WARNING

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

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

486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and

(b) on application made by the victim, the prosecutor or any such witness, make the order.

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

CITATION: R. v. Ouedraogo, 2023 ONCJ 136

DATE: March 23, 2023

ONTARIO COURT OF JUSTICE

Old City Hall - Toronto

BETWEEN:

HIS MAJESTY THE KING

— AND —

BABA OUEDRAOGO

For the Crown B. McCallum

For the Defendant J. Fennel

Heard: August 18, 19, 2022; January 23, 24, 2023

REASONS for SENTENCE

RUSSELL SILVERSTEIN, J.:

A. INTRODUCTION

[1] On January 15, 2021, I found Mr. Ouedraogo guilty of sexual assault, sexual assault with a weapon, robbery, disguise with intent, and failure to comply with a release order. See R. v. Ouedraogo, 2021 ONCJ 23.

[2] Subsequently, Crown counsel brought an application pursuant to ss. 754(1)(b) and 753.1(1) of the Criminal Code seeking (1) a long-term offender (LTO) declaration against Mr. Ouedraogo, and (2) an order that he be supervised in the community for a period of ten (10) years.

[3] The Crown also seeks a sentence of seven (7) years.

B. THE LTO STATUTORY FRAMEWORK

[4] Section 753.1 of the Criminal Code states:

753.1(1) The court may, on application made under this Part following the filing of an assessment report under subsection 752.1(2) find an offender to be a long term offender if it is satisfied that

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

(b) there is a substantial risk that the offender will re-offend; and

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

(2) The court shall be satisfied that there is a substantial risk that the offender will re-offend if

(a) the offender has been convicted of an offence under section… or has engaged in serious conduct of a sexual nature in the commission of another offence of which the offender has been convicted; and

(b) the offender

(i) has shown a pattern of repetitive behaviour, of which the offence for which he has been convicted forms a part, that shows a likelihood of the offender's causing death or injury to the other persons or inflicting severe psychological damage on other persons, or

(ii) by conduct in any sexual matter including that involved in the commission of an offence for which the offender has been convicted, has shown a likelihood of causing injury, pain or other evil to other persons in the future through similar offences.

[5] The onus is on the Crown to prove beyond a reasonable doubt that there is a substantial risk that the offender will reoffend. R. v. F.E.D., 2007 ONCA 246, [2007] O.J. No. 1278 (C.A.) at para 52

[6] There are two ways the Crown can establish substantial risk. The first is by relying on the statutory presumption set out in s. 753.1(2) of the Code which states that the court shall be satisfied that there is a substantial risk of re-offence if the offender has been convicted of an enumerated offence under s. 753.1(2)(a) and has either:

• shown a pattern of repetitive behaviour, of which the offence for which he or she has been convicted forms a part, that shows a likelihood of the offender’s causing death or injury to other persons or inflicting severe psychological damage on other persons; or

• by conduct in any sexual matter including that involved in the commission of the offence for which the offender has been convicted, has shown a likelihood of causing injury, pain or other evil to other persons in the future through similar offences.

[7] The court is not confined to the section 753.1(2) route to the finding of a substantial risk of reoffence. Where the presumption is not available, the Crown can establish substantial risk based on the available evidence. R. v. McLeod 1999 BCCA 347; R. v. McLean, 2009 NSCA 1.

C. THE PREDICATE OFFENCES

[8] On March 30th, 2019, Mr. Ouedraogo was charged with numerous criminal offences. The presiding Ontario Provincial Court Justice of the Peace J. Scarfe released him on a recognizance of bail with certain conditions that included: Do not possess - any weapon(s) as defined by the Criminal Code.

[9] On July 30th, 2019, at approximately 2:30 a.m. B.H. was sleeping on a bench in the parkette located at 9 McGill Street. They (B.H.’s pronoun of choice) were suddenly awoken by Mr. Ouedraogo standing over top of them. He had one bandana covering the top of his head and a second pulled up over the bottom of his face that obscured his mouth and nose.

[10] B.H. told Mr. Ouedraogo to leave them alone at which point he struck them in the head with a piece of concrete numerous times. While they were dazed, he threw them to the ground, ripped their pants and attempted to penetrate them with his penis. B.H. screamed and he repeatedly told them, “Shut up or I will kill you”. B.H. struggled to get away from him at which point he grabbed a hold of them and continued to attempt to penetrate them.

