COURT FILE NO.: CR
DATE: 2012-03-26
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty the Queen
D. Retterath, for the Applicant
Applicant
- and –
Thomas Middeljans
D. Brodsky, for the Respondent
Respondent
HEARD: December 12, 13, 14, 20 & 22, 2011
The Honourable Mr. Justice D. J. Gordon
REASONS FOR DECISION
INTRODUCTION
[ 1 ] On September 22, 1998, Thomas Middeljans was found guilty of one count of sexual assault on H.B., an 11 year male child at the time of the offence. Subsequently, Sills J., on June 6, 2000, granted the Crown’s application, designating Mr. Middeljans a dangerous offender and imposing a sentence of detention in a penitentiary for an indeterminate period.
[ 2 ] Mr. Middeljans served a notice of appeal as to conviction and sentence on June 19, 2000.
[ 3 ] The appeal was heard on November 8, 2007. The appeal as to conviction had been abandoned. The Court of Appeal overturned the decision of the trial judge and directed a new dangerous offender hearing. The appellate ruling was based on the lack of consideration of a long term offender designation, a Criminal Code provision enacted after the conviction of Mr. Middeljans but before his sentence date.
[ 4 ] Sills J. retired in April 2007 and, in result, I was assigned to the case.
[ 5 ] The application has been ongoing in this court since late 2008, following the granting of a production order in the Ontario Court of Justice on February 2, 2008. Ultimately, a hearing took place in December, 2011 and adjourned to March 26, 2012, for judgment.
[ 6 ] Mr. Middeljans, has been in custody since his arrest on February 10, 1996.
ISSUE
[ 7 ] As a result of the efforts and co-operation of counsel, the hearing was very focused. Mr. Brodsky, on behalf of Mr. Middeljans, conceded that Crown counsel, Ms. Retterath, was able to establish the statutory criteria for a dangerous offender designation. He also indicated his client was “high risk and high needs”. The evidence clearly supports such findings.
[ 8 ] Accordingly, the issue requiring determination is whether a long term offender designation and long term supervision order are appropriate. The ultimate question is whether there is a reasonable likelihood of eventual control of the risk Mr. Middeljans poses to the community.
FACTUAL BACKGROUND
[ 9 ] Ms. Retterath prepared a “chronology for Thomas Middeljans” that was filed, on consent, as an exhibit. Mr. Brodsky advised that the facts stated were correct. For the sake of convenience, the chronology is attached as Appendix “a”, appropriately amended to protect the identity of the child victims.
[ 10 ] There is no dispute, the predicate offence is a “serious personal injury offence”. Mr. Middeljans has a lengthy criminal record involving sexual offences with male children. He also admitted to several incidents that did not result in criminal charges. A pattern of behaviour has been established.
[ 11 ] Mr. Middeljans has spent the majority of his adult years in provincial correctional facilities or the federal penitentiary system. He has participated in a number of clinical assessments and has been involved in a variety of rehabilitative treatment programs while incarcerated.
[ 12 ] On the two prior court cases in 1986 and 1992, Mr. Middeljans was sentenced to three years. On both occasions, he served the full terms as directed by the National Parole Board. Mr. Middeljans had refused to fully participate in treatment programs and was repeatedly assessed as a high risk to re-offend.
[ 13 ] Mr. Middeljans was released from Warkworth Institution on January 8, 1995. On January 31, 1995, he entered into a one year recognizance on terms, pursuant to Section 810.1.
[ 14 ] Eight days following the expiration of the recognizance, Mr. Middeljans committed the predicate offence.
VICTIM IMPACT
[ 15 ] The crimes of Mr. Middeljans, as expected, have profoundly affected the many young victims. These children have suffered physically and psychologically. Consistent themes are seen in the victim impact statements, including fear, anxiety, embarrassment and loneliness. The emotional or psychological abuse inflicted on these young boys, and the resultant impact, is of great concern.
[ 16 ] At this hearing, Mr. Middeljans expressed an understanding as to the impact of his criminal conduct. He made similar comments in the past, such as at his sentencing hearing on November 5, 1986, when he said: "I realize what I have done to my victims, to the community and to myself in the past couple of years.... In the past I was young, I wasn't motivated, I was extremely embarrassed by my sexual problem, and I didn't know how to approach the issue. I am now aware, fully aware of my problem. I don't want it to happen again. I have hurt and messed up too many lives. I do want treatment and I am aware that there is treatment for me.... ”
1999 ASSESSMENT
[ 17 ] Following the finding of guilty, Sills J. granted an order requesting Stephen Hucker to conduct an examination and present an assessment report. Dr. Hucker's report was later delivered, dated October 15, 1999.
