Court File and Parties

Date: September 11, 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: September 11, 2020

Counsel:

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

SCHWARZL, J.

REASONS FOR SENTENCE ON DANGEROUS OFFENDER APPLICATION

1.0: INTRODUCTION

[1] In April 2017 the offender, Wayne Gould, sexually assaulted and forcibly confined the victim, T.G., who was then 23 years of age. He was arrested for these crimes on June 2, 2017 and he has remained in custody ever since, being 1196 days to September 11, 2020 or approximately 40 months.

[2] In June 2018 I accepted Mr. Gould's pleas of guilty to both offences. Shortly thereafter, the Crown initiated a Dangerous Offender Application, which is comprised of a designation phase and a sentencing phase. Following the presentation of evidence, I designated Mr. Gould as a Dangerous Offender for written reasons given by me on April 17, 2020. After that, I received more evidence on the second, or sentencing, phase of the Application.

[3] The Crown seeks an indeterminate sentence whereas the defence asks for a determinate sentence followed by a ten-year long-term supervision order. Both parties relied heavily on the evidence of two psychiatrists, Drs. Rootenberg and Gojer.

2.0: APPLICABLE LEGAL PRINCIPLES REGARDING SENTENCING ON A DANGEROUS OFFENDER APPLICATION

[4] After designating a person as a dangerous offender, section 753(4) of the Criminal Code provides the court three sentencing options: (a) impose detention in a penitentiary for an indeterminate period, (b) impose a determinate sentence and order the offender to be subject to long-term supervision not exceeding ten years, or (c) impose a determinate sentence.

[5] In R. v. K.P., 2020 ONCA 534, the Ontario Court of Appeal recently set out at paragraphs 10 to 14 a concise statement of the law on the issue of sentencing a dangerous offender:

10 Section 753(4.1) provides guidance on how the sentencing judge should exercise discretion when choosing among the three options:

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.

11 To determine whether a lesser measure will adequately protect the public, there must be evidence before the sentencing judge that the dangerous offender can be safely released into the community. However, as the majority of the Supreme Court of Canada held in Boutilier, 2017 SCC 64, s. 753(4.1) "does not create a presumption that indeterminate detention is the appropriate sentence".

12 Section 753(4.1) requires the sentencing judge to engage in a thorough examination of all the evidence presented during the hearing to determine the fittest sentence: Boutilier, at paragraph 76. The sentencing judge must consider whether there is a "reasonable expectation" that a lesser measure - a conventional fixed-term sentence or a fixed-term sentence of at least two years followed by a long-term supervision order - will adequately protect the public against the risk that the offender will commit murder or further serious personal injury offences: Boutilier, at paragraph 77. The sentencing judge must exhaust those lesser measures before imposing an indeterminate sentence. The majority further explained that indeterminate sentences should be limited to "habitual criminals who pose a tremendous risk to public safety": Boutilier, at paragraph 77.

13 When determining the appropriate sentence to manage the risk to public safety, the sentencing judge may consider treatability: Boutilier, at paragraph 45. In assessing the manageability and treatability of the offender's behaviour, the sentencing judge may consider evidence, such as: treatment avoidance, failure to respond to treatment, breaches of court orders, lack of motivation, continued involvement in high-risk conduct, serious personality disorder, and elevated likelihood of violent recidivism: R. v. Radcliffe, 2017 ONCA 176, at paragraphs 64-65.

14 Where the management of risk requires more tools than are available under the parole authorities, an indeterminate sentence is reasonable. Risk management evidence must demonstrate a prospect of effective supervision, within the means and capacity of the parole authorities: R. v. Severight, 2014 ABCA 25, at paragraphs 40-43. As this court has explained, "'real world' resourcing limitations cannot be ignored or minimized where to do so would endanger public safety": R. v. Little, 2007 ONCA 548, at paragraph 70.

[6] There is no onus on either party with respect to sentencing a dangerous offender: Boutilier, paragraph 71.

[7] Notwithstanding a designation of dangerousness, both an indeterminate and determinate sentence with long-term supervision are exceptional in the Canadian framework of sentencing. They are designed to only segregate a very small group of highly dangerous criminals whose character and circumstances require preventative detention: Boutilier, paragraph 33; R. v. B.(D.), 2015 ONSC 5900 at paragraphs 182–184.

[8] The imposition of an indeterminate sentence does not equate to perpetual incarceration but allows for the life-long continuation of treatment and the future availability of a supervised release: R. v. Walker, at paragraph 10.

