sentencing jurist found that Mr. Fellows had ingratiated himself into the family with a "settled intention" and abused the position of trust that he had been granted.

Karen Thomson – Parole Board of Canada

[21] Karen Thomson testified as the Acting Regional Manager of Conditional Release Programs for the National Parole Board. She provided evidence regarding the release entitlements for the various designations and dispositions contemplated by this hearing.

[22] Dangerous offenders serving determinate sentences with an LTSO are eligible for full parole at one third of their sentence and statutory release upon completion of two-thirds of the sentence. In certain circumstances, they can be held until the end of the term.

[23] Dangerous offenders serving indeterminate sentences are eligible for full parole 7 years from the date of arrest and biennial reviews thereafter. Ms. Thompson understood that the national average for the release of dangerous offenders serving indeterminate sentences was over 20 years. She further testified that full parole for such offenders was rare, and indeed she had never personally "seen it happen".

Adriano Stellato – Court-Directed Supervision

[24] Adriano Stellato testified in his capacity as a probation and parole officer with the Ministry of Community Safety and Correctional Services (MCSCS). He was one of the probation officers assigned to Mr. Fellows. Mr. Stellato essentially served as a testimonial conduit for the reception in evidence of records related to state supervision of Mr. Fellows.

A. January 2005 Supervision for "Child Pornography" Sentence

[25] After his first conviction for the possession of child pornography in 2005, Mr. Fellows began counselling for sexual offending relapse prevention.

B. November 2005 Supervision for "Sexual Interference" Sentence

[26] Upon being sentenced to custody for "sexual interference" later in 2005, Mr. Fellows was referred to the Ontario Correctional Institute (OCI), Sexual Offending Relapse Prevention Program. The associated psychological assessment revealed that Mr. Fellows expressed regret over the offence and stated that such offending would never recur. He self-reported that as a child he would engage in sexualized conduct with animals and inanimate objects. It was determined by the assessor that Mr. Fellows had not been sufficiently forthright and that a cautious approach to any self-assessment was warranted.

[27] At OCI, Mr. Fellows engaged in group therapy for some nine months. He performed reasonably well. Upon release, Mr. Fellows was on probation for the second time. The offender was directed to counselling for relapse prevention. Dr. Gojer refused to accept Mr. Fellows into the program, as the offender was "non-responsive" at the assessment.

[28] By 2007, Mr. Fellows completed a 10-week Sexual Offender Relapse Prevention Program (SORP) offered through probation. Later that summer, Dr. Scott Woodside of the Centre for Addiction and Mental Health (CAMH) assessed Mr. Fellows and rendered a diagnosis of homosexual pedophilia and likely borderline personality disorder.

[29] As he neared the end of his 3-year probation term in 2008, Mr. Fellows advised his probation officer that after his engagement with OCI, CAMH and the SORP that he understood the extent of his pedophilia and determined that he would not act on his preferences. He repeated this theme to probation in a variety of ways until his probationary term was complete.

[30] Later in 2008, Mr. Fellows was referred again to Dr. Woodside to be assessed for libidinal reduction (or anti-androgen) medication. In a consultation report, Dr. Woodside expressed concern that the offender, after having previously acknowledged an exclusive sexual interest in prepubescent boys, had now denied any sexual fantasies involving children and resisted the need for any further treatment.

[31] Dr. Woodside offered to discuss further the nature of any treatment to be accompanied by anti-libidinal medication, but Mr. Fellows clarified that he would refuse any such treatment. These discussions coincided in time with the subsequent confirmation that Mr. Fellows had been accessing child pornography. Specifically, between January 2008 and February of 2010, the offender repeatedly accessed child pornography. Mr. Fellows also denied offered treatment on several instances between December 2008 and July 2009.

C. Supervision for 2012 Sentence for Possessing Child Pornography

[32] In August of 2012, a presentence report was generated before Mr. Fellows was sentenced for possession of child pornography. The report revealed that the offender had been associating with at least one known pedophile and had attended live theatrical performances involving young boys as performers and presumptive attendees. There was evidence that Mr. Fellows had attempted to meet the child performers and discover their whereabouts. He kept a calendar detailing the performance schedules of certain child actors and took photographs with the performers.

[33] The report revealed:

The subject has been struggling with his sexual predilection for young boys almost his entire life and there is no evidence that he is able to safely manage his behaviour… He takes responsibility for all his convictions and admits that he has been unable to control his deviant behaviour. All conflict with the law involved a child. With each sentence he thought he would be "cured". He copes by cutting himself and threatening suicide. He informs that if this sentence does not significantly help him to avoid reoffending, he will kill himself. The offender's level of insight waxes and wanes.

[34] Some time after his release from custody, Mr. Fellows attended several performances involving child actors, notably "Billy Elliot" almost 40 times. In 2013, the offender refused to meet Dr. Gojer, ostensibly due to his work obligations. He also refused group treatment sessions.

