Court File and Parties

Date: April 17, 2020

Court File No.: 0611-998-17-729

Ontario Court of Justice Central West Region

Between: Her Majesty the Queen — and — Wayne Gould

Before: Mr. Justice Richard H.K. Schwarzl at Orangeville

Reasons released on: April 17, 2020

Counsel:

• Mr. Christopher Presswood for the Crown
• Mr. Terry Kirichencko for the Accused

SCHWARZL, J.:

REASONS REGARDING APPLICATION TO DESIGNATE WAYNE GOULD A DANGEROUS OFFENDER

1.0: INTRODUCTION

[1] In June 2018, Mr. Gould pled guilty to sexually assaulting and forcibly confining the victim, T.G., a 23 year-old woman in April 2017.

[2] The detailed circumstances of the crimes are set out in the Agreed Statement of Facts, filed. A summary of these crimes is that while the victim was at the municipal bus station in Brampton at around 2:00 a.m. she was approached by Gould, who was a stranger to her. After chatting for about 15 minutes, the victim accepted Gould's invitation to drive her home. Instead of doing that, Gould drove the victim to rural Dufferin County where he parked in a field and told her to "Suck my dick or I am going to fuck you." The victim acquiesced to Gould's demand because she was afraid she would be injured or killed if she did not comply. During the forced sex, Gould touched the victim's vagina over her clothes and spanked her. After he climaxed, he touched the victim's breasts, vagina, and buttocks under her clothes. He then abandoned her on the side of the road. She was able to flag down a car and the police were called. DNA evidence found at the scene linked Gould to the crimes. He was arrested June 6, 2017 and has been in custody ever since.

[3] When Gould pled guilty, both sides were represented by different lawyers from the ones now appearing. On the plea, both lawyers jointly advised that they would seek a sentence of 10 years less time served with the Crown seeking to apply to declare Gould a Dangerous Offender. That application is now before me together with a new position of the Crown which is to seek not only the Dangerous Offender designation, but also an indeterminate sentence. Gould submits that he should not be designated a Dangerous Offender but should be subject to a Long-Term Offender Supervision Order after serving a definite custodial sentence. The sentencing positions of the parties is now open, not joint.

[4] Two volumes of comprehensive relevant materials were filed by the Crown as evidence. Expert assessment reports were filed by both parties. The Crown's expert was Dr. Jonathan Rootenberg; the defence expert was Dr. Julian Gojer. Dr. Rootenberg testified while Dr. Gojer did not.

[5] A Dangerous Offender Application is broken down into two steps or phases. Phase 1 deals with whether the offender should be designated as a Dangerous Offender; Phase 2 deals with the appropriate sentence regardless of the outcome of Phase 1.

[6] What follows are my reasons regarding the designation phase. In coming to my decision, I have relied on all the materials filed, the evidence of Meaghan Jones of Correctional Services Canada, the report and evidence of Dr. Rootenberg, the report of Dr. Gojer, and the written submissions of both counsel.

2.0: ISSUES NOT IN DISPUTE

[7] The following four issues are not in dispute.

[8] This Application applies to both counts because each is an offence designated by section 752, Criminal Code of Canada.

[9] Both crimes meet the definition of a serious personal injury offence as set out in section 752, Criminal Code of Canada.

[10] Both parties agree that on the totality of the evidence there is a substantial risk that Gould will reoffend violently and that he presents a threat of future harm to the public.

[11] Both parties agree that Gould's future treatment prospects are a relevant consideration in the designation phase of this Application.

3.0: THE ISSUE AT THE DESIGNATION PHASE

[12] The only issue for me at this stage of the proceedings is whether the commonly accepted threat of future harm posed by Gould have been proven by the Crown on the criminal standard to rise to the level of intractability; that is whether Gould is unable to surmount his pattern of violent behaviour: R. v. Boutilier, 2017 SCC 64.

4.0: POSITIONS OF THE PARTIES

4.1: The Position of the Defence

[13] The defence submits that Mr. Gould's future treatment prospects are so compelling that I ought not conclude beyond a reasonable doubt that his pattern of violent behaviour is intractable. He submits that his threat to public safety is subject to a realistic prospect of management in the community. He urges me to find that the Crown has failed to establish that he is a tremendous future risk to public safety.

[14] Gould points out that Dr. Rootenberg, having concluded that he is at a high risk to commit future violent, particularly sexually violent, crimes opined that there is a possibility of eventual control of that risk in the community on a LTSO provided two things are in place: rigorous supervision of Gould while at large and Gould being compliant with that supervision.

[15] Gould submits that both experts agree that beyond age 59 people like Gould are a lower risk to commit crimes of sexual violence. He submits that since he is nearly 50 years old a LTSO is a realistic means of making his risk of harm manageable.

[16] Gould submits that he should not be labelled a Dangerous Offender and that this matter should continue as a Long-Term Offender Application pursuant to section 753.1 of the Criminal Code of Canada.

4.2: The Position of the Crown

[17] The Crown submits that it has proven that the future threat of harm by Gould is intractable. They rely on the demonstrated patterns of repetitive and persistently aggressive behaviour and proven long-term failure by Gould to control his sexual impulses.

[18] The Crown submits that Gould can be designated as a Dangerous Offender by any or all of sections 753(1)(a)(i), 753(1)(a)(ii), and 753(1)(b) of the Criminal Code of Canada. They further submit that a prospective assessment shows that Gould remains a tremendous future risk of committing violent and sexually violent crimes.