[ 18 ] During the assessment process, Mr. Middeljans again spoke of the need for a treatment program. In his report, Dr. Hucker made the following comment: "I asked him if he thought he needed medication and whether this had been discussed with him. He said that he knew about Provera and similar drugs but he stated that 'at this point, I don't know...I think I want to handle it a different way to medication...by talking it through”
[ 19 ] Dr. Hucker set out his forensic psychiatric opinion as follows:
(1) Mr. Middeljans is a homosexual pedophile with evidence of concurrent personality disorder and substance abuse history. (2) He has been exposed to well-run, state of the art treatment programs for sex offenders in the past but appears to have gained little from such exposure. He has not received treatment from sex-drive reducing drugs, which would be appropriate, and during my interview was resistant to taking them. (3) Other experts have regarded Mr. Middeljans as being at high risk to re-offend based on currently available statistical instruments. I agree from both the actuarial and clinical perspectives.
ASSESSMENTS
[ 20 ] On June 20, 2010, I granted an order directing an examination of Mr. Middeljans by Dr. Hucker, given his prior involvement. His subsequent assessment report is dated January 4, 2011.
[ 21 ] Mr. Brodsky subsequently retained Gary Chaimowitz to conduct an examination of Mr. Middeljans. This occurred in November and December, 2011. Dr. Chaimowitz delivered a report dated December 9, 2011.
[ 22 ] Dr. Hucker and Dr. Chaimowitz are well respected in the field of forensic psychiatry and have prior experience in dangerous offender hearings. They attended to provide opinion evidence.
[ 23 ] Mr. Middeljans co-operated with both psychiatrists in the assessment process.
[ 24 ] The current reports are similar in many respects to Dr. Hucker’s report in 1999. Dr. Hucker has serious reservations as to the ability of Mr. Middeljans to comply with a long term supervision order indicting that twenty-four/seven supervision may well be required given the lack of treatment and commitment. Dr. Chaimowitz expresses some limited optimism, conditional on the co-operation of Mr. Middeljans, participation in treatment programs and the use of medication.
i) Diagnosis
The psychiatrists agree on the diagnosis for Mr. Middeljans: homosexual pedophilia, substance abuse disorder and personality disorder not otherwise specified. Homosexual pedophilia is a lifelong disorder. There is no cure and individuals can continue to offend into old age. To some extent, Mr. Middeljans struggles to accept the diagnosis.
ii) Treatment Prospects
According to Dr. Hucker, treatment for a homosexual pedophile focuses on helping the individual prevent the expression of the orientation and the commission of an offence. Intensive treatment programs are available in the federal penitentiary system, less so in the in community.
The institutional records indicate that Mr. Middeljans has not taken complete advantage of the treatment programs available while incarcerated. In the recent assessment process, he told the psychiatrists his appeal was a greater priority. The explanation was not considered appropriate, Dr. Chaimowitz, for example, saying “...the lack of engaging in treatment of his pedophilia impulses during the sentence does talk loudly towards motivation and insight.”
Dr. Hucker does not consider Mr. Middeljans a good candidate for treatment. He says Mr. Middeljans has some insight as to his behaviour and the need for treatment; however, there are limitations given the justification and rationalization he expressed for his conduct. Dr. Hucker refers to Mr. Middeljans’ history as revealing a difficulty in living within expected limits of responsible behaviour. History, Dr. Hucker says, is a good indicator of future conduct and, hence, little confidence can be expressed in Mr. Middeljans changing.
In his report, at p. 23, Dr. Hucker goes on to say: “Mr. Middeljans is very disclosing of having engaged in multiple types of deviant sexual behaviours involving multiple victims. He has been charged with a sexual offence more than once and has been in treatment for sex offending behaviour earlier in his life. However, he still lacks a full awareness of the behaviours which precede committing his offence behaviour and still has thinking errors which keep him from accepting accountability for his sexual assaults. He still has attributes, behaviours and sexual attitudes similar to those of known sex offenders and the condition of sex deviance may be a component of his personality make-up.”
At the hearing, Crown counsel and Dr. Hucker had this exchange:
Q. And what is your opinion, sir, about his attitude and behaviour changing in the foreseeable future...
A. Well I...
Q....in terms of amenability to – to treatment, etcetera?
A. Very hard to assess it. I mean all we’ve got to go on is quite a lengthy history of opportunities that he hasn’t taken and ambivalence, as I’ve said, about the whole process of treatment so that he – he would essentially be starting from scratch if he were to do it. I mean we just – we just can’t rely on anything we see to say, yeah, there’s been a definite change here.
Q. You say – your final statement – sentence, I agree with the National Parole Board that there are no resources in the community which would be able to adequately and reliably manage his risk.
A. Right.
Q. Is that your opinion?
A. Yeah. Unless something changed, that would be the state. And – and as I said, we’ve got no evidence of anything having changed that much to be able to – to make any other comment. I think he – they – they were concerned about him being in the community and he – he needs a lot more resources than – than will be likely to be – to be given. You – you can’t be with a person 24 hours a day. If you need 24 hours a day to keep an eye on what a person’s doing that’s not something that’s compatible with community supervision order. So I – I think that’s the big dilemma with Mr. Middeljans is that he – he at this point is a high risk and hasn’t had any kind of extended treatment that he’s fully cooperated with and the medical treatment which might reduce his risk to a manageable level is something which we can’t really predict how it’s going to be. He’s – as I said he – he was ambivalent even at that recent – at that recent interview, or most recent interview, I should say. It’s not that recent now but...”