[35] Although Mr. Fellows was resistant to group therapy, Mr. Stellato acknowledged during cross-examination that such a therapeutic setting may not have been ideal for this offender. Mr. Fellows also refused individual counselling with CAMH in 2014.

Dr. Scott Woodside – Treating Psychiatrist

[36] Dr. Scott Woodside is an expert in forensic psychiatry and has headed the Sexual Behaviours Clinic at CAMH since 2011. He treated Mr. Fellows either directly or through a designate at CAMH between 2007 and 2014. Dr. Woodside testified regarding treatment prospects and intractability.

[37] In 2007, Dr. Woodside diagnosed Mr. Fellows with homosexual pedophilia. The offender also demonstrated symptoms of borderline personality disorder, which may impact treatability and the risk of sexual recidivism.

[38] Over the years, the doctor has repeatedly urged Mr. Fellows to accept a prescription for Lupron, a potent libidinal reduction medication. Dr. Woodside testified that the violent escalation in sexual offending by Mr. Fellows into his forties suggests that the theory that violent or sexual offenders "burn out" as they age does not easily apply to Mr. Fellows.

Dr. Mark Pearce – Assessing Psychiatrist

[39] Dr. Mark Pearce is an expert in forensic psychiatry and an experienced staff psychiatrist at CAMH and Ontario Shores Centre for Mental Health Sciences. He assessed Mr. Fellows for the present application pursuant to s.752.1 of the Criminal Code.

[40] The doctor's testimony unfolded somewhat unusually in that I permitted the Crown to cross-examine him during an expanded re-examination. This was followed by further questions from counsel to Mr. Fellows. It arose from my comment to the Crown that she was leading the witness during examination in-chief. She later fulsomely submitted, just prior to re-examination, that she should be permitted to cross-examine the expert at large. This was grounded in the submission that key aspects of the court-appointed psychiatrist's opinion did not align with the ultimate Crown submission for an indeterminate sentence.

[41] The modified procedure was initially agreed to by all, but Mr. Fellows' counsel later submitted that the Crown should only be permitted to ask leading questions within the parameters of permissible re-examination. I was persuaded that the court-appointed expert in this case should be subject to full cross-examination by both parties.[1]

[42] Dr. Pearce confirmed a longstanding diagnosis that Mr. Fellows suffered from homosexual pedohebephilia, a primary sexual preference for both pubescent and prepubescent boys. He assessed that the offender also suffered from a mixed personality disorder, with narcissistic and borderline personality traits. This diagnosis expressed itself in Mr. Fellows as immaturity, self-involvement, and a manipulative and grandiose presentation.

[43] Applying several risk assessment actuarial instruments to Mr. Fellows, Dr. Pearce assessed the offender as moderate to high risk to reoffend sexually. He also opined that Mr. Fellows could "theoretically be declared a dangerous offender" and provided his clinical perspective on the various findings necessary to designate Mr. Fellows pursuant to sections 753(1) (a)(i)(ii) and (b).

[44] He concluded that, provided certain preconditions are met, Mr. Fellows' paraphilia could potentially be managed in the community within the structure of an LTSO.

Analysis

Designation Stage – The Legislative Framework

[45] The statutory framework applicable to dangerous or long-term offender designations can be found in Part XXIV of the Criminal Code (sections 752 - 761). There are two stages in a dangerous offender application: The designation stage (s.753(1)) and the penalty stage (s.753(4-5)).

[46] Upon application and pursuant to s.753(1), the court "shall" impose a dangerous offender designation if it is satisfied:

(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 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.

[47] The Crown submits that all statutory gateways to a dangerous offender designation have been satisfied, except for the "brutality" route identified in Section 753(1)(a)(iii).

Dangerous Offender Designation – Principles in the Jurisprudence

[48] The primary purpose of the dangerous offender legislation is to identify and secure a relatively exceptional group of highly dangerous criminals to ensure public safety. The conduct of the offender must show a pattern of harmful conduct that cannot be surmounted while posing a high risk to violently reoffend. Such a designated offender will receive an indeterminate sentence, unless there is a reasonable expectation the harmful conduct can be managed by a lesser measure.

[49] During the designation stage, the Crown must establish beyond a reasonable doubt the following four preconditions:

i. The offender has committed a "serious personal injury offence";

ii. The index offending is part of a broader pattern of harmful conduct;

iii. There is a high likelihood of harmful recidivism; and

iv. The violent conduct is substantially intractable.[2]

[50] If all four criteria are satisfied to the identified standard of proof, the offender must be declared a dangerous offender.

