ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-11-10000130
DATE: 20120410
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN – and – DENNIS JAMES TAYLOR Defendant
Rachel Young, Deborah Krick , for the Crown
Ari Goldkind , for the Defendant
HEARD: October 11,12,13,14,17,19,20; November 1; December 19,20,21,22,2011; January 9,10,11,12,13, 2012
J. WILSON J.
REASONS FOR SENTENCE
The Dangerous Offender Application
[ 1 ] The Crown in this sentencing seeks a declaration that Mr. Taylor is a Dangerous Offender, and that he should be subject to an indeterminate sentence.
[ 2 ] The defence concedes that Mr. Taylor meets the criteria of a Dangerous Offender, but argues that the appropriate sentence would be a penitentiary term followed by a ten year Long Term Supervision Order.
[ 3 ] Mr. Taylor was convicted on March 1, 2011 in a trial before a jury of sexual assault and sexual interference of a five year old boy. Mr. Taylor was 50 years old at the time of the most recent offence. He has a thirty three year criminal record of prior convictions for sexual assaults against children. He was declared a Dangerous Offender when he was 31 years of age in 1990. He was sentenced to a determinate sentence of 9 years in custody for convictions of sexual assault against four different victims. He was released into the community in 1999 and was charged with the subject offence in August 2009.
Statutory Framework
[ 4 ] This offence occurred after July 2, 2008 and therefore the amended dangerous offender provisions in the Criminal Code (R.S., 1985, c. C-46, s. 753; 1997, c. 178, s. 4; 2008, c. 6, s. 42 ) apply to this application. The current applicable statutory provisions for this case are attached as Schedule A.
[ 5 ] As Mr. Taylor is a sexual offender, section 753(1) (b) of the Criminal Code applies. The Crown must prove beyond a reasonable doubt the following four elements stipulated in section 753(1)(b) of the Criminal Code for Mr. Taylor to be declared a dangerous offender:
• The offender was convicted of a serious personal injury offence as defined in subparagraph (b) of the definition of a serious personal injury offence in s. 752 of the Criminal Code ;
• The offender, by his conduct in sexual matters, has shown a failure to control his sexual impulses;
• The offender in the future is likely to show a similar failure; and
• The offender, through that future failure, is likely to cause injury, pain, or other evil to any person.
[ 6 ] The defence concedes that at the date of this sentencing hearing, the Crown has proved these four elements beyond a reasonable doubt and that Mr. Taylor is a dangerous offender.
[ 7 ] Once the Crown proves these elements beyond a reasonable doubt, I must declare Mr. Taylor to be a dangerous offender.
[ 8 ] Section 753(4) then applies to determine the available sentencing options. The court shall:
a) Impose an indeterminate sentence in the penitentiary ;
b) Impose a fixed sentence of incarceration followed by a long-term supervision order that does not exceed 10 years; or
c) Impose a fixed (determinate) sentence
[ 9 ] Section 753(4.1) confirms that the court shall impose an indeterminate sentence unless it is satisfied by the evidence adduced at the hearing that there is a “ reasonable expectation that a lesser measure under 753(4) (b) or (c) will adequately protect the public against the commission by the offender of … a serious personal injury offence” . [Emphasis added.]
[ 10 ] The defence acknowledges that a fixed sentence is not a viable option in this case, and seeks a fixed sentence followed by a 10 year long-term supervision order.
[ 11 ] The Crown has the onus of proving that Mr. Taylor meets the dangerous offender criteria. There is no dispute that this onus has been met. Once the preliminary onus is met, the onus is not upon the Crown to prove that Mr. Taylor cannot be controlled by a sentence less restrictive than an indeterminate sentence. Nor does the defence bear the onus of proof that the long term supervision order is sufficient to adequately protect the public. Rather, the issue before this court is whether based on the whole of the evidence adduced there is a reasonable expectation that a fixed penitentiary term followed by a 10 year long term supervision order will adequately protect the public. See: R. v. F.E.D., 2007 ONCA 246 , [2007] O.J. No 1278 (C.A.) at paras. 44 and 50 , leave to appeal to the S.C.C. refused [2007] S.C.C.A. No 568 .
[ 12 ] If I am not satisfied that this test has been met based upon the evidence, I am mandated by section 753(4.1) to order an indeterminate sentence.
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[ 426 ] I declare Mr. Taylor to be a dangerous offender sentenced to an indeterminate period of incarceration.
[ 427 ] When Mr. Taylor may be released into the community, he will require supervision and support for life. If and when Mr. Taylor will be ready for release into the community depends on him engaging in a meaningful way with a treatment program targeted to his needs, problems and abilities. In my view, his eligibility for release into the community cannot be based solely or primarily on the results of actuarial studies, as regardless of any efforts he may make while incarcerated, he will always be classified as high risk or at best moderate to high risk based upon his offence history. There must be meaningful incentive for Mr. Taylor to participate in a process of change to achieve release into the community.
[ 428 ] This is a unique case.
[ 429 ] The Crown has conceded, based upon all of the evidence, not that Mr. Taylor must be incarcerated for life, but rather that he must be sentenced to an indeterminate sentence to be supervised for life.
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J. Wilson J.
Released: April 10, 2012