Dr. Chaimowitz expresses limited optimism regarding the success of treatment for Mr. Middeljans. At pp. 34-35 of his report, he says: “When one looks at treatment potential in individuals with these types of difficulties, one looks at past history of treatment and current approach to treatment. Certainly absent treatment, and this is based on past history which I believe in Mr. Middeljans’ case is probably the most robust predictor of future behaviour, Mr. Middeljans will reoffend in a similar fashion, i.e. a homosexual pedophilic crime. Despite whatever good intentions he might have or articulate while incarcerated, his sexual drive, impulsivity and poor decision-making will ultimately lead to future offending. He is likely to also engage in Substance Abuse that will facilitate the offences through disinhibition and worsening of judgment.
Mr. Middeljans has been offered sex offender treatment on several occasions and essentially has relatively poor pickup on that. Certainly his approach to treatment and accessing treatment in the last period would suggest some lack of motivation.
Another more powerful treatment intervention would be to provide Mr. Middeljans with medications to reduce his sex drive. Mr. Middeljans is clearly not that interested in those medications, although I believe if they became critical to him avoiding a Dangerous Offender designation, he might agree.
There is some indication that while monitored and while in some form of treatment, Mr. Middeljans has some reasonable prospect of curtailing or not engaging in sexually inappropriate behaviours. If on medications with a reduced sex drive, I think that potential is certainly a realizable one. He has a history of staying out of trouble while being monitored in the community, albeit relatively briefly. However once a Long Term Offender designation expires, it is my opinion that Mr. Middeljans will stop the medications. Given his statements about wishing to avoid medications to pursue a heterosexual adult relationship there does not appear to be any indication that he will continue treatment at that time. The prospects then are that at the end of his determinate sentence, Mr. Middeljans’ risk of future homosexual pedophilic offences would once again increase.
However if the court determines that he meets the Long Term Offender requirements, risk reduction strategies as listed in Dr. Mamak’s report would apply.
It is my opinion that Mr. Middeljans has certainly made some gains in the last several years. He appears to be more open about talking about his offences, and his inappropriate and high-risk sexual drive. There however remain concerns that once the monitoring and any medication use that may assist in controlling the risk that Mr. Middeljans poses while in the community expire, Mr. Middeljans’ risk of sexual recidivism will once again increase to the point of significant risk to the community.”
Dr. Hucker also addressed the use of sex drive reducing medication. Such, he said, can reduce the re-offence rate to ten percent, but requires the co-operation of the individual and can cause significant side effects. Dr. Hucker made reference to the ethical issues such as the inability to force people to take medication. Monitoring can also be problematic.
Dr. Hucker spoke to Mr. Middeljans about the use of medication, as he had in 1999. Mr. Middeljans remained ambivalent, preferring to approach his problems in his own way. Dr. Hucker said such a response likely predicts how Mr. Middeljans would respond to a treatment program involving medication.
iii) Risk Assessment
Mr. Middeljans has acknowledged being a “high risk and high needs” individual.
The actuarial assessments of risk place Mr. Middeljans in the highest risk level to re-offend. The psychiatrists’ report the risk scores to be high across the board. Their clinical assessments reach similar conclusions.
MANAGEMENT IN THE COMMUNITY
[ 25 ] When a long term supervision order is granted, that National Parole Board will establish the appropriate supervision terms, taking into account any recommendations of the court. Correctional Service Canada would be responsible for the supervision.
[ 26 ] Braden Whilsmith, an area director for Correctional Service Canada, testified. He has not been involved with Mr. Middeljans. The purpose of his attendance was to identify the role of Correctional Service Canada and the structure and resources available for management and supervision of long term offenders in the community.
[ 27 ] Correctional Service Canada does not provide supervision on a 24:7 basis. If that is the level required, Mr. Whilsmith advised that supervision could only occur inside the penitentiary.
[ 28 ] Following release, offenders are normally placed in a halfway house operated by Correctional Service Canada or a community resource facility. The former is the preferred setting for a long term high risk offender who is in need of ongoing treatment. Mr. Whilsmith advised that such resources are limited and a bed may not be available. Community resource facilities, as well, are not required to accept a particular offender.
[ 29 ] High risk offenders normally meet with a parole officer twice weekly. Daily contact with someone in authority is common in a Correctional Service Canada halfway house. Contact in a community resource facility is less frequent.
[ 30 ] A parole officer monitors the offender’s compliance with release and supervision terms, such as curfew and attending treatments programs. A psychiatrist’s treatment plan is a common term. Mr. Whilsmith advised that the National Parole Board does not impose a condition involving the use of a particular medication. There may be ethical issues, as Dr. Hucker also mentioned. Urinalysis is often used to monitor alcohol or drug use.