[11] A passerby on his way home from work was alerted to B.H.’s screams for help and ran to the parkette where he observed them being attacked. The passerby screamed at Mr. Ouedraogo to stop the assault and began to look around for someone to assist him as he did not possess a cellphone. Mr. Ouedraogo began dragging B.H. toward the north end of the parkette by the neck. A second passerby alerted by B.H.’s screams called 911 on his cellphone and ran to the parkette to assist. As the two passersby approached, Mr. Ouedraogo released B.H., grabbed their black knapsack, and ran northbound out of the parkette.

[12] Officers from 51 Division along with paramedics attended the parkette and located B.H. and the two passersby. B.H. was subsequently transported to Mount Sinai hospital where their injuries were recorded and a Sexual Assault Evidence Kit (SAEK) was obtained. B.H. had pain and tenderness in their midthigh. Their knee had circular swelling. On their left forehead, a bruise and swelling were noted. It was also believed that they suffered a concussion.

[13] Investigating officers canvased for video in the area and tracked Mr. Ouedraogo on CCTV from several different locations as he stalked B.H., attacked them, and fled the scene. Mr. Ouedraogo came upon B.H. at approximately 2:08 a.m. He checked on them numerous times and appeared to be looking around the area for a weapon. He eventually found a loose piece of concrete. He then put on bandanas to cover his face. The offence was also captured on video. At 2:25 a.m. Mr. Ouedraogo can be seen attacking B.H. with an object, getting on top of them, and lowering his pants. At 2:31 a.m. he got off B.H., grabbed their backpack, attempted to grab them too, and then ran from the scene.

[14] DNA samples left on the seized bandanas led to Mr. Ouedraogo’s arrest on February 25, 2020. At that time, Mr. Ouedraogo was interviewed about the attack on B.H. He denied any involvement. He stated that he was in the area of the offence that night and he was captured on surveillance wearing an identical outfit to the suspect. But he told officers that night he had stolen a backpack from a drug dealer named Scarborough and he was running away from Scarborough. This story was rejected at trial.

D. CRIMINAL HISTORY

[15] The following is a chronological summary of Mr. Ouedraogo’s convictions and criminal behaviour:

(a) Theft Allegation (March 14, 2019):

[16] On March 14, 2019, Mitchel Toran was with a group of friends, visiting from New Jersey, USA. Mr. Toran met Mr. Ouedraogo in the Entertainment District that evening. Mr. Toran advised that he had been drinking and he was intoxicated. He split from his friends and attended the McDonald’s with Mr. Ouedraogo at Queen Street West and Spadina Avenue. Mr. Toran advised that he purchased some McDonald's for himself and Mr. Ouedraogo and then they left together. Mr. Toran does not have a clear recollection of the events after leaving the McDonald’s. He advised that when he regained consciousness, he was lying on the street and Mr. Ouedraogo and his wallet were missing. Police and EMS attended. There were no injuries other than a scrape to Mr. Toran’s middle finger with dried up blood.

[17] At 4:36 am, Mr. Ouedraogo attempted to purchase an iPad and iPhone from Factorydirect.ca using Mr. Toran’s credit card, totaling $870.07. The transaction was declined by the website because Mr. Toran’s credit card was American, and the shipping address was in Canada.

(b) Theft Conviction (September 24, 2019)

[18] On September 24th, 2019, at approximately 1:08 p.m., Mr. Ouedraogo went to the Winners store located at 10 Dundas Street East in the City of Toronto. Mr. Ouedraogo was observed by store security to select a brush valued at $6.99. He then concealed this item inside one of his pant pockets before making his way past all points of purchase and exiting the store without making any attempt to pay for the concealed merchandise.

(c) Theft Conviction (October 5, 2019)

[19] On October 5th, 2019, Mr. Ouedraogo attended 40 St. George Street. Mr. Ouedraogo took the cell phone belonging to Anvar Farrokhi that Mr. Farrokhi had placed on the desk in front of him. He noticed that Mr. Ouedraogo had taken the cell phone and he attempted to take it back from Mr. Ouedraogo by grabbing it. Mr. Farrokhi alerted University of Toronto Campus Police immediately. The officers attended and located Mr. Ouedraogo. They retrieve the cell phone and placed Mr. Ouedraogo under arrest.

(d) Sexual Assault, Sexual Interference, and Overcome Resistance (November 2, 2019)

[20] Mr. Ouedraogo and A.O. met on the evening of November 2, 2019. A.O. was 15 years old. She had come downtown to Dundas Square. She was alone and approached a group of males outside a Pizza Pizza to ask if anyone had any Xanax. She was told that Mr. Ouedraogo did. He took her to a stairwell. He demanded that she “suck his dick.” She did not want to. When she did not, he choked her. He forced oral sex on her. She kept saying she did not want to do this. He told her to lie down on the ground. He took her pants off, ripped her lingerie, and forced vaginal intercourse. He was rough with her during these events causing her eye to be bruised and her fingernail torn.

