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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,
(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code , chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or
(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code , chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or
( b ) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs ( a )(i) to (iii).
(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 complainant of the right to make an application for the order; and
( b ) on application made by the complainant, 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.
DATE: October 11, 2022
ONTARIO COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
— AND —
DANYIEL WALKER
Before Justice Berg
Released on October 11, 2022
DECISION ON CROWN APPLICATION
PURSUANT TO PART XXIV CRIMINAL CODE
L. Tansey.............................................................................................. counsel for the Crown M. Davies........................................................................................................ for the defendant M. O’Doherty...................................................................................................... Amicus Curiae
Berg J.:
Introduction
[1] This decision is subject to a publication ban pursuant to s. 486.4 Criminal Code . Therefore, it is forbidden to publish, broadcast, or transmit in any way any information that could identify a complainant or witness in this matter. This publication ban not only covers those complainants and witnesses relevant to the conduct underlying the various charged offences. It also covers the same categories of persons about whom the court was advised in the context of the uncharged conduct.
[2] Danyiel Walker has pleaded guilty before me to a large number of offences, a few of which are not eligible for consideration pursuant to the dangerous offender/long-term offender regime. Mr. Walker will have to be sentenced pursuant to the usual sentencing procedures for those counts, specifically: counts 9, 10, 11, 16 and 17 of Information 19-RA18063.
[3] The following counts on that Information are those which are eligible under Part XXIV Criminal Code: 1-8, 13-15, 19-33, 35-47. Count 12 was withdrawn at the request of the Crown as were Counts 18 and 27. Count 34 has already been stayed at the request of the Crown. I will now provide an overview of those counts for which I am considering the Crown’s application.
[4] The following counts are where B.W. is named as Mr. Walker’s victim: 1-8, 13-15, 23, and 47. The accused has thus pleaded guilty to having committed the following offences against that person: between January 1, 2007 and November 1, 2017 – sexual assault (s. 271), sexual interference x 3 (s. 151), invitation to sexual touching x 2 (s. 152), sexual exploitation x 2 (s. 153); between November 1, 2005 and April 30, 2008 – householder permitting prohibited sexual activity in regards to a person under the age of fourteen years (s. 171(a)); between May 1, 2008 and July 16, 2015 – householder permitting prohibited sexual activity in regards to a person under the age of sixteen years (s. 171(a)); between July 17, 2015 and November 1, 2017 – householder permitting prohibited sexual activity in regards to a person under the age of eighteen years (s. 171); between December 15, 2004 and October 31, 2016, sexual assault (s. 271(1)); and on or about August 29, 2016 – make sexually explicit material available to a child (s. 171.1(2)).
[5] The following counts are where O.S. is named as Mr. Walker’s victim: 19-22. The accused has thus pleaded guilty to having committed the following offences against that person: between May 1, 2008 and December 31, 2012 – householder permitting prohibited sexual activity in regards to a person under the age of sixteen years x 2 (s. 171(a)); between January 1, 2008 and December 31, 2010 – invitation to sexual touching (s. 152) as well as another count of that same charge with an offence date of between January 1, 2008 and December 31, 2012.
[6] The following counts are where N.H. is named as Mr. Walker’s victim: 24-26, and 28. The accused has thus pleaded guilty to having committed the following offences against that person: between December 15, 2004 and October 31, 2016 – sexual interference (s. 151), invitation to sexual touching (s. 152), and sexual exploitation (s. 153); between May 1, 2012 and January 29, 2019 – make sexually explicit material available to a child (s. 171.1(2)).
[7] The following counts are where A.S. is named as Mr. Walker’s victim: 29-33. The accused has thus pleaded guilty to having committed the following offences against that person: between January 1, 2012 and March 30, 2018 – sexual interference (s. 151), invitation to sexual touching (s. 152), and sexual exploitation (s. 153); between August 10, 2012 and March 30, 2018 – make sexually explicit material available to a child (s. 171.1(2)); between January 1, 2012 and March 30, 2019 – sexual assault (s. 271).
[8] Relevant here too are Counts 35-46 where the offences are related to child pornography: on or about December 19, 2017 – distribute child pornography (s. 163.1(3), possess child pornography (s. 163.1(4)), and access child pornography (s. 163.1(4.1))); on or about October 27, 2018 distribute child pornography (s. 163.1(3), possess child pornography (s. 163.1(4)), and access child pornography (s. 163.1(4.1))); on or about January 4, 2019 – distribute child pornography (s. 163.1(3), possess child pornography (s. 163.1(4)), and access child pornography (s. 163.1(4.1))); on or about January 30, 2019 – possess child pornography (s. 163.1(4)); on or about February 22, 2014 – make child pornography (s. 163.1(2)); and on or about August 29, 2016 – make child pornography (s. 163.1(2)).
[9] The Crown has brought an application pursuant to Part XXIV Criminal Code . Specifically, the Crown is seeking that this Court declare Mr. Walker to be a dangerous offender ( s. 753(1) Criminal Code) and impose a sentence of detention in a penitentiary for an indeterminate period ( s. 753(4) (a)) or, in the alternative, impose a determinate sentence of 20 years and a long-term supervision order for 10 years ( s. 753(4) (b)). Should I not find Mr. Walker to be a dangerous offender, the Crown submits that, in the alternative, I should find him to be a long-term offender (s. 753(5)).
[10] The defence does not dispute that Mr. Walker meets the criteria to be found a long-term offender. However, Mr. Davies submits that the Crown has not proven that his client is a dangerous offender. In the alternative, should I indeed find that Mr. Walker is a dangerous offender, the defence submits that an indeterminate sentence is not required. Rather, it is submitted that the appropriate penalty is a global sentence of 10 years and a long-term supervision order of equal length.
[11] After considering the evidence and submissions, I have found that Mr. Walker is a dangerous offender, and I will be imposing an indeterminate sentence on him. The following is the reasoning that led me to these conclusions.
The Evidence
[12] I wish to point out at the outset that I will now be referring to many of the facts that are in evidence at this hearing. These details are distressing.
[13] I am going to try to summarize the evidence in a chronological fashion. Mr. Walker has admitted that in 1993, when he was 14 years old, he pleaded guilty to sexually abusing several children. The offences occurred when Mr. Walker was babysitting. All the children were boys except one who was the twin sister of another victim. The victims were five in number from four different families. The children were aged from 5 years to 7 years of age. The offending occurred on multiple occasions in each case. In the case of the twins, the abuse went on for approximately two and a half years. The abuse in all the cases was similar. It consisted of Mr. Walker touching the children’s genitals with his hands and mouth and sometimes getting them to touch his penis. Mr. Walker received a sentence of nine months in secure custody followed by two years of probation.
[14] As a result of being charged with these offences in 1993, Mr. Walker was referred to a Children’s Aid Society program for adolescent sex offenders prior to his being sentenced. The program supervisor reported that “Danyiel’s participation in the group is very superficial. He is quiet spoken by nature and exhibits reluctance to deal with details of his offenses. He will contribute when asked to do so and his contributions continue to be non-committal. He appears generally to be minimizing his situation.” A bit later in that report, the supervisor stated “he demonstrates very little remorse for the molestation and appears not to understand the impact of the sexual abuse on his five young victims. Danyiel also disclosed to me that given the opportunity, he would again molest children.”
[15] The report dates to March of 1994. I must keep in mind that it reflects the mindset of the teenaged Mr. Walker. I will return to this issue when I discuss the relevant law. However, it is important to note here that Mr. Walker underwent individual counselling for his sexually offending behaviour; see the report prepared by Doctor Gray. During the course of that therapy, as part of a written assignment, he wrote the following in response to the question “Who is responsible?”: “I am the only person responsible because I had control, the kids trusted me, and I could get away with whatever I wanted to. The kids never made me do it, I was the one who decided to offend.” He was asked at that time about the future effects on his victims and replied “they could become offenders when they have grown up, and they all will have painful memories for the rest of their lives. They may have nightmares and it may affect their future sex lives.” The file from the youth facility noted that Mr. Walker, at the recommendation of the counsellor, took a second cycle of a sexual offender group that ran from October 1994 to June of the following year.
[16] Mr. Walker’s sentence of custody and probation would have ended in 1996 or thereabouts. He was not charged with any further offences either as a youth or as an adult until the present matters. However, in 2003, the Children’s Aid Society received an anonymous phone call about the then 25-year-old Mr. Walker and began an investigation. Mr. Walker was interviewed and when asked why he was babysitting the children of his siblings, given his past history, he advised the CAS-worker as follows: “On a personal level, I have no concerns, I feel I am completely in control. With these kids it has not been an issue because they are family and I have a barrier with family.” He stated that while he continued to have sexual thoughts about children, he has not acted on those thoughts. He told the worker that what stops him from acting on his sexual impulses is the thought of being charged and going back to jail. The report continues: “He stated that he feels it is only in the past two years that he has fully gained perspective on what his actions meant,” ‘actions’ referring to his sexual offending of the 1990s. He informed the CAS worker that “devastation that would be caused to his immediate family is what stops him.”