[ 31 ] Breach of a term does not result in revoking the release of a long term offender. The offender may be charged; otherwise, a release may be suspended for a non renewable period of 90 days.
MR. MIDDELJANS
[ 32 ] Mr. Middeljans testified. Given his unusual comments during cross-examination, the following portions of the transcript are helpful:
i) Release
Ms. Retterath: Q. And when it comes to going out in the community, your safety – your risks to the community, I suggest to you, have increased.
A. Yes. They’ve – they’ve increased but I – I don’t wish to be released to – in the community fresh.
Q. Pardon me?
A. I don’t – I don’t wish to be released in the community, just put out in the community.
Q. Mr. Middeljans, what kind of possible plan would you have for yourself if you were released to the community?
A. Well as I just said I – I don’t really wish to be released in the community at this point.
Q. Mmhmm.
A. I don’t think that I’d be able to make it. So what I see is some form of sentencing that would permit me to be in a place where I could get treatment. When I – when I committed this offence, and I don’t know if this is the appropriate time to say it but it’s necessary, there’s a – a great deal of guilt because of what I had done. There was a – a desire there to want to speak to the victim and – and let them know that I committed this assault on them and apologize.
Later on in my sentencing – or late on in my – in my incarceration when I turned about 40, again I had an opportunity to – to speak to somebody about changing my – my plea somehow so I – I spoke to a chaplain and I let that person know at the time that I had committed a sexual assault and that I wanted to have her, if it was possible, be some kind of mediator between me and my parole officer so that I could discuss that with her. At the time then I had virtually given up on my appeal. I had written a letter to somebody hoping that they would help me and I never heard anything from them so I assumed that – that the – the appeal was never going to be heard. So when it – when I got a letter finally three years after the fact that I had written this person, it was a surprise. But the appeal isn’t – isn’t about – for me it’s not about getting out. It’s about correcting a wrong.
Q. You believe that?
A. At this point?
Q. Yes.
A. Yes.
Q. The appeal’s about correcting wrong?
A. Yeah. Correcting the wrong that I...
Q. What wrong?
A. My wrong.
Q. And how is the appeal correcting your wrong?
A. I don’t see it as the appeal correcting my wrong. I see it as me having an opportunity to say that I’m accountable.
Q. I see. And be – being in the community under community supervision would be your way of saying I’m accountable?
A. No. I think you’re missing the point.
Q. I am, I guess.
A. The point – the point has never been about me getting out...
Q. No?
A....for me.
Q. What is the point?
A. The point is – is to publicly say that I’ve committed a sexually (sic) – a sexual assault on – on my victim. It’s not about – I – I’m prepared to abandon the appeal ‘cause I don’t – I don’t think it’s necessary for me to be released. I’ve done what I needed to do here today.
Q....before we broke for lunch you said certain things about how you felt about proceeding with this case.
A. Yes, I did.
Q. After lunch, have you changed your mind in any way?
A. No, I haven’t.
ii) Taking Medication
Q. I’ll find that page for you. Just about the question of medication and treatment at page six, and this is as I said August 30 th ’99 and you – you remember meeting with Doctor Hucker at that time?
A. Yes.
Q. In the original proceeding? And he talked to you about going to treatment and you said you believed that relapse prevention is a big thing and would like to participate – have the opportunity of participating in Warkworth Clinic again. That’s what you said to him then. And that your attitude had changed between the first time you were there and the last time and you think that it will change some more. You said those things to him?
A. I – I may have said that.
Q. Yeah.
A. yes.
Q. And that document was presented in court and Doctor Hucker then testified in court. And I won’t dwell on it but you agree with me that your – in fact when you went back to Warkworth you didn’t – you didn’t get treatment. Right? We’ve already talked about that.
A. That’s correct.
Q. You’re nodding yes. That you – you – you’re agreeing with me?
A. That’s right.
Q. Okay.
A. Yes, I am.
Q. And then the next matter is Doctor Hucker said I asked him if he thought he needed medication and whether this had ever been discussed with him and he reports, quote, he said that he knew about Provera and similar drugs but stated, quote, at this time I don’t know, I think I want to handle it a different way to medication by talking it through, unquote. And that was your position then in 1999?
A. Right.
Q. Clearly you knew a bit about Provera then?
A. I – I knew of – of the terminology of that particular medication...
Q. Yes.
A....from – from being told about it when I was at OCI. Yes.
Q. Yeah. Okay. And we talked about it quite a bit in court, didn’t we, when Doctor Hucker testified? He talked quite a bit about – and I won’t go into all the pages of evidence where the whole thing about medication was discussed but you recall that that was something that was talked quite a bit about at the – at the hearing then about medication and how that can help?
A. Yes.
Q. Right? So Doctor Hucker seemed to be pretty impressed with what it can do. Right?
A. Yes, he did.
Q. Okay. And then you did see Doctor Hucker again and – and he wrote – he wrote the report. You saw him last year?
A. Yes, I did.
Q. And you talked to Doctor Hucker again about medication?
A. Yes, I did.
Q. And your attitude basically was – was the same? You weren’t really that interested in medication. Right?
A. I had mentioned to him at that time not so much that I wasn’t interested but that I – I haven’t been educated on – on the medication that he had – had suggested.