3.0: FACTS OF THE PREDICATE OFFENCES

[9] In mid-April 2017 the victim was waiting for a bus in Brampton. Mr. Gould, who was unknown to the victim, approached her and offered to drive her home. After some conversation, the victim agreed and got into his car. Mr. Gould drove the victim to the countryside of rural Dufferin County. He parked his car and told the victim, "Suck my dick or I am going to fuck you." Afraid she might be hurt or killed, the victim complied with his demand. During the forced sex, Mr. Gould touched the victim's vagina over her clothes and spanked her. After ejaculating, the offender touched the victim's breasts, vagina, and buttocks beneath her clothing. He then abandoned her and drove away. The victim received help from a passing motorist and reported the crimes to the police. Mr. Gould was arrested in early June after a DNA analysis linked him to the offences.

4.0: BACKGROUND OF THE OFFENDER

4.1: Offender's Personal Background

[10] Wayne Gould was born on December 10, 1971. He was 45 years old when he committed the predicate offences. At the time of sentencing, he was 48 years old.

[11] He grew up in Peterborough until age 12 when his family moved to the town of Simcoe. When he was 13, he was sexually molested by an adult male at a shopping plaza. Mr. Gould described this abuse as the source of 99% of his problems. He never reported the incident to his immediate family or the police but did confide in at least one intimate partner years later. He has never dealt with this trauma in any therapeutic or other setting. He told both psychiatrists that this event not only caused him great shame but caused him to become angry at the world.

[12] Around age 16, Mr. Gould moved away from home, leading to estrangement from his family. He dropped out of school after Grade 9 but completed his high school education as an adult. He has no post-secondary education. He has no learning or cognitive disabilities.

[13] Mr. Gould's work history has been unstable. He has had many jobs with most lasting only a short time. He can find a job but has trouble keeping one.

[14] Mr. Gould identifies as heterosexual and has had several female life partners. His most recent common law spouse is Ms. Denise Kendry-Clarke, with whom he has been in an intimate relationship since 2013. They have no children together and no children reside with them. She only learned of his criminal history after he was arrested for the predicate offences, although she appears loyal to him.

[15] Mr. Gould is generally unhealthy. He has suffered five or six undiagnosed concussions from sports or fights. He has diabetes, hypertension, and high cholesterol. In 2015 he suffered a heart attack. He is on medication for his many ailments. He describes himself as chronically depressed, anxious, and angry. Mr. Gould says that he has quick temper and angers easily, being triggered especially by rejection.

[16] With respect to substance use, Mr. Gould abused alcohol from age 13 until 2015, drinking excessively at least once per week. His misuse of alcohol caused social, occupational, and educational dysfunction but has not played any direct role in his criminal behaviour. He stopped drinking to excess after his heart attack.

[17] Mr. Gould denies that he has a sexual deviance of any kind. He reported to Dr. Rootenberg that he has had a suppressed libido since 2013 or so.

4.2: Offender's Criminal History

4.2.1: Criminal Record and Offender's Comments

[18] Wayne Gould's criminal record is as follows:

2000-03-01 Brantford

• (1) Possession Under $5000
• (2) Theft Under $5000
• (3) Fail to Appear in Court
• (1-3) Time Served (42 days) plus 1 day, concurrent.

2000-09-05 Brantford

• Sexual Interference
• Time Served (5 mos) & probation 2 years

2004-02-26 Toronto

• (1) Sexual Assault
• (2) Assault
• (1) Time Served (189 days) plus 10 months + probation 3 years
• (2) 6 mos concurrent

2007-12-03 Belleville

• Sexual Assault
• Time served (12¼ mos) plus 7 years + s.109 Order

2012-08-01

• Statutory Release

[19] With respect to the 2000 conviction for property offences and failing to appear, Mr. Gould was found in possession of a stolen licence plate tag and he stole a video game, then failed to appear in court. He downplayed his role in each crime when speaking with Dr. Rootenberg about them.

[20] The conviction for sexual interference in 2000 involved forcing the 7-year-old child of his then common law spouse to fellate him and by showing her how to masturbate him. He told Dr. Rootenberg that he didn't do it despite pleading guilty. He told Dr. Gojer that he made the child masturbate him and that he put his finger in her anus. He told both doctors that the offence was an act of revenge against his spouse because he hated the mother and displaced his anger on the child. He told Dr. Gojer that at the time he had some sexual arousal around the victim. His probation included a condition that he participate in sex offender group therapy.