"Serious Personal Injury Offence": ss. 752 and 753(1) (a)

[51] In order satisfy the designation criteria outlined in the three available gateways in s.753(1)(a), it must first be established that the offender committed a "serious personal injury offence" as expressed in subsection (a) of the definition in s.752 of the Criminal Code:

serious personal injury offence means

(a) an indictable offence, other than high treason, treason, first degree murder or second degree murder, involving

(i) the use or attempted use of violence against another person, or

(ii) conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage on another person,

and for which the offender may be sentenced to imprisonment for ten years or more.

[52] The maximum sentence for the indictable offence of sexual assault is 10 years. Mr. Fellows committed a sexual assault on a young boy by forcing, among other acts, attempted anal intercourse. This was "violent". Additionally, this was "likely to inflict severe psychological damage" on the child. This was a "serious personal injury offence", as expressed in subsection (a) of the definition in section 752.

"Pattern of Repetitive Behaviour" showing "Failure to Restrain": s.753(1) (a)(i)

[53] In order to designate a dangerous offender through the first available gateway in s.753(1)(a)(i), the Crown must establish beyond a reasonable doubt that the offender constitutes a threat to the life, safety or physical or mental well-being of others based on evidence establishing:

i. A pattern of "repetitive behaviour", of which the predicate offending forms a part, showing a "failure to restrain" the harmful conduct; and

ii. A likelihood of causing death or injury or inflicting severe psychological damage on others through a failure in the future to restrain the conduct.

[54] The "pattern of repetitive behaviour" must "contain enough of the same elements of unrestrained dangerous conduct to be able to predict that the offender will likely offend in the same way in the future." However, the conduct need not be the same in core details or "remarkably similar".[3]

[55] It has been established beyond a reasonable doubt that Mr. Fellows has demonstrated a pattern of "repetitive behaviour" showing a "failure to restrain" his harmful conduct. The victims of both sexual offences were prepubescent boys. Mr. Fellows knew and groomed both victims to varying degrees and exploited the access he was granted in order to commit the crimes. The offender forced oral sex and more on both victims. Adult caregivers were nearby during each offence.

[56] This pattern demonstrates that Mr. Fellows was willing to take substantial risks to offend, supporting a failure to restrain his behaviour. Dr. Pearce specifically determined from a clinical perspective that Mr. Fellows has shown a "failure to restrain" his harmful sexual urges.

"Persistent Aggressive Behaviour" showing "Indifference": s.753(1)(a)(ii)

[57] As it relates to the designation gateway in s.753(1)(a)(ii), the Crown must establish beyond a reasonable doubt that the offender constitutes a threat to the life, safety or physical or mental well-being of others based on evidence establishing:

i. A pattern of "persistent aggressive behaviour", of which the predicate offending forms a part; and

ii. A "substantial degree of indifference" respecting the "reasonably foreseeable consequences" of the offender's conduct on others.

[58] Both criteria have been satisfied beyond a reasonable doubt. A finding of a "pattern of persistent aggressive behaviour" can be based on similar types of offences or the degree of violence or aggression displayed.[4]

[59] The earlier finding that Mr. Fellows "groomed" each victim, albeit to differing degrees, supports a pattern of persistent conduct that culminated in "aggressive" sexual assaults. The offender also threatened each boy in order to command silence. This collectively constituted a pattern of "persistent aggressive behaviour".

[60] Mr. Fellows has also demonstrated a "substantial degree of indifference" respecting the "reasonably foreseeable consequences" of his actions on others. The two prepubescent victims were vulnerable. Again, after each assault the offender then scared each child to prevent the discovery of the abuse.

[61] The only inference to be drawn from this collection of facts is that Mr. Fellows was "substantially indifferent" to the foreseeable consequences of his offending on others. Dr. Pearce also embraced the "indifference" finding from a psychiatric perspective.

"Failure to Control" "Sexual Impulse": s.753(1)(b)

[62] The final designation gateway under consideration specifically relates to sexual offenders: s.753(1)(b). To achieve a dangerous offender designation through this route, the Crown must establish beyond a reasonable doubt that the offender:

i. Committed a "serious personal injury" sexual offence, as described in subsection (b) of the definition found in s.752;

ii. By his conduct in any sexual matter, including the predicate offending, has demonstrated a failure to control sexual impulses; and

iii. Poses a "likelihood of causing injury, pain or other evil" to others through a failure in the future to control sexual impulses.

[63] "Sexual Assault" is a listed "serious personal injury" sexual offence found in subsection (b) of s.752. This criterion is satisfied.

[64] I find beyond a reasonable doubt that Mr. Fellows has, by his "sexual conduct", shown a "failure to control his… sexual impulses". I found earlier that Mr. Fellows had demonstrated a "failure to restrain" his harmful conduct as it relates to the designation gateway in s.753(1)(a)(i). The same analysis applies to the finding that the offender has failed to control his sexual impulses.

[65] Mr. Fellows committed the first sexual assault with at least one adult caregiver in the home. He committed the second sexual assault having preyed on a brief gap in adult supervision to sexually assault S.D. He apologized during the commission of the predicate crime. He relayed suicidal ideations before and after the offence. This combined to demonstrate that Mr. Fellows has failed to control his sexual impulses. Dr. Pearce also arrived at a similar finding from a psychiatric perspective.