[21] Mr. Ouedraogo and A.O. left the area together and attended the Ryerson Student Life Centre building located at 341 Yonge Street. They were captured on surveillance entering that building and joining a group in the lobby. After midnight, security was informed that there was a female in distress in the Student Life Center. Security guards found A.O. barely conscious. She was taken to the hospital. A Sexual Assault Evidence Kit was performed. DNA samples were taken. Oral and vaginal penetration was recorded. The nurse observed injuries on her, which included: purple bruising and swelling around her eye, red abrasions around her neck, and bruising around her neck.

[22] Mr. Ouedraogo was arrested at the scene. He was subsequently interviewed, and he described sexual activity with A.O. that was entirely consensual. He made similar statements during the trial. His exculpatory statements were not believed by the court. His evidence was strongly contradicted by the physical evidence. He was found guilty after a trial in the Superior Court before Goldstein J: R. v. Ouedraogo, 2022 ONSC 2130.

(e) Failure to Comply Release Order (February 16, 2020)

[23] On November 2nd, 2019, Mr. Ouedraogo was arrested while on bail for overcome resistance by choking, sexual assault and sexual interference. He was then released on a global recognizance of bail that included the following condition: Do not possess any weapon(s) as defined by the Criminal Code.

[24] In the early hours of February 16th, 2020, the police were dispatched to the Homes First Society City Shelter located at 545 Lakeshore Blvd West in response to a physical altercation between two residents: Mr. Ouedraogo and Mr. Tala Lumbu. At approximately 1:35 a.m. the police located Mr. Lumbu in the cafeteria area of the shelter. At this time Mr. Lumbu advised police that Mr. Ouedraogo had a gun.

[25] Police were able to locate the gun inside Mr. Ouedraogo’s suitcase beside his bed at the shelter. The gun in question resembles an actual firearm (an M1911 Handgun) but in fact is an airsoft pistol. The packaging for the pistol was also located and printed on the side of the box indicated the pistol is capable of firing its projectiles at a rate of 118m/sec. Mr. Ouedraogo breached his global bail by possessing an imitation firearm at the Homes First Shelter.

E. MR. OUEDRAGO’S BACKGROUND

[26] There is very little known about Mr. Ouedraogo. Despite two requests, Mr. Ouedraogo declined to be interviewed by s.752.1 appointed psychiatrist, Dr. Jonathan Rootenberg.[^1] Mr. Ouedraogo is 28 years old. He moved to Canada in July of 2013 from Burkina Faso. He speaks French, but he is also proficient in English. He completed a bachelor’s degree before coming to Canada. When he first arrived in Canada, he lived in Montreal, Quebec and he enrolled at the University of Quebec in Montreal. He came to Toronto in 2016. He had an apartment in the basement of 556 Bathurst Street, but later relied on the shelter system. He has had jobs at: 9269-8851 Quebec Inc. (2016); Prohibition Gastropub and Oyster Bar (2016), Randstad Interim Inc. (2017, 2018), Manpower Services Canada Limit (2017); Ian Martin Limited (2018), and Vegan Hog Inc. (2018). He relied on Ontario Works and selling marijuana as sources of income. He has previously stated that he has family in Burkina Faso that also provided financial support.

F. MR. OUEDRAOGO’S PHYSICAL AND MENTAL HEALTH

[27] Mr. Ouedraogo does not appear to have any significant health issues. Prior to entering custody, he attended a physician’s office for minor issues, including eczema, and a common cold. The institutional records from the Toronto South Detention Center show no signs of significant health issues. While in custody, he has suffered from a continuing eczema condition, as well as a fungal infection, an ear infection, and dental pain.

[28] There is no indication of mental health issues while Mr. Ouedraogo was in the community. The institutional records do not show any evidence of psychiatric illness. Mr. Ouedraogo is repeatedly documented as not having any changes in mental health, including while in isolation. The lack of health issues accords with Dr. Rootenberg’s brief observations of Mr. Ouedraogo as calm, alert, lucid, and coherent.

G. CORRECTIONAL HISTORY

[29] Mr. Ouedraogo has spent over three years in pre-sentence custody. While in custody he was found guilty of the following misconducts:

• Misconduct February 23, 2020 - Regulation 778.29.1 Violation (b) commits or threatens to commit an assault upon another person: abusive and threatening staff. Penalty: reprimanded.

• Misconduct March 24, 2020 – Regulation 778.29.1 Violation (c) makes a gross insult, by gesture, use of abusive language, other act, direct at any person: abusive and threatening language towards nurse. Penalty: loss of canteen for 21 days.