[17] I think it important to clarify the nature of the relationships between Mr. Walker and the children against whom he has offended as an adult since the CAS intervention because as we have seen, the adult Mr. Walker told investigators in 2003 that “I have a barrier with family.” I will here also point out the dates during which the present Part XXIV offences were committed against these children. B.W. was born in 1999 to the accused’s (a family relationship). The offences committed by the accused against B. occurred from 2007 to 2017. O.S. was born in 1997 to the accused’s (a family relationship). The offences committed by the accused against O. occurred from 2009 to 2010. N.H., born in 1991, is the son of (a family relationship). The offences committed by the accused against N. occurred from 2005 to 2015. A.S. born in 2000 is the son of (a family relationship). The offences committed by the accused against A. occurred from 2012 to 2018.
[18] I will now review the evidence with respect to the sexual crimes committed against the four named victims. I will here be summarizing the material that was provided to me by way of an agreed statement of fact.
[19] N.H.: N. was a victim of the accused’s from the time that he was 14 years old until he was 24. The abuse began in 2005 when N. attended alone at the Walker home to play video games with the accused. As stated in the agreed statement of facts, “Walker expressed curiosity towards trying new things sexually but not having found the right person to experiment with. This led to Walker taking off his clothes and laying on his couch on his hands and knees and asked N. to use his penis to penetrate Walker’s anus. H. does not recall whether his penis entered inside Walker’s anus …” There were many other assaults over time. The accused would offer alcoholic beverages to N. and show him pornography. There were incidents of fellatio and masturbation. There were times when the assaults would occur as family gatherings were going on elsewhere in the house or the accused’s children were sleeping in their rooms. On at least one occasion, the sexual assault occurred when N. picked up the accused in his car to run an errand. Walker would send Facebook messages telling N. to come over. He would ask N. to send him sexual pictures of himself, N. There were live sessions of masturbation over Skype. I wish to emphasize that I am only summarizing the facts with respect to the victims.
[20] B.W.: as we have seen, Mr. Walker abused N. from 2005 to 2015. Chronologically, his abuse of the next victim commenced in 2007; this was B.W.. As indicated in the agreed statement of fact, B. was raised in a single parent family. His father “had not been in the picture during his upbringing and his relationship with his mother had been strained for as long as he could remember … [he] explained the accused stepped into the picture and filled the father figure role that had been void for him during the early parts of his childhood.” Mr. Walker sexually assaulted B. from the age of 8 to 17 years. B. estimates that he was abused during that period on a minimum of 100 occasions, possibly as many as 300 times. The assaults occurred at the accused’s home. It consisted of oral sex and masturbation. The accused would show child pornography to B. The accused would take pornographic pictures of B. and request that he, B., take similar selfies and send them to him, the accused. There were sessions of live Internet masturbation. Towards the end of the period of abuse, the accused would arrange to have an Uber bring B. over to his, the accused’s house in order to abuse him. The accused’s wife would be at home, asleep upstairs. The accused would buy B. lavish gifts and take him on trips to attend concerts in Canada and the United States.
[21] B. was asked about which incident he most remembered. I will here quote his response.
It was a time that the accused showed him child pornography of a very young child. The child in the video was approximately 2 years old and was in a diaper on video. The victim recalls the child whimpering as the child was being anally penetrated on the video. The victim stated that the accused was ‘jerking off to the video” and the victim still has nightmares about it.
[22] O.S.: O. told the police that he recalled being at the accused’s house for a sleep over. He and the accused were playing video games in the basement family room. Then, Mr. Walker played pornographic videos on the television and exposed his penis and started to masturbate. O. was seated directly beside him at the time. Mr. Walker kept looking back and forth between O. and the television screen while masturbating.
[23] A.S.: The Ottawa Police Service investigators seized computers and similar devices from the home of Mr. Walker. The accused video-taped O. dialing in by video and masturbating. Mr. Walker would also masturbate at those times. Mr. Walker kept a curated folder with pornographic images of A. in his possession.
[24] The Court was provided with impact statements prepared by the victims of Mr. Walker’s charged offences and others closely related to them. These statements were read out in court before me. As well, I have re-read them all while I was preparing this decision. What is clear is that Mr. Walker’s actions had a profoundly negative and lasting impact on his young victims and others. How does one assess the suffering caused by this accused? Beyond noting that it was significant and lasting, there is no mathematical formula that can be applied. But these people have provided words describing the impact of what they have been subjected to by the accused and I can do no better than to quote some of what they said. The following is a compilation taken from their statements.
I’m broken on a fundamental level, and some of the damage is irreparable. This abuse has severed me from my peers, made me alone in the realest sense of the word, surrounded on all sides by toxicity, malice, and fallout. There are things that I’ve lost, that have been taken, that I won’t get back for the rest of my life, and now I’m left to pick up the pieces and try to build a happy, fulfilling life from the ashes, the refuse left behind by Danyiel Walker’s evil.
We are all on very different paths because of you. Our relationships with our kids are completely different because of you. They are now burdened with lifelong emotional trauma because of you. I grieve for your girls who have lost their aunties and cousins, because of you. I am so incredibly sad that my children have been so deeply betrayed and damaged for the rest of their lives because of you. Especially B., my son.
There have been many effects on our family that can’t be explained easily. The heightened level of fear and anxiety among all of my children is ongoing in their lives. I don’t believe we will ever recover from our global depression and anxiety. Our ability to trust anyone with our children has been destroyed.
Truly the worst effect that my abuse has had on me is its impact on my will to live. I have been suffering from suicidal ideation. I think about killing myself constantly.
As a consequence of the trauma experienced by N., our entire family has been deprived of the sense of joy and comfort that was once derived from our simple, day to day loving experiences and deep family connections. It is just all so tragic.
As a result of Danyiel Walker’s actions, our son N. suffers from debilitating anxiety, depression, and symptoms of PTSD (confirmed by a doctor). These mental health issues seriously affect our relationships with him, with friends, with family, and with each other.
The most I could say would be that I do not trust the exceeding majority of my family and new people I meet, and it is justifiably because of [Mr. Walker].
We didn’t ask for this. Our children didn’t deserve to have their childhoods ripped away from them. They don’t deserve the uncertainty and distrust that Danyiel inspired. None of us should have to live with the pain that has changed every one of us, inexorably, for the rest of our lives. He created and nurtured a darkness in all of us, and our children can’t even trust themselves to love and touch and live an undamaged, carefree life, without wondering what they did to deserve what he did to them.
[25] The Court was provided with victim impact statements from some of the people hurt by Mr. Walker’s actions when he offended in the 1990s. Here, too, I will provide some short excerpts. It is to be remembered, that the authors of these passages were victimized by Mr. Walker some thirty years ago.
… my father asked me to google the name Dan Walker when I got home. This is the first time my dad has mentioned that name to me in almost 30 years. Hearing that name was emotionally overwhelming. I was flooded with many different feelings. Among those feelings were Hate, Confusion, Anger, Disgust, Sadness and Fear.
After all these years I still feel guilty. I know it has negatively impacted my son’s life and changed the direction of his life path. After all these years the pain I feel for my son is undeniable and unfortunately will last a lifetime.
[26] I note that Mr. Walker did not object to the adducing of these latter statements by the Crown. The defence only took exception to certain passages and did not argue that the statements were inadmissible.
[27] The counts related to child pornography date to 2014, 2016, 2017, 2018, and 2019. An agreed statement of facts provides the following details:
As of June 21, 2019, Detective Casselman provided an update regarding her categorization of the child pornography located on Walker’s devices and the numbers right now are as follows: 34,002 images; 1,784 videos (26023 videos are not yet categorized).
The child pornography collection is within the age range from infant to approximately 15 years of age (unknown victims). The collection runs the gamut: there is oral, digital and anal penetration of the children by men and women. There are images where children are masturbating themselves and other children. There are images of children performing oral sex on both men and women. There is a very large collection of bondage. The children are bound with cuffs, duct tape or rope on both their wrists and ankles. There are images of children naked in cages with ball gags and leashes around the children’s necks and bags over the head.
A significant percentage of the child pornography was created by Walker. He had a webcam that was recording on a constant basis, so when he was abusing B.W. for example, the webcam captured everything. There are videos of Walker watching his own videos where he is sexually abusing B.W. In addition, he also recorded videos of times when he was video chatting with children.