Prospective Risk Analysis: Overview

[66] At both the designation and penalty stages, the court must embark on a prospective risk assessment of future dangerousness. In order to designate a dangerous offender, the Crown must prove beyond a reasonable doubt that the offender poses a high likelihood of harmful recidivism and that the harmful conduct is intractable.[5]

[67] An assessment of the future threat is necessary. Expert evidence, past and recent offending and treatment, all appropriately inform the determination of the risk of future harmful offending.[6]

Intractability: Behaviour that the Offender is Unable to Surmount

[68] As earlier referenced, one of the four criteria to designate a dangerous offender involves a finding of intractable conduct. This means that the Crown must establish beyond a reasonable doubt that Mr. Fellows is "unable to surmount" the behaviour grounding his offending.[7]

[69] The Crown has established this requirement beyond a reasonable doubt. Both sexual assaults committed a decade apart were unnervingly bold. Adult caregivers were nearby and there was the imminent prospect that the offender would be identified.

[70] Prior to the commission of the predicate offence, Dr. Woodside had warned Mr. Fellows that he risked being declared a dangerous offender and repeatedly urged him to pursue testing for anti-androgen medication. After years of refusing to engage in this potential intervention, the offender reluctantly agreed in the summer of 2014, only to withdraw from the process before the final blood tests. Mr. Fellows soon thereafter committed the predicate offence.

[71] The offender has been previously subject to custodial sentences three times for offences involving the sexual exploitation of children. He attended a rigorous treatment regimen with OCI in 2005 and had been repeatedly engaged in both group and individual counselling for "sexual offending relapse prevention" while on probation.

[72] Mr. Fellows has been intermittently suicidal for much of his adult life and often harms himself. He reported that this was at least partly due to his struggles in coming to terms with his sexual orientation toward young boys. This contributes to the inevitable finding that Mr. Fellows has been unable to surmount his paraphilic disorder. As the experts reflected, the diagnosis of homosexual pedohebephilia is unlikely to ever change. It can only be potentially managed.

[73] The finding of intractability is punctuated by the fact that the offender apologized to S.D. during the commission of the predicate offence and then promptly attempted to hang himself to death in a nearby barn. He was suicidal for some time after his arrest, as he had been for months leading up to the offence. Mr. Fellows was compelled to commit the act. He could not help himself.

Prospects of Treatment

[74] The treatment prospects of an offender are relevant at the designation stage and are to be considered in determining the future threat.[8] A potential signifier for future treatability can be found in past encounters with treatment. Mr. Fellows has been previously treated several times for sexual offending relapse prevention and libidinal reduction medication has been repeatedly recommended and refused. The treatment history has been problematic to say the least.

[75] During community supervision in 2006 after his second custodial sentence, a psychiatrist had recommended phallometric testing to confirm the diagnosis of pedophilia. It was not pursued after Mr. Fellows threatened to harm himself as a result of that prospect. Also, he had apparently acknowledged his paraphilia at the time. He would later resist the diagnosis and stated that he did not have any problematic sexual thoughts about children.

[76] Dr. Woodside of CAMH meaningfully treated Mr. Fellows from 2007 and on. Again in 2007, Mr. Fellows threatened to harm himself when phallometric testing was recommended. Dr. Woodside raised the prospect of anti-androgen medication. It was not pursued.

[77] In August of 2008, a report from Dr. Woodside confirmed that the medication was recommended again. It was "clear" that Mr. Fellows refused libidinal reduction medication and saw "no need for any treatment" at the time. In December of 2008, Mr. Fellows "did not return correspondence" inviting him to relapse prevention programming at CAMH. He was approaching the end of his court ordered supervision. Mr. Fellows was taken off the CAMH waitlist.

[78] Some years passed and Mr. Fellows was convicted again for possession of child pornography in August of 2012. After serving the custodial term, the offender attended the CAMH Sexual Behaviours Clinic while on probation. Phallometric testing was recommended again. Mr. Fellows responded that he would "rather go to jail".

[79] He characterized his interest in child pornography at the time as a "curious hobby" and resisted that he had ever been sexually aroused by children. He expressed that he did not require treatment for any sexual condition and was "done" offending.

[80] Mr. Fellows was directed to Dr. Woodside again in April of 2014, some months before he committed the predicate offences. Rebuffing initially a renewed recommendation that he accept a prescription for Lupron, the offender advised that he had "no interest in taking medication" to reduce his sexual urges. He stated that he did not "believe" in it and was concerned about its side effects.

[81] Of note, Mr. Fellows still denied having sexual thoughts about children. Dr. Woodside raised the prospect of another arrest and a dangerous offender designation. Mr. Fellows replied that he had discussed this possibility with his lawyer. He agreed to think about the medication.