Q. Okay. All right. Well Doctor Hucker talked about that in his evidence yesterday?
A. Mmhmm. Yes.
Q. And certainly one got the impression – you heard him testify that he didn’t think you were – you would be able to commit to medication?
A. That’s what he said. Yes.
Q. Yeah. And do you agree that you wouldn’t have been able to commit to medication at that point?
A. At that time? I would have considered it.
Q. Okay. All right. And then your own defence psychiatrist, Doctor Chaimowitz, according to his report that was made an exhibit...
Q. And I’m referring you now to page 34. The bottom of the page 34 it says another more powerful treatment intervention would be to provide Mr. Middeljans with medication to reduce his sex drive. Mr. Middeljans is clearly not that interested in those medications although I believe if they became critical to him avoiding a dangerous offender designation he might agree. Do you think that’s a fair description of what you said to him?
A. I also said to him that I – I may be willing to try it.
Q. You may be willing to try it?
A. Yes.
Q. Okay. Not that committed.
A. I think it depends on – on – on a couple of things. One thing I think it would depend on is it’s been –it’s been quite a – it’s been quite a substantial amount of time since I’ve been phallometrically tested.
Q. Mmhmm.
A. I think that it’s possible that the – the – the – the dosage of – of the medication I think may depend on how I – how I – how I reach phallometrically towards deviant...
Q. Mmhmm.
A....material. So it – it would depend – I think it would probably – I would like to probably be tested again to see whether or not I – I’m actually responding deviantly in those areas that I once responded in
Q. Are you suggesting that maybe you’re not a homosexual pedophile?
A. No, I’m not.
Q. Okay.
A. I’m not suggesting that t all.
Q. All right
A. What I am suggesting that it’s possible that – that – that – that it – it’s possible that that – that I may or may not respond as I did in the past.
Q. And I guess my – I’m not getting it. You need – I need you to explain this to me. How does that make a difference how you are phallometrically responding? How does that make a difference to – with regard to your medication?
A. Well I think that it – it depends on the dosage.
Q. I see. Okay. So depending on the dosage that you would be prescribed, you may or may not agree to take it?
A. No, I’m not – I’m not saying that. I...
Q. Okay.
A....I’m saying that – that I think that the doctor would need to see what that – where that deviance level is before he prescribes a dosage.
Q. Okay. But how does that make a difference in terms of your commitment to taking it?
A. It doesn’t make a difference. I would...
Q. Okay.
A. I would take it.
Q. I just – you’re the one who brought it up so I’m just trying to understand what you said...
A. Yes.
Q....when you said that depends.
A. Yeah. No, I would – I would definitely take it.
Q. Okay. So why did you say that depends?
A. I think it’s – has also to do with education. You know I – I would like to be – Mr. Hucker...
Q. Doctor Hucker.
A. Doctor Hucker. Sorry. Was explaining that in some cases in men that are – are going to be prescribed that medication and may have some misgivings about it...
Q. Right.
A....or misunderstandings about it, that they would talk to other – other offenders in the community, or other offenders wherever they are, to find out what – what their reaction to that medication is like. I haven’t had that opportunity and you know there are some things that I would like to discuss with them.
Q. Okay. So you’d want to get advice from other offenders in the community...
A. Not...
Q....or...
A....not so much advice but information.
Q. Information. Well I have a question for you. You got this information about the medication, Provera. You got this medication – a kind of medication. You got information about it in 1999. You were in a prison population from 2000 to 2007 at federal – doing federal time, federal – I’m sorry, a federal sentence and then you were at another detention – another custodial facility at Maplehurst.
A. Yes.
Q. From 2007 to the present time. I’m going to suggest to you that you had lots of opportunities to talk to other people about this.
A. Well quite frankly, on the contrary. I mean if – if – you – you have – you – you must consider that the conditions that I was in. I mean, the environment that I was in. If I go around asking other inmates about that kind of medication I would be putting them at risk of exposing themselves as sex offenders.
Q. Okay.
A. And I would also be exposing myself as a sex offender. In – from the way that I’ve understood doing any kind of sentence, you never ask what a person’s in for or how much time they’re doing. So...
Q. Okay.
A....your reasoning there is...
Q. All right. You know, I always heard that when you’re in custody people – it’s like a drumbeat. Everybody knows about – about you, like why you’re there.
A. That’s not always true. No.
Q. Okay. Are you saying it wasn’t known by other people that you were in there for sex offences?
A. If – if they knew, they never said anything.
Q. I see. All right. So given what you just said, how would you get this information from other people now?
A. I don’t know. I think that maybe a – a – a doctor of some sort, some kind of professional would have to bring that person to me.
Q. I see. You wouldn’t do anything to sort of bring it about yourself?
A. I would ask maybe for a professional...
Q. Okay.
A....to do that.