Walker’s folder structure where the child pornography is located is very organized.
The evidence before me is that Mr. Walker began accessing child pornography online in 1995. The related offences to which he has pleaded guilty date from 2014 to 2019.
[28] The Crown provided the Court with victim impact statements related to the offences dealing with child pornography. I have reviewed those statements during the preparation of this decision.
[29] Evidence was adduced by the Crown at this hearing from agencies involved in the supervision and treatment of offenders both while in custody and when on parole. I am here referring to the testimony of Lindsay Maahs, a parole officer supervisor for the Correctional Service of Canada and Karen Thompson, a regional manager of conditional release programs for the Parole Board of Canada as well as the information packages entered as exhibits through them.
[30] Beyond the facts which were the agreed basis for Mr. Walker’s pleas of guilt, there were two other bodies of evidence that dealt with uncharged conduct by the accused. First of all, there was the evidence related to B.L. B. identified as female at the time of this hearing. However, at the time of the uncharged conduct, she was known as B. and was anatomically male. The facts underlying this uncharged conduct were adduced into the record by way of an admission on the part of Mr. Walker. B. advised the investigators that in June of 2012, she (then he) had met Mr. Walker online. The two communicated through various platforms. She told Mr. Walker that she was 12 years old. They continued to thus communicate until May of 2013. During that time period: Mr. Walker invited B. to masturbate while he watched. Mr. Walker would masturbate and have B. watch. Mr. Walker and B. would masturbate simultaneously. Mr. Walker and B. would send sexually explicit messages in which they discussed sexual fantasies. On some occasions Mr. Walker and B. communicated via webcam. While using the webcam Mr. Walker requested that B. show her anus and digitally penetrate it. Mr. Walker and B., on several occasions discussed meeting in person including meeting at a Starbucks to have oral sex in the bathroom. The two never actually met. Mr. Walker sent B. a video of himself masturbating. B. ‘followed’ Mr. Walker’s Tumblr account and read the content frequently.
[31] The other body of evidence of uncharged conduct was more contentious and required a voir dire . The Crown was held, of course, to a standard of proving the conduct beyond a reasonable doubt. While I found that that onus had not been met with respect to all elements that the Crown sought to adduce at this hearing, I did find some elements to be admissible. It is to this latter evidence that I now turn.
[32] Mr. Walker had a young son who unfortunately died on November 23, 2015. The boy’s name was G. Care was provided for G. and the Walker family at a particular institution, a pediatric palliative care hospice. I heard evidence that the Walker family were an integral part of the community there for many years and that he continued going to the institution after his son died.
[33] M.P. is a patient at the institution in question. At the time of this hearing, he was, if I am not mistaken, 14 years of age. He suffers many seizures every day. One witness recounted that “You can’t spend more than 10 minutes with M. and not see him seize.” On a bad day, he can have hundreds of such events. As well, for multiple reasons, he suffers from chronic pain. He is, for the most part, bed ridden.
[34] While M. does not have the physical ability to speak or write, he can communicate by means of a binary response system. Questions are put to him, and he is able to move his hand to point to either a ‘Yes’ card or one indicating a negative response. Sometimes, a variation of this technique is employed to have him spell out words. This is obviously a painstaking and time-consuming endeavour. My point here is that in order for M. to communicate facts, he needs first of all for someone to understand that he wishes to communicate something and secondly the assistance of a person trained in the technique and thirdly for that person to put the right questions to M. Otherwise, M. would be silent.
[35] I found as a fact, that is to say beyond a reasonable doubt, that while attending this hospice, Mr. Walker did the following: he exposed his genitals to M., he showed him child pornography, he inserted his penis into M.’s mouth, he threatened to kill him, and he threatened to hurt another boy, C., at the hospice if M. did not cooperate with his, Walker’s, wishes. I was unable to determine from the evidence if any of these acts occurred on more than one occasion. I was also unable to determine which acts occurred on the same day as others.
[36] I was and am of the view that the victim impact statements with respect to uncharged conduct are not admissible absent the consent of the defence as was obtained for the statements regarding Mr. Walker’s convictions for offences committed against B. L. This court’s jurisdiction to admit victim impact statements stems from a statute: s. 722 Criminal Code . That section, to my mind, only deals with victims of charged conduct and thus I do not have the jurisdiction to admit similar statements from the victims of uncharged conduct even where, as in this case, I have made certain findings of fact beyond a reasonable doubt. There is still necessarily a legal distinction to be made between charged and uncharged conduct.
[37] Certain materials were seized from Mr. Walker’s cell at the Ottawa Carleton Detention Centre on August 19, 2019 pursuant to a search warrant. They were entered as an exhibit at these proceedings. These pages of lined paper appear to be drafts of a letter or letters of apology to his victims. But what I read there is, for the most part, an explanatory self-justification and not a heart-felt apology. There does not, to my mind, appear to be any true insight as to the pain he has caused.
[38] As part of these proceedings, I ordered the preparation of a dangerous offender/long-term offender assessment by a forensic psychiatrist. The report was prepared by Doctor Jonathan Gray who testified before me as an expert in the field of forensic psychiatry. However, it is important to keep in mind the fact that the concept of ‘dangerous offender’ is a legal construct and not a medical diagnosis.
[39] Dr. Gray’s report is dated April 21, 2020. He subsequently testified before me on February 1, 2022. In the interim, I ruled that the evidence with respect to Mr. Walker’s uncharged conduct against M.P. was admissible. Moreover, the evidence with respect to B.L. was also admitted into the evidentiary record. As we shall see, this ‘new’ evidence resulted in the doctor modifying the assessment that was contained in his report.
[40] In the report, Dr. Gray concluded that “there is substantial evidence to suggest a diagnosis of pedophilic disorder, attracted to the same sex.” As the doctor put it “[a]lthough I did not complete phallometric testing to objectively confirm a diagnosis, the evidence is overwhelming that such a diagnosis exists.” Doctor Gray continued by stating
I should note that pedophilic disorder is the only paraphilic disorder listed in the DSM-V that does not allow a qualifier of “in remission”. This is in distinction to other paraphilic disorders such as for example, exhibitionistic disorder that could be said to be in “remission” if the subject does not manifest symptoms or behaviours of the disorder for a period of six months in an uncontrolled environment. This would suggest that Mr. Walker would need to manage symptoms of his pedophilic disorder throughout his life and that he could never think himself to be “cured” and not needing to take precautions or treatment.
[41] Doctor Gray concluded that it was his opinion that there was sufficient psychiatric evidence that Mr. Walker would meet the “legal criteria for a designation of Dangerous Offender status.” He came to this conclusion by applying the facts of which he had been apprised to the statutory criteria in s. 753 Criminal Code . First of all, he noted that
[t]here is strong evidence of a pattern of repetitive sexual behaviour on the part of Mr. Walker against many different young victims, which includes his index offences. This pattern includes mutual sexual touching and fellatio involving almost entirely young males.
Mr. Walker engaged in this pattern of behaviour as a youth and was then warned about avoiding contact with young males or females as an adult in 2003. Nevertheless, he once again began engaging in this behaviour, beginning in about 2006. This persistence of the behaviour suggests a failure to control his sexual impulses that would likely cause psychological injury to his victims. Without any interventions, it is therefore likely that Mr. Walker would continue on this pattern of behaviour in the future.
[42] The doctor next dealt with the question “Is there a high likelihood of recidivism?” He concluded that “[t]aking all evidence into account, it is my opinion that Mr. Walker’s risk is substantial despite the only “above average” combined risk score. Without interventions, he will very likely commit further sexual offences involving children.”
[43] Finally, Doctor Gray asked, “Is Mr. Walker’s behaviour ‘intractable’?”
Mr. Walker has struggled with a sexual interest in prepubescent males for much of his life beginning, at least in his mid-teens. He has received three iterations of treatment for his sexual proclivities following his youth offences, and also received a warning from the Children’s Aid Society to desist from any unsupervised contact with prepubescent children in 2003. Despite these interventions, Mr. Walker continued to act out on his sexual interest in prepubescent children with many more offences just three years after the warning from the Children’s Aid Society up until the time of his arrest.
The length of time the underlying condition predisposing him to sexual offending of pedophilic disorder has existed, and the number of times he has acted out on this disorder over two decades, suggests that the behaviour is intractable. I also note, as mentioned above in this report, that pedophilic disorder is the only paraphilic disorder listed in the DSM-V that does not allow for a qualifier of “in remission” suggesting a degree of intractability to the condition.
If I am not mistaken, the time period between the CAS warning and the commencement of the current offences was actually less than three years.