[82] Mr. Fellows met Dr. Woodside again on June 26, 2014. He agreed to begin anti-androgen medication. The offender had recently self-harmed and had expressed suicidal ideations. This concern persisted throughout the summer.

[83] Mr. Fellows was sent to an endocrinologist to test his suitability for the medication. The result of the bone mineral density testing was normal. He was directed for biochemical testing and the resultant lab report disclosed that the lab was "unable to process as the patient declined testing." Less than a month later, Mr. Fellows sexually assaulted S.D.

[84] Dr. Pearce concluded from a psychiatric perspective that there were "some reasons for optimism" regarding treatment prospects. This was informed in part by the offender's expressed willingness during the assessment process to take Lupron and other treatment. Dr. Pearce acknowledged the prior history of refusal to take the medication and that it may impact the offender's motivation to continue with it after the expiry of an LTSO.

[85] I have summarized the offender's treatment history and repeated refusal to take anti-libidinal medication. He has been taking Lupron in the past year while in custody. I must consider this development. I make little of several prior findings that Mr. Fellows has demonstrated manipulative behaviour in clinical and supervised settings. I do find it curious, after years of active resistance against the medication, that he has finally taken it for the first time over this past year. It has been repeatedly and strongly recommended to him for almost ten years.

[86] Dr. Pearce recommended that the anti-androgen regimen only commence shortly before release from custody. This was given the obvious fact that Mr. Fellows is unlikely to offend sexually against children while detained. By the offender's own submission, he expects to stay in custody for several more years. Nonetheless, at a time when children are least at risk by his conduct, Mr. Fellows has now seen fit to take the drug.

[87] Aside from his expressed rehabilitative motivation to now receive Lupron, the offender is perhaps understandably endeavouring to position himself favourably as he faces the prospect of an indeterminate sentence. However, I cannot ignore his history of refusal of the medication, particularly proximate to the commission of the predicate offence.

[88] Expert testimony confirmed that the medication is only effective when consumed and can be defeated by counteracting drugs. Considering his extended history of refusing Lupron when children were at risk, I do not accord significant weight to the development that he has started taking the medication while in custody.

[89] Mr. Fellows has been treated intensively for relapse prevention in a variety of court-directed settings. There is a substantial record supporting that Mr. Fellows has repeatedly lacked insight into his paraphilia and only accepted treatment, often reluctantly, when it was pursuant to court order or state supervision. The evidentiary absence of any meaningful treatment between 2008-2012 is illustrative.

[90] Despite all the therapeutic interventions imposed over the course of a decade, the offender committed his most serious and violent offence at the age of 43. He did so for the first time in violation of court orders that limited his access to children. As the experts testified, Mr. Fellows challenges the "burnout" theory that sexual and violent offenders tend to offend less aggressively as they age.[9] In light of these findings and the identified encounters with treatment, I would characterize the treatment prospects as limited to poor.

"High Likelihood of Harmful Reoffending"

[91] To designate a dangerous offender, it must be established beyond a reasonable doubt that the offender poses a "high likelihood of harmful recidivism".[10] Such a finding would frame the "prospective risk" findings necessary in each submitted designation gateway found in sections 753(1)(a)(i)(ii) and (b).

[92] Dr. Woodside in 2005 initially assessed Mr. Fellows as moderate to lower risk for sexual recidivism. Upon receiving further information, Mr. Fellows was reassessed after his first "hands on" offence into the highest risk category. Accordingly, Dr. Woodside recommended, among other therapeutic interventions, the prescription of Lupron. Almost a decade later, and prior to the commission of the predicate offence, Mr. Fellows had still not taken the medication.

[93] Dr. Pearce pursuant to the s.752.1 report, assessed Mr. Fellows as "moderate to high risk" to reoffend sexually. This opinion, which I accept as clinically sound, requires examination.

[94] In arriving at this assessment of risk, Dr. Pearce applied three actuarial instruments: The Psychopathy Checklist Revised (PCL-R), the Sex Offender Risk Appraisal Guide (SORAG) and the Static-99R, an instrument best used to predict the likelihood of sexual offending.

[95] Mr. Fellows tested as "low to moderate" on the PCL-R psychopathy instrument. Psychopathy can be a powerful indicator of risk. As Dr. Pearce reflected, this instrument is not a risk assessment tool on its own, but its results may inform the assessment of future risk to generally reoffend. As Dr. Pearce acknowledged, one does not need to be diagnosed on the psychopathy spectrum to represent a high risk to offend. The absence of psychopathy may bode well for the prospect of treatment.

[96] More cogent instruments, as they relate to the risk posed by a sexual offender, are the SORAG and Static-99R. Both instruments address the specific risk of sexual offending. Mr. Fellows scored as "high risk" to sexually offend upon the application of both the SORAG and Static 99-R.