[21] In 2004 Mr. Gould was convicted of sexual assault and common assault. The common assault was against his common law spouse, whom he punched in the chest. The sex crime was committed against his 8-year-old step daughter by rubbing her chest with his hands and rubbing her vagina with his penis. Mr. Gould threatened to sodomize the girl if she told anybody. As part of the sentence, Mr. Gould was offered sex offender treatment in custody. When asked about these crimes, Mr. Gould told both Dr. Rootenberg and Dr. Gojer that he didn't know why he did it but admitted to Dr. Gojer that there was likely some pedophilic attraction to the child. He told Dr. Gojer that he never told the child victim he would sodomize her but acknowledged that he did threaten to hurt her if she told. He received anger management and sex offender counselling as part of probation, although he told Dr. Gojer that he did not recall such counselling and may have blocked it out of his mind.

[22] Several months after Mr. Gould completed his program of sex offender counselling, and while still on probation, he offered a ride to an adult female hitchhiker in the fall of 2006. He drove her to a rural location and forced her to perform fellatio on him. He was convicted in December 2007 to a penitentiary sentence which included sex offender therapy. Mr. Gould told both psychiatrists that he committed the crime because he was "in a bad place mentally", with anxiety and depression. He added, "she said something to me that was a major rejection, and something snapped and I pushed her down."

4.2.2: Offender's Comments on the Predicate Offences

[23] As for the predicate offences, Mr. Gould told Dr. Rootenberg that he and Ms. Kendry-Clarke were having problems in their relationship. He said that he wasn't carrying his weight. When she was out of town at a funeral, he said that he was feeling sorry for himself, so he committed these crimes. Although he pled guilty, he downplayed his responsibility to both Dr. Rootenberg and Dr. Gojer. He denied forcibly confining the victim. He denied threatening her and told both psychiatrists that the victim never said no.

4.3: Offender's Treatment and Supervision History

[24] As a result of the 2004 offences in Toronto, Mr. Gould participated in several rehabilitative programs. He successfully completed an anger management course. However, while in custody, he was offered sex offender programming, but turned it down. It was noted in that he minimized the seriousness of the offence, displayed a negative attitude regarding the crimes, and said that he had no intention of reoffending so there was no need for rehabilitation. While on probation, he initially was hostile to counselling. He minimized his role in the sexual offence to the point of denial. He lacked any insight into the experience of the victim. He said he did not see the benefit of counselling in a group. He told his probation officer that he would risk being breached if he had to attend any counselling that interfered with his work. After resisting sex offender treatment for some time, Mr. Gould started a sex offender counselling program in December 2005 and completed it in April 2006.

[25] In 2007 Mr. Gould was sentenced to a term in the penitentiary. While incarcerated, he completed a moderate intensity sex offender program at Warkworth Institution between November 2009 and February 2010. No other level of intensity of sex offender treatment was available at the time. During the program he recognized the need to make changes in his life. He appeared to have insight into his current offending behaviour and appeared motivated to succeed, but his motivation waxed and waned. He told program officials that he had a better understanding of his triggers and how to deal with them. He did another moderate intensity sex offender program between February and April 2011. While acknowledging that anger was still an ongoing issue, he appeared to make improvement in dealing with it. He told Dr. Gojer that he learned about triggers but does not recall the details.

[26] In September 2011 Mr. Gould's request for day parole was denied. He disagreed with an assessment that he was a moderate risk to reoffend. He stated that he felt he was at no risk to reoffend, but agreed he still needed programming. He told the parole authorities that he never wanted to hurt anyone again and that he understood the consequences of his actions including the harm he had done to his victims. Nevertheless, he denied any sexual offending against children. The parole board had serious concerns about his ability to recognize and manage his own risk.

[27] In August 2012 Mr. Gould was given parole by way of statutory release. The parole board found Mr. Gould's risk of reoffending was high because he seemed unable to understand why he committed the offence other than because he "snapped" even after completing treatment. He also appeared to fail to see the connection between his anger and sexual offending. Nevertheless, he was released on strict conditions with which he complied. While on parole, he competed the National Maintenance Sex Offender Program in 2012. He did two other similar programs in 2015. During these programs he said he learned more about his triggers.

5.0: PSYCHIATRIC EVIDENCE

5.1: Psychiatric Diagnoses

[28] Dr. Rootenberg found that Mr. Gould suffers from an alcohol use disorder which is in remission. Dr. Gojer did not disagree.