[44] Doctor Gray’s assessment report, having expressed the medical opinion that Mr. Walker would likely meet the legal definition of dangerous offender, then turns to the issue of control of risk in the community. First of all, he examined the issue of whether there exists a substantial risk that Mr. Walker will reoffend. It was the doctor’s opinion that
As described in the previous section of this report, while Mr. Walker’s actuarially derived risk of re-offence is above average, one must also take into account that his index offences include 100s of incidents of sexual behaviour towards many young victims over a span of 14 years and came after serving time for an earlier set of offences against five other victims. He admits to continuing to have some sexual interest in children. I note the multiplicity of dynamic risk factors on the STABLE-2007, with a score of just one point short of what would push his overall, combined risk category into the highest level of “well above average risk” (Level IVb). Taking all this evidence together, it is my opinion that there is a substantial risk that Mr. Walker will reoffend.
[45] The doctor then turned to the issue of whether there is a reasonable expectation of eventual control of Mr. Walker’s risk in the community. It was his medical opinion that “there … is a reasonable expectation of eventual control of Mr. Walker’s risk in the community with specific interventions to manage that risk.” It is to be noted that this language reflects s. 753.1(c) which deals with long-term offenders and not dangerous offenders. Thus, it is not clear whether the doctor confused the tests when preparing his written report. That being said, the doctor was presented with the ‘new’ material after the report had been completed and modified his assessment as a result. I return now to the discussion of the report. Doctor Gray noted that “Mr. Walker’s index offences appear to have been facilitated through a combination [of] several factors.” First of all, there is the background of his longstanding sexual interest in pre-pubescent males: his diagnosis of pedophilic disorder. A second factor is that
he was undergoing a major, ongoing external stressors with the extensive care of, and ultimately early death, of his severely disabled son during the time period encompassing the index offences. … This would have practical effects on Mr. Walker’s life in that he would feel socially isolated with all his time taking to care for his son and limitations on his ability to do other things but also emotionally with the effects of having a child with a terminal serious illness. While not in any way mitigating his responsibility for his offences, the issue of the ongoing stressor would at least provide an explanation in context why he acted out on his sexual proclivities at that time. Indeed, those with pedophilic disorder are more likely to reoffend if they are under stress or have dysphoric mood states, especially if they have a tendency to use sex as a coping mechanism as does Mr. Walker.
[46] A third factor was Mr. Walker creating situations in which he had access to the children who eventually became his victims. This would be a factor even if it were the case that this access came about due to Mr. Walker seeking emotional connection with his extended family.
[47] The report referenced the sexual offender treatment that the accused received as a result of his offending as a young person. Doctor Gray makes the point that “[e]ven if the treatment was deemed successful at the time, sex offender treatment as a teenager would be insufficient to manage risk into adulthood for someone with as many underlying risk factors as Mr. Walker. Thus, we cannot not say at this point that Mr. Walker has “failed” treatment interventions and therefore that his risk is not amenable to treatment in the future to reduce his risk” by which I take it the doctor meant “we cannot say at this point that Mr. Walker has “failed” treatment interventions etc. The report then goes on to “strongly suggest that Mr. Walker would require intensive treatment and ongoing monitoring to help manage his risk of re-offence in the long term. A legal requirement would also be necessary to have Mr. Walker continue in therapy given his earlier over-confidence in his ability to self-regulate without help.”
[48] The report continues. “In my opinion, however, Mr. Walker poses a very strong candidate for success in treatment in the future. This would help mitigate his risk of future reoffence.” Doctor Gray came to this opinion based on: 1) Mr. Walker’s intelligence being in the “superior range” and the absence of any mental disorder that would challenge his being able to absorb information during treatment; 2) Mr. Walker admitting full responsibility for his offending without blaming his victims; 3) a very low score on the psychopathy checklist compared to other incarcerated male offenders; 4) the accused’s lack of a criminal anti-social outlook along with a low PCL-R score; 5) the fact that he would now be legally required to comply with treatment; 6) environmental controls could be put in place to prohibit Mr. Walker’s access to children – I will here quote the doctor’s further explanation on this point. The parole officer supervising Mr. Walker in the community “would need to closely monitor his relationships in the community to ensure that whichever adults with whom he is spending time do not allow him to contact minors through them.” 7) It would be necessary to restrict Mr. Walker’s use of the Internet to allow use for only employment and educational purposes. The doctor concludes this section of the assessment with “[f]or the reasons outlined above, it is my opinion that there is a reasonable expectation of eventual control of Mr. Walker’s risk in the community.”
[49] In regards to the use of an anti-libidinal agent to help control sexual impulses and sexual preoccupation, Doctor Gray did discuss the use of such medication with the accused. Mr. Walker did indeed agree to a trial of Depo-Lupron. However, and as the doctor pointed out, “[w]hether he ultimately takes the medication would of course be up to his informed consent at the time and cannot be mandated through conditions of parole as I understand it.”
[50] A few final points arising from the report of April 21, 2020. Doctor Gray provided a brief biographical sketch of Mr. Walker’s life at the time of his arrest (i.e., on January 30, 2019). He was born in 1977 and was living with his wife and two daughters (then 11 and 6 years of age). A son born in 2004 died from complications of cerebral palsy in 2015. Mr. Walker, who had been working prior to his son’s death on and off as a webpage design consultant, was able to stop working as he and his wife received a substantial monetary settlement in 2012 from the medical care team who had delivered their son.
[51] As we have already discussed, Mr. Walker was approached by the CAS in 2003. No charges were laid as a result of that intervention. Then there was the birth of his son. Mr. Walker told Dr. Gray that “during the following few years, he was completely absorbed in his son’s care needs, which were extensive” and that as his wife had to go back to work, he became the primary caregiver. Given that the offences to which he has entered pleas of guilt commence during that period, this would appear to be a misleading recounting of his personal history. This is but one example. When one compares the accounts of his offending as recounted to the doctor with the agreed statement of facts, one notes that Mr. Walker appears to be trying to somehow justify or minimize his behaviour with the victims to the doctor.
[52] Doctor Gray asked Mr. Walker about conditions that he would be willing to follow if he were released from jail. He indicated that he would be “very keen” to attend sex offender treatment programs, both group and individual therapies. He thought that it would be reasonable to be prohibited unsupervised contact with anyone under the age of 18 years. He also indicated, as we have seen, that he would be willing to comply with a recommendation that he take a medication to suppress sex drive despite the possibility of certain side effects.
[53] Doctor Gray testified at this hearing. I will now review here some elements of the evidence that he so provided. To be clear, I have reviewed his testimony in its entirety during the preparation of this decision.
[54] It is to be remembered that between the preparation of his report and the day of his testimony, he was provided with some ‘new’ material, specifically, that of the uncharged conduct towards B.L. and M.P., as well as the transcripts of the evidence at this sentencing from Detectives Casselman and Villeneuve and the package of writings taken from Mr. Walker’s prison cell. Doctor Gray testified that the impact of the ‘new’ material on his assessment was that he now places Mr. Walker in the highest risk category as per the STABLE-2007 diagnostic tool. Mr. Walker was now in the Level IVb referred to earlier. What is the effect of this reclassification from Level IVa to Level IVb? The doctor explained “so 6.6 percent of sexual offenders in IVa, “reoffended on release from incarceration with a new sexual offence” – which includes sexual breaches and stuff within one year, and 17.8 percent in five years. So, the corresponding figures for IVb are 21.7 percent within one year and 33.7 percent in five years. So, it goes up a fair amount.”
[55] The ‘new’ evidence with respect to B.L. provided the doctor with certain insights.
However, the incident with B. falls into a different category because, as I saw it, that was someone that he had no relationship with outside of the online world, met the person online, developed some sort of sexual relationship with that person, and possibly was arranging for a time to meet. I know that it wasn’t established that he actually met B. but it looked like there was steps taken to help to meet up to possibly engage in sexual contact. I’ll add a bit more - I hope I’m allowed to - but Detective Casselman stated in her testimony that she and her colleagues had found several hundred files organized by names of people that Mr. Walker was interacting with on the internet, which seemed to suggest there may be more than just B., people that he’s developing some online relationship with, possibly a sexual relationship.
The doctor was of the opinion that this evidence of online activity by Mr. Walker impacted on his earlier assessment about risk management.