[97] Dr. Pearce noted "the outcome data on the SORAG is somewhat dated and thus may represent an over-estimate of risk". It is important to square this clinical observation with the fact that Mr. Fellows most recently committed his second and most violent offence against a child well into his fifth decade of life. Dr. Pearce acknowledged this as a factor in assessing future risk. While he assessed Mr. Fellows as "moderate to high risk", he also recognized that the offender was "trending towards the high-risk category".

[98] I also consider the impact of other psychiatric diagnoses on the future risk to reoffend. Both Dr. Woodside and Dr. Pearce assessed that Mr. Fellows likely suffers from a personality disorder with narcissistic and borderline personality traits. This diagnosis has expressed itself in Mr. Fellows as self-involvement, immaturity, and a manipulative and grandiose presentation. Dr. Pearce noted that this diagnosis may adversely impact both the assessment of risk and the prospects for treatment.

[99] I have already assessed the treatment prospects as limited to poor. I find beyond a reasonable doubt that Mr. Fellows represents a high risk to sexually reoffend against children.

Threat of Future Harm Established: s.753(1)(a)(i-ii) and (b)

[100] I have found beyond a reasonable doubt that Mr. Fellows is highly likely to sexually reoffend against children, and that he is unable to surmount his paraphilia. These findings result in the related finding that the offender "constitutes a threat to the life, safety or physical or mental well-being" of others (s.753(1)(a)), based on evidence establishing the requisite patterns of harmful conduct earlier established as outlined in s.753(1)(a)(i) and (ii).

[101] The same findings cascade into a finding beyond a reasonable doubt that Mr. Fellows poses a high "likelihood of causing injury, pain or other evil" by failing to control his sexual impulses (s.753(1)(b)).

Designation Stage – Conclusion

[102] Where proof establishes beyond a reasonable doubt the related criteria for any of the three submitted gateways to a dangerous offender designation in s.753(1)(a)(i)(ii) and (b), I must designate Mr. Fellows a dangerous offender. I find that all three gateways have been so proven. Mr. Fellows is designated a dangerous offender.

Long-Term Offender (LTO) Designation: S.753.1(1)

[103] If the dangerous offender designation criteria are not satisfied, the court may impose a Long-Term Offender (LTO) designation. Section 753.1(1) directs:

The court may, on application made under this Part following the filing of an assessment report under subsection 752.1(2), find an offender to be a long-term offender if it is satisfied that

(a) it would be appropriate to impose a sentence of imprisonment of two years or more for the offence for which the offender has been convicted;

(b) there is a substantial risk that the offender will reoffend; and

(c) there is a reasonable possibility of eventual control of the risk in the community.

[104] Upon satisfaction of the criteria to declare a dangerous offender, the court has no discretion. A dangerous offender designation must then be imposed, and discretion is reserved for sentence. Given I have designated Mr. Fellows as a dangerous offender, I need not embark on an involved analysis for an LTO designation.

[105] I agree that a sentence of at least "two years" must be imposed. It has been established that Mr. Fellows poses a "substantial risk" to reoffend: see s.753.1(2). When I determine the appropriate penalty, I will discuss whether there is a "reasonable possibility of eventual control of the risk in the community."

Penalty Stage – Legislative Framework

[106] Sections 753(4), (4.1) and (5) of the Criminal Code distill the procedure related to the sentencing of a dangerous offender:

(4) If the court finds an offender to be a dangerous offender, it shall

(a) impose a sentence of detention in a penitentiary for an indeterminate period;

(b) impose a sentence for the offence for which the offender has been convicted — which must be a minimum punishment of imprisonment for a term of two years — and order that the offender be subject to long-term supervision for a period that does not exceed 10 years; or

(c) impose a sentence for the offence for which the offender has been convicted.

(4.1) The court shall impose a sentence of detention in a penitentiary for an indeterminate period unless it is satisfied by the evidence adduced during the hearing of the application that there is a reasonable expectation that a lesser measure under paragraph (4)(b) or (c) will adequately protect the public against the commission by the offender of murder or a serious personal injury offence.

(5) If the court does not find an offender to be a dangerous offender,

(a) the court may treat the application as an application to find the offender to be a long-term offender, section 753.1 applies to the application and the court may either find that the offender is a long-term offender or hold another hearing for that purpose; or

(b) the court may impose sentence for the offence for which the offender has been convicted.

Penalty Stage – Applicable Principles of Sentencing

[107] A dangerous offender proceeding is fundamentally a sentencing hearing. As such, the principles of sentencing codified in sections 718 to s.718.2 of the Criminal Code apply.[11]

[108] Sentencing a dangerous offender requires attention to the "public protection" component of the fundamental purpose of sentencing in s.718.[12] In cases involving sexual assaults against children, deterrence and denunciation must remain the central sentencing principles applied: ss.718.01 and 718.2 (a)(ii.1). It is agreed that Mr. Fellows must be separated from society by means of a significant custodial sentence. The offender's rehabilitation must be considered as well.