[29] Dr. Rootenberg opined that Mr. Gould also suffers from Substance Induced Mood Disorder. Again, Dr. Gojer did not disagree.

[30] Dr. Rootenberg found that Mr. Gould possesses antisocial personality traits, in particular repeated reckless disregard of the safety of others. He did not make a formal diagnosis of Antisocial Personality Disorder because these traits were not manifested in Mr. Gould by age 15 as required by the DSM-V.

[31] Notwithstanding low scores during phallometric testing, both psychiatrists view Mr. Gould as a sexual deviant. Mr. Gould denied to both doctors that he is a sexual deviant despite the sexual offences he committed against female women and children. Dr. Gojer stated that Mr. Gould has an erotic preference for underaged females and for coercive sexual interests with adult women and possibly sadistic interests.

[32] Dr. Gojer diagnosed Mr. Gould as having a personality disorder of a non-specific nature. Dr. Gojer testified that his diagnosis is based on more than just Mr. Gould's violent sexual deviance. It is also based on Mr. Gould's maladaptive tendencies towards himself and to relationships as well as his prior substance abuse and his lesser degree of empathy towards others.

[33] Mr. Gould stated that he felt he suffered from bipolar disorder, depression, and paranoia but neither psychiatrist found any clinical evidence or other basis upon which to make such findings.

5.2: Impact of Prior Court-Ordered Treatment

[34] With several rounds of counselling and treatment under his belt, Mr. Gould told Dr. Rootenberg that he rated his difficulty in controlling his temper as 9 out of 10. He also told Dr. Rootenberg that he needs help to curb his sexual impulses while denying he is a deviant. He also told Dr. Rootenberg that he didn't think his anger management problems would ever disappear. He told both doctors that despite all the treatment he has received over the years, he said that he has never learned why any of the offences occurred.

[35] Mr. Gould acknowledged to each doctor that he has completed at least three prior courses of sex offender treatment. He is willing to take more sex offender treatment and anger management counselling but wants it to be more in-depth and preferably one-on-one to get to the root of his problems, including the trauma he suffered as a juvenile.

[36] Despite his history of offending, the completion of past court-ordered treatment and counselling and speaking with two psychiatrists Mr. Gould does not see himself as dangerous even though both doctors and prison authorities do.

5.3: Actuarial and Clinical Risk Assessments

5.3.1: Actuarial Risk Assessments

[37] Both doctors applied actuarial risk assessment tools to Mr. Gould and got very similar scores. No test on its own is determinative but are important cumulatively when taken together with a clinical assessment.

[38] The Psychopathy Checklist – Revised (PCL-R) rates a person with a score of 30 or more out of 40 as a psychopath. Someone would be deemed to have no psychopathic traits if they scored 7 to 10. Dr. Rootenberg scored Mr. Gould at 23; Dr. Gojer scored him at 24. Neither score was high enough to declare Mr. Gould a psychopath, but both doctors agreed that the scores are relatively high and indicate a person with significant antisocial features.

[39] The Violence Risk Appraisal Guide (VRAG) deals with the likelihood of violent recidivism. Dr. Rootenberg scored Mr. Gould as +4, being in the moderate range of risk of violent reoffence. He found that of all people in this category, 35% violently reoffended within 7 years and 48% reoffended within 10 years of release. Dr. Gojer found that Mr. Gould was in the same category as Dr. Rootenberg did, but Dr. Gojer described this as a higher risk of reoffending, not a moderate one.

[40] The Sex Offender Risk Appraisal Guide (SORAG) focusses on the risk of reoffending sexually. Dr. Rootenberg scored Mr. Gould as +17, which is the highest score in the moderate risk range to reoffend with sexual violence. In this group, 58% violently reoffended within 7 years and 76% reoffended violently within 10 years of release. Dr. Gojer came to the same conclusion, but as with the VRAG, stated that the score put Mr. Gould in the higher risk category.

[41] The Static-99 is another actuarial risk assessment tool that is specific to sexual recidivism. Dr. Rootenberg scored Mr. Gould as a scored 6, putting him in high risk to reoffend sexually and violently. Dr. Gojer concurred.

5.3.2: Clinical Risk Assessments

[42] Both doctors utilized the HCR-20. Dr. Gojer also used the Risk Of Sexual Violence Protocol (ROSVP). Both are structured professional instruments that combine historical, clinical, and risk management factors applied to an individual, whereas the actuarial tools look to a group.