A. … the main way it changes my opinion about manageability of the offence of his risk in the community going forward is the fact that it, it broadens the scope of potential victims, whereas previously it was just people he met in real life, maybe he did some grooming of, and eventually sexually assaulted or engaged in an inappropriate sexual relationship with them, along with online offences that just involve downloading and sometimes I think – I’m not sure if it was make available child pornography but online offences involving child pornography. Here you have some offences that involve finding people for the first time online, developing a relationship and a possible attempt or seemingly an attempt to eventually get in contact with them, so it’s like a hybrid of an online and contact offence, whereas the other ones are more contact or more online. So, the fact that it involves a degree of contacting these people online which can be done through media that aren’t necessarily illegal, this might be harder to detect and monitor than say if he was accessing even child pornography. I talk about how – and this is just based on common knowledge, this very specific point – but I would think that if he’s in a public space like a public library and accessing child pornography, probably someone in a library would notice and report it to the librarian – not necessarily - but there’s a reasonable chance that he might not want to do that or even at - I believe at Starbucks, something like that. But if he’s chatting with a 12-year-old boy through Twitter or Tumblr, no one would know any different and he wouldn’t be stopped for what he’s doing, I would say even if he was using sexual terms there, because, you know, that it’s not – it’s a - it’s a legal site and he’s, he’s not doing anything that would arouse attention. So, it would make it more difficult to monitor him in, in the community if we have to also be alive to the risk of that kind of activity going on.
[56] The theme of monitoring Mr. Walker’s access to the Internet in the community was discussed a bit later on during the doctor’s testimony when under cross-examination.
Q. But I just want to be clear, initially you’ve said there’s a reasonable expectation of eventual control of his risk. I take it from what you’re saying, you’re not now saying there is no reasonable expectation. Rather, what you’re saying is if there is to be this expectation, this issue of Internet access has to be dealt with in whatever release process takes place, right?
A. Yeah. So, if there’s a way of monitoring and ensuring he doesn’t access the Internet to contact people, even through legal social media forums, if there’s no way of ensuring that, then, I’m not sure I’d put it at the level of reasonable expectation, it might be, be more like reasonable possibility or something short of that.
The doctor noted that perfect supervision of Mr. Walker’s access to the Internet would be difficult given that access to it is ubiquitous.
you can find Wi-Fi places at cafés, at box stores, you just need the password, and as long as someone has a device that has the capacity to access the Internet, it’s very difficult to monitor someone’s use of the Internet at all times, 24 hours a day, even if their home computer has a filter or they’re being supervised at home by someone living at the home.
This last bit of evidence is obviously outside of Doctor Gray’s field of expertise. However, the ease with which any person could access the Internet almost anywhere is notorious and, as such, the Court can and does take notice of this fact.
[57] Ms. Tansey asked Doctor Gray about the effect of the ‘new’ evidence concerning M.
Q. I’m wondering, the additional findings that the Court made in respect of M. and the threat uttered to harm C. made to M., I’m wondering how, if at all, that maybe what I’ll call victim profile or the vulnerability of those particular victims impacts on your opinion on the manageability piece, if at all?
A. I see. So – and it, it introduces a certain amount of, it seems, callousness and manipulation. I’m not sure with manageability of the risk it affects it that much because if you look at real life, what’s gonna happen if he’s under supervision in the community? I don’t think there’s gonna be an opportunity for him to volunteer at the [name redacted] or similar again, given his criminal record and the notoriety he’s gotten out of this, the publicity from the case, so it’s unlikely that he, I think - that under supervision, he’d have access to vulnerable victims in that way. I think it’s more the, the B. incident and the evidence of having all these file folders with different people’s names that we don’t know too much about, that raise flags about difficulties managing. I’m not minimizing at all what happened with M. and, and all that, I’m, I’m just saying from a perspective of managing his risk in the community, that’s, that’s how I see it.
[58] The doctor was asked by both lawyers about his views of whether Mr. Walker had insight into the harm he has caused. His answer to Ms. Tansey during examination in chief was that in his opinion, Mr. Walker’s expressions of remorse were for “the after-effects” of the abuse rather than the abuse itself. By “after-effects” the doctor was referring to the publicity generated from the discovery of the abuse. Doctor Gray concluded that “So there seemed to be a lack of insight into the fact that these relationships that are actually exploitive are causing damage to the victims.”
[59] During cross-examination, Mr. Davies put a series of questions to Doctor Gray concluding with
Q. Yeah. In other words, there are some sentences in this letter that perhaps support what, what you, you originally said but there are some sentences that suggest an insight into the pain that he’s caused other people as well, right?
A. That’s a fair comment.
This is very far from a radical modification of the doctor’s original position.
[60] The doctor testified that when assessing Mr. Walker’s degree of callousness or lack of empathy, “I have to balance that into like not just his relationship with the victims but how he treated other people in his life and there’s no evidence contradicting that the way he treated his son throughout the course of his short life and caring for him showed some degree of empathy. So – and with respect to his wife, and to the extent that they had a relationship, it seemed like he had some empathy for her as well.” Doctor Gray was thus of the opinion that empathy was partially present in Mr. Walker’s psychology. I note that the doctor did not interview Mr. Walker’s wife. I further note, and with the utmost of respect for the doctor, that his comment that “some of the conduct towards M. showed a certain degree of callousness” is a gross understatement. M. was absolutely unable to defend himself against Mr. Walker’s predatory behaviour. Mr. Walker would have believed that M. would not be able to disclose the abuse to others. Mr. Walker had had his own child die while under the same type of care as M. at that very same institution. With respect, I can only agree with Doctor Gray’s use of the term “a certain degree of callousness” if that term is taken to include an extremely high if not extreme degree of callousness.
[61] I will now review a few other elements of the doctor’s evidence. Doctor Gray was asked to comment on the fact that there had been two interventions in Mr. Walker’s life based on the same type of behaviour that brings him before the court now. Here I am referring to his having been sentenced as a teenager in 1993 and then the CAS investigation in 2003.
That being said, even after that stressful event, this intervention that was short of a legal sanction, there was some intervention, some reminder that there could be consequences of acting sexually inappropriate towards others, and yet within a year after that assessment, that’s when his index sexual offences began. That’s when the first incident that forms the index cluster began. The significance of that is that, even though you’re looking at the risk measures and there’s only one thing that would score a point officially on the actuarial risk assessment instruments - that is, the past charges and convictions – there was yet another reminder 10 years later when he was an adult that might’ve made some people desist from or not engage in this behaviour, knowing the repercussions, and yet for Mr. Walker, it didn’t have that effect because he went on to commit the offences that we’re here today to speak about.
[62] Doctor Gray was to clarify his opinion about the effect of having to care for an extremely ill child on Mr. Walker’s offending. The doctor was now aware that the offending had continued until 2019. Mr. Walker’s son had died in 2015.
So I’ll just flesh out what I said. I said that while stress might’ve had an impact in the past, it clearly isn’t the only issue because I said it persisted two years after the death of his son; not that I would minimize what kind of bereavement he’d have but that’s longer than you’d expect to be, but a continuing important factor is stress over his son. The fact that it now goes until 2019 - that’s pretty extensive offending behaviour - then I’d say that while stress might be a contributing factor, it’s certainly not the only factor, that it’s possible he’d reoffend even if he wasn’t under stress.
[63] Finally, there was this question and answer from cross-examination.
Q. You’ve listed – you’ve, you’ve given your opinion there - and I understand as it was prior to the new information – that your opinion was there was a reasonable expectation of eventual control of his substantial risk in the community with specific interventions, right? That was your opinion.
A. That was my opinion without knowing about the new information.
The Relevant Law
[64] The statute in question here is the Criminal Code , in particular, Part XXIV thereof. Our starting point will be s. 753 . Ms. Tansey has submitted that there are three discrete routes arising from that section by which means the Court can find that Mr. Walker is a dangerous offender.
753 (1) On application made under this Part after an assessment report is filed under subsection 752.1(2), the court shall find the offender to be a dangerous offender if it is satisfied
(a) that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (a) of the definition of that expression in section 752 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
(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.
[65] These three routes can be referred to as a ‘pattern of repetitive behaviour’ as per s. 753(1) (a)(i), a ‘ pattern of persistent aggressive behaviour’ as per s. 753(1) (a)(ii), and a ‘ failure to control his sexual impulses ’ as per s. 753(1) (b). A finding that an accused is a dangerous offender can be made on the basis of an individual route independent of the other two as indicated by the use of the conjunction ‘or’ between s. 753(1) (a) and s. 753(1) (b) as well as the use of that same word within s. 753(1) (a) (see R. v. Lewis, 1984 ONCA 2027 ).
[66] A pattern of repetitive behaviour as per s. 753(1)(a)(i) : As indicated earlier, this route would require the Court to be satisfied that the evidentiary record before me demonstrates that Mr. Walker has shown
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.
