ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 10-100000700-0000

DATE: 20130201

BETWEEN:

HER MAJESTY THE QUEEN

– and –

PAUL GIBSON

Karen Simone, for the Crown/Applicant

Linda Choi, for the Accused/Respondent

HEARD: January 7-11, 2013

M.A. CODE j.

REASONS FOR JUDGMENT

A. INTRODUCTION

[1] These are my reasons for judgment on a dangerous offender Application brought by the Crown pursuant to s. 753 of the Criminal Code. I convicted the accused Paul Gibson (hereinafter, Gibson) of sexual assault and sexual assault causing bodily harm on February 13, 2012. My reasons for conviction can be found at R. v. Gibson, 2012 ONSC 900.

[2] It took almost eleven months from the date of conviction to the date when the dangerous offender Application proceeded, on January 7, 2013. Gibson remained in custody throughout this period at the Don Jail. This kind of extraordinary delay, between conviction and sentence, is unacceptable. It is harmful to Gibson and it is harmful to confidence in the administration of justice as it leaves the impression with the public that the justice system is slow and inefficient. Responsibility for the delays initially rests with the Ministry of the Attorney-General, which takes too long in deciding whether to proceed, and it then rests with forensic psychiatrists, who take too long to schedule and complete their assessments. Finally, it rests with the parties and with Legal Aid Ontario who fail to make realistic compromises and agreements about psychiatric assessments and about the scope of the hearing, which could have eliminated certain delays. The Criminal Code needs to be amended to require that these hearings be conducted in a much shorter time frame. The current delays created or permitted by ss. 752.1 and 754 are far too lengthy and result in hearings like this one.

B. THE EVIDENCE HEARD AT TRIAL THAT IS RELEVANT TO SENTENCE

[3] The facts relating to the offences committed by Gibson are set out at length in my February 13, 2012 reasons and will not be repeated. In short, Gibson befriended the C. family and became a frequent companion and babysitter for two young boys in the family. The two boys, R. K. and A. C., were cousins and they were age seven and four at the relevant time. Gibson would take them on outings, often with their grandmother but sometimes alone. He engaged in what must have been a carefully planned course of befriending the unsophisticated grandmother, in order to gain access to the two boys, and he then proceeded to groom the boys by giving them small gifts and treats and taking them swimming, bowling, to movies, and to amusement parks. At some point, he won the trust of the boys’ grandmother and their mothers, and he would be left alone with one or both of the boys. He engaged in a course of sexual assault that included fondling, fellatio, and anal intercourse. The exact number of these incidents cannot be determined, given the very young age of the boys, but I am satisfied that there were many repetitions, especially in relation to R. K. I am also satisfied that R. K. delayed reporting the sexual abuse, in part, because Gibson had threatened him.

[4] There was also some evidence heard at the trial about Gibson’s antecedents because he, his mother, and his long time employer all testified. Once again, I will not repeat this evidence but it is apparent that Gibson is close to his mother and his employer, who he regards as a father figure, and that he has been capable of working diligently and responsibly at various points in his life.

[5] The fact of his prior Youth Court record came out at trial and was then dealt with in greater detail at the dangerous offender hearing. Gibson was convicted on October 31, 1991 of carrying a concealed weapon, apparently a pellet gun. He was born on June 25, 1976, so he would have been fifteen years old at the time of this first offence. He was placed on nine months probation. On November 25, 1993 he was convicted of four separate offences, namely, abducting a child under the age of fourteen and three counts of invitation to sexual touching involving young children. He would have been seventeen years old at the time of these convictions and he was sentenced to nine months in an open custody facility and fifteen months probation. The custodial sentence ended on August 24, 1994, when Gibson was eighteen years old, and the period of probation would have ended on November 24, 1995, when he was nineteen.

[6] The predicate offences involving R. K. and A. C. took place in the summer and fall of 2009. At that time, Gibson would have been thirty-three years old. He has been in custody since his arrest on November 28, 2009. He is now thirty-six years old. There is no record of any criminal convictions or of any criminal charges in the sixteen year period between November 1993 and November 2009. In other words, the offences in the present case are his first adult criminal convictions.

C. THE EVIDENCE CALLED AT THE DANGEROUS OFFENDER HEARING

[7] The Crown and the police searched diligently for any records relating to Gibson’s early correctional history, in the 1990-1994 time period. They succeeded in finding a fair number of these records. I admitted them in evidence on the dangerous offender Application. The various records are described generally in my October 2, 2012 ruling, concerning admissibility, which can be found at R. v. Gibson, 2012 ONSC 5527.

[8] In addition to tendering these records, the Crown had Gibson assessed by Dr. Pallandi, a forensic psychiatrist at the Centre for Addiction and Mental Health. Dr. Pallandi prepared a report and testified at the hearing. His diagnosis was that Gibson is a pedophile and his opinion was that Gibson’s “risk for sexual recidivism falls in the high range”. The Crown also called Dr. Sowa, an experienced psychiatrist who worked with Gibson in the 1993-1994 time period, while Gibson was serving his nine month open custody sentence. There are many contemporaneous psychiatric notes from Dr. Sowa, during this period. Gibson was too young for a formal diagnosis of pedophilia, at the time when Dr. Sowa was seeing him. But today, Dr. Sowa would agree that Gibson is a pedophile. At the end of the nine month open custody sentence, in 1994, Dr. Sowa was concerned that Gibson would re-offend. He felt that little progress had been made during the time that he worked with Gibson.