[109] Section 718.1 directs that the sentence imposed must be proportionate to the gravity of the offence and the degree of responsibility of the offender. I must also apply the principle of parity codified in section 718.2(b).

[110] Insofar as the analysis permits, I caution myself to exercise restraint and to consider the least restrictive sanction appropriate to achieve the primary purpose of the legislated scheme: s.718.2(d) and (e).[13] In the dangerous offender context, the application of these principles require that I consider all available alternatives to an indeterminate sentence.[14]

Victim Impact Evidence

[111] Both parents of S.D. provided victim impact statements. They have experienced anger, sadness, helplessness and regret as a result of Mr. Fellows sexually assaulting their son. They fear how the assault will impact the trajectory of their boy.

[112] S.D. also provided a victim impact statement. He stated: "I haven't been able to trust anyone except my parents and good friends. Every time I go out somewhere, I don't feel safe at all… I am wary of all men who are strangers. I felt depressed on and off for awhile."

Circumstances of the Offender

[113] Derek Fellows is a 48-year-old repeat sexual offender against children. He was subject to two court orders restricting contact with children when he sexually assaulted S.D. The offender now has three entries on his criminal record related to child pornography.

[114] Mr. Fellows has limited supports in the community, apparently due in part to the nature of his repeated engagement with the criminal justice system. His childhood was difficult. His parents separated as a result of his father's alcoholism. Mr. Fellows has had virtually no relationship with his father during his adult life. He moved with his mother a lot during the ensuing years, and finances were an issue.

[115] Mr. Fellows described himself now as child-like and immature and was often lonely and isolated throughout his teenage years. One of his mother's boyfriends physically abused him. Since the age of 11, the offender would hurt himself physically in a variety of ways. Mr. Fellows graduated from high school as an average student.

[116] The offender has had a generally positive employment history. Mr. Fellows has worked in television and radio, shipping and receiving, delivery, retail, and most recently on a farm. Of note, he was fired from one of his jobs when child pornography was found on a work computer leading to one of his convictions. Also, the predicate offence was committed while Mr. Fellows worked on a farm.

[117] When invited to address the court, Mr. Fellows apologized for the harm he has caused to S.D. He expressed regret for his past offending and vowed never to do so again. The past five years in custody has been used to reflect on his troubled past and instilled in him a desire to change his life. Mr. Fellows focused on his recent progress with counselling and that the Lupron prescribed earlier this year has been effective. He asked for the opportunity to prove he can lead a law-abiding existence.

Aggravating and Mitigating Factors

[118] The following mitigating and contextual factors have been established:

i. Mr. Fellows pleaded guilty and is remorseful;

ii. The offender has commenced anti-androgen medication during pre-sentence detention and is open to other treatment;

iii. Mr. Fellows struggles with mental health. This is informed by his paraphilic orientation. He has demonstrated depressive symptoms throughout his adult life as well as signs of a personality disorder. He has threatened and taken steps to kill himself several times throughout his life, notably after committing the predicate offence.

[119] The following aggravating factors have been established beyond a reasonable doubt:

i. Mr. Fellows committed a particularly violent sexual assault against 10-year-old S.D., involving forced oral sex and attempted anal intercourse.

ii. The breaches of two court orders prohibiting contact with children are not aggravating in isolation. It is aggravating that Mr. Fellows violated these court orders by committing a violent sexual assault against a child.

iii. The criminal record is cogent and aggravating. Mr. Fellows has now sexually assaulted two prepubescent boys. He has now been convicted three times for possessing child pornography.

Sentencing – Managing the Established Threat

[120] In sentencing a dangerous offender, the court must impose the appropriate sentence to manage the future threat established during the designation stage. Section 753(4.1) directs that I must impose an indeterminate sentence for a dangerous offender, unless I am satisfied that there is a reasonable expectation that a conventional sentence for the offences or a custodial term of at least two years coupled with an LTSO would adequately protect the public from the harm contemplated by the regime.

[121] Even in light of the intractability finding, I must consider whether the risk arising from the conduct can be adequately managed outside of an indeterminate sentence.[15] I find that Mr. Fellows should not, in the circumstances, simply receive a lengthy, deterrent penitentiary sentence.

[122] His diagnosis reflects a lifelong paraphilic condition that will require targeted and lengthy supervision. It cannot be managed within the scope of a conventional custodial sentence and release. The public protection imperative, given my findings that support his designation, requires more.

[123] In the context of an LTSO, conditions of release can be imposed and modified to accommodate the level of risk. In the event of a breach of a condition of an LTSO, which arguably could include the "direction" to take anti-androgen medication, Correctional Services can take steps to suspend or amend the release. New charges might be laid. Mr. Fellows can be essentially compelled to take libidinal reduction medication or face further restrictions or revocation of release.