• March 14, 2022, - Mr. Ouedraogo smeared feces on the cell window of another inmate.

H. DR. ROOTENBERG’S REPORTS

[30] Mr. Ouedraogo was assessed by Dr. Jonathan Rootenberg pursuant to my assessment order. He generated two reports (an initial report and an amended report) and testified before me.

[31] Dr. Rootenberg was qualified as an expert in forensic psychiatry. He is currently employed at the Centre for Addiction and Mental Health. He has performed numerous violent risk assessments and has testified on this issue approximately 25-30 times, for both Crown and defence.

[32] There is no indication that Mr. Ouedraogo has at any time suffered from a major mental illness. Dr. Rootenberg saw no indications of psychosis. In the limited time spent with Mr. Ouedraogo, there was “no suggestion of any suicidal or violent ideation, delusions, or perceptual abnormalities.”

(a) Diagnosis

[33] Dr. Rootenberg could not offer any specific diagnostic opinions with respect to Mr. Ouedraogo as he declined to participate in the assessment process.

[34] On the limited information available, it appeared that Mr. Ouedraogo satisfied several criteria associated with antisocial personality disorder. The essential feature of antisocial personality disorder is a pervasive pattern of disregard for and violation of the rights of others occurring since the age of fifteen. The following is a list of the diagnostic criteria for antisocial personality disorder and evidence that suggests these criteria have been met:

• Failure to conform to social norms with respect to lawful behaviours: Mr. Ouedraogo’s criminal record demonstrates that he has repeatedly non- conformed with lawful behaviour.

• Impulsivity or failure to plan ahead: This criterion appears to have been met, insofar as the predicate offence is concerned, although more information is required in terms of Mr. Ouedraogo’s long-standing behavior.

• Irritability and aggressiveness: Mr. Ouedraogo has clearly acted aggressively towards others regarding the events for which he was found guilty.

• Reckless disregard for the safety of self or others: This criterion appears to have been met, based on Mr. Ouedraogo’s convictions regarding the two sexual assaults.

(b) Risk Assessment

[35] Dr. Rootenberg determined that “Mr. Ouedraogo appears to be an individual at high risk of violence suggested by his history and there appears to be a substantial risk that this sexual violence may be of a serious nature”.

[36] Actuarial testing results were as follows:

• Psychopathy Checklist Revised (PCL-R): Due to limited information available in the file, Mr. Ouedraogo could not be scored using the PCL-R .

• STATIC-99R: Mr. Ouedraogo’s original score of 3 was increased to 4 in July of 2022, which places him at the upper end of the Moderate to High-risk category for being charged or convicted of another sexual offence.

[37] Dr. Rootenberg further determined that “Mr. Ouedraogo has demonstrated a pattern of failing to restrain his behavior by virtue of repeated offences and shows a likelihood of inflicting psychological and potentially physical harm on another individual through failure to restrain his behaviour.”

(c) Dr. Rootenberg’s view of the Long-Term Offender Criteria:

[38] From a psychiatric perspective, the possibility of “eventual control of the risk” presented by Mr. Ouedraogo hinges on the issue of treatability. Mr. Ouedraogo appears to pose a high risk of violence and a failure to control his behaviour shows a likelihood of inflicting psychological and/or physical harm to another individual. This anti-social behaviour can be impacted by several factors including psychological stress, an unstructured living situation, alcohol or substance abuse, and nonadherence with psychiatric or psychological treatment.

[39] There is available treatment for Mr. Ouedraogo. A treatment plan must address his dynamic risk factors, which include antisocial personality disorder psychopathy, substance misuse, minimization of his risk to others, and poor coping methods and lifestyle instability. There are no significant cognitive difficulties from the file information which would interfere with Mr. Ouedraogo’s ability to engage in treatment. However, in addressing his risk factors, there is a need for further external controls on his behaviours which include the following:

• Immediately report any relationship with women to supervising officer

• Approval of residence by case manager, and initial residence should be at a community correctional center to monitor his behaviour

• Follow any counseling and treatment identified by a probation officer, mental health professional or family doctor

• Prohibit the consumption, possession and purchase of alcohol or any illicit substances

• Curfew

• Prohibited contact with any criminal-oriented peers

Dr. Rootenberg concludes his reports with risk management/treatment recommendations in the event of Mr. Ouedraogo’s release into the community including treatment that is based on the RNR principles and that he be highly supervised and prosecuted for minor infractions.