Q. All right. ‘Cause Doctor Hucker, as – as I understood his evidence yesterday was indicating that offenders would speak to each other about these things.
A. I think that given the setting, they may.
Q. Mmhmm.
A. I – I’m not going to assume that Doctor Hucker was – was talking about offenders speaking to each other in a treatment setting but that seemed to be the case, that they – they were at a CCC where I think that there was probably more of an opportunity for them to speak.
Q. I see. And then at that point, you’d already be out in the community. Right? At a CCC which is...
A. I’m not...
Q....which is out in...
A....suggesting that – that I – I would be in a position to do that. I mean I think that maybe something like that should be available to me before I go there.
Q. So you could weigh your options. Right? Make those decisions about what it would mean for you?
A. So that I could be clearer on the decision of taking the medication.
Q. All right.
A. I mean, if a person has cancer...
Q. Mmhmm.
A....they would probably want to know everything about chemotherapy...
Q. Absolutely.
A....before you know they took that step.
Q. I guess my problem in understanding this, Mr. Middeljans, is that you talked to somebody about it at OCI on two different times, to Doctor Davidson. You talked to Doctor Hucker about it. You – you heard a lot of evidence about it at your dangerous offender hearing in 1999 and 2000. There was a lot of talk about that. You were in custody after that. You were approached several times by people wanting you to take treatment and you wanted to weigh your options and wait to the appeal. You made that decision yourself. And you talked to Doctor Hucker about it last year, in August of last year. And you talked to Doctor Chaimowitz about it when you met with him on November the 23 rd and December the 3 rd. And I think you got the message that this is a pretty important aspect to your treatment. Right?
A. It’s an important aspect to my treatment.
Q. Yeah.
A. I – I agree to that.
Q. Yes.
A. But I think that there’s a difference between having a conversation about medication the way that you’re describing it as opposed to them just bringing me (sic) up in conversation and saying have you thought of this?
Q. Okay.
A. And then giving me a list of side effects but not really disclosing anything more.
Q. Well you knew what...
A. And that’s...
Q....it was for. Right?
A. Yes, I knew what it was for...
Q. And you knew...
A....but I wasn’t...
Q....what it does?
A....informed entirely.
Q. Okay. You know what it does?
A. I – yeah, I have an understanding of what it does. Yeah.
Q. Okay. And Doctor Hucker talked a bit about what it does?
A. But it’s the side effects that I was...
Q. Sure.
A....that I needed to be educated on, I think.
Q. Yeah. All right. So you didn’t want to risk for yourself making a commitment, a firm commitment to medication? You want to get more information? I just want to let the record show there’s been a very, very long pause.
A. Yeah. Well it’s important to think about these things...
Q. Right.
A....I think. Yes, I would agree with that.
Q. Okay. The problem, I’m going to suggest to you, Mr. Middeljans, is for the court, at least up until now, up until just before lunch, you are asking His Honour to make a decision weighing the risk that you present to the community, particularly victims in the community, and assessing whether or not that can be reduced to an acceptable level. Right? That’s – we’ve – we’ve heard that right from the beginning, from your lawyer, that that’s what this hearing is all about, whether the risk that you present to the community can be reduced to an acceptable level.
A. Right.
Q. But in this application you’re still pondering, thinking about the risks to you and – in terms of the – that – that might be presented in terms of the medication. Right?
A. Yes. I need – I think that I need some more information.
[32] As he had done at prior sentencing hearings, Mr. Middeljans read a prepared statement accepting responsibility for his conduct, apologizing to his victims and promising to do what was necessary to prevent re-offending.
[ 33 ] During examination – in – chief, Mr. Middeljans admitted being a child molester. He said he recognized the need for intensive treatment and that he would participate. Taking any prescribed sex drive reduction medication as prescribed by a psychiatrist would occur, although the commitment by Mr. Middeljans was conditional when asked in cross-examination as seen above.
ANALYSIS
[ 34 ] Mr.Middeljans has conceded that Crown counsel has met the burden of proof regarding the statutory criteria for a dangerous offender designation as set out in Section 753(1)(a) or (b). Indeed, the evidence supports findings under both sub-sections. I so find.
[ 35 ] The focus of this case is with the long term offender and long term supervision provisions in Sections 753.1 and 753.2. I must decide whether to exercise my residual discretion by designating Mr. Middeljans a long term offender, not a dangerous offender. The issue is whether a long term supervision order would reduce the threat to the public to an acceptable level. See R. v. Johnson, 2003 SCC 46, [2003] 2 S.C.R. 357 (S.C.C.), at para. 29; and R. v. F.E.D., 2007 ONCA 246, 222 C.C.C. (3d) 373 (Ont.C.A.), at para. 52.
[ 36 ] There is no burden of proof on the Crown to prove the risk posed by Mr. Middeljans cannot be controlled in the community. There is no burden on either party. Rather, I must be satisfied on the basis of all of the evidence that there is a reasonable possibility of managing, in the community, the risk of Mr. Middeljans to re-offend. See and R. v. F.E.D., supra, at paras. 53-55.