[43] Using the HRC-20, Dr. Rootenberg found that Mr. Gould is a moderate risk to reoffend, with the risk declining if Mr. Gould were subject to very strict terms of supervision in the community.

[44] Applying both clinical assessment tools Dr. Gojer found relevant historical and clinical factors with respect to Mr. Gould. On the down side historically, he has a history of violent sexual offending against females, reoffending after completing sex offender and anger management programs, presence of sexual deviation, problems with taking responsibility for his crimes, and blaming therapists. On the up side, Mr. Gould has in fact participated in, and completed, counselling and treatment, he is open to further rehabilitation, and has a good employment history. I pause here to note that Mr. Gould does not, in fact have a good vocational history. With respect to clinical factors, Dr. Gojer found both negative and positive elements. Negative factors include the presence of deviance indicating pedophilia and coercive rape paraphilia; his past substance abuse is a concern; despite having a supportive partner, two issues arise, namely her apparent ignorance of his offending, and his reoffending despite being in the best relationship of his life. Positive factors include participation in intensive sex offender treatment program, supplanted by individual and marital counselling. Steady work would also lower the risk.

[45] Another clinical factor concerning the risk of Mr. Gould reoffending in the future is age. He is presently 48. Dr. Gojer stated that it is recognized from strong research that the risk of offending sexually against adults tends to be almost negligible after turning 60. He added that sexual reoffending in a domestic setting against children has a better outcome that extrafamilial sexual offending. In court, Dr. Gojer explained by saying that the risk of offending sexually against adult women tends to lower substantially with age but reduces the risk to non-familial female children only a bit. Dr. Rootenberg was less sanguine on the impact of age on the assessment of the risk to reoffend. While he agreed that the risk of violent recidivism generally decreases with age, the decrease risk is not necessarily so low as to be acceptable especially for somebody like Mr. Gould who has antisocial personality traits and who tends to avoid taking responsibility.

5.3.3: Psychiatric Opinions of Risk

[46] Dr. Rootenberg opined that Mr. Gould is a high-risk offender, with that risk being chronically elevated. This was based on the results of the actuarial risk assessment tools as well as clinical factors including his pattern of committing sex crimes, his baseline of anti-authority attitudes, his impulsivity, the presence of few pro-social characteristics, his dearth of significant empathy, his failure to follow what he learned in treatment, his failure to make stable lifestyle choices, his heightened sensitivity to perceived rejection of conflict with significant others, and his prior substance abuse which amplifies impulsivity.

[47] Dr. Gojer described Mr. Gould's overall risk to reoffend as being in the moderately high range of causing moderate to high emotional sexual and or physical harm, predominately towards females, both children and adults. Dr. Gojer agreed with the opinions of Dr. Rootenberg but he emphasized that the risk of reoffending is dynamic and can change with time and personal circumstances. He testified that risk against adult women tends to lower with age, but not so much as against children.

5.4: Risk Management in the Community

5.4.1: Dr. Rootenberg

[48] In his report Dr. Rootenberg stated that managing risk in the community is contextual and depends on numerous factors including treatment available both in custody and in the community and conditions of supervision. Given Mr. Gould's criminal history, his past compliance with both treatment and supervision, high levels of intensive treatment and supervision would be needed in his case.

[49] Dr. Rootenberg's report identified several dynamic risk factors of Mr. Gould that need to be managed including his antisocial personality traits by ongoing cognitive behaviour therapy, anger management and other treatment. Dr. Rootenberg stated that although people with high levels of psychopathic traits (like Mr. Gould) are more treatment resistant and likely require more resources and dosages of treatment, a specific and carefully crafted intervention may be effective in reducing violence. He also identified Mr. Gould's history of substance abuse and poor coping skills as also needing treatment and supervision in a highly structured and intense manner.

[50] Dr. Rootenberg wrote that while Mr. Gould has no cognitive difficulties which could interfere with his ability to participate in treatment and supervision, he has a significant concern that Mr. Gould continues to offend despite successfully completing numerous treatments with favourable assessments from program providers.

[51] Dr. Rootenberg wrote that there is a possibility of eventual control of Mr. Gould in the community on long-term supervision but that it is largely dependent on Mr. Gould being compliant and rigorously supervised on very strict conditions. He also stated that the acceptable management of the risk Mr. Gould poses is dependent in part on his acceptance of treatment and his practicing what he has learned.