I. DR. ROOTENBERG’S VIVA VOCE TESTIMONY

[40] The Static-99R is widely accepted amongst experts in sexual violence recidivism as the leading actuarial tool for measuring the risk of recidivism. It measures static risk factors and gives rise to a score which correlates to risk of re-offence.

[41] Dr. Rootenberg originally scored Mr. Ouedraogo as a 3 which suggested that Mr. Ouedraogo posed a low to moderate risk of re-offending. Dr. Rootenberg, upon reconsideration, raised this to a 4 when he decided to retabulate the Static-99R, this time including the sexual assault of A.O. as a separate offence since it had become a registered conviction since the time of the first Static-99R assessment. Someone with a score of 4 presents a moderate to high risk of committing another sexual offence.

[42] Dr. Rootenberg was challenged on his decision to adjust the data input to the Static-99R. He agreed that the coding manual for the Static-99R only permits including other offences as separate offences where the offender, when committing a second offence has either been charged or convicted of the first offence, which was not the case for Mr. Ouedraogo. Dr. Rootenberg explained that there is some flexibility to the Static-99R coding and that, in any event, good risk assessment requires that the assessor take other factors into account that are not captured by the Static-99R.

[43] Dr. Rootenberg conceded that the general recidivism rate for sex offenders is lower than any other crime apart from homicide and that the average recidivism rate for 5 – 10 years after release from prison is between 10 and 15%. Studies have shown that the five-year observed recidivism rate for men who scored a four on the Static-99R is 7.7%. The 10-year rate is 13.8%. For violent sex offenders the recidivism rates are somewhat higher.

[44] Meta studies have demonstrated that very few of the classically identified

risk factors are truly correlated with sex-offender recidivism.

[45] Even though unadjusted actuarial methods are thought to be the most accurate predictors of recidivism, Dr. Rootenberg nonetheless believes that certain non-static factors not factored into actuarial methods must nonetheless be considered when evaluating the risk of recidivism in any particular case. He testified that while from a technical standpoint, actuarial testing may be more predictive per se, that doesn’t mean that they should be used to the exclusion of other risk measures such as victim characteristics and offender history. The vast majority of professionals in the risk assessment field use structured professional judgment in assessing risk, i.e., an approach that relies on static risk assessment and clinical judgment.

[46] The cardinal principle in risk assessment remains the maxim that past behaviour is the best measure of the likelihood and character of future behaviour.

[47] If Mr. Ouedraogo were to be released immediately there would be a moderate to high risk that he would reoffend.

J. DR. KRIEGMAN’S EVIDENCE

[48] Dr. Daniel Kriegman is a psychologist with a Ph.D. in clinical psychology. He practises in the state of Massachusetts. Among his many certifications he is a qualified examiner for evaluations of sexual dangerousness in Massachusetts. He has treated and evaluated over 1000 sex offenders and has testified over 500 times regarding recidivism and treatment.

[49] Dr. Kriegman was retained by Mr. Fennel. He supplied the court with an affidavit. He testified remotely from Newton, Massachusetts and was cross-examined.

[50] Dr. Kriegman did not offer any opinion as to whether Mr. Ouedraogo meets the LTO criteria, having never met him, nor reviewed any of the material pertinent to Mr. Ouedraogo. Rather, the purpose of his testimony was to explain the limitations inherent in the evaluation of the risk of sex offence recidivism generally.

[51] Data show that, contrary to common belief, of all the criminal offenders typically released after serving a prison sentence, sex offenders have the lowest rate of recidivism after murderers.

[52] Dr. Kriegman’s opinion can be summarized succinctly. In his view, only factors that have been empirically verified as contributing to risk should be considered in predicting the likelihood of future recidivism. There are only approximately 12-15 such factors. Moreover, most factors that are often considered in “structured professional judgment”, i.e., things like the offender’s upbringing, deviant sexual interests, drug use, expressions of remorse, insight, the character of the offence, etc. have been scientifically found not to correlate to risk of re-offence. Dr. Kriegman warns that reliance on clinical intuition in assessment of risk of re-offence is misplaced.

[53] As concerns the use of actuarial assessments like the Static-99R, without the use of clinical intuition, while more accurate than assessments involving clinical opinion, these actuarial assessments produce only limited validity of their own.

[54] It is worth quoting the conclusion in his affidavit:

In conclusion, in almost five decades of treating sex offenders, evaluating them for sexual dangerousness, and studying the research – the quantity of which has exploded in the last 15 years – it has become clear that experts simply have very little ability to predict sex offence recidivism accurately for individuals. It is not that future behavior is not predictable; people have been predicting one another’s behavior since there have been people. In some cases, fairly confident predictions can be made about how individuals will behave in the future. However, the ability of experts to improve predictive accuracy when using our most valid scientific findings is extremely poor. When these findings are modified by clinical judgment, accuracy is lessened and, when studied, has been found to be no better (and quite possibly worse) than predictions by lay people.