[ 37 ] In this regard, there must be actual evidence on the issue, not merely a hope that treatment will succeed or speculation as to reducing the risk to an acceptable level. See R. v. Higginbottom, 2001 3989 (ON CA), [2001] O.J. No. 2742, 156 C.C.C. (3d) 178 (Ont. C.A.) at paras 24 and 26; R. v. McCallum, 2005 8674 (ON CA), [2005], O.J. No. 1178, 201 C.C.C. (3d) 541 (Ont. C.A.) at para. 47; and R. v. R.M., 2007 ONCA 872, 228 C.C.C. (3d) 148 (Ont. C.A.) at para. 53.
[ 38 ] Offenders who cannot satisfy the requirements within the long term supervision timeframe allotted by Parliament should be declared dangerous offenders and be given an indeterminate sentence. See R. v. D.V.B., 2010 ONCA 291, 254 C.C.C. (3d) 221 (Ont. C.A.) at para.s 57-58.
[ 39 ] Mr. Brodsky suggested the following conditions be recommended to the National Parole Board:
• Mr. Middeljans should reside for a suitable period of time when released into the community in a supervised residential facility and abide by the rules of the facility until such time as the Supervisor or designate determines that he is able to manage in a less supervised setting and reintegration into the community ought to be done gradually.
• Mr. Middeljans should reside at an address approved by his LTSO supervisor or designate.
• Mr. Middeljans should access and complete a wide variety of programs during a period of non-community-access, including but not limited to cognitive skills, and programs to deal with antisocial attitudes. He should also be assisted in accessing vocational programs to assist him with any eventual transition to the community.
• Mr. Middeljans should undergo sex offender treatment programming, both while detained and upon a gradual release into the community.
• Provision for treatment with an anti-androgen medication, such as leuprolide acetate.
• Mr. Middeljans should be required to abstain absolutely from the consumption and possession of any form of testosterone, or androgen drugs.
• Mr. Middeljans should be prohibited from having unsupervised contact with anyone under the age of 18 years of age unless approved by his LTSO supervisor or designate.
• Mr. Middeljans should be required to attend treatment programs for alcohol and/or substance abuse and once out in the community, provision for the monitoring of his compliance.
• Mr. Middeljans should be required to participate in relapse prevention programming.
• Mr. Middeljans should be required to abstain absolutely from the consumption of alcohol and any substance defined in the Controlled Drugs and Substance Act unless prescribed by a physician or approved by his LTSO supervisor or designate.
• Mr. Middeljans’ whereabouts should be subject to verification as CSC deems appropriate.
• If Mr. Middeljans enters into a further intimate relationship, that partner should be contacted by his LTSO supervisor and should be fully informed of Mr. Middeljans’ history and risk factors.
• Mr. Middeljans should be prohibited from having contact with criminally-oriented or substance-abusing peers outside of correctional facilities.
• Provision for ongoing psychiatric follow-up including use of cognitive-behavioural treatment and/or psychotropic medications.
• With respect to any counselling, treatment or support programme that Mr. Middeljans is attending pursuant the LTSO and with respect to any medications he is receiving pursuant to the LTSO; Mr. Middeljans should be required to sign any documents requested by his supervisor or designate that will allow for monitoring by the supervisor or designate of compliance with the LTSO.
• Mr. Middeljans should be required to take all reasonable measures to obtain lawful employment and/or to attend educational or training development courses and be required to advise his LTSO supervisor or designate of his place of employment, education or training.
• Mr. Middeljans should be encouraged to become involved with COSA.
[ 40 ] There has been some success in other cases where the Circle of Support and Accountability group has been involved. No evidence was tendered as to whether the Circle would accept the invitation to work with Mr. Middeljans and, if so, on what basis. See R. v. W.E.J.M., 2009 ONCA 844 (Ont. C.A.)
[ 41 ] Mr. Middeljans has been diagnosed as a homosexual pedophile. The psychiatrists report this to be a lifetime disorder. There is no cure but, in some circumstances, the condition may be controlled. Treatment potential is of vital importance when considering managing the risk in the community or reducing the threat to an acceptable level.
[ 42 ] Several themes, otherwise considered as concerns for treatment success, result from the evidence of Dr. Hucker, Dr. Chaimowitz, and Mr. Middeljans,
namely:
(a) institutionalization;
(b) ambivalence; and
(c) manipulation.
[ 43 ] The psychiatrists report Mr. Middeljans to be of average intelligence. I accept their finding. Mr. Middeljans’ formal education was limited; however, his knowledge of the criminal justice system and the issues in this case reveal an informal gathering of knowledge. Mr. Middeljans also knows the expected answers, as his father reported some years ago.
[ 44 ] Mr. Middeljans has been in custody on this charge since his arrest in 1996. His incarceration was at a provincial reformatory and a federal prison. He has now spent the majority of his adult life in custody.