[9] The Crown also called a federal parole officer, Sheldon Schwartz, who works with high risk offenders on various forms of conditional release. He testified about the degree of supervision that can be provided by federal correctional services, whether the offender is on parole, on statutory release, or under a long term offender supervision order.

[10] Finally, the Crown tendered a Victim Impact Statement, prepared by N.C. on behalf of the two boys and their mothers. It is a powerful and moving account of the long-term harm that has been done to R. K. and A. C. and to their families. It states the following:

“Our lives have been changed and will never be the same no matter how much we try to heal and forget … What I can tell you … is the seriousness and traumatic impact this crime has had and is still occurring within both A. C. and R. K.’s life, S. C. and I as mothers, and within our family.

Once both happy, relaxed, calm, laughing, polite, outgoing, playful children no longer exist. Both of our boys have drastically changed. A. C. and R. K. are not the same boys they used to be.

Their behaviour has changed. They are acting out in negative ways through their actions and words. They lack confidence, want to fight and argue with adults. Many times they were overheard saying, ‘They do not care anymore’, ‘They want to die’. They are rebelling, not listening, talking back. They both feel guilt, like it was their fault what happened to them. They feel shame, frustration, anger, fear, distress, confusion. A. C. and R. K. are beyond hurt … My child A. C., appetite had decreased, nightmares are endless. He also now requires overnight pull-ups. He began bed wetting every night since the sexual abuse, he fears going to the bathroom in the night. A. C. also on many occasions has displayed very inappropriate behaviour. He has [gone] up to complete strangers and said, ‘suck my dick’, also ‘can I suck your dick’, ‘I will suck you, I know how.’

…A. C. now lacks confidence. He feels and believes everything is his fault, that nobody likes him. His self-esteem, confidence and trust has been shattered. He lets and will allow kids in and out of school to bully him, hurt and even hit him. He is confused, he really feels and thinks that is o.k.

… R. K. is also experiencing … behavioural changes. He also lacks confidence and is seriously acting out in school, in public and at home. He is older, eleven now, and is much more aggressive, dominate, over-powering, talks back, acts out, and swears. His school grades have decreased, lacks interest in activities he used to enjoy. He must always have a night light on … while sleeping whereas before he was sexually abused he did not require a night light. He hates the dark now for what may be lurking in it he says. He also suffers from nightmares, wakes up in cold sweats and memory flashbacks. He also began over-eating as a way to cope with his anxiety.

… Truly, everyone knows that you will never forget, you will always remember. To deny that fact would be a lie:”

[11] The only defence evidence called on the dangerous offender hearing was from Bill Radigan. He is an ordained Deacon and volunteer chaplain at the Don Jail where he met Gibson some two years ago. He has visited Gibson regularly during this period. Gibson is taking a Bible study course at the jail and is trying to re-connect with the Christian faith. They talk and pray together during their meetings and Deacon Radigan has the impression that Gibson is sincere in his interest in religion. Deacon Radigan also works with prisoners, after their release into the community at the end of their sentences, if they wish to be involved with a faith-based group.

[12] I will refer to the above evidence in more detail, as necessary, when applying the law to the facts in the next section of these reasons.

D. ANALYSIS

(i) The statutory framework

[13] The statutory regime for dangerous offender and now, long term offender applications, has changed and evolved over the years. The present scheme is complex but, as I understand it, it contains the following basic elements or requirements:

• there are two separate routes to a dangerous offender designation, through either s. 753(1)(a) or s. 753 (1)(b);

• the s. 753(1)(a) route applies to a broad range of predicate offences, defined in s. 752(a), and it requires a showing that the offender “constitutes a threat to the life, safety or physical or mental wellbeing of other persons”. One way of establishing this “threat”, that could apply in the case at bar, is by proof of “a pattern of repetitive behaviour … showing a failure to restrain his … behaviour and a likelihood of … inflicting severe psychological damage on other persons, through failure in the future to restrain his … behaviour”. The other two means of establishing the “threat”, also set out in s. 753(1)(a), are less applicable to the case at bar;

• the s. 753(1)(b) route is designed specifically for sex offenders because it only applies to predicate offences defined in s. 752(b), which are all sexual assault offences. It requires proof that the offender, “by his … conduct in any sexual matter … has shown a failure to control his … sexual impulses and a likelihood of causing injury, pain or other evil to other persons through failure in the future to control his … sexual impulses”.

[14] Although the two statutory routes summarized above are distinct, as a practical matter they “overlap” to a considerable degree. See: R. v. H. (M.B.) (2004), 2004 14199 (ON CA), 186 C.C.C. (3d) 62 at paras. 12-14 (Ont. C.A.). For example, sexual assault is a sufficient predicate offence under both routes. In addition, the “threat” under the first route is established by “a pattern of repetitive behaviour”. Although this statutory criterion is not specifically mentioned under the second route, it has been held that the s. 753(1)(b) test of future dangerousness generally turns on “past behaviour and patterns of conduct”. See: R. v. Currie (1997), 1997 347 (SCC), 115 C.C.C. (3d) 205 at paras. 25-6 and 32 (S.C.C.). Finally, the critical component under both routes is proof of a future “likelihood” of re-offending in a certain way. The Crown relies on both of these routes in the case at bar.

[The remainder of the judgment continues verbatim exactly as in the source.]

M.A. Code J.

Released: February 1, 2013

COURT FILE NO.: 10-100000700-0000

DATE: 20130201

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

PAUL GIBSON

REASONS FOR JUDGMENT

M.A. Code J.

Released: February 1, 2013