[52] In his evidence, Dr. Rootenberg raised red flags regarding managing Mr. Gould's risk while in the community. He said that one of the goals of treatment is to teach the offender insight into behaviour and positive ways of responding to feeling and thoughts that lead to antisocial behaviour. He said it is relevant in assessing risk in the community to consider how well the offender has responded to past treatment. He reiterated in evidence the concern raised in his report that Mr. Gould continues to offend despite successfully completing treatment and supervision in the past.

[53] Dr. Rootenberg also testified that another significant concern is Mr. Gould's sexual deviance. The doctor stated that sexual deviancy is lifelong and cannot be cured. The issue is trying to manage the feelings, attitudes, and actions that can arise from the deviancy.

[54] Dr. Rootenberg agreed that at present Mr. Gould says he is open to any treatment and counselling that is available for him to get to the root of his problems. However, the doctor pointed out that there is a fundamental difference between Mr. Gould saying he wants to change and making change.

[55] The psychiatrist observed that the predicate offences have a very similar pattern to the 2007 offence. Also, Mr. Gould rationalized that because a relationship with a partner was not going well, he committed a violent sex crime. This means that he needs to make substantial gains in insight and accepting of responsibility in order to manage his risk in the community. Dr. Rootenberg stated that the more willing Mr. Gould is to confront his triggers, the lower the risk to reoffend. To date, Mr. Gould has been made aware of those triggers but has not coped well with them.

[56] When considering the risk of managing Mr. Gould, Dr. Rootenberg was not only concerned about the apparent ineffectiveness of past treatment, but the fact that Mr. Gould does not consider himself to be dangerous when he clearly is. He said that Mr. Gould continues to minimize his role in both the predicate and past offences. Mr. Gould has expressed remorse for his actions but lacks insight into his offending behaviour. He continues to commit serious offences in the face of past treatment even while in a stable and desired relationship with his partner.

5.4.2: Dr. Gojer

[57] Like his colleague, Dr. Gojer noted that risk management is contextual. Despite Mr. Gould's present high risk to reoffend, his risk of reoffending may become lower with intensive treatment and supervision, as well as age. Essentially, Dr. Gojer agreed with Dr. Rootenberg's opinion but emphasized the contribution of intensive treatment and age as means of controlling his risk while in the community.

[58] Dr. Gojer noted that Mr. Gould is more willing than ever to accept treatment and is supported by a stable and loving partner and has the capacity to obtain and maintain employment. Dr. Gojer stated that intensive, long-term, frequent sessions of treatment are important to address Mr. Gould's issues, primarily his violent sexual attraction to females (i.e. his sexual deviance), and secondarily his childhood trauma. He said Mr. Gould would do best with individual treatment and counselling. Dr. Gojer stated that while it is clear that Mr. Gould is willing to take treatment, it is less clear if Mr. Gould is able to apply the methods learned in treatment if he is no longer on supervision.

[59] Dr. Gojer noted that when Mr. Gould was in jail before, there was no high intensity sex offender treatment but now there is, which is what Mr. Gould requires for a minimum of three to five years in custody and a ten-year supervision order to maximize the potential of safely managing his risk in the community. Dr. Gojer said that if Mr. Gould accepts and completes the intensive in-custody therapy his risk can be managed while being supervised in the community subject to many, many strict conditions.

[60] Dr. Gojer agreed with Dr. Rootenberg that Mr. Gould is not a psychopath but is approaching such a label. Dr. Gojer said that not being a psychopath is good because this means Mr. Gould is more likely to be compliant with offered therapy and supervision than he would if he was a psychopath. He went on to say, however, that compliance while subject to the court's jurisdiction is a double-edged sword because Mr. Gould has a history of reoffending after he is no longer supervised. Dr. Gojer also described the management of Mr. Gould's risk in the community as a challenge because Mr. Gould does well in treatment and supervision but poorly without them.

[61] Dr. Gojer testified that it is hard to say how well intensive programming will work as it depends not only on the cognitive abilities of the offender but the attitudes and acceptance of responsibility of the offender. Dr. Gojer observed that Mr. Gould has always accepted legal responsibility for his crimes, but he does not take full personal responsibility.

[62] Dr. Gojer agreed that there are several factors which raise concern about effectively managing Mr. Gould's risk while in the community. These include his tendency to "blame the system" and others for his troubles, his tendency to minimize his role in his crimes, his lack of accepting personal responsibility for his offending behaviour, and his lack of insight into his sexual deviance. These concerns mirror those of Dr. Rootenberg.

[63] It was the evidence of Dr. Gojer that Mr. Gould is a dangerous sexual deviant who has shown such egregious behaviour that he can never simply be left to his own devices.