5.0: ANALYSIS

[19] For reasons which I will explain, I am satisfied beyond a reasonable doubt that the substantial threat of future harm by Gould is intractable; that is to say, his tremendous threat of harm is very difficult to manage based on a prospective assessment of that risk, including future treatment prospects.

[20] The predicate offences are the fourth set of sex crimes perpetrated by Gould against females over a 17-year period despite having successfully completed several courses of both in-custody and community-based treatment and supervision for his underlying issues that led him to offend and re-offend.

[21] Both experts found Gould to be a violent person who is persistently engaged in relative denial of all his sexually violent crimes, including the predicate offences. They found that Gould does not take full responsibility for any of his crimes and he does not focus on the harm he has caused to his victims.

[22] It is clear from the evidence that Gould is a dangerous person who does not believe that he is dangerous despite all these crimes over many years. While Gould has insight that he is an angry man with impulse and anger control issues, his steadfast and long-term refusal to recognize that his attitudes and actions render him dangerous are the very definition of intractable. It is difficult to not conclude that Gould is, and will be, very difficult to manage when he has not, or will not, acknowledge his dangerous nature or the very harmful consequences of his actions on others.

[23] Both experts agree that Gould possesses a personality with significant anti-social traits. While he has not been labelled a psychopath by either psychiatrist, they both agree that Gould scored relatively high on the psychopathy checklist.

[24] Both experts agree that Gould is a dangerous sexual deviant. It is clear from the evidence that Gould does not accept this. Gould told both doctors that he has anger and impulse control issues. He stated to both experts that notwithstanding years of treatment for sex crimes, anger management, and impulse control he still does not understand why he continues to commit these crimes. Gould says he wants to change but has not done anything meaningful about it despite being given the tools to do so many times, which Dr. Rootenberg stated was a significant challenge to any successful treatment in the future. This conclusion was not disputed by Dr. Gojer.

[25] Both experts agree that Gould's pattern of sexual violence involves a seriously harmful response to stress from an intimate relationship with someone who was not the victim of his sexual violence. When he has difficulties in his primary relationship, he takes it out violently on females, whether they be child or adult.

[26] Both experts agree that Gould is at a high risk to reoffend sexually. Dr. Rootenberg's opinion was that despite claiming to act impulsively all Gould's crimes involved signs of planning which underscores the intractability of the offender's behaviour. Dr. Gojer did not disagree with this observation.

[27] As for Gould's prospects for treatment, I do not find them compelling or persuasive enough to believe that his acknowledged risk of harm can be managed safely. Even though he has complied with treatment in the past, Gould's repetitive and persistent pattern of recurring sexual violence after said treatment, his anti-social personality traits, his failure or refusal to acknowledge his own dangerousness, his harmful sexual deviance involving pedophilia and coercive rape paraphilia go against a finding that he can realistically be managed in the community within tolerable limits.

[28] Dr. Gojer said that Gould has potential to do well in future treatment. Dr. Rootenberg said that it was possible that Gould could be managed with treatment. Potentialities and possibilities fall far short of being compelling reasons to believe that his threat to society can be safely managed in the community.

[29] Dr. Gojer's optimism of successful future treatment was based on two main components: first, that Gould can find stability, both in his present intimate relationship and by finding steady employment; second that by age 60 research shows that the risk of sexually offending against adults tends to be negligible. This optimism is offset by several factors. First, Gould's current partner seems ignorant of his pattern of offending and is either unaware of, or minimizes, his risk to society and his sexual deviance. What is more, Gould committed the predicate offences while with his present partner and ostensibly enjoying the best relationship of his life. Second, the evidence is clear that Gould's prospects for stable employment are poor at best given his work history. Third, I am not satisfied with Dr. Gojer's blanket statement that risk to reoffend becomes negligible after age 60. Dr. Rootenberg's more thorough review of the effects of age on risk finds that risk to commit violent offences does decrease with age, but he did not agree that the risk was negligible; the substance of his evidence is that while risk is lower with age, it cannot be said to become an acceptably low risk especially for someone like Mr. Gould with anti-social personality traits and responsibility-avoidant attitudes.

[30] Dr. Rootenberg said that successful treatment may be possible with adequate supervision of, and compliance by, Gould. I accept that supervision, while available, may be effective. I am less confident about Gould's compliance given his history. I have no faith at all in any post-supervision success given Gould's longstanding patterns of violent behaviour to date and his apparent self-inflicted blindness about his violent nature or the impact of his crimes on others.

[31] Given the complete failure of past treatment to control Mr. Gould, the lack-lustre assessments of the experts for future success, the offender's continuing failure to recognize his fundamentally dangerous disposition, and the ongoing minimization of his responsibilities for his harmful criminality I am convinced beyond a reasonable doubt that Gould is an intractable and tremendous risk to commit great harm to society in the future.

6.0: CONCLUSION

[32] For these brief reasons, I conclude that Wayne Gould must be designated a Dangerous Offender under all of sections 753(1)(a)(i), 753(1)(a)(ii), and 753(1)(b), Criminal Code of Canada.

[33] I direct counsel to speak with the trial coordinator to select one day to make submissions as to sentence pursuant to section 753(4) of the Criminal Code of Canada.

Richard H.K. Schwarzl, Justice of the Ontario Court of Justice