[67] The first element is that of ‘ a pattern of repetitive behaviour by the offender, of which the offence for which he or she has been convicted forms a part.’ The Ontario Court of Appeal in R. v. Langevin, 1984 ONCA 1914 , [1984] O.J. No. 3159 at paragraph 29 has held that “this element is not based solely on the number of offences but also on the elements of similarity of the offender’s behaviour.”
[68] The second element is the likelihood of the offender causing certain types of harm through a failure to restrain his behaviour in the future. As a judge cannot see into the future to confirm that an offender will actually cause the harm in question, what must be proven by the Crown beyond a reasonable doubt is the likelihood that the offender will inflict harm ( R. v. Currie, 1997 SCC 347 , [1997] S.C.J. No. 10). ‘Likelihood’ is less than certainty or probability but does not allow for a reasonable doubt (see R. v. Langevin , 1984 ONCA 1914 , [1984] O.J. No. 3159). The Supreme Court of Canada has referred to “a high likelihood” in this context ( R. v. Boutilier, 2017 SCC 64 at paragraph 45 ). Nonetheless, a ‘high likelihood’ is still less than a probability.
[69] A pattern of persistent aggressive behaviour as per s. 753(1)(a)(ii) : The second route that the Crown asks me to consider is
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
[70] What is meant by the words “a pattern of persistent aggressive behaviour” was explained by McWatt J. in R. v. Wong, 2016 ONSC 6362 at paragraph 217 :
Unlike the “pattern of repetitive behaviour” in s.753(1) (a)(i), the case law has not interpreted this subsection as requiring any particular degree of similarity between the instances of aggressive behaviour. To be persistent, the past aggressive behaviour need not be continuous, but it must be “persistent” in the sense of enduring or constantly repeated (R. v. Robinson , [2011] B.C.J. No. 1001 (B.S.S.C) at para. 122 ; R. v. J.Y . (1996), 1996 SKCA 4916 , 104 C.C.C. (3d) 512 (Sask. C.A.) at paras. 25-27 ; R. v. Morin (1998), 1998 SKQB 13883 , 173 Sask. R. 101 (Sask. Q.B.) at para. 85 ).
[71] A recent decision of Aitken J. of the Ontario Superior Court of Justice provides a review of this section.
[103] The “persistence” required for the pattern under s. 753(1)(a)(ii) involves behaviour that is “enduring, continuous, obstinately persevering, interminable or sustained”: R. v. Williams , 2018 ONSC 2030 [ Williams ONSC ], at para. 252 , per Hill J. See also Wong , at para. 217 ; R. v. Robinson , 2011 BCSC 728 , at para. 122 ; R. v. J.Y. (1996), 1996 SKCA 4916 , 104 C.C.C. (3d) 512 (Sask. C.A.) , at pp. 522-23 ; and R. v. Morin (1998), 1998 SKQB 13883 , 173 Sask R. 101 (Q.B.) , at para. 85 .
[104] In R. v. McArthur , [1998] O.J. No. 5184 (Ont. Gen. Div.) , at para. 11 , LaForme J. (as he then was) equated aggressive behaviour with “hostile” behaviour. In Wong , at para. 218 , F.E. McWatt J. (as she then was) stated:
Aggressive behaviour does not require an element of physical force. Instead, aggressive behaviour “is a vague term that can run the gamut between ‘pushy and overly-confident’ to ‘extremely violent’” ( R. v. Campbell , [1992] O.J. No. 2079 at p. 23 (O.C.J.) ; R. v. R.J.M. , [2008] O.J. No. 5991 at para. 70 (S.C.J.) ; and R. v. S.L. , [2011] O.J. No. 6078 at para. 32 (O.C.J.) ).
[105] In Williams ONSC , at para. 252 , Hill J. equated “indifference” with disregard, lack of sympathy or empathy, callousness and coldness, and lack of concern or sensitivity. It is the lack of concern exhibited by the offender as to how his actions will impact others, are impacting others, or have impacted others that is crucial. As F.E. McWatt J. stated in Wong , at para. 224 :
In examining whether Mr. Wong’s conduct demonstrates indifference, his attitude must be examined more generally. A demonstration of indifference which is limited to the time at which the offence was committed is not sufficient. A broader examination of the offender’s personality is required in order to determine if the offender lacks compassion towards others. The Crown must demonstrate that the offender has a conscious, but uncaring awareness of causing harm to others and that this has occurred over a long period, involving frequent acts with significant consequences.
[106] The test under s. 753(1)(a)(ii) does not depend upon similarities among the offences being relied upon as establishing a pattern: R. v. C.W. , 2019 ONCA 976 , at para. 28 ; and R. v. Brown , 2021 ONCA 678 , at para. 55 .
R. v. Villeneuve, 2022 ONSC 2188 at paragraph 103
[72] In R. v. Montgrand, 2017 SKCA 49 , the Saskatchewan Court of Appeal discussed the difference between sections 753(1) (a)(i) and 753(1) (a)(ii).
[21] Although the patterns contemplated by ss. 753(1) (a)(i) and (ii) overlap, each is distinct. Section 753(1) (a)(i), as noted, requires a pattern of repetitive behaviour ; whereas, s. 753(1) (a)(ii) requires a pattern of persistent aggressive behaviour . While the behaviour covered by the former is broader than the latter, the pattern under s. 753(1) (a)(i) must itself establish a likelihood or probability of reoffending in a certain way with a certain result. By contrast, s. 753(1) (a)(ii) does not refer to likelihood or probability; rather, the pattern contemplated must show “a substantial degree of indifference on the part of the offender respecting the reasonably foreseeable consequences to other persons of his or her behaviour.” This calls for an analysis of the subjective state of mind of the offender. Where the offender does not testify, it must be conducted on the objective evidence adduced at the sentencing hearing.
[23 ] To satisfy the requirements of s. 753(1)(a)(ii), the Court in R v George (1998), 1998 BCCA 5691 , 126 CCC (3d) 384 (BCCA) at para 24 , held the evidence must demonstrate “that the offender had a conscious, but uncaring, awareness of causing harm to others.” The Court’s full reasoning in R v George was:
[23] Looking at the point more generally, if indifference is to be determined only at the time of the offence, the outcome will almost always be a foregone conclusion. An offender rarely measures the moral quality of his or her act at the time of a personal injury offence. In my view the attitude of the offender must be examined more broadly in order to fulfil what I take to be Parliament’s intention; namely, to identify the truly evil personality type who has no compassion for others at any time. … It must always be remembered that dangerous offender proceedings may lead to the most severe penal sanction in our law, a lifetime of custody.
[24] Moreover, … the Crown chose to proceed against the appellant on manslaughter where the only intent required was the general intent to apply force unlawfully. The Crown did not allege either that the appellant intended to kill the deceased or was reckless in inflicting grievous bodily harm. Therefore, even if the focus should be on the offender’s state of mind at the time of the offence, the Crown did not prosecute the case in a way that supports a finding of indifference within that narrow compass. In my opinion it should be demonstrated that the offender had a conscious, but uncaring, awareness of causing harm to others.
[73] It is to be noted, that findings that I may make relevant to s. 753(1)(a)(i) may also be equally applicable to this subsection (see R. v. Cook, 2020 ONCA 809 ).
[74] A failure to control his sexual impulses as per s. 753(1)(b) : This is the third pathway relied upon by the Crown. The court shall find the offender to be a dangerous offender if it is satisfied
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.
[75] The law is clear: even a single incident can meet the requirements of this subsection ( see R. v. Gibson, 2021 ONCA 530 at paragraph 230 ).
[76] Section 753(1) and Intractability: I turn now to the issue of intractability. The Supreme Court of Canada in R. v. Boutilier, 2017 SCC 64 at paragraph 27 has reiterated that “[b]efore designating a dangerous offender, a sentencing judge must still be satisfied on the evidence that the offender poses a high likelihood of harmful recidivism and that his or her conduct is intractable. I understand “intractable” conduct as meaning behaviour that the offender is unable to surmount. Through these two criteria, Parliament requires sentencing judges to conduct a prospective assessment of dangerousness.”
[77] Sentencing : As I have already indicated that I have found Mr. Walker to be a dangerous offender, I do not have to review the alternative procedures outlined in s. 753(5). I turn now to the law dealing with the issue of sentencing. Section 753(4.1) mandates that
[t]he 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.
[78] The comments of Hill J. in R. v. Beharri, 2015 ONSC 5900 at paragraph 198 provide guidance.