6.0: POSITIONS OF THE PARTIES AS TO SENTENCE

6.1: The Crown

[64] The Crown submits that anything less than an indeterminate sentence will not create a reasonable expectation that the public will be sufficiently protected from Mr. Gould. They cite the following factors:

(a) completion of prior rounds treatment has not stopped Mr. Gould from committing further serious personal injury offences;

(b) neither psychiatrist expressed more than hope that high intensity treatment, strict supervision, and advancing age of Mr. Gould;

(c) both psychiatrists agreed that Mr. Gould is at a high risk to commit further sexual offences;

(d) both psychiatrists agree that Mr. Gould lacks insight into his offending behaviour and that he downplays his responsibility for his offending, including this case;

(e) although neither psychiatrist found Mr. Gould to be a psychopath, they both agree that he exhibits a significantly anti-social character; and

(f) the effect of age on the reduction of Mr. Gould's ongoing threat to the community is speculative.

[65] The Crown submits as an alternative that if I did not order an indeterminate sentence, I should order the maximum sentence available, ten years, less presentence custody of five years, plus a ten-year long-term supervision order.

[66] Regardless of the sentence I impose, the Crown seeks a life-time firearms prohibition, in-custody DNA orders, and an order under section 760 of the Criminal Code.

6.2: The Defence

[67] The defence submits that Mr. Gould should be sentenced to a fixed term of eight to nine years less presentence custody followed by a ten-year long-term supervision order. In support of this position, the defence points to the following:

(a) Mr. Gould cooperated in the Dangerous Offender Application assessments;

(b) Mr. Gould participated in all previous in-custody and out-of-custody treatment opportunities, with his involvement growing over time, although he had a negative attitude for some of the treatment;

(c) Mr. Gould never refused or withdrew from treatment, whether programming or medication;

(d) Mr. Gould presently has a positive attitude towards treatment, being willing to take whatever is offered or directed;

(e) Dr. Gojer opined that Mr. Gould would do well in future therapy to manage, and reduce his risk, particularly if it is individualized, which is available in custody and while supervised in the community;

(f) While in detention awaiting sentence, Mr. Gould has behaved well;

(g) When combining maturation with age, intense treatment, and strict supervision there is a reasonable expectation that the public can be tolerably protected from Mr. Gould;

(h) Mr. Gould has substantially complied with past community supervision;

(i) Both psychiatrists concluded that it is possible to manage Mr. Gould with intensive treatment and supervision in the community; and

(j) The effect of reaching the age of 60, the risk of violence decreases, with Dr. Gojer opining that after age 60, the risk of sexual offending against adults tends to be almost negligible.

7.0: ANALYSIS

[68] Having designated Mr. Gould as a dangerous offender, I can only impose an indeterminate sentence if I find that neither a fixed, or conventional, sentence nor a determinate sentence with long-term supervision creates a reasonable expectation that either measure will adequately protect the public from Mr. Gould.

[69] Both parties agree that in the circumstances of this case that a conventional determinate sentence will not adequately protect the public from Mr. Gould.

[70] The issue is whether a determinate sentence plus long-term supervision is enough to protect the community. If it is, then I must make such an order; if not I must order an indeterminate sentence.

[71] After considering all of the evidence, the submissions of counsel, the case authorities they provided, my decision is that an indeterminate sentence should be ordered because I am not satisfied that there is a reasonable expectation that a determinate sentence and long-term supervision will adequately protect the public against the commission by Mr. Gould of murder or a serious personal injury offence.

[72] There are two main reasons for my finding that a determinate sentence with long-term supervision is inadequate in this case. The first concerns the treatment and supervision prospects for Mr. Gould. The second relates to the question of how long Mr. Gould needs to be subject to treatment and or supervision in order to safely manage his risk in the community.