[55] Dr. Kriegman, when assessing the risk of recidivism, applies the Static 99-R, and factors in the recency of the offending behaviour, adjustment in prison, engagement in treatment, the offender’s own view of their sexual offending and the opinion of those who know the offender as to whether they think that the offender has changed their behaviour.

K. ANALYSIS

(a) Introduction

[56] In addressing the dangerous offender/long-term offender regime in the Criminal Code, the Court of Appeal for Ontario in R. v. G.L. clarified the approach to the balancing exercise between the state’s and the offender’s interests in the following manner:

…the overriding purpose of the dangerous and long-term offender regimes is the protection of the public. Thus, ‘real world’ resourcing limitations cannot be ignored or minimized where to do so would endanger public safety. The court is required on a dangerous offender application to balance the liberty interests of an accused with the risk to public safety that will arise on the release of the accused into the community. That balancing exercise is informed by this fundamental principle: in a contest between an individual offender’s interest in invoking the long-term offender provisions of the Code and the protection of the public, the latter must prevail. [emphasis added]

R. v. G.L., 2007 ONCA 548, [2007] O.J. No. 2935 (C.A.) at para 70; leave to appeal denied [2008] S.C.C.A. No. 39

[57] The Federal Court in Deacon v. Canada, 2006 FCA 265, [2006] F.C.J. No. 1153 at para 36 said this:

In my view, the purpose of the long-term offender provisions is therefore clear. An offender whose conduct or behaviour is not "pathologically intractable", in that there is a reasonable possibility that the offender can eventually reach a stage where, although not curable, his or her risk can be controlled in the community, will now qualify for long-term offender status. Under the former provisions, such an offender -- for example, a repeat sexual offender -- might have been found to be a dangerous offender. Long-term supervision orders thus pursue two main objects: first, protecting society, and second, enhancing the social reintegration of long-term offenders, whenever possible, by granting release under the least restrictive conditions consistent with the protection of society.

[58] The case law emphasizes that a long-term supervision order is not to be viewed by the courts as a punitive measure. Rather, its focus is to address the needs of the offender in the least restrictive and most comprehensive manner without sacrificing its main objective, the safety of society. R. v. L.M., 2008 SCC 31, [2008] 2 S.C.R. 163 at para 45-50; R. v. Archer, [2005] O.J. No. 241 at para 20-22.

(b) The Appropriate Sentence

[59] As concerns the appropriate sentence for the offences committed by Mr. Ouedraogo, I start by observing that, as the parties agree, Mr. Ouedraogo is to be treated as a first offender even though he has been convicted of other offences since committing the offences against B.H.

[60] The offences committed against B.H. are of the utmost seriousness. B.H. was no doubt terrorized by this attack. The principal goals in sentencing for an offence such as this sexual assault with a weapon are denunciation, deterrence, and protection of the public. R. v. Assing, 2008 58607 (ON SC), [2008] O.J. No. 4527, (ONSC).

[61] Applying the principles of sentencing in the Criminal Code, considering sentences meted out in similar cases and the circumstances of Mr. Ouedraogo, the appropriate sentence is one of six years. The sentences on the robbery and the disguise with intent will be two years on each to be served concurrently with each other and concurrent to the six-year sentence for the sexual assault with a weapon. The sentence on the fail to comply will be six months concurrent.[^2]

(c) Has the Crown demonstrated a pattern?

[62] There is no doubt that the two very similar violent sexual assaults committed by Mr. Ouedraogo four months apart constitute a “pattern of repetitive behaviour”. R. v. Langevin, 1984 1914 (ON CA), [1984] O.J. No. 3159 (C.A.); R. v. Dow, 1999 BCCA 177, [1999] B.C.J. No. 569 (C.A.) at pp. 10-11 ; R. v. Jones, [1993] O.J. No. 1321 (C.A.) at p. 3; R. v. Naess, [2005] O.J. No. 936 (S.C.J.) at para 61

(d) Does this pattern of repetitive behaviour show a likelihood of the offender’s causing death, injury or severe psychological damage?

[63] If the answer to this question is yes, the court, pursuant to s.753.1(2) has no discretion and “shall” be satisfied that there is a substantial risk that Mr. Ouedraogo will reoffend.

[64] What then, is the meaning of “likelihood” in s.753.1(2)(b)(i)? It clearly means more than a mere possibility. R. v. J.T.H., 2002 NSCA 138 at para. 50. Nor is likelihood synonymous with certainty. R. v. Langevin, 1984 1914 (ON CA), 45 O.R. (2d) 705 (C.A.).