In the balancing exercise to determine whether public protection can realistically be achieved by a disposition less severe than indeterminate, imprisonment, bearing in mind that “Parliament has provided that [such detention] should not be imposed unless there is no reasonable expectation that a lesser measure will be able to adequately protect the public” ( R. v. Sawyer, 2015 ONCA 602 , at para. 30 ), the totality of the circumstances of a particular case must be scrutinized. There is no exhaustive menu of relevant factors for consideration as to whether an offender’s future conduct is likely to be inhibited by normal standards of behavioural restraint. Important are the nature and circumstances of the predicate crimes, criminal history of the offender, the nature and duration and intensity of his or her mental disorder, treatability, profile of previous compliance with orders and release conditions, expert risk assessments respecting likelihood of reoffending, attitude and motivation of the offender, community capacity to adequately monitor and supervise the offender upon release, etc.
[79] The wording in s. 753(4.1) is that a sentencing judge, having found that an accused is a dangerous offender, must impose an indeterminate sentence unless satisfied that there is a reasonable expectation that a lesser sentence will suffice to protect the public. The Ontario Court of Appeal has recently defined the term ‘reasonable expectation’ in a case, as it happens, also dealing with a dangerous offender. In that case, the sentencing judge had used the standard of ‘reasonable possibility’. The Court of Appeal said this was an error.
The standard is “reasonable expectation”, a higher standard than “reasonable possibility”. A “reasonable possibility” describes something that may happen. A “reasonable expectation” refers to a belief that something will happen. [emphasis in original]
R. v. Straub, 2022 ONCA 47 at paragraph 45 .
The Application of the Law to the Evidence in the Present Case
Designation Stage
[80] For the purposes of the following discussion, I have kept in mind that the Crown must prove the statutory elements of dangerousness beyond a reasonable doubt (see, for example, R. v. Williams, 2018 ONCA 437 at paragraph 53 ). That Mr. Walker has pleaded guilty to serious personal injury offences as per both definitions in s. 752 has not been challenged.
[81] A pattern of repetitive behaviour as per s. 753(1)(a)(i) : The charged assaultive conduct before me is indicative of a long-standing pattern of repetitive behaviour by itself. The acts occurred on many occasions over an extended period of time. Mr. Walker sought out a specific type of victim and engaged in similar acts with them. The assaults frequently occurred at Mr. Walker’s home. The uncharged conduct against B.L., while not in person, but engaged in virtually, I find to be similar enough to that committed in person against B., O., N., and A. to be included on this pattern. Important in this context is the evidence that Mr. Walker discussed meeting B. in person for the purpose of engaging in behaviours identical to those Mr. Walker committed against B. and the others. I include here likewise the uncharged acts against M. Relevant here as well is the charged conduct involving Mr. Walker showing child pornography to some of his victims.
[82] What use, if any, can be made at this stage of the proceedings of Mr. Walker’s record as a young person for sexual offences against children? Mr. Davies has conceded that these early findings of guilt are relevant both at the designation and the sentencing stages. That being said, he cautions about the manner in which they can be applied here. Mr. Walker was 14 or 15 years old when he received his sentence pursuant to the Young Offenders Act and it is indisputable that young persons have diminished responsibility: the presumption of diminished moral culpability (see R. v. D.B., 2008 SCC 25 at paragraphs 47-48 ).
[83] The Alberta Court of Appeal in R. v. Neve, 1999 ABCA 206 at paragraph 259 was dealing with an application to have Neve declared a dangerous offender. The predicate offence was non-sexual. Ms. Neve was an adult. She had a youth record. The Court of Appeal examined the significance of those early findings of guilt.
There is another contextual dimension to this case which was overlooked. There is nothing in the dangerous offender sections of the Code which indicate that they are to trump the provisions of the Young Offenders Act, R.S.C. 1985, c. Y-1 . Why is this relevant? The answer is that this part of Neve’s record should be viewed through the philosophical lens of that statute. Briefly stated, s.3(1) of the Young Offenders Act recognizes that while protection of the public is an entirely legitimate sentencing objective, that objective is best served by placing rehabilitation of the youth at the forefront of the considerations in sentencing: see also R. v. M. (J.J.) 1993 SCC 91 , [1993] 2 S.C.R. 421 . In addition, given a young offender’s lack of maturity, it may well be inappropriate, depending on the offences committed , to evaluate his or her conduct against the standards one expects of adults. And yet, despite this concern, which again we note was not put before the sentencing judge, it is apparent that for purposes of reviewing and assessing Neve’s past offences, the sentencing judge did not distinguish between the offences Neve committed as a young offender and those she committed after turning 18. In our view, this should have been done. [emphasis added]
None of the other dangerous offender cases cited by Mr. Walker on this issue were dealing with sexual offenders: R. v. Charley, 2017 ONSC 3496 ; R. v. Clow, 2019 ONCJ 673 ; R. v. Campbell, 2015 MBPC 7 .
[84] Here, at the designation stage, the youth convictions are not relevant because they are indicative that the young Mr. Walker possessed poor control over his sexual impulses; I am not dealing today with the young Mr. Walker. The convictions are relevant because they were based on facts similar to those underlying the charges before me to which Mr. Walker has pleaded guilty. We are here dealing with a temporal continuum. But to be clear, the youth record does not add much to what is already sufficient evidence of a pattern of repetitive behaviour based solely on the facts underlying the charges before me.
[85] I find that the Crown has proven to the required standard that Mr. Walker has engaged in the pattern of repetitive behaviour referred to in s. 753(1) (a)(i) Criminal Code .
[86] A pattern of persistent aggressive behaviour as per s. 753(1)(a)(ii) : Here, it cannot be gainsaid that Mr. Walker behaved persistently in an aggressive fashion. The evidence before me is that he was indifferent to the reasonably foreseeable consequences to his victims. Specifically, I am referring to the two interventions, the fact that he continued to behave in this criminal fashion after those interventions, and, as he told Doctor Gray, that he knew the behaviour in question was wrong. Indeed, we have seen that in 1994 he wrote as part of his therapy that he understood the consequences of his actions on his victims. The objective evidence before me is that he continued acting in a criminal manner and he was substantially indifferent to the consequences of his actions. I find that the Crown has proven to the required standard that Mr. Walker has engaged in the pattern of persistent aggressive behaviour referred to in s. 753(1) (a)(ii) Criminal Code .
[87] A failure to control his sexual impulses as per s. 753(1)(b) : Given the totality of the evidence before me, the application of common sense to that body of evidence leads me to be satisfied that Mr. Walker has shown a failure to control his sexual impulses . Therefore, I find that the Crown has proven to the required standard that Mr. Walker has failed to control his sexual impulses as per s. 753(1) (b) Criminal Code .
[88] Intractability: It is clear that absent a successful intervention, Mr. Walker will continue these behaviours, behaviours that he has been engaged in for a large portion of his life. Court mandated treatment when he was a teenager appears to have had no lasting effect if it ever had any. The custodial youth sentence and the investigation by the CAS, both being clear warnings to him, had no effect. There is no evidence before me that he has sought any help for his disorder on his own. Doctor Gray reported that the accused told him that he knew his behaviour was wrong. Pedophilic disorder does not allow for a qualifier of “in remission”. There is obviously a likelihood that he would continue to act in such a manner as to inflict severe psychological harm on other persons through a future failure to restrain his behaviour. The evidence of Doctor Gray is that Mr. Walker has advised him that he is willing to undergo certain types of treatment related to his offending. To be frank, I do not think that I can rely on Mr. Walker’s word to the doctor or, if it had come to it, the Court, that he would fully engage in such treatment. The two prior significant interventions had no impact whatsoever. His insight appears to be limited at best. I conclude that Mr. Walker is unable to surmount his urge to engage in these harmful behaviours; his conduct is intractable.
[89] In conclusion at this, the designation stage, I am satisfied that Mr. Walker is a dangerous offender as per subsections 753(1) (a)(i), 753(1)(a)(ii), and 753(1)(b) Criminal Code .
Sentencing Stage
As I have already stated, Mr. Walker’s sentence for the offences engaged by Part XXIV of the Criminal Code will be indeterminate. I am not satisfied by the evidence adduced during this hearing that there is a reasonable expectation that the lesser measures referred to in subsection 753(4) will adequately protect the public against the commission by Mr. Walker of a serious personal injury offence.
[90] The evidence before me does not lead me to believe that Mr. Walker will actually engage in the suggested therapies in a meaningful way. To be clear, by ‘meaningful’ I mean that he will actually try to change as a result of therapy. I do not believe that Mr. Walker understands that his actions caused his victims actual harm.
[91] I am obviously aware that Doctor Gray’s report concluded that the accused “poses a very strong candidate for success in treatment in the future.” Of course, that assessment was not based on the ‘new’ material and, as I discussed briefly earlier, he may have utilized the wrong test. However, even so, I also find several of the factors relied on by Doctor Gray to be problematic. One factor was that Mr. Walker would now be legally required to comply with treatment. But as I have just indicated, I have no reasonable expectation that Mr. Walker will utilize any therapies to actually modify his behaviour in a way that would lessen the risk that he presently poses to the public. Meaningful compliance would entail more than mere attendance and going through the motions. As well, he could stop taking the anti-libidinal medication if he chose to do so.