7.1: Treatment Considerations

[73] Regarding the matter of treatment to manage Mr. Gould's risk in the community, I find there is no reasonable expectation that treatment will be effective in reducing his risk of reoffending to a tolerable level within the rubric of a determinate sentence with long-term supervision. I rely on the following evidence and factors:

(a) Compliance with past measures of treatment do not appear to have been effective in minimizing the chances of Mr. Gould reoffending with sexual violence. He told the doctors that he didn't recall taking all the treatment and, of the treatment he took all he remembers is that he has triggers but not the skills and tools given to him to manage them. Despite past treatment, Mr. Gould feels his difficulty in controlling his anger is presently 9 out of 10. Notwithstanding many courses of treatment over many years, Mr. Gould appears to be no further ahead in reducing his risk;

(b) Prospects of successful treatment of Mr. Gould are substantially reduced in this case by several key facts:

i. He has a significantly antisocial personality which by its nature is resistant to treatment;

ii. He has never taken full responsibility for his role in the crimes he has committed, not even now. His continual minimization of personal responsibility makes the effectiveness of treatment problematic;

iii. He denies he is dangerous notwithstanding past treatment and assessments. On at least two occasions after receiving treatment he told parole authorities he was no risk to reoffend;

iv. He denies that he is a sexual deviant even though this is the bedrock of his criminality;

v. He commits violent offences even while enjoying a stable relationship with a life partner; and

vi. He has told both psychiatrists that he wants to change but has never actually made any changes;

(c) Both Dr. Gojer and Mr. Gould believe that an important element in treatment is individualized therapy. Dr. Gojer emphasized that Mr. Gould would do best in one-on-one treatment. The obvious corollary of this is that the prospects of successful treatment are diminished in group therapy, which is his history to date. Meaghan Jones of Correctional Services Canada testified that there are 104 sessions in the high intensity sex offender treatment program but only six sessions are individual. There was no evidence that six individual sessions are enough to be effective with Mr. Gould in meeting the goals of treatment;

(d) The influence of aging on reducing risk of reoffending is limited. Both doctors agreed that once an offender turns 60, generally there is a decrease in the risk. But as Dr. Gojer said, advancing age has little impact on child sex offenders, which Mr. Gould clearly is despite his statements to the contrary. Furthermore, Dr. Rootenberg stated that reduction in risk due to aging is not necessarily so low as to become acceptable where, as here, the offender has significant antisocial personality traits and tends to avoid taking responsibility;

(e) Dr. Gojer found that steady work for Mr. Gould would help reduce his risk. While he has the capacity to work, Mr. Gould has never held long-term employment; and

(f) Both psychiatrists agree that Mr. Gould is at a high risk of reoffending by committing acts of sexual violence, meaning there is an elevated likelihood of recidivism.

7.2: Duration of Treatment and Supervision

[74] With respect to the question of whether a determinate sentence plus long-term supervision is long enough to adequately reduce Mr. Gould's risk of reoffending violently, I find such a sentence falls short. I say this for several reasons, including not only my concerns about treatability, but also the following:

(a) Dr. Gojer stated that while it is clear that Mr. Gould is willing to take treatment, it is less clear that he is able to implement the lessons learned if not subject to supervision. This opinion is consistent with Dr. Rootenberg's assessment;

(b) The uncontradicted view by both doctors is that Mr. Gould does well in treatment and supervision, but poorly without it; and

(c) Dr. Gojer said Mr. Gould is a dangerous sexual deviant who has shown such egregious behaviour that he can never simply be left alone to his own devices.

[75] I find that all of this means that Mr. Gould requires a lifetime of treatment and supervision. Given the evidence, I find that his dangerousness is chronic and his risk only manageable at an acceptable level if his is treated and supervised forever, no matter his age.

[76] For all these reasons I find that is no reasonable expectation that a determinate sentence with long-term supervision will adequately protect the public from the commission by Wayne Gould of murder or a serious personal injury offence. Therefore, I must impose an indeterminate sentence.

8.0: THE SENTENCE

8.1: The Primary Sentence Order

[77] Pursuant to section 753(4)(a) of the Criminal Code I sentence Wayne Gould to detention in a penitentiary for an indeterminate period on count #1, sexual assault, and concurrent on count #2, forcible confinement.

8.2: Ancillary Sentence Orders

[78] I make the following ancillary orders:

(a) Pursuant to section 487.051 of the Criminal Code, I make primary, in-custody DNA Orders on both counts to be taken by not later than October 31, 2020. Counsel may revisit this date if necessary;

(b) Pursuant to section 109 of the Criminal Code, there will be a lifetime firearms prohibition concurrent on each count;

(c) Pursuant to section 760 of the Criminal Code I order that a copy of the following shall be forwarded to Correctional Services Canada:

i. Transcripts of all the evidence given by all witnesses in this matter;

ii. The reports of Drs. Rootenberg and Gojer; and

iii. The written reasons I gave designating Mr. Gould a dangerous offender and my reasons herein for sentence.

[79] I would like to thank all counsel who participated in this important matter for their able representations and assistance to the Court.

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