[65] The words “likely” and “likelihood” pose difficulty in the English language. Sometimes we see these word accompanied by modifiers. Expressions like “somewhat likely”, “highly likely” and “strong likelihood” are confounding. Our intuition and language rules suggest that something that is “highly likely” is more likely to occur than something that is merely “likely”.

[66] In my view the word “likelihood”, standing alone, unmodified by any adjective such as for example substantial, slight, or significant, simply connotes “more likely than not”. To ask if there is a likelihood that an event will occur is the same as asking if that event is likely. If a person were to ask if Paul is coming to dinner, and that person were told that “it is likely he will be attending”, that person would take that as meaning that there is a better than even chance he will come. I find support for this conclusion in the concurring judgment of McDermid J.A. in R. v. Carleton, 1981 ABCA 220.

[67] After considering the evidence of Mr. Ouedraogo’s criminal behaviour, what I know about his history and psychological makeup, and the expert evidence, I am not satisfied that it is more likely than not that Mr. Ouedraogo will cause death, injury, or severe psychological injury to other persons.

[68] While the opinion of Dr. Rootenberg is that the risk of re-offence by Mr. Ouedraogo is moderate to high, he does not go so far as to opine that it is more likely than not that he will re-offend, much less more likely than not that he will re-offend such as to cause death, injury, or severe psychological injury.

[69] While I am extremely concerned by Mr. Ouedraogo’s burst of violent criminality and his anti-social traits, more about which I will refer to below, I am unable to conclude that the “likelihood of reoffence” threshold is met.

[70] As a result, the deeming provision that is s.753.1(2) does not operate and I must turn to the next issue.

(e) Has the Crown demonstrated that there is a substantial risk that Mr. Ouedraogo will reoffend?

[71] To answer this question, one must settle on the meaning of “substantial risk”. It is not defined in the statute, yet there is some jurisprudence on the issue.

[72] Wilson J. in R. v. A.N., [2002] O.J. No. 5026 (S.C.J.) said this:

The long-term offender provisions do not include a comprehensive definition of "substantial risk." To date, there is no case law interpreting what this means outside the context of a dangerous offender application because the cases have all arisen in the context of a prima facie finding that the offender is a dangerous offender, and the issue has been upon eventual control in the community.

To maintain the integrity of the dangerous and long-term offender proceedings, targeting a small group of particularly dangerous individuals, the meaning of “ substantial risk to reoffend" must be interpreted as having a high threshold.

In McLeod, supra at para. 31, Prowse J.A. makes it clear that the long-term offender provisions were meant to be broader than the dangerous offender provisions. However, for policy and economic reasons, long term supervision is still meant to be used only in relation to a small, well defined group of offenders who pose a real risk to the community.

Prowse J.A. cites the Report of the Federal/Provincial/Territorial Task Force on High Risk Violent Offenders: Strategies for Managing High Risk Offenders as a key factor in introducing the long-term offender provisions. The Report "stressed that there was a need for legislation to deal with some categories of offenders ... who do not meet the criteria of dangerous offenders, but, who, nonetheless, are capable of harming numerous victims as a result of their chronic criminal behaviour." The Report states that the success of such a scheme "rests on several key factors":

• The measure should be focused on particular classes of offender. The inclination to make long-term supervision widely available should be resisted as costly, unwarranted in most cases, and as contributing to "net widening". The target group, and thus the expectations of the scheme, should be well defined;

• The criteria should selectively target those offenders who have a high likelihood of committing further violent or sexual crimes but who would not likely be found to be a Dangerous Offender ... [emphasis added]

Dictionary definitions are not very helpful in this context. Furthermore, the judicial interpretations of "risk" or "substantial risk" tend to be found in insurance or family law cases, and are not applicable in this case. Tilley J., in R. v. Kreider (1993), 1993 16351 (AB CJ), 140 A.R. 81, did define substantial in a sentencing case, saying at 84, substantial "is synonymous with words like abundant, ample, considerable, large, plentiful, real, significant, sizable and strong." This reinforces the idea that in a criminal context, the word substantial must be interpreted as a high threshold.

The principles of statutory interpretation reinforce my conclusion. Re: Rizzo and Rizzo Shoes Limited, 1998 837 (SCC), [1998] 1 S.C.R. 27 at para. 21, the Supreme Court stated:

• Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.