[92] Two of the other factors were environmental controls that could be put in place to prohibit Mr. Walker’s access to children and the restriction of his use of the Internet. The parole officer “would need to closely monitor his relationships in the community to ensure that whichever adults with whom he is spending time do not allow him to contact minors through them.” It would be the parole officer who would also be responsible for the close monitoring of Mr. Walker’s use of the Internet. Here, I am mindful of the evidence of Ms. Maahs and Ms. Thompson about the limits of parole supervision. I am of the view that the ‘environmental controls’ envisaged by Doctor Gray are not available to adequately supervise Mr. Walker in the real world or on the Internet. Mr. Walker’s attack on M, for example, is demonstrative of the extreme lengths that he will go to in order to satisfy his sexual urges.
[93] I am of the view that the management of the risk presented to children in our community by Mr. Walker requires more tools than are available to the parole authorities. That, in itself, renders an indeterminate sentence reasonable in this case. As the Ontario Court of Appeal has stated in R. v. K.P., 2020 ONCA 534 at paragraph 14 ,
[r]isk management evidence must demonstrate a prospect of effective supervision, within the means and capacity of the parole authorities: R. v. Severight , [2014] A.J. No. 45 , 2014 ABCA 25 , 566 A.R. 344 , at paras. 40-43 , leave to appeal to S.C.C. refused [2014] S.C.C.A. No. 184. As this court has explained, "'real world' resourcing limitations cannot be ignored or minimized where to do so would endanger public safety": R. v. L. (G.) (2007), 87 O.R. (3d) 683 , [2007] O.J. No. 2935 , 2007 ONCA 548 , at para. 70 , leave to appeal to S.C.C. refused [2008] S.C.C.A. No. 39.
Conclusion with Respect to the Dangerous Offender/Long-Term Offender Application
[94] As I stated earlier, I declare that Mr. Walker is a dangerous offender and, as I am not satisfied by the evidence adduced during this hearing that there is a reasonable expectation that a lesser measure pursuant to either s. 753(4)(b) or (c) will adequately protect the public against the commission by Mr. Walker of a serious personal injury offence. The Crown has sought certain ancillary orders. I find it to be appropriate to make the following orders:
With respect to the offences under s. 271, a lifetime s. 109 weapons prohibition thereby prohibiting Mr. Walker from possessing any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive substance for life.
With respect to the offences under sections 151, 152, 163.1, 171, 171.1, 173(2), and 271, an order of lifetime prohibition pursuant to s. 161(1)(a.1)(b)(c) and (d). Mr. Walker is thereby prohibited for the rest of his life from the following: (a) attending a public park or public swimming area where persons under the age of 16 years are present or can reasonably be expected to be present, or a daycare centre, schoolground, playground or community centre; ( a.1) being within two kilometres, or any other distance specified in the order, of any dwelling-house where the victim identified in the order ordinarily resides or of any other place specified in the order; (b) seeking, obtaining or continuing any employment, whether or not the employment is remunerated, or becoming or being a volunteer in a capacity, that involves being in a position of trust or authority towards persons under the age of 16 years; (c) having any contact — including communicating by any means — with a person who is under the age of 16 years, unless the offender does so under the supervision of a person whom the court considers appropriate; or (d) using the Internet or other digital network, unless the offender does so in accordance with conditions set by the court.
I will hear submissions later today on the following points relevant to s. 161:
Pursuant to sub-section (a.1), a complete list of the victims;
Pursuant to sub-section (c), the identity of any supervisor;
Pursuant to sub-section (d), the possibility of any conditional use of the Internet or other digital network.
With respect to the offences under sections 151, 152, 153, 162, 163.1, 171.1, 172.1, 173(1), 173(2), and 271, a lifetime order pursuant to s. 490.013(1)(2.1) thereby requiring Mr. Walker to comply with the Sex Offender Information Registration Act for life.
With respect to the primary designated offences under sections 151, 152, 153, 163.1, 171.1, 172.1, 173(2), and 271, as well as the secondary designated offences under s. 173(1), a s. 487.051(1) and (3)(b) order authorizing the taking of the number of samples of bodily substances that is reasonably required for the purpose of forensic DNA analysis from Mr. Walker.
Pursuant to s. 743.21(1), an order prohibiting Mr. Walker from communicating, directly or indirectly, with the following list of people during the custodial period of the sentence: B. W., N. H., O. S., A. S., M. P., C. L., and B. L. The section states that I am allowed to make exceptions to this order should I consider them necessary. I have not identified any such necessary exceptions but will consider any submissions on this point later today.
Pursuant to s. 760, I am making an order that a copy of all reports and testimony given by psychiatrists, psychologists, criminologists and other experts and any observations of the court with respect to the reasons for the finding, together with a transcript of the trial of the offender, be forwarded to the Correctional Service of Canada for information.
Sentencing with Respect to the Counts not Eligible under Part XXIV Criminal Code
[95] Mr. Walker will have to be sentenced pursuant to the usual sentencing procedures for those counts, specifically: counts 9, 10, 11, 16 and 17 of Information 19-RA18063. Counts 9 and 10 particularize that Mr. Walker exposed his genitalia to a person under the age of 14 years, namely B., for a sexual purpose contrary to s. 173(2) Criminal Code . Counts 11 and 17 particularize that Mr. Walker committed an indecent act with intent to insult another person contrary to s. 173(1) Criminal Code. Count 16 states that Mr. Walker did, without lawful excuse, surreptitiously use a hidden video camera to monitor a person who had a reasonable expectation of privacy and who could reasonably be expected to be nude, etc. contrary to s. 162(1) (a) Criminal Code. This last count can attract a maximum sentence of 5 years imprisonment. The other four counts have 2-year maximum sentences. The Crown has elected to proceed by way of indictment and is seeking the maximum sentence for each of these counts, concurrent to each other and concurrent to the Part XXIV sentence. The sentence for these counts would offset by the presentence custody served by Mr. Walker. As Mr. Walker was arrested on January 30, 2019 and has been in custody ever since, he has been in jail for 1352 days.
[96] Mr. Walker has pleaded guilty to these offences. He was under no legal obligation to do so. As he has pleaded guilty and as these counts are not part of the dangerous offender sentence, he must receive some benefit for plea. I disagree with the Crown that the maximum penalty is appropriate here. A plea of guilt is a mitigating factor in the sentencing analysis. Why? Well, first of all, it can be an expression of remorse. It is an acceptance of responsibility. It saves the justice system the time and expense of a trial. Importantly, in cases such as the present one, a guilty plea means that the victim or victims do not have to testify and undergo cross-examination.
[97] I think the principle was eloquently put by Justice H.F. Pringle in R. v. Berquas, 2018 ONCJ 623 at paragraph 38 ff.
Here in Canada, Parliament has left the degree of reduction to the discretion of sentencing judges. However, in my view for a guilty plea to have any true meaning as a mitigating factor, there should generally be a discernable difference between sentences imposed after a contested trial and those imposed following a plea of guilt.
Dambrot J.’s decision in R. v. Pearce, supra was only one of two Ontario cases presented to me, where sentencing followed a guilty plea and not a contested trial . Justice Dambrot would have imposed a sentence between 12 and 15 years, save and except for the guilty plea and some non-exceptional mitigating factors. Instead, he imposed a nine-year sentence, which was between 3 and 6 years lower than the sentence he deemed otherwise appropriate. This case has assisted me in understanding the calculable difference in sentence a guilty plea may have. The difference in quantum should generally be meaningful.
[98] I well recognize that given the indeterminate sentence on the Part XXIV charges the impact of any sentence on these other counts will be almost theoretical. Nonetheless, this is not a reason to depart from a principled approach to the sentencing for these other offences.
[99] Therefore,
- Count 16 ( s. 162(1) (a)): a sentence of 1350 days or 45 months;
- Count 9 ( s. 173(2) ): a sentence of 540 days or 18 months concurrent;
- Count 10 ( s. 173(2) ): a sentence of 540 days concurrent;
- Count 11 ( s. 173(1) ): a sentence of 540 days concurrent;
- Count 17 ( s. 173(1) ): a sentence of 540 days concurrent.
These sentences will be offset by the application of the pre-sentence custody.
[100] I wish to thank Ms. Tansey and Mr. Davies for their hard work and professionalism during the course of this hearing.
Released: October 11, 2022
Signed: Justice Berg