[ 45 ] In my view, Mr. Middeljans has become institutionalized. Such can be seen from his responses, and in the manner of giving responses to the questions of counsel. He has adapted to a lifestyle that will become difficult to change. This presents obvious issues in terms of release and treatment, more so in this case given that the time in custody already exceeds the maximum sentence as hereafter discussed.
[ 46 ] Ambivalence was referred to by the psychiatrists, particularly regarding treatment plans. Despite Mr. Middeljans’ purported commitment to treatment in the past, and the present, Dr. Hucker pointed out the lack of participation and refusal to accept opportunities. Dr. Hucker does not see the required commitment from Mr. Middeljans. Treatment success, the doctor says, is dependent on active participation.
[ 47 ] Dr. Chaimowitz felt there was some changes in Mr. Middeljans’ commitment level. Any optimism regarding success, though, is conditional on Mr. Middeljans’ willingness and cooperation. Dr. Chaimowitz questions the motivation.
[ 48 ] The institutional records reveal a consistent lack of commitment and co-operation by Mr. Middeljans. He has had numerous opportunities to participate in treatment programs but declined to do so. As the psychiatrists report, this history does not lead to any confidence of meaningful participation in the future.
[ 49 ] Ambivalence is now a greater concern given the recommendation of both psychiatrists regarding the use of sex drive reducing medication. Mr. Middeljans has been aware of this issue since at least 1999. He now says more information is required. Mr. Middeljans has had ample opportunity to obtain further information and make a decision. It is not acceptable for him to delay his decision until after being released.
[ 50 ] Ambivalence leads into manipulation. Perhaps due to his institutional environment, and the availability of peer advice, Mr. Middeljans is obviously manipulative.
[ 51 ] Institutional and medical records along with transcripts from prior court proceedings reveal the same scripted message from Mr. Middeljans. Acknowledging conduct, apologizing to victims and promises to participate in treatment programs lack sincerity when follow through does not take place. It also raises the question as to his sincerity and understanding. Is he still attempting to justify his actions as Dr. Hucker recorded?
[ 52 ] I am not persuaded that Mr. Middeljans has accepted the recommended treatment plan. He attempted to convince psychiatrists and others in the past, with some success. Mr. Middeljans attempted to demonstrate sincerity in this proceeding, with less success. In my view, Mr. Middeljans is simply attempting to manipulate the process in order to gain his release.
[ 53 ] Psychological testing has consistently placed Mr. Middeljans in the highest range as to the risk of sexually re-offending.
[ 54 ] Dr. Hucker identified significant concerns as to the treatment plans, particularly if occurring in the community and not in prison – Dr. Hucker concludes the risk cannot be managed in the community at this time.
[ 55 ] Dr. Chaimowitz does not disagree with Dr. Hucker in this regard. His opinion is conditional, requiring the co-operation of Mr. Middeljans. Dr. Chaimowitz points out the historical limitations impacting any optimism for future compliance. In my review, I see both psychiatrists raising the same concerns.
[ 56 ] Dr. Chaimowitz went further. He opines that Mr. Middeljans will stop using medication on expiration of a long term supervision order. That, he says, would again increase the risk to re-offend.
[ 57 ] In result, I am not satisfied the risk can be controlled in the community at this point in time. Mr. Middeljans is essentially untreated. If released now, it is a virtual certainty that Mr. Middeljans will re-offend.
[ 58 ] Simply put, Mr. Middeljans is not ready for release into the community, even to a halfway house. Even Mr. Middeljans agrees, saying a hospital setting is more appropriate.
[ 59 ] One problem at present is the time already served by Mr. Middeljans. It is approximately 16 years. The maximum sentence under Section 271 is 10 years.
[ 60 ] In this regard, Mr. Brodsky, in a most persuasive submission, suggested imposing a custodial sentence of 2 years, so as to allow for an intensive sex offender treatment program, before releasing Mr. Middeljans on a long term supervision order. To do so would give little to no credit for time served.
[ 61 ] This is an unusual case given the delay. Nevertheless, I am not prepared to discount time served to the extent requested. Credit must be given, in my view, to actual time served.
[ 62 ] Accordingly, a long term offender designation would result in immediate release. That is unacceptable. Protection of the public, particularly children is a paramount consideration.
[ 63 ] Mr. Middeljans needs to actively participate in a sex offender treatment program, including, if prescribed sex drive reducing medication, before any decision may be made for his release. A dangerous offender designation and indeterminate sentence allows such to occur.
[ 64 ] In this regard, an indeterminate sentence is not in perpetuity. Successful treatment may warrant future release as determined by the National Parole Board. See R. v. Walker, 2000 16974 (ON CA), [2000] O.J. No. 4091 (Ont. C.A.), at para. 10.
[ 65 ] The evidence does not support a long term offender designation. The risk of Mr. Middeljans re-offending is far too great.
[ 66 ] In result, the application of Crown counsel is granted. I declare Mr. Middeljans to be a dangerous offender and impose a period of indeterminate detention in a penitentiary.
Gordon, J
Released: May 14, 2012