There are two further rules of statutory interpretation, noted in R. v. Wust (2000), 2000 SCC 18, 143 C.C.C. (3d) 129 (S.C.C.) at para. 34, that are helpful in this context. First, provisions in penal statutes, when ambiguous, should be interpreted in a manner favourable to the accused. Second, where a provision is capable of more than one interpretation, the Court should choose the interpretation that is consistent with the Charter.

Based on these principles, I conclude that a high threshold is necessary in determining what is a "substantial risk." It must include the substantial risk of causing serious harm, usually in the context of harming individuals.

[73] On the other hand, Hill J. in R. v. Guilford, [1999] O.J. No. 4894 (S.C.J.) at para. 39 held that a substantial risk to reoffend is the equivalent of “a predictive likelihood of a recurrence of criminality on release from prison”.

[74] It is worth noting that Parliament has chosen not to use the term “substantial likelihood” in any of the long-term offender sub-sections, even though this term is widely used elsewhere in the interim release and mental disorder sections of the Criminal Code and in the Y.C.J.A. In the bail context this term has been interpreted by Trotter J.A. in Trotter on Bail, 3rd ed. as an “enhanced balance of probability standard”. Watt J.A. defined it as “significantly likely” in the bail context. R. v. Manasseri, 2017 ONCA 226 at para. 87.

[75] In the context of mental disorders and applications by the prosecutor that an accused be found to be a High-Risk Accused pursuant to s. 672.64, the term has been likened to “a high degree of probability”. Likewise in youth criminal justice matters. R. v. T.P., [2018] B.C.J. No. 3355 (B.C.P.C.); R. v. Schoenborn, [2017] B.C.J. No. 1721.

[76] With the greatest of respect to Wilson J. I believe that she has pitched the Crown’s burden too high as concerns the definition of “substantial risk”. If Parliament had wanted the threshold to be so high the term “substantial likelihood” would have been employed.

[77] Moreover, in my opinion “risk” is different from the simple measure of how likely it is that an event will occur. A substantial risk of a certain event occurring is not the equivalent of an event being “likely” to occur. In my opinion, where the chance of a future event occurring is less than 50%, the risk of the event occurring may nonetheless be substantial. Put another way, a “substantial risk” can connote a threshold chance of something occurring that is lower than the threshold described as “substantially likely”.

[78] For example, if a person boarding a flight to Europe were told that there was an 8% chance that the plane would crash, she would consider the risk of a plane crash to be “substantial” even though the likelihood of the event is only 8%.

[79] Turning back to the case of Mr. Ouedraogo, my review of the evidence of Mr. Ouedraogo’s criminal behaviour, what I know about his history and psychological makeup, and the expert evidence leaves me convinced beyond a reasonable doubt that there is indeed a substantial risk that Mr. Ouedraogo will reoffend both sexually and violently.

[80] I find that Dr. Rootenberg’s evaluation of the Static 99-R is reliable. It generates a moderate to high risk of reoffending before any other considerations are brought to bear. I also accept Dr. Kriegman’s observations as to how assessors must be careful not to rely on factors that have not been scientifically demonstrated to correlate with risk.

[81] Both doctors agree that the best indicator of future behaviour is past behaviour. And in this case, we have a man who, at a relatively young age and with no history of mental illness and no criminal antecedents, suddenly, over the course of just a few months, commits a host of criminal offences including two horrifically violent sexual assaults. His criminal spree suggests a complete lack of self-regulation. All this is exacerbated by the presence of several anti-social traits that I find are significant and independent of his criminality. The fact that he does not meet the strict criteria for an anti-social personality disorder (by virtue of a paucity of data) does not, in my view, detract from the relevance of these personality traits.

(f) Is there a reasonable possibility of eventual control of the risk in the community?

[82] Dr. Rootenberg’s opinion is that there is indeed a reasonable possibility of eventual control of the risk in the community.

[83] Counsel for both parties jointly submit that I should accept this opinion, and I do, even though I am somewhat troubled by how little evidence there is to suggest that Mr. Ouedraogo will be enthusiastic about taking advantage of the treatment he will be offered in the penitentiary.

L. CONCLUSION

[84] All the statutory criteria for a long-term offender designation have been met. I hereby designate Mr. Ouedraogo a long-term offender pursuant to s. 753.1 and order that

• he serve a total sentence of six (6) years; and

• he be subject to long-term supervision for a period of 10 years.

[85] I will hear from counsel regarding ancillary orders.

Released on March 23, 2023

Justice Russell Silverstein

[^1]: I draw no inference against Mr. Ouedraogo on account of his unwillingness to co-operate with the assessment.

[^2]: Defence counsel has specifically requested that I not consider Mr. Ouedraogo’s lengthy pre-sentence custody. Mr. Ouedraogo intends to use it in connection with other pending matters.