[124] Is there a reasonable expectation that the public will be protected from another serious personal injury offence absent an indeterminate sentence? After careful consideration, I find that no such expectation can be reasonably found.

[125] Again, Dr. Pearce opined that there were "some reasons for optimism regarding the likelihood of treating or managing Mr. Fellows' relevant diagnoses" eventually in the community. Three of the key considerations that grounded this opinion must be reviewed.

[126] First, Dr. Pearce anticipated a lengthy determinate sentence to be followed by an LTSO that would structure the gradual, supervised release of the offender into the community, layered with treatment and medication. There was the related prospect that Mr. Fellows would likely start to "age out" of his violent offending years by the time he is eligible for supervised release.

[127] Dr. Pearce acknowledged that some sexual offenders challenge the theory that violent offenders tend to "burn out" with age. I agree with his observation that Mr. Fellows is violently escalating his sexual offending. While it was not central in the forensic risk assessment, it is noteworthy that this mature offender for the first time violated two court orders prohibiting contact with children as he committed his most violent sexual assault against a child. The submission by defence counsel that the offender can simply be arrested upon a violation of an LTSO must be viewed in this context.

[128] A second factor that Dr. Pearce considered in expressing cautious optimism regarding the prospect of effective management in the community was the generally positive work history of Mr. Fellows. The doctor also recognized that the offender used a work computer to access child pornography and most recently used his employment on a farm to identify and sexually assault a visiting child.

[129] Dr. Pearce noted as a third factor supporting potential risk management in the community was that Mr. Fellows expressed a willingness to take anti-libidinal medication and other treatment. A current expression of interest by an offender to take treatment when faced with an indeterminate sentence is somewhat instructive. However, I must consider past encounters with treatment. Dr. Pearce took great care in summarizing the problematic treatment history. Mr. Fellows has been treated for almost a decade through a variety of means for sexual offending relapse prevention.

[130] Only when faced with a dangerous offender designation has Mr. Fellows apparently fully accepted libidinal reduction medication. The indefinite reception of this medication is apparently key to ensuring public safety. Both Dr. Pearce and Dr. Woodside observed that the drug could be defeated by a motivated offender. Given the offender's long history of active refusal to take the drug, there is no reasonable expectation that he will continue with it upon the expiry of an LTSO.

[131] In assessing whether a disposition less than an indeterminate sentence would adequately protect the public, I note again that Mr. Fellows has now for the first time breached two court orders prohibiting contact with children by violently abusing a child. He has demonstrated that court orders and related supervision will not deter him from preying sexually upon children. Mr. Fellows has shown that he cannot surmount his criminal conduct involving young boys.

[132] There is no reasonable expectation that any measure other than an indeterminate sentence would adequately protect children from the violent predation presented by Mr. Fellows. An indeterminate sentence is necessary in the circumstances.

Conclusion

[133] The application by the Crown is granted. Mr. Fellows is designated as a dangerous offender pursuant to s.753(1) (a)(i)(ii) and (b) of the Criminal Code. He will receive an indeterminate sentence of imprisonment, pursuant to s.753(4) and (4.1).

[134] I will also impose DNA orders and lifetime orders pursuant to Criminal Code sections 109 and 161 and the Sex Offender Information Registration Act (SOIRA). Pursuant to s.743.21(1) of the Criminal Code, Mr. Fellows will be prohibited from communicating directly or indirectly with S.D. or any member of his immediate family.

[135] My thanks to counsel.

Released: December 18, 2019

Signed: "Justice A.A. Ghosh"

Footnotes

[1] R. v. C.M., 2013 ONCJ 576, [2013] O.J. No. 5047

[2] R. v. Boutilier, 2017 SCC 64, [2017] 2 S.C.R. 936 (S.C.C.), paras. 26-27; R. v. Lyons, [1987] 2 S.C.R. 309 (S.C.C.)

[3] R. v. Hogg, 2011 ONCA 840, [2011] OJ NO. 5963 (Ont.C.A.), para. 40; R. v. Jones, [1993] OJ No 1321 (Ont.C.A.), para. 4

[4] R. v. Neve, 1999 ABCA 206, [1999] A.J. No. 753 (Alta.C.A.)

[5] R. v. Boutilier, paras. 26, 27, 41

[6] R. v. Currie, [1997] 2 S.C.R. 260 (S.C.C.)

[7] R. v. Boutilier, para. 27

[8] R. v. Boutilier, para. 42

[9] R. v. Jones, [1993] O.J. No. 1321 (Ont.C.A.), para. 5

[10] R. v. Boutilier, paras. 26-27

[11] R. v. Boutilier, para. 53

[12] R. v. Boutilier, para. 56

[13] R. v. Boutilier, para. 60

[14] R. v. Boutilier, para. 52

[15] R. v. Boutilier, para. 31